The Council grossly exceeded its authority adopting the resolutions 1970 and 1973.
Statement to the United Nations Security Council on the Situation in Libya, pursuant to UNSCR 1970 (2011)
9 November 2016
Mr President, Your Excellencies:
1. I welcome the opportunity to once again engage with this august body as I present my Office’s twelfth report on the Situation in Libya, pursuant to Security Council Resolution 1970, as adopted in 2011.
2. Allow me at the outset to emphasise that my Office is grateful for the support it has received during the reporting period in conducting its work on the Libya situation. My Office has received this critical support from an increasing number of both States Parties and non-States Parties to the Rome Statute of the International Criminal Court, including members of this Council. This cooperation has greatly facilitated our work vis-à-vis Libya, and must be recognised.
3. To cite one example, the Council will recall, during my last briefing on 26 May 2016, I reported on my official visit to Cairo, Egypt, and of the positive dialogue and engagement between my Office and the Egyptian authorities on several matters. In conformity with its mandate, my Office continued to pursue issues of mutual interest with the Egyptian authorities, including in relation to the situation in Libya and the challenges facing the North Africa region, such as the security and destabilising threats posed by terrorism and extremist groups like the so-called Islamic State in Iraq and the Levant or “Daesh.” Since my visit, my Office has continued to liaise with the Arab Republic of Egypt to advance our shared goals of bringing justice to the victims of grave crimes.
4. I am hopeful that in my next report, in May 2017, I will be able to report to you on tangible results of this positive engagement. I am confident that the Arab Republic of Egypt will be a leading example by building on the existing level of cooperation and continuing and strengthening its voluntary cooperation with the Court.
Mr President, Your Excellencies,
5. Let me briefly update you on the Saif Al-Islam Gaddafi and Abdullah Al-Senussi cases. Following this update, I will discuss the current situation in Libya and my Office’s plans for further investigations.
6. As you will recall, on 26 April 2016, my Office filed a request with the Pre-Trial Chamber of the Court for an order directing the Registry to transmit a request to Mr al-‘Ajami al-‘Atiri for the arrest and surrender of Mr Gaddafi to the ICC. Mr al-‘Atiri commands the Abu-Bakr al-Siddiq Battalion in Zintan, Libya and has control of Mr Gaddafi.
7. On 2 June 2016, the Pre-Trial Chamber ordered the Registry of the Court to communicate with the Libyan authorities as to whether the request for arrest and surrender of Mr Gaddafi could be served directly on Mr al-‘Atiri, either by the Libyan authorities, or the Court.
8. Recently, on 28 October 2016, the Registry filed an update on the progress of the Pre-Trial Chamber’s order. This update contained, in a confidential annex, a reply from the Libyan Attorney-General’s Office, dated 29 September 2016. In this update, the Registry sought guidance on what further course of action it should take to communicate with the relevant Libyan authorities. My Office is awaiting the Pre-Trial Chamber’s decision on next steps in relation to this matter.
9. Also in relation to the Gaddafi case, in July of this year, media reports suggested that Mr Gaddafi had been released from detention in Zintan on the basis of a grant of amnesty. I must report to you that reliable sources, including the Libyan Prosecutor-General’s office, have confirmed this information to be incorrect.
10. From the information available to the Office, it is clear that Mr Gaddafi remains in Zintan and is still outside the custody and control of the Presidency Council of the Government of National Accord.
11. My Office again calls on the Libyan authorities to ensure that they do everything possible to have Mr Gaddafi transferred to the ICC without any further delay in keeping with their obligations under the Rome Statute.
12. As regards the Al-Senussi case, my Office awaits the full report of the UN Support Mission in Libya on the conduct of the domestic trial, and will study it carefully when it is available. At this stage, my Office remains of the view that no new facts have arisen which negate the basis on which the Pre-Trial Chamber found Mr Al-Senussi’s case inadmissible before the Court.
13. As I have repeatedly stated, including before this Council, my Office will continue to review its assessment on this matter as and when new information becomes available in accordance with article 19(10) of the Rome Statute.
