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12 February 2013 PRE-TRIAL CHAMBER I Before ICC-01/11-01/11-276-Red2 12-02-2013 1/20 FB PT Original: English No.: ICC-01/11-01/11 Date: 12 February 2013 PRE-TRIAL CHAMBER I Before: Judge Silvia Fernández de Gurmendi, Presiding Judge Judge Hans-Peter Kaul Judge Christine Van den Wyngaert SITUATION IN LIBYA IN THE CASE OF THE PROSECUTOR v. SAIF AL-ISLAM GADDAFI and ABDULLAH AL-SENUSSI Public Redacted version With Public Annexes A and B and Confidential – Ex Parte, Prosecution, Defence and OPCV only Annex C Prosecution’s Response to “Libyan Government’s further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi” Source: Office of the Prosecutor ICC-01/11-01/11 1/20 PURL: https://www.legal-tools.org/doc/b75381/12 February 2013 ICC-01/11-01/11-276-Red2 12-02-2013 2/20 FB PT Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for Saif Al-Islam Gaddafi Xavier-Jean Keita Melinda Taylor Counsel for Abdullah Al-Senussi Benedict Emmerson Rodney Dixon Legal Representatives of Victims Legal Representatives of Applicants Unrepresented Victims Unrepresented Applicants for Participation/Reparation The Office of Public Counsel for Victims The Office of Public Counsel for the Paolina Massidda Defence Sarah Pellet Mohamed Abdou States Representatives Amicus Curiae Philippe Sands Payam Akhavan Michelle Butler REGISTRY Registrar Counsel Support Section Ms Silvana Arbia Deputy Registrar Mr Didier Preira Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section ICC-01/11-01/11 2/20 PURL: https://www.legal-tools.org/doc/b75381/12 February 2013 ICC-01/11-01/11-276-Red2 12-02-2013 3/20 FB PT Introduction 1. Libya submits that it is investigating Saif Al-Islam for the same case as the ICC and that the investigation is nearly complete. Libya says that it is unable to provide the requested evidential material at this stage because its legislation does not allow disclosure until the case reaches the accusation stage. Libya provides, however, a sample of the evidence: REDACTED witness summaries, REDACTED witness testimonies, phone intercepts and flight documentation. 2. The Prosecution submits that while it appears that Libya has taken some concrete investigative measures, the material provided is insufficient to establish, on a balance of probabilities, that Libya is investigating the same case. The Prosecution submits, however, that due consideration should be given to the challenges that Libya is facing in this transitional post-conflict stage and to the fact that it has secured relevant international assistance. Therefore, the Prosecution considers that Libya should be afforded reasonable time to provide additional materials to demonstrate that it is investigating the same case. Procedural Background 3. On 16 May 2011, the Prosecution requested an arrest warrant for Muammar Gaddafi, Saif Al-Islam Gaddafi (“Saif Al-Islam”) and Abdullah Al-Senussi (“Al- Senussi”).1 On 27 June 2011, Pre-Trial Chamber I decided on the Prosecution’s application (“Article 58 Decision”)2 and issued arrest warrants against Muammar Gaddafi and Saif Al-Islam as indirect co-perpetrators under article 25(3)(a) for the crimes of murder and persecution committed in various localities in Libya, in particular, Tripoli, Benghazi and Misrata from 15 to 28 February 2011.3 On the same date, the Pre-Trial Chamber issue an arrest warrant against Abdullah Al- 1 ICC-01/11-4-Red. 2 ICC-01/11-1. 3 ICC-01/11-13 and 14. ICC-01/11-01/11 3/20 PURL: https://www.legal-tools.org/doc/b75381/12 February 2013 ICC-01/11-01/11-276-Red2 12-02-2013 4/20 FB PT Senussi as a principal under article 25(3)(a) for the crimes of murder and persecution committed in Benghazi from 15 till 20 February 2011.4 4. On 22 November 2011, the proceedings regarding to Muammar Gaddafi were terminated due to his death.5 5. On 1 May 2012, the Chamber received the "Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute", challenging the admissibility of the case against Saif Al-Islam ("Admissibility Challenge").6 Libya indicated that it was investigating Saif Al-Islam for the same case as the ICC and provided REDACTED witness summaries as supporting material.7 The Office of Public Counsel for victims ("OPCV"),8 the Prosecution9 and the Office of Public Counsel for the defence ("OPCD")10 filed responses. 