INTERNATIONAL CRIMINAL COURT

STUDY GUIDE

www.modelcj.org 7-9 February 2014

Model Courts of Justice 2014

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LETTER OF THE SECRETARY-GENERAL

Dear Participants,

It is my honour to welcome you to the third annual session of Model Courts of Justice. My

name is FatmaBetülBodur, I am a junior law student at Ankara University; and I will serve as

the Secretary-General of this Conference. Having been a part of this Conference since its first

session; I can assure you that Model Courts of Justice is a tremendous opportunity for you to

enhance your knowledge on international law.

In this year’s session, the International Criminal Court (ICC) shall be simulated at the Pre-

Trial Chamber level, for the Confirmation of Charges Hearing. The case is chosen as The

Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi. The Court’s set-up and this

Study Guide have been prepared by the Under-Secretary-General Mr. Hasan Yücel. With his

hard work and discipline, the ICC’s background is presented thoroughly.

I advise you to read the Study Guide, the Handbook and the Rules of Procedure; and to

analyze the Key Documents provided in our website. Please keep in mind that the Study

Guide is prepared so as not to disturb the objectivity of the prospective Judges in the Court;

therefore it serves as a first-step for the Prosecution and the Defence.

Should you have any questions with regards to the academic aspect of the Conference, please

do not hesitate to contact me viasecretary.general@modelcj.org.

I wish to welcome you all in February, in Ankara.

Regards,

FatmaBetülBodur

Secretary-General of Model Courts of Justice 2014 Conference

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LETTER OF THE UNDER-SECRETARY-GENERAL

It is my pleasure to welcome you to the Model Courts of Justice 2014.

My name is Hasan Yücel and I am a senior student at Ankara University, Faculty of Law.

Besides having the highest enthusiasm for law, I have been very interested in international

criminal matters. After having participated in various conferences as a committee director, an

academic team member, a delegate and an advocate I will have the pleasure of serving as your

Under-Secretary-General for the second time in this highly respected conference.

After the end of the Cold War, the two significant tribunals, International Criminal Tribunal

for the former Yugoslavia and for Rwanda were considered as the consequence of the

consensus that impunity is intolerable. The International Criminal Court, an independent

court, plays an important role to end the impunity for the perpetrators of the gravest crimes of

concern to the international community.

This year’s case is “the Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi” that

was brought from the situation referred by a resolution adopted by the United Nations

Security Council. In this case, Saif Al Islam and Abdullah Al-Senussi are the accused persons.

As a member of the Academic Team of Model Courts of Justice 2014, I underline that we

have worked tremendously hard for providing you a court simulation which will challenge

your legal interpretation skills as well as enhancing your understanding of international

criminal law. I hope that you will enjoy deliberating on the case and find a chance to develop

your skills as an advocate or a judge.

Should you have any questions relating to the cases, please do not hesitate to contact me

through icc@modelcj.org.

Sincerely,

Hasan Yucel

Under Secretary-General responsible for the International Criminal Court

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INDEX

PART I: International Criminal Court

A. Structures of the Court

1. Pre-Trial Chamber

2. Trial Chamber

3. Appeals Chamber

B. Stages of International Proceeding

1. Trigger Mechanism

2. Criminal Proceedings

3. Sentencing

C. Principle of Complementarity

D. Confirmation of Charges

PART II: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi

I. Introduction

II. History of the Case

A. Factual History

1. Arab Spring and Libya

2. Response of the United Nations Security Council and North Atlantic

Treaty Organization Operation

B. Procedural History

1. Referral of the UNSC to the Prosecutor

2. Warrant of Arrest

3. Challenges

III. Alleged Breaches of Rome Statute

A. Warrant of Arrest: Charges

B. Contextual Elements of Crimes Against Humanity

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1. Widespread or Systematic Attack

