Libya
Expected Council Action
In May, ICC Prosecutor Fatou Bensouda will deliver her semi-annual briefing on recent developments concerning cases in Libya.
Key Recent Developments
Seven of the nine members of the Presidency Council of the Government of National Accord (GNA) arrived in Tripoli on 30 March. Despite the fact that the Presidency Council secured the support of key institutions, such as the Libyan Investment Authority, the National Oil Corporation and the Central Bank, so far it has not been formally endorsed by the Tobruk-based House of Representatives.
A majority of House members issued a statement on 21 April after they were prevented from holding a vote on a list of GNA candidates, submitted on 15 February by the Presidency Council, by a militia reportedly allied with some House members. The statement expressed their intention to endorse the GNA, while reiterating reservations about article 8 of the Libyan Political Agreement regarding the transfer of military power, which is perceived as challenging the role that General Khalifa Haftar (the military leader of Operation Dignity in eastern Libya) will be able to play in Libya once a GNA is sworn in. A 22 April joint statement by the ambassadors and special envoys to Libya of the EU, France, Germany, Italy, Portugal, Spain, the UK and the US commended the efforts of the majority of members of the House “in spite of unacceptable threats” and welcomed the decision of those members to convene the House in a Libyan location that offers security and safety for its members.
The first meeting of the State Council—a consultative institution provided for by the Libyan Political Agreement in which most members of the Tripoli-based General National Congress (GNC) are expected to participate—took place in Tripoli on 6 April. However, members of the GNC continue to be divided over whether to dissolve the GNC and pledge allegiance to the GNA. On 22 April, the State Council met in the headquarters of the GNC in Tripoli.
Targeting the perceived spoilers, the EU imposed sanctions on 31 March on Agilah Saleh (head of the House), Nouri Abu Sahmain, (head of the GNC) and Khalifa Ghweil (head of the Tripoli-based National Salvation Government). The US also imposed sanctions on the latter on 19 April.
The security situation continues to be critical, particularly in the east. The UN Support Mission in Libya (UNSMIL) has been seeking to arrange a humanitarian ceasefire in the eastern city of Benghazi, but so far it has not been able to secure the agreement of the warring parties. In the west, clashes have persisted among rival militias in Warshafana. The situation in Tripoli is generally calm, with episodes of violence among rival militias. Since its establishment on 13 January, the Temporary Security Committee has been working to formulate a security plan to enable the GNA to establish itself in Tripoli.
Special Representative of the Secretary-General and head of UNSMIL, Martin Kobler, last briefed Council members on 7 April, describing his plans to support the Presidency Council and the GNA in establishing themselves in Tripoli by maintaining a continuous presence in Tripoli. (A UN needs-assessment mission, deployed in January to evaluate the feasibility of UNSMIL’s return to Libya, concluded that such a move was contingent upon the establishment of the GNA in Tripoli and authorisation to deploy a UN guard unit.)
The International Organization for Migration estimates that around 1,200 migrants have died this year on all Mediterranean routes to Europe. It also confirmed details of a shipwreck that resulted in the deaths of upwards of 400 migrants and refugees who had left Libya in mid-April.
ICC-Related Developments
Saif Al-Islam Qaddafi, son of deposed leader Muammar Qaddafi, was sentenced to death in absentia on 28 July 2015 by a court in Tripoli that tried him along with 36 other Qaddafi-era officials accused of serious crimes during the 2011 revolution. Qaddafi is being held in a militia-controlled jail in the town of Zintan. UNSMIL and the Office of the High Commissioner for Human Rights criticised the trial as not meeting international standards for a fair trial.
On 30 July 2015, Bensouda requested that the Pre-Trial Chamber order Libya to refrain from carrying out Qaddafi’s sentence, surrender him to the Court and officially inform the Security Council of the sentence, which she described as an irreversible manifestation of Libya’s failure to cooperate with the Court. On 20 August 2015, the government of Libya, through its legal counsel, said in response to the Prosecutor that Qaddafi’s judgement was not final given that he was tried in absentia and stressed that he could not be surrendered to the ICC because he was not in the custody of the Libyan government.
The ICC’s Pre-Trial Chamber had issued a decision on the non-compliance of Libya with the Court in the case against Qaddafi on 10 December 2014, by which the matter was referred back to the Council to seek its assistance in eliminating the impediments to cooperation. The Council responded to this and other findings of non-compliance by agreeing on a 21 December 2015 letter from the Council’s president to the president of the ICC, merely informing her that the letters transmitting decisions of Pre-Trial Chambers of the ICC on the situation in Darfur and Libya had been brought to the attention of Council members.
In 2013, the ICC concluded that Libya was not unwilling or unable to genuinely carry out its proceedings regarding the case against former intelligence chief Abdullah Al-Senussi that was before the ICC, thus making it inadmissible before the Court.
