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Decision on the Admissibility of the Case Against Saif Al-Islam Gaddafi

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Decision on the Admissibility of the Case Against Saif Al-Islam Gaddafi ICC-01/11-01/11-344-Red 31-05-2013 1/91 FB PT Cour Pénale ^, Internationale International Criminal Court Original: English No.: ICC-01/11-01/11 Date: 31 May 2013 PRE-TRIAL CHAMBER I Before: Judge Silvia Fernandez 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 Decision on the admissibility of the case against Saif Al-Islam Gaddafi No. ICC-01/11-01/11 1/91 31 May 2013 ICC-01/11-01/11-344-Red 31-05-2013 2/91 FB PT Décision 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 Fatou Bensouda John R.W.D. Jones Counsel for Abdullah Al-Senussi Benedict Emmerson Legal Representatives of Victims Legal Representatives of Applicants Unrepresented Victims Unrepresented Applicants for Participation/Reparation The Office of Public Counsel for The Office of Public Counsel for the Victims Defence Paolina Massidda States Representatives Amicus Curiae Ahmed El-Gehani Philippe Sands Payam Akhavan Michelle Butler REGISTRY Registrar Deputy Registrar Herman von Hebel Didier Preira Victims and Witnesses Unit Detention Section Victims Participation and Reparations Others Section No. ICC-01/11-01/11 2/91 31 May 2013 ICC-01/11-01/11-344-Red 31-05-2013 3/91 FB PT Contents I. PROCEDURAL HISTORY 4 IL LIBYA'S ADMISSIBILITY CHALLENGE 11 A. The initial submission 11 B. Oral submissions at the Admissibility Hearing 13 C. Libya's Further Submissions 15 D. Libya's Reply to the Responses to its Fiuther Submissions 17 IIL BURDEN, STANDARD OF PROOF AND TYPE OF EVIDENCE 18 A. Submissions 18 B. Findings of the Chamber 22 W. THE CASE UNDER INVESTIGATION OR PROSECUTION 25 A. The same case 26 a. Submissions 26 b. Findings ofthe Chamber 30 B. Analysis of facts and evidence 36 a. Submissions 37 b. Findings of the Chamber 44 V. WILLINGNESS OR ABILITY GENUINELY TO INVESTIGATE AND PROSECUTE 58 A. Submissions 59 a. Prosecutor 59 b. OPCV 61 c. Defence 64 d. The Amici Curiae 74 e. Libya 75 B. Findings of the Chamber in relation to the inability of Libya genuinely to carry out the investigation or prosecution 82 C. Findings of the Chamber in relation to the unwillingness of Libya genuinely to carry out the investigation or prosecution 89 VL CONCLUSION 90 No. ICC-01/11-01/11 3/91 31 May 2013 ICC-01/11-01/11-344-Red 31-05-2013 4/91 FB PT Pre-Trial Chamber I (the "Chamber") of the Intemational Criminal Court (the "Court") issues the following decision on Libya's challenge to the admissibility of the case against Saif Al-Islam Gaddafi ("Mr Gaddafi") under article 19 of the Rome Statute (tiie "Statute").^ L PROCEDURAL HISTORY 1. On 26 February 2011, the United Nations Security Council ("Security Council") adopted Resolution 1970, whereby it referred to the Prosecutor of the Court the situation in Libya since 15 February 2011.^ 2. On 27 June 2011, the Chamber issued the Warrant of Arrest for Saif Al- Islam Gaddafi (the "Warrant of Arrest"), having found reasonable grounds to believe that he is criminally responsible under article 25(3)(a) of the Statute for the commission of crimes against humanity of murder and persecution in various locations of the Libyan territory, in particular in Benghazi, Misrata, Tripoli and other neighbouring cities, from 15 February 2011 until at least 28 February 2011 in violation of articles 7(l)(a) and (h) of the Statute.^ 3. On 1 May 2012, Libya filed a challenge to the admissibility of the case against Mr Gaddafi (the "Admissibility Challenge") and requested that the Chamber postpone the execution of the surrender request pursuant to article 95 of the Statute.^ Libya subsequently filed perfected translations of the 1 Application on behalf of the Govemment of Libya pursuant to Article 19 of the ICC Statute, 1 May 2012, ICC-01/11-01/11-130-Conf, with Annexes A-K (public redacted version in ICC- 01/11-01/11-130-Red). 2 United Nations Security Council, Resolution 1970, 26 February 2011, S/RES/1970 (2011), para. 4. 3 Pre-Trial Chamber I, Warrant of Arrest for Saif Al-Islam Gaddafi, 27 June 2011, ICC-01/11- 01/11-3; Pre-Trial Chamber I, Decision on the "Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah AL- Senussi, 27 June 2011, ICC-01/11-01/11-1 (the "Article 58 Decision"). 