2. Widespread or Systematic Attack

3. Civilians

4. Evaluation of the Contextual Elements

a) The Aim of the Evaluation

b) Determination of the Existence of an Armed Conflict

c) Evaluation of Relevant Articles of Geneva Conventions and Additional Protocols i. In General

ii. Evaluation Pursuant to Article 4(2)

iii. Evaluation Pursuant to Article 43(1)

iv. Conclusion

C. Specific Elements for the Crime of Murder

1. The Perpetrator Killed One or More Persons

D. Specific Elements for the Crime of Persecution

1. The Perpetrator Severely Deprived, Against International Law, One or

More Persons Fundamental Rights

2. The Perpetrator Targeted Such Person or Persons by Reason of the

Identity of a Group or Collectivity or Targeted the Group or Collectivity

as Such

3. Such Targeting Was Based on Political, Racial, National, Ethnic, Cultural,

Religious or Gender Grounds as Defined in Article 7, Paragraph 3, of the

Statute, or Other Grounds Universally Recognized as Impermissible

under International Law

4. The Conduct Was Committed in Connection With Any Act Referred to in

Article 7, Paragraph 1, of the Statute or Any Crime Within the

Jurisdiction of The Court

IV. Individual Criminal Responsibility

A. Arrest Warrant: Content

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B. Indirect Perpetration

C. Indirect Co-perpetration

1. In General

2. Objective and Subjective Elements

D. Defence Arguments

1. In General

2. Mental Incapacity

3. Intoxication

4. Self Defence, Defence of Others and of Property

5. Duress and Necessity

E. Conclusion

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PART I: INTERNATIONAL CRIMINAL COURT

International Criminal Court (hereinafter will be referred to as ICC or, the Court) is

established as a permanent court by the adoption of the Rome Statute (the Statute) at a United

Nations (UN) conference on 17 July 1998, and entered into force on 1 July 2002.1 The seat of

the ICC is at The Hague in the Netherlands.2 ICC tries the persons who are accused of the

most serious crimes of international concern.3 The chief value of the ICC is that, when a

domestic legal system cannot, or does not, deal with an international crime, the ICC would

deal with these crimes.4 The provisions of the Statute governingthe ICC on jurisdiction and

functioning are provided in the Article 1.5 The crimes within the jurisdiction of the Court,

admissibility and all these key elements of the Court are listed in the Statute.6 The crimes

under its competence are defined in details by reaching consensusby the contracting Parties of

the ICC Statute.7

A. STRUCTURE OF THE COURT

1. Pre-Trial Chamber

The Pre-Trial Chamber is the first part of the judicial proceedings.8 The duties of this

Chamber last onthe confirmation of the charges.9 It has some key functions and plays

significant roles before and at the beginning of and during the Investigation made by the

Office of the Prosecutor (OTP).10

Firstly, Pre-Trial Chamber authorizes the Investigation if it considers that “there is a 1International Criminal Court. (2013). About the Court. Available: http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx. Last accessed 26th Nov 2013, cited in Yucel, Hasan. Annex to the Study Guide 2 Ibid 3 Ibid 4 Ibid 5 Ibid 6 Ibid 7 Ibid 8International Criminal Court. (2013). The Pre-Trial Chambers. Available: http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/chambers/pre%20trial%20division/Pages/pre%20trial%20division.aspx. Last accessed 26th Nov 2013, cited in Yucel, Hasan. Annex to the Study Guide 9 Ibid 10International Criminal Court. (2013). Pre-Trial Division. Available: http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/chambers/pre%20trial%20division/Pages/pre%20trial%20division.aspx. Last accessed 24th Nov 2013, cited in Yucel, Hasan. Annex to the Study Guide

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reasonable basis to proceed with the Investigation and that the case appears to fall within the

jurisdiction of the Court”.11 After the Investigation, at any time, if Pre-Trial Chamber is

satisfied that “there are reasonable grounds to believe that the person has committed a crime

within the jurisdiction of the Court”, Pre-Trial Chamber shall issue a warrant of arrest or a

summons to appear.12 Accordingly, the person is surrendered to the Court and appearsin the

hearings that the Pre-Trial Chamber holds to decide on the confirmation of charges.13

