Libya’s Acceptance of the International Criminal Court’s Jurisdiction: Stakes and Implications

[Mohamed Hanafy (associate researcher and advocacy officer) and Juliette Rémond Tiedrez (associate legal adviser) both work with the International Commission of Jurists’ Middle East and North Africa programme]

This post is based on the Q&A Libya’s acceptance of the International Criminal Court’s jurisdiction: stakes and implications published by the International Commission of Jurists in July 2025.

On 12 May 2025, the Government of National Unity (GNU) – the internationally-recognized government of Libya based in the capital Tripoli, in the West of the country – lodged a declaration, pursuant to article 12(3) of the Rome Statute of the International Criminal Court (“ICC” or “the Court”) with the Registrar of the Court, accepting the exercise of jurisdiction by the Court “with respect to alleged crimes in its territory from 2011 to the end of 2027” (the “article 12(3) declaration”). 

In early May 2025, the GNU had launched military operations in Tripoli against militias that had been controlling certain areas of the capital for years, and had adopted a number of decrees dismantling other militias, including the Department of Operations and Judicial Security of the Judicial Police Authority. Despite being loosely regulated by the GNU, in practice such armed groups act independently and are not under the government’s control.  The head of the then newly dissolved Department of Operations and Judicial Security, Osama Elmasry Njeem, is the subject of an arrest warrant issued by the ICC for alleged crimes against humanity and war crimes committed in Mitiga prison, in Tripoli.

Effect of the Declaration on the Court’s Pre-Existing Exercise of Jurisdiction 

On 26 February 2011, the UN Security Council, acting under Chapter VII of the UN Charter, and pursuant to article 13(b) of the Rome Statute, referred the situation of Libya since 15 February 2011 to the Prosecutor of the ICC. On 3 March 2011, the Office of the Prosecutor (OTP) opened an investigation. While the February 2011 Security Council’s referral of the Libya situation to the Prosecutor of the ICC does not feature an end date, the time elapsed since that referral raises the question of whether the ICC is entitled to exercise jurisdiction over any Rome Statute crimes recently committed in Libya. 

ICC Pre-Trial Chamber I has determined that, for a case not to exceed the parameters defining the situation under investigation pursuant to a referral, the following conditions have to be met: 

(i) “the crimes referred to in the Prosecutor’s Application must have occurred in the context of the ongoing situation of crisis that triggered the jurisdiction of the Court through the […] referral”; and 

(ii) “it is only within the boundaries of the situation of crisis for which the jurisdiction of the Court was activated that subsequent prosecutions can be initiated”. 

The Pre-Trial Chamber I went on to state that such a situation “can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis referred to the Court as ongoing at the time of the referral”.

Applying these criteria in the situation of Libya, the ICC Pre-Trial Chamber I judges disagreed on the temporal scope of the Court’s exercise of jurisdiction when examining the OTP’s application for arrest warrants for members of the Kaniyat militia in relation to crimes allegedly committed from at least 2015 to June 2020 when it controlled Tarhuna,  a city some 100 km South-East of Tripoli. While in her dissenting opinion Judge María del Socorro Flores Liera considered that the alleged crimes were not sufficiently linked to the Security Council’s referral in February 2011, the majority found that the Kaniyat militia had “emerged as a result of the 2011 crisis that triggered the 2011 Resolution” and was affiliated with the LNA, an armed group taking part in violence that “amplified the existing proxy conflict that took shape after 2011”, holding, as a result, that the link to the referral was sufficient. In light of this, the majority of the Pre-Trial Chamber I concluded that the Court had jurisdiction over crimes committed until at least 5 June 2020 in that case. 

In this regard, the article 12(3) declaration has the effect of dispensing with any uncertainty about whether the Court may exercise jurisdiction over Rome Statute crimes committed in Libya even beyond 5 June 2020, and of clarifying that the Court may exercise its jurisdiction over Rome Statute crimes committed in Libya between 2011 and the end of 2027, irrespective of any link with the situation of crisis that triggered the UN Security Council’s referral in February 2011. 

As a result, the temporal scope of the OTP’s ongoing investigation may too be affected.

Impact of the Declaration on the Scope of the OTP’s Investigation

In November 2023, the Prosecutor announced that his office planned to  in the situation of Libya by the end of 2025. On 15 May 2025, three days after Libya lodged its article 12(3) declaration, he  that some lines of inquiry would be completed by the end of the year, with the remaining ones by the end of March 2026.

The Prosecutor is independent and retains discretion over whether to initiate investigations. Accordingly, the fact that Libya lodged an article 12(3) declaration with respect to alleged crimes committed until the end of 2027 does not compel the Prosecutor to continue its ongoing investigation or request authorization to open another investigation beyond March 2026. 

However, it is possible that the OTP may consider broadening the scope of its ongoing investigation in Libya in light of the article 12(3) declaration, particularly if certain incidents were previously excluded from the ongoing investigation on the basis that they were not sufficiently linked to the UN Security Council’s referral to fall under the Court’s jurisdiction.

Should this be the case, then, to ensure that the Court may exercise its jurisdiction according to article 13(c), such incidents would have to be considered under a proprio motu investigation subject to authorization by the Pre-Trial Chamber pursuant to article 15 of the Rome Statute. Indeed, contrary to the UN Security Council’s referral, an article 12(3) declaration is only a precondition to the exercise of the Court’s jurisdiction, and the Pre-Trial Chamber must have authorized the Prosecutor to initiate an investigation. According to article 15, the Pre-Trial Chamber shall authorize such an investigation if it “considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court”.

While we welcome Libya’s article 12(3) declaration, such declaration will only be meaningful if the Libyan authorities fully cooperate with the Court and take concrete steps to support the OTP’s investigation and prosecutions, including by promptly arresting and transferring all the suspects subject to an ICC arrest warrant to the Court and providing the OTP unrestricted access to crime scenes in all regions of the country. When assisting the Court, the Libyan authorities should also ensure adequate protection measures are in place for victims and witnesses.

However, Libya’s criminal framework does not provide for protections measures, and the authorities have a track record of not cooperating with the ICC. For instance, notwithstanding the fact that the Libyan authorities have detained some suspects against whom the ICC has issued arrest warrants, including Abdullah Al-Senussi, Mohamed Salheen, and at least another suspect from Tarhuna, they have consistently failed to transfer any of them to the Court. When Osama Elmasry Njeem was arrested in Italy, Libya’s Attorney General sent a letter to Italy’s Ministry of Foreign Affairs requesting his repatriation to Libya. Both the Attorney General and the GNU Ministry of Justice have since announced they would not extradite Mr Elmasry Njeem to the Court as he would be tried in Libya.

We also call on the OTP to use the opportunity of the article 12(3) declaration to reassess and broaden the scope of its investigation in light of a fuller assertion of the Court’s jurisdiction over the period concerned to ensure that the most serious crimes committed in Libya do not go unpunished.