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(New York) – Members of the United Nations Security Council should send a strong message to Libya to cooperate with the International Criminal Court (ICC), Human Rights Watch said today. The Council should also press the recently appointed Libyan authorities on accountability for serious and ongoing crimes.The new ICC prosecutor, Fatou Bensouda, will brief the Security Council on her Libya investigation on November 7, 2012.

Libya has yet to hand over to the court ICC suspect Abdullah Sanussi despite a Security Council mandate to cooperate with the court and an outstanding ICC request to hand him over. The ICC is considering a challenge to the court’s jurisdiction to try the second ICC suspect, Saif al-Islam Gaddafi. Libyan authorities have also been unable to rein in anti-Gaddafi militias that have committed abuses and have failed to hold those responsible to account. Moreover, a new law openly seeks to shield one side of the political and military divide from justice.

“The Security Council gave the ICC jurisdiction to investigate and ordered Libya to cooperate,” said Richard Dicker, International Justice director at Human Rights Watch. “Council members should make clear that Tripoli may not ignore its legal obligations, and that it's time to make good on Resolution 1970.”

Security Council Resolution 1970, which referred Libya to the ICC, requires the Libyan authorities to cooperate fully with the court – a binding requirement under the UN Charter, even though Libya is not a party to the treaty that established the court. This cooperation includes abiding by the court’s decisions and requests, as well as respecting the immunity of court officials, as stipulated in article 48 of the court’s treaty.

In a letter sent to the Security Council on June 20, 2012, the Libyan National Transitional Council (NTC), then the ruling authority in Tripoli, reiterated its commitment to cooperate with the ICC. The NTC had previously pledged its cooperation in a November 2011 letter to the ICC judges and an April 2011 letter to the ICC prosecutor. The Security Council should urge the newly formed Libyan government to promise to cooperate and to publicly support the court’s work, Human Rights Watch said.

The ICC prosecutor’s briefing comes one month after the court held hearings in The Hague on a challenge by Libya to the admissibility of the case against Muammar Gaddafi’s son Saif al-Islam, and two months after Mauritania extradited Abdullah Sanussi, the former intelligence chief who is the subject of the other ICC warrant, to Libya.

Following an application by the ICC prosecutor, on June 27, 2011, the court’s judges granted arrest warrants for Muammar and Saif al-Islam Gaddafi, and Sanussi. 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. Consistent with the terms of Resolution 1970, the ICC warrants apply only to events in Libya since February 15, 2011.

The ICC’s proceeding against Muammar Gaddafi was terminated following his death on October 20, 2011. Anti-Gaddafi forces apprehended Saif al-Islam Gaddafi on November 19, 2011, in southern Libya and are holding him in the town of Zintan. On May 1, 2012, Libya challenged the admissibility of the case against him and was granted permission to postpone his surrender to the ICC, pending a decision by the court's judges. Government officials say they intend to try Saif al-Islam Gaddafi in Libya for his role during the government’s 2011 crackdown and prior alleged corruption. Under the ICC treaty, the court’s prosecutor has suspended her investigation into Gaddafi pending a decision on the admissibility challenge.

Because the ICC is a judicial institution, its proceedings must run their independent course. The Security Council should ensure that Libya abides fully with the judges’ decision on the challenge no matter the outcome, Human Rights Watch said.

Sanussi was apprehended on March 17, 2012, in Mauritania, and extradited on September 5 to Libya, where he remains in government custody in Tripoli. Although a request for his arrest and surrender to the ICC was transmitted to Libyan authorities in July 2011, Libya has not handed him over to the court, in breach of its obligations under Resolution 1970. NTC officials have insisted that he too will be tried in Libya.

The scope of Libya’s pending admissibility challenge does not cover the Sanussi case, and the ICC prosecutor’s investigations into his activities are therefore continuing. The Libyan authorities also have the option of challenging the ICC’s jurisdiction over his case if they want to try him domestically for crimes in the ICC’s arrest warrant. It would then be up to the ICC judges to determine whether national proceedings meet the criteria for a successful admissibility challenge. Adhering to the court’s procedures is a key component of Libya’s cooperation with the ICC, Human Rights Watch said.

“In the absence of a challenge to the ICC’s jurisdiction, the Security Council should insist that Libya follow its resolution and surrender Sanussi to the court,” Dicker said.

The ICC prosecutor’s briefing to the Security Council is expected to provide an overview of the investigative activities of her office to date. In May, the prosecutor at the time took note of allegations of crimes committed by rebel forces and militia and stated the intention to continue evaluating authorities’ efforts to address all crimes in Libya.

A UN Commission of Inquiry reported in March that grave violations were committed by anti-Gaddafi forces during the armed conflict and in the period since. But a law on special procedures enacted by the NTC in May grants a blanket amnesty to those who committed crimes if their actions were aimed at “promoting or protecting the revolution” against Muammar Gaddafi.

The UN report highlighted the plight of the people from Tawergha, perceived as Gaddafi supporters, who have been killed, arbitrarily arrested, and tortured by anti-Gaddafi fighters from Misrata. The report said that the widespread and systematic nature of these abuses indicates that crimes against humanity may have been committed.

Human Rights Watch has similarly documented killings, torture, and forced displacement by militias in Libya and has reminded the local authorities of the ICC’s continuing jurisdiction over grave abuses. In a May letter, Human Rights Watch also called on the ICC prosecutor to examine the crimes currently exempted from prosecution in Libya, and, if appropriate, to investigate them.

“Council members should signal the importance of impartial justice and condemn Libya’s attempts to shield anti-Gaddafi militia leaders and others from accountability,” Dicker said. “Libyan authorities don’t seem willing to investigate these crimes, and silence by the Security Council on this grant of impunity would be an affront to thousands of victims.”

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