From Lawyers for Justice in Libya (LFJL):
On 2 November 2018, the Prosecutor of the International Criminal Court (ICC) stated that efforts to hold Saif Gaddafi (Gaddafi), Mahmoud Al-Werfalli (Al-Werfalli) and Al-Tuhamy Khaled (Al-Tuhamy) to account will be “rendered ineffective” unless the international community takes “all necessary steps to effect the arrest and surrender of these fugitives to the ICC.”
Lawyers for Justice in Libya (LFJL) supports this call to action. If this does not happen, the culture of impunity in Libya will persist, leading to greater suffering and instability.
In February 2011, the United Nations Security Council (UNSC) referred the situation in Libya to the ICC. The first warrant of arrest was issued in June 2011 against, among others, Gaddafi. A second arrest warrant was issued against Al-Tuhamy, initially under seal in April 2013 and then made public in April 2017.
The latest public arrest warrants were issued against Al-Werfalli: one in January 2018 and another in July 2018.
In her statement to the UNSC, Fatou Bensouda observed with regret that not one of these suspects has been surrendered to the ICC. Ongoing investigations, she said, indicated that Gaddafi and Al-Werfalli are in Libya while Al-Tuhamy is elsewhere.
Ms Bensouda reminded the UNSC that, following its referral of the situation in Libya to the ICC, it had an ongoing responsibility to support efforts to effect the arrest and surrender of the three suspects. States Parties and non-States Parties also had a responsibility to take action.
Unless ICC suspects such as Gaddafi, Al-Werfalli and Al-Tuhamy are arrested and transferred to the ICC, there can be no justice for their victims. LFJL therefore urges the international community to take all possible steps to assist the ICC to achieve accountability for some of the worst crimes committed in Libya.
LFJL also noted with interest other observations made by the Prosecutor. She stated that her Office continued to regard the case against Gaddafi as admissible, despite Gaddafi’s 5 June 2018 admissibility challenge. The Prosecutor referred to LFJL’s amicus curiae observations on the importance of continuing the investigations into Gaddafi’s case.
The Prosecutor further remarked that the Office of the Prosecutor of the ICC (OTP) is extending its accountability efforts in Libya. One area of focus will be armed groups who commit serious human rights abuses and use violence to control State institutions. Another area of focus will be serious crimes committed against migrants transiting through Libya, including tackling the business model supporting this criminal activity.
LFJL welcomes these statements and the OTP’s efforts to tackle impunity in Libya. LFJL reminds the Libyan State and the international community of the necessity to hold armed groups who have de facto power over territory and people in Libya accountable.
LFJL also supports the type of multi-layered, multi-party approach encouraged by Ms Bensouda as the most effective way to tackle the grave crimes being committed against migrants.
LFJL urges the OTP to continue to prioritise the situation in Libya. LFJL further calls on states hosting Al-Tuhamy, indicted of four crimes against humanity and three war crimes, to fulfill their duty of handover by securing arrest warrants against him.
Finally, LFJL requests the Libyan state, bound by the ICC’s Mandate, to actively facilitate the surrender of Gaddafi and Al-Werfalli to the ICC.