14. Allow me to offer a few words about the current challenging situation in Libya. In short, the situation continues to deteriorate and innocent civilians continue to bear the brunt of the fighting between the warring factions vying for control of Libyan territory.
15. The current state of affairs, in which civilians are victimised, is completely unacceptable. As stated in my Office’s twelfth report to this Council, multiple conflicts across Libya consume the country, and parties to this conflict allegedly continue to commit serious crimes.
16. This Council has repeatedly condemned crimes allegedly committed by Daesh, Ansar Al-Sharia, and other parties to the conflict in Libya. Executions, including allegedly by Daesh, reportedly account for the largest numbers of killings during the reporting period. Reports of mass graves are on the increase. There are also multiple reports of civilian deaths from indiscriminate airstrikes, shelling and gunfire. Abductions and unlawful detentions continue. The number of internally displaced persons in Libya is believed to be almost 350,000. Finally, Libya is a major hub for the illegal migration trade, which I will discuss in more detail shortly.
17. I must also take this opportunity to join UNSMIL and others to strongly condemn the attempt in October 2016, to seize the headquarters of the High Council of State in Tripoli. I share the view reflected in the 25 October 2016 Joint Communiqué issued by the League of Arab States, African Union and UNSMIL that these actions are detrimental to the stability and security of the country.
18. The persistent instability and armed conflict prevents my Office from conducting investigations within Libyan territory, in relation to both existing and potential new cases.
19. Nevertheless, my Office continuously analyses the security situation through a variety of sources in order to identify opportunities to investigate in situation in Libya. The Office will continue to work in partnership with the Libyan Prosecutor-General’s office to find a solution to safely conduct investigations in Libya as soon as possible. In relation to these efforts, my Office notes this Council’s Resolution 2291 (2016), and in particular, this Council’s request to all parties to cooperate with UNSMIL and ensure the security of United Nations and associated personnel in Libya.
20. I urge this Council to expressly extend this request to include ICC personnel conducting investigations in Libya. Doing so will help facilitate one of my Office’s major goals of ensuring that our investigators return to their work inside Libya as soon as possible.
21. My Office is committed to intensifying its efforts to deter the current climate of impunity in Libya.
22. Notwithstanding the many difficulties posed by the investigation of the Libya situation, including in particular resource challenges, my Office will do all it can to significantly expand investigations in 2017.
23. The new investigations will consider bringing charges for recent and current instances of alleged serious criminal activity falling under the Court’s jurisdiction, which could potentially include alleged crimes committed by Daesh and affiliated groups.
24. My commitment to make Libya a priority situation in 2017 is compelled by a number of factors: by the widespread violence, lawlessness and impunity that currently prevails in many parts of the country; by a desire to provide justice for victims of Rome Statute crimes, and to alleviate the suffering of those civilians who continue to endure the tragic consequences of the conflict in Libya; and finally, by the opportunities for further investigation that the Office has identified.
25. Further, my Office’s on-going efforts in regard to the arrest of an additional suspect or suspects have advanced significantly. I can report to you that my Office intends to apply for new warrants of arrest under seal as soon as practicable and hopes to have new arrest warrants served in the near future. Timely execution of these new arrest warrants will be crucial, will require coordinated efforts by States, and may also require support from the Council.
Mr President, Your Excellencies,
26. My Office cannot accomplish its goals in Libya, acting alone. Addressing the widespread criminal activity that continues to beset Libya requires a coordinated approach and joint efforts by all concerned. It is with this in mind that my Office continues its efforts of working with our partners to develop coordinated investigative and prosecutorial strategies to close the impunity gap for ICC crimes in Libya.
27. Pursuant to its Strategic Goal 9, the Office convened a two-day operational level meeting in The Hague in October of 2016, bringing together judicial and investigative agencies from several States. This productive meeting resulted in agreement in principle that the Office would work collectively with these States with a view to augmenting their respective, independent investigative efforts.
28. In particular, the Office is engaging with those agencies investigating individuals involved in organised crime and facilitating and financing illegal migration through Libya. The importance of investigating alleged crimes related to illegal migration is reflected in this Council’s 6 October 2016 Resolution 2312.
