Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi: Decision on the Admissibility of the Case Against Abdullah Al-Senussi (INT’L CRIM. CT.)

Gabriela Augustínyová

doi:10.5305/intelegamate.53.2.0273

* This text was reproduced and reformatted from the text available at the International Criminal Court website (visited April 17, 2014), http://www.icc-cpi.int/iccdocs/doc/doc1663102.pdf.

1 Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-466, Decision on the Admissibility of the Case Against Abdullah Al-Senussi (Oct. 11, 2013) [hereinafter Decision], http://www.icc-cpi.int/iccdocs/doc/doc1663102.pdf.

2 Situation in the Libyan Arab Jamahiriya, Case No. ICC-01/11-15, Warrant of Arrest for Abdullah Al-Senussi (June 27, 2011),

3 Decision, supra note 1, ¶ 26.

4 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07-1497, Judgment on the Appeal of Mr. Germain Katanga Against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ¶¶ 1, 75-79 (Sep. 25, 2009), http://www.icc-cpi.int/iccdocs/doc/doc746819.pdf.

5 Decision, supra note 1, ¶ 167.

6 Id. ¶ 66.

7 Id. ¶ 307.

8 Id. ¶ 292.

9 Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-403, Libyan Government’s Consolidated Reply to the Responses by the Prosecution, Defence and OPCV to the Libyan Government’s Application relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute, ¶ 146 (Aug. 14, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1633327.pdf.

10 Decision, supra note 1, ¶ 292.

11 Id. ¶ 307.

12 Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al- Senussi, Case No. ICC-01/11-01/11-466-Anx, Annex to the Decision on the Admissibility of the Case Against Abdullah Al-Senussi (Oct. 11, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1663117.pdf.

13 Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11-344, Decision on the Admissibility of the Case Against Saif Al-Islam Gaddafi (May 31, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1599307.pdf.

14 Id. ¶¶ 214-15.

15 Decision, supra note 1, ¶ 308.

16 Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al- Senussi, Case No. ICC-01/11-01/11-468, Appeal on Behalf of Abdullah Al-Senussi Against Pre-Trial Chamber I’s “Decision on the Admissibility of the Case Against Abdullah Al-Senussi” and Request for Suspensive Effect (Oct. 17, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1666694.pdf.

17 See Beth Van Schaack, ICC Case Against Spy Chief Senussi Deemed Inadmissible, Just Security (Oct. 14, 2013, 2:48 PM),.

18 See Kevin Jon Heller, PTC I’s Inconsistent Approach to Complementarity and the Right to Counsel, Opinio Juris (Oct. 12, 2013, 10:43 PM), http://opiniojuris.org/2013/10/12/ptc-inconsistent-approach-right-counsel/.

19 Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court, Statement (June 16, 2003), http://www.iccnow.org/documents/MorenoOcampo16June03.pdf.

1 S/RES/1970 (2011).

2 “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar GADDAFI, Saif Al-Islam GADDAFI and Abdullah AL-SENUSSI”, 16 May 2013, ICC-01/11-4-Conf- Exp. A public redacted version is also available (ICC-01/11-4- Red).

3 Pre-Trial Chamber I, “Warrant of Arrest for Abdullah Al-Senussi”, 27 June 2011, ICC-01/11-01/11-4. See also 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 (hereinafter the “Article 58 Decision”).

4 The Admissibility Challenge was presented in three different versions: a confidential ex parte version, only available to the Prosecutor (ICC-01/11-01/11-307-Conf-Exp); a confidential redacted version, available also to the Defence of Mr Al- Senussi and the Office of Public Counsel for victims (ICC-01/11-01/11-307-Conf-Red); and a public redacted version (ICC-01/11-01/ll-307-Red2). For the purposes of the present decision, the Chamber has considered the version of the Admissibility Challenge that was made available to all the parties and participants of the present proceedings, i.e. the confidential redacted version.

5 “Prosecution’s Response to ‘Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute’”, ICC-01-11-01/11-321-Conf. A public redacted version is also available (ICC-01/11-01/11-321-Red).

6 Pre-Trial Chamber I, “Decision on the conduct of the proceedings following the ‘Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute’”, 26 April 2013, ICC-01/11-01/11-325.

7 “Defence Response on behalf of Mr. Abdullah Al-Senussi to ‘Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute’”, 14 June 2013, ICC-01/11-01/11-356.

8 “Observations on behalf of victims on the ‘Application on behalf of the Government of Libya relating to Abdullah Al- Senussi pursuant to Article 19 of the ICC Statute’”, 14 June 2013, ICC-01/11-01/11-353-Conf. A public redacted version is also available (ICC-01/11-01/11-353-Red).

9 Pre-Trial Chamber I, “Decision on the Prosecutor’s request for leave to present additional observations on Libya’s challenge to the admissibility of the case against Abdullah Al-Senussi”, 11 June 2013, ICC-01/11-01/11-351.

10 “Prosecution’s Additional Observations to the ‘Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute”, 14 June 2013, ICC-01/11-01/11-355.

11 Pre-Trial Chamber I, “Decision on Libya’s request for leave to file a consolidated reply”, 16 July 2013, ICC-01/11-01/11- 382.

12 “Libyan Government’s consolidated Reply to the Responses by the Prosecution, Defence and OPCV to the Libyan Government’s Application relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute”, 14 August 2013, presented in three different versions: a confidential ex parte version, only available to the Prosecutor (ICC-01/11- 01/11-403-Conf-Exp); a confidential redacted version also available to the Defence of Mr Al-Senussi and the OPCV (ICC-01/11-01/11-403-Conf-Red); and a public redacted version (ICC-Ol/11-0l/11-403-Red2). Also in this case, the Chamber has considered, for the purposes of the present decision, the version of Libya’s Reply that was made available to all the parties and participants of the present proceedings, i.e. the confidential redacted version.

13 “Defence Application on behalf of Mr.. Abdullah Al-Senussi concerning Libya’s Announcement of Trial Date in August 2013”, 10 July 2013, ICC-01/11-01/11-380.

14 Libya’s Reply, paras 3 to 5.

15 Pre-Trial Chamber I, “Decision on additional submissions in the proceedings related to Libya’s challenge to the admissibility of the case against Abdullah Al-Senussi”, 19 August 2013, ICC-01/11-01/11-409.

16 “Filing on behalf of Mr. Abdullah Al-Senussi pursuant to ‘Decision on additional submissions in the proceedings related to Libya’s challenge to the admissibility of the case against Abdullah Al-Senussi’ of 19 August 2013”, 26 August 2013, ICC-01/11-01/11-418.

17 “Addendum to ‘Filing on behalf of Mr. Abdullah Al-Senussi pursuant to ‘Decision on additional submissions in the proceedings related to Libya’s challenge to the admissibility of the case against Abdullah Al-Senussi’ of 19 August 2013’ and Urgent Application pursuant to Regulation 35”, 5 September 2013, ICC-01/11-01/11-432.

18 Pre-Trial Chamber I, “Decision varying the time limit for Libya’s final submissions on the admissibility of the case against Mr Al-Senussi”, 11 September 2013, ICC-01/11-01/11-441, p. 7.

19 Ibid., para. 12.

20 Ibid., p. 7.

21 Ibid., para. 13.

22 “Government’s Submissions and Response to Defence ‘Filing on behalf of Mr. Abdullah Al-Senussi pursuant to ‘Decision on additional submissions in the proceedings related to Libya’s challenge to the admissibility of the case against Abdullah Al-Senussi’ of 19 September 2013’ and ‘Addendum’ filed on 5 September 2013”, 26 September 2013, ICC-01/11-01/11-455. The Chamber notes that in its Final Submissions, Libya argues that the evidence presented demonstrates that the case against Mr Al-Senussi is inadmissible before the Court and that this conclusion is further supported by the material and information provided as part of its Final Submissions. The first relief requested by Libya in its Final Submissions is indeed that the Chamber “take into account the additional material and submissions contained herein, which provide further support for a determination that the case against Mr. Al-Senussi is inadmissible” (Libya’s Final Submissions, para. 43(a)). The Chamber therefore understands Libya’s second request in its Final Submissions, namely to “grant Libya until 6 December 2013 to submit additional material arising from the transfer of the case to the Accusation Chamber” (Libya’s Final Submissions, para. 43(b)), as an alternative relief to the immediate declaration of inadmissibility of the case against Mr Al-Senussi that is, therefore, rendered moot by the present decision.

23 Admissibility Challenge, para. 1.

24 Ibid., para. 36.

25 Admissibility Challenge, paras 136 and Libya’s Reply, para. 136.

26 Libya’s Reply, para. 26.

27 Ibid., paras 71 and 137. See also Annexes 2 and 6 to the Admissibility Challenge.

28 Libya’s Final Submissions, para. 5.

29 Admissibility Challenge, para. 157.

30 Ibid., para. 158.

31 Ibid., para. 162.

32 Ibid., para. 154.

33 Ibid., para. 154, and Annex 3 to the Admissibility Challenge.

34 Libya’s Final Submissions, para. 8.

35 Admissibility Challenge, para. 163 and Annexes 1 and 7 to the Admissibility Challenge.

36 Admissibility Challenge, para. 176.

37 Ibid., para. 177.

38 Ibid., para. 180.

39 Ibid., paras 181-182.

40 Ibid., para. 124.

41 Ibid., para. 39.

42 Ibid.

43 Ibid., para. 195.

44 Ibid., para. 196.

45 Ibid., para. 206.

46 Ibid., para. 194.

47 Appeals Chamber, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, “Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case”, 25 September 2009, ICC-01/04-01/07-1497, paras 1 and 75-79. Pre-Trial Chamber I, “Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi”, 7 December 2012, ICC-01/11-01/11-239, para. 6.

