Expected Council Action
In November, the Council will receive the semi-annual briefing by ICC Prosecutor Fatou Bensouda on recent developments concerning cases in Libya.
The mandates of the UN Support Mission in Libya (UNSMIL) and the Panel of Experts (PoE) assisting the 1970 Libya Sanctions Committee expire on 14 March and 16 April 2014, respectively.
Key Recent Developments
In his 16 September briefing to the Council, the Special Representative of the Secretary-General, Tarek Mitri, highlighted how security problems are still, arguably, the predominant concern in Libya. On 2 October, an armed mob attacked the Russian embassy in Tripoli, resulting in intrusions into the diplomatic premises that caused serious damage. Several attacks targeting the military in the last two months resulted in more than 20 casualties, a bomb attack severely damaged the Benghazi branch of the Ministry of Foreign Affairs and on 10 October, Prime Minister Ali Zeidan was kidnapped for several hours by an armed militia. On 21 October, NATO agreed to Zeidan’s request to provide advice on defence institution-building through the establishment of a small advisory team.
The political situation remains tense. In early September, the Muslim Brotherhood-affiliated Justice and Construction Party threatened to pull its five ministers from the government. On 26 September, Fezzan declared itself an autonomous federal province, following a similar move by the Cyrenaica region in June. In mid-October, Cyrenaica opened its own independent parliament in Benghazi. Oil production continued to be disrupted for most of the reporting period, with oil revenues rising at a slow pace. The US capture of Abu Anas al-Libi, who is listed under the 1267/1989 Al-Qaida sanctions regime, in Libya on 5 October fueled political tensions in the country. Against this backdrop, in late August the government announced the launch of a national dialogue initiative and the preparations for elections for the constitutional-drafting assembly.
In a 20 October press conference, Zeidan highlighted the challenges posed by the proliferation of weapons and the difficulties in making the militias abide by the rule of law. As mentioned by Mitri during his recent briefing, the situation of many of the estimated 8,000 conflict-related detainees remains problematic.
Relations between Libya and the ICC have been tense following the decision by the ICC to try Saif Al-Islam Qaddafi and former intelligence chief Abdullah Al-Senussi in The Hague, as per the ICC referral in resolution 1970. On 31 May, ICC Pre-Trial Chamber I rejected Libya’s challenge to the admissibility of the case against Qaddafi, citing lack of sufficient evidence to demonstrate that Libya was investigating the same case as that before the Court, and reminded Libya of its obligation to surrender him. The ICC Appeals Chamber came to the same conclusion in July, after Libya requested that his surrender be suspended. Qaddafi appeared in court in Zintan on 19 September to face charges related to his alleged attempt to escape and to endangering national security. The militia holding him refused to transfer him to Tripoli for a pre-trial hearing on war crimes proceedings against 38 former regime figures.
Regarding Al-Senussi, Libya filed a challenge to the admissibility of the case before the ICC on 2 April 2013, claiming that it had started proceedings against al-Senussi in 2012. In an 11 October decision, Pre-Trial Chamber I concluded that the case against Al-Senussi was being investigated by Libya, thus making it inadmissible before the ICC.
In her 8 May briefing to the Council, Bensouda expressed concern about the alleged crimes committed by rebel forces during the revolution, including the expulsion of residents of Tawergha and the destruction of the city, the on-going alleged persecution of ethnic groups perceived to have been affiliated with the Muammar Qaddafi regime and specific incidents as yet unaccounted for. She also mentioned her investigations of other serious crimes committed by former Qaddafi officials, some of whom are now outside Libya.
Human Rights-Related Developments
In October, UNSMIL and the Office of the High Commissioner for Human Rights jointly released a report underlining widespread concerns in many detention centres that torture and ill treatment in Libya are ongoing. Since late 2011, UNSMIL has recorded 27 deaths in custody where there is significant information to suggest that torture was the cause of death, including 11 cases between January and June 2013. The report notes that the armed brigades that emerged during the 2011 revolution are in effective control of most detention facilities where torture takes place. Despite government efforts to bring armed brigades under state authority, torture continues and is most frequently used upon arrest and during the first days of interrogation. The report observed that a proper handover of detention facilities to trained officers of the Judicial Police usually results in improved conditions and better treatment of detainees. The report recommended swift action to transfer detainees to the effective control of state authorities and interim measures to protect the detainees against ill treatment.
A key issue for the Council is the conflicting views of Libya and the ICC regarding the trial of Qaddafi. (According to article 87 of the Rome Statute, if a state fails to cooperate with the ICC and prevents it from exercising its functions and powers, the Court may refer the matter to the Council.)
An overarching issue is the fragile security situation due to the existence of militias that challenge the state’s monopoly on the legitimate use of force. As signalled by the interim report of the PoE, arms proliferation beyond Libya’s borders, including trafficking of arms and ammunition to Syria, is a related issue.
A pressing issue is ensuring respect for the rule of law and reforming the legal institutions (justice system, law-enforcement mechanisms and correctional facilities) to generate trust in the political and legal system and to prevent retaliatory actions aimed at taking revenge on alleged wrongdoers.
Although receiving a briefing and taking no action seems the most likely option, the Council could issue a statement:
- encouraging the government to develop a comprehensive strategy aimed at putting an end to crime and impunity in Libya;
- reaffirming its call for armed militias to disarm and accept the authority of the state, including transferring Qaddafi to the custody of the state; and
- taking note of the ongoing ICC investigations into serious crimes committed by other former Qaddafi officials as well as rebel forces during the revolution.
Although unlikely, the Council could threaten measures against armed militias and other spoilers that significantly undermine state authority and its monopoly over the legitimate use of force.
The overall deterioration of the security situation and the fragility of the political transition are sources of concern for Council members.
Regarding the tension over the trial of Qaddafi, it seems unlikely that—unless the ICC refers the case to the Council—the Council will take a strong stance on this. Controversies over the ICC in recent months show how, even though seven Council members are parties to the Rome Statute, there is no political appetite to tackle this issue in Libya.
The UK is the penholder on Libya.
UN Documents on Libya
|Security Council Resolutions|
|14 March 2013 S/RES/2095||This resolution extended UNSMIL’s mandate by 12 months and the mandate of the Panel of Experts assisting the 1970 Libya Sanctions Committee for 13 months.|
|26 February 2011 S/RES/1970||This resolution referred the situation in Libya to the ICC, imposed an arms embargo and targeted sanctions (assets freeze and travel ban), and establised a sanctions commitee .|
|5 September 2013 S/2013/516||This report of the Secretary-General on UNSMIL highlighted the internal and regional dynamics and the deteriorating security situation.|
|Security Council Meeting Records|
|16 September 2013 S/PV.7031||The Council was briefed on the interim report of the Panel of Experts of the 1970 Sanctions Committee.|
|Security Council Press Statement|
|4 October 2013 SC/11140||This statement condemned the attack against the Russian embassy in Libya.|
|General Assembly Document|
|13 August 2013 A/68/314||This was a report by the ICC on its activities for 2012/2013.|
Other Relevant Facts
Special Representative of the Secretary-General and Head of UNSMIL
Tarek Mitri (Lebanon)
UNSMIL Size and Composition
Strength as of 31 August 2013: 145 international civilians; 68 local civilians; 6 police officers, two UN volunteers.
16 September 2011 to present