Statement: 12 May 2023

Statement of ICC Prosecutor Karim A.A. Khan KC to the UN Security Council on the Situation in Libya, pursuant to Resolution 1970 (2011)

ICC Prosecutor Karim A.A. Khan KC

Madam President, thank you so much for the opportunity to brief this august body once more today. I would start with your leave and the leave of distinguished delegates to also express my personal thanks to the distinguished representative of Libya to this Chamber.

In my report a year ago, I had the privilege of addressing this Council and I laid out what I opined was the need of the hour to have the International Criminal Court be seen as more impactful, to be seen as more nimble and to be more results-orientated. And I set out a year ago a new plan of action that would hopefully fulfil the need of the people of Libya and thereby also vindicate the demands of this Council when they referred the matter to the Court in the first place. 

It's important to recall, Madam President, that the motivation that led the Council to refer the matter was not politics or divides or power politics. It was the need for justice for children and women and men. Over the last six months, significant progress has been made as a result of more dynamic field-focused investigations, a targeted approach to investigations. 

And in the last six months, I think there's cause for optimism that we are finally on track. Twenty missions have been conducted by the men and women of my Office in this reporting period. More than 500 items of evidence of a vast array of types (audio, video, satellite) have been collected as well as testimonial evidence that has been scrutinised as well as preserved. 

We also realise that the International Criminal Court is a hub, it is not an apex court. We are working under the principle of complementarity, both within Libyan national authorities as an exercise of their sovereignty and their primary responsibility as a matter of public international law, but also we have given evidence to six national authorities to pursue justice in their own courts. And I think that is a matter of significant pride for the international community, the fact that justice is not the preserve of the International Criminal Court, it is not the preserve of any one national authority: it is the obligation of every member state of the United Nations to finally, in 2023, to realise the obligations that have been with us since Nuremberg.

We are bringing our Office and the work of the men and women of the Office closer to the people of Libya. In my last report, I mentioned that in November, I conducted the first visit of a Prosecutor of the ICC to Libya in a decade. I briefed the Council for the first time from Tripoli and that engagement has accelerated in this reporting period. We are reaching out regularly to the Libyan authorities, but also to civil society, to victims and survivors in Libya. 

Partnerships are key to justice. If this Council's instructions, if this Council's responsibilities, if the referral of Situations from this Council to the Court are to be vindicated, it requires everybody to step up and every single state to realise that there is a shared responsibility much bigger than the momentary politics of the moment; but to children, women, and men that look to this august body for justice and for the rights of the UN Charter to be properly vindicated that must trump politics, short-term expediency. And the partnership has embraced a very close collaboration with the UN Independent Fact-Finding Mission on Libya. We have had a very good partnership with them. We have received information from them that we have also independently reviewed and scrutinised. I think it is only right and proper to express gratitude to the SRSG, the Special Representative of the Secretary General of UNSMIL. The support of the United Nations Support Mission in Libya was critical to my mission last year, but remains critical in terms of engagement and ability to be on the field in Libya. 

Over this last reporting period, we have accelerated a transformation of the Office, including the Libya file in that we have moved to the cloud, we have started using in the Libya file Relativity as a powerful new e-discovery tool that is enhancing our ability to ingest more information, to analyse it more effectively, to give it to national authorities and actually properly target investigations and to investigate incriminating and exonerating evidence equally. This has allowed us to get concrete results. 

I announced that we had applied for more warrants in the Libya Situation. I can announce today that four warrants were issued by the independent judges of the International Criminal Court. I have applied for those to be unsealed, and the judges will decide that application in due course. And in addition to those four warrants in Libya that are demonstrable evidence of renewed activity and greater focus, I have also applied in the last couple of weeks, two or three weeks, for two additional warrants as well.

Now, that's also important. Warrants are not an end in themselves, but they are an important step in the rights of victims and survivors that their lives matter to you. Their lives matter to us and what many of them have suffered. The allegations that they raised that we believe to be supported by evidence need to be assessed by independent and impartial judges if we are not to give the lie to the promise of Nuremberg: the promise in which all permanent members of the Council joined with one voice that there should be never again a time in which human rights are trampled so egregiously in different parts of the world. We, of course, have a great deal of room to improve as a Council and as the international community.

The warrants are of course a first step. How do we deliver evermore? I think partnerships are absolutely key and the realisation that it doesn't matter at all which flag is behind a judge or behind a Prosecutor. We need to work more closely with the independent judicial authorities of Member States of the United Nations, State Parties or Non-State Parties alike. Everybody has a stake in justice. And I think when we can share evidence with national authorities in the way that we have over this six-month period, it is a sign of hope that finally we are maturing as a people. 

But impact is important because when I was in Libya, also when I was in Tarhuna, when I was in Sudan in Kalma camp, there is this concern of victims that they don't trust the Security Council, they don't trust the ICC. The United Nations and Member States are viewed as all talk because they're not seeing enough change in their lives. They are not seeing that their lives matter. There is a gap between the promise of justice, the prayer of never again, the spectre of international institutions working for them, and they see that they still are in refugee camps, they are dislocated, they are living in fear around the world. And this is something that every individual, Council members, all Member States, international institutions and the men and women of humanity need to really re-galvanise their efforts for us to do better and come of age as a species. 

