The UN Human Rights Council, based in Geneva, commissioned a fact-finding mission to Libya to examine the human rights situation concerning alleged crimes committed in Libya since 2016. The panel published its report at the 48th session of the Council, on 4 October 2021. It found that alleged war crimes and crimes against humanity were committed in the country and called for the extension of its mandate to examine the situation further and identify the persons responsible.
The UN fact-finding mission had faced extreme challenges and difficult circumstances that hampered its entry to Libya prior to June 2021. They interviewed more than 150 people and examined thousands of documents, which resulted in the publication of its report.
What is the Mandate of the UN Fact-Finding Mission to Libya?
The mandate of the UN fact-finding mission to Libya is relevant for various reasons. The rationae materiae includes the investigation of alleged violations of international humanitarian law and human rights law, but excludes international criminal law due to a subsequent investigation being carried out by the International Criminal Court (ICC).
The ratione temporis is fixed as “since the beginning of 2016”, and does not date back to 2011, the fall of the Qaddafi regime and the NATO military operations. It started at the beginning of 2016, when massive migration started, and the human rights situation had severely deteriorated in Libya. On the other hand, the ICC`s investigation has the mandate to investigate breaches of international criminal law starting from 2011, after the fall of the Qaddafi regime.
The ratione persone of the UN fact-finding mission, mandated by the Human Rights Council, is focused on Resolution 43/39, which refers to violations and abuses committed by “all parties”. This is excellent news because all state actors and non-state actors are covered by this definition, as well as mercenary groups.
What are the Findings of the UN Investigation to Libya?
The work of the UN fact-finding mission to Libya was led by Mohamed Aujjar (Morocco), a former Minister of Justice, Tracy Robinson (Australia) and Chaloka Beyani (Zambia/United Kingdom).
According to their findings, they have evidence that possible crimes against humanity and war crimes were committed in Libya. Many of the alleged crimes were committed against civilians and migrants detained in the country while trying to get to Europe. Libya has emerged as the dominant transit point for migrants fleeing war and poverty in Africa and the Middle East, hoping for a better life in Europe.
The report’s findings include accounts of murder, torture, enslavement, extrajudicial killings, and rape being committed in Libya during the time period concerned, since 2016. In addition, child mercenaries and foreign mercenaries were used in the armed conflicts.
The report also comes at a sensitive time for Libya, where parliamentary and presidential elections are set to take place on 24 December 2021.
What has the political situation been like in Libya since the fall of Qaddafi in 2011?
Libya has been facing ongoing armed conflicts since the fall of the Qaddafi regime in 2011. The country has been split into two separate administrations in the West and in the East, each backed by armed groups. In the first months of 2016, the parties to the Libyan Political Agreement worked towards the establishment of the government of National Accord (“GNA”), which the UN Security Council decided it would support as the sole legitimate government of Libya. This was the Government in the west of the country. However, the Tobruk-based House of Representatives (“HoR”), with which the “Libya National Army” (“LNA”) and affiliated armed groups aligned themselves, never agreed to the composition of the GNA. This was the administration in the east, which was backed by Russia and was led by Khalifa Haftar. As a result of this political deadlock, the following years were characterized by parallel institutions exercising control over different parts of the country. The two camps signed a ceasefire in Geneva in October 2020 brokered by the UN. An interim administration was established in March 2021 to prepare for the presidential and parliamentary elections on December 24, 2021.
What are the major findings of the UN Report on Libya?
Some major highlights from the reports include that the human rights situation of migrants, asylum seekers and refugees in Libya has deteriorated since 2016. Policies meant to push migrants back to Libya to keep them away from European shores ultimately lead to abuses. Upon return, this is one of the areas where the panel is of the view that crimes against humanity have been committed. The report cites findings that 87,000 migrants have been intercepted by the Libyan Coast Guard since 2016, but only 7,000 are now in detention centers. The discrepancy between the number of migrants intercepted at sea and the number of migrants currently detained in detention centers, raises serious concerns that significant numbers of migrants may have been killed or returned to smugglers and traffickers or are in the hands of armed groups who further abuse them. As a note, coast guards have been trained and financed by the European Union.
Migrants are detained for indefinite periods without an opportunity to have the legality of their detention reviewed. According to the report, the absence of accountability for abuses against migrants evidences a state policy encouraging the deterrence of sea crossings, the extortion of migrants in detention, and the subjection to violence and discrimination. Militias, criminal networks, traffickers, and smugglers contribute to the implementation of this policy. The foregoing provides reasonable grounds to believe that acts of murder, enslavement, torture, imprisonment, rape, persecution, and other inhuman acts committed against migrants are part of a systematic and widespread attack directed at this population in furtherance of a state policy. As such, these acts may amount to crimes against humanity.
