Fatou Bensouda, Prosecutor of the International Criminal Court, addresses the Security Council on the situation in Libya on November 11, 2014.

(New York) – United Nations Security Council members should use the International Criminal Court (ICC) prosecutor’s briefing on her Libya investigation on May 12, 2015, to speak out strongly against the state of impunity in the country, Human Rights Watch said today. In the face of mounting atrocities, the ICC prosecutor should urgently exercise the mandate given unanimously to her by the Security Council to pursue an investigation into ongoing crimes.

“The Security Council is watching Libya descend into chaos as horrendous crimes multiply,” said Richard Dicker, international justice director at Human Rights Watch. “Given the Libyan authorities’ inability to rein in these abuses, much less prosecute those responsible, it’s time for the ICC prosecutor to expand her investigations.”

The briefing comes as armed conflicts combined with the collapse of a central government authority have eliminated any semblance of law and order in many parts of the country. Unchecked violence stemming from the hostilities has killed hundreds of people, including civilians, displaced hundreds of thousands from their homes, contributed to a rise in migrant boats departing Libya for Europe, damaged medical facilities, and destroyed vital civilian infrastructure, including Tripoli’s main airport.

In the face of rising instability, the UN has been facilitating a dialogue aimed at creating a national unity government and ending the armed hostilities. In October 2014, Human Rights Watch called on Bernardino Leon, the UN special representative charged with brokering talks between the various factions, to ensure that accountability for the most serious crimes is an integral part of the process. To be durable, any final agreement on the military and political crisis in Libya must adequately address the need for justice for grave abuses, Human Rights Watch said.

Over the last year, armed groups have attacked civilians and civilian property, with violations in some cases that amount to war crimes. 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.

Libyan authorities have failed to investigate or prosecute those responsible for grave violations. Libya’s institutions, particularly its judiciary, are in a state of near-collapse, and many courts have suspended their activities due to targeting of judges and prosecutors and the general deterioration in security. Inaction by authorities in Libya to address escalating crimes has contributed to a culture of impunity and has helped set the stage for the lawlessness in Libya today, Human Rights Watch said.

In a November 5, 2014 letter, Human Rights Watch urged the ICC prosecutor, Fatou Bensouda, to consider serious ongoing violations in Libya beyond the scope of her current investigation, which is limited to cases from 2011 involving officials of the former Gaddafi government. Bensouda, who has jurisdiction over war crimes, crimes against humanity, and genocide committed in Libya since February 15, 2011, has not pursued a further investigation, citing instability in Libya and lack of resources as obstacles to more probes in the country by her office.

The ICC’s Office of the Prosecutor is investigating cases in eight countries but has struggled with its existing caseload and calls to act in many other situations, Human Rights Watch said.

“Having voted unanimously to give the ICC a mandate in Libya, the Security Council should now step up to ensure the court has what it needs to look at ongoing grave abuses in the country,” Dicker said. “Focusing on Gaddafi-era officials is no longer sufficient.”

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

Libya has yet to hand over to the court Saif al-Islam Gaddafi despite a Security Council resolution requiring cooperation with the court and an outstanding ICC request to hand him over. Saif al-Islam Gaddafi is wanted by the ICC for crimes against humanity for his alleged role in attacks on civilians, including peaceful demonstrators, during the country’s 2011 uprising.

In December 2014, following over one year of inaction to surrender Gaddafi, ICC judges held that Libya had failed to cooperate with the court and forwarded their finding to the Security Council for follow-up. The Security Council has a range of options open to it to encourage Libyan cooperation including resolutions, sanctions, and presidential statements. During the May 12 briefing with the ICC prosecutor, Security Council members should stress Libya’s outstanding obligation to transfer Gaddafi to The Hague and agree to steps to facilitate its cooperation with the court, Human Rights Watch said.

On July 24, ICC judges upheld an earlier decision approving a bid by Libya to prosecute Sanussi domestically. Sanussi, together with Saif al-Islam Gaddafi and 35 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 2014 revealed that Libya had failed to grant Sanussi, Saif al-Islam Gaddafi, and co-defendants basic due process rights. In February 2015, a UN human rights report indicated concern that the trial risked falling short of basic international standards.

In its November letter, Human Rights Watch urged the ICC prosecutor to consider asking ICC judges to revisit, based on new facts, their ruling approving the domestic prosecution of Sanussi. In her last briefing to the Security Council in November 2014, Bensouda said her office was monitoring developments in the trial against Sanussi in Libya, and would assess whether or not to request review of the ICC decision based on the information it collected. As far as Human Rights Watch has been able to determine, Sanussi remains without access to meaningful legal representation.

“It’s past time for the Security Council to understand that justice for current abuses in Libya will be essential for a durable peace,” Dicker said. “Silence by Security Council members on the impunity plaguing Libya today would be an affront to thousands of victims.”