On 9 December 2020, Uprights co-Founder, Alessandro Pizzuti, participated with No Peace Without Justice, in a virtual parliamentary briefing on “Dynamics of Human Rights Violations and Impunity in Libya” chaired by Hon. Giuliano Pisapia MEP, Standing Rapporteur on Libya for the European Parliament.

Uprights addressed in particular the question of the role in and responsibility of third States engaged in the Libyan conflict for human rights and international humanitarian law violations which occurred on the ground. Assessing the responsibility of these actors is necessary to establish full accountability for such breaches. The text of the presentation is reproduced below.

The virtual event can be find in four languages (Arabic, English, French and Italian) here:

Facebook:

Arabic: https://www.facebook.com/282717801814824/videos/392491905355287

English: https://www.facebook.com/ncpsg/videos/1768365769983803

French: https://www.facebook.com/282717801814824/videos/245240710575364/

Italian: https://www.facebook.com/ncpsg/videos/1094191687668332

Twitter:

Arabic: https://twitter.com/NpwjPress/status/1337711311438966787

English: https://twitter.com/NpwjPress/status/1337710845913128961

French: https://twitter.com/NpwjPress/status/1337713808215842816

Italian: https://twitter.com/NpwjPress/status/1337713237505306626

Youtube:

Arabic: https://youtu.be/I99qrzL9VKE

English: https://youtu.be/IDVr2n40wOk

French: https://youtu.be/pdJOLXo98lU

Italian: https://youtu.be/pmkZDEs0YH8

Uprights’ Presentation at the Virtual European Parliament Briefing

My intention is to briefly address the question of the potential responsibilities of third States engaged in the Libyan conflict for human rights and IHL violations. The interference of foreign states in the Libyan conflict is, I believe, an aspect that has indisputably fueled and exacerbated the violence in Libya, especially in the last few years.

Now, if we believe that impunity is a factor that contributes to the destabilisation of Libya, this applies necessarily also to allegations concerning third States’ implication in human rights and international law violations.

It is not my intention today to make any definitive assertions regarding wrongdoings of particular States or individuals. It is too early at this stage for such determinations.

Instead, I want to focus on the main allegations that have been already raised by the United Nations and to attempt to explain how such allegations generally may give rise to State Responsibility as well as the Individual Criminal Responsibility.

The relevant allegations can generally be divided into three main categories.

First, the UN Panel of Experts has indicated that States, including, Turkey, Jordan, and the UAE, act in open disregard of the arms embargo providing military support to the parties of the conflict.

Per se, the violation of the arms embargo is a violation of a Chapter VII Resolution of the Security Council and, thus, a violation of the UN Charter. In addition, as found by the ICJ, these forms of support may be in breach of the principle of non­-intervention and the prohibition of the use of force.

Moreover, when linked to violations of human rights or IHL, military support can lead to additional consequences in terms of State responsibility and individual criminal responsibility.

State responsibility. The conduct in question could be in breach of Article 1 of the Geneva Conventions which requires States not to aid or assist violations of the Conventions. When it comes to arms transfers, States must refrain from transferring weapons if there is an expectation that they would be used to violate the Geneva Conventions. Consistently, in the Nicaragua case the ICJ found that States have an obligation not to encourage groups to engage in IHL violations (Nicaragua Case, paras.202, 292(9)).

Notably, addressing the question of the arms transfers by France, the UK, and the US to parties involved in the Yemeni conflict, the Yemen Commission of Inquiry concluded that the military and logistic support to a party to the conflict could amount to aiding and assisting the party in the commission of an internationally wrongful act (para.918).

Individual criminal responsibility. If connected to an international crime, the provision of military support may give rise to international criminal responsibility for the agents of such third countries under customary law and the Rome Statute. Pursuant to the Resolution 1970, the ICC has jurisdiction over crimes committed in the context of the ongoing conflict. Conducts aimed at providing military and logistical support that contribute to war crimes, for instance, qualify as aiding and abetting, under Article 25(3)(c) of the Rome Statute or liability under Article 25(3)(d) which criminalises any form of assistance to a group with a common purpose.

I now turn to the second set of allegations related to the interference of third States in the Libyan conflict, namely those related to violations connected to air strikes carried out by military jets and drones. According to the UN Panel of Experts, airstrikes conducted by foreign countries in support of the LNA resulted in disproportionate and indiscriminate attacks killing civilians.

Allow me to say that what is particularly disturbing about such allegations is that while there are clear indications that foreign states are directly involved in such attacks, there is still a lack of clarity on the origin or attribution of these operations. No State has acknowledged its responsibility for such operations.

Attributing responsibility for the attacks is one of the most challenging aspects if we want to scrutinise the acts of third-party interference in the Libya conflict. Nevertheless, such task is important given that such attacks may amount to a violation of IHL and qualify as war crimes.

Similar considerations also apply to the third feature of the foreign intervention in Libya, participation in the conflict trough the recruitment of the mercenaries. Both the UN Secretary General and UN Panel of Experts highlighted the growing involvement of foreign mercenaries on both sides of the conflict which have been implicated in IHL violations. The UN Working Group on the use of mercenaries referred to the recruitment of members of the so-called Syrian National Army fighting on the side of GNA and deployment of members of the Russian Wagner Group in support of the LNA.

Again, a full investigation is required to assess the connection of the mercenaries to third States. Their involvement in procuring mercenaries for the Libyan Conflict, per se, is in violation of the arms embargo and when connected to IHL or Human Rights violations may engage personal and state responsibility as I explained earlier. If instead States exercise effective control over such mercenaries, automatically then may be held responsible for their actions.

Finally, I would like to mention that these considerations similarly apply to any human rights violations committed against migrants in detention in Libya. European countries’ cooperation with Libyan authorities in the area of migration resulted in the support to practices that are inconsistent with international human rights standards. As the other civilians in Libya, migrants have been exposed to the violence of the hostilities of the second Libya civil war. State assistance to international wrongful acts of other states will inevitably attract State Responsibility for such an act under Article 16 of the Articles of State Responsibility.

I hope that I did not enter to much in the legal technicalities of the question. However, the allegations I’ve highlighted today indicate that the role of such third parties is now so inextricably linked to the conflict and the human rights violations committed in Libya that any attempts to establish accountability for such violations requires comprehensive scrutiny of their acts and conducts as well.

Overlooking or sidestepping such question may result in an incomplete exercise inconsistent with the right of victims of serious human rights violations to know the truth and to obtain full accountability for the abuses suffered.

In this regard, the broad mandate of the FFM encompasses such alleged violations and I hope that indeed it does investigate such types of violations. But the FFM cannot be left alone with such challenging mission. States must also assist the mission and when possible try to put an end of jus cogens violations arising in Libya.