48 Pre-Trial Chamber I, “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”, 31 May 2013, ICC-01/11-01/11-344-Red (hereinafter, “Gaddafi Admissibility Decision”), para. 52.

49 Gaddafi Admissibility Decision, para. 52.

50 Gaddafi Admissibility Decision, para. 53.

51 The Chamber notes that the arguments raised by Libya in this regard in the Admissibility Challenge (paras 90 to 102) and in its Reply (pp. 10 to 14) are essentially the same arguments that had been made in its challenge to the admissibility of the case against Mr Gaddafi, ICC-01/11-01/11-130-Conf (hereinafter, “Gaddafi Admissibility Challenge”) at para. 92 and in its further submissions on issues related to the admissibility of the case against Mr Gaddafi ICC-01/11-01/11-258-Conf-Red (hereinafter, “Libya’s Submissions of 23 January 2013”), at paras 19 and 20. Further, the Chamber notes that Libya, in its Final Submissions, states that “the complementarity regime cannot work unless careful analysis of the circumstances is undertaken, and where other parties’ submissions are not on the basis of direct knowledge, such analysis must be undertaken primarily of the evidence provided by the state itself” (Libya’s Final Submissions, para. 15). 52 Admissibility Challenge, para. 173.

53 See e.g. Admissibility Challenge, para. 173. 54 The Chamber recalls that the perfected translations of the annexes attached to Gaddafi Admissibility Challenge have been filed, and labelled with the same letter with which they were designated in the original challenge, as annexes to filing number ICC-01/11-01/11-144 (if classified as public) and to filing number ICC-01/11-01/11-145-Conf (if classified as confidential), both dated 15 May 2012.

55 See Pre-Trial Chamber I, “Decision concerning a privileged visit to Abdullah Al-Senussi by his Defence”, 26 September 2013, ICC-01/11-01/11-456.

56 Pre-Trial Chamber I, “Decision on the ‘Urgent Application on behalf of Al-Senussi for Pre-Trial Chamber to order the Libyan Authorities to comply with their obligations and the orders of the ICC’”, 6 February 2013, ICC-01/11-01/11-269.

57 See for example the latest Defence submission of 5 September 2013, in which the Defence stated: “the Chamber should not countenance any further avoidable delay. It therefore files this emergency application to request that the Chamber reduce the time available to Libya to make final submissions on admissibility and that the Chamber issue a decision on admissibility as soon as possible thereafter” (ICC-01/11-01/11-432, para. 7). Furthermore, on 24 April 2013, soon after the filing of the Admissibility Challenge and in advance of the Chamber’s decision, under rule 58 of the Rules, on the conduct of the admissibility proceedings, the Defence of Mr Al-Senussi only requested to be granted 30 days after the issuance of the decision disposing of the Gaddafi Admissibility Challenge for its written observations on the present Admissibility Challenge, without making any similar request in relation to the (already) outstanding legal visit to Mr Al-Senussi (ICC-01/11-01/11-320). The Chamber notes that a different position was instead taken by the Defence of Mr Gaddafi in the proceedings on the admissibility of the case against Mr Gaddafi. Indeed, in that case, the Defence of Mr Gaddafi requested the Chamber to extend the time limit for the provision of its submissions on Libya’s challenge until after a legal visit to Mr Gaddafi (ICC-01/11-01/11-162- Red), on the grounds that “it is essential that the Defence can consult with Mr. Gaddafi in relation to the main arguments, which will be raised in the Defence response” and that “Mr. Gaddafi is also best placed to provide the Defence with key information, which is directly relevant to the question as to whether the criteria under Article 17 of the Statute are met” (paras 10 and 11). The Chamber, agreeing with the Defence of Mr Gaddafi that it would be beneficial for the Defence to meet with Mr Gaddafi before making its submissions on the challenge to the admissibility of the case against him, granted the Defence request and extended the relevant time limit until two working days after counsel’s return from the privileged visit to Mr Gaddafi, as requested by the Defence (Pre-Trial Chamber I, “Decision on the OPCD’s ‘Urgent Request for Extension of Time’”, 1 June 2012, ICC-01/11-01/11-165).

58 Admissibility Challenge, para. 60 (emphasis in the original).

59 Ibid.

60 Ibid., para. 64.

61 Ibid., para. 66.

62 Ibid., para. 80.

63 Ibid. (emphasis in the original).

64 Ibid.

65 Ibid., para. 88.

66 Ibid.

67 Ibid., footnote 93.

68 Trial Chamber III, The Prosecutor v. Jean-Pierre Bemba Combo, “Decision on the Admissibility and Abuse of Process Challenges”, 24 June 2010, ICC-01/05-01/08-802. Libya relies on para. 218 of this decision, in which the Trial Chamber held: “[f]or the purposes of Article 17 of the Statute, the case that was brought against the accused in the [Central African Republic] was broadly the same as the prosecution has now brought before Trial Chamber Ill, save that the charges are inevitably different (given the particular crimes within the ICC’s jurisdiction: Article 5 of the Statute) and the evidence has developed and changed as a result of the investigation by the [Office of the Prosecutor]. The conduct and the underlying offences (murder, rape, pillage, etc.) are the same, as are many of the central events that are relied on”.

69 Admissibility Challenge, para. 73.

70 Ibid., para. 74.

71 Ibid.

72 Ibid., para. 77.

73 Ibid., para. 78.

74 Ibid., para. 156. See also Annex 2 to Admissibility Challenge.

75 Libya’s Final Submissions, para. 5.

76 Admissibility Challenge, para. 156 to 161.

77 Defence Observations, Part A.

78 Ibid., paras 15 to 22.

79 Ibid., para. 21.

80 Ibid., para. 22.

81 Ibid., para. 27.

82 Ibid., paras 39 to 57.

83 Prosecutor’s Response, para. 86; Prosecutor’s Additional Observations, para. 26.

84 Prosecutor’s Response, para. 22.

85 Ibid., para. 24.

86 Ibid., para. 25.

87 Prosecutor’s Additional Observations, para. 13.

88 Ibid., para. 14.

89 Ibid., footnote 23.

90 Ibid., para. 16.

91 Ibid., para. 17.

92 Ibid., para. 18.

93 Prosecutor’s Response, para. 67.

94 Ibid.

95 Ibid., para. 78.

96 Ibid.

97 OPCV Observations, para. 58.

98 Ibid., para. 25.

99 Ibid., para. 29.

100 Ibid.

101 Ibid., para. 30.

102 Ibid., para. 38.

103 Ibid., para. 53.

104 Ibid., para. 62

105 Ibid.

106 Ibid., para. 63.

107 Ibid., para. 64.

108 Ibid.

109 Ibid., para. 65.

110 Libya’s Reply, paras 21 to 62.

111 Ibid., paras 63 to 108.

112 Ibid., para. 21.

113 Ibid., paras 23 to 28.

114 Ibid., para. 23.

115 Ibid., para. 24 (emphasis in the original).

116 Ibid., paras 27 and 28.

117 Ibid., para. 28 (emphasis in the original).

118 Ibid., para. 32 (emphasis in the original).

119 Ibid., para. 30.

120 Prosecutor’s Response, para. 32.

121 Libya’s Reply, para. 30.

122 Ibid., paras 54 to 62.

123 Ibid., paras 63 to 108.

124 See OPCV Observations, paras 53 to 57.

125 Libya’s Reply, para. 69.

126 Ibid., para. 70.

127 Ibid., paras 71-72.

128 Ibid., para. 70.

129 Ibid., para. 74.

130 Ibid., para. 78.

131 Defence Observations, paras 39 to 57.

132 Libya’s Reply, paras 80 to 106.

133 Ibid., para. 107.

134 Gaddafi Admissibility Decision, paras 61 and 76. See also Appeals Chamber, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’”, 30 August 2011, ICC-01/09-02/11- 274, paras 39-40. 135 Gaddafi Admissibility Decision, paras 61, 74 and 76 to 77. The Chamber recalls that the “same person, same conduct” test was initially elaborated in: Pre-Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo, “Decision concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo”, 24 February 2006, ICC-01/04-01/06-8-Corr, para. 31. This test was later recalled in: Pre-Trial Chamber I in The Prosecutor v. Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), “Decision on the Prosecution Application under Article 58(7) of the Statute”, 27 April 2007, ICC-02/05-01/07-1-Corr, para. 24; The Prosecutor v. Germain Katanga, “Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga”, 6 July 2007, ICC-01/04-01/07-4, para. 20 (public redacted version in ICC-01/04-01/07-55); The Prosecutor v. Mathieu Ngudjolo Chui, “Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Mathieu Ngudjolo Chui”, 6 July 2007, ICC-01/04-01/07- 262, para. 21. The same approach was followed in: Pre-Trial Chamber II in The Prosecutor v. Kony et al., “Decision on the Admissibility of the Case under Article 19(1) of the Statute”, 10 March 2009, ICC-02/04-01/05-377, paras 17-18; The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 May 2011, ICC-01/09-01/11-101, para. 54; The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 May 2011, ICC-01/09-02/11-96, para. 48. This jurisprudence of the Pre-Trial Chambers was later confirmed by the Appeals Chamber which, however, referred to “the same individual and substantially the same conduct”: Appeals Chamber, “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’”, 30 August 2011, ICC-01/09-02/11-274, para. 39.

