United Nations A/hrc/19/68

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I. Introduction

A. Mandate and Methods of Work

1. On 25 February 2011, the 15th Special Session of the United Nations Human Rights Council (HRC) adopted resolution S-15/1 entitled “Situation of Human Rights in the Libyan Arab Jamahiriya” which, inter alia, decided to dispatch an independent, international Commission of Inquiry.

2. Accordingly, on 15 March 2011, the President of the HRC established the United Nations International Commission of Inquiry and appointed its three members, Ms. Asma Khader (Jordan), Mr. Philippe Kirsch (Canada), and Mr. M. Cherif Bassiouni (Egypt). The President also designated Mr. M. Cherif Bassiouni as the Chair of the Commission, a role taken over by Mr. Kirsch in October 2011. The Office of the United Nations High Commissioner for Human Rights (OHCHR) supported the Commission with a Secretariat.

3. Paragraph 11 of resolution S-15/1 requested the Commission “to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, establish the facts and circumstances of such violations and of the crimes perpetrated and where possible, to identify those responsible, to make recommendations, in particular, on accountability measures, all with a view to ensuring that those individuals responsible are held accountable.”

4. In fulfilment of that mandate, on 31 May 2011 the Commission submitted a report to the HRC setting out its findings and conclusions covering the period from the Commission’s inception until 31 May.14 Welcoming the report, the HRC decided to extend the mandate of the Commission in light of the continued fighting in Libya and the extensive and on-going allegations of abuses. It requested the Commission to report back to the HRC with an oral update in September 2011 at its 18th session, and with a second report at the HRC’s 19th session in March, 2012.15 This second report is to be read in conjunction with the Commission’s first report, updating and supplementing the findings therein.

5. The Commission determined that events in Libya between 15 February 2011 and 6 February 2012 fell into three distinct phases.16 Phase I: the protests (15 – 24 February 2011); Phase II: an armed conflict (25 February – 24 October 2011)17; and Phase III: post-conflict (24 October 2011 – present). More information on this progression of events is contained in the “Timeline of Events” section below. The differing legal regimes applicable to each phase are described (see chap I, sect. D).

6. In view of the timeframe within which it had to complete its work and the large number of allegations, the Commission necessarily had to be selective in the choice of issues and incidents for investigation. The report does not purport to be exhaustive. Nevertheless, the Commission considers that the report is illustrative of the main patterns of violations. The Commission based its work on an independent and impartial analysis, and on international investigative standards developed by the United Nations. The Commission adopted an inclusive approach to receiving information and views on matters within its mandate. This included:

(a) Interviews with victims, witnesses and other persons having relevant information. The Mission conducted more than 400 individual interviews. In order to ensure both the safety and privacy of the interviewees and the integrity of the information provided, such interviews were conducted in private to the greatest extent possible. To continue to protect their safety and privacy, the names of the victims, witnesses and other sources are generally not explicitly referred to in the report;

(b) The review of reports of international organizations, including the United Nations; reports and statements produced by non-governmental and civil society organizations (Libyan and international); media reports; and writings of academics and analysts on the conflict;

(c). Site visits on October and December 2011 and January 2012 to specific locations in Libya where incidents had occurred, including in Misrata, Benghazi, Ajdabiya, Bani Walid, Nalut, Yafran, Zintan,Tripoli, Al Zawiyah, Zowara, Al Khums and Al Qalaa, as well as site surveys of battle damage across Libya;

(d) Analysis of video and photographic images, including satellite imagery provided by UNOSAT;

(e) Review of medical reports about injuries to victims;

(f) Forensic analysis of weapons and ammunition remnants found at incident sites;

(g) Meetings with members of the diplomatic community, government officials, NGOs, professional associations, military analysts, medical doctors, legal experts, scientists and United Nations staff; and

(h) Invitations to United Nations Members States and United Nations agencies, departments and bodies to provide information relating to the Commission’s investigation requirements.

7. As with its first report, the Commission took a cautious approach in assessing the information gathered.18 It relied where possible on facts which it observed first-hand or which came from first-hand accounts. The Commission bore in mind that it was not seeking evidence of a standard to support a criminal conviction, rather it made its assessments based on a “balance of probabilities” as to whether the information gathered supported a finding that a violation had in fact occurred.19

8. The Commission emphasizes that it is not a court of law and that its investigations were not undertaken with the time, resources, and judicial tools (such as subpoena powers) that normally characterize criminal investigations. It further recognizes that the legal regimes applicable to the crimes and violations under review here comprise a complex arena of international law and the jurisprudence on some issues is not altogether settled. Thus, the findings and conclusions with respect to specific crimes and violations must be read in that light.

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