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Statement of ICC Prosecutor to the United Nations Security Council on the Situation in Libya

1.       It is a singular honour to brief you on this occasion; this being my first opportunity to brief you in my new role as Prosecutor of the International Criminal Court (“ICC” or the “Court”). I present, of course, the 22nd report that has been presented before this august body since the United Nations Security Council Resolution 1970 was passed in 2011.

2.         It is also a pleasure, of course, because it is the first face-to-face briefing that the Prosecutor of the ICC has had with the Council in the last two years because of the strictures of the COVID-19 pandemic.

3.         I think it is only right and proper with your leave, Mr President, that because this is my first report as Prosecutor, perhaps I may be indulged to say a little bit about my vision. It is a vision in which the relationship with this Council plays a very important part.

4.         We live, we say, in the age of reason, the age of man, the age of science in which remarkable battles are done against invisible foes. The COVID-19 pandemic is but one example of that, harnessing collective effort, sharing knowledge, working with purpose, shows amazing things can happen and lives can be saved. Despite this proven demonstrable reality, we, unfortunately are in a somewhat miserable state when it comes to the continuous violations that so many of our brothers, and sisters and children suffer as we speak.

5.         I have hope that the Rome Statute system and the Office that I lead can help to ensure that the tomorrows of our children are better than the yesterday of so many of our fellow human beings. And this message is one that needs to be translated into action. My view is that the Rome Statute principles echo the principles of the Charter of the United Nations. This august body – you know it far better than me – has a very serious and a very unique role in the firmament of public international law in terms of international peace and security, not only being a principal organ of the United Nations (“UN”), but having primary responsibility for maintaining international peace and security. You have acted on notable occasions to ensure that the value of human life is not viewed as some tradable commodity or allow impunity to be committed with abandon and the referrals that you, yourselves, have made in the Libya Situation is one example of that action.

6.         I, really, do look forward to ever more constructive a dialogue with the Council, and I believe quite sincerely and quite practically not as some theoretical possibility that there could be a convergence between your own responsibilities under UN Charter and the principles of the Rome Statute to give no safe haven for crimes under the Statute including war crimes, crimes against humanity or genocide.

7.         I was sworn in on the 16th of June. When I was sworn in, I emphasized something that is obvious but perhaps sometimes the obvious is forgotten. The Rome Statute system that creates the ICC is not the property of Italy or Europe, or of the West. The values of the Rome Statute belong to humankind everywhere and it is a large family of which every single member of this Council belongs. It is not something that is the sole preserve of State Parties; it is owned as much in my view by non-State Parties as well, should they wish to take ownership of something they already have. It is not the preserve of the common law system or the civil law system, or the Islamic law system but of all traditions of the East and of the West. And I think by any common sense analysis this body of law, this joint quest to narrow impunity for genocide or crimes against humanity or war crimes, for goodness sake, must be a cause that can bring us closer together instead of dividing us further apart.

8.         But the success of my mandate requires support from this Council and from member states, State Parties and non-State Parties alike. I’m going to be looking at new imaginative ways in which we can also embrace regional organisations and international organisations to share the burden and to do better in the discharge of our human moral as well as legal responsibilities in relation to the categories of crime that I have mentioned. I commit, today, to this Council, to use my very best endeavours to work towards broader inclusivity in terms of the Rome Statute system and the principles that are owned by all of you. I believe that, by doing this, we can also foster reconciliation, we can enhance stability and security not only of nations, but of regions. But we can only do that if we work together.

9.         During my term of Office as Prosecutor, I am going to give renewed purpose to the principle of complementarity, working with states, for states to step up. It is not some kind of favour. The Rome Statute makes it clear that national authorities have primacy. It is in black and white. National authorities have the fundamental right and also the essential responsibility to make sure that these types of crimes – declared illegal as far back as the Nuremberg Principles in which all members, all permanent members of the Council joined – are addressed; this presents an opportunity to move things forward.

