Despite these challenges, the announcement of the two arrest warrants in the last eight months – one for crimes committed during 2011 and the other for crimes perpetrated more recently – should clearly demonstrate that my Office continues to be fully engaged in Libya and is determined to contribute to achieving real progress towards a culture of accountability for crimes under the Rome Statute committed in Libya.
ICC Prosecutor Fatou Bensouda, Statement to the United Nations Security Council on the Situation in Libya, 8 November 2017
On 8 November 2017, International Criminal Court (ICC) Prosecutor Fatou Bensouda delivered a speech before the United Nations Security Council (UNSC) on the situation in Libya. Considering UNSC Resolution 1970, which referred the situation in Libya to the ICC Prosecutor, she offered an update, sprinkled with tidbits on international relations, state-building, and transitional justice. The speech should rate highly as a measured and balanced assessment of her office’s efforts in dealing with crimes associated with the situation in Libya. Perhaps, but considering other factors, is Madame Bensouda being irrationally exuberant in her expectations?
Madame Bensouda acknowledges that Libya is a failed state: a dangerous and somewhat lawless environment that has descended into chaos, and where, by most measures, she is unable to carry out her investigative tasks, gather evidence, meet with witnesses, and rely on the Libyan authorities to execute arrest warrants. There is no surprise in her assessment of Libya’s challenges:
- the proliferation of armed groups;
- continued – though lessened – activity of the Islamic State of Iraq and the Levant or “ISIL”;
- the ongoing humanitarian crisis created by Libya being the key transit point for hundreds of thousands of migrants[;] and
- the on-going struggle for political power in many parts of the country.
Who would quarrel with Madame Bensouda’s support for the assessment of Mr. Ghassan Salamé, the Special Representative of the UN Secretary-General, and Mr. Zeid Ra’ad Al Hussein, the UN High Commissioner for Human Rights, of the need to establish the rule of law, protect human rights, and combat impunity? Or with her “grave concern” about “reports of unlawful killings, including the execution of detained persons; kidnappings and forced disappearances; torture; prolonged detentions without trial or other legal process; and arbitrary detention, torture, rape, and other ill-treatment of migrants in official and unofficial detention centres”? Or with her instructions to her office to “continue its inquiries into the alleged crimes against migrants transiting through Libya”?
But let’s face the facts. For all intents and purposes, Madame Bensouda’s office, the ICC Office of the Prosecutor (OTP), has been impotent when it comes to the situation in Libya. What does it really have to show? Effectively, nothing. And not for want of trying.
Starting in 2011, the investigation thus far has produced three cases, all remaining in the pre-trial stage pending arrests of the suspects. The first case was originally against three suspects, former Libyan President Muammar Gaddafi, his son Saif al Islam Gaddafi, and Intelligence Chief, Abdullah Al-Senussi. The three were charged with crimes against humanity (see the arrest warrants here, here, and here). The arrest warrant against Muammar Gaddafi was withdrawn on 22 November 2011 due to his death. Proceedings against Abdullah Al-Senussi before the ICC came to an end on 24 July 2014 when the Appeals Chamber confirmed a decision of Pre-Trial Chamber I, declaring the case inadmissible before the ICC (see my take on the Pre-Trial Chamber’s absurd decision that Al-Senussi could actually get a fair trial in Tripoli). The OTP continues its efforts to secure Saif al Islam Gaddafi’s arrest and transfer to The Hague.
In April 2017, the ICC made public the arrest warrant against Al-Tuhamy Mohamed Khaled, alleged former Lieutenant General of the Libyan Army and former member of the Libyan Internal Security Agency. Al-Tuhamy is accused of committing crimes against humanity and war crimes between February and August 2011. In August 2017, the ICC issued an arrest warrant for another Libyan military commander, Mahmoud Mustafa Busayf Al-Werfalli, who is accused of having committed or ordered 33 murders in Benghazi or its surrounding areas between June 2016 and July 2017. The supporting evidence against Al-Werfalli is video footage of him conducting summary executions of captives that was published on social media. Al-Werfalli’s commander, General Khalifa Haftar, was allegedly supported by a Libyan oil billionaire from Gaddafi’s inner circle, Hassan Tatanaki. As I noted in one of my #Ocampogate posts, former ICC Prosecutor Luis Moreno Ocampo was retained for $3,000,000 by Tataniki for the dubious remit of seeing how international law could bring about peace and stability in Libya. We now know that Moreno Ocampo was trying to game the process in order to distance his client from Al-Werfalli. To what extent Madame Bensouda was aware of Moreno Ocampo’s unethical (and perhaps criminal) behavior remains an open question. Thus far, she has been less-than candid about her association with and activities for Moreno Ocampo since he left the OTP. And if it turns out that there is linkage, then Madame Bensouda’s UNSC speech will need further assessment.