The UN fact-finding mission also addressed the issue of foreign mercenaries operating in Libya’s conflict. They said there were “reasonable grounds to believe” that personnel from a Russian private military company, known as the Wagner Group, “may have committed the crime of murder”. The group allegedly has been found to provide between 800 to 1,200 mercenaries to support the offensive by Libyan commander Khalifa Hifter in his 14-month-long offensive on the capital, Tripoli. The mission also found evidence that Syrian nationals took part in the combat operations in support of the GNA, and that Turkish nationals were actively involved in their deployment to Libya and that the incentive for them to deploy in Libya was monetary gain. The evidence also established that from late 2019, Turkey facilitated the recruitment of child mercenaries, Syrian children between 15 and 18 years of age, to fight alongside the GNA against the LNA in exchange of payment.
Gender-based violence is any form of violence directed towards, or disproportionately affecting, someone because of their gender or sex. Such violence in Libya is deeply rooted and often hidden. According to the fact-finding mission’s report, vulnerable populations, such as migrants, asylum seekers, refugees and prisoners are particularly at risk of sexual violence. There were credible indications that sexual violence has also been used by state agents or members of militias as a subjugation or humiliation tool to silence those perceived to speak against their interests.
The prevailing insecurity in Libya has led to hundreds of thousands of people being internally displaced and ending up in areas ill-equipped to accommodate large populations. The UN fact-finding mission has considered the situation of the Tawergha community for the purpose of the report. According to the report, the entire population of Tawergha, about 40,000 people, fled attacks directed against them by the Misrata militias. The ethnic group of the Tawergha was perceived to be pro-Qaddafi. They are also subject to acts of violence, including killings, beatings, death threats, abductions, arbitrary detention, and destruction of their property. The full return of the Tawergha has not yet materialized despite an agreement reached to that effect. The mission considered and recommended the extension of the mandate in order to address internal displacement as a whole.
What about accountability concerning the alleged crimes committed in Libya?
The judicial system has been severely weakened, in its ability to prosecute human rights violations, by various factors such as divisions between governmental and security apparatuses in the west and east, a security vacuum in the south, the presence of criminal groups throughout the country, and the government’s lack of capacity and limited reach outside of Western Libya.
According to the UN fact-finding mission, it was noted that the civil and military judicial authorities claim concurrent jurisdiction over the same incidents, thus leading to overlaps and duplication of efforts.
Although the 2011 Constitutional Declaration provided that each Libyan citizen shall have the right to recourse to the judiciary, the Libyan judicial system still does not have the capacity to provide citizens with access to civil remedies for human rights violations. The Libyan authorities have expressed the need for technical assistance and cooperation to increase their capacity to prosecute human rights violations and international crimes.
What are the recent political developments in Libya?
In 2020, Slovak Ján Kubiŝ, Special Envoy and Head of the UN Support Mission in Libya (UNSMIL) was appointed as well as a coordinator based in the Libyan capital, Zimbabwean, Raisedon Zenenga.
In December 2000, the UN estimated that 20,000 foreign fighters were present in Libya.
On 15 September 2021, Russia blocked the Security Council over the one-year renewal of the UN political mission in Libya, threatening the international unity ahead of a presidential election on 24 December. Moscow did not approve of the language in the resolution drafted by Britain on the withdrawal of foreign troops and mercenaries from Libya, as well as the role of the UN envoy to Libya.
The UN welcomed the signing of a long-awaited Action Plan to withdraw mercenaries, foreign fighters and foreign military forces from Libya, on 8 October 2021 in Geneva, after years of fighting across the country. This was concluded by the Libyan Government and opposition military forces, known as the 5+5 Libyan Joint Military Commission (JMC). Special Envoy and Head of the UN Support Mission in Libya (UNSMIL), Ján Kubiŝ described the signing as “another breakthrough achievement by the 5+5 JMC”.
Presidential and parliamentary elections are going to take place in Libya on 24 December 2021.
The findings show a complex, and dire human rights situation in Libya, some aspects of which are rooted in causes beyond the armed conflicts. A comprehensive investigation into the human rights situation by the UN as a whole is urgently needed. In view of the complexity of the situation, additional time and resources are required to investigate the situation further. These were among the recommendations put forward by the UN fact-finding mission, mandated by the UN Human Rights Council in Geneva.
The Human Rights Council extended the mandate of the Libya Fact-Finding Mission (FFM) for nine months, on 12 October 2021, and called for the presentation of its new report to the Council at its 50th session in 2022.