136 Gaddafi Admissibility Decision, paras 54, 55 and 73. See also Pre-Trial Chamber I, “Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi”, 7 December 2012, ICC-01/11-01/11-239, para. 11.

137 Appeals Chamber, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’”, 30 August 2011, ICC-01/09-02/11-274, paras 1 and 40.

138 Gaddafi Admissibility Decision, paras 77-78. See also Appeals Chamber, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’”, 30 August 2011, ICC-01/09-02/11-274, paras 38 to 40.

139 Gaddafi Admissibility Decision, para. 77. 140 Ibid., para. 85.

141 Ibid., para. 88.

142 Pre-Trial Chamber I, “Decision on the OPCD requests in relation to the hearing on the admissibility of the case”, ICC- 01/11-01/11-212, para. 9.

143 Pre-Trial Chamber I, “Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi”, 7 December 2012, ICC-01/11-01/11-239, para. 14.

144 Ibid., para. 28.

145 Appeals Chamber, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, “Judgment on the Appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’”, 30 August 2011, ICC-01/09-02/11-274, paras 2 and 61.

146 Gaddafi Admissibility Decision, para. 122. 147 Ibid.

148 Pre-Trial Chamber I, “Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi”, 7 December 2012, ICC-01/11-01/11-239, paras 10 and 11.

149 Warrant of Arrest, p. 6.

150 Ibid., pp. 4 to 6.

151 The expression “Security Forces” is used in the Warrant of Arrest “to define the Libyan security and military system which is notably comprised of the Libyan Armed Forces and police; the military intelligence; the Internal and External Security Services; the Revolutionary Committees and its Bureau; the Revolutionary Guard; the People’s Guard; the Revolutionary Combating militias; brigades and militia units” (footnote 2). The same meaning is attached to this expression also in the present decision.

152 See also the relevant conclusions of the Chamber in the Article 58 Decision, in particular, at paras 41, 65 and 90.

153 The Chamber notes that also the OPCV purports to advance certain submissions in this regard. However, the essence of these submissions do not go further than the mere acknowledgment that the parameters of the “case” in the context of the admissibility proceedings must be the same as those that define the “case” in the context of other proceedings before the Court, and that “conduct” refers to the factual allegations supporting the legal elements of the alleged crimes (see OPCV Observations, paras 29 to 37). The Chamber is of the view that these principles are already settled, and that the OPCV submissions are not of actual assistance for the determination of the factual parameters of the case against Mr Al-Senussi before the Court.

154 Prosecutor’s Response, para. 78. 155 Prosecutor’s Additional Observations, para. 13.

156 Ibid., footnote 23.

157 Ibid., para. 14. The Chamber however observes that the Prosecutor, while referring to the “particular location” and “specific time” of the alleged criminal acts, fails to indicate how narrow, in her view, these parameters must be construed in order for a certain fact to qualify as an “incident”.

158 The Chamber notes in this regard that term “incident” is not used in the Warrant of Arrest and appear in the Article 58 Decision only at paras 36(ii), 58 and 87, being used, in those three instances without any legal connotation. 159 Prosecutor’s Response, para. 78 and footnotes 175 and 176.

160 Ibid., paras 25 and 78.

161 Libya’s Reply, para. 23.

162 Ibid., para. 28.

163 Ibid. (emphasis in the original).

164 See para. 66(i) above. See also Gaddafi Admissibility Decision, paras 74 and 76.

165 See Gaddafi Admissibility Decision, para. 77. On this point, see also, e.g., ICTR, The Prosecutor v. Ntagerura et al., Case No. ICTR-99-46-A, Appeals Chamber Judgement, 7 July 2006, para. 23 (“[t]he Prosecution’s characterization of the alleged criminal conduct and the proximity of the accused to the underlying crime are decisive factors in determining the degree of specificity with which the Prosecution must plead the material facts of its case in the indictment in order to provide the accused with adequate notice. For example, where the Prosecution alleges that an accused personally committed the criminal acts in question, it must plead the identity of the victim, the place and approximate date of the alleged criminal acts, and the means by which they were committed ‘with the greatest precision’. However, less detail may be acceptable if the ‘sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes’.”), with reference to the relevant jurisprudence of the ICTY (The Prosecutor v. Kuprškić et al, Case No. IT-95-16- A, Appeals Chamber Judgement, 23 October 2001; The Prosecutor v. Blaškić, Case No. IT-95-14-A, Appeals Chamber Judgement, 29 July 2004; and The Prosecutor v. Kvoćka et al., Case No. IT-98-30/1-A, Appeals Chamber Judgement, 25 February 2005). See also ICTR, The Prosecutor v. Ntakirutimana, Cases Nos. ICTR-96-10-A and ICTR-96-17-A, Appeals Chamber Judgement, 13 December 2004, paras 73-74 (“[i]n many of the cases before the two International Tribunals, the number of individual victims is so high that identifying all of them and pleading their identities is effectively impossible. The inability to identify victims is reconcilable with the right of the accused to know the material facts of the charges against him because, in such circumstances, the accused’s ability to prepare an effective defence to the charges does not depend on knowing the identity of every single alleged victim. The Appeals Chamber recalls that the situation is different, however, when the Prosecution seeks to prove that the accused personally killed or harmed a particular individual. [. . .] [T]he Prosecution cannot simultaneously argue that the accused killed a named individual yet claim that the ‘sheer scale’ of the crime made it impossible to identify that individual in the indictment. Quite the contrary: the Prosecution’s obligation to provide particulars in the indictment is at its highest when it seeks to prove that the accused killed or harmed a specific individual [. . .] There may well be situations in which the specific location of criminal activities cannot be listed, such as where the accused is charged as having effective control over several armed groups that committed crimes in numerous locations. In cases concerning physical acts of violence perpetrated by the accused personally, however, location can be very important. [. . .] When the Prosecution seeks to prove that the accused committed an act at a specified location, it cannot simultaneously claim that it is impracticable to specify that location in advance”).

166 As observed in the Gaddafi Admissibility Decision, some Pre-Trial Chambers have indicated that a case includes “specific incidents” during which crimes within the jurisdiction of the Court appear to have been committed, but “what would be encompassed by the notion of ‘incident’” has not been clarified in the jurisprudence of the Court (Gaddafi Admissibility Decision, para. 75). 167 See for example the events in Bogoro on 24 February 2003 during which the crimes alleged against Germain Katanga and Mathieu Ngudjolo Chui have allegedly been committed (Pre-Trial Chamber I, The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, “Decision on the confirmation of charges”, 26 September 2008, ICC-01/04-01/07-717; and ICC-01/04-01/07-1588). It appears from her submission that the Prosecutor would characterise these events as an “incident”. The same consideration would appear applicable also to the case against Abdallah Banda and Saleh Jerbo, who are charged with crimes committed during the alleged attack against the base of the African Union Mission in Sudan at Haskanita on 29 August 2007 (see ICC-02/05-03/09-79-Red, para. 162; and Pre-Trial Chamber I, The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, “Decision on the Confirmation of Charges”, 7 March 2011, ICC-02/05-03/09-121-Corr-Red).

168 For example, the Chamber observes that Thomas Lubanga Dyilo has been found guilty of the crimes of conscripting and enlisting children under the age of fifteen years into the [Forces Patriotiques pour la Liberation du Congo] and using them to participate actively in hostilities from early September 2002 to 13 August 2003, that were, inter alia, demonstrated by the evidence provided by several witnesses in relation to certain identified incidents (see Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo, “Judgment pursuant to Article 74 of the Statute”, 14 March 2012, ICC-01/04-01/06-2842, at, e.g., paras 911 to 916). Indeed, the document containing the charges brought against Mr Lubanga refers to crimes allegedly committed over a one-year period (between 1 September 2002 and 13 August 2013) and in an extended geographic area (the district of Ituri in the Democratic Republic of Congo), while rehearsing the stories of nine child soldiers as “representative [experiences] of those other children enlisted, conscripted and used by the FPLC” (ICC- 01/04-01/06-1573-Anx1, para. 101). Another example is provided by the case against Omar Hassan Ahmad Al Bashir. The first warrant against him has been issued for his alleged criminal responsibility for war crimes and crimes against humanity committed “from soon after the April2003 attack on El Fasher airport until 14 July 2008” throughout the Darfur region, “including inter alia” on certain dates at a number of locations (Pre-Trial Chamber I, The Prosecutor v. Omar Hassan Ahmad Al Bashir, “Warrant of Arrest for Omar Hassan Ahmad Al Bashir”, 4 March 2009, ICC-02/05-01/09-1; see also id., “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, 4 March 2009, ICC-02/05- 01/09-3, paras 78 and 109). For the purposes of the second warrant of arrest, the Chamber found that the material elements of the crimes of genocide by killing and genocide by causing serious bodily or mental harm were established to the “reasonable grounds to believe” standard relying on its previous findings that thousands of civilians belonging primarily to the Fur, Masalit and Zaghawa groups were subject, throughout the Darfur region, to acts of murder and rape by forces of the Government of Sudan (GoS) and hundreds of them to acts of forcible transfer “between the start of the GoS counter-insurgency campaign soon after the April 2003 attack on El Fasher airport and 14 July 2008” (Pre-Trial Chamber I, The Prosecutor v. Omar Hassan Ahmad Al Bashir, “Second Decision on the Prosecution’s Application for a Warrant of Arrest”, 12 July 2010, ICC-02/05-01/09-94, paras 22-23 and 29-30; see also id., “Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir”, 12 July 2010, ICC-02/05-01/09-95 pp. 6-7).

