Libya: The importance of deterrence and the ICC's role in current violations

The article below frames discussions that took place during the 2017 Assembly of States Parties side event “The Importance of Deterrence and the ICC's Role in Current Violations” in the context of Rome Statute 20th anniversary stocktaking and future-planning for the system of international justice. It uses the situation in Libya and civil society advocacy and reporting to highlight the importance of forums that bring together actors in the international justice system to exchange lessons and information toward a more robust and effective international legal order.

2017 saw the International Criminal Court (ICC) release two new arrest warrants – both as part of the Office of the Prosecutor’s (OTP) ongoing investigation into alleged Rome Statute crimes committed in the context of the situation in Libya since 15 February 2011. The situation in Libya, a non-ICC member state, was referred to the ICC by the United Nations Security Council on 26 February 2011.

The first of the ICC arrest warrants, unsealed in 2017, was issued on 18 April 2013. That warrant, unsealed last year to create new opportunities for its execution, charges Al-Tuhamy Mohamed Khaled with crimes against humanity as well as war crimes allegedly committed back in 2011. The second warrant issued in 2017 charges Mustafa Busayf al-Werfalli, a major of the Libyan National Army, with alleged direct involvement in murder as a war crime as recently as July 2017.

These add to two existing 2011 arrest warrants arising from the OTP’s investigation: one outstanding for Saif al-Islam Gaddafi; and the other, for Abdullah Al-Senussi, subject to the outcome of domestic appeals proceedings.

As the Rome Statute approaches its 20th anniversary on 17 July 2018, the two Libya arrest warrants revealed in 2017 emerge as one important piece of the story of justice for international crimes and grave human rights violations in the 21st century: the obligations that drive it, and the parts that all actors tasked with seeing international justice delivered – states and inter-governmental bodies like the UN Security Council, mechanisms like the ICC, and civil society alike – still have to play in supporting justice and building lasting peace.

As civil society organization Lawyers for Justice in Libya (LFJL) demonstrates in its first monitoring report since the launch of its Human Rights Archive in December 2016, the body of evidence of human rights violations in the country is only growing. Strengthened responses in the international legal order very much remain a crucial piece of the groundwork for transitional justice processes to build upon in ongoing situations of conflict.

For the OTP, this has meant seeing its mandate through, wherever it may lead – including in the direction of new types of grave violations within a situation, such as alleged crimes against migrants in Libya – despite non-execution of its existing arrest warrants, inadequate resourcing and a lack of cooperation from states. For LFJL, this has meant building a network of civil society committed to preserving the truth and to applying pressure where it is needed most: on governments, including the Libyan state, and legal mechanisms like the ICC. Above all, the Security Council still needs to build the resolve to conduct follow up to support the ICC when it has made a referral—as it did in the case of Libya—but where follow up by the Council to enforce outstanding arrest warrants has been sorely lacking.

The November 2017 meeting of the Network for Monitoring and Archiving for Justice hosted by LFJL as part of its Human Rights Archive project, as well as the December 2017 session of the Assembly of States Parties (ASP), the ICC’s governing body of states, are just a few of the important forums to ensure all actors in international justice know their part, and where work remains to be done in the Rome Statute’s 20th year.


ASP16 Spotlight on the ICC in Libya

On Wednesday, 6 December 2017, Lawyers for Justice in Libya (LFJL) and the Mission of the Netherlands to the UN co-hosted a side-event at the ICC's Assembly of States Parties (ASP) meetings, entitled "The Importance of Deterrence and the ICC's Role in Current Violations." The panel addressed the ICC's Libya-related work, as well as the current massive justice challenges facing Libya. Alex Whiting, Professor of Practice, Harvard Law School, moderated the panel.

ICC Deputy Prosecutor James Stewart spoke about the Court’s challenges in the Libyan situation, especially the lack of resources facing the Court. He discussed the ongoing investigations in Libya for crimes related to the 2011 uprising and explained how the OTP is now looking into “new crimes” committed after the uprising, including those committed against migrants by traffickers and smugglers, such as torture and sexual exploitation. Deputy Prosecutor Stewart emphasized that the Court is currently studying whether these crimes fall within the ICC’s jurisdiction. He highlighted the crucial role that states can play under the OTP’s Strategic Goal 9, which calls on the OTP to “develop with partners a coordinated investigative and prosecutorial strategy to close the impunity gap”, notably by enforcing arrest warrants.

Professor Jennifer Trahan, Associate Clinical Professor at the Center for Global Affairs of New York University, spoke to the challenge facing the ICC in terms of non-execution of arrest warrants, suggesting the need for the imposition of meaningful costs upon non-cooperating states, by the UN Security Council, the ASP or the Court. She noted that non-execution of arrest warrants also stands to potentially undermine the Court’s deterrent impact. Professor Trahan then discussed her concerns with the principle of complementarity under the Rome Statute illustrated by the Libyan situation. She argued that as part of the admissibility challenge in the case of Al-Senussi, the Appeals Chamber set a very poor standard as to complementarity when it ruled that, for the case to be admissible before the ICC, national proceedings would have to be “completely lack[ing in] fairness” such that they fail to provide “any genuine form of justice.” She concluded that it sets problematic precedent when a deeply flawed national trial is accepted as satisfying complementarity, which to date has happened in the Senussi situation. She noted that the Rome Statute, in covering “unwilling” and “unable,” does not provide sufficient attention to an equally problematic situation of “all too willing”—the desire to overzealously prosecute ex-regime members absent sufficient fair trial protections.

Fleur Ravensbergen, Assistant Director at the Dialogue Advisory Group, brought a unique angle to the panel by discussing her work in directly engaging with leaders of armed groups, with the aim of facilitating political dialogue to reduce violence in conflict situations. She explained that, while recognizing that their actions are unacceptable, the goal is to adopt a more positive approach in accepting that these armed groups can change their behavior. In this context, she highlighted that armed groups acknowledge the existence of the ICC and pay attention to its work. Ms. Ravensbergen noted that, as a result, armed groups sometimes adapt their behavior in conflict to avoid an ICC investigation. She concluded that, to a certain extent, the ICC does play a deterrent role on armed groups.

Finally, Elham Saudi, Director of Lawyers for Justice in Libya, reflected on the investigations conducted by the ICC in Libya. She pressed the Deputy Prosecutor of the ICC to do more in the situation in Libya. She insisted that the Court should work on restoring its relationship with the people on the ground in Libya, including civil society, as the Court now suffers from a poor image with the Libyan public. Ms. Saudi reacted to the most recent reports of slave trade in Libya and called on the ICC to investigate the alleged crimes of trafficking and slavery. She also called on the UN Security Council to adopt sanctions against the perpetrators.