Fatou Bensouda Encourages Libyan Government Not to Grant Amnesty for Crimes Committed During Conflict
Facing a multitude of security challenges, Libya needed strong support from the international community to ensure that perpetrators of crimes committed during the 2011 conflict that led to Muammar Qadhafi’s downfall were brought to justice, and that the country continued on its path towards stability, the Prosecutor of the International Criminal Court told Security Council members today.
“Working together, we can help address threats to Libya’s security, both from within and outside, that have been created by past and ongoing criminality, and demonstrate to the Libyan people that the world is committed to assisting them in their efforts to secure justice and lasting peace,” said Fatou Bensouda, presenting the Court’s fourth report on implementing resolution 1970 (2011) by which the 15-nation body had referred the situation in Libya to the Court.
Outlining the Court’s cooperation with the United Nations, Libyan authorities, the North Atlantic Treaty Organization (NATO) and others, and the cases against Muammar Qadhafi’s son, Saif Al-Islam, and Abdullah Al-Senussi, a senior Libyan intelligence official, the report also provided updates about the ongoing investigation and crimes allegedly committed by different parties in Libya since 15 February 2011.
Since both Mr. Qadhafi and Mr. Al-Senussi had already been arrested and detained, and the Libyan authorities had challenged the admissibility of the case against the former and possibly of the latter, she said the Pre-Trail Chamber was now in the process of deciding on the merits of the challenge as to whether the case should be heard at the Court’s Hague-based facilities or in Libya. Should that challenge ultimately succeed, the Prosecutor’s Office would monitor those proceedings and cooperate with Libya, to the extent of its mandate, she said.
“If, on the other hand,” she continued, “the Court rules that the case should be heard before the International Criminal Court, I will count on Libya’s full support and cooperation to ensure that the [Court’s] proceedings are both successful and are seen to be successful by the Libyan public, the first and most important audience for any such proceedings at the [Court],” she said.
Yet, her Office remained seriously concerned about the situation in Libya, she said. Calling on the international community and the Security Council to intensify efforts to assist the country to combat impunity and reinforce a culture of the rule of law, she also encouraged the Government — which would officially be sworn in tomorrow — to make public its strategy to address all crimes and end impunity. An early finalization of that strategy would be yet another “milestone” on Libya’s path to democracy and rule of law, she said.
Finally, she encouraged the Libyan Government to ensure that there was no amnesty for international crimes and no impunity for crimes, regardless of whom the perpetrator was and who the victim was. The Government was also urged to redouble its commitment to working with the Court, as well as its active engagement with the judicial process. “My office appreciates the challenges inherent in the historic political transition under way in Libya — I believe that all can agree that justice must remain a key element of this transition,” she noted.
When the floor was opened, a number of Council members echoed Ms. Bensouda’s calls to support Libya at this critical time. Colombia’s representative said Libya’s institutional weaknesses had seriously affected its activities with the Court. Consequently, the international community must make additional efforts to make sure proceedings moved forward, as he was convinced that support and the timely provision of technical assistance were important elements to ensure that the Libyan authorities stayed on course to end impunity.
On security issues, a number of members raised concerns about the 26-day-long detention of four Court officials by a militia forces in June. The representative of the Russian Federation said the incident was indicative of the impact the crisis had had, including a serious dearth of stability and the rule of law, exemplified by the fact that the authorities were unable to bring armed groups under control.
Expressing a different view on the matter, Morocco’s representative pointed out that the new Government had agreed to cooperate with the Court, and the scope of such cooperation had widened, with the Government having resolved the matter of the detained Court officials. The Government was also working hard on transitional justice, through a national plan that aimed for social stability, he said.
A number of speakers offered suggestions on improving the Council’s role. France’s representative said in order to be effective, the Council must be coherent. “We need to be able to better manage questions of cooperation and non-cooperation,” he said, noting that combating impunity was essential for a country such as Libya and that he was convinced that the Government would honour the Court’s decision on the admissibility challenge.
Portugal’s representative echoed a commonly held view that while there was a need to ensure that justice was carried out, there was also a need to carry out trials according to international standards and to ensure that justice was done in a comprehensive manner, with all crimes, including sexual crimes, addressed along with the needs of victims. It was important to remember that every person had a right to a fair trial and that extra-judicial retaliation must stop, he said.
Also delivering statements were the representatives of Togo, China, South Africa, United States, Azerbaijan, Pakistan, Guatemala, Germany, United Kingdom, India and Libya.
The meeting began at 10:37 a.m. and ended at 12:15 p.m.