169 Article 58 Decision, paras 36 to 64.

170 Gaddafi Admissibility Decision, paras 81-82.

171 See Article 58 Decision, paras 41, 65 and 90.

172 Warrant of Arrest, pp. 4 to 6.

173 Crimes allegedly committed during the repression of the demonstrations in Benghazi that took place from 15 February 2011 until at least 20 February 2011.

174 Crimes allegedly committed in Benghazi, Libya.

175 Killings and inhuman acts depriving the civilian population of its fundamental rights on political grounds, allegedly committed by Mr Al-Senussi, directly or through the Security Forces, against real or perceived political dissidents to the Gaddafi regime as part of a State policy to repress, by any means, the revolution against the Gaddafi.

176 Prosecutor’s Additional Observations, para. 14.

177 The Chamber also observes that the “list of incidents”, together with a number of identified acts of murder and persecution falling within the parameters of the alleged conduct, further includes entries that cannot be understood as providing any relevant detail with narrower scope than the conduct for which the Warrant of Arrest has been issued. For example, this list includes statements like “on [17 February 2011] in Benghazi, a number of demonstrators were killed by Security Forces” (para. 36(iii)) and “on 20 February 2011, it is reported that at least 60 demonstrators were killed by the Security Forces” (para. 36(vi)).

178 See ICC-01/11-4-Red, paras 4 to 35, in which the Prosecutor refers to a number of events as “examples” of criminal acts against the civilian demonstrators and political dissidents, which were “replicated” on several unspecified occasions throughout the relevant time (e.g. paras 12, 14, 15, 17 and 20) and to a “systematic campaign of arrests and detentions of alleged dissidents [as of 15 February 2011 up until 16 May 2011]” (para. 24). More detailed information about the unfolding of the events in Benghazi was provided in the section entitled “Summary of the evidence and other information establishing reasonable grounds to believe that [the suspects] committed crimes within the jurisdiction of the Court” (paras 92 to 107 and 130 to 135 of the confidential ex parte version of the application). In the application, the Prosecutor also states that “the Prosecution has selected a few incidents that are representative of [the suspects’] crimes” (para. 62) and that “[t]he total number of incidents and ensuing casualties remain undetermined due to the widespread cover-up carried out by the Security Forces for the purpose of hiding the evidence of past crimes” (para. 28). The Prosecutor’s conclusion, for which warrants of arrest were ultimately requested, reads as follows: “[i]n sum, the evidence demonstrates that GADDAFI conceived a plan to quell the popular demonstrations of February 2011 by all means, including through the use of extreme and lethal violence. Pursuant to this plan, the Security Forces carried out a widespread and systematic policy of attacks against civilians perceived as dissidents with the purpose of maintaining GADDAFI’s power. SAIF AL-ISLAM and AL-SENUSSI played key roles in the implementation of the plan. As a result, GADDAFI, SAIF AL-ISLAM and AL-SENUSSI are criminally responsible for the killings, arrests, detentions, disappearances and acts of illtreatment against unarmed demonstrators and alleged dissidents committed by the Libyan Security Forces as of 15 February [2011]” (para. 35).

179 See the “counts” describing the crimes that Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi were alleged by the Prosecutor of having committed, and for which the issuance of warrants of arrest was requested (ICC- 01/11-4-Red, p. 16), namely: under “Count 1” (murder), “[f]rom 15 February 2011 onwards, GADDAFI, as indirect perpetrator, and SAIF AL-ISLAM and AL-SENUSSI, as indirect co-perpetrators, committed crimes against humanity in the form of murder across Libya in, inter alia, Tripoli, Benghazi, and Misrata, through the Libyan State apparatus and Security Forces in violation of Articles 7(1)(a) and 25(3)(a) of the Rome Statute”; and under “Count 2” (persecution), “[f]rom 15 February 2011 onwards, GADDAFI, as indirect perpetrator, and SAIF AL-ISLAM and AL-SENUSSI, as indirect co-perpetrators, committed crimes against humanity in the form of persecution across Libya in, inter alia, Tripoli, Benghazi, Misrata and other Libyan localities through the Libyan State apparatus and Security Forces in violation of Articles 7(1)(h) and 25(3)(a) of the Rome Statute”.

180 Gaddafi Admissibility Decision, para. 83. 181 At this juncture, the Chamber recalls that the “incidents” or “events” appearing throughout the Article 58 Decision include, inter alia, the following events occurred in Benghazi between 15 and 20 February 2011 as part of the repression of the civilian demonstrations against Gaddafi regime: (i) the arrest, on 15 February 2011, by the Security Forces of a lawyer who was organising a protest against Gaddafi regime scheduled for 17 of February 2011 (para. 43); (ii) the arrest of several authors, writers and alleged dissidents (including that of the Libyan author Idriss Al- Mismari) between 15 and 17 February 2011 (paras 43 and 44); (iii) the attack by the Security Forces on demonstrators with tear gas and live ammunition, following the gathering of an increasing number of demonstrators in the area of Birka, in Al Fatah street and Jamal Abdun Naser street on 16 February 2011, causing the death of at least three civilian demonstrators (para. 36(i)); (iv) the attack, on the same day, by forces loyal to Muammar Gaddafi on civilian demonstrators who were hit with sticks and dispersed (para. 52); (v) the event of 17 February 2011 at the Juliyana Bridge, when Security Forces, armed with machineguns, barricaded the street to stop the demonstrators, opened fire for a significant period of time on the unarmed demonstrators, causing a large number of injuries and deaths among the demonstrators, and arrested those demonstrators that were not shot and were not able to flee (para. 36(ii) and 53); (vi) the attack, on the same day, carried out by the Security Forces who fired with live ammunition on unarmed demonstrators, who had gathered near the High Court in the centre of Benghazi to protest against the arrest of the individual who had been organising the forthcoming protest against Gaddafi regime (para. 50); (vii) the killing and seriously injuring, still on 17 February 2011, by the Security Forces of a number of other demonstrators in different areas of the town (paras 36(iii) and 52) and the attacks by the Security Forces continuing throughout the night (para. 53); (viii) the killing and seriously injuring by the Security Forces on 18 February 2011 of a number of civilians while participating in the funeral procession for the demonstrators killed the day before (paras 36(iv) and 54); and (ix) the killing by the Security Forces of at least 60 demonstrators on 20 February 2011 (para. 36(vi)). The Article 58 Decision further states that “[a]ccording to several reports, once taken into custody, protesters were subjected to torture” (para. 46) and that “[a]bductions and subsequent torture of family members of alleged dissidents have also been reported” (para. 47).

182 Infra, para. 162.

183 Appeals Chamber, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’”, 30 August 2011, ICC-01/09-02/11-274, paras 2 and 61.

184 Annex C to Gaddafi Admissibility Challenge.

185 Pre-Trial Chamber I, Transcript of the hea ring of 10 October 2012, ICC-01/11-01/11-T-3- CONF-ENG, p. 53, lines 16 to 20.

186 Libya’s Reply, para. 92.

187 Gaddafi Admissibility Decision, para. 121.

188 Ibid.

189 Annex C to Gaddafi Admissibility Challenge, pp. 1-2.

190 Ibid., pp. 3-4.

191 Ibid., pp. 4 to 6.

192 Ibid., p. 3.

193 See also Gaddafi Admissibility Decision, para. 123.

194 Annex E to Gaddaft Admissibility Challenge.

195 Ibid., p. 4.

196 Ibid., pp. 5-6.

197 Ibid., p. 5.

198 Ibid., p. 6.

199 Annex I to Gaddafi Admissibility Challenge.

200 Ibid., p. 2 (emphasis omitted).

201 Annex 2 to Libya’s Submissions of 23 January 2013.

202 Ibid., p. 2.

203 Annex 3 to Libya’s Submissions of 23 January 2013.

204 Ibid., p. 3.

205 Ibid.

206 Ibid.

207 Annexes 2, 3, 4, 5 and 6 to the Admissibility Challenge.

208 Annex 2 to the Admissibility Challenge.

209 Ibid., p. 2.

210 Ibid.

211 Annex 3 to the Admissibility Challenge.

212 Ibid., p. 2.

213 Ibid.

214 Annex 4 to the Admissibility Challenge.

215 Ibid., p. 2.

216 Ibid.

217 Ibid., p. 3.

218 Annex 5 to the Admissibility Challenge.

219 Annex 6 to the Admissibility Challenge.

220 Ibid., p. 2.

221 Annex 28 to the Admissibility Challenge, p. 2.

222 Libya’s Reply, para. 90.

223 Ibid.

224 Defence Observations, para. 41.

225 Ibid.

226 Libya’s Reply, footnote 115.

227 Pre-Trial Chamber I, “Decision on the ‘Libyan Government’s proposed redactions to ICC-01/11-01/11-258-Conf-Exp and Annexes 4, 5, 6, 7, 15, 16 and 17’”, 7 February 2013, ICC-01/11-01/11-271-Red, p. 9.

228 Ibid., para. 18.

229 Admissibility Challenge, para. 127, with the reference to the Chamber’s decision number ICC-01/11-01/11-271-Red of 7 February 2013. The Annexes attached to the Admissibility Challenge that have been provided in a redacted form to the Defence of Mr Al-Senussi and the OPCV are Annexes 3, 4, 8 to 18 and 20 to 27.

230 Pre-Trial Chamber I, “Decision on the conduct of the proceedings following the ‘Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute’”, 26 April 2013, ICC-01/11-01/11-325, para. 3.

