Security Council: Libyan trials could be ‘Nuremberg moment,’ ICC prosecutor says

The prosecutor of the International Criminal Court (ICC) today said that if Libya can conduct fair trials of alleged perpetrators during the pro-democracy uprising in 2011, the proceedings could equal the lasting impact of the Nuremberg trials.

“By conducting fair, just, and transparent judicial proceedings for all alleged perpetrators, while also continuing to respect the ICC judicial process, Libya can set a lasting example for other States,” Fatou Bensouda, Prosecutor of the International Criminal Court, told the Security Council during an opening meeting this morning.

She later stressed that “these trials can be Libya's Nuremberg moment, one that will endeavour to seal the primacy of the rule of law, due process and human rights for future generations,” she said, referring to the tribunals that nearly 70 years ago prosecuted prominent members of the political and military leadership of Nazi Germany.

Ms. Bensouda said her office was aware of “serious crimes” committed by former Qadhafi officials, some of who are outside of Libya, and that her office’s mandate “is still essential to ending impunity in Libya.”

“We are currently engaged in the process of documenting the most serious of those crimes and documenting the current activities of those officials who were most responsible for them,” Ms. Bensouda noted.

Libya has been undergoing a transition toward a modern democratic State after decades of autocratic rule and toppling of the regime of Muammar al-Qadhafi. Colonel Qadhafi ruled the North African country for more than 40 years until a pro-democracy uprising in 2011 – similar to the protests in other countries in the Middle East and North Africa – led to civil war and the end of his regime.

Ms. Bensouda said that the office also “continues to be concerned” about allegations of crimes committed by rebel forces, including the expulsion of residents of Tawergha, who have been unable to return home and ongoing alleged persecution of ethnic groups perceived to have been affiliated with the former regime.

In her remarks to the Council, Ms. Bensouda noted the cases against Saif Al-Islam Qadhafi, son of the former leader, and Abdullah Al-Senussi, a former senior intelligence official. Mr. Qadhafi has been indicted by the ICC in relation to attacks against protesters and rebels during the 2011 uprising.

Among the mains legal issues in the case is where the men, who are in Libya, should be tried. The Rome Statue gives primary responsibility to national institutions to investigate and prosecute such crimes, with the ICC - which is not part of the UN system but has a relationship with the Organization - intervening only if they are inactive or otherwise unwilling or unable to do so genuinely.

Ms. Bensouda said investigations in both cases have been suspended in accordance with the Rome Statue and it is now up to the Chamber to decide. She added that it was “commendable” that Libya invoked its rights through a judicial process which demonstrates “full understanding of the difference between the Council's political mandate and the ICC's judicial mandate, even where this Council has referred the situation to the ICC.”

She also noted that “what happens with Libya's perpetrators is a page in the history books of international justice, no matter where those investigations and prosecutions take place.”

Ms. Bensouda recently met with new Libyan Prosecutor-General, Abdel Qader Radwan, and the Libyan ICC Focal Point, Ahmed El Gehani, who travelled to The Hague.

“These preliminary positive discussions illustrate the willingness of my Office and the Government of Libya to cooperatively work together in furthering investigations that could lead to the arrest and surrender of alleged perpetrators, both inside and outside of Libya,” she told the Council.

Ms. Bensouda, who said she plans “soon” to travel to Libya, stressed the importance of cooperation between her office and the Government “to realize a comprehensive strategy for justice” particularly following its first democratic election in more than four decades, the installation of a new government last November, and the appointment of a new Prosecutor General last month.