Open Letter to the Prosecutor of the International Criminal Court

Office of the Prosecutor

Post Office Box 19519

2500 CM, The Hague

The Netherlands

Re: Addressing Impunity in Libya

Dear Mrs. Fatou Bensouda

Today marks the fifth anniversary of the adoption of the United Nations Security Council (UNSC) Resolution 1970 (2011) and the referral of the situation in Libya to the Prosecutor of the International Criminal Court (ICC). Lawyers for Justice in Libya (LFJL) wishes to express its concern that the Office of the Prosecutor (OTP) has yet to play a substantial role in ending the impunity currently enjoyed by perpetrators of international crimes in Libya and to contribute to the prevention of ongoing crimes.

LFJL and other NGOs documenting the occurrence of crimes in Libya have regularly issued statements and written directly to OTP urging for it to play a more active role in Libya. LFJL therefore welcomes and shares your repeated assessment that crimes within the jurisdiction of the ICC have and are still being committed by the myriad parties to the conflict in Libya. However, we are extremely concerned that such acknowledgement has not resulted in the issuing of new arrest warrants for those responsible.

OTP’s engagement is particularly urgent given the systematic failure of national police authorities to carry out investigations and the suspension of the consideration of criminal cases by judicial institutions in many parts of Libya. In November 2015, the United Nations Support Mission in Libya (UNSMIL) and the United Nations High Commissioner for Human Rights (OHCHR) noted that even in the rare cases where police reports were filed, little action has been taken to open prompt, thorough, effective, impartial, and independent investigations necessary to bring perpetrators to justice. To the best of UNSMIL’s knowledge, no perpetrator belonging to an armed group has been convicted since 2011.

Under these conditions, those who commit crimes under the Rome Statute in Libya are able to enjoy complete impunity and the victims of grave atrocities have no means of accessing justice. In view of the failures and non-existence of national institutions, we ask you to consider prioritising the pursuit of justice in Libya in OTP’s upcoming draft policy on case selection and prioritisation.

LFJL acknowledges the practical and financial restrictions OTP currently faces in making its mandate operational in Libya. However, not enough has been done to support and mobilise intermediaries who may still be able to play an active role in documentation of crimes and the challenges OTP faces have not been adequately communicated to victims or the Libyan public. LFJL is concerned that these activities are not significantly prioritised in OTP’s current strategy, which is to carry out its investigations in line with the Memorandum of Understanding of 2013 “on burden-sharing regarding investigations and prosecutions in Libya” with the Libyan state (the Memorandum), as underscored in your tenth report to the UNSC.

Further, whilst the content of the Memorandum has never been made publicly available, you noted in your sixth report to the UNSC that it meant that the Office would continue with investigations “with a focus in particular on pro-Gaddafi officials outside of Libya”. In our understanding, this means that the current investigations do not necessarily prioritise recent crimes committed by those who reside in Libya. We believe that the Memorandum may therefore risk resulting in continued impunity and result in victims’ access to justice being dependent on the location of the perpetrator of crimes.

LFJL therefore asks you to disclose the content of the Memorandum to allow Libyan civil society, including victims and their families, to engage with OTP in a more meaningful and transparent manner. We also encourage OTP to engage in a more active dialogue with Libyan civil society by supporting the work of potential intermediaries through training activities, financial support and the distribution of best practices towards documentation. The insights gained by such stakeholders are invaluable and essential to ensure documentation opportunities are not lost whilst OTP contends with resource constraints and security concerns.

Over the next five years, Libya will undoubtedly face significant challenges in ending impunity and providing national justice for all those who have suffered as a result of grave crimes and human rights violations. In the interim, LFJL strongly believes that the ICC may play a significant complimentary role in helping to end impunity and deter the further escalation of violence in the country and the region more widely. We hope OTP is able to embrace this potential and work with civil society to overcome the many challenges it faces going forward.

Yours sincerely

Thomas Ebbs

Acting Director

Lawyers for Justice in Libya