ICC Prosecutor Statement to the United Nations Security Council on the situation in Libya, pursuant to UNSCR 1970 (2011)

FOURTH REPORT OF THE PROSECUTOR 
OF THE INTERNATIONAL CRIMINAL COURT 
TO THE UN SECURITY COUNCIL PURSUANT TO UNSCR 1970 (2011) 
English, Français, عربي

Mr President,

1. I am honoured to present the fourth briefing on the activities of the Office of the Prosecutor in furtherance of UN Security Council Resolution 1970. As this is my first opportunity to address the UN Security Council, allow me to express my gratitude for the Council’s swift, unanimous action in referring the situation in Libya to the Office of the Prosecutor to ensure accountability for the most serious crimes. Last month’s dialogue session, under the Guatemalan presidency on the relationship between the Council and the Court is yet another example of this Council’s commitment to fostering understanding and enhancing relations between the two institutions. I stand ready to cooperatively work with the Council in our joint endeavours to promote international criminal justice and end impunity, in furtherance of our mutual quest for lasting peace.

Mr President,

2. The situation in Libya remains of serious concern to me and to my Office. You will recall that, following this Council's referral and after the Office investigated and presented its evidence to the Chamber, on 27 June 2011, the Judges issued three arrest warrants for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi. Libyan members of the National Transitional Council informed the Office in April that the warrants played a crucial role in delegitimizing Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, at a time when the opposition was struggling to draw attention to the commission of serious crimes in Libya. No investigations of these crimes could have been undertaken by the Gaddafi regime and ICC intervention was, at that time, the only way to establish justice for victims of the Gaddafi regime’s crimes.

3. A lot has happened since the Council referred the situation to the ICC. Both Saif Al-Islam Gaddafi and Abdullah Al-Senussi have been arrested and are in detention. The Libyan authorities have challenged the admissibility of the case against Saif Al-Islam Gaddafi and have indicated their intent to also challenge the admissibility of the case against Abdullah Al-Senussi in the near future. On 9 and 10 October 2012, the Judges of Pre-Trial Chamber I convened a hearing to receive oral submissions on the Government of Libya’s admissibility challenge in relation to the case against Saif Al-Islam Gaddafi. The Court heard from the Prosecution, Defence and Legal Representatives, as well as from the Libyan authorities, who asserted that they are investigating the same conduct as that investigated by my Office and now before the ICC.

4. The Pre-Trial Chamber will decide in due course on the merits of the admissibility challenge as to whether the case should be heard before the ICC or in Libya. My Office appreciates the commitment of the Libyan authorities to respect the judicial process and will continue to engage with them within the limits prescribed by the Statute.

5. It is worth recalling and emphasizing that the Rome Statute gives primary responsibility to national institutions to investigate and prosecute such crimes, with the ICC intervening only if they are inactive or otherwise unwilling or unable to do so genuinely. Nonetheless, as the Appeals Chamber has previously held, a State challenging admissibility must provide the Court “evidence of a sufficient degree of specificity and probative value that demonstrate that it is indeed investigating the case.”

6. Pursuant to its stated policy, my Office promotes and encourages genuine national proceedings to combat impunity for the most serious crimes of international concern. We await rulings of the Court on Libya’s challenge. Should the challenge ultimately succeed, my Office will monitor those proceedings and cooperate with Libya, to the extent my mandate allows, in order to ensure that they remain genuine. If, on the other hand, the Court rules that the case should be heard before the ICC, I will count on Libya’s full support and cooperation to ensure that the ICC’s proceedings are both successful and are seen to be successful by the Libyan public, the first and most important audience for any such proceedings at the ICC.

7. Let me also emphasize the ever present need for complementary and mutually supportive approaches to addressing accountability generally, involving the full range of transitional justice mechanisms. In this regard, I encourage international support and assistance to enhance Libya’s capacity to deal with past crimes and to promote the rule of law.

8. I wish to thank the Government of Libya for its commitment to working with the ICC and for its active engagement with the judicial process. I encourage the government to redouble those efforts in the interests of justice. My Office appreciates the challenges inherent in the historic political transition underway in Libya. I believe that all can agree that justice must remain a key element of this transition. Looking beyond the cases currently before the Court, there remains much that my Office and the Government of Libya can do together to make justice a reality for Libya’s victims. I call on the international community and in particular this Council — to intensify their efforts to assist the Government of Libya in any way they can to combat impunity and reinforce a culture of the rule of law. I believe that by working together, we can help address threats to Libya’s security, both from within and outside, that have been created by past and ongoing criminality, and demonstrate to the Libyan people that the world is committed to assisting them in their efforts to secure justice and lasting peace.

9. My Office understands that the Government of Libya has committed to a comprehensive strategy to address all crimes and end impunity in Libya. I encourage the Government of Libya to make this strategy public, and to work with key partners to receive feedback on this strategy and to seek out the views and concerns of victims in Libya. Early finalization of this strategy will be yet another milestone on Libya’s path to democracy and rule of law.

10. My Office takes note of Law 38, granting amnesty at the national level for “acts made necessary by the 17 February revolution,” as well as Law 35, which purportedly ensures that any act found to be in contravention of international laws and human rights covenants will not be exempt. I encourage the new Libyan government, scheduled to be sworn in in the coming days, to ensure that there is no amnesty for international crimes and no impunity for crimes, regardless of who is the perpetrator and who is the victim.

Mr President,

11. My Office continues to collect evidence in relation to a possible second case in Libya. No decision has yet been taken as to the focus of that second case. We continue to collect information on allegations of rapes and sexual violence, which targeted both men and women; allegations against other members of the Gaddafi government for crimes committed during the events of 2011; and allegations of crimes committed by rebel or revolutionary forces, including against the residents of Tawergha, against individuals hors de combat and against detainees. I will take a decision on the direction of a possible second case in the near future. My Office also continues to assess the security situation in terms of its potential impact on the Office’s ongoing investigations, and appreciates the Government of Libya’s commitment to ensuring the Office’s security while operating on the territory of Libya.

12. Given its limited resources and ever increasing workload, my Office can only do so much to help Libya move forward: the fate of the Libyan people is in their hands.

13. I look forward to continuing dialogue with the Libyan Government and other key partners to ensure transparency in this essential, ongoing legal process.

Thank you.