Wednesday, May 29, 2024

Statement of ICC Prosecutor, Karim A. A. Khan KC, to the United Nations Security Council on the Situation in Libya, pursuant to Resolution 1970 (2011)

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On May 14, 2024, ICC Prosecutor Karim A.A. Khan KC delivered a crucial briefing to the UN Security Council in New York regarding the pressing situation in Libya. Recognizing the gravity of his statement and its significance in shaping international discourse and action, Diplomat Magazine is proud to publish the integral version of Prosecutor Khan’s address.

Mr President, Excellencies, it was two and a half years ago when I first had the opportunity to brief the Council in relation to the Libya situation, and in those remarks, through the lens of Libya, I called for what in effect was a paradigm shift for a new and constructive, new dynamic with this Council. I emphasised to all members of the Council on that day that I would prioritise referrals to the Court made by the Security Council, I would do my utmost to ensure more resources were given to Security Council-referred situations, and I also expressed the view that, in my respectful opinion, for too long the situation in Libya and also Darfur had been allowed to drift. And I was committed to use my best efforts, with the excellent colleagues that work in the Office, to change things, to bring a new dynamic, and to give impactful, credible results that we could show to the people of Libya, the victims in Libya, and also to the Security Council.

And it was six months after that initial briefing that I outlined and presented a renewed strategy in relation to Libya. I detailed four key lines of inquiry that we would take forward in order to deliver meaningfully, and I set out publicly benchmarks that would be applied to our work so we could collectively measure progress being made towards justice and accountability and the rule of law, and we could also candidly discuss challenges that we could address together.

It’s my respectful view that over the last 18 months we have indeed reinvigorated this work, and we have set a basis for the successful realisation of the objectives I set out in the strategic vision I detailed in April 2022. And whilst, as an officer of the Court, I can’t – I am constrained in detailing all the progress that’s been made, I can say that we have made strong progress in line with this renewed strategy.

In the last six months alone, as reflected in the report that we’ve lodged with the Secretariat, the Libya Unified Team has completed 18 missions in three geographic areas. They have collected more than 800 pieces of evidence, including video and audio material. They have taken more than 30 statements – interview statements, screening statements. And we’ve made significant progress in relation to the 2014-2020 period in terms of alleged crimes in detention centres in that period. We’ve continued to provide concrete, tangible, and meaningful support in relation to national proceedings involving crimes against migrants. And only in March, at the end of March, I hosted members of the Joint Investigative Team at headquarters in The Hague, in which we and the Team further detailed how we could achieve synergies to make sure the crimes against these most vulnerable individuals are properly investigated and prosecuted. Our work is moving forward with increased speed and with a focus on trying to deliver on the legitimate expectations of the Council and on civilians, on the people of Libya.

And today, in this, my sixth report to the Council, the 27th in total, I think that we have a landmark moment by announcing a roadmap in relation to what could be the completion of the investigative stage in terms of Resolution 1970.

In presenting this roadmap that’s detailed with greater specificity in the report, I want to be clear, we’re not cutting and running, we’re not finding a way to exit stage left, we’re not gradually foreshadowing a curtailing of our work, a lack of focus, energy, or vigour, we’re not saying that we can’t deliver. That’s something I professionally cannot accept. It’s something I think the Council should not and would not accept, because you have referred a very serious matter to the International Criminal Court under Chapter VII realising that justice was essential for the people of Libya. Rather, the roadmap I have detailed in the report represents, I think, a genuine, a dynamic vision for the fulfilment of the mandate that you entrusted to us. It details a focus set of activities that we’ll implement, God willing, in the next 18 months and beyond to significantly expand the impact of our action in the Libya situation.

ICC Prosecutor Karim A.A. Khan KC addresses members of the UN Security Council and H.E. Mr. Taher M. T. El-Sonni, Permanent Representative of Libya to the United Nations, on 14 May 2024. UN Photo/Manuel Elías

And the roadmap is a collective work. We are not the only operator on the international level. We have to work shoulder to shoulder with the authorities in Libya, with the Council, with all State Parties.

And there are positives. Only last month, my Deputy Prosecutor, Nazhat Shameem Khan, the Deputy Prosecutor of the Court with responsibility for the Libya situation, had a successful mission to Tripoli, had a productive meeting with the Attorney General, and also met with different civil society actors in Tripoli and also in Tunis. In the last reporting period, more than 25 such engagements between my Office and civil society organisations, and Libyan civil society in particular, have taken place, and we’ve also continued a dialogue with the Council through working-level briefings last month, outlining and trying to flesh out and give more details as to the proposed roadmap.

And based upon that, I present respectfully two key phases that are detailed in the written document.

The first is the intention, the hope, the target to complete the investigative stage from now and by the end of 2025. That’s the investigative stage of the situation. Of course, it’s not going to be easy. It’s going to require cooperation, candour, a can-do attitude from my Office, but also from the authorities in Libya. But that period, hopefully, will give rise to even more additional applications for warrants of arrest and also greater support by my Office to national proceedings in Libya. Complementarity is a foundation of the Rome Statute, but burden sharing is linked to that principle of complementarity, trying to understand from the Libyan colleagues, the Libyan Attorney General, where their problems are and trying to forge ahead with this principle that the rule of law can be effective and must be applied equally. In addition, and linked to that, we hope, and again it requires work, it requires focus, but we are trying to improve and reinvigorate our approach to fugitive tracking, to arrests. And with the help of Registry colleagues, the aim would be to give effect to arrest warrants and to have at least initial proceedings start before the Court in relation to at least one warrant by the end of next year.