2. Trial Chamber

Three Judges of the division carry out the judicial functions of the Trial Chamber (Article 39

(2)(b)(ii)).14 The chief role of the Trial Chamber, stated in Article 64 of the Rome Statute, “is

adopting all the necessary procedures to guarantee that a trial is fair and expeditious, and is

conducted with full respect for the rights of the accused with regard for the protection of

victims and witnesses”.15

3. Appeals Chamber

On the grounds of procedural error, the fairness and the reliability of the trial or the

disproportion between the crime and the sentence, both the Prosecutor and the convicted

person may appeal a decision of the Court.16 Accordingly, the Appeals Chamber may decide

to reverse or amend the decision, sentence or order a new trial before a different Trial

Chamber.17Accordingly, the Appeals Chamber has the following options on the decision:

Reverse the decision

Amend the decision

Sentence

Order a new trial before a new Trial Chamber

11International Criminal Court. (2013). Pre-Trial Division. Available: http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/chambers/pre%20trial%20division/Pages/pre%20trial%20division.aspx. Last accessed 24th Nov 2013, cited in Yucel, Hasan. Annex to the Study Guide 12Ibid 13Ibid 14International Criminal Court. (2013). Trial Division. Available: http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/chambers/trial%20division/Pages/trial%20division.aspx. Last accessed 24th Nov 2013 cited in Yucel, Hasan. Annex to the Study Guide 15Ibid 16International Criminal Court. (2013). Appeals Division. Available: http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/chambers/appeals%20division/Pages/appeals%20division.aspx. Last accessed 24th Nov 2013, cited in Yucel, Hasan. Annex to the Study Guide 17Ibid

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B. STAGES OF INTERNATIONAL PROCEEDING

1. Trigger Mechanism

According to Articles 13, 14, 15, 18 and 53(1), 53(3) and 53(4) of the Rome Statute, the main

traits of the trigger mechanism are provided. The Investigations of the ICC shall be initiated

under three circumstances:

a) At the request of the UN Security Council acting under Chapter VII of the UN Charter

Figure 1: The applicable clauses for the procedures related the request of the UN Security

Council

A situation in which one or more of such crimes appears

to have been committed is referred to the Prosecutor by

the Security Council acting under Chapter VII of the

Charter of the United Nations

• Art. 13(b)

The Prosecutor shall, having evaluated the information

made available to him or her, initiate an Investigation

unless he or she determines that there is no reasonable basis to proceed under this

Statute

• Art. 53(1)

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b) The request of a State Party to the Statute of the Court

Figure 2: The applicable clauses for the procedures related to the request of a State Party

"A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with

Article 14"and

"The Prosecutor shall, having evaluated the information made available to him or her, initiate an Investigation unless he or she determines that there is no

reasonable basis to proceed under this Statute

Art.53(1) Art.13(a)

"A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed,

requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the

commission of such crimes"

Art. 14(1)

The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with Article 82

Art.18(4)

At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to

authorize the Investigation

Art. 18(2)

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c) By the Prosecutor propriomotu; in other words by his or her own motion

Figure 3: The applicable clauses for the procedures related to the initiation of the Prosecutor Party

Art.15(1)

• The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court

Art.15(2)• The Prosecutor shall analyse the seriousness of the information

received

Art.15(3)

• If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an Investigation, together with any supporting material collected

Art.15(4)

• If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the Investigation

Art.18(1)

• When ... the Prosecutor initiates an Investigation pursuant to Articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crime(s) concerned

Art.18(2)

•At the request of that State, the Prosecutor shall defer to the State’s investigation unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation

Art.18(4)

•The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with Article 82

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2. Criminal Proceedings

The structure of the criminal procedure differs from that of the triggering procedure. This

procedure splits as five phases:

