Also Not the ICC Arrest Warrants we Were Waiting For: On the Six Warrants in the Libya Situation

[Juliette Rémond Tiedrez is a Legal Researcher at the International Commission of Jurists’ Middle East and North Africa programme.]

The views expressed in this post are the author’s alone and do not represent any institutional position on the part of the International Commission of Jurists.

On 4 October 2024, Pre-Trial Chamber I of the International Criminal Court (ICC) granted the Office of the Prosecutor’s (OTP) request to unseal six warrants of arrest. These were not the warrants most international criminal law scholars had been waiting for as they relate to the situation in Libya – and not Palestine. They were also not, at least not fully, the warrants that scholars and human rights organisations who follow Libya were hoping for as they only target individuals suspected of having committed war crimes in the city of Tarhuna, despite the widespread and systematic international crimes committed across Libya since 2011 and the prevailing impunity. 

The Situation in Libya at the International Criminal Court

Libya is not a State Party to the Rome Statute, but, on 26 February 2011, the United Nations’ Security Council (UNSC) referred the situation in Libya since 15 February 2011 to the Court.

Four months later, the Chamber issued arrest warrants against Muammar Gaddafi, Libya’s Head of State,  Saif Al-Islam Gaddafi, de facto Prime Minister, and Abdullah Al-Senussi, head of the Military Intelligence, for crimes committed during the 2011 revolution. In 2013, the Chamber issued an additional arrest warrant for Al-Tuhamy Khaled, Lieutenant General of the Libyan army and head of the Internal Security Agency (ISA) under the Gaddafi regime, also for crimes committed during the 2011 revolution. In 2017 and 2018, two consecutive warrants for Mahmoud Al-Werfalli, commander in Al-Saiqa Brigade, were issued by the court for crimes committed after the 2011 revolution. The 2017 warrant against Al-Werfalli was the first to be largely based on evidence collected from social media.

Despite warrants against five individuals, none were transferred to the Court. Muammar Gaddafi, Al-Tuhamy Khaled and Al-Werfalli are dead. The Court declared the case against Al-Senussi inadmissible since Libya was investigating the same case as the one before the Court, and was neither unwilling or unable to conduct the investigation and prosecution. Conversely, and despite a very similar context, the Court considered Saif Al-Islam Gaddafi’s case admissible. However, the suspect remains at large to this day.

In November 2022, the Prosecutor announced that his office was submitting applications for warrants of arrest to Pre-Trial Chamber I. He declared, in May 2023, that the Pre-Trial Chamber had issued four under seal and that the Office had applied for two additional ones.

It was already suspected that some of those arrest warrants would relate to crimes committed in Tarhuna as the announcement of the Prosecutor came after his visit to the city and the launch of the United Nations Fact-Finding Mission on Libya’s (FFM) report on the crimes committed there. And, indeed, in April and July 2023, the majority of the Chamber issued warrants against (1) Abdurahem Al Kani, (2) Makhlouf Doumah, (3) Nasser Al Lahsa, (4), Mohamed Salheen, (5) Abdelbari Al Shaqaqi and (6) Fathi Al Zinkal for war crimes committed in Tarhuna. They were all unsealed on 4 October 2024. Judge María del Socorro Flores Liera dissented as she considered that the alleged crimes were not sufficiently linked to the situation referred to the Court by the UNSC in 2011, nor to an existing non-international armed conflict (her dissenting opinions are attached to each warrant).

Tarhuna Under the Al-Kaniyat

Tarhuna is a city some 100 km south-east of Libya’s capital, Tripoli. After the 2011 revolution and the fall of the Gaddafi regime, the Al-Kani family/Al-Kaniyat formed a militia and started engaging in “extensive criminal activities and the elimination of (perceived) opponents”. By 2015 the Al-Kaniyat fully controlled the city and “ruled through a campaign of terror and intimidation” until 2020, when the Government of National Accord (GNA) ousted them from Tarhuna. The FFM found that there was reasonable grounds to believe that the Al-Kaniyat committed the crimes against humanity of murder, extermination, imprisonment, torture, persecution on political grounds, enforced disappearance and other inhumane acts, and war crimes.

