Libya - International Criminal Court
UNITED NATIONS SECURITY COUNCIL
Statement by HE Ms Philippa King, Ambassador and Deputy Permanent Representative of Australia to the United Nations
I would like to thank the Prosecutor, Mrs Bensouda, for her briefing on the work of her Office in relation to Libya.
More than two years into its transition process, Libya has made real and substantial progress. But serious political and security challenges remain. Central to Libya completing a successful transition to democracy is the establishment of the rule of law. We recognise that the challenging security situation in Libya makes the work of all accountability actors more difficult. It is vital that nascent legal institutions be strengthened, and that accountability for serious crimes is pursued. The International Criminal Court is playing an important role in this endeavour. The Council’s referral of the situation in Libya to the ICC has not only demonstrated a determination that those responsible for the most serious crimes will be held accountable – it has been an important catalyst for the reform of Libya’s judicial system.
We commend the Libyan Government for the constructive manner in which it has continued to engage with the ICC. In particular, we acknowledge the manner in which Libya has invoked its rights by challenging the ICC’s jurisdiction regarding the cases against Saif Al-Islam Gaddafi and Abdullah Al‑Senussi, in compliance with the Rome Statute. We also welcome the close consultation that is taking place between Libya and the Office of the Prosecutor (OTP) on these matters. These actions reflect the principle of complementarity – a central element of the Rome Statute – working in practice. Indeed, as Mrs Bensouda has said, Libya – through its active involvement in relevant proceedings before the Court – is setting an example of how States can invoke complementarity to protect their sovereign right to investigate and prosecute their nationals.
We note the Pre-Trial Chamber decision that the ICC case against Mr Al-Senussi is inadmissible on the basis that Libya itself is willing and able to exercise jurisdiction over him. While this decision is the subject of an appeal, it is important to recognise that the Pre-Trial Chamber’s decision reflects the significant steps taken by Libya to re-establish the rule of law. And we note Mrs Bensouda’s advice that her office has concluded there is no legal basis for appeal of the Pre-Trial Chamber’s decision.
Libya’s adoption of the Transitional Justice Law and the establishment of the Fact Finding and Reconciliation Commission are important and welcome steps in re‑establishing the rule of law. We urge Libya to use these and other mechanisms to ensure that those most responsible for the commission of serious international crimes are brought to justice, regardless of whether they fought in defence of the Gaddafi regime or were among those who raised arms to establish a new Libya. In this context, we welcome the conclusion of the memorandum of understanding between the Office of the Prosecutor and the Government of Libya on burden-sharing in relation to future investigations and prosecutions.
While we recognise significant progress in some areas, we remain concerned at the distinct lack of progress in addressing the situation of conflict-related detainees. Reports that many such detainees continue to be held by armed brigades without due process, and have been subject to torture and other ill treatment, are of grave concern. We urge Libya to ensure that detainees are transferred to effective State control in accordance with the recommendations of the UN Support Mission in Libya and the Office of the UN High Commissioner for Human Rights. We also urge Libya to ensure that those responsible for such mistreatment, or other crimes, such as enforced disappearances, are held to account.
While we commend the Libyan Government’s record of cooperation with the Court, it is essential that the Libyan Government cooperate with the Court in all matters, pursuant to its obligations under Resolutions 1970 (2011) and 2095 (2013). In particular, we note that Libya remains under an obligation to surrender Mr Gaddafi to the ICC, and we urge Libya to do so as soon as possible. We note with particular concern advice from Mr Gaddafi’s legal counsel that his client is being detained in isolation, denied visits from family and friends and denied access to legal advisers. This cannot continue.
We note the Prosecutor’s advice that the focus of her ongoing investigations is on persons outside of Libya. In this context, Australia calls on States, particularly Libya’s neighbours, to cooperate with the Court to ensure that those most responsible for the most serious international crimes committed in Libya are brought to justice.
It is also essential that this Council continues to offer its support not only for the efforts of Libya, but also the ongoing investigations of the Prosecutor. The active and ongoing support of the Council is essential to ensure that the objectives of the Council’s referrals to the ICC – namely that justice is delivered and peace and security is maintained – are met.