Informal Interactive Dialogue and Briefing on Libya by the ICC Prosecutor
On Monday afternoon (11 May), Council members, at the request of Chile, are scheduled to hold an informal interactive dialogue with the International Criminal Court (ICC) Prosecutor, Fatou Bensouda. Although scheduled to provide the semi-annual briefing on the work of the ICC in Libya the following day (12 May), Bensouda will have the opportunity to have a broader and potentially less scripted exchange on the situation in Libya with Council members through this format. (A similar exchange on Libya took place on 8 May 2013, and some Council members felt the need to engage again in this format with the Prosecutor, given key developments in ICC proceedings as well as the grim picture she depicted of her accountability efforts in Libya during her last briefing in November 2014.)
Relations between Libya and the ICC have been tense since the decision by the ICC that Saif Al-Islam Qaddafi, son of deposed leader Muammar Qaddafi, should be tried in The Hague, as per the referral in resolution 1970. On 10 December 2014, the ICC’s Pre-Trial Chamber issued a decision on Libya’s non-compliance with the Court on the case against Qaddafi, by which the matter was referred back to the Council. On 27 March, the Council adopted resolution 2213, in which it noted the ICC decision and emphasised strongly the importance of the Libyan government’s full cooperation with the ICC and the Prosecutor. Council members are expected to want to discuss the type of Council follow-up that could be helpful in addressing Libya’s lack of cooperation with the Court, given its decision not to surrender him to the ICC.
Council members might ask for more information about Bensouda’s interaction with Libyan authorities regarding accountability efforts, and how she is navigating the current political divisions in the country. They might be particularly interested in her assessment of the trial of 37 Qaddafi-era officials accused of serious crimes during the 2011 revolution—including Saif al-Islam Qaddafi, initially testifying via video link, and former intelligence chief Abdullah Al-Senussi—which has been ongoing intermittently in Tripoli since 24 March 2014. Council members may ask Bensouda if in her opinion, the ICC’s July 2014 conclusion that Al-Senussi’s alleged crimes were being adequately investigated in Libya, thus making the case inadmissible before the ICC, still holds, given the changes in the institutional and political landscape in Libya. (The UN Support Mission in Libya [UNSMIL] and the Office of the High Commissioner for Human Rights [OHCHR] have voiced concerns that the trial risks falling short of basic international standards such as the International Covenant on Civil and Political Rights.)
Briefing the Council on 11 November 2014, Bensouda highlighted how instability in Libya and the ICC’s lack of resources had severely undermined the Court’s investigative efforts, including of new instances of international crimes. Council members might be interested in hearing what impact this may have on recent violations and human rights abuses in Libya, which potentially fall under the jurisdiction of the ICC according to a 23 December 2014 report of UNSMIL and OHCHR.
It seems that addressing accountability efforts in Libya is a topic of low priority to some Council members. In addition to the difficulties posed by members that are not parties to the ICC, in the past Council members that are parties to the Rome Statute (which convene in a caucus) have not been able to find a common voice to respond to findings on non-compliance issued by the ICC, therefore undermining the Council’s accountability efforts in making referrals to the Court. Monday’s dialogue, along with current discussions within the caucus on how to respond to the latest finding of non-compliance on Darfur, spearheaded by Council members Chile and Lithuania, is an attempt to overcome this deadlock.