On November 9, the Prosecutor of the International Criminal Court (ICC) went to the UN Security Council to present her 12th report on the situation in Libya. Fatou Bensouda says she plans to make Libya one of her priorities in 2017. She spoke of new arrest warrants against former members of the Gaddafi regime and the possible opening of an investigation into crimes committed by Jihadist groups.
Bensouda told the Security Council that she plans to issue new arrest warrants “as soon as practicable” and requested cooperation from States and the UN Security Council – which referred the Libya situation to the ICC at the beginning of the revolution in that country – in arresting the future suspects. As of June 2011, the ICC issued three arrest warrants against the late Muammar Gaddafi, his son Saïf Al Islam and military intelligence chief Abdullah El Senoussi. The Prosecutor’s report suggests that several other arrest warrants – secret – have recently been issued by the judges against former members of the Gaddafi regime, following a November 2013 cooperation agreement between the Libyan authorities and the Prosecutor’s office providing for the ICC to go after former members of that regime in exile.
In that context, the Libyan Prosecutor-General’s office has already provided the Court with numerous documents. With regard to the first three arrest warrants, only one is still in force and it has still not been implemented. Saïf Al Islam has since 2011 been in the hands of an armed group in Zintan, northwest Libya, and is a subject of bargaining between the militia and the different authorities in place since the fall of the Gaddafi regime. The Prosecutor asserts that the suspect is held outside the control of the Libyan government. Last April, she asked the judges that an arrest warrant be delivered directly to the head of the Zintan brigade, Alajmi Ahmed Al-Atiri. That decision is still pending.
Anarchy and impunity
Given “the seriousness of the present situation of widespread violence and impunity in Libya”, the Prosecutor said she intends to make Libya one of her priorities in 2017. As well as members of the former regime, she may also focus on crimes committed during the current conflict, notably by Islamic State and Ansar Al-Sharia. The Prosecutor stressed that although there are now less executions by Jihadist groups, numerous mass graves have been found. A battle has been raging in Syrte for the last six months between Jihadist groups and Libyan forces allied with armed groups and supported by international forces, notably American and British. Several mass graves have been found in parts of the town retaken from the Jihadists.
A call for cooperation
The Prosecutor praised cooperation particularly by Egypt “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”. In New York, the Egyptian representative expressed in return his full support for the Prosecutor, calling on States of the region and international organizations to cooperate. Tunisia and Jordan, the only two Arab countries that are members of the Court, are already doing this, as Bensouda noted. This cooperation is through national justice systems. Fatou Bensouda told the Security Council she has developed a “coordinated strategy” with partners on investigations and prosecutions.
The Gambian lawyer said the current security situation in Libya does not allow the ICC to send investigators to the country. And she called on the Security Council to extend to ICC staff the same security measures as for UN staff. Since her office is unable to investigate on the ground, the Prosecutor is trying to extend cooperation with national police services investigating cases linked to Libya. In an article published last week, Mediapart revealed that French magistrates investigating allegations of illegal funding from the Gaddafi regime to Nicolas Sarkozy’s election campaign had obtained permission from the Court to question Abdullah El Senoussi, who is currently in jail in Tripoli.
Crimes against migrants
This cooperation with national judicial and investigative agencies also includes migrant trafficking. Bensouda said that in 2017, her office 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”. Angola’s ambassador to the UN said that the continuing absence of justice for migrants reflected “the importance of the ICC in Libya”.
Nevertheless, the key issue is funding. Bensouda asked the Security Council, which referred the Libya situation to the ICC, for financial assistance, saying that if this was not forthcoming, additional funds required for Libya would come “at the expense of investigations of other crimes in other situations”. Since 2011, the Court has allocated more than 20 million Euros to the Libya situation, according to a recent evaluation. In New York, the Russian representative expressed strong opposition, throwing the ball in the court of France and the UK, the two countries that initiated the referral to the ICC. Moscow considers that it was misled by its peers on the real motivations behind the military intervention in Libya. It expressed regret that the ICC has not in five years issued any arrest warrants against the 2011 rebels and that nothing has been done about the civilian deaths caused by NATO air strikes.