Expected Council Action
In November, 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 the Council 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, Qaddafi’s legal team reiterated his intention to run for election. The Panel of Experts supporting the 1970 Sanctions Committee on Libya said in its final report, submitted to the committee on 7 August, that it had identified an “emerging pattern of attacks” against persons perceived as supporters of or associated with Qaddafi, including the “organized” abduction of individuals by armed groups.
Khan last briefed the Council on the court’s work in Libya on 11 May. He announced that ICC judges had issued four new arrest warrants during the previous six-month reporting period, which Khan’s office had applied to unseal. His office had also submitted applications for two additional arrest warrants that judges were still considering. Khan reiterated his commitment to the court’s “renewed investigative strategy”—first announced at his April 2022 Council briefing—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 “significant progress” had been made “as a result of more dynamic and field-focused investigations” over the preceding six months, during which time his office had conducted 20 field missions and collected over 500 pieces of evidence. He also described close cooperation between his office and the UN Independent Fact-Finding Mission (FFM) on Libya, which was established by the UN Human Rights Council in 2020 and published its final report on 3 March, after which its mandate ended.
Regarding the broader political situation in Libya, the impasse continues between the UN-recognised Government of National Unity (GNU), based in Tripoli and led by Prime Minister Abdul Hamid Mohammed Dbeibah, and the eastern-based Government of National Stability (GNS), led by Prime Minister Osama Hamad and aligned with the House of Representatives (HoR) and the self-styled Libyan National Army (LNA) under the command of General Khalifa Haftar. The prolonged stalemate between the rival governments—which has persisted since the indefinite postponement of the 2021 elections—is a root cause of Libya’s political, security, and economic instability.
In this context, both the UN and national actors have concentrated recent efforts on facilitating agreement on a new roadmap for national elections to unify the country’s divided government. In March, the HoR and the GNU-aligned High State Council (HSC) established a “joint 6+6 committee”—composed of six representatives from each body—to draft electoral laws to enable elections. On 7 June, the committee announced that it had reached agreement on draft legislation, which the HoR and HSC subsequently approved.
The proposed legislation proved controversial, however, with various political factions contesting several of its provisions and calling for revisions. On 29 September, the 6+6 committee submitted to the HoR an amended version of the draft legislation, which the HoR approved on 2 October. On 6 October, however, HSC President Mohamed Takala said that the HSC had rejected the amended legislation and withdrawn from the 6+6 committee—although this assertion was reportedly denied by other HSC members.
In a 12 October statement, the UN Support Mission in Libya (UNSMIL) said that it had completed a “technical review” of the amended legislation, which it described as a “working basis” for holding elections, while finding that it still contained “[c]ontentious issues that need to be addressed and resolved through a political settlement”. At the Council’s 16 October briefing on Libya, Special Representative and head of UNSMIL Abdoulaye Bathily highlighted three provisions that remain disputed:
- mandating a second round of the presidential elections, even if one candidate receives a majority of the votes in the first round;
- making the holding of parliamentary elections contingent on the success of the presidential elections; and
- establishing a unified interim government to organise elections, which Bathily said is necessary for “creating a level playing field for all candidates” but must be the consensual outcome of “political negotiations amongst major players”.
In a 17 October joint statement, the embassies of France, Germany, Italy, the UK, and the US in Libya expressed strong support for Bathily’s call on Libya’s leaders to “work together toward a binding political settlement that paves the way for national elections and a unified government”. At the time of writing, the status of the amended electoral legislation remained unclear and subject to dispute between the rival governments.
On 19 October, the Council unanimously adopted resolution 2701, renewing the mandate of the Panel of Experts of the 1970 Libya Sanctions Committee and the authorisation of measures contained in resolution 2146 of 19 March 2014 related to the illicit export of petroleum from Libya. On 30 October, the Council adopted resolution 2702, renewing UNSMIL’s mandate for one year.
Key Issues and Options
A 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. To ensure continued and coordinated international support for accountability efforts following the closure of the FFM, members may also encourage greater cooperation between the ICC and other UN entities, such as UNSMIL and the 1970 Libya Sanctions Committee’s Panel of Experts.
More broadly, a key underlying issue for the Council continues to be the precarious security and political situations hanging over Libya’s uncertain electoral path. A related concern for the Council is how to foster common political ground between the country’s rival governments so they can agree on a constitutional framework to pave the way for Libya’s long-delayed elections. In this context, Council members may welcome continued progress toward the finalisation of electoral legislation while calling on stakeholders to engage in good-faith negotiations to address outstanding political issues through consensus.
Council members remain united on the need for a Libyan-led, inclusive political process resulting in elections that will help to restore political, security, and economic stability to the country. Members are divided, however, on the work of the ICC. 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 United Arab Emirates, 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 is supportive of the ICC’s efforts regarding the country despite not being a party to the Rome Statute. Among the wider UN membership, African countries have long expressed concerns about the court’s disproportionate focus on Africa.
At the Council’s May briefing, Russia raised a point of order objecting to Khan’s participation, claiming that the ICC “has become a very obedient puppet of Western countries and is acting on the orders and in the political interests of Western countries, while not implementing either resolution 1970 or the Council’s requests”. This statement followed the ICC’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. At the November briefing, Russia may reiterate its objection to Khan’s participation.
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.|
|8 AUGUST 2023S/2023/589||This was the 120-day report on UNSMIL.|
|Security Council Meeting Record|
|11 MAY 2023S/PV.9320||This was the biannual briefing of the ICC Prosecutor on the ICC’s Libya-related activities.|