ICC prosecutor deplores non-execution of arrest warrants for Libyan fugitives

UNITED NATIONS -- The chief prosecutor of the International Criminal Court (ICC), Fatou Bensouda, on Tuesday deplored the non-execution of arrest warrants for Libyan fugitives wanted by the court.

In her briefing to the Security Council, Bensouda called out Egypt and Gen. Khalifa Haftar, commander-in-chief of the east-based Libyan National Army (LNA), for their failure to surrender the fugitives.

The arrest warrants for Al-Tuhamy Mohamed Khaled and Mahmoud al-Werfalli are yet to be executed, said Bensouda.

Egypt, where Al-Tuhamy is believed to reside, has not arrested and surrendered him to the ICC. Gen. Haftar's LNA has neither facilitated the arrest and surrender of al-Werfalli nor ensured his genuine investigation and prosecution in Libya. Al-Werfalli is reported to be under the command of Gen. Haftar, she said.

Al-Tuhamy was the former head of the Libyan Internal Security Agency during the final years of the government of Muammar Gaddafi.

"While my office continues to meet its obligations under the Rome Statute by advancing its investigations despite resource constraints and a challenging operational environment, the course of justice cannot make further progress without the arrest and surrender of ICC suspects. This is a responsibility that neither rests on my office nor the court, but other actors in the Rome Statute system, namely states," said Bensouda.

"It is my sincere hope that this state of impunity will not remain the status quo and that the victims of Rome Statute crimes committed in Libya will have justice."

Justice for such crimes is crucial to the rule of law and stability in Libya. Where appropriate, accountability for such crimes must extend to those in positions of authority, she noted.

"I take this opportunity to once again stress that military commanders may be held responsible for crimes committed by forces under their effective command and control. Military commanders have a responsibility both to prevent or repress the commission of crimes by their forces, and to submit any such crimes for investigation and prosecution."

Bensouda said the arrest warrant for a third Libyan fugitive -- Saif al-Islam Gaddafi, the second son of late Muammar Gaddafi -- remains enforceable.

On March 9, the ICC Appeals Chamber unanimously ruled that Saif Gaddafi's case is admissible before the court. Accordingly, Libya continues to be under an obligation to arrest and surrender Gaddafi to the ICC, she said.

In its judgment, the Appeals Chamber found that the ICC is barred from trying someone who has already been tried in a national jurisdiction with respect to the same conduct only if the proceedings in the other court are final, she said.

The Libyan domestic proceedings against Saif Gaddafi are not final. Given that he was convicted in absentia, if Gaddafi surrenders himself or is arrested, Libyan law provides that he must be retried. If sentenced to death for a second time, review by the Libyan Court of Cassation would be mandatory. Furthermore, the Libyan amnesty law does not apply to his case, she said.

In the course of the admissibility proceedings, Saif Gaddafi stated that he was released from detention on or about April 12, 2016. He has made no effort to surrender himself. Gaddafi is a wilful fugitive, actively evading justice both in Libya and before the International Criminal Court, said Bensouda.

Neither case can progress, nor can the victims of Gaddafi's alleged crimes receive justice, whilst he remains at large, she said.

Saif Gaddafi was captured in southern Libya by the Zintan militia in November 2011, after the end of the Libyan civil war. He was sentenced to death in absentia in July 2015 by a court in Tripoli. At the time of the Tripoli trial, he was in the custody of the de facto independent authorities of Zintan. He was later released from prison in Zintan and won amnesty by the Tobruk-based government led by Haftar.

Bensouda said the ICC Appeals Chamber's judgment provides valuable guidance on some important points of international criminal law.

Notably, she said, Judge Ibanez Carranza, in her Separate and Concurring Opinion, found that amnesties or similar measures that prevent the investigation, prosecution, and punishment of international core crimes that amount to grave human rights violations and grave breaches of international humanitarian law are incompatible with international law. Accordingly, Judge Ibanez Carranza found that such measures appear to be contrary to the object and purpose of the Rome Statute of the ICC, although this issue must ultimately be determined on a case-by-case basis.

This is a significant legal development with respect to the obligation of states to investigate, prosecute and, if appropriate, punish perpetrators of mass atrocities, said Bensouda.