Emory International Law Review

Being Able to Prosecute Saif Al-Islam Gaddafi: Applying Article 17(3) of the Rome Statute to Libya
M. Christopher Pitts Executive Manager Editor, Emory International Law Review, J.D. Candidate, Emory University School of Law (2014); B.A. Georgia College & State University (2009). The author would like to thank Professor Johan D. van der Vyver for his advice and guidance, without which the topic of this Comment would never have been narrowed to the issue of Libya’s inability long before the Chamber issued its admissibility decision. The author would also like to thank the staff members and editors of the Emory International Law Review for the hard work that was put into editing this Comment.

Introduction

The Arab Spring was a series of revolutions and demonstrations occurring in several nations throughout the Middle East and North Africa. 1See generally Fouad Ajami, The Arab Spring at One: A Year of Living Dangerously, Foreign Aff., Mar./Apr. 2012, at 56, available at http://www.foreignaffairs.com/articles/137053/fouad-ajami/the-arab-spring-at-one?page=show. One such revolution was the Libyan Civil War, which ended the forty-year reign of Colonel Muammar Gaddafi. 2See id. at 59. While the revolution certainly affected the lives of Libyans, it also left its mark on international criminal law. On February 26, 2011, the United Nations Security Council passed Resolution 1970, which referred the situation in Libya to the International Criminal Court’s Office of the Prosecutor (OTP) for an investigation into any international crimes committed by Muammar Gaddafi and his regime since February 15, 2011. 3S.C. Res. 1970, para. 4, U.N. Doc. S/RES/1970 (Feb. 26, 2011). As a result, the Pre-Trial Chamber (Chamber) 4The Pre-Trial Chamber of the ICC is the division responsible for overseeing a case or situation until the accused has been charged and the Prosecutor is ready to proceed to trial. Pre-Trial Division, Int’l Crim. Ct., http://www.icccpi.int/en_menus/icc/structure%20of%20the%20court/chambers/pre%20trial%20division/Pages/pre%20trial%20division.aspx (last visited Oct. 25, 2013). Among its other various functions, the Chamber may authorize the Prosecutor to investigate a situation on her own motion, issues warrants for arrest, and otherwise ensure the integrity of the investigative proceedings. Id. of the International Criminal Court (ICC) issued warrants for the arrest of Muammar Gaddafi, Saif al-Islam Gaddafi (Gaddafi), 5Saif al-Islam Gaddafi is one of the sons of Muammar Gaddafi and was the honorary chairman of the Gaddafi International Charity and Development Foundation and acting Prime Minister of Libya under his father’s government. Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Case No. ICC-01/11-01/11, Case Information Sheet, Int’l Crim. Ct. http://www.icc-cpi.int/iccdocs/PIDS/publications/SaifAlIslamSenussiEng.pdf (last visited Oct. 3, 2013) [hereinafter Case Information Sheet]. and Abdullah al-Senussi, 6Abdullah al-Senussi was a colonel in the Libyan Armed Forces and the head of Military Intelligence under Muammar Gaddafi. Id. alleging their responsibility for committing crimes against humanity during the conflict. 7See Situation in the Libyan Arab Jamahiriya, Case No. ICC-01/11, 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,” para. 41 (June 27, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1101337.pdf [hereinafter Prosecutor’s Warrant Application]; Case Information Sheet, supra note 5. The charges against Muammar Gaddafi were dropped due to his death, 8Case Information Sheet, supra note 5. but the case against Saif Gaddafi and al-Senussi has continued and become an important issue for the new Libyan government, which has challenged the admissibility of the Gaddafi case before the ICC. 9Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Application on Behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, para. 1 (May 1, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1405819.pdf [hereinafter Libya’s Admissibility Motion]. The Chamber denied Libya’s admissibility challenge on May 31, 2013. 10Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Decision on the Admissibility of the Case Against Saif al-Islam Gaddafi, para. 219 (May 31, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1599307.pdf [hereinafter Admissibility Decision].

What is perhaps most exceptional about this case is the admissibility exception that the parties originally talked about the least: inability. A case is inadmissible in the ICC if “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution.” 11The Rome Statute of the International Criminal Court art. 17, para. 1(a), July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. A state is considered unable to investigate or prosecute a defendant when, “due to a total or substantial collapse or unavailability of its national judicial system, the state is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” 12Id. art. 17(3). Libya, in its original challenge, addressed the issues of whether it is investigating the same crime before the ICC 13See Libya’s Admissibility Motion, supra note 9, paras. 39–52. and whether it is willing to carry out the prosecution. 14See id. paras. 53–67. However, Libya barely spoke to the issue of whether it is “unable to genuinely” investigate or prosecute Gaddafi outside of mere policy arguments. 15See generally id. paras. 96–102. The OTP also barely touched on the issue of inability in its response to Libya’s motion, dedicating only about two paragraphs of its motion to whether Libya is able to investigate and prosecute the case. 16See Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Prosecution Response to Application on Behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, paras. 8, 41 (June 5, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1423546.pdf [hereinafter Prosecutor’s Admissibility Response]. Indeed, even the Office of Public Counsel for the Defense (OPCD) talked comparatively little about Libya’s ability to investigate and prosecute when compared to other sections of its brief. 17See Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Defense Response to the Application on Behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, (July 31, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1446165.pdf [hereinafter Defense’s Admissibility Response]. Compare the OPCD’s discussion of Libya’s investigation in paragraphs 67–154 and its discussion of unwillingness in paragraphs 155–353 with their discussion on inability in paragraphs 354–408. Id.

That the parties spent so little time discussing the inability exception is unfortunate, because it eventually became one of the issues the Chamber talked about the most in its decision on the admissibility challenge. 18See Admissibility Decision, supra note 10, paras. 199–215. Regrettably, the Chamber decided that Libya was genuinely unable to investigate or prosecute Gaddafi in obiter dictum. 19Admissibility Decision, supra note 10, para. 215. The situation in Libya offered the ICC a unique opportunity to address the issue of inability, because the decision the Court made in this case may not only affect how it views the ability of a state to prosecute a suspect in the future, but it may also affect the ICC’s policy toward the principle of complementarity 20See infra notes 175–77 and accompanying text. and, ultimately, the ICC’s relationship with state-parties and states recovering from internal conflict for years to come. 21See Libya’s Admissibility Motion, supra note 9, para. 101. By declaring that Libya was genuinely unable to investigate or prosecute Gaddafi, the ICC missed an opportunity to implement a policy of positive complementarity to address the possible inability of a state to prosecute a defendant. Such a policy would help build a transitional government’s justice system rather than deprive that country of the ability to prosecute a former regime for wrongdoing against its people. 22See id. para. 102.

This Comment argues that the Chamber wrongly decided the issue of Libya’s ability to investigate and prosecute Gaddafi because it should have never reached the question. Even if it had, the Chamber’s analysis under Article 17(3) of the Rome Statute was inherently flawed. Rather, out of respect for state sovereignty and the strict circumstances under which the drafters of the Rome Statute wished to place the inability exception to Articles 17(1)(a) and (b), the Chamber should have found Gaddafi’s case inadmissible. Part I will address the background of the situation in Libya and the case against Gaddafi, the arguments offered by Libya in support of its admissibility challenge, and the OTP’s and the OPCD’s responses. Part II will discuss the Chamber’s decision on Libya’s admissibility challenge. Part III will discuss the history of Article 17(3) of the Rome Statute, explore why the inability provision was added, and analyze how Article 17 is currently construed. Part IV will discuss Jean-Pierre Bemba Gombo’s case before the ICC, a case in which the issue of inability has also arisen, and compare it to the situation in Libya. Part V will discuss the case against Gaddafi in light of complementarity and the Bemba case and give reasons why the ICC should find that Gaddafi’s case is, at this time, inadmissible.

I. Background

To understand the context and substance of the case against Gaddafi, as well as why Libya is at this time genuinely able to investigate and prosecute the case, it is important to know the history of the case, the arguments of the parties in their motions and at the admissibility hearing, and developments in Libya since the admissibility challenge has been submitted. This Comment will discuss each in turn.

A. History of the Case Against Gaddafi

Before the National Transitional Council of Libya (NTC or Libya) gained control of Libya, the country was ruled by Colonel Muammar Gaddafi following his coup d’état in 1969. 23Gregory Viscusi, Qaddafi Is No Mubarak as Regime Overthrow May Trigger a ‘Descent to Chaos’, Bloomberg (Feb. 23, 2011), http://www.bloomberg.com/news/2011-02-23/qaddafi-is-no-mubarak-overthrow-may-mean-descent-to-chaos-.html. Muammar Gaddafi’s control over Libya began to slip after protests arose in Libya, despite a regime crackdown, in what was called a “day of rage” on February 17, 2011. 24See Deadly ‘Day of Rage’ in Libya, Al-Jazeera (Feb. 18, 2011, 5:34 AM), http://www.aljazeera.com/news/africa/2011/02/201121716917273192.html.

Muammar Gaddafi, Saif Gaddafi, and al-Senussi met to “plan the repression of the protest” by mobilizing Libyan Security Forces, recruiting mercenaries, and releasing prisoners convicted of minor crimes so that they could participate in pro-Gaddafi protests and otherwise create chaos. 25Prosecutor’s Warrant Application, supra note 7, para. 9. Saif Gaddafi in particular “took an active role in the recruitment of foreign mercenaries.” 26Id. para. 10. The protests quickly escalated into conflicts between the demonstrators and Muammar Gaddafi’s regime. 27Deadly ‘Day of Rage’ in Libya, supra note 24. In Benghazi, for instance, an eyewitness reported that police killed six unarmed protesters and the police further released thirty people from jail, paying and arming them so that they could fight the protesters. Id. The killing of protesters was allegedly expressly authorized by Muammar Gaddafi and coordinated by al-Senussi as a means of suppressing the protests. 28Situation in the Libyan Arab Jamahiriya, supra note 7, para. 12. Not surprisingly, larger demonstrations against Muammar Gaddafi’s regime resulted from the killings of these protesters, bringing about “a systematic and even more violent response” from the Security Forces. 29See id. paras. 13–17 (noting that demonstrations continued to take place in Tripoli and that the protesters were fired upon by the Security Forces). Subsequently, the protesters began to set fire to government buildings. Id. On February 20, 2011, Saif Gaddafi threatened a civil war that would be “worse than Iraq and worse than in Yugoslavia that would cause thousands of deaths” if the protests did not stop. 30Id. para. 16 (internal quotation marks omitted).

Once the protests escalated into civil war, the NTC was created in Benghazi on February 27, 2011 to serve as the “political face . . . for the revolution” against Muammar Gaddafi and his regime. 31Libya: Timeline of the Conflict, Euronews (Aug. 29, 2011, 3:14 PM), http://www.euronews.com/2011/08/29/libya-timeline-of-the-conflict/. Mustafa Mohamed Abdel Jalil, a former member of Muammar Gaddafi’s cabinet, became the head of the NTC after its formation. Libya Opposition Launches Council, Al-Jazeera (Feb. 27, 2011, 8:00 PM), http://www.aljazeera.com/news/africa/2011/02/2011227175955221853.html. During a speech renouncing the Gaddafi regime, Libya’s deputy ambassador to the United Nations, Ibrahim Dabbashi, issued perhaps the first call from the Libyan Mission to the United Nations to have the ICC investigate Muammar Gaddafi for war crimes and crimes against humanity. 32Houda Mzioudet, First Diplomat To Denounce Qaddafi Returns to NY as UN Ambassador, Libya Herald (June 17, 2013), http://www.libyaherald.com/2013/06/17/first-diplomat-to-denounce-qaddafi-returns-to-ny-as-un-ambassador/. On February 26, 2011, the Security Council unanimously passed Resolution 1970 which, among other things, referred the situation in Libya to the OTP for an investigation of any international crimes since February 15, 2011. 33S.C. Res. 1970, supra note 3, para. 4. This was the second time that the Security Council has made such a referral, and the first time that such a referral was made unanimously. Edward Wyatt, Security Council Refers Libya to Criminal Court, N.Y. Times, Feb. 27, 2011, at 14; India Backs UN Sanctions Against Libya, IBN Live (Feb. 27, 2011, 11:18 AM), http://ibnlive.in.com/news/india-backs-un-sanctions-against-libya/144537-3.html. The first Security Council referral to the ICC occurred in 2005 with the adoption of Resolution 1593 which referred the situation in Darfur to the OTP. See Press Release, Security Council, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court, U.N. Press Release SC/8351 (Mar. 31, 2005) available at http://www.un.org/News/Press/docs/2005/sc8351.doc.htm. The vote, however, was not unanimous, with only eleven countries voting in favor of the resolution, none voting against the resolution, and Algeria, Brazil, China, and the United States abstaining. Id.

In a decision rendered on June 27, 2011, the Chamber issued warrants for the arrest of Muammar Gaddafi, Saif Gaddafi and al-Senussi for their alleged responsibility in committing murder as a crime against humanity under Article 7(1)(a) of the Rome Statute and persecution as a crime against humanity under Article 7(1)(h). 34Prosecutor’s Warrant Application, supra note 7, paras. 95, 99, 102. According to Article 7(1)(h), a crime against humanity exists when there is “[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.” Rome Statute, supra note 11, art. 7. Persecution is defined in Article 7(2)(g) as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Id. Saif Gaddafi was indicted as an indirect co-perpetrator of these crimes, and al-Senussi was indicted as an indirect perpetrator. 35Case Information Sheet, supra note 5. However, gaining custody over the Gaddafis and al-Senussi has proven difficult for the ICC. 36On the day the warrants were issued, Muammar Gaddafi’s regime was still in control of Tripoli, even though rebel forces were making a push for the capital. Libya: Fierce Fighting South-West of Tripoli, BBC News (June 27, 2011, 5:54 AM), http://www.bbc.co.uk/news/world-africa-13921665. Muammar Gaddafi died from wounds sustained during the Battle of Sirte. 37Rania El Gamal & Tim Gaynor, Gaddafi Killed as Libya’s Revolt Claims Hometown, Reuters (Oct. 20, 2011), http://af.reuters.com/article/topNews/idAFJOE79J09O20111020. Because of his death, the Chamber formally dropped the charges against Muammar Gaddafi. 38Case Information Sheet, supra note 5.

On November 19, 2011, militia forces in Zintan, Libya captured Saif Gaddafi. 39Marie-Louise Gumuchian, Gaddafi’s Son Captured, Scared and Without a Fight, Reuters (Nov. 19, 2011), http://www.reuters.com/article/2011/11/19/us-libya-idUSTRE7AI0G820111119. Immediately after his arrest, Libya resisted turning him over to the ICC and began to investigate him for financial and corruption crimes. 40Id.; Libya’s Admissibility Motion, supra note 9, para. 23. Several non-governmental organizations, including Amnesty International and Human Rights Watch, were calling on the NTC to turn Gaddafi over to the ICC. Gumuchian, supra note 39. The Libyan Prosecutor-General did not begin investigating Gaddafi for serious crimes such as murder and rape until January 2012. 41Libya’s Admissibility Motion, supra note 9, para. 25. Libya initially stated that the investigation of Gaddafi for more serious crimes began January 8, 2012. Id. Confusingly, in a response filed on January 23, 2012 to the ICC, the NTC stated that it was still “considering whether to also institute national proceedings ‘in relation to the same conduct for which [Gaddafi] is sought by the [ICC].’” Id. para. 26. The Zintan militia has held Gaddafi in Zintan since his capture. 42Libya Challenges International Criminal Court’s Order to Hand Over Saif Gadhafi, CNN (Oct. 9, 2012, 7:55AM), http://www.cnn.com/2012/10/09/world/africa/netherlands-saif-gadhafi-appeal/index.html.

Al-Senussi was not captured until March 17, 2012, at the Nouakchott airport in Mauritania. 43Gaddafi Spy Chief Abdullah al-Senussi Held in Mauritania, BBC News (Mar. 17, 2012, 4:16 PM), http://www.bbc.co.uk/news/world-africa-17413626. Eventually al-Senussi was extradited to Libya on September 5, 2012, 44Mauritania Deports Libya Spy Chief Abdullah al-Senussi, BBC News (Sept. 5, 2012 1:45 PM), http://www.bbc.co.uk/news/world-africa-19487228. Al-Senussi was not immediately deported to Libya because there was a dispute between France and Libya about who should gain custody of him. Gaddafi Spy Chief Abdullah al-Senussi Held in Mauritania, supra note 43. French President Nicolas Sarkozy called for al-Senussi to be extradited to France because he was convicted by a French court of being involved in an attack on a French plane in 1989 that killed 170 people. Id. and there were reports that Libya paid as much as $200 million to Mauritania to secure his transfer. 45George Grant, Government Struck Financial Deal with Mauritania over Senussi Handover, Libya Herald (Sept. 5, 2012), http://www.libyaherald.com/2012/09/05/govt-struck-financial-deal-with-mauritania-over-senussi-handover/. The NTC began investigating al-Senussi for his participation in the atrocities during the Libyan Civil War almost immediately after his capture. 46Libya’s Admissibility Motion, supra note 9, paras. 23, 25.

On January 23, 2012, the NTC began to fight Gaddafi’s surrender, requesting a postponement of the surrender request under Article 94(1) of the Rome Statute so that Libya could finish investigating and prosecuting Gaddafi for various national crimes. 47Id. para. 26. Article 94(1) allows for the postponement of a request if such “immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates.” Rome Statute, supra note 11, art. 94, para. 1. On March 7, 2012, the Chamber denied the postponement request and stated that “Libya must grant the surrender request.” 48Id. para. 29. On March 22, 2012, Libya again tried to postpone Gaddafi’s surrender to the ICC by expressing their intent to challenge the admissibility of Gaddafi’s case and seeking suspension of the surrender under Article 95 of the Statute. 49Libya’s Admissibility Motion, supra note 9, para. 31. Article 95 allows for the postponement of a request when a case’s admissibility is challenged. Rome Statute, supra note 11, art. 95. This request was also denied because there was no actual admissibility challenge being considered by the Chamber. 50Libya’s Admissibility Motion, supra note 9, para. 32.

