Libya: ICC considers petition against NATO and AU members

The Prosecutor of the International Criminal Court Mr Luis Moreno Ocampo, has decided to consider the communication sent to his office by the Socio-Economic Rights and Accountability Project (SERAP) requesting him to extend his “ongoing investigation of Libya to include possible complicity of NATO and African Union members in the serious violations of human rights currently being perpetrated in the country.”

The decision was contained in a letter with reference number OTP-CR181/11, dated 11 July 2011 and signed on behalf of Mr Ocampo by M.P. Dillon, Head of Information and Evidence Unit of the Office of the Prosecutor, and sent to SERAP.

The letter reads in part: “The Office of the Prosecutor of the International Criminal Court acknowledges receipt of your communication. This communication has been duly entered in the Communications Register of the Office. We will give consideration to this communication, in accordance with the Rome Statute of the International Criminal Court. As soon as a decision is reached, we will inform you in writing.

SERAP’s lawyer Mr Femi Falana who signed the communication for the organization said: “This is indeed a significant development, and shows that the ICC Prosecutor will not turn the other way whenever there are allegations of serious violation of human rights, and possible crimes against humanity against civilian populations and African migrants fleeing Libya. We welcome this decision, and hope the case will be pursued to a logical conclusion for the sake of the African victims, including Nigerians and Ghanians.”

It would be recalled that SERAP had in a communication dated 4 July 2011 urged Mr Ocampo to “use Article 54 of the Rome Stature of the International Criminal Court, to extend your investigation to cover possible complicity by NATO and AU members in the continuing human rights abuses in Libya, in particular, regarding the failure to rescue a disabled boat filled with migrants fleeing Libya; and the possibility that some African governments may be aiding and abetting the Gadaffi government to commit international crimes.”

Citing a report by the Human Rights Watch the group had said that, “The boat, carrying seventy-two people including two babies, apparently drifted for two weeks in the Mediterranean before landing back in Libya on April 10, 2011, despite distress calls and sightings by a military helicopter and what appeared to be an aircraft carrier.

The boat drifted for two weeks before the currents took it back to Libya. Sixty-one people, including all twenty women and two children aboard, died at sea. One man died shortly after reaching Libya.”

“The 11-meter boat left Libya on March 25 with 72 people aboard. After about 19 hours at sea, with fuel running low, the passengers called an Eritrean priest in Rome, for help. Both the Italian coast guard and NATO command in Naples were also alerted about the conditions of the passengers on the boat,” the group added.

The group also expressed concern about the “failure to rescue people on a boat in distress when it is reasonable for a ship to do so is a serious breach of international law. Under international law, all States (including NATO and AU members) have the obligation to cooperate and assist in the rescue operation, regardless whether they bear the primary responsibility. It is also a clear violation of the recent resolution (A/HRC/17/L.13) by the UN Human Rights Council.

The fact that Libya is in a state of armed conflict does not per se alleviate the obligation.” The group recalled that the president of the Parliamentary Assembly of the Council of Europe had called on May 9 for an “immediate and comprehensive” investigation “but no investigation is known to have taken place. Similarly, the African governments whose citizens were in the drifting boat – Ethiopia, Eritrea, Ghana, Nigeria, and Sudan – and the African Union have also failed to take any steps to ensure a comprehensive investigation into the matter.”

“SERAP is concerned that hundreds of sub-Saharan Africans have died fleeing Libya by sea since the end of March. A boat carrying over 600 people sank off the Libyan coast on May 7, with the death toll still unclear. On April 6, over 200 people, including children, died when their boat sank in Maltese waters. As many as 800 more people who have left Libya by boat over the past six to eight weeks are unaccounted for and presumed dead,” the group further added.

The group also said that, “Under Article 17 of the Rome Statute, the Court is a court of last resort, expected to exercise its jurisdiction only if states themselves are unwilling or unable genuinely to investigate and prosecute international crimes. Since no NATO or AU members are known to have investigated the matter, we believe that it is in the interests of justice for the Prosecutor to carry out an investigation.”

“SERAP believes that substantial grounds exist to warrant the extension of investigation on Libya to include NATO and AU members regarding the failure to rescue a disabled boat filled with migrants fleeing Libya,” the group added.

The group also welcomed “the ICC investigation on Libya, and hopes this would lead to the full and effective prosecution of anyone suspected of committing international crimes and targeting and killing innocent and unarmed civilians. We welcome the arrest warrant issued against the Libyan leader, Muammar Gadaffi, and calls on you to ensure the full and effective execution of the warrant and the transfer as soon as possible of the suspect to The Hague for trial.”

Under Article 54, “The Prosecutor shall: (a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.



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