Expected Council Action
In May, International Criminal Court (ICC) Prosecutor Fatou Bensouda will deliver her semi-annual briefing on recent developments concerning cases in Libya.
The mandates of the UN Support Mission in Libya (UNSMIL) and the Panel of Experts assisting the 1970 Libya Sanctions Committee expire on 15 September 2015 and on 30 April 2016, respectively.
Key Recent Developments
Relations between Libya and the ICC have been tense since the decision by the ICC to try Saif Al-Islam Qaddafi, son of deposed leader Muammar Qaddafi, in The Hague, as per the referral in resolution 1970. Briefing the Council on 11 November 2014, Bensouda reiterated that Libya had not yet surrendered Qaddafi to the custody of the ICC, acknowledged the limited extent of her office’s interaction with the Libyan government and highlighted how the combined effect of instability in Libya and lack of resources has severely undermined the ICC’s investigative efforts, including of new instances of international crimes. On 23 December 2014, UNSMIL and the Office of the High Commissioner for Human Rights (OHCHR) published a report that established that many of the recent violations and human rights abuses in Libya potentially fall under the jurisdiction of the ICC.
On 10 December 2014, the ICC’s Pre-Trial Chamber issued a decision on the non-compliance of Libya with the Court on the case against Qaddafi, by which the matter was referred back to the Council. On 27 March, the Council adopted resolution 2213, in which it noted the ICC decision and emphasised strongly the importance of the Libyan government’s full cooperation with the ICC and the Prosecutor.
The trial of 37 Qaddafi-era officials accused of serious crimes during the 2011 revolution—including Saif al-Islam Qaddafi initially testifying via video link—has been ongoing intermittently in Tripoli since 24 March 2014. Both UNSMIL and OHCHR have voiced their concern that the trial risks falling short of basic international standards such as the International Covenant on Civil and Political Rights.
Resolution 2213 also refocused UNSMIL’s mandate on the provision of support to the Libyan political process and security arrangements through mediation and good offices as an immediate priority. During March and April, several rounds of talks among different Libyan political actors were facilitated by the Special Representative of the Secretary-General and head of UNSMIL, Bernardino León, in Algeria, Belgium, Egypt, Morocco and Tunisia. On 24 March, León presented a proposal for a new government structure until a new constitution is adopted and elections are held. The proposal includes the formation of a national unity government headed by a prime minister and two deputies, the House of Representatives as the legislative body and a High State Council with an advisory role. On 29 April, León briefed Council members in consultations on the latest developments in the political process and expressed his intention to facilitate a meeting with leaders of armed groups.
Despite UNSMIL’s mediation efforts, fighting continues between the two main coalitions—Misrata-based and Islamist militias (collectively known as Libya Dawn) and Zintan-based militias and elements of the army commanded by General Khalifa Haftar (Operation Dignity). The fighting has mostly been focused on ports and airports (such as Tripoli, Zintan, Mitiga, Zuwara or Sidra). There was a renewed outbreak of violence in several neighbourhoods in Tripoli in mid-April.
The lives of civilians continue to be endangered by the conflict. According to a 26 February Secretary-General’s report, approximately 400,000 people are estimated to be internally displaced. On 19 April, more than 700 migrants drowned after the boat on which they were crowded sank near Libya. According to the Integrational Organization for Migration, more than 1,500 have drowned since the beginning of January in the Mediterranean Sea. In a 21 April press statement, Council members expressed grave concern at the recent proliferation of the smuggling of migrants off the coast of Libya.
Groups pledging allegiance to the Islamic State of Iraq and al-Sham (ISIS) have clashed with both warring coalitions. Fighting also persists between Operation Dignity and the Ansar al-Sharia-dominated “Benghazi Revolutionaries Shura Council” in the East. (The Council lists Ansar al-Sharia as an Al-Qaida affiliate.) On 27 March the Council adopted resolution 2214, which expresses strong support for the efforts of the Libyan government to combat ISIS and other Al-Qaida affiliates. On 14 April the Council condemned the 12 and 13 April terrorist attacks against the embassies of the Republic of Korea and Morocco in Tripoli, and on 20 April it condemned the apparent murder of more than 30 Ethiopian Christians in Libya by an ISIS affiliate.
Resolution 2213 consolidates the existing sanctions-related resolutions on Libya, including on crude oil illicitly exported from Libya, an assets freeze and the travel ban on former Qaddafi-era regime officials. Despite calls from Egypt and Libya for a lifting of the arms embargo for the government, the sanctions regime was not modified. Resolution 2213 provides more detail on the designation criteria for those undermining the successful completion of Libya’s political transition, which includes, among others, human rights and humanitarian law violations; attacks against ports, Libyan state institutions or installations and foreign missions; violations of the arms embargo; and acting for, on the behalf of, or at the direction of a listed individual or entity.