Figure 4: The phases of a criminal proceeding

Firstly, in the Investigation stage, according to Article 61(1) of the Rome Statute and the Rule

121(3) of the Rules of Procedure, the criminal procedure is initiated with the Investigation of

the situation and it lasts until the Office of the Prosecutor files the charges.18

Secondly, as to Article 61(7) of the Rome Statute, the Pre-Trial Chamber decides whether

there is sufficient evidence to establish substantial grounds to believe that the person

committed each of the crimes charged.19 If it decides so, it means the charges are confirmed

and the Trial Stage commences.20

In the Trial stage, when there is beyond reasonable doubt, an appropriate sentence is

considered forthe person charged as to the Article 76 of the Rome Statute.21

TheAppeal stage may start with the launching by an appeal by any of the Parties against the

Trial Chamber's decision or against to the Pre-Trial Chamber decision to acquit or convict or

18Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002 (ICC-ASP/1/3 and Corr.1) 19Ibid 20Ibid 21UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 24 November 2013]

INVESTIGATION PRE-TRIAL TRIAL

APPEALENFORCEMENT OF SENTENCE

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against the sentence imposed in the convicted person.22

Finally, after the final judgment has been delivered, the stage of enforcement of sentence

commences under Article103 of the Rome Statute.23

3. Sentencing

Articles 77 and 78 of the ICC Statutedo not provide any definite guidelines to the ICC Trial

Chambers with regards to the determination of sentence.24Therefore, the Court may impose

penalties listed in the following clauses of the Article as “Imprisonment for a specified

number of years, which may not exceed a maximum of 30 years” or “a term of life

imprisonment when justified by the extreme gravity of the crime and the individual

circumstances of the convicted person”.25 Secondly, in addition to the providing for

imprisonment, it also stipulates that besides imprisonment the Court may order “a fine under

the criteria provided for in the Rules of Procedures and Evidence” and “a forfeiture of

proceeds, property and assets derived directly or indirectly from the crime, without prejudice

to the rights of bona fide third parties”.26 As it is provided in the Article 79, the Court may

order that money and other property collected through fines or forfeiture be transferred to a

trust fund established by decision of the Assembly of States Parties for the benefit of the

victims or their families.27

C. PRINCIPLE OF COMPLEMENTARITY

Before the establishment of the ICC, the ad hoc tribunals International Criminal Tribunal for

the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda(ICTR)

took the precedence to exercise the jurisdiction over specific crimes and this is called

“primacy”.28 Conversely, the ICC has the complimentary role to the national courts and it

means that the national courts take precedence over the ICC.29 This is laid down in the

10thParagraph of the Preamble and also spelled out in Articles 15, 17, 18, and 19 of the

Statute.30The purpose of the principle is to make sure that the accused or the situation at hand

22Ibid 23Ibid 24Ibid 25Ibid 26Ibid 27Ibid 28 Antonio Cassese (2003). International Criminal Law. Oxford: Oxford University Press p.348 29Ibid 30Ibid p.351

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is being investigated by a jurisdiction and the Rome Statute is comfortable with being the last

resort in this sense.31

D. CONFIRMATION OF CHARGES

Each progress of a case from Investigation to Trial Chamber has different evidentiary

thresholds.32The threshold that the Pre-Trial Chamber seeks must be higher than the one

required for issuance of a warrant of arrest or summons to appear.33

The Pre-Trial Chamber shall apply the evidentiary threshold provided in Article 61(7) of the

Statute, namely “sufficient evidence to establish substantial grounds to believe that the person

committed each of the crimes charged”.34 The term, substantial grounds, is well defined in

case law as follows:

“The Chamber concurs with the conception articulated by Pre-Trial Chamber I, namely that

for the Prosecutorto meet [the] evidentiary burden, [he/she] must offer concrete and tangible

proof demonstrating a clear line of reasoning underpinning [his/her] specific allegation.”35

The Pre-Trial Chamber may conclude with:36

The confirmation of the charges, and commit the person to a Trial Chamber for trial;

Declination of the charges of which it has determined that there is insufficient evidence for;

Adjournment of the hearing to enable the Prosecutor to submit further evidence; or

Amend the charges pursuant to Article 61(7) of the Rome Statute and pursuant to the Rules

of Procedure and Evidence Articles 121 to 126.

