United Nations Security Council diplomats vote on a resolution during a meeting on Libya at U.N. headquarters in New York on February 26, 2011.

© 2011 Reuters

(New York) –Members of the United Nations Security Council should press for the arrest and surrender to the International Criminal Court (ICC) of Saif al-Islam Gaddafi and Abdullah Sanussi by Libya or any state to which the two men might have fled, Human Rights Watch said today. On November 2, 2011, the ICC prosecutor will brief the Security Council on his Libya investigation.

Saif al-Islam Gaddafi and Sanussi, who remain at large, are subject to ICC arrest warrants for crimes against humanity in an investigation authorized by UN Security Council Resolution 1970. Because the ICC has no police force of its own, it depends on national authorities to make arrests on its behalf. The unanimous Security Council resolution requires the Libyan authorities to cooperate fully with the court. States parties to the ICC also have a legal obligation to cooperate, including the arrest and surrender of suspects to the court. The Security Council resolution also urges all states and international and regional organizations to cooperate fully with the court and prosecutor.

“The Security Council made the court’s investigation of atrocities in Libya possible,” said Richard Dicker, international justice director at Human Rights Watch. “Now it needs to reaffirm its commitment to accountability and ensure that the suspects are brought to the dock to face fair trial in The Hague.”

The briefing to the council is expected to provide an overview of the investigative activities of the prosecutor’s office to date. The ICC prosecutor has indicated that the focus of his current investigation in Libya relates to the 15-day period following the start of anti-government protests on February 15. He has suggested that he may open a second investigation later, relating to the subsequent armed conflict.

On March 3, 2011, the ICC opened an investigation into serious crimes committed in Libya since February 15. The UN Security Council had referred the situation there to the ICC on February 26. Under the Rome Statute, the ICC’s founding treaty, the Security Council can refer a situation in any country to the ICC prosecutor if it determines the situation to be a threat to the maintenance of international peace and security.

On June 27, the ICC judges authorized three arrest warrants, for Muammar Gaddafi, his son Saif al-Islam Gaddafi, and Sanussi, Libya’s former intelligence chief. The three were wanted on charges of crimes against humanity for their roles in attacks on civilians, including peaceful demonstrators, in Tripoli, Benghazi, Misrata, and other locations in Libya. Muammar Gaddafi was killed on October 20, apparently after being taken into custody by anti-Gaddafi forces in his hometown, Sirte. Libya’s National Transitional Council (NTC) has said it will create a commission of inquiry to examine the circumstances of Gaddafi’s death.

Saif al-Islam Gaddafi’s location is unknown. Unconfirmed media reports say he may be hiding near the Libyan border with Niger or Algeria. Sanussi is reported by unverified press accounts to have taken refuge in Mali.

The ICC prosecutor said on October 28 that his office was in contact with Saif al-Islam Gaddafi via intermediaries regarding his possible surrender to the court. The prosecutor also said he had information that mercenaries were trying to smuggle Saif al-Islam Gaddafi to another African state to avoid prosecution.

In September, Niger said it would respect its commitments to the ICC, citing its obligations as a signatory to the court’s statute. Authorities in Mali have similarly indicated that they would abide by their obligations as a state party to the ICC. The UN Security Council should urge both governments to stand by these declarations and surrender the ICC suspects to the court if they are apprehended in those countries, Human Rights Watch said.

Some NTC representatives have indicated their interest in prosecuting Saif al-Islam Gaddafi and Sanussi domestically in Libya. If either one is taken into NTC custody, members of the UN Security Council should urge the Libyan authorities to hand them over promptly to the ICC for fair trial, Human Rights Watch said. This is consistent with Security Council Resolution 1970, which requires full cooperation with the court.

“The NTC is legally bound to cooperate with the ICC, and promised to do so in a letter to the court back in April,” Dicker said. “Unilateral action to prevent handing over the accused would be a serious misstep and a violation of Libya’s obligations.”

Surrendering the suspects to the ICC would not prevent the new Libyan authorities from preparing their own cases against the two men and others concerning events since February 15 or before. Should the Libyan authorities wish to try the suspects domestically for crimes alleged in the ICC’s arrest warrants, they can challenge the court’s jurisdiction over the cases with a legal submission. To prevail, the Libyan authorities would have to show that they are genuinely able and willing to prosecute the cases in fair and credible proceedings. Demonstrating an ability to prosecute the two ICC suspectsfairly would likely require swift and substantial reform of the judicial system, Human Rights Watch said.

For the ICC to find that the cases are inadmissible before the court, and that they must be returned to Libya for prosecution, the Libyan proceedings would have to encompass both the people and the conduct that are the subject of the cases before the ICC. Ultimately, it is up to the ICC judges to determine whether existing national proceedings would trump the court’s ability to hear these cases. Because the ICC is a judicial institution, its proceedings must run their independent course.

Human Rights Watch urged the ICC prosecutor to continue to investigate serious crimes that may have been committed by all parties in Libya, including war crimes committed during the armed conflict. Security Council Resolution 1970 gives the ICC ongoing jurisdiction over war crimes and crimes against humanity committed on the territory of Libya since February 15.

In September and October, Human Rights Watch documented human rights abuses by NTC forces, including mistreatment in detention in Tripoli and Misrata, attacks against the residents of Tawergha, and the apparent executions of 53 suspected Gaddafi supporters by anti-Gaddafi fighters.

Violence of any kind, and in particular murder, inflicted during a non-international armed conflict on combatants who have laid down their arms or are in detention, is a war crime under the Rome Statute of the ICC. Under the court’s treaty, criminal liability applies both to those who physically commit the crimes and to senior officials, including those who give the orders and those in a position of command who should have been aware of the abuses but failed to prevent them or to report or prosecute those responsible.

“Full justice in Libya should include investigating possible crimes committed by all parties,” Dicker said. “While the conflict in Libya may be ending, the prosecutor’s work is just beginning. We look to him to carry out his mandate impartially so that those responsible for grave abuses will face justice.”