B. The Parties’ Arguments

On May 1, 2012, the NTC challenged the admissibility of the case against Gaddafi in the ICC. 51Id. para. 6. The OTP followed with its response, filed on June 5, 2012, 52See generally Prosecutor’s Admissibility Response, supra note 16. and the OPCD filed its response on July 31, 2012. 53See generally id. The Chamber held a hearing on the admissibility challenge on October 9 and 10, 2012. 54Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Hearing on the Admissibility Challenge (Oct. 9, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1481845.pdf [hereinafter Admissibility Hearing Day 1 Transcript]; Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Hearing on the Admissibility Challenge (Oct. 10, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1487823.pdf [hereinafter Admissibility Hearing Day 2 Transcript]. This Part will discuss the arguments made by each party in their court filings and will then discuss the new assertions brought by the parties during the admissibility hearing and the parties’ submissions after the hearing.

1. Libya’s Admissibility Challenge

As mentioned above, the parties barely touched on the issue of whether Libya is able to investigate and prosecute Gaddafi in their original submissions. 55See supra notes 10–16 and accompanying text. Libya did state that the inability exception will determine whether complementarity will become “a realistic and reasonable system, or a utopian concept with no practical application;” that “the purpose of transitional justice is to provide an opportunity for post-conflict judicial capacity building;” 56Libya’s Admissibility Motion, supra note 9, para. 98. and that it could “become a tool for overly harsh assessments of the judicial machinery in developing countries.” 57Id. para. 99 (quoting Sharon A. Williams & William A. Schabas, Article 17: Issues of Admissibility, in Commentary on the Rome Statute of the International Criminal Court 605, 624 (Otto Triffterer ed., 2d. ed. 2008)). Referring to the Thomas Lubanga Dyilo case, which was also before the ICC, Libya further asserted that even if a state is presently unable to prosecute a defendant, an unable state can quickly become able to prosecute a defendant. 58Id. para. 100. Outside of policy arguments, Libya merely mentioned that it had custody of Gaddafi, that the evidence of Gaddafi’s crimes existed in Libya, and that Libya had requested al-Senussi’s extradition from Mauritania. 59Id. para. 96. Libya further claimed that it would be able to carry out the necessary proceedings to prosecute Gaddafi because it had requested help from the “UN High Commissioner for Human Rights and other organizations with respect to strengthening the capacity of the judiciary and the legal profession in general and to provide specialized training for judges and prosecutors, with a particular focus on litigation related to transitional justice.” 60Id. para. 97. Still, the heart of Libya’s argument for its admissibility motion was that the Court denying Libya the chance to prosecute Gaddafi “would be manifestly at variance with the principle of complementarity,” despite indications that Libya was able to carry out a prosecution with international assistance. 61Id. para. 98.

Outside of its explicit arguments, Libya offered other facts that serve as indicia that Libya is genuinely able to investigate and prosecute Gaddafi. For instance, Libya mentioned that it has a Code of Criminal Procedure that directs investigatory processes, trials, and appeals, and that such investigations be done confidentially. 62Id. paras. 39–40. Libya also claimed that it followed that code while extending Gaddafi’s detention in Zintan. 63Id. paras. 42–43. The Prosecutor-General, who is overseeing the investigation of Gaddafi, began the process of investigating Gaddafi for war crimes committed during the Libyan Civil War by intercepting calls and conducting interviews with witnesses. 64Id. paras. 44–47.

Further, the Libyan Constitutional Declaration of 2011 made a provision for an independent judiciary and prohibited any “exceptional courts” that were used during the Colonel Gaddafi regime to effect human rights violations. 65Id. paras. 53–54 (citation omitted). The judiciary has already expressed this independence by overturning a law enacted by the NTC that “penalizes anyone who praises Muammar Gaddafi or his sons, or refers to them as ‘reformers,’ or states anything against the interests of the state or the February revolution.” 66Defense’s Admissibility Response, supra note 17, para. 316. The 2011 Libyan Constitution further guarantees fairness by providing access to a defense attorney, even if it has to be appointed by the court free of cost. 67Libya’s Admissibility Motion, supra note 9, para. 59, 62. The defendant is also guaranteed a right to present evidence in his defense, to request a written judgment, and to various forms of appeal. 68Id. paras. 63, 65. Finally, Libya has a Criminal Code that would allow it to charge Gaddafi, if the evidence is sufficient, for crimes such as intentional murder, torture, arresting people without just cause. 69Id. para. 75.

2. The OTP’s Response

The OTP also barely touched upon the issue of inability in its response to Libya’s motion. 70See Prosecutor’s Admissibility Response, supra note 16, paras. 8, 41. To the extent that the OTP did raise the issue of Libya’s ability to prosecute Gaddafi, it simply observed that the militia in Zintan that captured and held Gaddafi may not be part of the NTC. 71Id. para. 8. This fact raises a concern that the NTC does not actually have, and may not be able to gain, custody over Gaddafi, a requirement under Article 17(3). 72Rome Statute, supra note 11, art. 17, para. 3. The OTP also pointed out that a defense counsel has yet to be appointed for Gaddafi in Libya, perhaps due in part to his captors in Zintan. 73Prosecutor’s Admissibility Response, supra note 16, para. 41. In raising this concern, the OTP did not argue that Libya’s criminal justice system must conform to international due process standards 74Id. para. 28. but instead argued that the fact that Libya had not appointed an attorney might be evidence that it is unable to prosecute Gaddafi. 75Id. para. 41. Thus, even though the OTP believed that Libya was investigating Gaddafi for the same crimes as the ICC, 76Id. para. 46. it submitted that the NTC should provide further evidence to the ICC that they are able to actually prosecute Gaddafi. 77Id. paras. 8, 41.

3. The OPCD’s Response

The OPCD, in contrast, provided a thorough argument against Libya’s admissibility challenge. First, it argued that the NTC did not have effective custody over Gaddafi because he was held by the Zintan militia, which, according to the OPCD, was an entity completely distinct from the NTC. 78Defense’s Admissibility Response, supra note 17, paras. 358–68. In relation to Gaddafi’s custody in Zintan, the OCPD claimed that in the time that Gaddafi has been held in Zintan, he has been:(1) not brought before a judge; (2) not granted effective access to lawyers; (3) denied the means to communicate with friends and family for the purpose of selecting lawyers, (4) questioned . . . without the presence of a lawyer and without any waiver being obtained; and (5) not provided any written information or evidence concerning the status of domestic proceedings (and requests for the same by the OPCD on his behalf have been rebuffed).Id. para. 214. Second, the OPCD argued that the NTC lacked the authorities and judges to effectively investigate and prosecute any case against Gaddafi. 79Id. paras. 369–81. The OPCD also argued that the NTC lacked the ability to keep any judges, prosecuting authorities, defendants, and witnesses safe from harm. 80Id. paras. 382–404. The OPCD further argued that if a judge were to give an order in the Gaddafi case, the NTC would be unable to implement that order. 81Id. paras. 405–08.

With regard to Libya’s lack of judicial and police authorities, the OPCD submitted that few judges and prosecuting authorities are versed in “basic legal and human rights standards.” 82Id. para. 370 (quoting U.N. Human Rights Council, Rep. of the Int’l Comm’n of Inquiry on Libya, U.N. Human Rights Council, 19th Sess., Mar. 8, 2012, para. 12, U.N. Doc. A/HRC/19/68 (2008)). Further, some officials have said that the prosecuting authorities in Libya did not have the ability to properly gather evidence and that, if Gaddafi were brought to trial in Libya in May, 2012, he might be found innocent. 83Defense’s Admissibility Response, supra note 17, paras. 373–74 (citations omitted). The OPCD also expressed concerns that under Article 305(1) of the Libyan Criminal Procedure Code, if any evidence, particularly intercept evidence, against Gaddafi was illegally obtained, such evidence would have to be excluded, making it possible that not enough evidence would be admissible to effectively prosecute Gaddafi. 84Id. para. 217. The intercept evidence to which the OPCD referred concerns phone calls that were recorded at the order of Muammar Gaddafi by the two major Libyan phone companies. Admissibility Hearing Day 2 Transcript, supra note 54, at 56–57. After the fall of Muammar Gaddafi’s regime, these records were widely available and made their way to the general public. Id. The legal impact of this evidence and how it became available is discussed below. See infra notes 334–39 and accompanying text. The OPCD also pointed out that there were legal impediments to any Gaddafi trial in Libya if he were to stay in Zintan. For instance, Libyan law does not allow for in abstentia trials unless the accused is outside of the country, thus making it necessary to transport Gaddafi to Tripoli for any trial to begin. 85Defense’s Admissibility Response, supra note 17, para. 358. On this point, the OPCD observed that the Zintan militia has not transferred Gaddafi because of security concerns in Tripoli. 86Id. para. 360.

Judges also feared for their safety due to the lack of security in cities, preventing them from returning to work. 87Id. para. 384 (citing Bureau of Democracy, Human Rights, & Labor, U.S. Dep’t of State, Country Reports on Human Rights Practices for 2012: Libya 10 (2012)). This lack of security also affected prosecuting authorities from being able to investigate the case unless they depended upon local militia for security. 88Id. para. 385. The OPCD further argued that the arrest and detention of several of its employees by the Zintan militia may further discourage witnesses from cooperating with a defense attorney in Libya. 89Id. para. 393. Finally, there is some speculation as to whether Libya would be able to effectuate any judicial order if Gaddafi were to be found guilty of any crimes. 90Id. paras. 405–06.

The OPCD also argued that Libya’s belief regarding its capacity to investigate and prosecute Gaddafi is irrelevant. 91Defense’s Admissibility Response, supra note 17, para. 355. To support this argument, the defense pointed to the case of Jean-Pierre Bemba Gombo. 92Id. In the Bemba case, the ICC determined the admissibility of a case that was referred to it by the Central African Republic (CAR). 93Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-802, Decision on the Admissibility and Abuse of Process Challenges, para. 15 (June 24, 2010), http://www.icc-cpi.int/iccdocs/doc/doc899684.pdf [hereinafter Bemba Admissibility Decision]. The Bemba case is discussed more fully below. See infra Part IV. The ICC acknowledged that a national court’s determination of inability was not relevant 94See Bemba Admissibility Decision, supra note 93, para. 261. but then made a determination largely based on the same factors considered by the CAR’s national court. 95See infra note 299 and accompanying text. Thus, the OPCD concluded, the Chamber, not Libya, determines whether Libya can actually investigate and, if necessary, prosecute Gaddafi. 96Defense’s Admissibility Response, supra note 17, para. 355.

4. The Admissibility Hearing

The Chamber convened an admissibility hearing so that the parties could discuss all of the issues relevant to the admissibility challenge. 97Admissibility Hearing Day 1 Transcript, supra note 54, at 4. At the hearing, Libya responded to some of the allegations made by the OPCD. First, in regards to the security situation in Libya, it stated that the new Libyan government and army were undertaking a “large scale disarmament drive targeting militia groups.” 98Id. at 10. Second, in response to the accusation that Libya is taking too long to move the Gaddafi investigation along, Libya pointed out that even the ICC has required many years to bring accused persons to justice. 99Id. at 12. Thus Libya, a country that is coming out of a four-decade dictatorship, 100Admissibility Hearing Day 2 Transcript, supra note 54, at 45. will need more time to complete the judicial process. 101Admissibility Hearing Day 1 Transcript, supra note 54, at 12. Libya also confronted the allegation that the intercept evidence it recovered may be found inadmissible in a Libyan court of law. 102Admissibility Hearing Day 2 Transcript, supra note 54, at 56–57. On that point, Libya noted that the evidence in question were the recordings of telephone conversations which were made on Muammar Gaddafi’s orders. 103Id. at 56. Those records were made publicly available after the downfall of Muammar Gaddafi’s government and, consequently, would raise unique questions of law for a Libyan court. 104Id. at 56–57. Finally, to show that its judicial system was working, Libya pointed not only to the fact that the Libyan Supreme Court overturned a law that “criminalized the glorification of [Muammar Gaddafi,]” but also to the case of Buzeid Dorda. 105Id. at 46–47. In the Dorda case, the trial court suspended proceedings until the Libyan Supreme Court could decide whether the proceedings were unconstitutional because of the use of procedures that had been used in the People’s Court under the reign of Muammar Gaddafi. 106Libya Court Suspends Trial of Top Gaddafi-Era Intelligence Official, Reuters (Sept. 11, 2012), http://www.reuters.com/article/2012/09/11/us-libya-trials-suspension-idUSBRE88A0ZU20120911. People’s Courts were emergency courts used by Muammar Gaddafi “to try opposition members and political prisoners, [wherein] one or more people with no legal training could pass judgments without the need for a judge, jury or lawyers to be present in court.” Id. The People’s Courts were banned after the fall of the Gaddafi regime, but the law governing them was still in use; thus their application in the Dorda case may have rendered it unconstitutional. Id. Moreover, a declaration by the Libyan Supreme Court that such procedures were unconstitutional would help combat some of the due process arguments expressed by the OPCD. 107See, e.g., Admissibility Hearing Day 2 Transcript, supra note 54, at 18–19.

The OTP continued to support Libya’s admissibility challenge during the hearing. The OTP’s support of Libya’s admissibility challenge seemed a bit counterintuitive, a fact that the OTP pointed to during the admissibility hearing. 108Admissibility Hearing Day 1 Transcript, supra note 54, at 58–59. However, the OTP seemed sympathetic to the complexities of transitional justice and, more importantly, the concern that impunity be avoided. 109Id. On this latter point, the OTP first supported the assertion by Libya that it was actively investigating the case against Gaddafi to the same extent as the OTP. 110Id. at 55–56. The OTP echoed Libya’s concern that Libya needed more time to recover from its era of tyranny, stating that giving Libya only one week per year of oppression is not enough time to expect it to be as fully capable as a functioning state and that the ICC should not “push [itself] to the front and elbow aside the states that are genuinely able and willing to prosecute their nationals for their crimes.” 111Id. at 59.

The OPCD advanced other arguments during the admissibility hearings to show that Libya is unable to investigate or prosecute Gaddafi. The OPCD argued that the fairness of legal proceedings can be indicative of a judicial system that is substantially collapsed or, when systematic, can cause the substantial collapse of the justice system. 112Admissibility Hearing Day 2 Transcript, supra note 54, at 18. The OPCD argued that the due process violations, such as not being brought before a judge, not having legal representation, and not having the proper “time and facilities” to prepare his defense have rendered Libya’s judicial system unavailable to former officials in the Muammar Gaddafi government. 113Id. at 18. By extension, the defense argued, the same violations were likely to occur in Gaddafi’s case. 114Id. It also argued that, based on testimony from some human rights activists, there is a “systemic inability within Libya for authorities to understand the proper procedures that should be applied within a criminal trial and to persons detained under the protection of the state.” 115Id.

The OPCD also attacked the presumption that, even if Libya received international assistance and monitoring from the ICC, it would comply with the monitoring. 116Admissibility Hearing Day 2 Transcript, supra note 54, at 27. To support this argument, it pointed to the fact that since Gaddafi’s capture, Libya has been under the obligation to extradite Gaddafi to the ICC and has yet to do so. 117Id. at 27–28. There was also an actual occurrence of monitoring by the United Nations Commission of Inquiry where Libya asked for the monitoring to stop on condition that Libya would implement recommendations by the Commission. 118Id. at 28. The OPCD asserted that Libya failed to implement these recommendations even after having seven months to do so. 119Id.

Finally, the OPCD also referred to a quote from Dr. Ali Tarhouni, a former interim Prime Minister for the NTC, who stated that there was a security breakdown ongoing in Libya to the point that there was “no national army[,] . . . no internal security agency[,] . . . [and] no police.” 120Id. at 25. The lack of security, especially police forces, would “inevitably impact . . . Libya’s ability to identify relevant witnesses and physical evidence and to monitor the security and safety of witnesses.” 121Admissibility Hearing Day 2 Transcript, supra note 54, at 25. The OPCD bolstered this argument at the admissibility hearing by referring to recent reports of Muammar Gaddafi’s former subordinates in Benghazi. 122Id. at 26.

5. Parties’ Submissions After the Admissibility Hearing

On the Chamber’s order, Libya submitted further information regarding issues surrounding the admissibility challenge on January 23, 2013. 123See generally Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Libyan Government’s Further Submissions on Issues Related to the Admissibility of the Case Against Saif al-Islam Gaddafi (Jan. 23, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1545015.pdf [hereinafter Libya’s Further Submissions]. First, Libya noted that on December 23, 2012, the Supreme Court of Libya unanimously found that the People’s Court procedures used in the Dorda case were unconstitutional. 124Id. paras. 75–76. As a result of this holding, People’s Court procedures cannot be applied to any future cases, including to Gaddafi’s trial. 125Id. para. 77. Libya hailed this decision not only as a demonstration of an impartial judiciary in Libya but also as an expression of Libya’s intent to conduct fair criminal trials. 126See id. para. 76. Second, Libya also submitted that Gaddafi would be able to be tried as a public officer in Libya 127Id. paras. 84–85. because even though he did not have a de jure position within the Libyan government before the Libyan Revolution, he was the de facto prime minister. 128Id. para. 85. Libyan law recognizes this distinction, and a showing that a person holds de facto public office allows that person to be charged with crimes that may only be committed by public officers. 129Id.

Libya also detailed the international assistance it received in relation to its criminal justice system. 130See generally id. paras. 103–13. A large share of the international support to Libya came from the U.N. Support Mission in Libya, which traveled across Libya to: (1) discuss issues of transitional justice with local political and community leaders; (2) advise Libya on its detention centers and help facilitate transfers to government-controlled facilities in Tripoli; (3) work with Libya to increase its prison capacity; (4) advise the Libyan Ministry of Justice on how to reconcile Libyan laws with international standards and develop programs for public defenders and military prosecutors; and (5) hold workshops for judges and prosecutors to prepare them for litigation involving serious crimes. 131See id. paras. 104, 106–10. Libya also received funding and training from the European Union and other countries. 132Id. para. 105.