The Security Council met today to consider the fourth Report of the Office of the Prosecutor of the International Criminal Court on implementation of Council resolution 1970 on the situation in Libya. By that text, adopted on 26 February 2011, the Council deplored what it called “the gross and systematic violation of human rights” in then strife-torn Libya, and decided to refer the situation to the Court, among other measures.
In the report before the Council, the Prosecutor outlines the issues of cooperation, the case of Saif Al-Islam Qadhafi and Abdullah Al-Senussi, the ongoing investigation and crimes allegedly committed by different parties in Libya since 15 February 2011. The document states that the Court’s Office continued to seek cooperation from States parties, non-States parties, the United Nations, INTERPOL, non-governmental organizations and other groups, submitting more than 130 requests this far, and that it encouraged partners to fully cooperate to ensure the effectiveness of the investigation.
Contact with Libyan authorities was reduced during the country’s political transition in the summer and early fall, compounded by the arrest in June of four employees of the International Criminal Court and their 26-day-long detention, the report states. As of 11 September, the Libyan General National Congress formally renewed the mandate of its Court Focal Point, and authorities had, in general, permitted investigation activities. The Court encouraged continued cooperation from the authorities, the Office of the United Nations High Commissioner for Refugees (UNHCR) and the North Atlantic Treaty Organization (NATO).
The report notes that while the admissibility challenge related to the case against Mr. Qadhafi — son of former Libyan Leader Muammar Al-Qadhafi — resulted in the suspension of the Office’s investigation, the probe into Mr. Al-Senussi’s activities was ongoing. That former official had remained in detention in Libya since his transfer there in September. The report states that after the Libyan Government filed a challenge to the admissibility of the case against Mr. Qadhafi, he remained in the custody of a militia group in Zintan, Libya. The judges of the Pre-Trial Chamber would now decide whether the case remained admissible before the Court.
Regarding ongoing investigations, the report states that the Office is mindful of the seriousness and sensitivity of the crime of rape and it faces many challenges in collecting evidence to prove the commission of sexual and gender crimes, while it continues to analyze information gathered. The Office is also analyzing alleged crimes committed by Qadhafi forces to determine what direction a new case should potentially take.
As for allegations of crimes committed by rebel forces, the Prosecutor’s Office expressed concerns about the situation in Tawergha and reviewed relevant allegations. It also continued to collect information to determine whether a new case should address them. The Office is also continuing to collect information relating to the killing of Muammar Qadhafi and to alleged executions of combatants following his capture and killing.
While the Government of Libya is undergoing a fundamental transition, the Office commends its engagement in the judicial process at the Court, the report states. Given the extensive crimes committed in Libya and the challenges facing the new Government, the Court’s mandate is still essential to ending impunity in the country. The Office plans to make a decision about a second case in the near future and will consider additional cases afterwards, depending on the Libyan Government’s progress in implementing its comprehensive strategy.
FATOU BENSOUDA, Prosecutor of the International Criminal Court, presenting the current Report on the Office’s activities, said the situation in Libya remained a serious concern. Noting that the Court’s intervention in 2011 was, at the time, the only way to establish justice for victims of the Muammar Qadhafi regime’s crimes, she said much had happened since the Security Council referred the situation to the Court.
Among events that the report covered, she said both Saif Al-Islam Qadhafi and Abdullah Al-Senussi had been arrested and detained, and that the Libyan authorities had challenged the admissibility of the case against Mr. Qadhafi and possibly of the case against Mr. Al-Senussi. She said the Pre-Trail Chamber would decide the merits of the challenge as to whether the case should be heard at the Court or in Libya, and should the challenge ultimately succeed, the Office would monitor those proceedings and cooperate with Libya, to the extent of the mandate.
Emphasizing the pressing need for complementary and mutually supportive approaches to address accountability, she encouraged international support and assistance to enhance Libya’s capacity to deal with past crimes and to promote the rule of law.
“Looking beyond the cases currently before the Court, there remains much that my Office and the Government of Libya can do together to make justice a reality for Libya’s victims,” she said, calling on the international community and the Council to intensify efforts to assist the Government of Libya in efforts in any way they could to combat impunity and reinforce a culture of the rule of law.
“Working together, we can help address threats to Libya’s security, both from within and outside, that have been created by past and ongoing criminality, and demonstrate to the Libyan people that the world is committed to assisting them in their efforts to secure justice and lasting peace,” she said, encouraging the Government to make public its strategy to address all crimes and end impunity because an early finalization of such a strategy would be yet another “milestone” on Libya’s path to democracy and rule of law.
