Libya: ICC Prosecutor Names First Suspects

The International Criminal Court (ICC) prosecutor's request for arrest warrants for serious crimes in Libya is a first step in achieving justice, Human Rights Watch said. On May 16, 2011 the ICC prosecutor asked the judges of the court to issue arrest warrants for three suspects for crimes against humanity, including Libyan leader Muammar Gaddafi.

"The ICC prosecutor's request acts as a warning bell to others that serious crimes will not go unpunished," said Richard Dicker, international justice director at Human Rights Watch. "It's a message to those responsible for grave abuses that they will be held to account for their actions."

The prosecutor is seeking arrest warrants for Muammar Gaddafi, his son Seif al-Islam and Abdullah Sanussi for crimes against humanity.

Anti-government protests began in Libya's east on February 15, following the widespread pro-democracy protests that led to changes of government in neighboring Tunisia and Egypt. Libyan government security forces responded with arrests and attacks against peaceful demonstrators in the cities of Benghazi, Derna and Tobruk, and then in the capital, Tripoli, and some cities in the west. Human Rights Watch documented the arbitrary arrest and disappearance of scores of people, as well as cases in which government forces opened fire on peaceful protesters.

"Libyan civilians who have lived through a nightmare over the past months deserve redress through an independent and impartial judicial process," Dicker said. "Today's announcement offers them that chance."

Criminal liability before the ICC can apply to both those who physically commit the crimes, and to senior officials, including those who give the orders and those in a position of command who should have been aware of the abuses but failed to prevent them or to report or prosecute those responsible. The Rome Statute, the court's founding treaty, applies equally to all persons, including heads of state and government officials regardless of any immunity they might claim.

Should the court issue an arrest warrant for Gaddafi, it would not be the first warrant for a sitting head of state by an international court. In 1999, the International Criminal Tribunal for the Former Yugoslavia issued its first indictment against Yugoslav President Slobodan Milosevic for war crimes and crimes against humanity committed in Kosovo. In 2003, the Special Court for Sierra Leone unsealed its indictment of Charles Taylor, then President of Liberia. Most recently, the ICC has issued two arrest warrants for Sudanese President Omar al-Bashir on charges of genocide, crimes against humanity, and war crimes.

"Seeking an arrest warrant for Muammar Gaddafi for crimes in Libya shows that no one is above the law," said Dicker. "It is the prosecutor's job to follow the evidence wherever it leads, even to a head of state."

The prosecutor's request comes about two-and-a-half months after the United Nations Security Council unanimously passed resolution 1970 referring Libya to the ICC. Following the council's referral on February 26, the ICC prosecutor announced on March 3 that he would open an investigation into potential crimes against humanity committed in Libya since February 15.

The ICC's Pre-Trial Chamber must now review the information submitted by the prosecutor to determine whether to grant the request. The Pre-Trial Chamber judges will issue warrants if they are satisfied that there are "reasonable grounds to believe" that the persons have committed the crimes alleged.

If warrants are issued, any suspect who is arrested or who surrenders to the court has an opportunity to object to the charges and to challenge the evidence in a "confirmation of charges" hearing. At that point, the Pre-Trial Chamber must decide whether enough evidence exists to establish "substantial grounds to believe" that the person committed each of the crimes charged in order to move forward to trial.

While the first warrant requests are considered by the court, Human Rights Watch urges the ICC prosecutor to continue to investigate serious crimes that may have been committed by all parties in Libya, including war crimes committed during the armed conflict. Security Council Resolution 1970 gives the ICC ongoing jurisdiction over war crimes and crimes against humanity committed on the territory of Libya since February 15, 2011.

"Accountability for Libya should include investigating possible crimes committed by both government and opposition forces," said Dicker. "We look to the prosecutor to implement his mandate impartially so that those responsible for grave abuses face justice, regardless of their political allegiances."

Human Rights Watch has documented serious violations of the laws of war by Libyan government forces, including repeated indiscriminate attacks into residential neighborhoods in Misrata and towns in the western Nafusa mountains.

The ICC must rely on state cooperation to further its investigations, including by facilitating evidence collection and preservation, as well as assisting with the execution of arrest warrants. Security Council resolution 1970 obligates the Libyan authorities to cooperate fully with the court. In April, the self-appointed opposition authority in Libya, the Interim Transitional National Council, promised to cooperate with the ICC in a letter to the Prosecutor's Office.