The OTP submitted a response to the submissions made by Libya on February 12, 2013. 133See generally Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Prosecution’s Response to Libyan Government’s Further Submissions on the Issues Related to the Admissibility of the Case Against Saif al-Islam Gaddafi (Feb. 12, 1013), http://www.icc-cpi.int/iccdocs/doc/doc1551639.pdf. Among other things, the OTP uncovered that Libyan law actually does allow for in abstentia trials. 134Id. para. 44. The OTP retracted this statement a week later stating that whether Libya can conduct an in abstentia trial is irrelevant because, by implication, such a proceeding admits that Libya could not obtain the accused. 135Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Prosecution’s Notice of Withdrawal Regarding a Reference in its Prosecution’s Response to Libyan Government’s Further Submissions on Issues Related to the Admissibility of the Case Against Saif al-Islam Gaddafi (ICC-01/11-02/22-276-Red2), para. 3 (Feb. 19, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1555477.pdf. There was no indication that this change of mind signified that the OTP had also stopped believing Libya was not genuinely able to prosecute Gaddafi. 136See id. In either case, these arguments negate the claim by the OPCD that the lack of in absentia trials made the prosecution of Gaddafi otherwise unable to proceed.

The OPCD also responded to Libya’s submissions after the admissibility hearing on February 18, 2013. 137See generally Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Public Redacted Version of the Response to the Libyan Government’s Further Submissions on Issues Related to Admissibility of the Case Against Saif Al-Islam Gaddafi (Feb. 18, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1555252.pdf. In regards to the Libyan Supreme Court ruling that overturned the People’s Court procedures, the OPCD submitted that Libyan courts have already acted in opposition to the ruling. 138Id. para. 169. For example, Gaddafi was recently brought straight to trial to face charges that were unrelated to the Libyan Civil War, rather than first being brought to an accusation chamber as required by Libyan law. 139Id. The OPCD attacked claims that Libya’s judiciary was impartial based on a law passed by Libya that aimed to remove judges who had served during Muammar Gaddafi’s regime. 140Id. paras.170–73. It also argued that Libya did not provide enough information to alleviate concerns that the lack of security would dissuade witnesses from testifying, making legal proceedings “otherwise unavailable.” 141Id. paras. 222–57. Finally, the OPCD dismissed the international assistance received by Libya as either irrelevant to the Gaddafi case or charged that Libya was too vague in explaining its relevance. 142Id. para. 284.

C. Developments In Libya Since the Admissibility Challenge

Since the admissibility challenge there have been other indicia of Libya’s ability to investigate and prosecute Gaddafi. For instance, Libya was able to secure the extradition of al-Senussi from Mauritania for $200 million. 143Grant, supra note 45. This may be an indication that Libya has the resources available to carry out further investigations and prosecute Gaddafi. Additionally, Libya held its first “fully free parliamentary election” since 1952, with a voter turnout of roughly sixty-two percent. 144See Libya Election Success for Secularist Jibril’s Bloc, BBC News (July 18, 2012), http://www.bbc.co.uk/news/world-africa-18880908. The new government should soon begin drafting a new constitution for the country. 145Hadeel al Shalchi & Marie-Louise Gumuchian, Libya’s Jibril in Election Landslide over Islamists, Reuters (July 12, 2012), http://www.reuters.com/article/2012/07/12/us-libya-elections-idUSBRE86B0JI20120712. The new non-transitional government is expected to appoint a new Prosecutor-General who will then be responsible for transferring Gaddafi from Zintan to “purpose-built trial and detention facilities” in Tripoli. 146Admissibility Hearing Day 1 Transcript, supra note 54, at 29.

However, progress has been met with major setbacks. For instance, the lack of security persisted after the parties submitted their motions on the admissibility challenge. In what was called “one of the worst breakdowns in security in [Tripoli] since Muammar Gaddafi’s fall,” rival militias fought each other on November 4, 2012, resulting in five people being wounded and an intelligence building being set on fire. 147UPDATE 4-Rival Libya Militias Battle on Streets of Tripoli, Reuters (Nov. 4, 2012, 12:31 PM), http://www.reuters.com/article/2012/11/04/libya-attack-idUSL5E8M42RE20121104. More notable to Americans was the attack on the American embassy in Benghazi on September 11, 2012, which claimed the life of U.S. Ambassador Christopher Stevens and other consulate employees. 148Benghazi US Consulate Attack: Timeline, BBC News (Nov. 16, 2012, 11:23 AM), http://www.bbc.co.uk/news/world-africa-19587068. However, there is some evidence that Libyan security forces had word of the attack weeks before and warned the U.S. Embassy of the impending attack. 149See Julian Pecquet, Timeline of Libya Consulate Attack Reveals Administration Contradictions, Hill (Oct. 14, 2012, 6:00 AM), http://thehill.com/blogs/global-affairs/terrorism/261839-timeline-of-libya-attack-reveals-administration-contradictions.

II. The Chamber’s Decision

The Chamber issued its decision rejecting Libya’s admissibility challenge on May 31, 2013. 150Admissibility Decision, supra note 10. The Chamber did not base its decision on Libya’s ability to investigate or prosecute Gaddafi, but on whether Libya was investigating the same case as the ICC. 151Id. paras. 134–35. However, the Chamber’s holding on whether Libya was investigating the same case was informed, at least in part, by the Chamber’s opinion on whether Libya was genuinely able to investigate and prosecute Gaddafi. 152Id. para. 137. As a general matter, the analysis of an admissibility challenge is a two-step process. Id. para. 58. First is whether a state with jurisdiction is investigating or prosecuting the same case as the ICC. Id. If the answer is in the affirmative, then the second question is whether the state is genuinely willing or able to investigate or prosecute the accused. Id. See infra Part II.B.1 for a fuller discussion of this two-step analysis. Thus, to understand the Chamber’s opinion on Libya’s ability in context and why the Chamber got its analysis wrong, it is important to first understand the Chamber’s decision on whether Libya was investigating the same case as the ICC and then discuss the Chamber’s decision regarding Libya’s ability to genuinely investigate and prosecute Gaddafi. Each issue will be taken in turn.

A. Whether Libya was Investigating the “Same Case”

As noted by the Chamber, the determination of an admissibility challenge consists of two steps: first, whether the state with jurisdiction is investigating or prosecuting the same case as the ICC, and second, if the answer is in the affirmative, whether the state is genuinely able and willing to prosecute the accused. 153Admissibility Decision, supra note 10, para. 58. With regard to the defining the same “case” that is before the ICC, the Chamber looked to whether the state is investigating or prosecuting the same person for substantially the same conduct alleged before the ICC. 154Id. paras. 58, 76–77. While it was generally not an issue whether Libya was investigating the same person as the ICC, the Chamber was concerned about whether Libya was investigating and could prosecute Gaddafi for the same conduct. 155See generally id.

First, the Chamber characterized the exact nature of the conduct that was alleged before the ICC and used that characterization as the basis for its analysis concerning whether Libya was investigating substantially the same conduct. 156Id. para. 83. The Chamber defined such conduct as Gaddafi using “the Security Forces under his control to kill and persecute hundreds of civilian demonstrators alleged dissidents to Muammar Gaddafi’s regime, across Libya, in particular in Benghazi, Misrata, Tripoli and other neighbouring cities” from February 15 to 28 of 2011. 157Id. para. 83. It is with that characterization that the Chamber then turned to whether Libya had sufficient legislation to investigate and prosecute Gaddafi for crimes that encompassed that conduct and whether Libya was actually investigating said conduct. 158Id. paras. 84–88, 106–37.

Ultimately, the Chamber held that Libya’s current legislation could allow for the investigation and prosecution of Gaddafi for the conduct that was alleged before the ICC. 159Id. para. 113. In arriving at that conclusion, the Chamber noted that it was not necessary for Libya to enact legislation that would allow them to prosecute Gaddafi for international crimes, despite prior suggestions by Libya that it was going to enact such legislation. 160Id. paras. 84–88. Even still, the Chamber was concerned that the fact that Gaddafi did not hold an official position within his father’s regime would prevent Libya from being able to prosecute him. 161Id. para. 109. Despite this reservation, the Chamber found that, at least from a legal perspective, Libya had the ability to charge and prosecute Gaddafi for crimes that encompassed the conduct alleged before the ICC. 162Id. para. 113.

The Chamber then questioned whether Libya was actually investigating Gaddafi for the same conduct alleged before the ICC. 163Id. para.114. Under this inquiry, the Chamber looked to the documents, witness statements, and other evidence provided by Libya to demonstrate its investigation of Gaddafi. 164See generally id. paras. 115–31. First, the Chamber noted that the witness statements provided by Libya do have “discrete aspects of the conduct alleged” before the ICC. 165Id. para.121. Moreover, the Chamber was not particularly concerned with the authentication, or lack thereof, of the intercept evidence relied upon by Libya. 166Id. paras. 128–31. However, documents provided by Libya, which were relevant to the investigation of Gaddafi, did not contain enough specific information to allow the Chamber to discern the scope and nature of the investigation. 167Id. paras. 116–17. Overall, the Chamber observed that, while the evidence presented did indicate that Libya was taking steps to hold Gaddafi criminally responsible for his acts, the evidence did not rise to the standard required to demonstrate that Libya was investigating Gaddafi for the same conduct. 168Id. paras. 132–35. Thus, the Chamber held that Libya had not demonstrated that it was investigating Gaddafi for the same case as the ICC, thus making the case admissible. 169Id. para. 135. However, the Chamber then went a step further, rejecting Libya’s request to make further submissions of evidence because such further evidence “would not be determinative at this stage because . . . serious concerns remain with respect to . . . Libya’s ability genuinely to carry out the investigation or prosecution against Mr. Gaddafi.” 170Id. para. 137. Thus, the Chamber then turned to determining whether Libya was able to investigate Gaddafi.

B. Whether Libya Is Genuinely Able to Investigate and Prosecute Gaddafi

There are two important aspects of the Chamber’s analysis of Libya’s ability to investigate Gaddafi. The first aspect is the substance of the Chamber’s analysis, i.e., those facts upon which the Chamber relied in making its ultimate determination. The second aspect is the form of the Chamber’s analysis and how the analysis compared to Article 17(3). This Comment will take each in turn.

1. The Substance of the Chamber’s Inability Analysis

At the outset of its discussion, the Chamber held that, despite progress made by the Libyan government since acquiring power, Libya’s national judicial system was unavailable to Gaddafi. 171Id. paras. 204–05. It made this determination without any discussion as to whether the national judicial system was also in a state of substantial or total collapse, or why the national judicial system was unavailable as opposed to being collapsed. 172See generally id. The Chamber based its decision that Libya’s judicial system was unavailable on three main points.

First, the Chamber observed that Libya was unable to obtain Gaddafi. 173Id. paras. 206–08. The Chamber noted that Gaddafi was still under the custody of the Zintan militia and had yet to be transferred to Libya since his capture on November 19, 2011. 174Id. paras. 206–07. The Chamber did not believe, despite Libya’s assurances, that any transfer would be conducted in the near future. 175Id. para. 207. Further, the Chamber stated that in abstentia trials are not available under Libyan law and, as a consequence, Gaddafi’s trial could not take place until Gaddafi was transferred to Tripoli. 176Id. para. 208.

Second, the Chamber was also concerned that Libya would be unable to obtain some witness statements for the trial against Gaddafi. 177Id. paras. 209–11. The Chamber observed that some witnesses that Libya expressed it wanted to interview have not yet been interviewed because those witnesses, like Gaddafi, are still not under Libyan control. 178Id. para. 210. The Chamber was concerned that some witnesses under Libyan control have been subjected to torture in Libyan prisons, thus calling Libya’s ability to protect such witnesses into question. 179Id. para. 209. There was also concern that unclear evidence regarding witness protection programs in Libya would be a hindrance to witnesses being willing to testify in Gaddafi’s case. 180Id. para. 211.

Finally, the Chamber also found that Libya would be otherwise unable to carry out its proceedings against Gaddafi because he had not yet selected defense counsel, nor had Libya appointed an attorney to represent him. 181See id. paras. 212–14. In particular, the Chamber was concerned that finding a defense attorney for Gaddafi would be difficult not only because of the security situation in Libya, but also because of “the risk faced by lawyers who act for associates of the former regime.” 182Id. para. 212. This concern was amplified by the fact that Libya had tried to secure counsel for Gaddafi by contacting local law societies without success, though the extent of how much effort was expended and how difficult it had been to secure an attorney is unclear. 183Id. para. 213. The Chamber was worried that Libya would be unable to find representation for Gaddafi and, as a result, be unable to move forward with the prosecution, thus rendering the national justice system unavailable. 184Id. para. 214.

In conclusion, the Chamber noted that despite the fact that “authorities for the administration of justice may exist and function in Libya, a number of legal and factual issues result in the unavailability of the national justice system for the purpose of the case against Mr. Gaddafi.” 185Id. para. 215. Therefore, according to the Chamber, Libya was genuinely unable to investigate and prosecute Gaddafi. 186Id.

2. The Structure of the Chamber’s Inability Analysis

What is particularly important about the Chamber’s analysis of the inability question is the comparison of the language of Article 17(3) and the elements on which the Chamber focused in its analysis. At the beginning of its findings on Libya’s ability to investigate Gaddafi, the Chamber recited Article 17(3), which defines inability for the purposes of an admissibility challenge. 187Id. para. 199; accord Rome Statute, supra note 11, art. 17, para. 3. Article 17(3) states that a Chamber “shall consider whether, due to a total and substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise is unable to carry out its proceedings.” 188Rome Statute, supra note 11, art. 17, para. 3; Admissibility Decision, supra note 10, para. 199. After reciting the Rome Statute’s inability definition, the Chamber then lists the applicable Libyan law that give Libyan authorities the ability to charge Gaddafi with specific ordinary crimes, to carry out proceedings against him, and to collect admissible evidence for the case. 189See Admissibility Decision, supra note 10, paras. 201–02.

There are some significant points with regard to the structure of the Chamber’s analysis that should be noted. The Chamber begins its findings with a determination that Libya’s national judicial system is “unavailable” as opposed to being collapsed. 190Id. para. 205. Despite this determination, there is no discussion as to why Libya’s national judicial system is “unavailable” rather than being in a state of substantial or total collapse. 191See id. paras. 204–05. In fact, the only justification that the Chamber gives for finding that Libya’s national judicial system is unavailable is that “it is apparent from the submissions [of the parties] that multiple challenges remain and that Libya continues to face substantial difficulties in exercising its judicial powers fully across the entire territory.” 192Id. para. 205. However, the Chamber did not elaborate immediately on what those difficulties are; rather, the Chamber noted that the difficulties that render the national justice system unavailable “are further explained below.” 193Id. Those difficulties are also the reasons why, in the Chamber’s view, Libya is unable to obtain Gaddafi, testimony, and otherwise carry out its proceedings. 194See id. paras. 206–14

The Chamber’s lack of analysis concerning the unavailability of Libya’s national judicial system is deficient for determining inability under Article 17(3). In fact, a clear understanding of complementarity and the development of the inability exception not only demonstrate why the analysis of the Chamber is deficient, but also why the Chamber should have ruled in favor of Libya. In the next Part, this Comment will discuss the development of complementarity and the inability exception, its current understanding by the ICC, the notion of positive complementarity, and the post-challenge procedures that are applicable when the ICC finds a case inadmissible.

III. Development of Complementarity and the Inability Exception

This Part will first discuss complementarity and the role it plays in determining the admissibility of a case generally followed by Subpart A, which will discuss the history of Article 17; Subpart B, which will discuss the modern interpretation of the Article; Subpart C, which will discuss the concept of positive complementarity; and Subpart D, which will discuss procedural elements after an admissibility challenge has been submitted. The issue of admissibility is defined in Article 17 of the Rome Statute and has been described as the Statute’s “cornerstone.” 195Sharon A. Williams & William A. Schabas, Article 17: Issues of Admissibility, in Commentary on the Rome Statute of the International Criminal Court 605, 606 (Otto Triffterer ed., 2008). The determination of admissibility may be reached by three tests: complementarity, covered under Article 17(1)(a) and 17(1)(b); ne bis in idem, covered under Article 17(1)(c); and gravity, under Article 17(1)(d). 196See id. This Comment is chiefly concerned with the tests provided for under complementarity because it is under this test that inability of a state to investigate or prosecute may become an issue. Inability is particularly relevant here because Libya offers a unique situation to analyze the inability exception. Inability is also relevant because, depending on if and how the Chamber decides this issue in the context of recent developments in Libya, the exception could “become a tool for overly harsh assessments of the judicial machinery in developing countries.” 197Id. at 624.

The Rome Statute outlines two ways in which the ICC may otherwise find the case admissible. Under Article 17(1)(a), a case is admissible if the state is currently investigating or prosecuting the same case as the ICC but the state “is unwilling or unable genuinely to carry out the investigation or prosecution” of the case. 198Rome Statute, supra note 11, art. 17, para. 1(a). Likewise, in Article 17(1)(b), a case is admissible if the state investigated the case and decided not to prosecute the defendant before the ICC, and “the decision resulted from the unwillingness or inability of the State genuinely to prosecute.” 199Id. art. 17(1)(b). In essence, if there is no investigation or prosecution, or there has not been an investigation and subsequent decision not to prosecute, then the case is admissible to the ICC. 200Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07 OA 8, Judgement 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, para. 78 (Sept. 25, 2009), http://www.icc-cpi.int/iccdocs/doc/doc746819.pdf [hereinafter Katanga Appeal]. It should be observed that the Chamber may find that Libya is currently not investigating the case against Gaddafi and, consequently, find the case admissible. See Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Decision Requesting Further Submissions on Issues Related to the Admissibility of the Case Against Saif al-Islam Gaddafi, para. 14 (Dec. 7, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1522448.pdf. [hereinafter Requesting Further Submissions]. An admissibility challenge must be determined “on the circumstances prevailing at the time of” the decision. See id. (citation omitted). After the admissibility hearing, the Chamber requested further evidence from Libya that it had carried out further investigations on the Gaddafi case after submitting its admissibility challenge in May 2012. Id. The Chamber noted that such evidence was necessary “for Libya to discharge its burden of proof that currently there is not a situation of ‘inaction’ at the national level.” Id. Article 17 also defines “inability” in Article 17(3), stating that a state is unable to investigate or prosecute the accused when “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” 201Rome Statute, supra note 11, art. 17, para. 3.