10.      Now, turning to Libya, I emphasise again that the UN Security Council referrals are a priority for me. Perhaps over a period of time, it may be the case that resources have been diluted, the scarce resources of the Office have been spread too wide. In my view, when this Council acts, we should work in accordance with the Rome Statute to prioritize the matters that you refer to us given your own responsibilities. Of course, we will independently and impartially review the evidence without any view of politics or other agendas but definitely, I think, the referrals deserve that prioritisation.

11.      I have asked in relation to all the inventory before the Office, all the various cases that we have, that we review those matters and that includes the Security Council referrals that are before the Court: Libya and Darfur, Sudan. I hope in my next report, I will be able to set out clear objectives and a road map that would give clarity on these important matters and would help to more transparently and clearly communicate what is the plan, what are we hoping to do and how we’re hoping to achieve it.

12.      I should also emphasize that upon assuming office, cognisant of my own responsibilities under the Rome Statute and my ethical obligations under article 42(6) of the Statute, I recused myself from any case or situation where there may be an appearance of lack of impartiality and that includes the case of Mr Saif Al-Islam Gaddafi. I will refer all esteemed members of the Council to my Office’s 22nd report on this matter. Suffice it to state that all matters in relation to those cases, they’re being completely handled by my Deputy, Mr James Stewart and not by me.

Mr President,

Your Excellencies,

13.      During this reporting period, of course it is a challenging time of COVID, but also the security situation in Libya has played a part. It is not been easy and the team has not been able to go physically to Libya. I had a good meeting with His Excellency, Ambassador Taher M. El-Sonni yesterday, and I hope and pray it is the first of many, because we need to work together. We need to speak openly and candidly regarding the obvious problem of lack of security and also the crimes that merited this Council referring matters to the ICC. I hope, God willing, that early next year, conditions permitting, I will be able to go to Libya and I would like to engage further with the Government of Libya, but also other stakeholders. That conversation will inform the objectives and the understanding that hopefully will be presented to you in my next report. There needs to be an open dialogue, and I think that is also going to be an extremely important part.

14.      Despite those difficulties of the security situation, the challenges within Libya, progress has been made, interviews have taken place, missions have been conducted by members of my Office to different countries, and various documents and evidentiary material have been collected, and there has been dialogue with different domestic law enforcement entities.

15.      The Office also has taken steps to further confirm or to try to further verify reports of the death of two suspects, Mr Mahmoud Mustafa Busayf Al-Werfalli and Mr Al-Tuhamy Mohamed Khaled. I take this opportunity both to ask the distinguished representatives of Libya for further help and assistance, but also from all Council members so that if we can verify the exact status of these two individuals, we can take the necessary action of informing the judges of the ICC.

16.      We continue to investigate, and the simple truth, unfortunately since the case or the situations was referred in 2011 is that cogent and coherent allegations continue to arise from that land, from that ancient land. The plight of women and children and men is something that requires greater action. This requires new focus from my Office. I accept that, and acceleration and a more demonstrable utility of the Office of the Prosecutor but it also does require with the greatest of respect, more engagement and more support from this august body that referred the matter to the Office of the Prosecutor in the first place.

17.      In this period, we have also been looking further at the attacks on Tripoli in April 2019, including and related to the Tarhuna mass graves. We have been looking at the detention facilities in Libya. We have a stream of information of both official and non-official detention sites, with allegations ranging from rape, and torture, and mistreatment and a gender and sexual gender-based violence. There have been allegations regarding Mitiga prison controlled by the Special Deterrence Force, and the Gernada, the Al-Kuweifiya and the Tarek Bin Zayed detention facilities controlled by the Libyan Armed Arab Forces.

18.      I do ask the Libyan authorities and all respected members of the Council and State Parties to reach out and lend a hand in giving information that would help to stop the suffering and the crimes that are not new to anybody in this room. We cannot do much alone and without partnership and I think first and foremost, I look forward to a re-forging of the relationship with Libya so we can move forward together.

19.      The other matter that is important are migrants in Libya. It is troubling. We’ve had recent allegations also of raids on migrant settlements in Tripoli, excessive use of force and arbitrary detention. We call upon the Libyan authorities to establish prompt and thorough and impartial investigations in relation to those matters with a view to ensuring accountability for those responsible.

