## Facts

- The International Criminal Court’s jurisdiction over the Libya situation was triggered by a United Nations Security Council referral covering events since February 15, 2011.
- Abdullah Al-Senussi, a former senior Libyan intelligence official, was alleged to bear responsibility for crimes against humanity (murder and persecution) arising from the repression of the 2011 uprising.
- The ICC issued an arrest warrant for Al-Senussi in June 2011 on reasonable-grounds findings tied to those alleged crimes.
- Libya challenged admissibility under Rome Statute Article 19, asserting it was investigating and prosecuting Al-Senussi domestically for the relevant events.
- In October 2013, the ICC Pre-Trial Chamber found the ICC case inadmissible because Libya’s proceedings concerned substantially the same conduct and Libya was not shown to be unwilling or unable genuinely to prosecute.
- Al-Senussi appealed that ruling and sought suspensive effect; suspensive effect was denied.
- In July 2014, the ICC Appeals Chamber issued judgment on Al-Senussi’s appeal of the admissibility ruling.

## Issues

1. Whether Libya’s domestic proceedings concerned the “same case” as the ICC case by addressing “substantially the same conduct” attributed to Al-Senussi.
2. Whether Libya was “unwilling or unable genuinely” to conduct the investigation or prosecution under Rome Statute Article 17(2)–(3), including in light of security conditions and asserted fair-trial deficiencies.
3. How the burden of production and persuasion operates in an Article 19 admissibility challenge and what standard governs appellate review of Pre-Trial Chamber fact-finding.

## Decision

- The Appeals Chamber dismissed Al-Senussi’s appeal and affirmed the Pre-Trial Chamber’s inadmissibility decision.
- The Appeals Chamber upheld the finding that Libya was pursuing domestic proceedings addressing substantially the same conduct underlying the ICC allegations.
- The Appeals Chamber concluded that Al-Senussi had not shown that Libya was unwilling or unable genuinely to carry out the domestic proceedings within the meaning of Article 17.
- The Appeals Chamber reiterated that its review of factual determinations is limited to identifiable error rather than reweighing the evidence anew.

## Legal Principles

- Under the Rome Statute’s complementarity regime, the ICC defers to national jurisdictions when there are genuine domestic investigations or prosecutions covering the same case.
- For admissibility under Article 17(1)(a)–(b), the “same case” inquiry turns on whether domestic proceedings address the same person and substantially the same conduct as the ICC allegations.
- In an Article 19 admissibility challenge, the State must support its claim of domestic proceedings with evidence; once that threshold is met, the party opposing inadmissibility must demonstrate unwillingness or inability under Article 17.
- “Inability” under Article 17(3) requires conditions amounting to a total or substantial collapse or unavailability of the national judicial system that prevent the State from carrying out proceedings.
- “Unwillingness” under Article 17(2) focuses on indicia that proceedings are meant to shield the person, involve unjustified delay, or lack independence or impartiality in a manner inconsistent with an intent to bring the person to justice; allegations of prospective due-process violations alone do not establish unwillingness.

## Conclusion

The Appeals Chamber confirmed that the ICC case against Al-Senussi was inadmissible because Libya’s domestic proceedings covered substantially the same conduct and were not shown to be a sham or obstructed by system collapse, reinforcing complementarity as a bar to ICC litigation when a State is genuinely pursuing prosecution.


Prosecutor v. Al-Senussi, ICC-01/11-01/11 (Int’l Crim. Ct. App. Ch. July 24, 2014)