In addition to Article 17, there are two more aspects of an admissibility challenge that are important in consideration of the Gaddafi case. First, the Appeals Chamber has held that “the admissibility of a case must be determined on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge.” 202Katanga Appeal, supra note 200, para. 56. This requirement recognizes that the admissibility of a case may change. To support this holding, the Appeals Chamber has pointed to Article 19(10) of the Rome Statute. 203Id. Article 19(10) of the Rome Statute allows prosecutors to review admissibility decisions if “new facts have arisen which negate the basis on which the case had previously been found inadmissible under Article 17.” Rome Statute, supra note 11, art 19, para. 10. Second, the state challenging the admissibility of a case “bears the burden of proof to show that the case is inadmissible.” 204Requesting Further Submissions, supra note 200, para. 8.

To determine whether the Chamber may find that Libya is able to investigate and prosecute Gaddafi, it is pertinent to look to the development of the “inability” exception of the complementarity test, the principles of classic and positive complementarity, and the procedures the ICC has for the determination and possible re-consideration of a case’s admissibility.

A. The History of Article 17 and the Complementarity Principle

Understanding the history of the development of the complementarity principle is important in appreciating how the ICC should decide the admissibility of a case such as that of Gaddafi and al-Senussi. The ICC can trace its origin back to 1989 when the U.N. General Assembly asked the International Law Commission (ILC) to consider creating an international criminal court while it was drafting a code of international crimes. 205See Kristina Miskowiak, The International Criminal Court: Consent, Complementarity and Cooperation 13 (2000). However, the ILC did not begin to draft a statute for the ICC until 1992, after the General Assembly voted to make the creation of the Court a priority for the ILC. 206Id. In 1994, New Zealand implored the ILC to include a provision that described the relationship between the national and international courts and “the respective roles and complementarity of the national and international processes.” 207Observations of Governments on the Report of the Working Group on a Draft Statute for an International Criminal Court, 46th Sess., June 29, 1994, para. 35, (1994), reprinted in 2 Y.B. Int’l L. Comm., 21 U.N. Doc. A/CN.4/SER.A/1994/Add.1 (Part I), U.N. Sales No.E.96.V.Z. (Part I) (1994). This encouragement contributed toward including complementarity in the Preamble of a draft later that year by the ILC, which stated that “such a court is intended to be complementary to national criminal justice systems in cases where such trial procedures may not be available or may be ineffective.” 208Rep. of the Working Grp. on the Question of a Draft Statute for an International Criminal Court Revision, Int’l Law Comm’n, 46th Sess., 4/L.491/Rev.2; GAOR, 46th Sess., at 8 (July 14, 1994). Today, the Preamble further insists that states have a duty to exercise “criminal jurisdiction over those responsible for international crimes,” 209Rome Statute, supra note 11, pmbl. which, with the principle of complementarity, creates the theoretical possibility of the ICC having no cases before it. 210John T. Holmes, Complementarity: National Courts versus the ICC, in 1 The Rome Statute of the International Criminal Court: A Commentary 667, 667 (Antonio Cassese et al. eds., 2002)

Even with the notion that the ICC was to be complementary to the national courts, the ILC’s draft statute still allowed for concurrent jurisdiction of the same case between the ICC and national courts. 211Id. at 670–71. Concurrent jurisdiction, of course, allows for multiple courts to exercise jurisdiction over the same case simultaneously. 212Black’s Law Dictionary 928 (9th ed. 2009). Both the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY) were created with concurrent jurisdiction with the respective national courts to prosecute persons for international crimes. 213S.C. Res. 955, art. 8, U.N. Doc. S/RES/955 (Nov. 8, 1994); S.C. Res. 827, U.N. Doc. S/RES/827 (May. 25, 1993) (establishing ICTY); U.N. Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), para. 65, U.N. Doc S/25704 (May 3, 1993); accord Holmes, supra note 213, at 669. However, both the ICTR and the ICTY held primacy over the national courts, wherein the tribunals could require the national courts to defer to the tribunals and hand cases over to them. 214S.C. Res. 955, supra note 213, art. 8(2); S.C. Res. 827, supra note 213, U.N. Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), para. 65, U.N. Doc S/25704 (May 3, 1993); accord Holmes, supra note 210, at 669. Concurrent jurisdiction for the ICC was eliminated with the Preparatory Committee’s draft of the Rome Statute, which stated that the ICC would find a case inadmissible if it was “being investigated or prosecuted by a State . . . unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” 215United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Italy, June 15–July 17, 1998, Report of the Preparatory Committee on the Establishment of an International Criminal Court, art. 15, U.N. Doc. A/Conf.183/2/Add.1 (Apr. 14, 1998) [hereinafter Preparatory Committee Draft]. A case would also be held inadmissible if the state decided not to prosecute a defendant unless the decision itself was based on a state’s unwillingness or inability. 216Id. This language was adopted, in large part, in the final version of the Rome Statute. 217Compare id. (“Having regard to paragraph 3 of the Preamble, the Court shall determine that a case is inadmissible where: (a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.”), with Rome Statute, supra note 11, art. 17 (“Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.”); accord Johan D. van der Vyver, The Principle of Complementarity and the Rules of Admissibility 6 (2013) (unpublished manuscript) (on file with author).

A large factor in removing concurrent jurisdiction from the ICC and, in fact, in the formation of the unwillingness and inability exceptions of the complementarity test, was the international environment in which the ICC was created. When the ILC was preparing its draft for the creation of the ICC, the ICTY had just been created and the Security Council was dealing with the genocide in Rwanda. 218Holmes, supra note 210, at 670. The Security Council created the ICTY because Yugoslavia’s functioning criminal justice system at the time was not initiating prosecutions against those who were committing war crimes, and the international community feared that the country might shield those who were responsible from punishment. 219Id. at 668–69. The ICTR was similarly created by the Security Council because the genocide crippled Rwanda’s criminal justice system to the point that it was unable to initiate any criminal proceedings without substantial international assistance to first rebuild its system. 220Id. During the formation of the ICC, however, more states supported national jurisdictional primacy unless the accused were “not prosecuted or duly tried by national authorities.” 221Miskowiak, supra note 205, at 42. Thus, the emphasis on creating an international criminal court that implements complementary jurisdiction, rather than concurrent, jurisdiction is an indication that state sovereignty is an important, underlying interest protected in the Statute. 222Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity, in 7 Max Planck Y.B. United Nations L. 591, 595 (Armin von Bogdandy & Rüdiger Wolfrum eds., 2004).

The introduction and development of the inability exception under Article 17(3) is also crucial to understand how the ICC should view a state as being unable to investigate or prosecute a defendant. The Preparatory Committee first introduced a definition of inability in its draft of the statute with very little controversy. 223Williams & Schabas, supra note 198, at 610. Since its introduction, some commentators have noted the parallel that this exception to the complementarity principle has in common with the extraordinary circumstances that brought about the creation of the ICTR. 224Holmes, supra note 210, at 668–70. The most significant change in this provision of the Statute came between the Preparatory Committee’s draft and the finalized draft that was eventually approved. Originally, the inability exception to the complementarity test allowed a case to be admissible to the ICC if the state could not obtain the accused, obtain evidence, or otherwise carry out prosecutorial proceedings if such circumstances were “due to a total or partial collapse or unavailability of its national judicial system.” 225Preparatory Committee Draft, supra note 214, art. 15 (emphasis added). The “partial collapse” language became a point of contention in Rome during the final deliberations for the statutory language. 226Williams & Schabas, supra note 195, at 612. According to the objectors, a state could suffer from a partial collapse of its national judicial system and still be able to conduct an investigation or carry out a prosecution in good faith, i.e., genuinely. 227Id. Thus, based on a suggestion from Mexico, the final language was changed to “substantial collapse.” 228Id. This change in language is important, of course, because it narrows the field of admissible cases to the ICC while making other cases, such as situations where a state is engaged in armed conflict but can “shift[] resources” or transfer venues in order to effect prosecution, inadmissible. 229Holmes, supra note 210, at 677.

The drafting history of Article 17 points to two important matters that must be considered when the ICC is determining whether a state is “unable” to investigate a situation or prosecute a defendant. First, “the complementarity regime of the [ICC] is designed to protect and serve . . . the sovereignty both of the State parties and third states.” 230Benzing, supra note 222, at 595 (emphasis in original). Second, when complementarity is upset, it must be done only in a narrow set of circumstances reflected in the narrow language of the “inability” exception contained in Article 17. 231See Rome Statute, supra note 11, art. 17. Thus, for a case to fall within this inability exception, the situation within that state must be particularly extraordinary.

As stated by one commentator though, the ICC is the “arbiter of its own jurisdiction” because only it can determine whether a case is admissible. 232Holmes, supra note 210, at 672. Consequently, it is important to examine the current construction of Article 17(1)(a) and 17(3), procedural elements of an admissibility determination, and how complementarity is currently perceived to gain a better perspective of how the ICC is able to handle a situation like Libya.

B. Current Construction of Article 17 Provisions

As discussed in above, Article 17 underwent some significant changes during the drafting process. Today, Article 17(1)(a) of the Rome Statute provides: “[T]he Court shall determine that a case is inadmissible where: The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” 233Rome Statute, supra note 11, art. 17, para. 1(a). Currently, the ICC takes this as a two-part inquiry. 234See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Document into the Record of the Case Against Mr. Thomas Lubanga Dyilo, art. 58, paras. 30, 32 (Feb. 24, 2006), http://www.icc-cpi.int/iccdocs/doc/doc236260.pdf [hereinafter Dyilo Warrant]. First, it must determine whether a state is actively investigating or prosecuting the accused. Thus, if a state is “inactive” in prosecuting a particular case, the case is admissible. Second, if a state is investigating or prosecuting a case, then the case only becomes admissible if that state is “unwilling or unable genuinely to carry out” the proceedings.

1. Whether There Is an Actual Investigation

In order to keep the Gaddafi trial, Libya must first establish it is actively investigating the case against Gaddafi and must show that the case “encompass[es] both the person and the conduct which is the subject of the case before the [ICC].” 235Id. para. 31. During the admissibility hearing, the OTP argued that Libya was both “taking the same serious tack and the serious approach that the OTP brought to [Gaddafi’s] investigation” and that Libya was “tak[ing] concrete steps to investigate [Gaddafi] for substantially the same conduct.” 236Admissibility Hearing Day 1 Transcript, supra note 54, at 55–56. However, after Gaddafi made a court appearance in Zintan on January 17, 2012, a spokesman for the prosecutor told reporters that the “[i]nvestigations for trying [Gaddafi] for war crimes are over and he will be put on trial for that at a later time.” 237Ali Shuaib, Gaddafi’s Son Appears in Libyan Court for First Time, Reuters (Jan. 17, 2013, 10:49 AM), http://www.reuters.com/article/2013/01/17/us-libya-gaddafi-idUSBRE90G0QR20130117. Such a statement could be a reason for the Chamber to deny Libya’s admissibility challenge because there must be either an active investigation or prosecution and, by this statement, there is apparently neither. 238Kevin Jon Heller, Libya Admits It Should Lose Its Complementarity Challenge Re: Saif, Opinio Juris (Jan. 18, 2013, 12:53 AM), http://opiniojuris.org/2013/01/18/libya-admits-it-should-lose-its-complementarity-challenge-re-saif/. Ultimately, the Chamber found that Libya did not provide sufficient evidence to establish that it was investigating Gaddafi for the same case as alleged in the ICC. 239Admissibility Decision, supra note 10, paras. 134–37. Assuming the Chamber had found that Libya was actually investigating the case against Gaddafi and that Libya was not genuinely unwilling to prosecute Gaddafi, the next question would be whether Libya was genuinely able to investigate and prosecute Gaddafi.

2. Whether Libya is Genuinely Able to Investigate and Prosecute

Article 17(3) sets out the definition for a state being genuinely unable to carry out proceedings. It states that “the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” 240Id. art. 17, para. 3. It is not enough, as the Chamber did, to merely show that the state is unable to investigate or obtain the accused. 241Admissibility Decision, supra note 10, paras. 205, 215. To meet the inability standard of Article 17(3) it would have to be shown that Libya is unable to do so because there has been a total or substantial collapse of the national judicial system or that the justice system is unavailable. 242Kevin Jon Heller, The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process, 17 Crim. L.F. 255, 264 (2006); Int’l Criminal Court, Office of the Prosecutor, No. ICC-01/04-01/07, Informal Expert Paper: The Principle of Complementarity in Practice 15 (2003), available at http://www.icc-cpi.int/iccdocs/doc/doc654724.pdf.

The OTP tried to set some rough definitions for these phrases with its 2003 Informal Expert Paper (Informal Expert Paper). 243The Informal Expert Paper came about as the OTP was trying to decide how its office would deal with issues of complementarity in practice. Office of the Prosecutor, supra note 242, at 2. The paper reflects a collaborative work between the OTP and a variety of experts known for their research about the topic of complementarity. Id. Aside from discussing the more philosophical side of complementarity, 244See id. at 3–4. the Informal Expert Paper also discussed the more practical application of complementarity and, especially, the inability exception. First, the OTP observed that even though a determination of inability may be easier than any determination of unwillingness, the ICC should still remain cautious in its application of inability because of sovereignty issues. 245Id. at 15. It concluded that any inability standard “should be a stringent one.” 246Id. However, what constitutes a collapsed judicial system and an unavailable judicial system is still very ambiguous and, potentially, very broad. 247See Gregory S. McNeal, ICC Inability Determinations in Light of the Dujail Case, 39 Case W. Res. J. Int’l L. 325, 325–28 (2006). Thus, the OTP also listed these following factors as being indicative, though perhaps not dispositive, of a collapsed or unavailable criminal justice system: “lack of necessary personnel, judges, investigators, prosecutor; lack of judicial infrastructure; lack of substantive or procedural penal legislation rendering [the] system ‘unavailable’; lack of access rendering [the] system ‘unavailable’; obstruction by uncontrolled elements rendering [the] system unavailable; [and] amnesties, immunities rendering [the] system ‘unavailable.’” 248Office of the Prosecutor, supra note 242, at 15.

It should be noted that in Gaddafi’s case, the OTP still appeared to be following the criteria outlined in the Informal Expert Paper. In its response to Libya’s admissibility challenge, the OTP was particularly concerned about Gaddafi’s lack of access to the Libyan criminal justice system because he had yet to receive a defense lawyer within Libya. 249Prosecutor’s Admissibility Response, supra note 16, para. 41. It noted that without a defense attorney, Libya would be unable to charge Gaddafi and complete “the investigation under Libyan law.” 250Id. Moreover, it observed that the Zintan militia’s control over Gaddafi may be playing a part in obstructing Gaddafi from receiving a defense attorney. 251Id. This concern would therefore likely be listed in the “lack of access rendering the system unavailable” factor.

However, lack of access to an attorney may not be enough under Article 17(3) to make a criminal system “unavailable” to the defendant. For instance, there may be unavailability “on account of legislative impediments, such as an amnesty law, or a statute of limitations, making it impossible for the national judge to commence proceedings against the suspect or the accused.” 252Antonio Cassese, International Criminal Law 344 (2d ed. 2008). Moreover, a collapsed or unavailable judicial system is not one that lacks or denies due process rights to the accused, but rather exists because of “a political situation that makes holding trials impossible or a debilitating lack of judges, prosecutors, and other court personnel.” 253Heller, supra note 242, at 264. This distinction is key; for a state to be unable under Article 17(3) it is not enough that the state is prevented “from fairly investigating or prosecuting,” the state must be prevented from “effectively investigating or prosecuting the accused.” 254Id.. The fact that the Rome Statute does not seem to protect international standards of due process, or any due process for that matter, is not lost upon the author of this comment or Professor Heller. See id. at 265 for a deeper discussion of the issue. As indicated above, the Libyan Criminal Procedure Code allows for a suspect to have an attorney at the investigation stage if one is desired. 255Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Libyan Government’s Filing of Compilation of Libyan Law Referred to in Its Admissibility Challenge, 2 (May 28, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1418852.pdf (citing Code Criminal Procedure [C. Crim. Pro.] art. 106 (Libya)); Libya’s Admissibility Motion, supra note 9, para. 59. In the case of Gaddafi, there have apparently been conflicting reports as to whether Gaddafi actually wants defense counsel; on one hand, Libyan authorities are told that Gaddafi does not want counsel, and, on the other hand, Gaddafi requested Libyan defense counsel from the OPCD. 256Admissibility Hearing Day 1 Transcript, supra note 54, at 20. Regardless, once Gaddafi’s case reaches trial in Libya, defense counsel will be appointed because having defense counsel is required under Libyan law. 257Id. In sum, being without representation, at least at this time, is not enough to declare that Libya is not able to investigate or prosecute Gaddafi under the definition of Article 17(3).

Finally, it must be stressed that to qualify under the inability exception, the state must be “genuinely” unable to investigate or prosecute the case. 258Williams & Schabas, supra note 195, at 617. The word “genuinely” is included to prevent any national action as precluding interference with the ICC. 259Office of the Prosecutor, supra note 242, para. 22. Thus, at least under the OTP’s interpretation of the term, the issue with genuineness is “whether the proceedings are so inadequate that they cannot be considered ‘genuine’ proceedings.” 260Id. para. 23. As noted above, the OTP asserted at the admissibility hearing that it appeared to it that Libya was investigating the case against Gaddafi at least as seriously as the OTP. 261Admissibility Hearing Day 1 Transcript, supra note 54, at 55–56. This means that under the OTP’s own definition of “genuine,” Libya is genuinely investigating Gaddafi as required under Article 17(1)(a).

