The situation in Libya seen by the International Criminal Court. My conversation with the spokesperson Fadi El Abdallah

The Hague, 13 March 2018 –“The International Criminal Court (ICC) has a specific mandate about Libya, which is based on the referral of the UN Security Council authorizing the Court and in particular the prosecutor’s office to investigate what is happening in the Country. After that is the prosecutor’s office officially conducts its own investigation, referring to the Security Council twice a year with a public report containing the situations on which focuses the attention of the prosecutor, what progress there are or not in some areas, what are the issues that the prosecutor would like to discuss with the Security Council. The prosecutor’s office is able to receives information from all sides, associations, UN agencies, without being tied to them. The prosecutor’s office must conduct its investigations and find evidence that can be presented before the courts. When you talk to different committees, or associations, or NGOs, they have a different thresholds  in comparison with a judicial one, so it’s essential that the prosecutor’s office arrives before the judges with  solid evidences”. Fadi2

Fadi El Abdallah explains so the role of the International Criminal Court (ICC) in the Libyan crisis, while we drink a fresh mint tea in the super-armoured building of international justice in The Hague. For about an hour, the spokesperson and head of public affairs unit of ICC answers to our questions on the situation of the North African country, trying to clarify some of our concerns in a blow and answer worthy of the best courtrooms.

– From all this information that you get how see the ICC the next elections in Libya?

“This is really an interesting question, but the ICC has only a judicial mandate and no political functions. Even if we act in a war context, the sphere of justice must remain protected and independent from politics. So, the Court cannot issue political statements, not be pro or against anyone, because even the accused enjoy the presumption of innocence. We can only speak in light of the Rome Statute and the decisions of the judges”.

 Since the sphere of justice does not affect the political one, if Saif al-Islam Muammar Gadhafi should win the elections, what would happen?

“For the ICC nothing would change, and it would be in the same situation, as the court issued an arrest warrant for Mr. Gadhafi and we continue to demand his arrest and surrender. The prosecutor reiterated this to the Security Council, asking to help the Libyan authorities to cooperate better and execute this arrest warrant issued by the judges. The political situation of the suspect in no way affects the case before the ICC. We have several cases involving heads of state, or former heads of State or Vice-Presidents, and we have a similar case in Kenya where the suspect won the election after the case started. In this case, an arrest warrant had not been issued, but only an order to appear before the court, and currently continues to do so even after he win the presidential election. The political career of suspect for ICC does not affect in any way the judicial nature of the Court that goes on in exactly the same way. Furthermore, it should be noted that Mr. Gheddafi has not been convicted, and above all he is innocent until proven guilty “.

 So, if He appears …

If He appears, we will understand if he is guilty or innocent. For us it is presumably innocent, but it is necessary that the ICC judges decide that after fair proceedings “.

 Of course, He is innocent but in the meantime on him and his family was imposed a travel ban, the financial assets have been frozen. Why should he show up?

“Because we don’t have the procedure in absentia. He should come and assert his version of the facts, he has the right to choose his defenders; he must present his counter-investigations before the ICC judges. If he is not present how can we establish the truth? If he were guilty as we can be sure he will not do other war crimes, how we can be sure he will respect the sentence? This is why it is necessary to have him here, to ensure that the procedure continues. We have cases where the suspect does not need arrest but only his appearance before the Court and the person comes and returns to his country at the end of the hearing. This is a possibility. Mr. Gadhafi has an arrest warrant and not a summonse to appear at the moment, so it’s necessary first to be arrested and then his lawyer can ask the ICC for interim measures, so as to be not in detention, but under certain restrictions. Request that can be accepted or not by the judges“.

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 Let’s say that the suspect win the elections and he will not appear before the court, what ICC can do? Go and arrest him?

Another good question. The ICC cannot arrest people. The ICC is a court that works just like the national judicial system: you have the court order and then the police forces have to execute it, right?”

 Yes, that’s true…

For international law, we are the court and the police are represented by the States parties that have the task of executing the order of the ICC. These are the two pillars of international law, we don’t have military forces to go and arrest someone. As the court can issue orders to those who must comply with the arrest warrant, these are the states that have the obligation to arrest the suspects, and the people who addressed the arrest warrant. What can we do if they do not respect their obligations? We look at the case, if this originally came because the Security Council made a referral as Libya has the obligation to cooperate, but not doing it  this is a violation of the UN resolution and the Security Councils has to say what it’s necessary to do. If the case does not come from the UN Security Council, then we require the assembly of the 123 countries that adhere to the Rome Statute and this assembly must decide what we have to do if a State doesn’t cooperate. So, it is up to the Security Council or the assembly of the Member States to check the violation and decide the appropriate measures”.

– As you rightly mentioned, Libya doesn’t adhere to the Rome Statute, but it is subject to control of the ICC because of the UN Resolution 1970 of 2011. This means that once the country has reached the Reconciliation and its stability will the current cases collapse?

No, absolutely. I want to give you an example: Georgia. The war crimes committed in the country allegedly in 2008, the Court opened an investigation 7 or 8 years later, the situation was stable there were different claims about territory but there is no continuation of this conflict at the time, but the crimes that happened could not go unpunished, so these are still under the ICC jurisdiction that is investigating. The same is for Libya. When war crimes, in agreement with the Security Council and the UN resolution, also for the future all things related to this conflict, as genocide and crimes against humanity, will remain under ICC jurisdiction. Even within 10 years, between 20, these crimes will be judged by the Court that has the right to investigate their perpetrators. The fact that the country becomes stable and prosperous, as we hope, will not affect the ICC mandate over these crimes. Certainly, if the national judicial system become stronger, it can do these prosecutions for the principle of complementary. So if the national system is capable and willing to conduct genuine investigations and prosecutions for the same crime  then we have the duty to deal with national courts that have primary responsibility, but if  nothing is done and the judicial system is not strong enough to genuine persecute the suspects or there is no will  for political reasons for example – then the Court will keep this mandate and can continue to investigate these cases”.