29. In 2017, my Office intends to step up its cooperation with States in relation to this issue and will continue to study the feasibility of opening an investigation into alleged criminal acts against refugees and migrants in Libya, including any alleged acts of sexual violence or crimes against children, that fall under the Court’s jurisdiction.
30. In discussing collaboration, I must also acknowledge with gratitude that the Office’s investigative efforts have greatly benefitted from the operational investigative support and cooperation it continues to receive from the Libyan Prosecutor-General’s office.
31. Regional states, including in particular the Republic of Tunisia and the Hashemite Kingdom of Jordan have also continued to cooperate with my Office in its investigations in Libya, for which my Office is grateful. Exceptionally, certain States have proved far less cooperative, and I take this opportunity to urge all States that have not responded to our requests for assistance to do so without further delay.
32. Despite the challenges Libya currently faces, certain initiatives demonstrate that peaceful negotiated outcomes to conflicts are achievable and must be supported. One commendable example is the 31 August 2016 Misrata-Tawergha Agreement on the Return of the Displaced and Compensation for those Affected. My Office encourages other such initiatives aimed at improving the lives of the people of Libya.
33. My Office continues to receive many delegations from various parts of Libya, who represent civilians adversely affected by conflict. I welcome the opportunity to meet with these delegations, and to hear directly about the experiences of the Libyan civilians they represent.
34. In the same vein, the Office also continues to receive from non-governmental organisations, private citizens and other sources, information and potential evidence of acts that have allegedly caused grave harm to civilian populations. In particular, these include attacks that may adversely impact the civilian population, preventing them from fleeing violence and from obtaining access to food, medicine, and other basic needs.
35. As a case in point, my Office followed with concern the recent 6 October 2016 statement regarding Ganfouda, Benghazi, by Martin Kobler, the Special Representative of the Secretary-General and Head of the UNSMIL. In particular, SRSG Kobler indicated that he is deeply disturbed by reports that civilians in Benghazi’s Ganfouda neighbourhood continue to be caught in the cross-fire of fighting and suffer shortages of food, water and medicines.
36. SRSG Kobler indicated that the UNSMIL has been working to support the Libyan mediation process to minimise the suffering in Ganfouda. I understand that an evacuation plan has been discussed. My Office welcomes this important development, and I will continue to closely scrutinise the situation in Ganfouda and the actions of all parties to the conflict in accordance with the Rome Statute criteria.
37. To conclude, Mr President, the Council referred the situation in Libya to my Office. The referral by definition carries great responsibility to seek justice for the countless civilians who have been victims of the widespread crimes in Libya since 15 February 2011. Compelled by this responsibility, I have decided to allocate additional resources from within my Office’s overall budget to the Libya situation. I have no choice if further concrete progress is to be made in our investigations.
38. Without this Council’s support, this allocation will necessarily come at the expense of investigations of other crimes in other situations. I appeal to this Council to recognise the collective responsibility arising out of your referral and to support financial assistance by the United Nations for my Office’s Libya investigations in 2017. The Libyan people deserve no less.
39. Atrocity crimes demand unequivocal and universal condemnation, and accountability. In adopting the Rome Statute, States not only recognised this reality but also the intrinsic link between accountability for atrocity crimes and sustainable peace and security. The Court remains fully committed to its mandate to help end impunity for the world’s gravest crimes, and in so doing, contribute to the prevention of future atrocities.
40. In this necessary mission, we count on the principled support of this august body, States Parties and non-State Parties to the Rome Statute, indeed, the international community writ large, to realise the full potential of the Rome Statute system in Libya and elsewhere. This is a must if we are to fully respond to the plight of victims by dispensing justice, and to strengthen the international rule of law.
41. I thank you, Mr President, Your Excellencies, for your attention.
Source : Office of the Prosecutor
- TENTH REPORT OF THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT TO THE UNITED NATIONS SECURITY COUNCIL PURSUANT TO UNSCR 1970(2011)