231 Ibid.

232 See also Pre-Trial Chamber I, “Decision on the ‘Libyan Government’s proposed redactions to ICC-01/11-01/11-258- Conf-Exp and Annexes 4, 5, 6, 7, 15, 16 and 17’”, 7 February 2013, ICC-01/11-01/11-271-Red, para. 12.

233 Defence Observations, para. 41.

234 See rules 81(2) and (4) of the Rules for the same ratio.

235 Consequently, all the references to the items of evidence analysed in the present decision are made to their confidential redacted version.

236 Annex 4 to Libya’s Submissions of 23 January 2013.

237 Ibid., p. 1.

238 Ibid., p. 2.

239 Ibid., p. 3.

240 Ibid.

241 Gaddafi Admissibility Decision, para. 134.

242 Annex 15 to Libya’s Submissions of 23 January 2013.

243 Ibid., p. 4.

244 Ibid., pp. 4-5.

245 Annex 16 to Libya’s Submissions of 23 January 2013.

246 Ibid., pp. 2-3.

247 Ibid., pp. 2-9.

248 Ibid., pp. 6-7.

249 Ibid., p. 4.

250 Ibid., p. 7.

251 Ibid., p. 6.

252 Ibid., pp. 5 to 7.

253 Ibid., pp. 6-7.

254 Annexes 8, 9, 10, 11, 12 and 15 to the Admissibility Challenge.

255 Annexes 14, 16, 17, 20, 21, 22, 23 (which contain the declarations of two complainants), 24 and 26 to the Admissibility Challenge.

256 Annex 8 to the Admissibility Challenge.

257 Ibid., pp. 2 to 32.

258 Ibid., pp. 33 to 40.

259 Ibid., p. 7.

260 Ibid., pp. 8 to 12.

261 Ibid., pp. 10 to 12 and 17 to 24.

262 Ibid., pp. 11-12.

263 Ibid., pp. 12 and 14 to 16

264 Ibid., pp. 27-28.

265 Ibid., pp. 18-19, 24 to 27 and 29 to 31.

266 Ibid., p. 7.

267 Ibid, p. 7.

268 Ibid., p. 9.

269 Ibid., p. 11.

270 Ibid., p. 20.

271 Ibid., pp. 18-19.

272 Ibid., pp. 9 to 12, 17 to 26, 33 to 37 and 40.

273 Ibid., p. 33.

274 Ibid., pp. 33 to 40.

275 Ibid., p. 40.

276 See, e.g., Annex 8 to the Admissibility Challenge, pp. 18, 19, 20, 24, 25, 26, 29, 35 and 37 to 39.

277 See, e.g., Annex 8 to the Admissibility Challenge, pp. 17, 28 and 37.

278 See, e.g. Annex 8 to the Admissibility Challenge, pp. 22, 33 and 37 to 39.

279 Annex 9 to the Admissibility Challenge.

280 Ibid., p. 5.

281 Ibid., pp. 6-7.

282 Annex 10 to the Admissibility Challenge.

283 Ibid., p. 4.

284 Ibid., pp. 5-9.

285 Ibid., pp. 10-11.

286 Ibid., pp. 11-12.

287 Ibid., pp. 13-14.

288 Ibid., pp. 15-16.

289 Annex 11 to the Admissibility Challenge.

290 Ibid., pp. 3 to 7.

291 Ibid., p. 7.

292 Ibid.

293 Ibid., pp. 3 to 5.

294 Ibid., p. 8.

295 Annex 12 to the Admissibility Challenge.

296 Ibid., pp. 3 to 5, 9 and 16.

297 Ibid., pp. 3 to 12.

298 Ibid., pp. 5-6,

299 Ibid., pp. 6 to 12.

300 Ibid., pp. 12.

301 Ibid., pp. 13 to 15.

302 Ibid., pp 14 to 16.

303 Ibid., p. 4.

304 Ibid., p. 3.

305 Ibid., pp. 3-4.

306 Ibid., p. 5.

307 Ibid., pp 5 and 14 to 16

308 Annex 15 to the Admissibility Challenge.

309 Ibid., pp. 3-4.

310 Ibid., p. 7.

311 The OPCV describes as “victims’ complaints” the material provided as Annexes 14, 16, 17, 20, 21, 22, 23, 24 and 26 to the Admissibility Challenge (OPCV Observations, para. 64 and footnote 91).

312 According to the OPCV, “witness statements” are only those attached as Annexes 8, 9, 10, 11, 12 and 15 to the Admissibility Challenge (OPCV Observations, para. 64 and footnote 92).

313 OPCV Observations, para. 64 and footnote 92.

314 Ibid., para. 64.

315 Ibid.

316 Ibid.

317 Libya’s Reply, para. 74.

318 Ibid.

319 Ibid.

320 Annex 14 to the Admissibility Challenge.

321 Ibid., p. 3.

322 The Chamber notes that in the witness statement it is indicated “07/02/2011” as the date of the relevant demonstrations and their suppression (p. 3). However, the Chamber considers that this is a mere editorial error of the English translation of the statement and the date must rather be understood as 17 February 2011.

323 Annex 14 to the Admissibility Challenge, p. 3.

324 Ibid.

325 Ibid.

326 Ibid., p. 4.

327 Annex 16 to the Admissibility Challenge.

328 Ibid., p. 3.

329 Annex 17 to the Admissibility Challenge.

330 Ibid., pp. 2-3.

331 Ibid., pp. 3-4.

332 Annex 20 to the Admissibility Challenge.

333 Ibid., p. 3.

334 Ibid., p. 4.

335 Annex 21 to the Admissibility Challenge.

336 Ibid., p. 2.

337 Ibid.

338 Ibid.

339 Ibid., p. 3.

340 Ibid.

341 Annex 22 to the Admissibility Challenge.

342 Ibid., p. 2.

343 Ibid., pp. 2 and 4.

344 Ibid., p. 3.

345 Ibid., p. 4.

346 Ibid., p. 3.

347 Ibid.

348 Annex 23 to the Admissibility Challenge.

349 Ibid., pp. 3 to 5.

350 Annex 24 to the Admissibility Challenge.

351 Ibid., p. 2.

352 Ibid., pp. 2 and 3.

353 Ibid., p. 3.

354 Ibid., p. 2.

355 Annex 26 to the Admissibility Challenge.

356 Ibid., p. 3.

357 Ibid.

358 Ibid.

359 Ibid., p. 4.

360 Annex 5 to Libya’s Submissions of 23 January 2013.

361 Annexes 6 and 7 to the Libya’s Submission of 23 January 2013.

362 Gaddaft Admissibility Decision, para. 134.

363 Libya’s Reply, para. 105.

364 Annex 13 to the Admissibility Challenge.

365 Libya’s Reply, para. 105. See also Admissibility Challenge, List of Annexes- Annex 13, p. 96.

366 Annexes 18 and 25 to the Admissibility Challenge.

367 Annex 18 to the Admissibility Challenge, p. 3.

368 Annex 25 to the Admissibility Challenge, pp. 2, 3, 4, 6, 7, 8, 9, 10, 11, 12 and 13.

369 Ibid., pp. 3, 4, 6, 7, 8 (see original at p. 20), 9 (see original at p. 21), 10 and 12.

370 Annex 18 to the Admissibility Challenge, p. 3.

371 Annex 25 to the Admissibility Challenge, p. 5.

372 Annex 27 to the Admissibility Challenge.

373 Ibid., p. 3.

374 With the exception, for the reasons provided above, of the excerpt from the lists of “medical evacuations to foreign countries” attached as Annex 13 to the Admissibility Challenge.

375 Annex 19, pp. 1, 2, 3 and 6.

376 Ibid., pp. 4 and 5.

377 Annex 17 to Libya’s Submissions of 23 January 2013.

378 Gaddafi Admissibility Decision, para. 129, with reference to Libya’s Submissions of 23 January 2013, para. 53. This is confirmed by Libya at para. 174 of the Admissibility Challenge.

379 Gaddafi Admissibility Decision, para. 130, with reference to Libya’s Submissions of 23 January 2013, para. 54. See also para. 174 of the Admissibility Challenge.

380 Gaddafi Admissibility Decision, para. 131.

381 Admissibility Challenge, para. 174; Libya’s Submissions of 23 January 2013, para. 55.

382 Gaddafi Admissibility Decision, para. 131.

383 Annex 17 to Libya’s Further Submissions, p. 7.

384 Annex F to Gaddafi Admissibility Challenge.

385 Annex 8 to Libya’s Submissions of 23 January 2013.

386 Admissibility Challenge, footnote 160.

387 Annex 11 to Libya’s Submissions of 23 January 2013.

388 Ibid., pp. 3-4.

389 Ibid., p. 3. The Chamber notes that, as suggested in the document under consideration, the case against Mr. Al- Senussi has indeed been eventually joined with the cases against 37 other officials of the former Gaddafi regime (See Annex A to Libya’s Final Submissions).

390 See also Gaddafi Admissibility Decision, para. 117.

391 Annex 1 to the Admissibility Challenge.

392 Annex 7 to the Admissibility Challenge.

393 Ibid., p. 3.

394 Annex 29 to the Admissibility Challenge.

395 Annex A to Libya’s Final Submissions.

396 Annex B to Libya’s Final Submissions.

397 See above para. 151.

398 Annex A to Libya’s Final Submissions. See also para. 38 of Libya’s Final Submissions.

399 See para. 66(vii) above.

400 Annexes 16 and 17 to Libya’s Submissions of 23 January 2013 and Annexes 4, 8, 9, 10, 11, 12, 15 and 19 to the Admissibility Challenge. See also Annex 11 to Libya’s Submissions of 23 January 2013.