Human Rights-Related Developments
The Human Rights Council (HRC) considered the report of the High Commissioner for Human Rights on the situation of human rights in Libya and on related technical support and capacity-building needs during its 28th session in March (A/HRC/28/51). The report documents incidents of indiscriminate shelling and other violations of international humanitarian law, summary executions, abductions and torture, as well as attacks against the justice system, which is no longer functioning in parts of the country. It contains recommendations to address the protection of civilians, improve the administration of justice and support legal reform, transitional justice and national institutions.
On 27 March, the HRC adopted, without a vote, a resolution on technical assistance and capacity-building in Libya that requests the High Commissioner for Human Rights to urgently dispatch a mission to investigate violations and abuses of international human rights law that have been committed in Libya since the beginning of 2014 and to submit a written report to the HRC at its 31st session in March 2016 (A/HRC/RES/28/30).
In the context of the upcoming briefing, a key issue for the Council is the tension between Libya and the ICC regarding the Qaddafi trial. The Council’s lack of follow-up on the recent finding of non-compliance is a critical issue.
An overarching issue is achieving a ceasefire between warring parties, and supporting the dialogue process facilitated by León to bridge the current standoff between institutions in Tripoli and Tobruk/al-Bayda. A further related issue is the role of regional and international actors that are contributing to the escalation of conflict in Libya.
Stopping continual violations of international humanitarian law by the parties is an urgent issue. A related issue is ensuring that accountability mechanisms are addressed in the UN-facilitated talks.
An increasingly urgent issue is the growing threat posed in Libya by terrorist groups with regional reach.
With respect to the ICC, receiving a briefing and taking no action seems the most likely option, but the Council could react to the 10 December 2014 finding of non-compliance by issuing a statement that:
- demands that the Libyan government cooperate with the ICC;
- expresses concern about attacks against civilians in Libya that can amount to international crimes;
- urges the government and militias to ensure the protection of the thousands of conflict-related detainees being held without due process; and
- reiterates its support for the ICC investigations of serious crimes committed by all parties since 26 February 2011.
More broadly, regarding the overall situation in Libya, a further option for the Council, following the recent adoption of resolutions 2213 and 2214, is to impose measures against armed militias and other spoilers that threaten the peace, stability or security of Libya. The Council could also impose sanctions on those violating, or assisting in the evasion of, the provisions of the arms embargo in Libya as per resolution 2213.
Council and Wider Dynamics
It seems that addressing accountability efforts in Libya is a topic of low priority to some Council members. The existence of other pressing problems in Libya, lack of a common vision among Council members that are parties to the Rome Statute and operational issues hindering the investigative work of the Court have increasingly lowered the expectations of this semi-annual discussion.
Bensouda has shown increased frustration with the Council’s lack of support. Briefing on 23 October during a debate on working methods, she argued for the Council to use stronger language in its ICC referrals to counter the current ambiguity as to whether all states are obliged to cooperate and for the Council to support carrying out the arrest warrants issued by the Court. She also informed the Council how the lack of bilateral or UN financing for Council referrals negatively impacts the ability of her office to conduct investigations in both Darfur and Libya. Briefing the Council on Darfur in December, she said that given a complete lack of cooperation from the government and a lack of support from the Council as well as a lack of political will, she was suspending her investigations of Darfur cases.
So far the Council has not responded to the recent finding of non-compliance on Libya (or for that matter to the repeated findings of non-cooperation on Darfur). In fact, the initial draft of resolution 2213 noted with concern the 10 December 2014 ICC decision on Libya’s non-compliance. After the opposition of some Council members, the final text simply notes the decision without specifying that it was a finding of non-compliance or that it was related to the case against Qaddafi. It seems that Council members that are parties to the Rome Statute have not been able to find a common voice in Council discussions to respond to these findings, undermining accountability efforts that the Council itself decided to undertake in its referrals to the Court.
The UK is the penholder on Libya.
UN DOCUMENTS ON LIBYA
|Security Council Resolutions|
|27 March 2015 S/RES/2214||This was a resolution that focused on counter-terrorism efforts.|
|27 March 2015 S/RES/2213||This resolution renewed UNSMIL and the 1970 Libya Panel of Experts.|
|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 established a sanctions committee.|
|Security Council Meeting Records|
|4 March 2015 S/PV.7398||This was a briefing by Special Representative Bernardino Leon on the Secretary General’s UNSMIL report.|
|11 November 2014 S/PV.7306||This was the eighth briefing by the ICC Prosecutor on Libya.|
|Security Council Press Statements|
|21 April 2015 SC/11870||This press statement deplored a maritime tragedy in the Mediterranean Sea that resulted in hundreds of casualties.|
|20 April 2015 SC/11867||This press statement condemned the apparent murder of over 30 Ethiopian Christians by an ISIS affiliate in Libya.|
|14 April 2015 SC/11861||This press statement condemned the terrorist attacks against the embassies of the Republic of Korea and Morocco in Tripoli, Libya, on 12 and 13 April.|
|13 April 2015 SC/11857||This press statement reiterated the Sanctions Committee’s readiness to consider sanctions on spoilers of the political process.|