Libya is not a state party to the Rome Statute, but the United Nations Security Council referred the situation in Libya to the ICC to investigate alleged crimes against humanity following the outbreak of popular demonstrations against the regime of Muammar Gaddafi in February 2011. The ICC investigation opened in March 2011, with arrest warrants soon following for Gaddafi, his son Saif Al-Islam Gaddafi, and Abdullah Al-Senussi, director of military intelligence. With persistent instability and regional armed factions vying for control of the country, cooperation with the ICC has been limited. National prosecutions of Saif Gaddafi and Al-Senussi have taken place, with fair trial concerns. ICC judges agreed to Libya’s request to prosecute al-Senussi domestically, but rejected a similar request for Saif Gaddafi. The ICC continues to seek his transfer to The Hague. The UN Security Council has also failed to provide the necessary support for the ICC investigation. Civil society continues to call for accountability for widespread grave crimes afflicting the country, including through Rome Statute ratification and implementation.
The investigation into the situation in Libya was opened by the ICC prosecutor in March 2011. The prosecutor's announcement came a month after the UN Security Council unanimously referred the situation in non-ICC member Libya to the Court.
First unanimous UN Security Council referral to ICC
The ICC situation in Libya concerns allegations of a 2011 state-level policy to quell, including by use of lethal force, civilian demonstrations against Muammar Gaddafi’s government. This was the first ICC situation to be unanimously referred by the UN Security Council, which stressed the need to hold accountable those responsible for attacks on civilians after the uprisings in 2011.
The Security Council set out in its referral by “condemning the violence and use of force against civilians, deploring the gross and systematic violation of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government.”
ICC alleges crimes against perceived dissidents
According to the ICC arrest warrants issued in the Libya situation, from 15 to at least 28 February 2011 the Libyan Security Forces, encompassing both military and security units, carried out an attack against civilians partaking in demonstrations against Gaddafi's regime or those perceived to be dissidents, killing and injuring as well as arresting and imprisoning hundreds of civilians. The alleged government policy was carried out throughout Libya, but in particular in Tripoli, Misrata, Benghazi, and cities near Benghazi, such as Al-Bayda, Derna, Tobruk, and Ajdabiya.
Arrest warrants for Muammar Gaddafi and inner circle
The ICC issued arrest warrants against Libyan leader Muammar Gaddafi, his son Saif Al-Islam Gaddafi, who headed the Gaddafi International Foundation for Charity Associations – and was considered de facto prime minister at the time of the alleged crimes–, along with Abdullah Al-Senussi, director of Military Intelligence in Libya. The warrants allege that the above committed crimes against humanity (murder and persecution) committed in Libya from 15 February until at least 28 February 2011.
The case against Muammar Gaddafi was terminated in November 2011 following his death. In November 2011, Saif Gaddafi was arrested by Libyan authorities. In March 2012, Al-Senussi was arrested in Mauritania. He was extradited to Libya in September 2012.
ICC staff detained
On 7 June 2012, four ICC staff members were detained in Zintan, Libya, while undertaking a mission authorized by ICC judges and approved by the interim Libyan government to visit Saif Gaddafi. The four were released on 2 July 2012.
UN Security Council and the ICC
Following the UN Security Council’s referral of the Libya situation, the ICC prosecutor has called for greater Council support toward ending widespread impunity in Libya, warning that resource constraints would impede the ICC Office of the Prosecutor’s (OTP’s) ability to conduct effective investigations. The prosecutor has also urged the Council to be more proactive in exploring solutions to help Libya restore stability and strengthen accountability for Rome Statute crimes.
Al-Senussi and Saif Gaddafi tried in Libya – Saif remains wanted by ICC
On 28 July 2015, a Libyan court in Tripoli convicted Gaddafi, al-Senussi and seven other former government officials, and sentenced them to death. The trial and verdicts generated an international outcry over allegations of serious due process violations. In an earlier ruling on a challenge to the admissibility of the ICC cases by Libya, ICC judges agreed that the domestic prosecution of al-Senussi could take precedence as it was considered genuine and covered the same crimes as in the ICC case. Judges decided, however, that the ICC case against Saif Gaddafi should move forward as the domestic charges did not cover the same crimes as in the ICC case.
ICC judges found in 2014 that Libya failed to comply with key ICC requests for cooperation, including by failing to surrender the ICC suspects.