401 Annexes 4, 5, 6, 7, 16 and 17 to Libya’s submissions of 23 January 2013 and Annexes 4, 8, 9, 10, 11, 12, 15, 16 and 19 to the Admissibility Challenge.

402 Annex 16 to Libya’s Submissions of 23 January 2013 and Annexes 8, 9, 10, 11, 12, 17 and 19 to the Admissibility Challenge.

403 Annex 16 to Libya’s Submissions of 23 January 2013 and Annexes 10, 12, 16 to the Admissibility Challenge.

404 Annex 16 to Libya’s Submissions of 23 January 2013 and Annexes 14, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27 to the Admissibility Challenge.

405 Annexes 8, 11, 12 and 15 to the Admissibility Challenge.

406 Annex 16 to Libya’s Submissions of 23 January 2013 and Annexes 10, 12 and 16 to the Admissibility Challenge.

407 Annex 16 to Libya’s Submissions of 23 January 2013; Annexes 8, 12, 17, 24, 26 to the Admissibility Challenge.

408 Annexes 17 and 24 to the Admissibility Challenge.

409 Supra, para. 162.

410 Supra, paras 70 and 71.

411 See supra para. 79.

412 For example the witness statements provided as Annex 16 to Libya’s Submissions of 23 January 2013 and as Annex 8 to the Admissibility Challenge address the arrest of certain named political activists as well as the unfolding of the events in Benghazi on 17 February 2011, including the shooting at the demonstrators at Juliyana Bridge. General information about other narrower “incidents” that took place during the days of the repression of the revolution against the Gaddafi regime in Benghazi is also provided by those victims whose statements are attached as Annexes 14, 16, 17, 20, 21, 22, 24 and 26 to the Admissibility Challenge.

413 Warrant of Arrest, p. 5. See also Article 58 Decision, para. 65.

414 Libya submits that it is envisaged that the charges against Mr Al-Senussi arising from the investigation conducted will include: devastation, rapine and carnage (article 202 of the Libyan Criminal Code); civil war (article 203); conspiracy (article 211); attacks upon the political rights of a Libyan subject (article 217); concealment of a corpse (article 294); indiscriminate or ‘random’ killings (article 296); arson (article 297); stirring up hatred between the classes (article 318); aiding members of a criminal association (article 322); intentional murder (article 368); use of force to compel another (article 429); misuse of authority against individuals (article 431); search of persons (article 432); unlawful arrest (article 433); unjustified deprivation of personal liberty (article 434); torture (article 435) (Admissibility Challenge, para. 154 and Annex 3). In its Final Submissions, Libya confirms that “it is anticipated that the charges in Mr. Al-Senussi’s case will likely include unlawful killing, looting, the distribution of narcotics, incitement to commit rape, kidnapping, and other crimes associated with fomenting sedition and civil war” (Libya’s Final Submissions, para. 8). The text of the relevant provisions of the Libyan Criminal Code has been provided to the Chamber by Libya by filings number ICC-01/11-01/11- 158-AnxA of 28 May 2012, ICC-01/11-01/11-273-AnxA of 11 February 2013 and ICC-01/11-01/11-309 of 8 April2013.

415 Gaddaft Admissibility Decision, para. 111, with reference to Libya’s Submissions of 23 January 2013, para. 87.

416 See also Gaddafi Admissibility Decision, para. 113.

417 Admissibility Challenge, Part III.

418 Defence Observations, para. 144.

419 For example, both the Defence and the OPCV raise allegations regarding a purported lack of independence of Libya’s judiciary. This amounts, according to the Defence, to “unwillingness” (Defence Observations, paras 167 to 169) and, according to the OPCV, to unavailability of the national judicial system leading to “inability” (OPCV Observations, paras 74 to 80) on the part of Libya to conduct genuine proceedings against Mr. Al-Senussi.

420 Infra, paras 209 to 288.

421 Infra, paras 289 to 309.

422 Admissibility Challenge, para. 102.

423 Ibid., para. 103.

424 Ibid.

425 Ibid., para. 109.

426 Ibid., 110.

427 Ibid., para. 111.

428 Ibid.

429 Ibid., para. 102.

430 Ibid., para. 115.

431 Ibid., para. 116.

432 Ibid., para. 117.

433 Ibid.

434 Ibid., para. 118.

435 Ibid., para. 121.

436 Ibid., para. 122.

437 Ibid., para. 123.

438 Libya’s Reply, para. 115.

439 Defence Observations, para. 156.

440 Ibid., para. 172.

441 Ibid.

442 Ibid.

443 Ibid., para. 70.

444 Ibid.

445 Ibid.

446 Ibid.

447 Ibid.

448 Ibid., para. 71.

449 Prosecutor’s Response, para. 70.

450 Ibid., para. 71.

451 Ibid.

452 Ibid., para. 72..

453 Ibid., para. 73.

454 Ibid.

455 Ibid., para. 79.

456 Ibid.

457 Ibid.

458 Ibid.

459 Ibid., para. 82.

460 Ibid.

461 Prosecutor’s Additional Observations, para. 20 (emphasis in the original).

462 Ibid. (emphasis in the original).

463 Ibid., para. 22.

464 Ibid., para. 24.

465 Ibid., para. 25.

466 Ibid.

467 OPCV Observations, para. 66.

468 Ibid., paras 68 to 71.

469 Ibid., paras 68-69.

470 Ibid., para. 72.

471 Ibid., paras 74 to 80.

472 Ibid., para. 76.

473 See also Gaddafi Admissibility Decision, para. 200.

474 The text of the relevant provisions of Libya’s Criminal Procedure Code has been provided to the Chamber in ICC- 01/11-01/11-158-AnxB and ICC-01/11-01/11-273-AnxB. Other information in relation to the applicable national procedural law has been provided by Libya’s Prosecutor- General (Annex C to Gaddafi Admissibility Challenge, pp. 6 to 8) and by a judge of the Tripoli Court of First Instance (Annex H to Gaddafi Admissibility Challenge).

475 The Constitutional Declaration has been provided to the Chamber as Annex G to Gaddafi Admissibility Challenge.

476 Libya is party to international and regional human rights instruments that guarantee the right to a fair trial, including the International Covenant on Civil and Political Rights, the United Nations Convention against Torture, the International Convention on the Elimination of Racial Discrimination, the African Charter on Human and Peoples’ Rights, the Arab Charter on Human Rights and resolutions such as the Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa, adopted by the African Union in 2003 (Admissibility Challenge, para. 144).

477 Admissibility Challenge, para. 128.

478 Ibid.

479 Ibid., para. 147. See also Annex H to Gaddafi Admissibility Challenge, p. 6.

480 Admissibility Challenge, paras 129-130. It also appears from Libya’s submissions that the Accusation Chamber may also order that supplementary investigations into the case be conducted: see Admissibility Challenge, para. 130, Libya’s Final Submissions, para. 8, and Annex H to Gaddafi Admissibility Challenge, p. 5.

481 Admissibility Challenge, para. 129.

482 Ibid., paras 132-133.

483 Ibid.

484 Ibid., para. 134.

485 Ibid.

486 Ibid., para. 146.

487 Ibid.

488 Ibid., para. 130 and 149.

489 Ibid., para. 149.

490 Ibid. See Annex G to Gaddafi Admissibility Challenge.

491 See paras 289 to 309 below.

492 See para. 27 above.

493 See paras 160 to 165 above.

494 See para. 161 above.

495 Admissibility Challenge, para. 163.

496 Ibid., para. 164.

497 Ibid.

498 Ibid.

499 Ibid.

500 Ibid.

501 Supra, para. 156.

502 Libya’s Final Submissions, para. 18.

503 On this point Libya relies on, inter alia: Libya Herald, “Abdullah Senussi charged in Tripoli court; Saif still in Zintan”, 19 September 2013 (available at http://www.libyaherald.com/2013/09/19/43193/#axzz2fu8YPFel); The Telegraph, “Saif Gaddafi asks for trial to be heard in Zintan rather than Tripoli”, 19 September 2013 (available at http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/10321188/Saif-Gaddafi-asks-for-trial-to-be-heard-in-Zintan-rather-than-Tripoli.html); and The Tripoli Post, “Seif Gaddafi Misses Tripoli Hearing But Attends Another Court in Zintan”, 20 September 2013 (available at http://www.tripolipost.com/articledetail.asp?c=1&i=10652).

504 Libya’s Final Submissions, para. 33.

505 Annex 23 to Libya’s Submissions of 23 January 2013, pp. 7- 8 and Admissibility Challenge, para. 189.

506 Annex 20 to Libya’s Submissions of 23 January 2013, p. 6.

507 It is submitted that the European Union, Italy, Turkey, Argentina and the United Kingdom have provided this kind of assistance and that the United Arab Emirates, France, Italy, Turkey and the United States have pledged additional assistance (see Admissibility Challenge, para. 186 and Annex 23 to Libya’s Submissions of 23 January 2013, p. 8).

508 Supra para. 29.

509 Defence Observations, paras 163 to 166.

510 Ibid., paras 120 to 130.

511 Ibid., paras 131 to 140.

512 Ibid., paras 168 to 171.

513 Ibid., para. 162.

514 As observed above, the Chamber recalls that the relevant provisions which form part of Libya’s national law are set out in the Libyan Criminal Procedure Code and the Libya’s Constitution Declaration of 3 August 2011 as well as in those human rights instruments that Libya has ratified: see above para. 203.