She also encouraged the new Libyan Government, scheduled to be sworn in tomorrow, to ensure that there was no amnesty for international crimes and no impunity for crimes, regardless of whom the perpetrator was and who the victim was. For its part, the Prosecutor’s Office continued to collect evidence in relation to a possible second case in Libya and to a number of allegations of sexual violence and other crimes, and continued to assess the security situation in terms of its potential impact on its ongoing investigations.
“Given its limited resources and ever increasing workload, my Office can only do so much to help Libya move forward,” she said. “The fate of the Libyan people is in their [own] hands.”
Opening the floor to Council members, NÉSTOR OSORIO ( Colombia) said a fundamental aspect at this stage was the implementation of the legal proceedings. While the Government of Libya had expressed a clear willingness to cooperate with the Court, the report stated that those good intentions had not translated to practical action. The unjustified detention of four Court officials last June demonstrated that much remained to be done by the Government. The admissibility challenge proceedings had also been unable to move forward, he said, and the Libyan authorities had not yet been able to present a challenge against the case of Mr. Al-Senussi.
Further, institutional weaknesses had seriously affected the authorities’ activities with the Court, he said, and the international community must make additional efforts to provide support to Libya to ensure proceedings moved forward. He was convinced that support and the timely provision of technical assistance were important elements to ensure that the Libyan authorities stayed on course to end impunity.
KOKOU NAYO MBEOU (Togo) said he hoped the renewal of the mandate of the Libyan Focal Point would also renew common efforts. He noted that the Government had affirmed that the investigations carried out had allowed it to obtain a great deal of evidence, which amounted to a set of charges identical to those identified by the Court. Cognizant of allegations of torture, he urged the Government to address such claims as there could be no reconciliation in Libya until perpetrators were brought to justice.
At a time when the judicial system was still being built, he said the expected decision was not an evaluation of that system, but the decision would be based on determining whether or not Libyan authorities could deliver justice and an equitable trial. In that light, he urged continued cooperation between authorities and the Court would result in implementing the principle of complementarity.
SERGEY KAREV ( Russian Federation) said his country supported the court’s efforts, yet its work had become challenging, according to the report. Prosecution of criminal perpetrators was up to the State, and in the case of Libya, the drawn-out impact of the crisis was having an effect on efforts to impose justice. There was a serious dearth of both stability and the rule of law. Local military leaders had perceived the rule of law in their own specific way and the central authorities had been unable to bring those groups under control, he said. One example was the detention of the four Court officials in June, he said.
Any legal proceedings must uphold high international standards, he said, noting that the Prosecutor and Justices at the Court should examine that issue more closely. However, it was apparent that the Court had been unable to move forward with investigations of alleged crimes committed by armed groups. Crimes had been committed by the Qadhafi regime and the rebels, he stressed, and he was anticipating investigation results on events, including the killing of the former Libyan leader.
WANG MIN (China), welcoming the establishment of the new Government in Libya, expressed hope that it could rally the entire nation to support the political transition, stability and prosperity. The international community should assist the Government in that context, with the actions of the Court supporting those efforts. China’s position on the Court remained unchanged, he stressed.
DOCTOR MASHABANE (South Africa) recalled his country’s support for the referral of the situation of Libya to the Court in the effort to fight impunity for serious violations of human rights. The need for justice did not end with the conclusion of hostilities, he said, stressing that his country encouraged domestic prosecution of all crimes, with international prosecution a last resort. In that regard, he wished to know the Prosecutor’s position on whether the complementarity challenge had been met. In addition, he stressed that all criminal acts committed by all parties in the conflict must be adequately investigated in the effort to bring justice to Libya.
ROSEMARY DICARLO (United States) looked forward to continuing active engagement with the international community to advance accountability for the most serious crimes of international concern. Congratulating Libyans on progress in political transition, she pledged her country’s continued support for that effort, working closely with the new Government. Justice and accountability would be central to the transition. In that context, she urged the Libyan Government to continue its cooperation with the Court. It was an important moment for both Libya and the Court as they worked together, under their respective roles, in ensuring peace and accountability.
Stressing the need for improved cooperation between the Council and the Court, as underlined in a recent Council meeting, she said that it was critical to ensure the safety of Court personnel in referred cases, for which States had responsibility, as underlined in Council resolution 1970 (2011) that referred the situation in Libya to the Court. The United States had endeavoured to cooperate with the Court in its efforts regarding Libya, consistent with its law and policy. Impunity for all serious crimes in Libya, including gender crimes, must be avoided, and victims should be assisted. The United States would continue to work with the international community to assist Libyan efforts to reform its justice sector and advance human rights in the country.
