Libya Accountability Updates: Expert insight from ASP22

1. Libya, Sudan and Ukraine are all ongoing, yet markedly different, ICC situations. In your view, what key lessons have you learnt from your context on the pursuit of accountability and justice?

LCW: In my perspective, conducting a comparative analysis as case studies reveals numerous obstacles on the path towards accountability and justice. These challenges encompass discrimination, the politicisation of cases, and distinctions made among victims.

Reflecting on the lessons from the Libyan context, the journey towards accountability is long and arduous. It requires an openness to using all accessible avenues, persistently seeking every available option.

It is crucial to amplify the voices of victims and prioritise their concerns. This effort must span from engaging with local judiciary and the Libyan Attorney-General to use international mechanisms, the ICC, and foreign jurisdictions, where applicable. While pursuing these avenues is imperative, it demands significant resources, presenting a substantial challenge to Libya's civil society.

ULAG: Delaying justice leads to the fostering of impunity and perpetrating more atrocities. Had effective justice been delivered for the crimes committed following the annexation and occupation of Crimea and armed conflict in eastern Ukraine in 2014, it is likely that the full-scale invasion in 2022 may not have happened. 

Politics cannot substitute justice and justice should not be instrumentalised, weaponised and manipulated by the leaders who are also alleged perpetrators; it cannot and should not be a bargaining chip. 

Effective justice also requires timely and necessary resources, support, a lessons learned mechanism and concerted effort from state authorities, international organisations, civil society and victims should all work towards achieving one objective. 

ACJPS: The case of Sudan is unique simply because of the length of time it has taken, as a process before the ICC, since its referral in 2004-5. It took almost 15 years for proceedings to take place before the ICC. For the victim, this plays a crucial role in terms of hope, waiting for justice for 15 years. Then, in May/June 2023, there was another round of similar atrocities in terms of scale, committed by the same perpetrators. This leaves a shadow on the victims’ trust in these international mechanisms.  

Accountability and justice will depend on the collaboration of the international community itself because according to our Sudan experience, while the President at the time was indicted by the ICC, he moved freely from one country and airport to another, even countries that are parties to the Rome Statute, without being surrendered to the ICC. This was unacceptable. So now the victims in Sudan have been victimised again while they were waiting for justice, redress and reparations. 

2. In December 2023, your organisation participated in the ASP meeting of the ICC. What were your expectations going into the ASP?

LCW: As frequent participants in these meetings, our expectations have gradually lowered over time. We find joy in simply being heard and having interactions [with the ICC]. This time, we had the opportunity to address Member States, considering it a significant achievement to convey our message. Additionally, we engaged with Nuzhat Khan, Deputy Prosecutor to Karim Khan, sharing our recommendations and observations. But our efforts have their limits and the outcome is beyond our control.

ULAG: ULAG always participates in the ASP to gauge the mood, capacity, and intention of States to fight for justice and combat impunity. Another expectation was to reconnect with many NGO colleagues, to share and exchange our observations, provide support for one another, and express our solidarity with them; forge new partnership and encourage one another not to give up, despite the challenges that seem to become tougher with each year.   

ACJPS: Our expectations for our participation at the ASP was to draw attention to the Sudan situation, especially as this coincided with new crimes that have been taking place in Sudan, so we were there to remind the international community and States Parties that they must do more. We organised and participated in a number of side events, met with some Members States and some organs from the ICC itself including the Deputy Prosecutor, discussing the ongoing case of Omar Al-Bashir and others whose whereabouts are still unknown. After the revolution, there was an MoU between the Court and the transitional government to surrender the fugitives to the Court. And then the war erupted, so this didn’t happen. This ASP, we were hoping to see the Court’s strategy on this situation. We also discussed the new crimes that are being committed in Darfur and the investigation that has been launched by the Office of the Prosecutor (OTP). We asked how these investigations can move forward, and how even we can expand the ICC’s jurisdiction beyond Darfur, as was set in 2004. Now there are new crimes happening in other parts of Sudan.

