Wednesday, June 29, 2022

ICC Prosecutor outlines renewed approach to investigations in the Situation in Libya

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ICC Prosecutor, Karim A.A. Khan QC, outlines renewed approach to investigations in the Situation in Libya to the United Nations Security Council 

Firstly, thank you once again for the opportunity – for the second time – to brief you in relation to the Situation in Libya. I had the opportunity earlier this morning to sit down with the distinguished Permanent Representative of Libya to discuss matters arising from the Situation. In my last briefing, I set-out a hope and a plan that I would review comprehensively the evidence and the Libya Situation to give some greater clarity to the members of the Council, and try to work as effectively as possible to discharge the very serious and very necessary responsibilities that this Council placed on my Office in 2011 by way of Resolution 1970.  This, of course, is the 23rd report that the Office has presented to the Council.

I have to emphasize what is mentioned in the report and what I said on the first occasion: these situations referred by the Council cannot become never-ending stories. They need to move forward and we need to ensure justice. It may be the case that the old adage “justice delayed is justice denied” is not correct. Maybe justice delayed still can be arrived at. But certainly, victims and survivors have every right to see that their lives, their hopes and their suffering is looked at thoroughly, and if there’s criminal responsibility to be brought before an independent court. And it’s my view and with greatest respect that the new report be put forward is a good attempt to try to identify benchmarks and articulate benchmarks for the first time in an Office of the Prosecutor report in terms of timelines for certain action, so that we can also be held to account, and I can also make sure that we do better in terms of moving things forward.

The stock taking exercise has shown, of course, some significant progress has been made, and there’s a renewed investigative strategy that provides a framework. But the plan of renewed action, of a more dynamic, more impactful investigation is perhaps best articulated in some key principles. The first is prioritisation. I’ve said to this Council before that I will prioritise referrals made by the Security Council to my Office. That’s not an abstract principle, that requires greater resources, greater skills and greater urgency because of the responsibility that this august Body has for maintaining international peace and security. And that promise of greater prioritisation has been given effect to already in these last few months by additional resources and also additional staff.

At the same time, I’ve highlighted an increased need to focus on a number of areas and for the purposes of today’s briefing I’ll identify financial investigations and tracking in relation to Libya Situation and also focus on sexual and gender-based crimes and also crimes against and affecting children. The other aspect is an ever more acute realisation that harnessing technology is absolutely vital. The massive data sets that are the hallmark of the kind of crimes that are within the Court’s jurisdiction require us to utilise in an integrated fashion the latest technology that is available. Artificial intelligence, machine-learning tools, translation platforms that allow mass data to be effectively translated before a more cost-intensive exercise of human review is carried out. All of that will allow us to accelerate our action.

And I think it’s not an exaggeration to say that when we start seeing some of this, and the timelines are listed in the report, it will have the potential and I hope the effect, it will have a very profound effect on investigations. In very simple terms, the types of evidence – video, audio, statements, medical… the whole variety of electronic data –  it needs to be rendered more malleable, more accessible to investigators and analysts and then ultimately presented as necessary where relevant to a court of law.

ICC Prosecutor, Karim A.A. Khan QC, briefs the UN Security Council on the Situation in Libya pursuant to UNSCR 1970 (2011) on 28 April 2022 (photo credit: UN Photo/Mark Garten)

The second principle is empowering victims and witnesses. The Hague is distant from the majority of its situations, it’s distant from Libya and it’s blindingly obvious in my respectful view that arms-length investigations are not the most effective. We need to work shoulder to shoulder and hand in hand with victims and survivors in affected communities. And also we need to embrace and work wherever possible with States.

And I think once we work in that way, both with victims and survivors and the states, we’ll have a better compass, a more accurate compass, that will help us navigate a path towards the truth, separating truth from fiction. And actually finding out why did certain things happen and where necessary ensuring cases are brought that independent judges can establish, and linked to that is something that is critical and I hope that we will have the support of Libya as well. It’s something that I think is necessary for all of our situations is the field presence. We need to be more on the ground, learning, listening and being able to access the undercurrents of a situation so we’re not the least informed person or group in a situation. We need to be absolutely alive to the realities of the moment in which different narratives take place and we need to be able to separate those narratives effectively.

We’ve already identified some putative witnesses that we think would be accessible to the Office by way of using or having a closer field presence. Linked to that, the Registrar of the Court – we have an outstanding Registrar of the International Criminal Court – and we will partner with him and work in collaboration with him and his Office to devise a more effective outreach strategy because it’s critical that victims and survivors know what’s happening. Here we are some years from 2011, and I think collectively we can do a better job to communicate with those victims and survivors, to manage expectations, but also, within the confines of confidential criminal investigations improve communications and also here, from them regarding what their concerns are. Their views and concerns can be presented to the Court, but we also have a responsibility to listen more effectively.

