By Patrick Wintour
Capacity and authority of court as well as evidence already under scrutiny with not one Libyan brought to The Hague for trial.
The international criminal court has struggled to ensure its writ runs in Libya ever since the UN security council tasked the ICC with the investigation of war crimes after the fall of Muammar Gaddafi in 2011. The possibility of taking on a raft of new cases, including repeated male rape, will therefore raise issues of capacity, evidence and authority for the court, which has been accused of politicised justice and being limited in its powers.
The ICC has so far failed to bring any Libyans to The Hague for trial since it was initially tasked with investigating war crimes in the country. Many human rights activists either flee Libya in fear of their lives, or operate from abroad. Issues of admissibility dog the court.
The former ICC chief prosecutor Luis Moreno Ocampo has been accused of being in league with a Libyan businessman close to military strongman Khalifa Haftar, the head of the so-called Libyan National Army, and one of the militias under investigation by the court.
Ocampo has denied the charges but a leak of 40,000 emails left his successor, Fatou Bensouda, at best frustrated by his behaviour and by the damage done to the ICC’s credibility.
At the same time a series of largely political referrals to the court have been made by interested parties using it as a proxy to fight their ideological battles. A group of civil society organisations in west Africa has referred the former French president Nicholas Sarkozy for his role in the western military intervention in Libya in 2011.
Gaddafi’s son Saif, himself subject to prosecution by the ICC, has said he would have Qatar brought in front of the ICC for its role in overthrowing his father. It has also been claimed a senior figure in Palestinian president Mahmoud Abbas’s Fatah movement will be referred in what looks like a further spillover of other diplomatic disputes.
The Libyan national courts are in dispute with the ICC over its right to try cases.
Bensouda has so far had little luck in extraditing any suspect. Without a police force or a security arm working in the court’s favour in lawless Libya, she has struggled to strike fear into those charged with behaving with impunity.
In probably the most egregious case, the ICC prosecutor has been unable, despite repeated requests, to extradite Mahmoud al-Werfalli, a senior commander of LNA special forces who was first accused of the killing of 33 people in Benghazi between June 2016 and July 2017.
The case is not just significant because of Werfalli’s role in Libyan politics, but because of the way in which video evidence gathered on social media, often manipulated by propagandists, has been deemed admissible.
A further 36 bodies with gunshot wounds to the head and signs of torture were discovered last month in Abyar about 40 miles from Benghazi.
At the time Haftar said Werfalli had been arrested, but there is scant evidence this is the case.
Also, some western diplomats feel the need to face both ways, reluctantly coming to the view that Haftar will be allowed to stand in presidential elections, even though his lieutenants are charged with war crimes.
Despite the setbacks, Bensouda moved in May to broaden her investigations from political and military leaders to the wider systematic mistreatment of migrants. She told the UN security council that she was gathering information with NGOs about the treatment of migrants trapped in asylum centres.
Bensouda said she was dismayed by credible reports that Libya has become a marketplace for trafficking people.
The latest accusations of systematic male rape being gathered by groups in Tunisia perpetrated by supporters and opponents of Gaddafi present the ICC with a further challenge.
Human rights lawyers such as Lawyers for Justice in Libya (LFJL) issued a statement this week urging the court to be more proactive.
The LFJL’s director, Elham Saudi, said “Despite repeated promises to investigate serious violations, the Libyan state has yet to hold a single individual accountable for murdering, torturing and abusing civilians and those who have been captured or injured following the 2011 uprising.”
It was now up to others to act, she said. “Given the total lack of deterrence mechanisms on the ground, there is an urgent need for the ICC proactively to pursue accountability in Libya and deter the commission of further crimes.”
Patrick Wintour is diplomatic editor for the Guardian.