3. It has now been more than two months since the ASP concluded. What are you expecting from the Court in 2024?

LCW: We anticipate the continuation of investigations in Libya, expressing our hope that the timeline provided by the Prosecutor, ending investigations by the close of 2025, will be reconsidered. Our expectation is for the Court's efforts on the ground, including field visits, to extend further. We aspire to witness enhanced coordination with civil society and improved communication with affected communities. Additionally, we look forward to the issuance of new arrest warrants by the Court against individuals implicated in war crimes and crimes against humanity in Libya, deeming it the minimum expectation in this context.

ULAG: From the OTP we are expecting more transparency, more engagement, more feedback – not only to the authorities but most importantly to the victims and civil society. We expect the Prosecutor to meet with civil society upon his next visit to Ukraine. We are also expecting that the ICC will embrace its role as a standards-setting institution, particularly because there are many different mechanisms being created, all aimed at ensuring justice and accountability, but working to different standards, consequently rendering evidence collected or sentences issued of insufficient international legal standard.

We expect States Parties to increase the Court’s capacity by providing adequate resources in the Court’s regular budget – resources sufficient to respond to all situations under preliminary examination or investigation. We expect more engagement of States Parties on ensuring universality of the Rome Statute. States Parties, allies of Ukraine, particularly the EU and the EU States must make it a priority in the list of reforms Ukraine is required to implement to accede the EU. 

ACJPS: We welcome the steps that have been taken by the Prosecutor to start investigating new crimes happening beyond the Darfur situation. But however, we discovered that there are several obstacles even for the OTP themselves to access the country while the Sudanese armed forces have the power and they reject any collaboration with the ICC. The OTP has been able to visit neighbouring countries, including Internally Displaced Persons (IDP) camps in Chad but there are a number of steps that need to be taken to do more. A few months after the ASP, I can’t say that the Court has achieved much. They are trying but still very little is being done.

4. Other than the ICC, what other avenues are you looking at in seeking accountability and supporting victims' access to justice?

LCW: Considering the shortcomings of Libya’s judiciary and the limited effectiveness of the ICC in Libya, our options are severely restricted. International litigation or universal jurisdiction appears as a viable alternative, albeit a challenging one, given the lack of expertise, resources, and capabilities within Libyan rights organisations. Simultaneously, we advocate for exerting pressure to establish an independent international commission of inquiry. Such an entity could significantly contribute to accountability and provide redress for victims.

ULAG: In addition to domestic avenues, we are pursuing a universal jurisdiction option in Germany, the UN Human Rights Committee, and we are engaging with the Commission of Inquiry and the European Court of Human Rights. Due to very limited capacity of the domestic legal system to ensure effective justice and accountability for the victims, we have been advocating for the establishment of a hybrid accountability mechanism for Ukraine to complement the work of the ICC in a more effective and efficient manner, similar to the model of the Central African Republic’s Special Criminal Court.

ACJPS: For the victims, they have lost all hope in seeing justice and accountability in the national justice system. The justice system in the country has totally collapsed, especially after 15 April 2023. There is no police and no courts in most parts of the country. No ability and even willingness, from both parties of the conflict, to prosecute those involved in current or previous crimes. In such a case, the only option is international mechanisms, despite them taking so much longer than they should. Another possible option for Sudanese survivors for justice is the African Court but Sudan is not party to this court, and there is limited capacity here.  Another option is that we are starting to deal with the African Commission for Human and Peoples’ Rights. Even though they don’t have an enforcement mechanism, we have started to submit communications before the Commission to at least address issues such as impunity and law reform. Other than this, the mechanisms are limited.

Background

This interview is part of the third issue of the Libya Accountability Updates. This is a quarterly look at the accountability situation in Libya, brought by Lawyers for Justice in Libya (LFJL).

In this third edition, the Libya Accountability Updates provides information on violations documented in Libya between October 2023 - January 2024 and reflects on last year’s Assembly of States Parties (ASP) alongside civil society from Libya, Ukraine and Sudan. To contribute to future editions of this update, please contact LFJL at: accountability@libyanjustice.org.

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See here for Issue 1 and Issue 2.