LFJL Welcomes the ICC’s Commitment to Prioritise Libya in 2018

The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda (the Prosecutor), presented her 14th report on Libya to the United Nations Security Council (the Security Council) earlier this week. Lawyers for Justice in Libya (LFJL) congratulates the Prosecutor on issuing the first arrest warrant for post 2011 crimes in Libya earlier this year following her 13th update to the Security Council. Having long highlighted the significant complementary role for the ICC in helping to end impunity in Libya, LFJL welcomes the Prosecutor’s continued commitment to prioritise investigations in Libya in 2018 and her assurances that her office has taken note of recent and ongoing crimes committed in Libya. LFJL calls on Libya to expedite the surrender of Al-Werfalli and others, on the international community to increase its support to the ICC and on the ICC to pursue its mandate by issuing new, and unsealing, arrest warrants. 

In her statement, the Prosecutor highlighted the legal obligation of Libya, and Libyan National Army (LNA) Commander Haftar, to surrender Al-Werfalli to the ICC irrespective of any domestic investigation. She also drew attention to command responsibility, the principle by which persons acting as military superiors can be criminally responsible for crimes under the Rome Statute committed by their forces or subordinates. Command responsibility also obliges military superiors to prevent or repress the commission of such crimes by their forces. LFJL welcomes the Prosecutor’s unequivocal call for greater cooperation from Libya in ensuring Al-Werfalli’s arrest, and notes the importance of justice in achieving sustainable peace. Accountability for serious crimes and respect for the rule of law must form the cornerstone of the ongoing political dialogue if Libya is to achieve peace, stability and security.

LFJL welcomes the Prosecutor’s condemnation and continued monitoring of recent and ongoing crimes and her office’s willingness to issue new warrants. The Libyan state’s weak, if existent, domestic accountability measures prove that it is unable genuinely to carry out investigations or prosecutions into serious crimes. LFJL urges the ICC to remain seized of the ongoing crimes in Libya and to challenge the continued impunity for serious human rights violations by pursuing accountability actively through additional arrest warrants.

The ICC has so-far failed to secure the arrests of Al-Werfalli and Al-Tuhamy or the transfer of Saif Gaddafi. LFJL notes the Prosecutor’s statements on the responsibility of States Parties, and non-States Parties, to the Rome Statute to assist in securing the arrests relating to the outstanding warrants. LFJL urges the ICC to support and mobilise intermediaries who may still be able to play an active role in supporting the ICC’s work on the ground to ensure that the ICC achieves accountability  which will, in turn, break the cycle of impunity and deter further crimes. The international community also has a significant role to play in supporting the role of the ICC in Libya, and elsewhere, by acting on arrest warrants and the Prosecutor’s request for increased financial resources and support.

The Prosecutor reported that her office is monitoring the systematic ill-treatment of migrants transiting through Libya as an area of concern but noted that the question of whether individual crimes fall within the jurisdiction of the ICC will be decided on a case by case basis. LFJL welcomes this commitment to monitoring the situation and notes the widespread reports of Rome Statute crimes being committed in relation to the migration crisis, including modern slavery and systematic torture and ill-treatment of migrants in detention centers. LFJL calls on the ICC to expedite its investigations in this area as authorities in Libya are unable, or unwilling, to address the violations that continue to be perpetrated.

LFJL Director Elham Saudi commented, “We hope that the Prosecutor’s comments will serve as a much-needed reminder to actors involved in the commission of the ongoing atrocities in Libya that the international community is watching and stands ready to take action. What is needed now is a concerted effort for collaboration between the ICC, states and civil society to ensure that the ICC has the resources, access and reach to ensure that its mandate reaches the ground.”

LFJL will be holding a side event during the Assembly of States Parties in December to discuss these issues in greater detail with reference to other country contexts. Keep an eye on our website and social media pages for more information in the coming weeks.