Since the fall of the former regime in 2011, and even more following the 2014 armed conflict, Libya has been divided between the West, now under the Government of National Unity (GNU), formerly the GNA, and the East, controlled by the “Libyan National Army” (LNA). Focusing on the case of Tarhuna and targeting members of the Al-Kaniyat is strategic because the militia switched allegiance from the GNA to the LNA, potentially allowing the OTP to climb the chain of command on both sides.

At the same time, this has meant that Tarhuna has been the only context where the Libyan authorities were able to take some steps towards holding alleged perpetrators accountable. The western authorities established a Special Prosecution Team for Tarhuna and some individuals were prosecuted and convicted (see here and here). However, they have been unable to secure the arrest and the transfer of other suspects allegedly in Egypt, Tunisia, Saudi Arabia, the United Arab Emirates, and in the East of the country. The above-mentioned proceedings were not transparent as very limited public information was made available. Families of victims have expressed a lack of trust in the Libyan criminal justice system. According to the ICC warrants, all defendants except Mohamed Salheen, are or were wanted in Libya.

Because the FFM had found a pattern relating to enforced disappearances in Tarhuna, amounting to crimes against humanity, I had expected enforced disappearances to be charged. However, no crimes against humanity were included in the warrants, only the war crimes of murder, outrages upon personal dignity, cruel treatment and torture, and sexual violence and rape.

The ICC and international criminal courts and tribunals more generally have been criticised for applying higher intent standards in relation to sexual violence than they do in relation to other crimes, so it did not really come as a surprise that only two of the six defendants, Mr Al Zinkal and Mr Salheen, were charged with sexual violence and rape. For the four others, the Pre-Trial Chamber was “unable to conclude” that there was “reasonable grounds to believe [they] acted with the required knowledge and intent” within the meaning of article 30 of the Rome Statute. For the same incidents, however, the Chamber had no difficulty to consider the defendants had acted with the knowledge and intent required for torture and cruel treatment. When submitting the second batch of requests for arrest warrants in July 2023, the OTP challenged this inconsistency but was rebuked by the Chamber. It found “no merit in the Prosecution’s apparent suggestion that a finding of intent in relation to the crimes of torture and cruel treatment would in itself suffice to enter a finding of intent in relation to the sexual crimes alleged”, since it must be established that the perpetrators possess the requisite mens rea for rape.

Alleged Perpetrators and Crimes Beyond Tarhuna

Although it was foreseen that some warrants would relate to the crimes committed in Tarhuna, I had personally expected some of them to address other geographical regions and target higher-level officials such as individuals expressly incriminated by the FFM in its reports, including Khalifa Haftar, the head of the LNA.

In November 2023, the OTP outlined four key lines of inquiry, namely (1) 2011 violence, (2) detention facilities, (3) crimes related to the 2014-2020 operations, and (4) crimes against migrants. So far, other than in relation to Tarhuna, four warrants have been issued for crimes committed during the 2011 revolution and two (against the same person) for crimes committed in 2014-2020.

The OTP seems to focus its work on crimes against migrants by supporting relevant national authorities, through the sharing of evidence. It did so with the Dutch and Italian authorities who, in October 2022, arrested two Eritrean nationals allegedly involved in smuggling persons, subjecting them to beatings, starvation, sexual violence and extortion. However, the two smugglers were charged with ordinary crimes, and not crimes against humanity, thus falling short of recognising the gravity and scale of crimes committed against migrants, refugees and asylum seekers in Libya.

This leaves the line of inquiry relating to detention facilities. The FFM considered that there were reasonable grounds to believe that crimes against humanity were committed in the context of deprivation of liberty against Libyans and migrants, refugees, asylum seekers. It found that a number of militias, including for example the infamous LNA, Special Deterrent Forces (SDF)/Radaa, ISA and the Stability Support Apparatus, were responsible for crimes against humanity and expressly identified the commanders of such groups.

The issuance of arrest warrants relating to the crimes committed in Tarhuna is an important step, welcomed by the main association of victims’ families, the Tarhuna Victims Association. Nonetheless, especially as the OTP is planning to have completed the investigation phase in the Libya situation by the end of 2025, without additional warrants relating to other lines of enquiries and the arrest and transfer of defendants, the Court would have a “largely incomplete legacy” in Libya.