TOFIG MUSAYEV ( Azerbaijan) said that protecting civilians and ensuring crimes were prosecuted were essential and were a concern of the international community. Commending the Libyan authorities for cooperating with the Court and permitting the collection of evidence, he noted the Libyan’s renewal of the mandate of its focal point of the Court was another positive step. The Libyan authorities were investigating the same cases as the Court, and had expressed commitment to fair investigations and trials, as well as to strengthening rule of law. However, it was obvious the Government should continue to cooperate with the Court, and he took note of the Prosecutor’s update on whether Rome Statute crimes had taken place since February 2011.
He said the Government of Libya had committed to a comprehensive strategy, and its activation would demonstrate that justice remained a key priority in maintaining security. In that vein, he supported the Prosecutor’s call on the international community to assist Libya in combating impunity and ensuring the rule of law.
MARTIN BRIENS ( France) said he was pleased that the Libyan Government was submitting its admissibility challenge on the case at hand. Noting that the Court’s judges’ decision must be applied, he said he had no doubt that Libya would comply with the decision. Regarding detentions, he noted that the perpetrators of the alleged atrocities in Tawergha must be prosecuted and must have a fair trial. Regarding alleged sexual crimes committed by Qadhafi forces, he commended the respect shown to the victims.
He said Resolution 1970 (2011), which referred the situation in Libya to the Court, was an example of what rapid action could accomplish and was at the heart of the process of enabling thousands of lives to be saved. The international community and the Council could make use of an impartial institution to identify the main perpetrators of crimes. After the example of Libya, inaction was inexcusable. At a time when the Syrian authorities were attacking their people, he emphasized that in order to be effective, the Council must be coherent. “Our silence does not contribute to saving lives,” he said. The international community sometimes forgot history. The Security Council must be better prepared to cooperate with the Court. “We need to be able to better manage questions of cooperation and non-cooperation,” he said, noting that combating impunity was essential for a country such as Libya.
SAHEBZADA AHMED KHAN ( Pakistan) said as Libya continued to face daunting challenges, he was confident the newly elected Government would succeed. Among pressing issues that needed attention was halting the spread of weapons and working towards reconciliation. He hoped the Libyan authorities’ request to try Mr. Al-Senussi and Mr. Qadhafi would be considered. The Government must ensure that trials of those individuals, if they were conducted in Libya, would be fair.
Regarding other alleged crimes, he said it was essential to conduct thorough investigations regardless of which side was accused of committing them. Formulating a comprehensive justice strategy would underpin efforts to ensure peace and stability. Pakistan fully supported the well-being of the people of Libya, he concluded.
GERT ROSENTHAL (Guatemala) welcomed the progress in the Prosecutor’s work in the cases under discussion. He looked forward to the building of stronger criminal justice institutions in Libya, and he underlined the importance of the Council’s cooperation with the Court. He stressed the obligation of the Libyan authorities to respect the work being done by the Court and the Office of the Prosecutor, who must be able to work without restrictions. In that regard, he expressed concern over the incidents in which officials were detained.
He said he eagerly awaited the Court’s decisions on the challenges filed in the relevant cases before it. Whatever the Court decided, the body must be kept informed on developments in those cases. Investigations on all crimes against humanity committed in Libya must continue, no matter who they were committed by, including gender crimes. He reiterated his country’s support and commitment to the Court and the Office of the Prosecutor, calling for stepped up international cooperation with it, particularly on the part of the Council, to ensure the end of impunity and the implementation of Council decisions.
MOHAMMED LOULICHKI (Morocco), expressing great pleasure over progress in Libya after 40 years of tyranny, appealed to the international community to support the new Government in matters of security, reintegration of ex-fighters and the establishment of a system that ensured reconciliation and respect for human rights. The new Government had agreed to cooperate with the Court, and the scope of such cooperation had widened, with the Government having resolved the matter of the Court officials that had been detained by the militias. The Government was working hard on transitional justice, through a national plan that aimed for social stability.
With regard to the cases under discussion, the Libyan authorities had reiterated that Libya had the ability to conduct fair trials, enabling the Libyan people to find the truth and deal with the countryÂ’s painful past, in the interest of national reconciliation and State-building. Impunity would not be tolerated, and justice would be carried out in accordance with international standards and the Rome Statute. He pledged Morocco’s willingness to share its experiences in strengthening justice and national reconciliation with its neighbour to strengthen stability and security in the Maghreb.
JOSÉ FILIPE MORAES CABRAL (Portugal) fully shared the Prosecutor’s objectives and her strategy for pursuing them, and he underlined the importance of cooperation with the Court on the part of the Libyan Government, underlining the importance of the ability of Court personnel to perform their functions safely. On the cases dealing with the situation in Libya, he said he would closely follow developments.
