Alarming announcement by ICC to complete investigation in Libya by 2025 puts justice for victims at risk

On 8 November 2023, the Prosecutor of the International Criminal Court (ICC), Karim Khan, addressed the United Nations Security Council (the Council) to present his Office’s twenty-sixth report on the situation in Libya. Despite the Prosecutor reporting an acceleration in investigative activities, Lawyers for Justice in Libya (LFJL) expresses its disappointment at the lack of any concrete progress in the Libya situation and the Prosecutor’s overall approach to it. Victims’ prospects for justice seem no closer today than they were in his last briefing of May 2023.

Worryingly, the Prosecutor expressed that cooperation with Libyan authorities in the past six months has been challenging and impeding investigations in Libya, with the example that no visas were issued to allow ICC staff into Libya. This is indicative of the overall unwillingness of Libyan authorities to cooperate with the Court, such as their continued failure to arrest and transfer wanted suspects to the Court, and their crackdown on civil society organisations (CSOs) supporting the Court’s work.  

This update is particularly concerning given the Prosecutor’s subsequent announcement that he plans to complete all investigative activities in Libya by the end of 2025. Given the obstacles faced and there being no indication that the attitude of the Libyan authorities will change in the next two years, the Prosecutor failed to provide any reason to believe that his Office would be able to complete the investigations within this timeframe.

The announcement of the completion also does not reflect the fact that there has not yet been any accountability and justice for victims of serious international crimes committed in Libya since 2011, and perpetrators continue committing crimes with impunity. In these circumstances, attaching an expiry date to the Court’s investigation sends the wrong message, which risks emboldening perpetrators and abandoning victims’ remaining hope in the Court’s work.  

The Prosecutor also did not provide any update on the six arrest warrants noted in his May briefing – a development he had highlighted as successful at the time. While it is up to the judges to unseal warrants of arrest and to grant applications for such warrants from the Prosecutor, this briefing was a much-needed opportunity for the Prosecutor to outline the current status of these efforts, particularly in light of his announcement of competition of the investigation by 2025.

Mr. Khan also reported efforts to increase contact with victims and Libyan CSOs and reiterated the importance of civil society to the work of the Court. LFJL regrets that he did not mention that CSOs and human rights defenders in Libya continue to face an ongoing crackdown. Each engagement with the Court holds renewed risks of reprisals. As the Prosecutor, Mr. Khan should also clearly and publicly acknowledge this reality and call on States, including Libyan authorities, to ensure a safe and enabling environment for CSOs to operate. This is required for the Court to have any success in Libya, to have access to information and evidence, and to keep victims, affected communities and broader Libyan society informed. The Court should be establishing adequate protection measures for CSOs facing risks as a consequence of their engagement with the OTP and other Court organs.  

However, more optimistically, the Prosecutor’s briefing raised some hopes for the prospect of prosecution of crimes committed against migrants and refugees in Libya through, for example, the assignment of human trafficking experts to the Libya team. As the OTP continues cooperating with several national authorities across Europe on this line of inquiry, we reiterate, however, that these prosecutions should reflect the gravity and systematic nature of the crimes faced by migrants and refugees in Libya, which amount to crimes against humanity and potential war crimes. The Prosecutor must insist on including Rome Statute crimes in these prosecutions and demonstrate how his Office provides support to national authorities in this respect. In yesterday’s briefing to the Council, he failed to do so, referring only to ongoing prosecutions in Italy and the Netherlands, where Rome Statute crimes are not currently being prosecuted.  

Going forward, LFJL also supports the Prosecutor’s request for an increased budget for the Court, including his Office, in the Proposed Programme Budget for 2024. During the upcoming Assembly of State Parties ASP, to be held in New York, U.S. from 4-14 December 2023, State Parties should approve the proposed 2024 budget to ensure the effective continuation of investigations, as well as the accomplishment of the Court’s mandate towards victims.  

Finally, we reiterate that the Prosecutor must urgently reconsider the premature exit strategy as it demonstrates negligence towards the victims and witnesses and their hope for justice.