But there are significant milestones in the last reporting period. We further supported the national prosecutions in Italy and the Netherlands working with Europol and the Joint Investigative Team that we are members of in the Libya case file in relation to human trafficking and that egregious crime that includes sexual abuse and sexual slavery, and many other allegations that we are receiving. And Non-State Parties also have a very important role to play. I went recently to the United Arab Emirates and I applauded the Emirati authorities because on the 1st of January of this year, a 39 year-old Eritrean man, a key suspect in relation to the egregious crime of trafficking was arrested in Sudan in an operation led, courageously led I should say, by the United Arab Emirates. And that was in furtherance of an arrest warrant issued by the Kingdom of the Netherlands. So this is an example of humanity coming together and the law not being the preserve of State Parties to the ICC, but being an obligation and glue that can bind us together in a way that is not contentious, but is much more cooperative than we have seen in the past.

I have continued to engage, Madam President, with the Office of the Attorney General in Libya, the Military Prosecutor, and the Ministry of Justice and we are trying to work on other areas of partnership, helping the Libyans to increase their own capacity and lending the technical assistance of the men and women of my Office in the field of forensics, the identification of remains where I think there is a great deal of scope for collaboration and improvement. 

In the coming weeks, my team will be again in Libya liaising with the authorities in Libya. And also hoping to establish a field office in Tripoli. And this is really important. It is not some cosmetic exercise. When we are working with the people affected, when we are working with the national authorities, wherever we are in the world, justice becomes something more tangible. It becomes less distant and less theoretical. And I think that is also what is needed at the moment. And of course, the medium term, even aspiration, the hope must be that the Libyan authority, the flag of Libya, is increasingly behind the principle of justice at home and we are willing and eager to work ever more closely with the Libyan authorities to vindicate the needs of Libyans that have suffered so much for so long. 

A partnership, of course, is key and the secondees that many Member States have provided to my Office. In fact, all State Parties have provided, have been used across Situations, not only in one Situation but across Situations. And Libya is a good example of that, that we have benefited from the allocation of resources that I have given to Libya to make sure we can get the results that I have spoken above of in relation to warrants and others. And I think that need of acceleration is not without significance. We should not feel this sense that we can take our good old time to get results. Rather, we have to feel this sense of urgency as if these are our children, our family members that are suffering, that are craving justice, that want to know where their loved ones are buried. And if we feel that we can pause for a moment the political divisions that are so abundantly and unfortunately around us and coalesce around people that we don't know, whose faces many of us will not see and unite on this principle of humanity and justice, I think it will be to the betterment of international law and international relations more generally.

Technology, again, is not a flash in the pan, Madam President. The ability to use technology more effectively, I have mentioned Relativity and e-discovery, but we are also in the process of transforming the architecture of the Office, and we have used it in Libya. The ability to transcribe automatically from video and audio, and then using machine learning and automated translation to increase the pace of delivery and get the impacts that so many are looking for. I think Libya is absolutely key to all of this. The collaboration, the partnership, the trust, hopefully that will become stronger as we go on with Libya, will ultimately be the litmus test to the referral that has been given to us by the Council. In the meantime, we can't doodle, but we need to show how things should be.

I think it may be useful, Madam President, to recall with your leave, one of the most impactful episodes during my less than two years as Prosecutor, and it was when in November I went to a town called Tarhuna about two hours from Tripoli. And I was there with the local community, around a very simple table, and the accounts that we heard is a snapshot of why this Council referred the matter to the Court. 

There was a man who spoke in very simple words and the words were all the more powerful for the simplicity devoid of any artifice. And he described how 15 members of his family had been taken away and murdered. There was a lady who, with great dignity, looked me in the eye and said what it felt like to be in the room when two of her children were taken away, never to be seen again. Imagine any of us that have children that suddenly your children just are taken away and you don't know where they are. You don't know how their lives ended or where they're buried. 

And there was a man who really touched me greatly. He said, ʺI can’t live in my own house because that house, those walls and that roof, is where my children were born and my children are not with me, and I can’t bear every moment in my house. It is no longer a home. It is a vivid flashback of love lost and justice that has not been feltʺ. And we see in so many parts of the world, including Libya, that quite candidly these victims told us, “We hear that you, the ICC and the UN and the international institutions, talk a good talk but we are not feeling it. We are not feeling that our lives matter to all of you”. 

I think that is something that should weigh very heavily on us. But I think, Madame President, in this reporting period, the clear demonstrable accelerated focus, the application issuance of warrants, the four warrants I have mentioned, the application of two further warrants, the greater focus on field presence, the greater sense of urgency and that sense of acute responsibility to be servants of humanity, to remember the great Dag Hammarskjöld to realise that self-oblivion and having brickbats thrown at one to be castigated is absolutely worth it. If one can finally become worthy of being properly called a servant of justice and a servant of the international community. 

That sense of service is one that should galvanise all members of the Council to do better than we have in Libya and in so many parts of the world. If we feel that we can get things better, if we feel that we can be more imaginative and build partnerships together, I think this referral, which has seen such progress over the last six months, can go deeper, which will be a debt of thanks that we receive, that we may finally deserve. 

And maybe most importantly, we can look at victims, like the victims I have seen in Tarhuna and other places of Libya and not feel ashamed, but feel finally we are doing our best to deliver on their right to justice and accountability. 

Thank you so much.

Twenty-Fifth Report of the ICC Prosecutor to the United Nations Security Council Pursuant to Resolution 1970 (2011)

Video: ICC Prosecutor’s briefing to the UN Security Council, 11 May 2023

Source: Office of the Prosecutor | Contact: [email protected]