## Facts

- The UN Security Council referred the situation in Libya since 15 February 2011 to the ICC Prosecutor.
- The ICC issued an arrest warrant for Saif Al-Islam Gaddafi for crimes against humanity (murder and persecution) arising from repression of civilian demonstrations in February 2011.
- Saif Al-Islam Gaddafi was apprehended in November 2011 and remained held by a Zintan militia rather than in central government custody.
- Libya initiated national proceedings against him for a broad set of alleged offenses, including conduct beyond the ICC’s February 2011 allegations.
- Libya filed an admissibility challenge under the Rome Statute, arguing it was investigating or prosecuting the same case, making the ICC case inadmissible.
- Evidence before the Chamber indicated significant security and capacity problems affecting Libya’s justice system, including difficulties obtaining custody of the accused, ensuring defense counsel, and protecting witnesses.

## Issues

1. Whether Libya was investigating or prosecuting the same case—i.e., the same person and substantially the same conduct—as the ICC case for purposes of admissibility under the Rome Statute.
2. If Libya was addressing the same case, whether Libya was unwilling or unable genuinely to carry out the relevant investigation or prosecution.
3. What temporal point governs the admissibility assessment for comparing national proceedings to the ICC case.

## Decision

- The Pre-Trial Chamber rejected Libya’s admissibility challenge and held the case admissible before the ICC.
- Libya did not show its domestic proceedings covered substantially the same conduct as the ICC case, even though the suspect was the same person.
- The Chamber further found that Libya was unable genuinely to carry out proceedings, given its inability to secure custody of the accused and related obstacles to conducting the specific case.
- The Chamber assessed admissibility based on the facts as they existed during the admissibility litigation.

## Legal Principles

- A case is inadmissible under complementarity only if the State is investigating or prosecuting the same person for substantially the same conduct that defines the ICC case.
- The State bears the burden to substantiate, with concrete information, that national investigative steps encompass the incidents and conduct forming the basis of the ICC allegations.
- Inability under the Rome Statute may be shown where, due to unavailability or substantial collapse affecting the relevant proceedings, the State cannot obtain the accused, secure evidence and testimony, or otherwise carry out the proceedings in the particular case.
- Admissibility is assessed at the time of the admissibility proceedings, enabling comparison between the parameters of the ICC investigation/case and the contemporaneous national process.

## Conclusion

The ICC kept the case against Saif Al-Islam Gaddafi because Libya did not demonstrate it was pursuing substantially the same conduct and, in any event, lacked the practical ability to conduct the specific proceedings, particularly because it could not obtain custody and could not ensure basic conditions needed for a genuine prosecution.


Situation in Libya (Prosecutor v. Saif Al-Islam Gaddafi), ICC-01/11-01/11-344-Red (Int’l Crim. Ct. Pre-Trial Chamber I 2013)