For the victims and survivors, I think there’s a lot that could be said, but in this forum, if I may, Madam President, I’d like to take the opportunity for thanking them for their outstanding steadfastness and for their patience. I hope we will do better, I hope we will accelerate our work. But I think it is really outstanding, victims and survivors everywhere actually, that I’ve seen, not just in Libya, despite having lost almost everything, in many cases, they have this remarkable belief, sometimes in the face of what they see that justice is not going to be an illusion but can be rendered something that is effective and solid and meaningful to their lives.

The third pillar, actually, and quite obviously, is better close engagements with the Libyan authorities. And I’m trying to set out in the report and we also had very good discussions today with the Excellency, the Ambassador of Libya, how we can partner with Libya and improve our lines of communication. So it’s not a favour of the Prosecution. The clear foundation of the Rome Statute is built on complementarity, that justice is best done at home. And only when a state is unwilling or unable does the Court come into play. So I really want to look at ways in which we can assist technically and also improve communications regarding what is needed, what are the gaps to help national proceedings take the strain of responsibility ever more effectively. And wherever any national authority, any authority at all, is willing to step up, the Office should be very delighted and pleased to support that rather than cling to a particular case, and I look forward to moving and exploring those options.

But the corollary of that is also the case that if a situation or if a country is not willing or is not able, I can’t be derelict in my non-derogable obligations to act in accordance with the Rome Statute and, in that process, to investigate incriminating and exculpatory evidence equally. Further to that, I’m hoping in the next period to have both high level interactions with the Libyan authorities and also create a more systematic and structured approach to working level discussions between my Office and the Libyan authorities so that we can move things forward. And I hope a new Memorandum of Understanding could be devised over the next period. I’d hoped to go to Libya in this reporting period. But with a number of issues, schedules, logistics, but also the elections, I took advice and then it wasn’t possible, but I hope in this reporting period, I will be able to go to Libya and move things forward with their assistance more effectively.

We have already had discussions at a technical level regarding helping the Libyan authorities and also having the capacity in terms of forensics, in terms of mass graves and moving that forward. It was raised by the Ambassador, the Permanent Representative this morning and I also followed up on that and those discussions have had taken place. And also the assistance of the United Nations Mission in Libya (UNSMIL) is also extremely important. My Deputy has spoken in the last two weeks with the Secretary General Special Adviser on Libya, Stephanie Williams, and I think we will try to work respecting the different mandates with United Nations where possible and so we can do a better job.

We can’t obviously view the objectives of the ICC as bringing everything to The Hague. I’ve said repeatedly the ICC is a Court of last resort, that’s a common ground and The Hague should be a city of last resort. But we need to find more creative, imaginative and effective methods to get evidence to courtrooms wherever they are. For me it really doesn’t matter if there’s the ICC flag behind a judge or if it’s a domestic flag. In fact, very often the latter is preferable. I think this is part of what I’ve described as redefining success: It’s a way of us not being beneficiaries only of the information that we receive from States or that we collect on our own investigation. It’s a renewed impetus to try to receive evidence, use it for our own case, but also give it to national authorities to use, to assess and to narrow what is far too frequently an impunity gap.

I think we’ve already had some concrete examples of effectiveness in that regard, and I’ve mentioned in the last briefing in terms of the migration issue, the partnership with the Netherlands, the United Kingdom and Europol and Italy. The fact that the Dutch, the Kingdom of the Netherlands managed to charge and bring cases in terms of crimes linked to the migration issue. I think we need to look into the ways of widening that and feeding more information to national authorities. The idea somehow that the ICC is an apex criminal court is not a sound one. It is far better, in my view, to view it as a hub. And every national authority is a spoke in that system that allows the wheel of justice to move more effectively and overcome the bumps that exist in every jurisdiction. I think of it as a two way street of us getting evidence, conducting investigations, analysing it with technological tools and experts in the Office, using it but also sharing it, is one that will give value for money, it’s one that’s going to be effective and ultimately it will be more effective for victims and survivors.

I think, Madam President, the binding realities that in these types of crimes we simply can’t act alone. It’s hubris to think that the ICC or any national authority very often can act alone when the crimes that seem to have taken place could constitute a genocide or crimes against humanity or war crimes. Structures are broken. Structures cannot operate. Witness protection becomes a real issue in so many parts of the world. And the way to improve and bend the arc towards justice is by working together independently, effectively, testing evidence received from any source, trying to make sure evidence is reliable. And there’s many tried and tested forensic means to do that. But if we do so, I think we can fulfil our mandate with ever greater efficiency.

