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Public Redacted Version of ICC-Ol/11-24-Conf-Exp-Anxl ICC-01/11-24-Anx1-Red 05-06-2012 2/12 NM PT ICC-01/11-24-Anx1-Red 05-06-2012 1/12 NM PT Public redacted version Of ICC-Ol/11-24-Conf-Exp-Anxl ICC-01/11-24-Anx1-Red 05-06-2012 2/12 NM PT Cour Penale , , Internationale t~\ -----------, J! ----------- International ~ # Criminal Court Original: English No.: ICC-OVll Date: 01/06/2012 PRE-TRIAL CHAMBER I Before: Judge Silvia Fernandez de Gurmendi, Presiding Judge Judge Hans-Peter Kaul Judge Christine Van den Wygaert SITUATION IN LIBYA Public Document with Confidential Annexes 1 & 2, ex parte, Legal Representative Only Aisha Gaddafi's request for information relating to the Prosecutor's investigation of the murder of Muammar Mohammed Abu Minyar Gaddafi Source: Aisha Gaddafi, represented by Nicholas Kaufman No.ICC-Ol/II-0VII 1/9 1 June 2012 ICC-01/11-24-Anx1-Red 05-06-2012 3/12 NM PT Document to be notified in accordance with regulation 31 of the Regulations ofthe Court to: The Office of the Prosecutor Counsel for the Defence Mr. Luis Moreno-Ocampo, Prosecutor Ms. Fatou Bensouda, Deputy Prosecutor Legal Representatives of the Victims Legal Representatives of the Applicants Mr. Nicholas Kaufman Unrepresented Victims Unrepresented Applicants (ParticipationlReparation) The Office of Public Counsel for The Office of Public Counsel for the Victims Defence States' Representatives Amicus Curiae REGISTRY Registrar Defence Support Section Ms. Silvana Arbia Deputy Registrar Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section No. ICC-01l11-01111 2/9 1 June 2012 ICC-01/11-24-Anx1-Red 05-06-2012 4/12 NM PT Relevant Procedural Background 1. On 20 October 2011, Muammar Gaddafi and Mutassim Gaddafi were tortured and subsequently murdered near Sirte, Libya. 2. On 13 December 2011, Aisha Gaddafi petitioned the Prosecutor of the International Criminal Court ("the Prosecutor") asking to know what steps he had taken to investigate the crimes committed against her father and brother. The text of the letter is set out below: As you are aware, your analysis of the Situation in Libya requires you to investigate the commission of alleged crimes by all parties to the conflict. To date, neither Ms. Gaddafi nor any member of her family has been informed, by your office, of the initiation of an investigation into the circumstances surrounding the brutal murders of her father Muammar Gaddafi and brother Mo'atassim Gaddafi. From the information at my disposal, it is clear that both Muammar Gaddafi and Mo'atassim Gaddafi were captured alive at a time when they posed no threat to anyone. They were subsequently murdered in the most horrific fashion with their bodies thereafter displayed and grotesquely abused in complete defiance of Islamic law. The images of this savagery were broadcast throughout the world causing my client severe emotional distress. In order, therefore, to assure my client that your office is faithfully carrying out an impartial investigation into all aspects of the Libyan situation, I would be grateful if you could provide me with answers to the following questions: 1) Is your office currently investigating the circumstances surrounding the murder of my client's father Muammar Gaddafi and brother Mo'atassim Gaddafi ? 2) If your office is not currently investigating the aforementioned crimes could you explain why and what steps have you taken to ensure that the Libyan authorities are, themselves, investigating the matter properly and in accordance with international investigative standards? 3) Is your office investigating the attack allegedly carried out by NATO forces on Muammar Gaddafi's convoy in order to determine whether individual criminal responsibility should be assigned for an unlawful military attack? If not, could you explain why not? 4) Has your office received written details of the post-mortems performed on my client's father Muammar Gaddafi and brother Mo'atassim Gaddafi ? If so, could you please send these documents to me? No. ICC-ot/1t-ot/1t 3/9 1 June 2012 ICC-01/11-24-Anx1-Red 05-06-2012 5/12 NM PT 5) Could you explain why your office did not feel it necessary to send an independent expert of its own to assist with and/or perform a separate post-mortem on my client's father Muammar Gaddafi and brother Mo'atassim Gaddafi? 3. On 16 December 2011, the Prosecutor went on the public record stating that the murder of Muammar Gaddafi was a possible war crime. 1 l 4. On 20 December 2011, the Office of the Prosecutor ("0Tp ) replied to Counsel as follows: Th'lnk you for yL)UT letter dated J:'l DI!CemDeT 201 J which rou writ\' in your capacity d~ thl' )L'gal rttpresl'ntative uf ~h Ais.ha GadJafi. Th~ Pruset:utiun has 3 dutr of impartiality and consist~"ntly ~Ir(,f;s('d the' nE.'ed to investigate allegations of wilr ,rimes wmmittt'd by diHen'nt p.i1rti(·s to thl' ((lnHkl in lih}';:). libyan authorities promised to investig<1h' the circumstances of :v(u.lmmar Gaddafi'!:\ deaHl. The nt'w government has al!