6. On 9 and 10 October 2012, the Chamber held a hearing on the admissibility of the case against Saif Al-Islam ("Admissibility Hearing"), in the presence of representatives of Libya, the Prosecutor, OPCD and OPCV.11 7. On 7 December 2012, the Pre-Trial Chamber requested Libya to provide the evidence on which it intends to rely for the purposes of its Admissibility Challenge and its submissions on concrete issues related to Libya’s domestic proceedings by 23 January 2013 (“Pre-Trial Chamber’s Request”).12 The Prosecution was instructed to provide its assessment on the admissibility of the case, taking into account the material provided by Libya and any additional information gathered by the Prosecution from other sources.13 4 ICC-01/11-15. 5 ICC-01/11-01/11-28. 6 ICC-01/11-01/11-130-Red. 7 ICC-01/11-01/11-145-Conf-AnxC. 8 ICC-01/11-01/11-166-Red-Corr. 9 ICC-01/11-01/11-167-Red (“Prosecution’s First Response”). 10 ICC-01/11-01/11-190-Corr-Red. 11 ICC-01/11-01/11-T-2-Red-ENG and ICC-01/11-01/11-T-3-Red-ENG. 12 ICC-01/11-01/11-239, paras.14-47 and p.23. 13 ICC-01/11-01/11-239, paras.50-51. ICC-01/11-01/11 4/20 PURL: https://www.legal-tools.org/doc/b75381/12 February 2013 ICC-01/11-01/11-276-Red2 12-02-2013 5/20 FB PT 8. On 23 January 2013, Libya filed its “further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi” (“Libya’s Submissions”).14 Samples of evidence were attached in Annexes 4-7 and 15-17, which were filed ex parte, Pre-Trial Chamber and Prosecution only. 9. On 7 February 2013, following a motion of the OPCD and response from Libya, the Pre-Trial Chamber reclassified the relevant annexes as confidential with certain redactions and extended the deadline for OPCD and OPCV to respond to 18 February 2013.15 Confidentiality 10. The Prosecution files its response confidential because it refers to documents that have this same level of confidentiality. REDACTED.16 REDACTED. Libya’s Submissions 1. The Libyan investigation and the evidence submitted 11. Libya asserts that it is investigating the same case, namely, the same incidents and the allegations of criminal responsibility with respect to Saif Al-Islam, in particular acts of murder, abductions, arrest and torture of dissidents.17 Libya’s case against Saif Al-Islam is however broader than the ICC’s: it includes financial crimes and the timeframe and geographic scope are significantly broader, extending from 11 February 2011 through October 2011, and including other localities such as Bani Walid and other parts of Libya.18 Saif Al-Islam is being investigated for “ordinary” crimes (such as intentional murder, indiscriminate or 14 ICC-01/11-01/11-258-Red2. 15 ICC-01/11-01/11-271-Red. 16 REDACTED. 17 Libya’s Submissions, paras.63-68, 82-83; Annex 3. 18 Ibid., paras.63-65. ICC-01/11-01/11 5/20 PURL: https://www.legal-tools.org/doc/b75381/12 February 2013 ICC-01/11-01/11-276-Red2 12-02-2013 6/20 FB PT random killings and torture),19 as the draft law designed to incorporate international crimes into the Libyan law has not been approved.20 12. Libya further notes that the domestic prosecution team will seek to join the case of Saif Al-Islam (229/2012) with the case against 10 other persons (630/2012), all high officials of Gaddafi’s regime, including Al-Senussi. The Chambre d’Accusation will, however, make the ultimate decision on joinder.21 13. Notably, Libya indicates that at this stage it cannot provide to the Pre-Trial Chamber all the investigative measures taken and information requested because its internal legislation (in particular Article 59 of the Code of Criminal Procedure) does not allow disclosure until the case reaches the accusation stage.22 However, Libya has provided a “sample” of this material as supporting documentary evidence, in particular, REDACTED witness testimonies, phone intercepts and flight documentation.23 According to Libya, these samples are “limited and indicative examples of the many pieces of documentary evidence which are contained within the investigative file in Tripoli relating to Mr. Gaddafi” and provide “substantial documentary proof” that Libya is investigating the same factual incidents and allegations of criminal responsibility of Saif Al-Islam as those described in the Article 58 Decision.24 14. Libya proposes that the Chamber send a representative or a delegation to Libya to view the entire case file or otherwise to allow Libya six additional weeks to prepare copies and English translations of the investigative materials.25 19 Ibid., paras.81-82. 20 Ibid., paras.78-80. 21 Ibid., para.59. Annex 11. 22 Ibid., paras.29-32. 23 REDACTED. Note that these annexes were subsequently disclosed to OPCD and OPCV with minor redactions. 24 Libya’s Submissions, paras.70-71. See also paras.72-73. 25 Ibid., para.70. ICC-01/11-01/11 6/20 PURL: https://www.legal-tools.org/doc/b75381/12 February 2013 ICC-01/11-01/11-276-Red2 12-02-2013 7/20 FB PT 2.
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