Expected Council Action
In May, the Security Council will receive the biannual 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 Libya’s territory 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.
There is currently one open case before the court, centred on Saif al-Islam Qaddafi, the son of deposed Libyan leader Muammar Qaddafi. On 27 June 2011, the court charged Qaddafi with two counts of alleged crimes against humanity and issued a warrant for his arrest. In November 2021, Qaddafi, who remains at large, announced that he would be a candidate in the Libyan presidential elections that were scheduled for December 2021 but subsequently postponed. In January 2023, Qaddafi’s legal team reiterated his intention to run for election.
Khan last briefed the Council on the court’s work in Libya on 9 November 2022. He delivered his briefing from Libya, marking the first visit of an ICC Prosecutor to the country in over ten years. In his remarks, Khan reiterated the court’s commitment to its “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. Khan said the court had made “good progress on implementing this new approach” over the prior six months, having maintained a constant presence in the region for the first time since 2011. His office had undertaken over 20 missions to six countries, collecting “a variety of evidentiary material” that the court’s written report further specifies as “video and audio material, forensic information, witness statements and satellite imagery”. Based on this progress, additional arrest warrants—currently under seal—had been submitted to the ICC judges.
Khan also noted that the Office of the Prosecutor in September 2022 became a formal member of the joint team investigating crimes against migrants and refugees in Libya, joining relevant national authorities from Italy, the Netherlands, Spain, and the UK, and supported by the EU Agency for Law Enforcement Cooperation (Europol). In October 2022, that cooperation led to the arrest of two key suspects, who were extradited from Ethiopia to Italy and the Netherlands, respectively.
On the political track, both the UN and national actors have concentrated recent efforts on facilitating agreement on a new roadmap for national elections. In his 18 April briefing to the Council, Special Representative for Libya and head of the UN Support Mission in Libya (UNSMIL) Abdoulaye Bathily said that he had “launched [the] implementation” of the UN-facilitated Libyan High-Level Panel for Elections (HLPE), which is intended to gather a wide range of national stakeholders to agree on a political and legal framework for holding elections in 2023.
Parallel to this initiative, the rival Libyan legislatures have engaged in a separate effort to establish a constitutional basis for elections. They recently adopted the 13th constitutional amendment to the 2011 Constitutional Declaration—specifying the powers of the president, prime minister, and parliament—and subsequently established a “joint 6+6 committee” responsible for drafting electoral laws. On 6 April, the committee held its first meeting, after which a committee member confirmed its intention to agree on legislation by mid-June in order to hold elections by the end of the year.
On 16 March, the Security Council adopted a presidential statement in which it welcomed “the gradual progress made on the constitutional framework for elections and the 13th amendment of the constitutional declaration” and said it was “encouraged” by the launch of the HLPE. (For more, see our What’s in Blue story of 16 March.)
Human-Rights Related Developments
Speaking on 3 April, the UN High Commissioner for Human Rights Volker Türk emphasised that his office will strengthen its work on Libya, noting that as the Independent Fact-Finding Mission (FFM) on Libya ended its operations and handed over their archives and evidence to the UN Human Rights Office. Türk underscored that no one should assume that “the eyes of international community have now left Libya”.
The FFM on Libya—established by the Human Rights Council (HRC) in 2020—published its final report on 3 March. The report concluded that “there are grounds to believe a wide array of war crimes and crimes against humanity have been committed by State security forces and armed militia groups”, with migrants, in particular, having been “systematically tortured” and subjected to “sexual slavery”. Among numerous recommendations to promote accountability for these crimes, the report called on Libyan authorities to “cooperate fully with and facilitate unhindered and safe access to the International Criminal Court”. (In his November 2022 Council briefing, Khan described the cooperation of Libyan authorities with the court as “not perfect”.) The FFM also urged OHCHR to “establish a distinct and autonomous mechanism with an ongoing mandate to monitor and report on gross human rights violations in Libya”.
Key Issues and Options
An underlying key issue for the Council is how to promote justice and accountability for atrocities committed in Libya. In addition to receiving Khan’s briefing, Council members that are party to the ICC may continue the practice of holding a joint press stakeout in connection with the meeting. Members could also encourage the ICC to make use of the FFM’s latest findings in its investigations and to support the FFM’s recommendation that OHCHR establish a follow-up mechanism to monitor and report on human rights violations in the country.
In addition to the ICC’s pursuit of accountability in Libya, another key issue for the Council continues to be the precarious security and political situations overhanging Libya’s uncertain electoral path. A related concern for the Council is 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. In this regard, Council members may welcome the progress represented by the establishment of the HLPE and the 6+6 commission while reiterating their expectation that all stakeholders display the political will to meet their stated commitments through concrete action.
The Council is united on the need for a Libyan-led inclusive process to hold elections that will restore political, security, and economic stability—a consensus recently evidenced by the presidential statement of 16 March. Members are more divided on the work of the ICC, however. Albania, Brazil, Ecuador, France, Gabon, Ghana, Japan, Malta, Switzerland, and the UK are states parties to the Rome Statute of the ICC, while China, Mozambique, Russia, the UAE, and the US are not. These distinctions largely reflect how members view the court’s work on Libya, with the notable exception of the US, which despite not being a party to the Rome Statute, is supportive of the ICC’s efforts regarding the country. Among the wider UN membership, African countries have long expressed concerns about the court’s disproportionate focus on Africa.
At the November 2022 briefing, Russia criticised what it called “the biased and politicized activities” of the ICC and urged the Council to “seriously consider … possibly withdrawing the Libyan file from the ICC”. This position may have further hardened following the court’s announcement on 17 March that it had issued arrest warrants for Russian President Vladimir Putin and his commissioner for children’s rights, Maria Lvova-Belova, for allegedly committing the war crime of “unlawful deportation” and “unlawful transfer” of children from Ukraine to Russia. During the ICC briefing on Libya this month, Russia may object to inviting Khan as the briefer and call for a procedural vote on the matter.
The UK is the penholder on Libya.
UN DOCUMENTS ON LIBYA
|Security Council Resolutions|
|28 OCTOBER 2022S/RES/2656||This resolution extended UNSMIL’s mandate until 31 October 2023.|
|26 FEBRUARY 2011S/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 Presidential Statements|
|16 MARCH 2023S/PRST/2023/2||This presidential statement said the Security Council was encouraged by the launch of the “High-Level Panel for Elections” in Libya.|
|Security Council Meeting Records|
|27 FEBRUARY 2023S/PV.9270||This was a briefing on UNSMIL.|
|9 NOVEMBER 2022S/PV.9187||This was the semi-annual briefing of the ICC Prosecutor.|
|5 APRIL 2023S/2023/248||This was the 120-day report on UNSMIL.|
|Security Council Press Statements|
|20 DECEMBER 2022SC/15156||This press statement expressed, among other things, deep concern at the persistent political deadlock in Libya.|