\;o informt"'d lh(" Proscrutnr thtH 'h('y Me prepLlring a gem'ral strategy to dt~"l] with all th(' nlows commitlcd in Libya. The Officc oi the I'rosccutor (OTP) will rC'"it'W sUl.-h .ldivtti€'5 and make its findings public:- in :\'lar 2012 during the rro~ccutor's sN:ond f('port to the L'nitt>d ~ation~ Security Council. During this wpnrt, Hw OT? ~...it1 preSt'nl its <;tr.llC'gy with r\.'~ards to future investigations of alleged war crimt'S rommilkd in Ul'lya indtH.iin~ the killin~ of ~luammarGaddari. Sin((' thr- Cour! 15 compll::'lHentary to national procecding:., tbe OTP "tratt.'SY ~..·iIt dt~p('nd on the ac:th'itiC'~ of th(' Libyan n'4titlu'l! .1utlwritil.'s .mli whether lhcy an~ gt"nuim~l.r carrying out 'iud, irw('stig.1tions, The possibility to cundm:t further in\"Cstigatkm~is l>uhjen to th" i'lppro\'C)J uf lht! blld~d rt!que:.otcd ~urr~ntl~' l1nd~r djst'us... h~n in i'\~"w York. 5. On 16 May 2012, the Prosecutor presented his third (not second) report on the Libyan situation to the Security Council of the United Nations.2 Despite declaring his intent to investigate alleged incidents of gender crime and arbitrary arrests, the Prosecutor made no mention whatsoever of his proposed strategy for investigating the murders of Muammar Gaddafi and Mutassim Gaddafi. 1 http://af.reuters.com/artic1e/topNevvs/idAFJOE7BFOOC20111216: ""I think the way in which Mr Gaddafi was killed creates suspicions of ... war crimes," ICC prosecutor Luis Moreno-Ocampo told reporters". 2http://www.icc-cpi.intINRJrdonlvresID313B617-6A86-4D64-88AD- A89375C 18FB9/0lUNSCreportLibvaMav2012Eng.pdf. No. ICC-Otllt-Otllt 4/9 1 June 2012 ICC-01/11-24-Anx1-Red 05-06-2012 6/12 NM PT Submission 6. Aisha Gaddafi has standing to petition this learned Pre-Trial Chamber in so far as she is a communicating victim applicant in the Libyan Situation and in the case against Saif-al-Islam Gaddafi. This standing has been recognized by the Registry3 and gives Aisha Gaddafi certain rights and expectations. Indeed, Pre-Trial Chamber II has ruled that there can arise various scenarios at the situational stage where the personal interests of victims may be affected and where judicial scrutiny is required. Pre-Trial Chamber II did not limit such scenarios, so it is submitted, to a closed category and stipulated "that there may be other instances where victims' participation may be deemed appropriate by the Chamber. "4 7. Aisha Gaddafi meets the requirements for victim status under Rule 85 of the Rules of Procedure and Evidence. She is a natural person who has suffered severe emotional trauma after witnessing the slaying of her father. As mentioned above, the Prosecutor himself has recognized that the murder of Muammar Gaddafi was a possible war crime. The trauma suffered by Aisha Gaddafi thus constitutes harm which has arisen "as a result" of a crime falling within the jurisdiction of the Court. 8. Aisha Gaddafi's present petition also satisfies the requirements for participation under Article 68(3) of the Rome Statute since her personal interests will be affected by the failure of the Prosecutor to instigate an investigation into the circumstances surrounding the murder of her father and brother. Indeed, the expectation of a "thorough and effective investigation capable ofleading to the identification and punishment ofthose responsible including effective access for the complainant to the investigative procedure" has been recognized as a 3 ICC-01/11-01l11-161+Anx1 and Rule 59(2) ofthe Rules ofProcedure and Evidence 4 ICC-Ol109-24 at paragraph 12. No. ICC-ot/1t-ot/tt 5/9 1 June 2012 ICC-01/11-24-Anx1-Red 05-06-2012 7/12 NM PT right protected under customary international law and acknowledged as such in the jurisprudence of the International Criminal Court.5 9. The Pre-Trial Chamber is reminded that the UN International Commission of Inquiry into Libya concluded that "further investi~ation" was required in order to establish the exact circumstances of the deaths of Muammar and Mutassim Gaddafi.6 The International Commission of Inquiry also clearly established that the bodies of Muammar Gaddafi and Mutassim Gaddafi were displayed in contravention of international humanitarian law and that they were both subjected to grievous ill treatment and torture before being killed. Aisha Gaddafi suggests that the murder of her father - the public assassination of the leader of a nation and a former head of the African Union - is of no less gravity than either the murder of Rafiq-al-Hariri or the murder of AMIS peacekeepers at Haskanita (Sudan) both of which are being prosecuted before international criminal tribunals.
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