20.      I really, genuinely, commend with the greatest of humility the constant position of this Council condemning all acts of migrant smuggling and human trafficking to and from Libya, through Libyan territory, through the coast of Libya. But this situation manifestly undermines stabilisation efforts in Libya and it continues to endanger the lives of tens of thousands of people. Accountability efforts must march alongside such condemnations.

21.      This situation, by any benchmark, is of such magnitude and complexity, and it involves multiple states and regions that it calls out for imaginative and nuanced responses. I would like, Mr President, with your leave, to give one example of that nuanced response.

22.      Given the scale of the problem and the lack of dedicated resources available to my Office, we have partnered with a joint team comprising Europol, Italy, the United Kingdom and the Kingdom of the Netherlands to combine efforts, to share knowledge, to try to move things forward in a way that is principled and positive. This engagement has been positive. I myself attended a couple of months ago one of the joint team meetings, and I was delighted that the Kingdom of the Netherlands and the national prosecuting authorities in October, just last month, further to that collaborative partnership, have arrested and charged a suspect with this egregious allegation, for this crime. This is one example where I think, in my humble view, we need to redefine success for the Court.

23.      Success does not simply mean the numbers of trials or the number of proceedings in The Hague. Success means narrowing accountability, supporting national authorities, looking at imaginative ways in which we work together, not separately and divided, but in a united manner.

24.      Earlier this month, I also had the opportunity to meet the President of Eurojust, Mr Ladislav Hamran at the annual meeting of the Genocide Network, and we spoke about this specific matter together and we are going to be looking at new ways in which we can embrace not just Eurojust or Europol, but other regional partners, from other parts of the world in which we can use this Office within the mandate of the Rome Statute, to lend to national accountability mechanisms and the Statute is clear this can clearly take place.

25.      But there is plea I make unashamedly and actually without embarrassment to this Council. I do it knowing that in this physical environment that all of you member states are encountering that is rendered more acute because of the COVID pandemic. We need resources and actually compared to the cost of, leaving aside the unquantifiable cost of human suffering, even in terms of the movement of people, the lack of security and the other expenditures that are needed, in my humble view, money to the Court can be well spent. And you have an option. article 115 (b) of the Rome Statute makes it clear that the UN can provide funds to the Court subject to the approval of the General Assembly. I would ask that you give very anxious consideration to the possibility of requesting the UN to fund the Court and my Office, at least in relation to the two matters that you have referred to the Court.

26.      In my humble view, this is completely consistent under the Rome Stature principles, but this is consistent with the Charter principles and it is consistent with your own decision to refer this matter of Libya to my Office. From my part, I will make every effort that if you would take that step, it would be money well spent, it would be a statement of intent for a new dawn, a new relationship of cooperation with the Office of the Prosecutor, and I think it could have many dividends that could be discussed in other forums.

27.      In conclusion, one thing is clear. This Council has consistently reminded us all that the interest of peace and stability in Libya require all parties to comply with their public international law obligations, including respect for international humanitarian law and international human rights law. The victims cannot be a sound bite. The victims can’t just be raised as an incantation that makes it look like we are doing well. And I’m talking about myself as well in this. We need and we can, if we are united, to do far better that we’ve done to date.

28.      I really do ask that we look at new imaginative ways of partneringthatwe look at synergies, so that we can advance our common objective of accountability in the Libya Situation.

29.      Mr President, distinguished members of this Council, if a cause unites us, why not this one? If a response falls upon us, upon this Council, surely, that cause and that response must be to eradicate, in this 21st century, genocide, crimes against humanity and war crimes, and ensure accountability based upon evidence, not polemics, political agendas or political interests. In these remarks, through the lens of justice in Libya, I call for a paradigm shift, a new and ever more constructive dialogue and partnership with this Council. In short, Mr President, distinguished delegates, I call for nothing less than a new era of engagement between the Office of the Prosecutor and this Council.

30.      Thank you so much for being so generous with your time and listening patiently to my comments.

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