515 Defence Observations, paras 163 to 166.

516 Ibid., para. 164.

517 Ibid., para. 165 (emphasis omitted).

518 Ibid., para. 166.

519 Libya’s Reply, para. 161.

520 Prosecutor’s Response, para. 79.

521 Admissibility Challenge, paras 26 and 136, and Libya’s Reply, para. 72.

522 Admissibility Challenge, para. 127, and Libya’s Reply, para. 72. See also Annexes 8 and 28 to the Admissibility Challenge.

523 See “Libyan Government’s provisional report pursuant to the Chamber’s Decision of 9 August 2012 & Request for leave to file further report by 28 September 2012”, 7 September 2013, ICC-01/11-01/11-205, para. 13.

524 According to the Prosecutor-General’s Office, the first interview of Mr Al-Senussi took place on 17 September 2012 (Annex 3 to the Admissibility Challenge); see also Admissibility Challenge, para. 165.

525 Annex A to Libya’s Final Submissions.

526 See, inter alia, Annex E to Gaddafi Admissibility Challenge, which refers to investigative activities into an alleged offence of committed by Mr Al-Senussi in 2011, and Annex F to Gaddafi Admissibility Challenge, which is an “opinion” by the Assistant of the Military Prosecutor-General, providing a summary of the events at the Abu Salim prison in 1996 and Mr Al-Senussi’s role into these events, as emerging from the testimonies of six witnesses.

527 Defence Observations, para. 144.

528 Ibid., paras 125 and 132.

529 Ibid., para. 124.

530 Human Rights Watch, “Libya: Ensure Abdallah Sanussi Access to Lawyer” (available at http://www.hrw.org/news/2013/04/17/libya-ensure-abdallah-sanussi-access-lawyer). This report was relied upon, first, by Defence (Defence Observations, paras 124 and 138, and accompanying footnote) and subsequently by Libya (Libya’s Reply, paras 131-132 and 152).

531 Ibid.

532 Ibid.

533 Ibid.

534 Libya’s Reply, para. 146.

535 Ibid.

536 Libya’s Final Submissions, para. 28.

537 See para. 206 above.

538 See para. 206 above.

539 Defence Observations, paras 120 to 140.

540 Ibid., paras 144, 167 and 171.

541 The Chamber notes in this regard that, differently from article 17(2)(c) of the Statute, these requirements are instead presented disjunctively in rule 9(ii) of the ICTY Rules of Procedure and Evidence, which governs the conditions under which the Prosecutor can assert primacy jurisdiction over a State and which reads as follows: “[w]here it appears to the Prosecutor that in any such investigations or criminal proceedings instituted in the courts of any State [. . .] there is a lack of impartiality or independence, or the investigations or proceedings are designed to shield the accused from international criminal responsibility, or the case is not diligently prosecuted [. . .] the Prosecutor may propose to the Trial Chamber designated by the President that a formal request be made that such court defer to the competence of the Tribunal” (emphasis added).

542 Defence Observations, para. 135. See also Annex B to the Defence Observations.

543 Defence Observations, para. 71.

544 Ibid., para. 138.

545 Ibid., para. 167.

546 Ibid., para. 139. See also para. 137.

547 Ibid., para. 139, with reference to Admissibility Challenge, para. 191, and ICC-Ol/ll-01/11-216-Anx3.3, p. 2.

548 Defence Observations, para. 139.

549 Ibid.

550 Ibid.

551 The Chamber is mindful of the Defence submission that “Libya’s refusal to arrange for a legal visit has meant that the Defence has no way of verifying the conditions under which Mr. Al-Senussi, has been detained and interrogated” (Defence Observations, para. 138), and it has already indicated above that it would take this into account for the purposes of the present analysis (supra para. 29 and 219). Nevertheless, the Chamber is of the view that the fact that the Defence did not have access to Mr Al-Senussi cannot per se lead to the positive conclusion that certain fundamental rights of Mr Al-Senussi have been violated in the course of the domestic proceedings against him, or be in itself sufficient to cast doubt on Libya’s counter-assertions.

552 Libya’s Reply, para. 152.

553 Human Rights Watch, “Libya: Ensure Abdallah Sanussi Access to Lawyer” (available at http://www.hrw.org/news/2013/04/17/libya-ensure-abdallah-sanussi-access-lawyer).

554 Ibid.

555 Ibid.

556 See para. 206 above.

557 Annex 2 to the Admissibility Challenge, p. 2.

558 Admissibility Challenge, para. 178.

559 ICC-01/ll-Ol/11-252-Conf-Anx3.

560 Defence Observations, para. 168. The Defence makes reference to public statements made by the Minister of Finance, the former Deputy Minister of Finance, the former spokesman for the Ministry of Foreign Affairs, the former Prime Minister, the NTC Chairman, and the member of the NTC in charge of Legal Affairs and Women (Defence Observations, para. 168 and footnotes 251 to 257).

561 Allegations on systemic lack of impartiality and independence of the Libyan judiciary are discussed below at paras 244 to 258.

562 Defence Observations, para. 169.

563 Ibid. According to the Defence, “[i]rregularities in Ms. Al- Senussi’s case include (i) her arrest by military police followed by detention, first in a private residence and subsequently in a detention facility designated for political prisoners despite her status as a private citizen whose alleged crime was not military or political in nature; (ii) the adjournment of her hearing six times due to the court’s inability to gain access to a key witness (ultimately the court went ahead with sentencing without oral testimony from any witnesses); and (iii) irrelevant references in the judgment to the fact that Ms. Al-Senussi is Mr. Al-Senussi’s daughter, with the court referring to Mr. Al-Senussi’s former position under Gaddafi on both occasions” (Defence Observations, footnote 264).

564 Supra, paras 203 and 221. The significant features of the relevant Libyan applicable law are described at paras 203 to 206.

565 Supra, paras 221.

566 Defence Observations, para. 168 and footnote 260, citing: Libya Herald, “GNC committee urges exclusion of former regime judges”, 26 December 2012 (available at http://www. libyaherald.com/2012/12/27/gnc-body-urges-exclusion-offormer- regime-judges/#axzz2fFs8w5vQ).

567 Defence Observations, para. 168.

568 Ibid.

569 Defence Additional Submissions, paras 17-18.

570 Amnesty International, “Libya: al-Gaddafi loyalists at risk of ‘revenge’ death sentences”, 2 August 2013 (available at http://www.amnesty.org/en/news/libya-al-gaddafi-loyalists-riskrevenge-death-sentences-2013-08-02). See also Defence Additional Submissions, footnote 25, citing: BBC, “Gaddafi minister Ahmed Ibrahim sentenced to death”, 31 July 2013, (available at http://www.bbc.co.uk/news/world-africa-23524134).

571 OPCV Observations, para. 80.

572 Ibid., para. 79.

573 Annex G to Gaddafi Admissibility Challenge.

574 Admissibility Challenge, para. 140.

575 Foreign and Commonwealth Office and Wilton Park Conference Report, “Libya and Human Rights: the way forward”, 11 April 2011, (available at https://www.wiltonpark. org.uk/wp-content/uploads/WP1127-Report.pdf).

576 Libya’s Reply, para. 164.

577 Ibid.

578 Annex 23 to Libya’s Submissions of 23 January 2013, p. 5.

579 Annex 8 to Libya’s Submissions of 23 January 2013.

580 Admissibility Challenge, para. 142.

581 Annex 8 to Libya’s Submissions of 23 January 2013, p. 7.

582 Ibid.

583 Annex 23 to Libya’s Submissions of 23 January 2013.

584 Ibid., p. 5.

585 Ibid., p. 6.

586 Libya’s Reply, para. 167

587 Libya’s Reply, para. 168.

588 Libya Herald, “Tripoli Court again postpones trial of Baghdadi Al-Mahmoudi”, 13 June 2013 (available at http://www.libyaherald.com/2013/06/13/tripoli-court-again-postponestrial- of-baghdadi-al-mahmoudi/), cited in Libya’s Reply, para. 169 and footnote 221.

589 Ibid.

590 Middle east online, “Trial of Baghdadi Mahmudi raises fear of ‘revenge’ justice in Libya”, 6 August 2013 (available at http://www.middle-east-online.com/english/?id=60599), referenced to by the Defence in its Additional Submissions, para. 20 and footnote 30.

591 Annex A to Libya’s Final Submissions. 592 Libya’s Reply, para. 169.

593 Libya Herald, “Court finds Obeidi and Zway not guilty; Attorney General to appeal”, 17 June 2013 (available at http://www.nytimes.com/2013/04/04/world/middleeast/egypt-courtrules-against-extradition-of-former-qaddafi-aide-to-libya.html), referenced to in Libya’s Reply, footnote 222.

594 Annex A to Libya’s Final Submissions. 595 Annex B to Libya’s Final Submissions. 596 OPCV Observations, para. 70.

597 Ibid.

598 See The New York Times, “Egypt: Court Blocks Extradition of Ex-Qaddafi Aide to Libya”, 3 April 2013 (available at http://www.nytimes.com/2013/04/04/world/middleeast/egypt-courtrules-against-extradition-of-former-qaddafi-aide-to-libya.html), cited in the OPCV Observations, footnote 100.

