Violence has been escalating in Libya since early April 2019, following the advance on Tripoli by General Khalifa Haftar, commander of the self-proclaimed Libyan National Army. Since then, various Tripoli-based armed groups have targeted civilian areas in Tripoli and its surroundings, including detention centres where asylum-seekers and refugees are being held indefinitely.
On 18 April 2019, the Head of the Presidential Council of the GNA, Fayez al-Sarraj, called on the ICC and the UN Security Council to investigate the crimes and violations committed by Haftar’s forces and to bring them to justice. While Libya’s demonstrated commitment to international justice is a welcomed step towards accountability, it is essential that any established body, including an international independent investigative mechanism, works towards identifying the perpetrators of war crimes and human rights violations from all sides of the conflict.
While we welcome the ICC Prosecutor’s recent statement reiterating her commitment to investigate the crimes committed, it is crucial that the ICC and the international community act on this commitment to pursue justice and accountability in Libya. “With very few avenues for justice available to Libya, and as a key precursor to peace, it becomes even more crucial that states provide the needed support to the ICC”, said Marwa Mohamed, Head of Advocacy and Outreach at LFJL. “Also seeing that accountability is the only way forward to the restoration of the rule of law in Libya, we want to remind states that there are alternative avenues for justice available to them. These channels include the establishment of an investigative mechanism that can identify the perpetrators of the crimes committed as well as the use of their own domestic jurisdictions for individual accountability” .
“The Libya situation before the ICC is an example of the Prosecutor’s readiness to act in the face of an increasingly volatile situation” , said Amal Nassar, FIDH Permanent Representative before the ICC. “With unexecuted arrest warrants against three alleged perpetrators of war crimes and/or crimes against humanity, some dating back to 2011, and the limited resources for the Court to carry out further investigative activities, it is now up to States and the UNSC to take this situation a step forward to justice and prevent the commission of further crimes by equipping the Court with support and cooperation.”
To date, there have been a total of 278 casualties, 1,332 injuries and over 40,000 individuals have been displaced internally since the conflict erupted in early April. Civilian targeting constitutes a war crime and a violation of the principle of distinction between combatants and non-combatants under international humanitarian law. If done in widespread or systematic manner and in furtherance of a policy, crimes against civilians may also amount to crimes against humanity.
The ongoing conflict in Tripoli demonstrates the consequences of the breakdown of the rule of law and, in turn, the immediate need for an international mechanism that not only aims to bring accountability and justice for the crimes committed in Libya since the uprising in 2011, but also to serve as a deterrent to future crimes. The absence of a domestic judiciary that is able to carry out criminal proceedings is a result of intimidation and threats carried out by armed groups and militias on judges, lawyers and prosecutors.
Consequently, there remains an urgent need for an effective international justice system that can substitute for the weakened courts, restore the rule of law, and ultimately end the environment of impunity that prevails in Libya. It is this blatant disrespect for human rights and the civilian population, coupled with the absence of justice, that has provided the space for ongoing crimes to continue.
In 2011, the UN Security Council, in an impressive response, took swift action to deter future atrocities including by referring the Libya situation to the ICC. This sort of commitment to the protection of civilians and their fundamental rights has not been replicated in the years since.
The ICC’s jurisdiction in Libya still stands and has been affirmed, over crimes by Al-Werfalli, an ally of General Haftar, and potentially over crimes committed against migrants. However, in order for it to fulfil its mandate, States must demonstrate their commitment to the Court and international justice by providing the necessary support to help facilitate the work of the ICC in Libya.
Additionally, the UN Security Council should play a more effective role in facilitating the situation it referred to the Court, and the Prosecutor submitted various suggestions on steps the Council could take to do so.