While there was a need to ensure that justice was carried out, there was also a need to carry out the trials according to international standards and ensure that justice was done in a comprehensive manner, with all crimes, including sexual crimes, addressed along with the needs of victims. It was important to remember that every person had a right to a fair trial; extra-judicial retaliation must stop.
MIGUEL BERGER ( Germany) said no one expected transition to be easy or seamless and the Libyan Government should, therefore, receive all the support it needed. Turning to the report, he encouraged Libya to meet obligations made under resolution 1970 (2011) for cooperation with the Court. On the admissibility challenge, he said the ultimate decision was to be made by the court’s Pre-Trial Chamber, underlining that it was the interest of all to ensure fair trials. With that in mind, he encouraged Libyan authorities to swiftly supply the Chamber with the documents needed to proceed.
Despite clear obligations under the Rome Statute, some Court staff officials had been detained earlier this year, he said. To avoid that situation from reoccurring, he suggested that future Council referrals to the Court should highlight the privileges enjoyed by staff. Regarding gender-related crimes, he said those allegedly committed in Libya could fall under the Rome Statute and the Court would be responsible for prosecuting those allegations.
PAUL MCKELL (United Kingdom) said despite recent security challenges, the transition in Libya was continuing and the country was “fast getting back on its feet”, civil society was flourishing and oil production was back to near pre-conflict levels. The international community should continue to support those other efforts. For its part, the Libyan Government should investigate and hold to account all those accused of abuses, he said, emphasizing that his country stood ready to help Libya to build up its institutions and ensure security and justice.
The Court’s efforts had done a great deal to bring justice to Libya, he said, yet there was more that could and must be done to address gender-based violence. In that area, his country was assisting the Libyan Government in initiatives for prevention of those and other related crimes. On the admissibility challenge, he noted that the Court had suspended its investigation pending a decision. With a view to moving forward, he encouraged both parties to work together, and he stressed that the accused had the right to a fair trial.
Council President HARDEEP SINGH PURI ( India), speaking in his national capacity, said the right to life should be the foundation of any social order and that it was the obligation of all States to protect its citizens. During the Libyan conflict, death and destruction occurred on a massive scale, and now the post-conflict era saw a proliferation of weapons. That pressing challenge must be addressed by the authorities alongside with reconciliation efforts, he said.
He hoped that peace, stability and socio-economic progress would soon return to Libya, and said the international community should provide assistance to the country. He expected the Court’s Prosecutor would undertake an impartial and thorough investigation and said that all those responsible for the alleged crimes should be held accountable.
IBRAHIM O. A. DABBASHI (Libya) noted that his Government had set out its plans for stability, reconciliation and comprehensive justice for crimes that had been committed in his country. Those plans were still valid. Initial inquiries would first be focused on the leaders of the Qadhafi regime who had orchestrated the worst crimes, with the four individuals under discussion falling under that category. The investigation was already at an advanced stage in some of those cases, and the Qadhafi trial had been postponed in order to allow for the most thorough possible investigation. Libya had called for the other accused, who were now outside the country, to be delivered by the States in which they were residing. He hoped those States would comply with those requests, in accordance with the Council’s own statements on bringing an end to impunity. If the extraditions were not forthcoming, the Government would have to put pressure on those States.
The cooperation of Libyan authorities with the Court had been underscored by the Prosecutor, he said. The Government was now awaiting the decision on the admissibility challenge in the Qadhafi case and also intended to submit a challenge in the Al-Senussi case. He reiterated his country’s pledge to carry out all procedures in compliance with international law. Noting criticism from human rights organizations and comments from Council members, he said that Libyan authorities were not ignoring any allegations of human rights violations, no matter whom they were alleged to have been committed by.
For that purpose, he said, a global strategy towards the promotion of national reconciliation and the end of impunity had been drawn up by his Government. That strategy faced numerous challenges, including the delay of the formation of the new Government. He acknowledged that there were also unacceptable delays in regard to the processing of detainees, but explained that those were due to the need for reform of rule of law structures, as well as the need to extend them across the whole territory. They were difficult challenges that required wise solutions and required the understanding and support of the international community. In that regard, he thanked members of the Council for their pledges of continued support.
Ms. BENSOUDA, in response to questions raised by delegations, said that the Court’s judges would decide in due course on the matter of admissibility and she could not prejudge the matter. Her Office had found it positive that the Libyan Government was engaging in the judicial process, as the Court always supported national proceedings as a first priority. Specificity and probative value were required on the part of the Government’s responses, however; the burden of proof in that context remained with the Government.