By Janet Sankale
and Mary Wasike
mary.wasike@jfjustice.net
International Criminal Court Prosecutor Karim Khan has petitioned the Security Council to ask the United Nations to fund his office to enable it to deal with the Libya and Sudan situations, which the council referred to the court.
He said the court needs resources to take care of the costs and expenditures involved in investigating and prosecuting the cases arising from the two referrals.
He cited Article 115 (b) of the Rome Statute, which he said allows the UN to provide funds to the court with the approval of the General Assembly.
“I would ask that you give very anxious consideration to the possibility of requesting the UN to fund the court and my office, at least in relation to the two matters that you have referred to the court… this is completely consistent under the Rome Stature principles, but this is consistent with the Charter principles and it is consistent with your own decision to refer this matter of Libya to my office,” Khan said.
The Prosecutor undertook to ensure that the money was well spent as such funding would be what he referred to as “a statement of intent for a new dawn, a new relationship of cooperation with the Office of the Prosecutor”.
He was speaking during the United Nations Security Council (UNSC) 8911th meeting on November 23, 2021, in New York, when he presented his report on the situation in Libya. It was the court’s 22nd report to the council, but Khan’s first since he became Prosecutor.
He said that although insecurity and the Covid-19 pandemic had greatly hindered the court’s investigation in Libya as members of his office had not been able to physically visit the country, he hoped to travel there early next year to meet with state officials and other stakeholders.
The Prosecutor praised the progress that has been made so far in the investigations despite the difficulties and challenges of the security situation in Libya. He said interviews have taken place, missions to different countries have been conducted by members of the OTP, various documents and evidentiary material have been collected, and there has been dialogue with different domestic law enforcement entities.
However, he acknowledged that more should have been done since the Security Council referred the situation to the court in 2011, especially since there have continued to arise allegations of more abuses against women, children, and men from Libya over the years. He said this required new focus from his office and more engagement and support from the Security Council.
 He said his office continues to gather evidence related to alleged crimes committed during the April 2019 attack on Tripoli. It has also collected credible information about past and ongoing serious crimes allegedly committed in official and unofficial detention facilities, including unlawful detention, murder, torture, rape, and other forms of sexual and gender-based violence.
He expressed concern about the question of migrants in Libya, and cited recent allegations of raids on migrant settlements in Tripoli, excessive use of force, and arbitrary detention. He called upon the Libyan authorities to establish prompt, thorough, and impartial investigations into the allegations.
Khan condemned acts of migrant smuggling and human trafficking to and from Libya, through Libyan territory, and through the coast of Libya, and called for accountability. The OTP, in one of what the Prosecutor described as “imaginative and nuanced responses” has partnered with a joint team comprising the European Union Agency for Law Enforcement Cooperation (Europol), Italy, the United Kingdom, and the Kingdom of the Netherlands to combine efforts, share knowledge, and try to do something about the situation. He said the efforts had led to the arrest and prosecution in the Netherlands of a suspect.
He said the court was committed to looking at new ways that will enable it to embrace not just the European Union Agency for Criminal Justice Cooperation (Eurojust) or Europol, but other regional partners, from other parts of the world, to lend to national accountability mechanisms, as allowed by the Statute.
Calling attention to the principle of complementarity on the issue of jurisdiction, he pledged to work with states and encourage them to step up as the Rome Statute makes it clear that national authorities have primacy.
“National authorities have the fundamental right and also the essential responsibility to make sure that these types of crimes – declared illegal as far back as the Nuremberg Principles in which all members, all permanent members of the council joined – are addressed; this presents an opportunity to move things forward,” he said.
On February 26, 2011, the UNSC unanimously referred the situation in Libya since February 15, 2011 to the ICC in Resolution 1970 (2011). Libya is not a state party to the Rome Statute.
In referring the situation, the council said it was “condemning the violence and use of force against civilians, deploring the gross and systematic violation of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government”, which was then under Muammar Gaddafi.
The ICC has jurisdiction to investigate crimes that occurred in the territory of Libya from February 15, 2011.
ICC Pre-Trial Chamber I found there are reasonable grounds to believe that an armed conflict not of an international character had been ongoing on the territory of Libya, from at least early March 2011, between governmental forces and different organised armed groups, or among various such armed groups.
The investigation, which opened in March 2011, has thus far produced three cases, originally against five suspects, and has involved charges that include war crimes and crimes against humanity.
On November 22, 2011, an arrest warrant against Muammar Gaddafi was withdrawn after his death. Proceedings against Abdullah Al-Senussi before the ICC came to an end on July 24, 2014, when the Appeals Chamber confirmed a decision of Pre-Trial Chamber I declaring the case inadmissible before the ICC.
The situation in Libya was the second to be referred to the ICC by the United Nations Security Council, and the second ICC investigation on the territory of a non-state party to the Rome Statute (Darfur, Sudan, was the first one).
The ICC is still searching for Saif Al-Islam Gaddafi, Al-Tuhamy Mohamed Khaled, and Mahmoud Mustafa Busayf Al-Werfalli, who are still at large. In his address to the Security Council, Prosecutor Khan said his office has taken steps to further confirm or try to further verify reports of the deaths of Al-Werfalli and Khaled. He asked the Libyan authorities and council members to help verify the exact status of the two so that the judges of the ICC can be reliably informed.
He explained that he had recused himself from any case or situation where there may be an appearance of lack of impartiality. This includes the case of Saif Al-Islam Gaddafi, whom he has in the past represented. He further stated that the cases will be handled by his deputy, James Stewart.