-Who is to evaluate the national system?

The ICC judges. The State can challenge the ICC in order that a National Prosecutor  deal with the case, as was done for Abdullah al-Senussi, for whom the Court had issued an arrest warrant , but the Libyan authorities have demonstrate  to ICC judges that they were genuine and serious about it, they are working on it and covering the same facts the ICC was looking on it too. That’s why judges stopped to asked for Senussi to be transferred before the ICC”.

-How it’s possible to believe that the national judicial system is genuine for one case and not for another?

“Genuine is only one element, they have to be capable, willing and the investigations have to cover the same facts of ICC. These conditions don’t exist when we talk about Gheddafi’s case. Previously the Libyan authorities tried to deal with the case against Saif al-Islam Gaddafi as they did for Senussi, but  the judges found that the Central Government did not have real control over Saif, there was no legal defence for him, there was not enough contact to protect the evidence and the witnesses and the national investigation was not covering the same issues before the ICC; for this reason the request was rejected while  for Senussi these conditions were met”.

 Should the United Nations for various reasons such as international security or the stability of a country, can ask to ICC to drop a case?

“The Security Council based on the resolution of Chapter VII can ask the ICC to suspend a case for a maximum of 12 months, after which the Court resumes its work. The suspension can be renewed according to the resolution of chapter VII. If the Security Council in order to protect the peace or security of the world refers that it is necessary to suspend a case for a maximum of one year, the Court stops as provided by our Rome Statute, but not the Council and nor anyone  else can ask the Court to drop a case“.

-Let’s speak about the officer Mahmoud al-Werfalli. We recently saw videos with some summary executions from the suspect. What is ICC doing?

Well, the Court is doing what it can do. We have issued an arrest warrant and we are seeking the cooperation of the States, including Libya, to arrest him and surrender him to the Court”.

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 Mr. Werfalli was a subordinate of General Khalifa Hafter, as all the military, he was carrying out the commands of his superior. Is the ICC considering or has already opened an investigation on the head of the Libyan National Army, Hafter?

How the Court works, first we must find evidence on the criminal liability of the subject, it is necessary to show that this specific person has ordered the execution of these crimes, or impunity for having committed the facts, if there are these evidences we can accuse this military superior; otherwise there are no legal conditions to correlate what the officer did with his commander. The fact that one person is subjected to another doesn’t mean automatically that the superior is responsible for the Court. Evidences are necessary…”

 But there are two videos that would demonstrate the responsibility of Hafter…I think also that a group of British lawyers submitted a file to the prosecutor two or three months ago …

I’m sure that any document has been presented to the prosecutor’s attention is being evaluated to decide that there is enough evidence to link a specific person to crimes under the jurisdiction of the ICC, the case will be presented to the judges, but if these evidences are missing, it is not possible to proceed. Furthermore, it must be remembered that we cannot announce anything before the case is brought before the judges with a public document, because the principle is that the investigations must remain confidential. Evidence, facts and crimes committed by a subject will only be disclosed when presented before the courts”.

-Speaking with Libyans, many tell me that the Court has investigated against Werfalli, but the question they ask is: why do not they look at the crimes committed by their victims, or rather, the Islamists?

“There are several cases, there is not only the one about Werfalli. We must remember that many cases came to light only after publication before they were not known. It is not useful for investigations to publish information on current cases. Any information comes to the attention of the prosecutor is carefully evaluated to decide the reliability of the allegations and evidence linking a subject of war crimes. Our function is based on evidence and not on political elements: it is not because there is investigation about one side that we have necessarily to have a case against the other side”.

 – So, we can say that anyone, any Libyan citizen has evidence about crimes committed by anyone else, can communicate it to the prosecutor’s office. It’s correct?

“Exactly, then it will be the prosecutor to decide if these evidences are solid enough to bring the case before the judges.”

– There is a movement for NATO victims in Libya. Did the prosecutor evaluate their requests? It is clear that the case can only be made public when it is presented to the judges, but we would like to understand if there is real consideration of the victims caused by the military intervention of the coalition in 2011 …

“What I can do is to invite you to look the prosecutor’s report to the UN Security Council to see the ICC’s areas of investigation and we need to understand also the nature of the crimes ICC can persecute. We are not speaking about individual case before the ICC for the Court we have to speak mass crimes that meet certain criteria.  When we speak about genocide it’s not simply murder, this can be qualified as genocide only if there is evidence they were committed with the intention to destroy a specific group which has a different language, race it religion. If we talk about crimes against humanity and not against an individual, they are represented by a widespread or systematic attack against the civilian population. If the attack is not systematic or if there is not widespread, the event is not to be considered a crime against humanity. These criteria are identical and applicable for everyone, even for NATO. The prosecutor’s office must analyse whether what we are talking about is to be considered war crimes, or crimes against humanity, or genocide. It is not enough that something happened, there must be legal criteria that qualify such events. “

-Forgive my insistence, but there is really the feeling that the Court uses two weights and measures, letting the crimes committed by some pass while they are fighting others. What you think?

“Absolutely not, the ICC works on evidence and legal rules, if the first exist, we pass to verify the laws that, as I said, qualify the acts as war crimes or against humanity. You can see also that the prosecutor ha opened the preliminary examinations about the U.K. soldiers in Iraq, so the U.K. soldiers are not protected because they are from U.K., there is preliminary examination and then once it is established that there is evidence and elements, it proceeds before the Court. You see, if what you said was true,  why would the prosecutor investigate about the British military in Iraq and protect them in Libya?”