## Facts

- The situation in Libya was referred to the International Criminal Court (ICC) by the U.N. Security Council, which required Libyan authorities to cooperate with the Court.
- Pre-Trial Chamber I issued an arrest warrant for Saif Al-Islam Gaddafi for crimes against humanity (murder and persecution) allegedly committed in connection with repression of demonstrations in February 2011.
- Libya filed an admissibility challenge under the Rome Statute, asserting it was conducting domestic proceedings against Gaddafi for conduct arising from the same events and seeking to postpone surrender.
- Libya represented that Gaddafi was detained by the Zintan militia and acknowledged it had not secured his transfer into central government custody.
- The Chamber evaluated whether Libya’s domestic actions covered the same case as the ICC case and whether Libya was able genuinely to carry out proceedings in light of security and institutional conditions.

## Issues

1. Whether Libya was investigating or prosecuting the same case as the ICC, meaning the same person for substantially the same conduct underlying the ICC arrest warrant.
2. If the same case existed, whether Libya was willing and able genuinely to conduct the proceedings, including whether it had practical control over the accused and functioning judicial capacity.
3. What burden and level of evidentiary specificity a state must meet when challenging admissibility.

## Decision

- The Chamber rejected Libya’s admissibility challenge and held the case admissible before the ICC.
- The Chamber found Libya did not show its domestic investigation encompassed substantially the same conduct as the ICC case, rather than general overlap in events.
- The Chamber further found that, in any event, Libya was unable genuinely to carry out proceedings at the relevant time, including because it lacked custody and control over the accused.

## Legal Principles

- Complementarity requires a case-specific admissibility inquiry under the Rome Statute focused on whether national authorities are investigating or prosecuting the same person for substantially the same conduct.
- Investigating the same general events or broader criminality is insufficient; the state must demonstrate that domestic proceedings address the specific incidents and conduct that define the ICC case.
- The state challenging admissibility bears the burden to provide concrete, tangible, and specific evidence showing domestic proceedings cover the same case.
- “Inability” may be established where a state cannot obtain custody of the accused or otherwise cannot carry proceedings forward due to substantial unavailability of the national system, including post-conflict fragmentation of authority.
- A Security Council referral does not remove the complementarity framework; the ICC still must apply the Article 17 admissibility analysis.

## Conclusion

Pre-Trial Chamber I held that the ICC case against Saif Al-Islam Gaddafi remained admissible because Libya failed to substantiate that it was pursuing substantially the same conduct and, independently, because Libya lacked the practical ability to carry out genuine proceedings, including by failing to secure custody over the accused.


Prosecutor v. Gaddafi, ICC-01/11-01/11-344-Red (Int’l Crim. Ct. Pre-Trial Ch. I May 31, 2013)