599 See The New York Times, “Egypt: Court Blocks Extradition of Ex-Qaddafi Aide to Libya”, 3 April 2013 (available at http://www.nytimes.com/2013/04/04/world/middleeast/egypt-courtrules- against-extradition-of-former-qaddafi-aide-to-libya. html); and Daily News Egypt, “Egypt court rules against handing Kadhafi cousin to Libya”, 4 April 2013 (available at http://www.dailynewsegypt.com/2013/04/04/egypt-court-rulesagainst- handing-kadhafi-cousin-to-libya/), both referred to in the OPCV Observations, footnote 100.

600 Defence Observations, paras 94 to 98 and Defence Additional Submissions, paras 6 to 14.

601 OPCV Observations, paras 68-69.

602 Defence Observations, para. 94.

603 Libya’s Reply, para. 134. This also includes the abduction of Anoud Al-Senussi on 2 September 2013 while being released from serving her prison service in Libya (see ICC- 01/11-01/11-432, paras 11 to 13, and Libya’s Final Submissions, paras 40 to 42).

604 Defence Observations, paras 86 to 93.

605 Ibid., para. 93.

606 See, e.g., ICC-01/ll-Ol/ll-252-Conf-Anx3, which includes an official letter from the Prosecutor-General confirming Mr Al- Senussi’s detention “in connection with [his] case at the Al Hadaba Detention Facili of the Ministry of Justice” as well as; Annex 2 to the Admissibility Challenge, by which the Prosecutor-General’s office informs the Court that Mr Al- Senussi has been interviewed by the national judicial authorities on numerous occasions and has been confronted with most of the evidence collected against him; Human Rights Watch, “Libya: Ensure Abdallah Sanussi Access to Lawyer” (available at http://www.hrw.org/news/2013/04/17/libyaensure- abdallah-sanussi-access-lawyer), in which it is stated that Mr Al-Senussi’s detention facility “is administered by the judicial police under the authority of the Justice Ministry”, that the visit of Human Rights Watch “was facilitated by Justice Minister Salah Marghani and the acting head of the detention facility”, and that Mr Al-Senussi “said that he has been before a judge about once a month to review his detention [. . .] [and] that Libyan investigators had questioned him mainly during the first five months of his detention”. Furthermore, as submitted by Libya at para. 168 of its Reply, judicial proceedings against Mr Al-Baghdadi Al-Mahmoudi, Muammar Gaddafi’s last prime minister, who is detained in the same prison as Mr Al-Senussi, are currently ongoing. Finally, the Chamber notes Libya’s submission that “the fact of the hearing on 19 September 2013 being held in the court room in Tripoli, which is in itself part of the same purpose-built complex as Al-Habda prison exemplifies the Government’s firm control over this prison” (Libya’s Final Submissions, para. 33).

607 Confidential and ex parte (Chamber only) Annex C to the Defence Observations.

608 Defence Observations, para. 91. See, e.g., para. 25 of the item of evidence at issue, which appears to support a different conclusion that the one advanced by the Defence, which instead seems to stem from other statements made by the witness, for example at para 29.

609 Defence Observations, para. 91.

610 See e.g. paras 14-22 and 33-36 of the Confidential and ex parte (Chamber only) Annex C to the Defence Observations.

611 Defence Observations, paras 76 to 84.

612 See also Gaddafi Admissibility Decision, paras 209-210.

613 Defence Observations, para. 102 and footnotes 155-156.

614 International Crisis Group, “Divided We Stand: Libya’s Enduring Conflicts”, Middle East/North Africa Report N°130, 14 September 2012, p. 31 (available at http://www. crisisgroup.org/-/media/Files/Middle%20East%20North%20 Africa/North%20Africa/libya/130-divided-we-stand-libyasenduring-conflicts.pdf).

615 International Crisis Group, “Trial by Error: Justice in Post- Qadhafi Libya”, Middle East/North Africa Report N°140, 17 April 2013, footnote 142 (available at http://www.crisisgroup.org/-/media/Files/Middle%20East%20North%20Africa/North%20Africa/libya/140-trial-by-error-justice-in-postqadhafi-libya.pdf).

616 Defence Observations, para. 83 and footnote 114.

617 Al Monitor, “New Libyan Government Struggles to Restore Order”, 8 January 2013, footnote 142 (available at http://www. al-monitor.com/pulse/security/2013/01/new-libyangovernment- works-to-restore-order.html#ixzz2VnW3cOUM).

618 Ibid.

619 Defence Observations, para. 103.

620 Admissibility Challenge, para. 163. See also Annex 5 to the Admissibility Challenge.

621 See Admissibility Challenge, paras 191 and 193; and Libya’s Reply, para. 125.

622 Admissibility Challenge, para. 191.

623 Libya’s Reply, para. 125. A series of measures identified by the Libyan Government in order to achieve this result are provided at pp. 9 and 10 of the “Rule of Law and Transitional Justice Priorities” Discussion Paper that was filed in the record of the case as Annex 23 to Libya’s Submissions of 23 January 2013.

624 Annex 20 to Libya’s Submissions of 23 January 2013, p. 5.

625 Annex 29 to the Admissibility Challenge, p. 4.

626 Defence Observations, para. 97.

627 Libya’s Reply, para. 135.

628 Ibid., with reference to Libya Herald, “Taha Bara released”, 16 June 2013 (available at http://www.libyaherald.com/2013/06/16/taha-bara-released/#axzz2g7VD18wz).

629 Libya’s Reply, para. 136.

630 See Defence Observations, para. 95 and Annex A, and Defence Additional Submissions, paras 6 to 14.

631 OPCV Observations, para. 68.

632 International Crisis Group, “Trial by Error: Justice in Post- Qadhafi Libya”, Middle East/North Africa Report N°140, 17 April 2013, pp. 3-4 (available at http://www.crisisgroup.org/-/media/Files/Middle%20East%20North%20Africa/North%20Africa/libya/140-trial-by-error-justice-in-post-qadhafi-libya.pdf), cited in the OPCV Observations at para. 68 and footnote 96.

633 Libya’s Final Submissions, para. 12. See also Libya’s Reply, para. 134.

634 Libya’s Final Submissions, para. 21. More specifically, Libya submits that “Benghazi has a ‘Joint Security Room’ that works under the direct supervision of the Cabinet [and] alongside local police, helping them to develop security plans and coordinate with the relevant authorities” and that the Joint Security Room, which “is chaired by the commander of the Central Military Zone and includes senior local security personnel [. . .] has been responsible for supervising arrests, seizing weapons, and otherwise detaining and investigating those attempting to ensure impunity for the former Gaddafi regime officials [with the] assistance from foreign specialists who are able to provide targeted assistance to complement and support the relevant Libyan infrastructure and expertise”. Libya asserts that “[a]s a result of work by the Joint Security Room in Benghazi, suspects have been sent to Tripoli where they will be further investigated and may be tried”. (Libya’s Final Submissions, paras 21 and 22). Furthermore, Libya submits that “hundreds of former revolutionaries who had been trained as police were deployed to Benghazi and Tripoli” (Libya’s Final Submissions, para. 23).

635 Admissibility Challenge, para. 187.

636 Annex 23 to Libya’s Submissions of 23 January 2013, pp. 3-4.

637 Annex 23 to Libya’s Submissions of 23 January 2013, p. 4.

638 Admissibility Challenge, para. 187, with reference to, inter alia, Libya Herald, “Revolutionaries start training as judicial police”, 2 February 2013 (available at http://www.libyaherald.com/2013/02/02/revolutionaries-start-training-as-judicial-police/).

639 Libya’s Final Submissions, para. 42.

640 Ibid.

641 Defence Observations, paras 106 to 119; OPCV Observations, paras 72-73.

642 Defence Observations, para. 117.

643 Admissibility Challenge, para. 177.

644 Ibid.

645 Ibid.

646 Libya’s Reply, para. 143.

647 Gaddafi Admissibility Decision, para. 211.

648 Ibid.

649 See paras 211 to 213 above.

650 See para. 214 above.

651 See paras 253 to 255 above.

652 See paras 216, 252 and 271 above.

653 See paras 231 to 233 above.

654 See para. 281 above.

655 See paras 283 to 288 above.

656 See paras 267 to 271 above.

657 See paras 227 to 229 above.

658 Annex A to Libya’s Further Submissions.

659 See paras 161 and 211 above.

660 Libya’s Reply, para. 146, with reference to also Human Rights Watch, “Libya: Ensure Abdallah Sanussi Access to Lawyer” (available at http://www.hrw.org/news/2013/04/17/libya-ensure-abdallah-sanussi-access-lawyer). The issue of Mr Al-Senussi’s legal representation as a potential impediment to Libya’s ability to carry out the proceedings against Mr Al- Senussi is addressed below at paras 301 to 307.

661 See paras 161 and 211 above.

662 Annex 8 to the Admissibility Challenge, p. 33.

663 Supra, paras 264 and 265.

664 Supra, para. 215.

665 Supra, para. 233.

666 Gaddafi Admissibility Decision, para. 214.

667 Admissibility Challenge, para. 175.

668 Libya’s Reply, para. 146.

669 Ibid.

670 Ibid.

671 Gaddafi Admissibility Decision, para. 213, with reference to Libya’s Submissions of 23 January 2013, para. 97.

672 Libya’s Reply, para. 146.

673 Libya’s Final Submissions, para. 28.

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Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi: Decision on the Admissibility of the Case Against Abdullah Al-Senussi (INT’L CRIM. CT.)

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Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi: Decision on the Admissibility of the Case Against Abdullah Al-Senussi (INT’L CRIM. CT.)

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