Prosecutor of the International Criminal Court (ICC), Fatou Bensouda briefs the UN Security Council on the situation in Libya on May 13, 2014.

(New York) – United Nations Security Council members should use the International Criminal Court (ICC) prosecutor’s briefing on her Libya investigation on November 11, 2014, to express concern about the country’s deteriorating situation, Human Rights Watch said today. Security Council members should underline the ICC’s ongoing jurisdiction to investigate grave abuses being committed by all sides.

The briefing comes amid soaring insecurity in Libya, and as concerned countries pursue a political settlement and cessation of violence between the parties to the armed conflicts in the eastern and western parts of the country. Security Council members should send a strong message to the Libyan authorities to cooperate with the court, and in particular to comply with the court’s order to surrender Saif al-Islam Gaddafi, Muammar Gaddafi’s son, to The Hague.

“Security Council members should make clear that the state of impunity in Libya needs to end,” said Richard Dicker, international justice director at Human Rights Watch. “Turning a blind eye to justice has been a main driver for the country’s current instability.”

Accountability for grave abuses should remain a key component for any durable solution of the political dialogue in Libya, Human Rights Watch said. Human Rights Watch research in many countries has shown that the failure to hold those responsible for the most serious international crimes to account can fuel future abuses.

Since May, violent clashes between rival armed groups have intensified and developed into armed conflicts across Libya. Armed groups have attacked civilians and civilian property, with violations in some cases that amount to war crimes. Politically motivated assassinations may amount to crimes against humanity. Human Rights Watch has also documented other serious violations of international law since 2011, including arbitrary detentions, torture, forced displacement, and unlawful killings. Many of these violations are sufficiently organized and widespread to amount to crimes against humanity.

The ICC prosecutor’s briefing is expected to provide an updated overview of the Libya investigation. The prosecutor’s first case implicated Muammar Gaddafi (who has since been killed), Saif al-Islam Gaddafi, and Abdullah Sanussi, the Gaddafi-era intelligence chief.  

In her last briefing, the prosecutor reported that her office was continuing its investigations into a second case and was also collecting evidence against other possible suspects, with a focus in particular on pro-Gaddafi officials outside Libya.

In a November 5 letter, Human Rights Watch urged the prosecutor to consider additional cases addressing serious ongoing violations by other actors in Libya. The ICC has jurisdiction over war crimes, crimes against humanity, and genocide committed in Libya since February 15, 2011. Members of the Security Council, who unanimously gave the ICC authority to investigate in Libya, have a special responsibility to extend their full support to facilitate the prosecutor’s continued work there, Human Rights Watch said.

Libyan authorities have failed to conduct investigations or to prosecute those responsible for ongoing grave violations. Inaction domestically in the face of mounting crimes has contributed to a culture of impunity and has helped set the stage for the militia lawlessness in Libya today, Human Rights Watch said.

In October, Human Rights Watch and eight other organizations called on the UN Human Rights Council to convene a special session on the situation in Libya with a view to establishing a Commission of Inquiry or a similar mechanism to investigate serious violations by all sides.  Security Council members should also consider ways to urgently examine the ongoing grave abuses being committed in Libya, Human Rights Watch said.

“Human Rights Watch has documented horrendous crimes in Libya since 2011, and those responsible should know that the ICC can hold them to account,” Dicker said. “Given the Libyan government’s inability to rein in abuses, much less prosecute those responsible, the ICC prosecutor still has vital role to play on behalf of victims in Libya, and shouldn’t limit its investigations to those associated with Gaddafi.”

Security Council Resolution 1970, which referred the situation in 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.

On May 21, ICC judges confirmed an earlier decision rejecting Libya’s bid to prosecute Saif-al-Islam Gaddafi in Tripoli. However, Libya has failed to turn Gaddafi over to the ICC, despite an outstanding obligation to surrender him to the court. On July 11, an ICC chamber noted that Libya’s obligation had been outstanding for over a year and indicated that the court may take further action to ensure Libya’s cooperation. Despite this, Libya has carried on with domestic proceedings against Gaddafi in contravention of its duty to turn him over to The Hague.

Article 87 of the ICC treaty permits the court to issue a finding of non-cooperation. Because the ICC has jurisdiction in Libya as a result of a Security Council referral, such a finding would be sent to the Security Council for follow-up. The Security Council then has a range of options, including resolutions, sanctions, and presidential statements. Human Rights Watch has repeatedly called on Libya to surrender Gaddafi to the ICC.

On July 24, ICC judges upheld an earlier decision approving a separate bid by Libya to prosecute Sanussi domestically. Sanussi, together with Saif al-Islam Gaddafi and others, is on trial in Libya for, among other charges, serious crimes related to his alleged role in trying to suppress the country’s 2011 uprising. A Human Rights Watch investigation conducted in January revealed that Libya had failed to grant Sanussi and co-defendants basic due process rights. In its November letter, Human Rights Watch urged the ICC prosecutor to consider asking ICC judges to revisit the Sanussi ruling based on new facts.

“The Security Council gave the ICC jurisdiction to investigate and ordered Libya to cooperate,” Dicker said. “Council members should make clear that Libya must comply with the Court’s orders or risk sanction.”