The second part is judicial and complementarity [activities], because if that goes to plan, following the end of 2025, we want to move posture and try to help and support Libya. That can start now: technical assistance, burden sharing, trainings, know-how, use of artificial intelligence, technology, and technical skills of building these types of cases. And focus, again with Libyan colleagues, on arrest and tracking. And in parallel to all of that, we want to deepen on every level our relationship with the Libyan authorities under complementarity. It can’t just be with the Attorney General and the Deputy Prosecutor, or with myself and other individuals; it needs to penetrate all strata of the Libyan authorities. And they should know that they have in the Office of the Prosecutor, men and women that are not driven by any political imperative or interest but are really trying to give life and give purpose to the principle of equality before the law and the value of the lives that have been lost in Libya to date.

Crucially, the roadmap, I think, is something that the victims of Libya can look to as not hot air, not spin, but something impactful and meaningful to advance their right to justice. And I think it presents an opportunity to meaningfully deliver on Resolution 1970 that you passed in 2011.

But that is not a given, because we need continued, increased support from Libya. We need to walk shoulder to shoulder, together, not for our own individual interests or the interests of the ICC or for a government, but for the interests of humanity and the people of Libya.

And I think recently we’ve had very positive news. Multiple-entry visas have been issued by the Libyan authorities. That allowed my Deputy Prosecutor to go last month. There were missions also in December last year, forensic experts also went last year. The meeting between Deputy Prosecutor Nazhat Shameem Khan and His Excellency Al Sidieg Al Sour, the Attorney General, I think, was extremely important, particularly with regard to burden sharing and being candid in terms of what we can do and the mutual roles of the authorities and the ICC, and starting and deepening a dialogue that will strengthen not only the rule of law, but hopefully we can work and help strengthen together the Attorney General’s Office as well, if that is something the Libyan authorities wish to avail themselves of – that cooperation and technical assistance.

We anticipate in the next period there will be further missions from members of my Office to Tripoli. I think there’s enthusiasm – I don’t think that’s pitching it too high – of our opening an office in Tripoli. I think that will help complementarity, it will help the investigations, it will help the discharge of Resolution 1970 and the Rome Statute obligations. And so, plenty of positive news, given what I said previously on the difficulties caused by the lack of visas. In addition to the meeting with the Attorney General, it’s only right, Mr President, if I can also applaud and thank positively His Excellency Mr Zeiad S. S. Daghim, the Ambassador of Libya to the Kingdom of The Netherlands. I think his arrival has ushered in also increased candour, partnership, and dialogue that is being felt in terms of the cooperation, and I wish to applaud him and the Libyan authorities for that change.

But to march forward it does require solutions, not problems to every solution that is presented. This is a choice. It’s mindset also, from my Office and from the Libyans. The world is very imperfect. The law has some fundamental requirements that can’t be airbrushed away or diluted, but it can be a solution to problems that exist. And in my first briefing to the Council on this situation, I hoped, I prayed, I intimated that there was an opportunity that if a cause could unite this Council, naively perhaps, but I believed and hoped it would be the cause of international criminal justice. Which State is in favour of genocide, war crimes, or crimes against humanity? Which State doesn’t want to be a protector of the vulnerable? Which State does not want to be on the side of legality and against the kinds of violations that we see in so many parts of the world? And notwithstanding all the difficulties that surround us in a very often dysfunctional world, a world in which too many people feel exposed to the elements, I still think this presents an opportunity, if we work together, if we realised that continuing business as usual will lead us to the abyss and beyond, to do the right thing and look at people that have little shelter, that have suffered enormously for many different reasons, and that the rule of law must count for them.

So, a paradigm shift is still needed. It’s not going to be achieved by words, or a strategy, or a roadmap. It’s something that we all, individually, as States, as the Council, and as Libya, and my Office, we have to really try to be servants of something bigger than ourselves. If we can allow the law to breathe at this moment, if we can recognise that different States and different interests have certain situations that are politically difficult for them but realise that there’s value in an International Criminal Court that is not part of the political discourse, but is trying and endeavouring to be deaf to the noise but applying something that should be pristine and valuable, which is a yardstick of human conduct that should bind us all to keep us away from that abyss that I mentioned, it could yet be a moment of reawakening to change direction. Because otherwise, when one looks at Libya, when one looks at other situations in the world, whether it’s Ukraine, or whether it’s Palestine, or whether it’s the Rohingya, or whether it’s any other place one wishes to look at, we see issues.

And so, this is the time, I think, for the law to be allowed to breathe, as the Council has found, as a precondition for stability and international peace and security, which are direct responsibilities of the Council. To do that, Mr President, we need to understand that the Rome Statute, the Geneva Conventions, customary international law, and the UN Charter are part of the tapestry of civilisation that will allow us to survive this present inclement weather, this present perilous moment that we’re facing. If we are real and sincere that every human life matters equally, the rule of law must apply in Libya as it must in every other situation. We can only do that with your help, your support, your solidarity for something otherwise, that can be rendered irrelevant but something that can’t, and that is the law.

Mr President, thank you so much for the opportunity. I always remain ready and willing to engage with the Libyan authorities and also this Council. Thank you.

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