Expected Council Action
In November, ICC Prosecutor Fatou Bensouda will deliver her semi-annual briefing on recent developments concerning cases in Libya.
Key Recent Developments
Governing authority in Libya continues to be contested. The Presidency Council of the Government of National Accord (GNA) has yet to agree on a new cabinet list to submit to the Tobruk-based House of Representatives for its endorsement, following the rejection of a previous list on 22 August. Despite some engagement by boycotting members of the Presidency Council, key divisions remain among its members. In addition to the political deadlock and the Presidency Council’s failure to deliver basic services, the situation has been further polarised following the attempt to seize the headquarters of the State Council by Khalifa Ghwell, who became the prime minister of a Tripoli-based government supported by the General National Congress in 2015.
Several counter-terrorist operations, conducted by different armed groups with external support, are reinforcing the positions of key actors in the conflict and may be undermining efforts to reach a political solution. Briefing the Council on 13 September, the Special Representative of the Secretary-General and head of the UN Support Mission in Libya Martin Kobler noted that he has sought to engage with General Haftar, an influential figure who leads military operations to take over Benghazi in the east, to no avail.
A court in Tripoli sentenced Saif Al-Islam Qaddafi, son of deposed leader Muammar Qaddafi, to death in absentia on 28 July 2015 for serious crimes during the 2011 revolution. On 30 July 2015, Bensouda requested that the Pre-Trial Chamber order Libya to refrain from carrying out Qaddafi’s sentence and surrender him to the Court. On 20 August 2015, Libya’s delegate to the ICC proceedings (who had concurrent mandate to be Libya’s representative by the House of Representatives and the General National Congress) responded that Qaddafi’s judgment 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 response also stated that until a unified Libyan government can be established, there is no authority that can properly make and implement a decision in respect of the situation of Qaddafi, including negotiations for his transfer.
Briefing the Council on 26 May, Bensouda said that, upon confirmation that Qaddafi was being held in Zintan in the custody of the Abu-Bakr al-Siddiq Battalion commanded by Al-‘Ajami Al-‘Atiri, her office had filed a request with Pre-Trial Chamber I for an order directing the ICC Registry to transmit directly to Al-‘Atiri the request for arrest and surrender of Qaddafi. In a report to the Council circulated ahead of the meeting, she said that if Al-‘Atiri refused to cooperate, the Security Council must give serious consideration to imposing sanctions on him and his battalion. On 1 June, the Pre-Trial Chamber I issued a decision asking Libyan authorities whether there is any recent coordination or liaison between them and the battalion; whether the Libyan authorities would agree that a request for arrest and surrender of Qaddafi be addressed to the battalion; and, if so, whether they would either facilitate the transmission to the relevant local authorities in Zintan of such request or, alternatively, agree for a direct transmission by the Court.
On 3 June, the African Court on Human and Peoples’ Rights determined that Libya violated the rights to liberty and fair trial by holding Qaddafi in secret detention since 2011. An opinion of the Working Group on Arbitrary Detention of the UN Human Rights Council (HRC) issued in April had considered Qaddafi’s detention as arbitrary and requested the government of Libya to provide adequate remedy by releasing him.
In 2013, the ICC concluded that Libya was not unwilling or unable to carry out its proceedings regarding the case against former intelligence chief Abdullah Al-Senussi, which was before the ICC, thus making it inadmissible before the Court. However, the Office of the Prosecutor continues to collect and analyse relevant information in relation to Al-Senussi’s case.
In her 25 May briefing, Bensouda said that her Office was evaluating newly acquired evidence of serious crimes committed in Libya since 2011 and that it was likely the Office would apply to the Court for one or more additional warrants. Security and budgetary constraints, among other things, appear to be hampering these efforts.
Human Rights-Related Developments
On 31 August, representatives of the cities of Misrata and Tawergha signed a reconciliation agreement that had been facilitated by UNSMIL’s human rights division, providing for the return of those who were displaced in 2011. On 27 September, Deputy High Commissioner for Human Rights Kate Gilmore provided an oral update on Libya during the 33rd session of the HRC, pursuant to resolution 31/27 adopted on 24 March. According to the update, heavy weaponry continues to be deployed in residential areas across Libya, armed groups act with complete impunity and thousands of people are held arbitrarily in detention centres. In addition, migrants, refugees and asylum seekers are arbitrarily detained, with numerous reports indicating patterns of abuse perpetrated against migrants, such as summary killings, torture and other ill-treatment, sexual abuse, extortion, and forced labour; and human rights defenders and media professionals face abductions and attacks. Gilmore concluded the update by calling on the HRC to consider establishing a mandate for an independent expert on Libya to report on the situation of human rights and on progress made towards accountability.
Ensuring accountability for international crimes committed in Libya since 2011 and exerting pressure on the parties that conduct hostilities to do so respecting international humanitarian law are key issues.
The overarching issue is to ensure a solution to the political deadlock that consolidates governing authority in Libya, by exercising leverage on internal and external actors involved in Libya to encourage engagement in the political process.
Options on Libya include:
- holding an informal interactive dialogue with Bensouda to discuss options for follow-up of ICC decisions on Libya;
- reiterating in a resolution 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; and
- calling on member states to ensure adequate funding to support the ICC in investigating serious violations of human rights and international humanitarian law.
Although unlikely, Council members could use sanctions to ensure compliance with ICC decisions.
Council and Wider Dynamics
The semi-annual briefings by Bensouda on Libya have had limited impact, 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 addressing non-compliance in a more forceful and effective way.
The UK is the penholder on Libya. Ambassador Ramlan Ibrahim (Malaysia) chairs the 1970 Libya Sanctions Committee.
UN DOCUMENTS ON LIBYA
|Security Council Meeting Record|
|26 May 2016 S/PV.7698||The Council was briefed by ICC Prosecutor Fatou Bensouda on the progress of her Office’s investigations on Libya despite the lack of sufficient resources and the prevailing precarious security situation in the country.|