Expected Council Action
In May, International Criminal Court 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 Tripoli-based Presidency Council has limited capacity to deliver on the ground and relies heavily on the loyalty of militias. It is challenged by, among others, the Tobruk-based House of Representatives and Tripoli-based militias supporting Khalifa Gwell, the self-appointed prime minister of a so-called national salvation government announced in 2015. Efforts to reach an inclusive and sustainable political settlement in Libya continue to falter despite an emerging consensus regarding the need to amend the Libyan Political Agreement (LPA). Martin Kobler, the Special Representative of the Secretary-General and head of UN Support Mission in Libya (UNSMIL), stressed on 19 April that despite progress made in the fight against terrorist groups, recent gains would be lost if some actors continued to destabilise institutions and civil society, and that Libya could relapse into conflict.
The humanitarian and human rights situation continues to be dire. A 13 January report by the UN High Commissioner for Human Rights and UNSMIL documents a number of attacks against civilians and civilian objects (such as hospitals) and identifies patterns of attacks using imprecise weapons in heavily populated or residential areas, which together may amount to war crimes. On 13 December 2016, a joint report released by UNSMIL and the Office of the High Commissioner for Human Rights on human rights abuses against migrants in Libya concluded that the situation constituted a “human rights crisis”, with migrants subjected to arbitrary detention, torture, other ill-treatment, unlawful killings, and sexual exploitation.
A court in Tripoli sentenced Saif al-Islam Gaddafi, son of deposed leader Muammar Gaddafi, 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 Gaddafi’s sentence and surrender him to the Court. On 20 August 2015, Libya’s delegate to the ICC proceedings (mandated to be Libya’s representative by both the House of Representatives and the General National Congress) responded that the 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 Gaddafi, including negotiations for his transfer. In April 2016, Bensouda filed a request for the ICC to direct the Registry to transmit to Al-‘Ajami al-‘Atiri, commander of the Abu-Bakr al-Siddiq Battalion, under whose custody Gaddafi is held, the order to surrender him. However, in a 21 November 2016 decision, the Pre Trial Chamber I denied this request arguing that the official channel of communication between Libya and the Court is the competent national authorities, namely the Government of National Accord, and that the ICC “cannot direct its cooperation requests to any other non-State entity claiming to represent the State, as suggested by the Prosecutor.”
In 2013, the ICC found the case against former Libyan intelligence chief Abdullah al-Senussi inadmissible before the Court since he was subject to ongoing domestic proceedings and Libya was willing and able to genuinely carry out such investigation. The 13 January report by the Office of the High Commissioner for Human Rights and UNSMIL stated that the trial against 37 officials of the Gaddafi regime (including Saif al-Islam Gaddafi and Al-Senussi who were sentenced to death) raised serious due process concerns, including regarding the right to be informed promptly and in detail of the charges, the right to a public trial, the right to call and examine witnesses, and the right not to be compelled to confess guilt or incriminate oneself. It is unclear whether Bensouda, who had expressed in the past her intention to review her office’s assessment of the Al-Senussi case as new information becomes available, will consider that the information contained in the report questions the basis on which the Al-Senussi case was found inadmissible before the ICC. Recalling jurisprudence from the ICC Appeals Chamber, Bensouda has noted in the past that due process violations in a domestic trial must reach a high threshold in order for a case to be deemed admissible before the ICC.
In her 9 November 2016 briefing to the Council, Bensouda stated that, despite security and budgetary constraints, she remained resolute to make the Libya situation a priority for 2017. She said that her office intended to expand significantly its investigations into crimes committed from 2011 and intended to apply for new warrants of arrest under seal as soon as practicable. On 24 April, the Pre-Trial Chamber I unsealed the arrest warrant, first issued in April 2013, against former internal security chief Mohamed Khaled al-Tuhamy, allegedly responsible for war crimes and crimes against humanity in Libya in 2011.
Ensuring accountability for international crimes committed in Libya since 2011 and exerting pressure on the parties to respect international humanitarian law are key issues.
The overarching issue is to ensure that the parties agree on a consensual solution to end the political deadlock that addresses the issues raised by those refusing to support the LPA. Related issues are maintaining the relevance of the UN mediation efforts, and pressing external actors to exercise leverage to encourage engagement in the political process.
Options on Libya include:
- holding an informal interactive dialogue with Bensouda in order to discuss options for a follow-up of ICC decisions on Libya (as she is not a UN staff member, she is not allowed in Council consultations under current practice);
- reiterating previously agreed language calling for the Presidency Council to hold accountable those responsible for violations of international humanitarian law and violations and abuses of human rights, and to cooperate 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 international crimes.
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 Olof Skoog (Sweden) chairs the 1970 Libya Sanctions Committee.
UN DOCUMENTS ON LIBYA
|Security Council Meeting Records|
|19 April 2017 S/PV.7927||This was a briefing by Kobler.|
|9 November 2016 S/PV.7806||This was the last briefing by Bensouda.|
|Human Rights Council Documents|
|13 January 2017 A/HRC/34/42||This was a report on the human rights situation in Libya.|