C. Positive Complementarity

Since the development of complementarity in the drafting of the Statute, both commentators and the ICC have discovered two sides to its implementation: passive complementarity and positive (or proactive) complementarity. Passive complementarity entails a strict adherence to Article 17 of the Rome Statute, whereby the Prosecutor and the ICC will only investigate and prosecute a suspect “where national governments fail to prosecute and where the Court has jurisdiction.” 262William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 56 (2008). Positive complementarity provides a more hands-on approach to international criminal justice, allowing the ICC to use its resources to encourage and even assist national governments in the investigation and prosecution of international crimes. 263Id. In contrast, if the ICC had concurrent jurisdiction and primacy over national courts, it could simply require the state to hand it the case and “accept the fact that certain domestic crimes are really international in character and endanger international peace and that such international crimes should be tried by an international tribunal.” 264Prosecutor v. Tadic, Case No. IT-94-1-I, Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 83 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995). Early on, it appeared as if the Prosecutor and the ICC would adopt a more passive approach to complementarity. 265See Luis Moreno-Ocampo, Prosecutor of the ICC, Address at the International Conference in Nuremburg: Building a Future on Peace and Justice (June 24–25, 2007), available at http://www.icc-cpi.int/NR/rdonlyres/4E466EDB-2B38-4BAF-AF5F-005461711149/143825/LMO_nuremberg_20070625_English.pdf (“[F]or each situation in which the ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their timeliness, asking the Prosecution to use its discretionary powers to adjust to the situations on the ground, to indict or withdraw indictments according to short term political goals . . . . These proposals are not consistent with the Rome Statute”). However, some have suggested that this early policy was aimed at filling the ICC’s docket rather than trying to help states meet their duty to prosecute. 266William A. Schabas, Complementarity in Practice: Some Uncomplimentary Thoughts, 19 Crim. L.F. 5, 6 (2008) (“[F]rom the beginning of the work of the International Criminal Court, there have been iniatives aimed at attracting cases for prosecution rather than insisting that States fulfill their obligations.”).

The OTP has expressed its willingness to take on a positive or proactive approach to the complementarity principle. In the Informal Expert Paper, the OTP recognized that the ICC would still be a success if an international system were in place whereby every nation was effective in prosecuting international crimes and no cases were before the Court. 267Office of the Prosecutor, supra note 242, para. 1. Viewing complementarity as the method by which it could “encourage and facilitate the compliance of states with their primary responsibility to investigate and prosecute core crimes,” 268Id. para. 2. the OTP defined two aspects to guide its decisions on complementarity: partnership and vigilance. 269Id. para. 3. Under the partnership aspect, the OTP could encourage national proceedings, “help develop cooperative anti-impunity strategies . . . provide advice and certain forms of assistance to facilitate national efforts,” and possibly “agree that a consensual division of labour is in the best interests of justice.” 270Id. The vigilance aspect is essentially passive complementarity: the OTP defined vigilance as the ICC “diligently carry[ing] out its responsibilities under the Statute.” 271Id. The OTP noted that the two aspects do not work to the mutual exclusion of one another, but rather work in tandem to help the State overcome “shortcomings in the national proceedings” and “complementarity fact-finding activities will often encourage genuine and effective national proceedings.” 272Id. para. 4. Finally, the OTP observed that there may be a statutory basis for positive complementarity in Article 93(10) of the Rome Statute. 273Id. para. 10 (“Article 93(10) of the [Rome] Statute . . . contemplates ICC assistance to national investigations and prosecutions”). Article 93(10) states that “[t]he Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court.” 274Rome Statute, supra note 11, art. 93(10).

From its thoughts on partnership and vigilance, we can see that the OTP is amenable to a supportive relationship between the ICC and the state whose ability to carry out an investigation or prosecution of a person accused of a crime is questionable. During the admissibility hearing, Libya suggested that such a relationship may take the form of the OTP monitoring the trial in Libya with the option of reporting back to the ICC if necessary. 275Admissibility Hearing Day 2 Transcript, supra note 54, at 50. Libya also suggested that the ICC could put conditions on a finding of inadmissibility by requiring all of the parties to report back periodically. 276Id. Moreover, Libya has actually requested such help, not only from the ICC but from the United Nations and other organizations, in order to strengthen its judiciary and to “provide specialized training for judges and prosecutors.” 277Libya’s Admissibility Motion, supra note 9, para. 97; see also supra notes 149–51. This Comment will next focus on procedures available to the Chamber that may allow it to take a more positive approach to the admissibility of Gaddafi’s case.

D. Procedural Elements After an Admissibility Challenge

There are numerous provisions within the Rome Statute and the Rules of Procedure and Evidence (RPE) that deal with the issue of admissibility after a challenge of admissibility has been submitted to a pre-trial chamber. 278See Johan D. van der Vyver, Trigger Mechanisms and Admissibility Constraints 74 (2013) (unpublished manuscript) (on file with author), for a greater discussion of these provisions.

If the Chamber had held that the Gaddafi case was inadmissible, such a decision would not necessarily be the final determination on the matter. Under Article 19(10) of the Rome Statute, if such a case was inadmissible, the Prosecutor still would still have the option to request a review of admissibility from the same pre-trial chamber which offered the original holding. 279Rome Statute, supra note 11, art. 19, para. 10. This request could occur once “new facts have arisen which negate the basis on which the case had previously been found inadmissible.” 280Id. Once the Prosecutor makes such a request, the state whose challenge led to the inadmissibility decision will be notified of the request and given time to respond. 281Preparatory Commission for the International Criminal Court, Mar. 13–31, 2000, June 12–30, 2000, Report of the Preparatory Commission for the International Criminal Court: Finalized Draft Text of the Rules of Procedure and Evidence, Rule 62(2), U.N. Doc. PCNICC/2000/INF/3/Add.1 (July 12, 2000). According to Rule 59 of the RPE, interested parties, such as the organization or state who referred the situation to the ICC and the victims of the defendant’s crimes, will also be notified of the request made by the Prosecutor and may be given time to respond to the Prosecutor’s request. 282Id. rule 59(1).

Accordingly, a determination of inadmissibility does not preclude the ICC from being able to reopen the Gaddafi case if circumstances arise that definitively prove Libya as being unable to handle it. Libya commented on the statutory scheme during the first day of the admissibility hearing, stating that the Rome Statute only allows a state to challenge admissibility of a case once. 283Admissibility Hearing Day 1 Transcript, supra note 54, at 50; see also Rome Statute, supra note 11, art. 19, para. 4. If the Chamber had found that a case is inadmissible, that holding could always be reconsidered in light of new facts surrounding the investigation or the prosecution. 284Admissibility Hearing Day 1 Transcript, supra note 54, at 50. On the other hand, once a case is found to be admissible, that decision is final. 285Id. Being able to regain jurisdiction over a defendant if new circumstances arise which conflict with a previous determination of inadmissibility fits perfectly with the concept of “positive complementarity” discussed above.

In considering not only why the Chamber was wrong in denying Libya’s admissibility challenge, but also how the Chamber should have decided the challenge, it is pertinent to review a case in which another Chamber discussed the issue of inability. The next Part of this Comment discusses the case of Jean-Pierre Bemba Gombo (Bemba) and its discussion of a state’s inability.

IV. The Case of Jean-Pierre Bemba Gombo and its Applicability to Libya’s Admissibility Challenge

One case in which the ICC addressed the issue of the inability of a state was Prosecutor v. Jean-Pierre Bemba Gombo. This case is of particular importance because the OPCD relied on it to claim that the Court has held that a state’s belief as to its ability to prosecute is irrelevant and that the ICC has the responsibility to determine admissibility. 286Defense’s Admissibility Response, supra note 17, para. 355. Bemba was the Vice-President of the Democratic Republic of Congo (DRC) 287Bemba Admissibility Decision, supra note 93, para. 6. and the leader of the Mouvement de Libération du Congo (MLC), which allied with the President of the CAR during an armed conflict that occurred between October 26, 2002 and March 15, 2003. 288Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08; Case Information Sheet, http://www.icc-cpi.int/iccdocs/PIDS/publications/BembaEng.pdf [hereinafter Bemba Case Information Sheet]. During this conflict, Bemba committed crimes against humanity within the CAR, particularly in the cities of Bangui, Boy-Rabé, and Mongoumba. 289Id. A prosecutor for a superior court in the CAR originally investigated this case, and the senior investigating judge initiated legal proceedings against Bemba for using troops to “undermine the security of the CAR and with aiding and abetting murder, rape and pillage.” 290Bemba Admissibility Decision, supra note 93, paras. 2–3. However, the same judge eventually dropped the charges against Bemba, citing Bemba’s diplomatic immunity as the Vice-President of the DRC and the lack of sufficient incriminating evidence. 291Id. para. 6 An appeal followed until the Procureur Général, the prosecutor for the Bangui Court of Appeal, requested that the court refer the situation to the ICC. 292Id. paras. 7–9. On December 16, 2004, the Indictment Chamber of the Bangui Court of Appeal granted that request. 293Id. para. 12. The CAR’s Cour de Cassation affirmed this judgment, holding that the “CAR judicial services are clearly unable to investigate or prosecute the alleged perpetrators.” 294Id. para. 15.

Eventually the case against Bemba made its way to a Trial Chamber of the ICC, where it considered, inter alia, whether the judge’s decision to drop the charges against Bemba constituted an effective investigation and a genuine decision not to prosecute the accused, thus making Bemba’s case inadmissible before the ICC under Article 17(1)(b). 295Id. para. 74. The defense argued that the CAR was able to prosecute Bemba for several reasons. First, there was “no cessation of activities . . . with respect to the [CAR] judicial system.” 296Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Application Challenging the Admissibility of the Case pursuant to Articles 17 and 19(2)(a) of the Rome Statute, para. 76 (Feb. 25, 2010), http://www.icc-cpi.int/iccdocs/doc/doc881209.pdf [hereinafter Bemba Defense Admissibility Challenge]. The defense also pointed out that the CAR still had means to obtain Bemba, either through an international arrest warrant or voluntary appearance. 297Id. Bemba was living in Portugal as an exile at the time. Bemba Admissibility Decision, supra note 96, para. 78. Moreover, the defense asserted that the CAR was “fully capable” of obtaining evidence and concluding the prosecution against Bemba, especially since Bemba was no longer the vice president of the DRC and thus not protected by diplomatic immunity. 298See Bemba Defense Admissibility Challenge, supra note 296, paras. 72, 77. In furtherance of this point, the defense pointed to a trial taking place in courts in Bangui 299Id. para. 88 n.63. and the fact that the CAR had already gathered more than 203 statements from victims of the crimes of which Bemba was accused. 300Id. para. 91 n.64. Finally, the defense pointed out the odd contradiction which would arise if the ICC accepted the Cour de Cassation’s determination that the CAR was unable to prosecute Bemba because “if the Cour de [C]assation is the source of reliable judicial determination, doesn’t that tend to prove the opposite, that is, that the courts of the country are functional?” 301Id. para. 92 (quoting William A. Schabas, Complementarity in Practice: Creative Solution or a Trap for the Court?, in The International Criminal Court and National Jurisdictions (Mauro Politi & Federico Gioia, eds., 2008)). In fact, the CAR, after referring the Bemba case to the ICC, went on to try Ange-Félix Patassé, former President of the CAR. Bemba Case Information Sheet, supra note 291. Patassé was a co-defendant with Bemba and resided outside of the CAR at the beginning of his trial. Bemba Defense Admissibility Challenge, supra note 296, para. 94.

Despite this contradiction, the OTP relied on the Cour de Cassation’s ruling to argue that the CAR was unable to prosecute Bemba. 302See Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Prosecution’s Response to Motion Challenging the Admissibility of the Case by the Defence for Jean-Pierre Bemba Gombo Pursuant to Articles 17 and 19(2)(a) of the Rome Statute, paras. 61–64 (Mar. 29, 2010), http://www.icc-cpi.int/iccdocs/doc/doc881209.pdf [hereinafter OTP’s Admissibility Response to Bemba]. The OTP additionally asserted that the investigative judge was unable to conduct field investigations due to security concerns and was unable to interview members of the MLC, which Bemba led, because they were located in the DRC. 303See id. para. 62. The OTP distinguished the defense’s argument by saying that it rested on combating the notion of a collapsed criminal justice system, rather than the unavailability of the justice system, the second situation in which inability may arise under Article 17(3). 304Id. para. 75. In this regard, the OTP argued that the CAR’s judicial system was unavailable because the “judiciary was rendered ‘ineffective, unaccountable, corrupt, and dependent on the executive’ following [a prominent Central African politician’s] ascension, thereby substantiating the argument that the judiciary was genuinely unable to proceed against the accused.” 305Bemba Admissibility Decision, supra note 93, para. 107 (citing Prosecutor v. Jean-Pierre Bemba Gombo, Case, No. ICC-01/05-01/08, Prosecution’s Response to Motion Challenging the Admissibility of the Case by the Defence for Jean-Pierre Bemba Gombo Pursuant to Articles 17 and 19(2)(a) of the Rome Statute, para. 67 (Mar. 29, 2010)). Thus, the OTP argued that these factors pointed to unavailability and not the collapse of the CAR criminal justice system in Bemba’s case. 306OTP’s Admissibility Response to Bemba, supra note 302, para. 64.

Ultimately, the Trial Chamber agreed with the CAR and the OTP, though its concurrence with the arguments of the CAR and OTP constituted obiter dictum. 307See Bemba Admissibility Decision, supra note 93, paras. 242–47. The Trial Chamber III decided that the dismissal by the Senior Investigating Judge was not a “decision not to prosecute” under Article 17(1)(b), thereby rendering discussion on inability unnecessary. Id. para. 242. In its discussion, the Trial Chamber relied on submissions by the CAR that it lacked the human resources, judges, and budget to carry on a trial, which would be necessary to effectively prosecute Bemba. 308Id. para. 245. The Trial Chamber also cited ongoing operations by the MLC that contributed to the instability of the area as another reason why the CAR was unable to prosecute. 309Id. Lastly, the Trial Chamber did rely on the Cour de Cassation’s judgment in which it found that there were neither the “investigative resources” nor the judicial capacity to handle Bemba’s trial and that the lack of progress since the Senior Investigative Judge’s dismissal was indicative of this inability. 310Id. para. 246.

At first, the Bemba case seems to be at odds with the notion of limited findings of inability. According to the Bemba case, a state can be unable to prosecute an accused person if the high court simply states that it lacks the resources, judges, and budget to carry out the proceedings, 311Id. para. 245. even if the state actually does have the resources to allow its own high court to make rulings on its own inability. 312See Bemba Defense Admissibility Challenge, supra note 302, para. 92 (quoting William A. Schabas, Complementarity in Practice: Creative Solution or a Trap for the Court?, in The International Criminal Court and National Jurisdictions 25, 36 (Mauro Politi & Federico Gioia, eds., 2008)). Moreover, this finding can be made despite evidence of other trials taking place in the court system. 313Id. para. 88 n.63. Per the Bemba decision, a state is unable to prosecute a defendant if there is merely enough instability in a particular region to prevent an investigating judge from investigating the case. 314OTP’s Admissibility Response to Bemba, supra note 302, para. 62. This reason for finding inability of a state to investigate or prosecute for mere security concerns is in direct contradiction of the change of the wording of Article 17(3) from partial collapse to substantial collapse, wherein a state may still be able to investigate or prosecute a case despite suffering some hindrances of its judicial system. 315Rome Statute, supra note 11, art. 17, para. 3; Holmes, supra note 210, at 677; see also Williams & Schabas, supra note 198, at 612. Finally, it is observed that the Bemba case is a situation in which the prosecuting state found itself to be unable to prosecute Bemba and submitted the case to the ICC. 316Bemba Admissibility Decision, supra note 93, para. 15. Thus, the argument could be made that the ICC was only able to make this finding of inability on the part of the CAR because there was no actual sovereignty issue at stake; the CAR conceded their sovereignty over this case by voluntarily submitting it to the ICC.

A few key distinctions separate the Bemba case from the situation in Libya at the time of this writing. First, all indications point to an independent and impartial judiciary currently in Libya. Libya mentioned in its admissibility challenge that the Libyan Constitutional Declaration of 2011 provides for an independent judiciary that is not subject to any other part of the government. 317Libya’s Admissibility Motion, supra note 9, paras. 53–54. As evidence of this independence, the judiciary has declared a law passed by the NTC unconstitutional 318Defense’s Admissibility Response, supra note 17, para. 316. and has done the same thing to the People’s Court procedures in the Dorda case. 319See supra notes 107–09 and accompanying text. Thus, the judiciary is not dependent upon the executive, as was the case in the CAR. 320See Bemba Admissibility Decision, supra note 93, para. 107 (citing Prosecutor v. Jean-Pierre Bemba Gombo, Case, No. ICC-01/05-01/08, Prosecution’s Response to Motion Challenging the Admissibility of the Case by the Defence for Jean-Pierre Bemba Gombo Pursuant to Articles 17 and 19(2)(a) of the Rome Statute, para. 67 (Mar. 29, 2010)). Second, Libya also seems ready to invest a large amount of resources into the investigation and possible prosecution of Gaddafi and al-Senussi. For instance, as mentioned above, Libya reportedly secured the extradition of al-Senussi from Mauritania for $200 million. 321Grant, supra note 42. Libya also indicated at the admissibility hearing that the investigation team that is investigating the alleged crimes against Gaddafi comprises no less than twelve people: four senior investigators with two junior investigators working under each senior investigator. 322Admissibility Hearing Day 2 Transcript, supra note 54, at 43. Third, Libya did not refer the Gaddafi case to the ICC; it was a Security Council referral. 323S.C. Res. 1970, supra note 3, para. 4. Thus, unlike the Bemba case, it cannot be said that Libya had ceded jurisdiction over the case to the ICC. The fact that Libya submitted an admissibility challenge indicates that it wishes to investigate and prosecute Gaddafi. With regard to the question of Libya’s genuine ability to investigate and prosecute Gaddafi, enough differences exist between the situation in Libya and the Bemba case to distinguish Libya from the CAR and point to Libya being genuinely able to pursue Gaddafi’s prosecution.

V. The Admissibility of Gaddafi’s Case: Why the Chamber Is Wrong and What the Court Should Have Decided

This Part will discuss two questions. First, it will discuss why the Chamber was wrong not only it is conclusion, but in the structure of its analysis. Second, it will discuss how the Chamber should have decided the question of admissibility. Each question will be taken in turn.

A. The Chamber’s Deficient Analysis and Obiter Dictum

The Chamber’s analysis of Libya’s genuine ability to prosecute Gaddafi is undermined by the fact that the analysis is insufficient in light of the text of Article 17(3). Moreover, the Chamber’s analysis is arguably obiter dictum, thus reducing the authoritative value of its decision.