This report is perhaps characterised  by a number of things, but what I’ve tried to do, what I will always endeavour to do to the best of my ability however limited is to be candid. There are challenges, the political situation, the security situation in Libya, that the Libyan authorities are dealing with is difficult. It’s dynamic, it’s challenging. Of course, it has implications to investigations. But there’s always different means, with good will, with imagination to try to make sure things move forward effectively.

I have tried to be transparent in this report, I’ve set benchmarks. I will continue to set more benchmarks so that hopefully we can ensure that the important responsibility given by this Council in Resolution 1970 is vindicated and even more importantly, that the victims and the survivors are not an afterthought. That we put them centre stage and make sure that their rights are properly and fully vindicated to the best of our abilities. Thank you so much.  

ICC Prosecutor’s closing remarks and observations on the occasion of the Situation in Libya to the United Nations Security Council 

Madam President, I am most grateful, and I am grateful for the contributions and observations, words of support and indeed – even the words of concern that have been raised and I am grateful for the opportunity to clarify or further explain a few matters. I think based upon any analysis, the International Criminal Court can only be viewed as an awful testament to the continuous proclivity of mankind to wreak havoc and cause untold suffering upon the most vulnerable children, women and men. I would like to, and of course there is a lot of blame to go around every country; my office, all of us are flawed beings. But that is not really the question. The question is whether or not we want to live in a world where justice prevails or we can somehow sleep and tolerate and accept a world in which so many are in physical agony and emotionally distraught.

My learned friend, the distinguished delegate of the Russian Federation referred to the Situation in Libya, and really, who is to blame for the continuous groans of agony that still reverberate from that troubled land? This is of course an open question. And the question is, who is responsible? Well, The Rome Statute gives clear jurisdiction to us in relation to matters that are referred. The Charter of the United Nations is the principal foundation of world affairs. And it makes it clear that this Council has principal responsibility for maintaining international peace and security. So I think it’s very important to bear in mind that whilst we have and I have tremendous respect for the promise of this Council, tremendous respect for the purpose of this Council, and I respect all the distinguished members here. I think like many of just normal people, there is a understandable frustration that all around the world, away from sophisticated capitals and cities such as New York or beautiful rooms such as this, we still tolerate a world where we are deaf and we wilfully shut our eyes to the agony of so many others.

There was a question raised Madam President regarding focus. I am a lawyer, not a legislator. And I hope I will never be in a position to knowingly violate the law, and certainly I will never arrogate to myself authorities that are not vested in me. In the clear language of paragraph 6 of Resolution 1970, that holds the answer to the distinguished delegate’s question because it clearly states that, ‘[t]he Council decides that nationals or former officials or personnel from states outside the Libyan Arab Republic which is not a party to the Rome Statute shall be subject to the exclusive jurisdiction of the state.’ I follow the law and the Council creates the law in terms of the parameters of a referral.

The other part I really want to emphasise if I may. And perhaps on that if I may permit it my late father from Pakistan. He used to always have a saying when we were squabbling as children that, “when you point a finger, there are three pointing back at you.” It is very easy with the history of humanity to engage or be indulgent in the blame game. “You did this and you did that,” it’s all true perhaps. But is it an excuse for us not to try to raise our gaze collectively to higher values and higher principles and for goodness sake with respect? If we can’t do that in a building such as this, what is the hope? The distinguished delegate of India and I think it’s an important point, recalled certain concerns that seems, he thought, to be vindicated by the International Criminal Court and the lack of peace. And I think it’s important also to realise that and grasp and accept the reality that justice anywhere and international justice in particular, is not a silver bullet that will solve every malady that afflicts humanity. If one expects that to be the case, we are going to keep failing and putting expectations which simply cannot be fulfilled.

The more appropriate question I would suggest is whether or not but for the International Criminal Court, peace and justice would have fallen like mann-o-salwa on the people of Libya. And the simple truth is this Council, the region and Libya itself has somehow not managed to help secure peace. I think the final comment from the distinguished delegate from Ghana really must be the last word. But the question really is whether or not collectively we give value. We really care for children, for women, for men that just want to live their lives and keep on suffering time and time again. And the words of the distinguished delegate I think resonate far more eloquently than I could ever attempt, “That impunity when committed cannot be allowed to stand.” That’s why we have an International Criminal Court and this is why we try to get to the truth to vindicate the rights that we should all individually, regardless of politics, hold dear. Thank you so much. |

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