25 years of the Rome Statute: is it too late for the International Criminal Court to keep its promise to victims in Libya?

Twenty-five years after the adoption of the Rome Statute of the International Criminal Court (ICC or the Court), the Court is at risk of abandoning the rights of victims of the crimes it was asked to investigate and prosecute, namely genocide, crimes against humanity and war crimes. There is no clearer example of this than in the case of Libya, where twelve years on after the Court began its Libya investigation, justice is yet to be delivered and victim’s rights are being overlooked.

On 17 July 1998, the Rome Statute was the first of its kind to be established, not only as a landmark of international criminal justice, but also in its explicit treatment of victims as rights-holders. The Statute set out an innovative framework to give effect to the rights of victims – namely through the right to be informed about the work of the Court and to participate in relevant proceedings not just as witnesses, but as independent stakeholders to share their views and concerns, and the right to physical and psychological protection (for example, Article 68, 15 and 19). The Statute also factored in the right to reparation, including compensation (Article 75). The Court’s Rules of Procedure and Evidence then translated this into concrete processes for victim engagement.

By adopting the Statute, States made clear that justice should not only be about punishing perpetrators and upholding the rule of law in abstract terms, but it must also attempt to repair, to the extent possible, the harm victims have suffered.

However, today it appears that the Court, as well as States that provide funding for its work, have given up on this principle. Despite State representatives regularly calling for the delivery of justice to victims and invoking their suffering in speeches and briefings, the Court’s current focus on accountability and the fight against impunity is to the clear detriment of victims who seem to be largely excluded from the process.

The Libya situation offers a clear example of how the Court's approach has almost exclusively focused on investigations and not on victims’ rights, with victims being treated only as potential witnesses, rather than rights-holders to be informed and engaged as stakeholders in the justice process. There is limited outreach and opportunities for these victims to share their views outside of evidence. Moreover, the Court’s engagement with Libyan civil society, which is closest to victims and affected communities, has also been minimal and intermittent, and disregarding of the range of information they can provide when engaged effectively.

Our research has also illustrated how this lack of engagement significantly undermined the Court's legitimacy and credibility across Libya. For victim who have suffered and continue to suffer ongoing crimes against humanity, as in the case for migrants and refugees trapped in Libya, the route towards justice and accountability remains elusive, particularly while it is unclear to what extent the Court is investigating these crimes. Despite a plethora of documentation of violations against migrants and refugees, they remain outside the engagement of the Court.

For Court officials, such lack of victim engagement and outreach is an inevitable consequence of resource constraints, which has led them to operate in a way where victims' rights are only relevant when judicial proceedings are taking place, and after securing the arrest of a suspect. The practice of excluding victims at earlier stages in the Court’s work has thus become normalised, making the Court inaccessible and irrelevant to victims so far. As a result, victims' rights in Libya have become an afterthought, if not an unpractical complication and a financial burden, and justice before the ICC risks being only about the outcome, not about the process. This is not the vision that was enshrined in the Rome Statute 25 years ago.

For Libya, this will require significant additional State Party funding for activities that realise victims’ rights, such as ensuring that victims and affected communities are adequately informed, have access to channels to express their views, and are empowered to meaningfully participate in proceedings. Information should systematically be made available in Arabic and other relevant languages through accessible channels and be tailored to different victims’ and affected communities’ needs and concerns. Better coordination and exchange across Court organs – such as the outreach and communication unit, and the victim participation and reparations service – with the Office of Prosecutor is also required to develop and implement proactive victims’ strategy. This demands a shared understanding of the importance of engaging victims at the earliest possible stage.  

The Court also needs to better engage Libyan civil society organisations (CSOs) by devising continuous channels for engagement that are tailored to the specific realities of CSOs in each situation and developing adequate protection measures for CSOs that frequently face intimidation, attacks and reprisals because of their documentation work and collaboration with the Court.  

Despite its shortcomings, the Libya situation is testament to the continued importance of the ICC, and the issuance of four new arrest warrants for Libya this year presents an unmissable opportunity to do things differently.

While other international investigative mechanisms have come and gone such as Independent Fact-Finding Mission on Libya, which terminated without renewal by the Human Rights Council and without an independent follow-up body to take forward its findings, atrocities continue to be committed with rampant impunity, and the domestic justice system remains incapable and unwilling to enact accountability. The ICC remains the only mechanisms to investigate serious international crimes committed in Libya – this is a responsibility that should not be taken lightly.

It is high time to realise the Rome Statue’s promise to victims and ensure that they are truly put at the heart of the work of the ICC, in Libya and in every other situation.