1. The Chamber’s Analysis in Light of Article 17(3)

As noted above, it is not enough to show that Libya is unable to obtain the accused, evidence, or otherwise carry out its proceedings; it must be unable to do these things because of a substantial or total collapse or the unavailability of the national judicial system. 324Heller, supra note 242, at 264–65; Office of the Prosecutor, supra note 242, para. 49. Moreover, the development of the inability exception suggests that the drafters of the Rome Statute desired a high threshold to be met before a state’s national judicial system could be determined to be collapsed or unavailable for the purposes of Article 17(3). 325See supra notes 252–60 and accompanying text.

In light of the development of Article 17(3), the Chamber’s inability analysis is deficient because it fails to adequately explain why the difficulties that it highlights in its analysis make the Libyan judicial system substantially or totally unavailable. 326See Admissibility Decision, supra note 10, paras. 204–15. For instance, the Chamber asserted that Libya is unable to obtain Gaddafi because Libya has not yet transferred Gaddafi from Zintan to Tripoli and this fact renders the judicial system unavailable. 327Id. paras. 205–06. However, the Court does not discuss why this makes the national judicial system unavailable when Libya has continued to investigate Gaddafi for the alleged crimes; Libya has continued to build facilities that will be adequate to house and secure Gaddafi for his trial in Tripoli, and Gaddafi’s detention in Zintan has had Libyan judicial oversight. 328Admissibility Hearing Day 1 Transcript, supra note 54, at 19–20; see also Libya’s Admissibility Motion, supra note 9, paras. 42–44.

The Chamber also stated that Libya is unable to obtain testimony from witnesses, two in particular, because Libya does not have full control of some of the prisons in its territory. 329Admissibility Decision, supra note 10, paras. 209–10. The Chamber is unclear in its discussion as to why the testimony of these two particular witnesses is enough to render the Libyan judicial system unavailable, especially in light of the fact that the Chamber acknowledges that Libya has obtained statements from other witnesses in regards to Gaddafi’s alleged crimes. 330Id. paras. 209–10. The Chamber in referring to these two witnesses cites Annex C to Libya’s Admissibility Challenge. Id. para. 210 n.346. The author of this Comment could not find a publicly available copy of this annex, suggesting that the annex has not been released for confidentiality reasons. Moreover, the Chamber asserted that the Libyan judicial system is unavailable because the evidence provided by Libya is unclear on the methods and means by which it can protect witnesses who may testify in the trial against Gaddafi. 331Id. para. 211. However, the Chamber does not discuss why this is a particular concern when the trial is not yet imminent and the Chamber has acknowledged Libya’s progress and plans to increase the security for trial participants. 332Id. paras. 204, 208, 211. This is particularly important because the Chamber should consider the facts as they exist at the time of the admissibility challenge. 333Katanga Appeal, supra note 200, para. 56.

Finally, the Chamber tried to assert that Libya’s judicial system is unavailable because Gaddafi has not yet been appointed defense counsel. 334Admissibility Decision, supra note 10, paras. 212–14. However, at the time of this proceeding, Libya was currently in the investigation phase. 335Admissibility Hearing Day 1 Transcript, supra note 54, at 15; see also Libya Admissibility Motion, supra note 9, para. 59. During this investigation phase, Gaddafi may have counsel, but only if he requests such counsel. 336Admissibility Hearing Day 1 Transcript, supra note 54, at 20. As noted above, there have been conflicting reports as to whether Gaddafi actually wanted defense counsel. 337Id. This distinction is key because, as discussed above, Article 17(3) appears to be most concerned about a state that is prevented from effectively prosecuting someone, not fairly prosecuting someone. 338See Part III.B.2.

The fatal flaw in the Chamber’s inability analysis is its unfocused discourse on why Libya’s national judicial system is unavailable as opposed to substantially or totally collapsed. Libya has not yet transferred Gaddafi to Tripoli because of inadequate detention facilities for someone of his notoriety. 339Admissibility Decision, supra note 10, paras. 190–91; see Admissibility Hearing Day 1 Transcript, supra note 54, at 19–20. This situation is most comparable, if anything, to the lack of judicial infrastructure noted by the OTP as being indicia of a collapsed judicial system. 340Office of the Prosecutor, supra note 242, para. 50. Inadequate control of detention facilities, something that the Chamber was concerned about for the purposes of obtaining witness testimony, would also fall under that category. The inability of Libya to find defense counsel for Gaddafi may be indicia of a collapsed national judicial system because the failure involves the Government actually seeking counsel for Gaddafi, but that failure is not causing Libya to be unable to proceed with the investigation and prosecution of Gaddafi at this time. 341Rather, as discussed above, Libya is not mandated to ensure that Gaddafi has legal counsel until the trial phase begins. See Admissibility Hearing Day 1 Transcript, supra note 54, at 20. Additionally, there is nothing to suggest that Libya’s inability to do so is the result of at least a substantially collapsed system required by Article 17(3).

The unavailability of a national judicial system, on the other hand, has often been construed to incorporate legislative or legal impediments that render the system completely or substantially unavailable. 342See Cassese, supra note 252, at 344. The Chamber held that ordinary crimes were sufficient for the purposes of determining whether Libya was investigating the same case that was before the ICC. 343Admissibility Decision, supra note 10, paras. 85–88. The Chamber also reviewed the various applicable laws in Libya that make it possible for the Libyan government to investigate and prosecute Gaddafi for his alleged crimes during the Libyan Civil War. 344Id. paras. 108–13, 201–03. In fact, the Chamber arguably only pointed to two main deficiencies in the law that might make the judicial system “unavailable.” The first deficiency is the possible lack of protective measures designed to protect witnesses who may give testimony at trial. 345See id. para. 211. However, there is not a total lack of witness protection measures; rather, Libya indicated that some protective measures are within the discretion of the trial judge. 346See id. Thus, the Chamber’s concern was not knowing the exact scope and nature of all protective measures available in Libya. Even then, there is no discussion as to why this particular concern renders the judicial system unavailable at a time when the case against Gaddafi is still in the investigatory stage. Second, the Chamber was concerned with the fact that in abstentia trials are not permitted when the accused is in Libyan territory and his location is known. 347Admissibility Decision, supra note 10, para. 208. However, Libya was in the process of securing the transfer of Gaddafi from Zintan to Tripoli, 348Libya’s Further Submissions, supra note 123, para. 99. which is not comparable to a situation where the state lacks sufficient procedural legislation or laws granting amnesties and immunities.

2. The Chamber’s Inability Discussion Is Obiter Dictum

The Chamber’s discussion of Libya’s inability to investigate or prosecute Gaddafi is also undermined by the fact that it is obiter dictum. As discussed above, the ICC considers an admissibility challenge to involve a two-part inquiry. 349See supra Part III.B. In this case, the Chamber should not have even reached a discussion about Libya’s ability or lack thereof to investigate or prosecute Gaddafi. As discussed above, the Chamber found that Libya was not investigating the same case as the ICC. 350Admissibility Decision, supra note 10, para. 135. The Chamber made this decision because, while some of the evidence obtained by Libya in its investigation of Gaddafi contained information related to Gaddafi’s use of the Security Forces to kill civilians, the Chamber did not believe that the evidence as a whole sufficiently demonstrated the scope of the Libyan investigation. 351Id. paras. 132–35. Consequently, the Chamber never really went further than the first step of the analysis when it decided that Gaddafi’s case was admissible to the ICC. The Chamber tried to make its discussion of Libya’s ability irrelevant by relating it to the Chamber’s issuance of a decision on the admissibility challenge. 352Admissibility Decision, supra note 10, para. 137. However, this reason is tangential to the Chamber’s primary reason for issuing the decision, namely that it believed Libya “had sufficient opportunities to submit evidence in support of its Admissibility Challenge.” 353Id. para. 137. Thus, the Chamber’s discussion on Libya’s ability, or lack thereof, is wholly unnecessary to the disposition of the challenge.

B. How the Chamber Should Have Decided the Admissibility Challenge

In the final analysis, if it was necessary for the Chamber to discuss the issue, it should have found that Libya is genuinely able to investigate and prosecute Gaddafi. Although it may be questionable whether the Libyan government actually has effective control over Gaddafi in Zintan (unable to obtain the accused), 354Defense’s Admissibility Response, supra note 17, paras. 358–68. Libya may not be able to try Gaddafi in abstentia or appoint counsel for Gaddafi (unable to otherwise proceed), 355Id. para. 358. and Libyan officials may not be able to investigate Gaddafi’s crime in some areas (unable to obtain evidence), 356Id. para. 385. this is not enough to prove inability. All of these things must be due to a total or substantial collapse or the unavailability of the judicial system. 357Heller, supra note 238; Office of the Prosecutor, supra note 242, para. 49. What constitutes a substantial collapse or unavailability of the judicial system? The change of the language from “partial collapse” to “substantial collapse” during the drafting of the Rome Statute 358See, supra notes 232–36 and accompanying text. suggests that there must be more than mere conflict or insurgency in a state for a judicial system to be considered “substantially collapsed.” 359Holmes, supra note 210, at 677. Rather, the conflict in the area or the general degradation of the state must be to the point that the state cannot shift resources or transfer venues to carry out the investigation or prosecution. 360Id. The factors listed in the Informal Expert Paper can help determine whether a state has the ability to shift resources or transfer venues. 361See Office of the Prosecutor, supra note 242, at para. 50.

In consideration of these factors, it appears, at the time of this writing, that Libya is neither suffering from a substantial collapse of its judicial system nor is the Libyan judicial system unavailable to Gaddafi. First, there is evidence that Libya has tried to maintain a sufficient number of prosecuting authorities and judges to sustain its judicial system “by reopening courts and recalling judges,” and in transferring “detainees to central government control.” 362Libya’s Admissibility Motion, supra note 9, para. 10. Libya has also started criminal proceedings against as many as forty-one persons accused of committing crimes during the Libyan Civil War. 363Id. Moreover, it is perhaps possible to demonstrate that Libya has the resources to continue building its national judicial system by securing al-Senussi’s transfer to Libya. 364See Grant, supra note 45. Libya also has the requisite “substantive or procedural penal legislation” 365Office of the Prosecutor, supra note 242, at para 50. to effectuate criminal investigations and proceedings. 366Libya’s Admissibility Motion, supra note 9, paras. 39–40. There are also instances of Libya’s judiciary not only working, but working independently, by declaring a law passed by the NTC as unconstitutional 367Defense’s Admissibility Response, supra note 17, para. 316. and even declaring the criminal procedures of the People’s Court unconstitutional. 368Libya’s Further Submissions, supra note 123, paras. 75–76.

Additionally, there are significant key differences between the situation in Libya and the Bemba case. First, the discussion in the Bemba case was obiter dictum, having decided the case on the ground that there was not a “decision not to prosecute” under Article 17(1)(b). 369See Bemba Admissibility Decision, supra note 96, paras. 242–247. Second, even though both regions are afflicted with security concerns, Libya has initiated a program to help disarm illegal militias and, according to counsel for Libya at the admissibility hearings, this program is having some degree of success. 370OTP’s Admissibility Response to Bemba, supra note 302, para. 62; Admissibility Hearing Day 1 Transcript, supra note 54, at 10. Most importantly, however, the Cour de Cassation initially determined that the CAR was unable to prosecute Bemba. 371OTP’s Admissibility Response to Bemba, supra note 302, para. 62. The situation in Libya, on the other hand, was referred to the ICC by the Security Council 372S.C. Res. 1970, supra note 3, para. 4. and Libya has since challenged admissibility. 373See generally Libya’s Admissibility Motion, supra note 9. Thus, the Bemba case does not require a finding of Libya’s inability to prosecute Gaddafi.

To say, however, that Libya is currently genuinely able to investigate and prosecute Gaddafi is not to say Libya will always be genuinely able to investigate and prosecute him. For instance, the OPCD argued at the admissibility hearing that Libya may be genuinely unable to prosecute Gaddafi because both the Libyan Constitutional Declaration and Criminal Procedure Code exclude intercept evidence, unless such evidence was first gathered upon authorization by a judge. 374Admissibility Hearing Day 1 Transcript, supra note 54, at 88. The argument is that “the Libyan [prosecutors] would be unable to genuinely bring Mr. Gaddafi to justice if they were to base their case on inadmissible evidence.” 375Id. However, this argument depends upon the evidence being declared inadmissible. Libya clarified during the admissibility hearing that the intercept evidence it possessed was from telephone conversations recorded, upon orders from Muammar Gaddafi, by the two major telephone companies in Libya. 376Admissibility Hearing Day 2 Transcript, supra note 54, at 56. In the aftermath of Tripoli’s liberation, these public documents and recordings were made widely available to the public. 377Id. Thus, according to Libya, these facts and other events surrounding the Libyan Civil War raise practical and legal considerations that mean that such intercept evidence will not necessarily be ruled inadmissible. 378Id. at 56–57. This situation demonstrates the importance of Article 19(10), which allows the Prosecutor to request a review of inadmissibility from the same Pre-Trial Chamber that made the original holding. This Article allows the Court to reconsider a case’s admissibility when the ability or inability of a state is more certain than speculative. Thus, the OTP could have used its authority to request review under Article 19(10) if it became apparent that the intercept evidence would not be admissible under Libyan law because of the origin of the evidence, because Libya could not sufficiently authenticate the intercepts, or because of some other legal hindrance.

Conclusion

Over the course of this discussion, a few observations can be made. First, the drafters of the Rome Statute were particularly concerned with the issue of state sovereignty, which is why they implemented a complementary jurisdictional scheme to the ICC rather than a primary jurisdictional scheme like the ones found in the ICTR and the ICTY. 379Benzing, supra note 222, at 595. The drafters also intended that the inability exception found in Article 17(1)(a) only be applied in a limited set of circumstances, which is why Article 17(3)’s language was changed from a partial to a substantial collapse or unavailability of the national judicial system. This change necessitates the conclusion that the Statute allows for a national judicial system to suffer a partial collapse or be unavailable, and yet still be able to hold investigations and prosecutions in good faith. The collapse or unavailability in question should be due to something more than just armed conflict, especially if resources are available to dedicate to the proceedings. It is submitted here that the threshold question of whether a state is unable to adjust resources or transfer venue in order to carry out the investigation or prosecution must first be reached before the ICC can find that a state’s judicial system has substantially collapsed. With regards to a judicial system’s unavailability, there ought to be legal impediments that prevent the state from carrying the investigation or prosecution forward, such as statutes of limitations on crimes, amnesty laws, or as the OTP suggests, a lack of substantive or procedural legislation that render the state fully incapable of continuing the investigation or prosecution. 380Office of the Prosecutor, supra note 242, para. 50.

This case provided a glimpse into how the ICC may view complementarity in the future. For the purposes of recognizing the importance that the drafters of the Statute placed on state sovereignty, and the limited circumstances that the drafters seemed to indicate as their intent with the strict language used in Article 17(3), the Chamber should have held that Libya is genuinely able to investigate and prosecute Gaddafi and work with the Libyan government in an effort to help it build its criminal justice system for future prosecutions. By finding the case inadmissible, the ICC could have taken a more positive approach to the situation in Libya, providing assistance to Libya to aid it in prosecuting international crimes, and only intervening if it became absolutely apparent that Libya could not genuinely prosecute Gaddafi. 381See supra Part II.C–D. Instead, it appears after this decision that the Court is taking a hard-lined approach toward complementarity, an approach more akin to the concurrent jurisdiction that was granted to the ICTR and ICTY, 382See Charles Chernor Jalloh, Kenya vs. the ICC Prosecutor, 53 Harv. Int’l L.J. 227, 236 (2012). Professor Jalloh argued the same proposition as in this article. In particular, Professor Jalloh analyzed the Appeals Chamber’s approach to Kenya’s admissibility challenge in Prosecutor v. Ruto, Kosgey & Sang. See id. at 227–28, n.2. rather than the complementary jurisdiction that the Rome Statute drafters intended. Moreover, the Chamber, through its muddied analysis of the inability issue, has tried to use “unavailability” as a means of bypassing the clear intent of the drafters of the Rome Statute to allow the ICC to take a case away from an actively investigating state only in a limited set of circumstances.

Footnotes

1See generally Fouad Ajami, The Arab Spring at One: A Year of Living Dangerously, Foreign Aff., Mar./Apr. 2012, at 56, available at http://www.foreignaffairs.com/articles/137053/fouad-ajami/the-arab-spring-at-one?page=show.

2See id. at 59.

3S.C. Res. 1970, para. 4, U.N. Doc. S/RES/1970 (Feb. 26, 2011).

4The Pre-Trial Chamber of the ICC is the division responsible for overseeing a case or situation until the accused has been charged and the Prosecutor is ready to proceed to trial. Pre-Trial Division, Int’l Crim. Ct., http://www.icccpi.int/en_menus/icc/structure%20of%20the%20court/chambers/pre%20trial%20division/Pages/pre%20trial%20division.aspx (last visited Oct. 25, 2013). Among its other various functions, the Chamber may authorize the Prosecutor to investigate a situation on her own motion, issues warrants for arrest, and otherwise ensure the integrity of the investigative proceedings. Id.

5Saif al-Islam Gaddafi is one of the sons of Muammar Gaddafi and was the honorary chairman of the Gaddafi International Charity and Development Foundation and acting Prime Minister of Libya under his father’s government. Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Case No. ICC-01/11-01/11, Case Information Sheet, Int’l Crim. Ct. http://www.icc-cpi.int/iccdocs/PIDS/publications/SaifAlIslamSenussiEng.pdf (last visited Oct. 3, 2013) [hereinafter Case Information Sheet].

6Abdullah al-Senussi was a colonel in the Libyan Armed Forces and the head of Military Intelligence under Muammar Gaddafi. Id.

7See Situation in the Libyan Arab Jamahiriya, Case No. ICC-01/11, 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,” para. 41 (June 27, 2011), http://www.icc-cpi.int/iccdocs/doc/doc1101337.pdf [hereinafter Prosecutor’s Warrant Application]; Case Information Sheet, supra note 5.

8Case Information Sheet, supra note 5.

9Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Application on Behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, para. 1 (May 1, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1405819.pdf [hereinafter Libya’s Admissibility Motion].

10Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Decision on the Admissibility of the Case Against Saif al-Islam Gaddafi, para. 219 (May 31, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1599307.pdf [hereinafter Admissibility Decision].

11The Rome Statute of the International Criminal Court art. 17, para. 1(a), July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].

12Id. art. 17(3).

13See Libya’s Admissibility Motion, supra note 9, paras. 39–52.

14See id. paras. 53–67.

15See generally id. paras. 96–102.

16See Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Prosecution Response to Application on Behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, paras. 8, 41 (June 5, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1423546.pdf [hereinafter Prosecutor’s Admissibility Response].

17See Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Defense Response to the Application on Behalf of the Government of Libya Pursuant to Article 19 of the ICC Statute, (July 31, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1446165.pdf [hereinafter Defense’s Admissibility Response]. Compare the OPCD’s discussion of Libya’s investigation in paragraphs 67–154 and its discussion of unwillingness in paragraphs 155–353 with their discussion on inability in paragraphs 354–408. Id.

18See Admissibility Decision, supra note 10, paras. 199–215.

19Admissibility Decision, supra note 10, para. 215.

20See infra notes 175–77 and accompanying text.

21See Libya’s Admissibility Motion, supra note 9, para. 101.

22See id. para. 102.

23Gregory Viscusi, Qaddafi Is No Mubarak as Regime Overthrow May Trigger a ‘Descent to Chaos’, Bloomberg (Feb. 23, 2011), http://www.bloomberg.com/news/2011-02-23/qaddafi-is-no-mubarak-overthrow-may-mean-descent-to-chaos-.html.

24See Deadly ‘Day of Rage’ in Libya, Al-Jazeera (Feb. 18, 2011, 5:34 AM), http://www.aljazeera.com/news/africa/2011/02/201121716917273192.html.

25Prosecutor’s Warrant Application, supra note 7, para. 9.

26Id. para. 10.

27Deadly ‘Day of Rage’ in Libya, supra note 24. In Benghazi, for instance, an eyewitness reported that police killed six unarmed protesters and the police further released thirty people from jail, paying and arming them so that they could fight the protesters. Id.

28Situation in the Libyan Arab Jamahiriya, supra note 7, para. 12.

29See id. paras. 13–17 (noting that demonstrations continued to take place in Tripoli and that the protesters were fired upon by the Security Forces). Subsequently, the protesters began to set fire to government buildings. Id.

30Id. para. 16 (internal quotation marks omitted).

31Libya: Timeline of the Conflict, Euronews (Aug. 29, 2011, 3:14 PM), http://www.euronews.com/2011/08/29/libya-timeline-of-the-conflict/. Mustafa Mohamed Abdel Jalil, a former member of Muammar Gaddafi’s cabinet, became the head of the NTC after its formation. Libya Opposition Launches Council, Al-Jazeera (Feb. 27, 2011, 8:00 PM), http://www.aljazeera.com/news/africa/2011/02/2011227175955221853.html.

32Houda Mzioudet, First Diplomat To Denounce Qaddafi Returns to NY as UN Ambassador, Libya Herald (June 17, 2013), http://www.libyaherald.com/2013/06/17/first-diplomat-to-denounce-qaddafi-returns-to-ny-as-un-ambassador/.

33S.C. Res. 1970, supra note 3, para. 4. This was the second time that the Security Council has made such a referral, and the first time that such a referral was made unanimously. Edward Wyatt, Security Council Refers Libya to Criminal Court, N.Y. Times, Feb. 27, 2011, at 14; India Backs UN Sanctions Against Libya, IBN Live (Feb. 27, 2011, 11:18 AM), http://ibnlive.in.com/news/india-backs-un-sanctions-against-libya/144537-3.html. The first Security Council referral to the ICC occurred in 2005 with the adoption of Resolution 1593 which referred the situation in Darfur to the OTP. See Press Release, Security Council, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court, U.N. Press Release SC/8351 (Mar. 31, 2005) available at http://www.un.org/News/Press/docs/2005/sc8351.doc.htm. The vote, however, was not unanimous, with only eleven countries voting in favor of the resolution, none voting against the resolution, and Algeria, Brazil, China, and the United States abstaining. Id.

34Prosecutor’s Warrant Application, supra note 7, paras. 95, 99, 102. According to Article 7(1)(h), a crime against humanity exists when there is “[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.” Rome Statute, supra note 11, art. 7. Persecution is defined in Article 7(2)(g) as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Id.

35Case Information Sheet, supra note 5.

36On the day the warrants were issued, Muammar Gaddafi’s regime was still in control of Tripoli, even though rebel forces were making a push for the capital. Libya: Fierce Fighting South-West of Tripoli, BBC News (June 27, 2011, 5:54 AM), http://www.bbc.co.uk/news/world-africa-13921665.

37Rania El Gamal & Tim Gaynor, Gaddafi Killed as Libya’s Revolt Claims Hometown, Reuters (Oct. 20, 2011), http://af.reuters.com/article/topNews/idAFJOE79J09O20111020.

38Case Information Sheet, supra note 5.

39Marie-Louise Gumuchian, Gaddafi’s Son Captured, Scared and Without a Fight, Reuters (Nov. 19, 2011), http://www.reuters.com/article/2011/11/19/us-libya-idUSTRE7AI0G820111119.

40Id.; Libya’s Admissibility Motion, supra note 9, para. 23. Several non-governmental organizations, including Amnesty International and Human Rights Watch, were calling on the NTC to turn Gaddafi over to the ICC. Gumuchian, supra note 39.

41Libya’s Admissibility Motion, supra note 9, para. 25. Libya initially stated that the investigation of Gaddafi for more serious crimes began January 8, 2012. Id. Confusingly, in a response filed on January 23, 2012 to the ICC, the NTC stated that it was still “considering whether to also institute national proceedings ‘in relation to the same conduct for which [Gaddafi] is sought by the [ICC].’” Id. para. 26.

42Libya Challenges International Criminal Court’s Order to Hand Over Saif Gadhafi, CNN (Oct. 9, 2012, 7:55AM), http://www.cnn.com/2012/10/09/world/africa/netherlands-saif-gadhafi-appeal/index.html.

43Gaddafi Spy Chief Abdullah al-Senussi Held in Mauritania, BBC News (Mar. 17, 2012, 4:16 PM), http://www.bbc.co.uk/news/world-africa-17413626.

44Mauritania Deports Libya Spy Chief Abdullah al-Senussi, BBC News (Sept. 5, 2012 1:45 PM), http://www.bbc.co.uk/news/world-africa-19487228. Al-Senussi was not immediately deported to Libya because there was a dispute between France and Libya about who should gain custody of him. Gaddafi Spy Chief Abdullah al-Senussi Held in Mauritania, supra note 43. French President Nicolas Sarkozy called for al-Senussi to be extradited to France because he was convicted by a French court of being involved in an attack on a French plane in 1989 that killed 170 people. Id.

45George Grant, Government Struck Financial Deal with Mauritania over Senussi Handover, Libya Herald (Sept. 5, 2012), http://www.libyaherald.com/2012/09/05/govt-struck-financial-deal-with-mauritania-over-senussi-handover/.

46Libya’s Admissibility Motion, supra note 9, paras. 23, 25.

47Id. para. 26. Article 94(1) allows for the postponement of a request if such “immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates.” Rome Statute, supra note 11, art. 94, para. 1.

48Id. para. 29.

49Libya’s Admissibility Motion, supra note 9, para. 31. Article 95 allows for the postponement of a request when a case’s admissibility is challenged. Rome Statute, supra note 11, art. 95.

50Libya’s Admissibility Motion, supra note 9, para. 32.

51Id. para. 6.

52See generally Prosecutor’s Admissibility Response, supra note 16.

53See generally id.

54Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Hearing on the Admissibility Challenge (Oct. 9, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1481845.pdf [hereinafter Admissibility Hearing Day 1 Transcript]; Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Hearing on the Admissibility Challenge (Oct. 10, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1487823.pdf [hereinafter Admissibility Hearing Day 2 Transcript].

55See supra notes 10–16 and accompanying text.

56Libya’s Admissibility Motion, supra note 9, para. 98.

57Id. para. 99 (quoting Sharon A. Williams & William A. Schabas, Article 17: Issues of Admissibility, in Commentary on the Rome Statute of the International Criminal Court 605, 624 (Otto Triffterer ed., 2d. ed. 2008)).

58Id. para. 100.

59Id. para. 96.

60Id. para. 97.

61Id. para. 98.

62Id. paras. 39–40.

63Id. paras. 42–43.

64Id. paras. 44–47.

65Id. paras. 53–54 (citation omitted).

66Defense’s Admissibility Response, supra note 17, para. 316.

67Libya’s Admissibility Motion, supra note 9, para. 59, 62.

68Id. paras. 63, 65.

69Id. para. 75.

70See Prosecutor’s Admissibility Response, supra note 16, paras. 8, 41.

71Id. para. 8.

72Rome Statute, supra note 11, art. 17, para. 3.

73Prosecutor’s Admissibility Response, supra note 16, para. 41.

74Id. para. 28.

75Id. para. 41.

76Id. para. 46.

77Id. paras. 8, 41.

78Defense’s Admissibility Response, supra note 17, paras. 358–68. In relation to Gaddafi’s custody in Zintan, the OCPD claimed that in the time that Gaddafi has been held in Zintan, he has been:(1) not brought before a judge; (2) not granted effective access to lawyers; (3) denied the means to communicate with friends and family for the purpose of selecting lawyers, (4) questioned . . . without the presence of a lawyer and without any waiver being obtained; and (5) not provided any written information or evidence concerning the status of domestic proceedings (and requests for the same by the OPCD on his behalf have been rebuffed).Id. para. 214.

79Id. paras. 369–81.

80Id. paras. 382–404.

81Id. paras. 405–08.

82Id. para. 370 (quoting U.N. Human Rights Council, Rep. of the Int’l Comm’n of Inquiry on Libya, U.N. Human Rights Council, 19th Sess., Mar. 8, 2012, para. 12, U.N. Doc. A/HRC/19/68 (2008)).

83Defense’s Admissibility Response, supra note 17, paras. 373–74 (citations omitted).

84Id. para. 217. The intercept evidence to which the OPCD referred concerns phone calls that were recorded at the order of Muammar Gaddafi by the two major Libyan phone companies. Admissibility Hearing Day 2 Transcript, supra note 54, at 56–57. After the fall of Muammar Gaddafi’s regime, these records were widely available and made their way to the general public. Id. The legal impact of this evidence and how it became available is discussed below. See infra notes 334–39 and accompanying text.

85Defense’s Admissibility Response, supra note 17, para. 358.

86Id. para. 360.

87Id. para. 384 (citing Bureau of Democracy, Human Rights, & Labor, U.S. Dep’t of State, Country Reports on Human Rights Practices for 2012: Libya 10 (2012)).

88Id. para. 385.

89Id. para. 393.

90Id. paras. 405–06.

91Defense’s Admissibility Response, supra note 17, para. 355.

92Id.

93Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08-802, Decision on the Admissibility and Abuse of Process Challenges, para. 15 (June 24, 2010), http://www.icc-cpi.int/iccdocs/doc/doc899684.pdf [hereinafter Bemba Admissibility Decision]. The Bemba case is discussed more fully below. See infra Part IV.

94See Bemba Admissibility Decision, supra note 93, para. 261.

95See infra note 299 and accompanying text.

96Defense’s Admissibility Response, supra note 17, para. 355.

97Admissibility Hearing Day 1 Transcript, supra note 54, at 4.

98Id. at 10.

99Id. at 12.

100Admissibility Hearing Day 2 Transcript, supra note 54, at 45.

101Admissibility Hearing Day 1 Transcript, supra note 54, at 12.

102Admissibility Hearing Day 2 Transcript, supra note 54, at 56–57.

103Id. at 56.

104Id. at 56–57.

105Id. at 46–47.

106Libya Court Suspends Trial of Top Gaddafi-Era Intelligence Official, Reuters (Sept. 11, 2012), http://www.reuters.com/article/2012/09/11/us-libya-trials-suspension-idUSBRE88A0ZU20120911. People’s Courts were emergency courts used by Muammar Gaddafi “to try opposition members and political prisoners, [wherein] one or more people with no legal training could pass judgments without the need for a judge, jury or lawyers to be present in court.” Id. The People’s Courts were banned after the fall of the Gaddafi regime, but the law governing them was still in use; thus their application in the Dorda case may have rendered it unconstitutional. Id.

107See, e.g., Admissibility Hearing Day 2 Transcript, supra note 54, at 18–19.

108Admissibility Hearing Day 1 Transcript, supra note 54, at 58–59.

109Id.

110Id. at 55–56.

111Id. at 59.

112Admissibility Hearing Day 2 Transcript, supra note 54, at 18.

113Id. at 18.

114Id.

115Id.

116Admissibility Hearing Day 2 Transcript, supra note 54, at 27.

117Id. at 27–28.

118Id. at 28.

119Id.

120Id. at 25.

121Admissibility Hearing Day 2 Transcript, supra note 54, at 25.

122Id. at 26.

123See generally Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Libyan Government’s Further Submissions on Issues Related to the Admissibility of the Case Against Saif al-Islam Gaddafi (Jan. 23, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1545015.pdf [hereinafter Libya’s Further Submissions].

124Id. paras. 75–76.

125Id. para. 77.

126See id. para. 76.

127Id. paras. 84–85.

128Id. para. 85.

129Id.

130See generally id. paras. 103–13.

131See id. paras. 104, 106–10.

132Id. para. 105.

133See generally Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Prosecution’s Response to Libyan Government’s Further Submissions on the Issues Related to the Admissibility of the Case Against Saif al-Islam Gaddafi (Feb. 12, 1013), http://www.icc-cpi.int/iccdocs/doc/doc1551639.pdf.

134Id. para. 44.

135Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Prosecution’s Notice of Withdrawal Regarding a Reference in its Prosecution’s Response to Libyan Government’s Further Submissions on Issues Related to the Admissibility of the Case Against Saif al-Islam Gaddafi (ICC-01/11-02/22-276-Red2), para. 3 (Feb. 19, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1555477.pdf.

136See id.

137See generally Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Public Redacted Version of the Response to the Libyan Government’s Further Submissions on Issues Related to Admissibility of the Case Against Saif Al-Islam Gaddafi (Feb. 18, 2013), http://www.icc-cpi.int/iccdocs/doc/doc1555252.pdf.

138Id. para. 169.

139Id.

140Id. paras.170–73.

141Id. paras. 222–57.

142Id. para. 284.

143Grant, supra note 45.

144See Libya Election Success for Secularist Jibril’s Bloc, BBC News (July 18, 2012), http://www.bbc.co.uk/news/world-africa-18880908.

145Hadeel al Shalchi & Marie-Louise Gumuchian, Libya’s Jibril in Election Landslide over Islamists, Reuters (July 12, 2012), http://www.reuters.com/article/2012/07/12/us-libya-elections-idUSBRE86B0JI20120712.

146Admissibility Hearing Day 1 Transcript, supra note 54, at 29.

147UPDATE 4-Rival Libya Militias Battle on Streets of Tripoli, Reuters (Nov. 4, 2012, 12:31 PM), http://www.reuters.com/article/2012/11/04/libya-attack-idUSL5E8M42RE20121104.

148Benghazi US Consulate Attack: Timeline, BBC News (Nov. 16, 2012, 11:23 AM), http://www.bbc.co.uk/news/world-africa-19587068.

149See Julian Pecquet, Timeline of Libya Consulate Attack Reveals Administration Contradictions, Hill (Oct. 14, 2012, 6:00 AM), http://thehill.com/blogs/global-affairs/terrorism/261839-timeline-of-libya-attack-reveals-administration-contradictions.

150Admissibility Decision, supra note 10.

151Id. paras. 134–35.

152Id. para. 137. As a general matter, the analysis of an admissibility challenge is a two-step process. Id. para. 58. First is whether a state with jurisdiction is investigating or prosecuting the same case as the ICC. Id. If the answer is in the affirmative, then the second question is whether the state is genuinely willing or able to investigate or prosecute the accused. Id. See infra Part II.B.1 for a fuller discussion of this two-step analysis.

153Admissibility Decision, supra note 10, para. 58.

154Id. paras. 58, 76–77.

155See generally id.

156Id. para. 83.

157Id. para. 83.

158Id. paras. 84–88, 106–37.

159Id. para. 113.

160Id. paras. 84–88.

161Id. para. 109.

162Id. para. 113.

163Id. para.114.

164See generally id. paras. 115–31.

165Id. para.121.

166Id. paras. 128–31.

167Id. paras. 116–17.

168Id. paras. 132–35.

169Id. para. 135.

170Id. para. 137.

171Id. paras. 204–05.

172See generally id.

173Id. paras. 206–08.

174Id. paras. 206–07.

175Id. para. 207.

176Id. para. 208.

177Id. paras. 209–11.

178Id. para. 210.

179Id. para. 209.

180Id. para. 211.

181See id. paras. 212–14.

182Id. para. 212.

183Id. para. 213.

184Id. para. 214.

185Id. para. 215.

186Id.

187Id. para. 199; accord Rome Statute, supra note 11, art. 17, para. 3.

188Rome Statute, supra note 11, art. 17, para. 3; Admissibility Decision, supra note 10, para. 199.

189See Admissibility Decision, supra note 10, paras. 201–02.

190Id. para. 205.

191See id. paras. 204–05.

192Id. para. 205.

193Id.

194See id. paras. 206–14

195Sharon A. Williams & William A. Schabas, Article 17: Issues of Admissibility, in Commentary on the Rome Statute of the International Criminal Court 605, 606 (Otto Triffterer ed., 2008).

196See id.

197Id. at 624.

198Rome Statute, supra note 11, art. 17, para. 1(a).

199Id. art. 17(1)(b).

200Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07 OA 8, Judgement 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, para. 78 (Sept. 25, 2009), http://www.icc-cpi.int/iccdocs/doc/doc746819.pdf [hereinafter Katanga Appeal]. It should be observed that the Chamber may find that Libya is currently not investigating the case against Gaddafi and, consequently, find the case admissible. See Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Decision Requesting Further Submissions on Issues Related to the Admissibility of the Case Against Saif al-Islam Gaddafi, para. 14 (Dec. 7, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1522448.pdf. [hereinafter Requesting Further Submissions]. An admissibility challenge must be determined “on the circumstances prevailing at the time of” the decision. See id. (citation omitted). After the admissibility hearing, the Chamber requested further evidence from Libya that it had carried out further investigations on the Gaddafi case after submitting its admissibility challenge in May 2012. Id. The Chamber noted that such evidence was necessary “for Libya to discharge its burden of proof that currently there is not a situation of ‘inaction’ at the national level.” Id.

201Rome Statute, supra note 11, art. 17, para. 3.

202Katanga Appeal, supra note 200, para. 56.

203Id. Article 19(10) of the Rome Statute allows prosecutors to review admissibility decisions if “new facts have arisen which negate the basis on which the case had previously been found inadmissible under Article 17.” Rome Statute, supra note 11, art 19, para. 10.

204Requesting Further Submissions, supra note 200, para. 8.

205See Kristina Miskowiak, The International Criminal Court: Consent, Complementarity and Cooperation 13 (2000).

206Id.

207Observations of Governments on the Report of the Working Group on a Draft Statute for an International Criminal Court, 46th Sess., June 29, 1994, para. 35, (1994), reprinted in 2 Y.B. Int’l L. Comm., 21 U.N. Doc. A/CN.4/SER.A/1994/Add.1 (Part I), U.N. Sales No.E.96.V.Z. (Part I) (1994).

208Rep. of the Working Grp. on the Question of a Draft Statute for an International Criminal Court Revision, Int’l Law Comm’n, 46th Sess., 4/L.491/Rev.2; GAOR, 46th Sess., at 8 (July 14, 1994).

209Rome Statute, supra note 11, pmbl.

210John T. Holmes, Complementarity: National Courts versus the ICC, in 1 The Rome Statute of the International Criminal Court: A Commentary 667, 667 (Antonio Cassese et al. eds., 2002)

211Id. at 670–71.

212Black’s Law Dictionary 928 (9th ed. 2009).

213S.C. Res. 955, art. 8, U.N. Doc. S/RES/955 (Nov. 8, 1994); S.C. Res. 827, U.N. Doc. S/RES/827 (May. 25, 1993) (establishing ICTY); U.N. Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), para. 65, U.N. Doc S/25704 (May 3, 1993); accord Holmes, supra note 213, at 669.

214S.C. Res. 955, supra note 213, art. 8(2); S.C. Res. 827, supra note 213, U.N. Secretary-General, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), para. 65, U.N. Doc S/25704 (May 3, 1993); accord Holmes, supra note 210, at 669.

215United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Italy, June 15–July 17, 1998, Report of the Preparatory Committee on the Establishment of an International Criminal Court, art. 15, U.N. Doc. A/Conf.183/2/Add.1 (Apr. 14, 1998) [hereinafter Preparatory Committee Draft].

216Id.

217Compare id. (“Having regard to paragraph 3 of the Preamble, the Court shall determine that a case is inadmissible where: (a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.”), with Rome Statute, supra note 11, art. 17 (“Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.”); accord Johan D. van der Vyver, The Principle of Complementarity and the Rules of Admissibility 6 (2013) (unpublished manuscript) (on file with author).

218Holmes, supra note 210, at 670.

219Id. at 668–69.

220Id.

221Miskowiak, supra note 205, at 42.

222Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity, in 7 Max Planck Y.B. United Nations L. 591, 595 (Armin von Bogdandy & Rüdiger Wolfrum eds., 2004).

223Williams & Schabas, supra note 198, at 610.

224Holmes, supra note 210, at 668–70.

225Preparatory Committee Draft, supra note 214, art. 15 (emphasis added).

226Williams & Schabas, supra note 195, at 612.

227Id.

228Id.

229Holmes, supra note 210, at 677.

230Benzing, supra note 222, at 595 (emphasis in original).

231See Rome Statute, supra note 11, art. 17.

232Holmes, supra note 210, at 672.

233Rome Statute, supra note 11, art. 17, para. 1(a).

234See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Document into the Record of the Case Against Mr. Thomas Lubanga Dyilo, art. 58, paras. 30, 32 (Feb. 24, 2006), http://www.icc-cpi.int/iccdocs/doc/doc236260.pdf [hereinafter Dyilo Warrant].

235Id. para. 31.

236Admissibility Hearing Day 1 Transcript, supra note 54, at 55–56.

237Ali Shuaib, Gaddafi’s Son Appears in Libyan Court for First Time, Reuters (Jan. 17, 2013, 10:49 AM), http://www.reuters.com/article/2013/01/17/us-libya-gaddafi-idUSBRE90G0QR20130117.

238Kevin Jon Heller, Libya Admits It Should Lose Its Complementarity Challenge Re: Saif, Opinio Juris (Jan. 18, 2013, 12:53 AM), http://opiniojuris.org/2013/01/18/libya-admits-it-should-lose-its-complementarity-challenge-re-saif/.

239Admissibility Decision, supra note 10, paras. 134–37.

240Id. art. 17, para. 3.

241Admissibility Decision, supra note 10, paras. 205, 215.

242Kevin Jon Heller, The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process, 17 Crim. L.F. 255, 264 (2006); Int’l Criminal Court, Office of the Prosecutor, No. ICC-01/04-01/07, Informal Expert Paper: The Principle of Complementarity in Practice 15 (2003), available at http://www.icc-cpi.int/iccdocs/doc/doc654724.pdf.

243The Informal Expert Paper came about as the OTP was trying to decide how its office would deal with issues of complementarity in practice. Office of the Prosecutor, supra note 242, at 2. The paper reflects a collaborative work between the OTP and a variety of experts known for their research about the topic of complementarity. Id.

244See id. at 3–4.

245Id. at 15.

246Id.

247See Gregory S. McNeal, ICC Inability Determinations in Light of the Dujail Case, 39 Case W. Res. J. Int’l L. 325, 325–28 (2006).

248Office of the Prosecutor, supra note 242, at 15.

249Prosecutor’s Admissibility Response, supra note 16, para. 41.

250Id.

251Id.

252Antonio Cassese, International Criminal Law 344 (2d ed. 2008).

253Heller, supra note 242, at 264.

254Id.. The fact that the Rome Statute does not seem to protect international standards of due process, or any due process for that matter, is not lost upon the author of this comment or Professor Heller. See id. at 265 for a deeper discussion of the issue.

255Prosecutor v. Saif al-Islam Gaddafi & Abdullah al-Senussi, Case No. ICC-01/11-01/11, Libyan Government’s Filing of Compilation of Libyan Law Referred to in Its Admissibility Challenge, 2 (May 28, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1418852.pdf (citing Code Criminal Procedure [C. Crim. Pro.] art. 106 (Libya)); Libya’s Admissibility Motion, supra note 9, para. 59.

256Admissibility Hearing Day 1 Transcript, supra note 54, at 20.

257Id.

258Williams & Schabas, supra note 195, at 617.

259Office of the Prosecutor, supra note 242, para. 22.

260Id. para. 23.

261Admissibility Hearing Day 1 Transcript, supra note 54, at 55–56.

262William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 56 (2008).

263Id.

264Prosecutor v. Tadic, Case No. IT-94-1-I, Separate Opinion of Judge Sidhwa on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 83 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).

265See Luis Moreno-Ocampo, Prosecutor of the ICC, Address at the International Conference in Nuremburg: Building a Future on Peace and Justice (June 24–25, 2007), available at http://www.icc-cpi.int/NR/rdonlyres/4E466EDB-2B38-4BAF-AF5F-005461711149/143825/LMO_nuremberg_20070625_English.pdf (“[F]or each situation in which the ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their timeliness, asking the Prosecution to use its discretionary powers to adjust to the situations on the ground, to indict or withdraw indictments according to short term political goals . . . . These proposals are not consistent with the Rome Statute”).

266William A. Schabas, Complementarity in Practice: Some Uncomplimentary Thoughts, 19 Crim. L.F. 5, 6 (2008) (“[F]rom the beginning of the work of the International Criminal Court, there have been iniatives aimed at attracting cases for prosecution rather than insisting that States fulfill their obligations.”).

267Office of the Prosecutor, supra note 242, para. 1.

268Id. para. 2.

269Id. para. 3.

270Id.

271Id.

272Id. para. 4.

273Id. para. 10 (“Article 93(10) of the [Rome] Statute . . . contemplates ICC assistance to national investigations and prosecutions”).

274Rome Statute, supra note 11, art. 93(10).

275Admissibility Hearing Day 2 Transcript, supra note 54, at 50.

276Id.

277Libya’s Admissibility Motion, supra note 9, para. 97; see also supra notes 149–51.

278See Johan D. van der Vyver, Trigger Mechanisms and Admissibility Constraints 74 (2013) (unpublished manuscript) (on file with author), for a greater discussion of these provisions.

279Rome Statute, supra note 11, art. 19, para. 10.

280Id.

281Preparatory Commission for the International Criminal Court, Mar. 13–31, 2000, June 12–30, 2000, Report of the Preparatory Commission for the International Criminal Court: Finalized Draft Text of the Rules of Procedure and Evidence, Rule 62(2), U.N. Doc. PCNICC/2000/INF/3/Add.1 (July 12, 2000).

282Id. rule 59(1).

283Admissibility Hearing Day 1 Transcript, supra note 54, at 50; see also Rome Statute, supra note 11, art. 19, para. 4.

284Admissibility Hearing Day 1 Transcript, supra note 54, at 50.

285Id.

286Defense’s Admissibility Response, supra note 17, para. 355.

287Bemba Admissibility Decision, supra note 93, para. 6.

288Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08; Case Information Sheet, http://www.icc-cpi.int/iccdocs/PIDS/publications/BembaEng.pdf [hereinafter Bemba Case Information Sheet].

289Id.

290Bemba Admissibility Decision, supra note 93, paras. 2–3.

291Id. para. 6

292Id. paras. 7–9.

293Id. para. 12.

294Id. para. 15.

295Id. para. 74.

296Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Application Challenging the Admissibility of the Case pursuant to Articles 17 and 19(2)(a) of the Rome Statute, para. 76 (Feb. 25, 2010), http://www.icc-cpi.int/iccdocs/doc/doc881209.pdf [hereinafter Bemba Defense Admissibility Challenge].

297Id. Bemba was living in Portugal as an exile at the time. Bemba Admissibility Decision, supra note 96, para. 78.

298See Bemba Defense Admissibility Challenge, supra note 296, paras. 72, 77.

299Id. para. 88 n.63.

300Id. para. 91 n.64.

301Id. para. 92 (quoting William A. Schabas, Complementarity in Practice: Creative Solution or a Trap for the Court?, in The International Criminal Court and National Jurisdictions (Mauro Politi & Federico Gioia, eds., 2008)). In fact, the CAR, after referring the Bemba case to the ICC, went on to try Ange-Félix Patassé, former President of the CAR. Bemba Case Information Sheet, supra note 291. Patassé was a co-defendant with Bemba and resided outside of the CAR at the beginning of his trial. Bemba Defense Admissibility Challenge, supra note 296, para. 94.

302See Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Prosecution’s Response to Motion Challenging the Admissibility of the Case by the Defence for Jean-Pierre Bemba Gombo Pursuant to Articles 17 and 19(2)(a) of the Rome Statute, paras. 61–64 (Mar. 29, 2010), http://www.icc-cpi.int/iccdocs/doc/doc881209.pdf [hereinafter OTP’s Admissibility Response to Bemba].

303See id. para. 62.

304Id. para. 75.

305Bemba Admissibility Decision, supra note 93, para. 107 (citing Prosecutor v. Jean-Pierre Bemba Gombo, Case, No. ICC-01/05-01/08, Prosecution’s Response to Motion Challenging the Admissibility of the Case by the Defence for Jean-Pierre Bemba Gombo Pursuant to Articles 17 and 19(2)(a) of the Rome Statute, para. 67 (Mar. 29, 2010)).

306OTP’s Admissibility Response to Bemba, supra note 302, para. 64.

307See Bemba Admissibility Decision, supra note 93, paras. 242–47. The Trial Chamber III decided that the dismissal by the Senior Investigating Judge was not a “decision not to prosecute” under Article 17(1)(b), thereby rendering discussion on inability unnecessary. Id. para. 242.

308Id. para. 245.

309Id.

310Id. para. 246.

311Id. para. 245.

312See Bemba Defense Admissibility Challenge, supra note 302, para. 92 (quoting William A. Schabas, Complementarity in Practice: Creative Solution or a Trap for the Court?, in The International Criminal Court and National Jurisdictions 25, 36 (Mauro Politi & Federico Gioia, eds., 2008)).

313Id. para. 88 n.63.

314OTP’s Admissibility Response to Bemba, supra note 302, para. 62.

315Rome Statute, supra note 11, art. 17, para. 3; Holmes, supra note 210, at 677; see also Williams & Schabas, supra note 198, at 612.

316Bemba Admissibility Decision, supra note 93, para. 15.

317Libya’s Admissibility Motion, supra note 9, paras. 53–54.

318Defense’s Admissibility Response, supra note 17, para. 316.

319See supra notes 107–09 and accompanying text.

320See Bemba Admissibility Decision, supra note 93, para. 107 (citing Prosecutor v. Jean-Pierre Bemba Gombo, Case, No. ICC-01/05-01/08, Prosecution’s Response to Motion Challenging the Admissibility of the Case by the Defence for Jean-Pierre Bemba Gombo Pursuant to Articles 17 and 19(2)(a) of the Rome Statute, para. 67 (Mar. 29, 2010)).

321Grant, supra note 42.

322Admissibility Hearing Day 2 Transcript, supra note 54, at 43.

323S.C. Res. 1970, supra note 3, para. 4.

324Heller, supra note 242, at 264–65; Office of the Prosecutor, supra note 242, para. 49.

325See supra notes 252–60 and accompanying text.

326See Admissibility Decision, supra note 10, paras. 204–15.

327Id. paras. 205–06.

328Admissibility Hearing Day 1 Transcript, supra note 54, at 19–20; see also Libya’s Admissibility Motion, supra note 9, paras. 42–44.

329Admissibility Decision, supra note 10, paras. 209–10.

330Id. paras. 209–10. The Chamber in referring to these two witnesses cites Annex C to Libya’s Admissibility Challenge. Id. para. 210 n.346. The author of this Comment could not find a publicly available copy of this annex, suggesting that the annex has not been released for confidentiality reasons.

331Id. para. 211.

332Id. paras. 204, 208, 211.

333Katanga Appeal, supra note 200, para. 56.

334Admissibility Decision, supra note 10, paras. 212–14.

335Admissibility Hearing Day 1 Transcript, supra note 54, at 15; see also Libya Admissibility Motion, supra note 9, para. 59.

336Admissibility Hearing Day 1 Transcript, supra note 54, at 20.

337Id.

338See Part III.B.2.

339Admissibility Decision, supra note 10, paras. 190–91; see Admissibility Hearing Day 1 Transcript, supra note 54, at 19–20.

340Office of the Prosecutor, supra note 242, para. 50.

341Rather, as discussed above, Libya is not mandated to ensure that Gaddafi has legal counsel until the trial phase begins. See Admissibility Hearing Day 1 Transcript, supra note 54, at 20.

342See Cassese, supra note 252, at 344.

343Admissibility Decision, supra note 10, paras. 85–88.

344Id. paras. 108–13, 201–03.

345See id. para. 211.

346See id.

347Admissibility Decision, supra note 10, para. 208.

348Libya’s Further Submissions, supra note 123, para. 99.

349See supra Part III.B.

350Admissibility Decision, supra note 10, para. 135.

351Id. paras. 132–35.

352Admissibility Decision, supra note 10, para. 137.

353Id. para. 137.

354Defense’s Admissibility Response, supra note 17, paras. 358–68.

355Id. para. 358.

356Id. para. 385.

357Heller, supra note 238; Office of the Prosecutor, supra note 242, para. 49.

358See, supra notes 232–36 and accompanying text.

359Holmes, supra note 210, at 677.

360Id.

361See Office of the Prosecutor, supra note 242, at para. 50.

362Libya’s Admissibility Motion, supra note 9, para. 10.

363Id.

364See Grant, supra note 45.

365Office of the Prosecutor, supra note 242, at para 50.

366Libya’s Admissibility Motion, supra note 9, paras. 39–40.

367Defense’s Admissibility Response, supra note 17, para. 316.

368Libya’s Further Submissions, supra note 123, paras. 75–76.

369See Bemba Admissibility Decision, supra note 96, paras. 242–247.

370OTP’s Admissibility Response to Bemba, supra note 302, para. 62; Admissibility Hearing Day 1 Transcript, supra note 54, at 10.

371OTP’s Admissibility Response to Bemba, supra note 302, para. 62.

372S.C. Res. 1970, supra note 3, para. 4.

373See generally Libya’s Admissibility Motion, supra note 9.

374Admissibility Hearing Day 1 Transcript, supra note 54, at 88.

375Id.

376Admissibility Hearing Day 2 Transcript, supra note 54, at 56.

377Id.

378Id. at 56–57.

379Benzing, supra note 222, at 595.

380Office of the Prosecutor, supra note 242, para. 50.

381See supra Part II.C–D.

382See Charles Chernor Jalloh, Kenya vs. the ICC Prosecutor, 53 Harv. Int’l L.J. 227, 236 (2012). Professor Jalloh argued the same proposition as in this article. In particular, Professor Jalloh analyzed the Appeals Chamber’s approach to Kenya’s admissibility challenge in Prosecutor v. Ruto, Kosgey & Sang. See id. at 227–28, n.2.

Executive Manager Editor, Emory International Law Review, J.D. Candidate, Emory University School of Law (2014); B.A. Georgia College & State University (2009). The author would like to thank Professor Johan D. van der Vyver for his advice and guidance, without which the topic of this Comment would never have been narrowed to the issue of Libya’s inability long before the Chamber issued its admissibility decision. The author would also like to thank the staff members and editors of the Emory International Law Review for the hard work that was put into editing this Comment.