Bensouda has signalled in the past her readiness to open new investigations into ongoing crimes, but these efforts have been hampered by lack of cooperation from the Libyan side and by security and budgetary constraints.
Human Rights-Related Developments
A 15 February report by the Office of the UN High Commissioner for Human Rights described widespread violations of international human rights law and international humanitarian law and abuses of human rights, perpetrated by all parties to the conflict in Libya throughout 2014 and 2015. On 24 March, the Human Rights Council adopted, without a vote, a resolution on technical assistance and capacity-building to improve human rights in Libya. The resolution calls on the GNA to fully implement the Libyan Political Agreement and condemns all violations and abuses of human rights and violations of international humanitarian law. These include unlawful killings, indiscriminate shelling and attacks on civilians, abductions and assassinations of government officials, judges and others, the shelling of hospitals and the looting of property. The resolution expresses grave concern at the number of conflict-related detainees, including children, and at reports of torture and sexual and gender-based violence in detention centres, strongly condemning practices such as abduction, hostage-taking, incommunicado detention, abuse and killings carried out by non-state armed groups, most notably the Islamic State in Iraq and the Levant (ISIL), Ansar al-Sharia and other terrorist organisations in Libya (A/HRC/RES/31/27).
Key Issues
The overarching issues are how to ensure the broad acceptance of the political agreement, including its endorsement by the House, how to bring on board those unwilling to sign it and how to isolate spoilers actively undermining the political process.
A key issue is ensuring that military actors commit to implementing the ceasefire and other security arrangements provided for in the agreement. Addressing impunity and stopping violations of international humanitarian law by the parties is a related issue.
The growing threat in Libya of terrorist groups with regional reach is an urgent issue.
Options
Options on Libya include:
- visiting Libya to hold discussions with the parties and regional stakeholders with the objective of breaking the current deadlock over the political process;
- holding an informal interactive dialogue with the prosecutor to develop a joint plan to ensure cooperation once the GNA is fully established; and
- imposing sanctions on spoilers.
The Council could also issue a statement:
- reiterating the call for the GNA to hold accountable those responsible for violations of international humanitarian law and violations and abuses of human rights and to co-operate fully with and provide any necessary assistance to the ICC and the prosecutor;
- calling on member states to ensure adequate funding to support the ICC in investigating serious violations of human rights and international humanitarian law; and
- calling on member states to extend full cooperation to and support for the ICC by assisting its investigations and complying with its rulings.
Council and Wider Dynamics
Council members generally support UNSMIL’s mediation efforts and have repeatedly stated that there can be no military solution to the crisis in Libya. There is also a feeling of urgency among Council members given the growing threat of ISIL in Libya. Some Council members emphasise the importance of a formal endorsement of the GNA by the House as per the political agreement. However, other Council members are already interacting with the Presidency Council of the GNA as the legitimate government of Libya. This dynamic has been reflected recently in the negotiations on resolutions 2273 and 2278, of 15 and 31 March respectively, and in a 1 April press statement.
The semi-annual briefings by Bensouda on Darfur and Libya have proven rather ineffective given the reluctance of the Council to follow-up regarding the difficulties in implementing ICC decisions. Council members have often reverted to general exhortations rather than effectively addressing non-compliance in a more forceful way. It remains to be seen whether the new GNA will cooperate fully with the ICC and the prosecutor, unlike previous governments.
The efforts—led by Chile and Lithuania—to respond with a letter to the findings of non-compliance issued by the ICC took months of negotiations, reflecting sharp divisions among Council members, including among states parties to the Rome Statute.
| Security Council Resolutions | |
| 31 March 2016 S/RES/2278 | The Council renewed the sanctions regime for a year. |
| 15 March 2016 S/RES/2273 | This was a resolution renewing UNSMIL until 15 June 2016. |
| 23 December 2015 S/RES/2259 | The Council welcomed the signing of the Libyan Political Agreement. |
| Security Council Press Statements | |
| 22 April 2016 SC/12334 | This press statement deplored the maritime tragedy that resulted in up to 500 deaths. |
| 1 April 2016 SC/12313 | This press statement encouraged the Presidency Council to immediately begin its work in Tripoli to broaden the basis of its support. |
| 14 March 2016 SC/12280 | This was a press statement calling for the Presidency Council to take steps to rapidly start working from the capital, Tripoli. |
| Sanctions Committee Document | |
| 4 March 2016 S/2016/209 | This was the final report of the Panel of Experts on Libya. |
| Security Council Meeting Record | |
| 5 November 2015 S/PV.7549 | This was a briefing by the prosecutor of the ICC, Fatou Bensouda. |
