Expected Council Action
In November, the Security Council will receive the semi-annual briefing of the ICC Prosecutor, Karim Asad Ahmad Khan, on the ICC’s Libya-related activities.
Background and Key Recent Developments
Libya is not a state party to the Rome Statute of the ICC. The Security Council referred the situation in Libya to the ICC through the unanimous adoption of resolution 1970 on 26 February 2011, which invited the ICC Prosecutor to update it every six months. The ICC has jurisdiction over crimes listed in the Rome Statute committed on the territory of Libya or by its nationals from 15 February 2011 onwards. The ICC opened investigations in March 2011 related to alleged crimes against humanity, including murder, imprisonment, torture, persecution, and other inhumane acts; and war crimes, including murder, torture, cruel treatment, and outrages upon personal dignity. Three outstanding arrest warrants pertaining to Libya are currently before the Court. One is for Saif al-Islam Qaddafi, the son of deposed Libyan leader Muammar Qaddafi. In November 2021, Saif al-Gaddafi, who is sought on two counts of alleged crimes against humanity, announced he would be a candidate in the Libyan presidential elections that were scheduled for 24 December 2021 but have yet to be held.
Khan last briefed the Council on the Court’s work in Libya on 28 April, during which he outlined “a renewed investigative strategy” involving the allocation of additional resources, increased engagement with those affected by alleged crimes in Libya, and more effective cooperation with Libyan authorities. Among other things, he highlighted an increased need to focus on certain areas, specifically financial investigations and tracking, sexual and gender-based crimes, and crimes affecting children. He also referred to the need for “better and closer engagement with the Libyan authorities”, including agreeing on a memorandum of understanding, and expressed his intention to visit Libya.
From 20 to 23 June, the Deputy Prosecutor of the ICC, Nazhat Shameem Khan, conducted a visit to Tripoli to convey the commitment of the Office of the Prosecutor to a renewed strategy for action in relation to the situation in Libya, as Khan had outlined during his briefing to the Council. On 7 September, the Office of the Prosecutor formally became a member of the Joint Team supporting investigations into crimes against migrants and refugees in Libya, joining relevant national authorities from Italy, the Netherlands, the UK and Spain and supported by the EU Agency for Law Enforcement Cooperation (Europol).
On 14 October, the Special Representative for Libya and head of the UN Support Mission in Libya (UNSMIL), Abdoulaye Bathily, arrived in Tripoli following his appointment in September. In a statement that day, he said that his priority is “to identify a consensual pathway towards the holding of inclusive and credible national elections, which should be held as soon as possible on a solid constitutional framework”.
On 24 October, Bathily briefed the Council saying, among other things, that the Council must stress to Libyan actors the need to work together towards elections (For more, see our What’s in Blue story of 21 October.) On 28 October, the Council adopted a resolution renewing the mandate of UNSMIL for one year. (For more, see our What’s in Blue story of 27 October.)
Human Rights-Related Developments
On 11 October, OHCHR released a report that highlights key human rights risks and protection gaps faced by migrants in Libya in the context of assisted return and reintegration. These include lack of access to pathways for safe and regular migration; lack of free, prior and informed consent; and returns to unsustainable situations. The report contained testimony from some of the 65 migrants who had recently been returned to The Gambia. It made a series of recommendations directed at Libyan authorities, countries of origin, the AU and its member states, the EU and its member states, and UN entities.
Key Issues and Options
An underlying key issue for the Council is how to promote justice and accountability for past atrocities committed in Libya. In addition to receiving Khan’s briefing, Council members supportive of the ICC’s work could consider holding an informal meeting with the prosecutor to facilitate a dialogue on ways in which his Office could strengthen its cooperation with Libya.
In addition to the ICC’s pursuit of accountability in Libya, another key issue related to the Council’s engagement on this file continues to be the precarious security and political situations linked to Libya’s uncertain electoral path. A related concern for the Council will be how to foster common political ground between the country’s two rival governments so they can agree on a constitutional framework to pave the way for Libya’s long-delayed elections. Council members could consider holding a closed Arria-formula meeting with Libyan civil society representatives to help generate ideas for promoting dialogue between the rival political factions in Libya and supporting an inclusive political process leading to elections.
Council members have reiterated the urgent need for a Libyan-led inclusive political process and the holding of elections. Many members are also concerned about the precarious security situation. The Council is divided on the work of the ICC. Albania, Brazil, France, Gabon, Ghana, Kenya, Ireland, Mexico, Norway, and the UK are states parties to the Rome Statute of the ICC, while China, India, Russia, the UAE, and the US are not. These distinctions, however, do not necessarily reflect how members view the Court’s work on Libya. For example, the US, which is not a party to the Rome Statute, is supportive of the ICC’s efforts with regard to Libya. Among the wider UN membership, African countries have long expressed concerns about the Court’s disproportionate focus on Africa.
At the briefing on 28 April, most Council members expressed their support for the approach outlined by Khan. However, members such as Russia and India were more critical of the role of the Court and the prosecutor’s strategy. In its statement, the US said that “the ICC’s work in Libya is a critical element of our shared commitments to accountability, peace and security” and “with reports of atrocities occurring daily in Ukraine, we see the need to uphold support for international justice mechanisms, including the ICC”.
The UK is the penholder on Libya.
UN DOCUMENTS ON LIBYA
|Security Council Resolution|
|28 July 2022S/RES/2647||This resolution extended UNSMIL’s mandate until 31 October 2022.|
|Security Council Meeting Record|
|28 April 2022S/PV.9024||This was a briefing by the Prosecutor of the ICC on Libya.|