In any event, the ICC has not managed to have any of the charged suspects arrested and brought to The Hague. And I dare say, arrests or transfers are highly unlikely to happen any time soon – if ever.
The situation in Libya is playing out just like the situation in Darfur (Sudan), which was also referred by the UNSC in March 2005. There is, however, one very big distinction: the gravity of the crimes in Darfur are off the charts. The OTP has alleged that Sudanese President Omar Al-Bashir is responsible for genocide, war crimes, and crimes against humanity, including the murder, extermination, torture, forcible transfer, and persecutions of hundreds of thousands of civilians and the internal displacement of over a million people.
While UNSC Resolution 1970 mandated the Prosecutor to investigate and prosecute crimes committed in Libya (and thus the gravity test – whether the alleged crimes are sufficiently grave to warrant an ICC investigation – is not an issue), the scope and gravity of the Libyan crimes Madame Bensouda described in her speech pale in comparison to Darfur. Yet, despite the UNSC’s referral of the Darfur situation to the ICC, and despite the horrific crimes alleged and the large number of victims, Darfur has failed to capture the imagination of the five permanent members of the UNSC and get them to act. And to add insult to injury, even the Pre-Trial Chamber has been brutally pragmatic. Although it found that South Africa failed to comply with its obligations under the Rome Statute and arrest and surrender President Al-Bashir to the ICC, it declined to refer South Africa’s non-compliance to the UNSC (see my post on the Pre-Trial Chamber’s decision). And it gets even worse: just yesterday, we learned that President Al-Bashir is set to visit Uganda for a meeting with Ugandan President Yoweri Museveni. Uganda, like South Africa, has obligations under the Rome Statute. Other than expressing the usual empty condemnations, the ICC is unlikely to refer Uganda to the UNSC, and even if it did, the Pre-Trial Chamber has already concluded, and pragmatically so, that the UNSC is not going to do anything about it.
But why should this matter?
When considering the “modest financial resources which must be spread across all situations currently under investigation by [the OTP]” and Fatou Bensouda’s plea for an in increase in those resources “to ensure [the OTP has] adequate means to achieve [its] mandated mission,” how wise and practical is it to pursue individuals who have allegedly committed crimes (and who may also continue to commit them) when the UNSC is unwilling and unable to find the political fortitude to assist? Without such assistance, the likelihood of arresting and prosecuting the charged suspects is virtually nil.
In part, the UNSC’s failure to assist the OTP in carrying out its Resolution 1970 mandate may be due to the intervention of NATO forces for supposed humanitarian reasons. The UN Security Council through Resolution 1973 authorized Member States to “take all necessary measures … to protect civilians and civilian population areas under threat of attack” and to establish a no-fly zone over Libya. Though the intervention was limited to humanitarian reasons, NATO forces expanded their mission, using Resolution 1973 as a pretext to affect regime change, much to the consternation of Russia, China, and others, who saw this as a naked interference with Libya’s sovereignty (see my review of Richard Haass’s A World in Disarray, discussing the consequences of such interventions).
In part, the UNSC’s failure may also be due to an unwillingness to set a precedent. How can the UNSC reconcile making a concerted effort in Libya to assist in having the likes of Saif al Islam Gaddafi sit in the ICC dock for crimes against humanity (leading to killing, injuring, and imprisoning hundreds of civilians) while making no efforts to assist the ICC in having Al-Bashir arrested, when he is alleged to have committed genocide, among other things?
UNSC Resolution 1970 is a poisoned chalice. The UNSC gave the OTP the responsibility to investigate and prosecute crimes related to the situation in Libya, but then failed to provide the OTP with real assistance. Arguably, the UNSC does not even support the ongoing efforts by the OTP to meet the mandate thrusted upon it by the UNSC.
So, what is the point in the ICC Prosecutor reporting to UNSC on the situation in Libya? While I commend the Lawyers for Justice in Libya for their commitment and expressed hope after hearing Madame Bensouda’s speech to the UNSC, my take is that this whole exercise is nothing short of a charade.