4 Application on behalf of the Govemment of Libya pursuant to Article 19 of the ICC Statute, 1 May 2012, ICC-Ol/ll-Ol/ll-130-Conf, with confidential Annexes A-K, (public redacted version in ICC-Ol/ll-Ol/ll-130-Red). No. ICC-01/11-01/11 4/91 31 May 2013 ICC-01/11-01/11-344-Red 31-05-2013 5/91 FB PT annexes to its Admissibility Challenge^ and a compilation of the relevant provisions of Libyan law referred to in the Admissibility Challenge.^ 4. On 4 May 2012, the Chamber determined the proceedings to be followed for the purposes of the Admissibility Challenge and invited submissions from the Prosecutor, the Office of Public Counsel for the defence (the "OPCD"), the Office of Public Counsel for victims (the "OPCV"), and the Security Council of the United Nations. ^ Counsel of the OPCD (the "Defence") had previously been appointed to represent Mr Gaddafi pursuant to regulation 76(2) of the Regulations of the Court.^ 5. On 18 May 2012, the Chamber granted leave under rule 103 of the Rules of Procedure and Evidence (the "Rules") to Lawyers for Justice in Libya and the Redress Trust to submit observations on the Admissibility Challenge by 8 June 2012.9 6. On 1 June 2012, the Chamber decided that Libya may postpone the execution of the request for surrender of Mr Gaddafi pursuant to article 95 of 5 Libyan Government's Re-filing of Confidential Annexes to its Article 19 Admissibility Challenge, 15 May 2012, ICC-Ol/ll-Ol/ll-145-Conf, with confidential Annexes C-F; Libyan Government's Re-filing of Public Annexes to its Article 19 Admissibility Challenge, 15 May 2012, ICC-01/11-01/11-144, with Annexes A, B and G-K. 6 Libyan Government's filing of compilation of Libyan law referred to in its admissibility challenge, 28 May 2012, ICC-01/11-01/11-158, with Annexes A and B. 7 Pre-Trial Chamber I, Decision on the Conduct of the Proceedings Following the "Application on behalf of the Government of Libya pursuant to Article 19 of the Statute, 4 May 2012, ICC-01/11-01/11-134. 8 Pre-Trial Chamber I, Decision Appointing Counsel from the OPCD as Counsel for Saif Al- Islam Gaddafi, 17 April 2012, ICC-01/11-01/11-113. 9 Pre-Trial Chamber I, Decision on the "Application by Lawyers for Justice in Libya and the Redress Trust for Leave to Submit Observations pursuant to Rule 103 of the Rules of Procedure and Evidence", 18 May 2012, ICC-01/11-01/11-153. No. ICC-01/11-01/11 5/91 31 May 2013 ICC-01/11-01/11-344-Red 31-05-2013 6/91 FB PT the Statute until such time that the Chamber has ruled on the Admissibility Challenge.^^ 7. On 4 June 2012, the Prosecutor and the OPCV filed responses to the Admissibility Challenge (the "Prosecutor's Response to the Admissibility Challenge"" and tiie "OPCV's Response to tiie Admissibility Challenge" ^2)^ The observations of Lawyers for Justice in Libya and the Redress Trust were presented on 8 June 2012 (the "Amici Observations").^^ The response of the Defence to Libya's Admissibility Challenge was filed on 24 July 2012 (the "Defence Response").^^ 8. On 14 September 2012, the Chamber issued an order convening a hearing on Libya's Admissibility Challenge on 8 and 9 October 2012 (the "Admissibility Hearing") in which it decided, inter alia, that (i) at the hearing, Libya would be invited to provide its reply to the responses, (ii) at the hearing, Libya, the Prosecutor, the Defence and the OPCV would be given the opportunity to complement their respective previous submissions and evidence relevant to the Admissibility Challenge; and (iii) 3 October 2012 was the final date for all parties and participants to file in the record of the case 10 Pre-Trial Chamber I, Decision on the postponement of the execution of the request for surrender of Saif Al-Islam Gaddafi pursuant to article 95 of the Rome Statute, 1 June 2012, ICC-01/11-01/11-163. 11 Prosecution response to Application on behalf of the Govemment of Libya pursuant to Article 19 of the ICC Statute, 4 June 2012, ICC-Ol/ll-Ol/ll-167-Conf, with Annex 1 (public redacted version in ICC-Ol/ll-Ol/ll-167-Red). 12 Observations on behalf of victims on the Government of Libya's Application pursuant to Article 19 of the Rome Statute, 4 June 2012, ICC-Ol/ll-Ol/ll-166-Conf, with Annexes A and B (public redacted version in ICC-Ol/ll-Ol/ll-166-Red-Corr). 13 Lawyers for Justice in Libya and Redress Trust's Observations pursuant to Rule 103 of the Rules of Procedure and Evidence, 8 June 2012, ICC-01/11-01/11-172. 14 Defence Response to the "Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute", 31 July 2012, ICC-01/11-01/11-190-Conf-Corr, with Annexes 1- 25 (public redacted version in ICC-Ol/ll-Ol/ll-190-Corr-Red).
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