31Ibid 32International Criminal Court,Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, No. ICC-01/05-01/08, 2009, para.28-33 33Ibid 34Ibid 35International Criminal Court, Pre-Trial Chamber I, Lubanga decision, ICC-01/04-01/06-803-tEN, paras 37 to 39; Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717-tEN, para. 65. 36Ibid

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PART II: PROSECUTOR V. SAIF AL-ISLAM GADDAFI AND ABDULLAH AL-

SENUSSI

I. INTRODUCTION

Photograph 1: Saif Al-Islam Gaddafi Photograph 2: Abdullah Al-Senussi

Saif Al-Islam Gaddafi and Abdullah Al-Senussi are allegedlyresponsible for two counts of

crimes against humanity, namely murder, within the meaning of Article 7(1)(a) of the Statute,

and persecution, within the meaning of Article 7(1)(a) of the Statute.

It is believed that Abdullah Al-Senussi was captured on 20th November 2011 according to the

National Transitional Council officials.37Saif Al-Islam Gaddafi was captured on 19th

November 2011.38Muammar Muhammad Abu Minyar al-Gaddafi (hereinafter referred to as

''Muammer Gaddafi'') was also allegedly criminally responsible and the warrant of arrest on

his name was issued on 27 June 2011; however, the case was terminated against him after his

death on the 20th October 2011.39

The above named are the two persons dominating the past regime of Libya, which was

fallenfor the regime at the end of 2011. They are allegedly responsible for the perpetrations of

certain crimes during the former regime, claimed to be committed between 15th February

2011 and (at least) 28th February 2011.

37CNN. (2011). Gadhafi intelligence chief captured, Libyan officials say.Available: http://edition.cnn.com/2011/11/20/world/africa/libya-arrest/index.html?hpt=hp_t2. Last accessed 10 Dec 2013. 38CNN. (2011). Saif al-Islam Gadhafi Fast Facts. Available: CNN. (2011). Gadhafi intelligence chief captured, Libyan officials say. Available: http://edition.cnn.com/2011/11/20/world/africa/libya-arrest/index.html?hpt=hp_t2. Last accessed 10 Dec 2013.. Last accessed 10 Dec 2013. 39International Criminal Court. (2013). Libya. Available: http://www.icc-cpi.int/EN_Menus/ICC/Situations%20and%20Cases/Situations/ICC0111/Pages/situation%20index.aspx. Last accessed 10 Dec 2013.

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Saif Al- Islam Gaddafi was born on 25th June 1972 in Tripoli, Libya as a son of the leader of

the time: Muammer Gaddafi who was the Commander of the Armed Forces Libyan Arab

Jamahiriya, holding the title of ''Leader of the Revolution'' and acting as the Libyan Head of

State.40

Saif Al-Islam Gaddafi, at the days of the regime serving as the honorary chairman of the

Gaddafi International Charity and Development Foundation, is allegedly responsible of their

acts as the Libyan de facto Prime Minister, meaning that he acted as prime minister in reality

without lawful authority.41In that time, masses of civilians arisen all over the country were

demanding democracy, fair elections and the protection of their basic rights.42

Abdullah Al-Senussi was born in 1949 in Sudan. He was the brother-in-law and was known

as the right hand in state affairs to Muammer Gaddafi.43 Abdullah Al-Senussi served as

Colonel in the Libyan Armed Forces and later became the Head of the Military Intelligence,

previously known as the Jamahiriya Security Organization.44

II. HISTORY OF THE CASE

A. FACTUAL HISTORY

1. Arab Spring and Libya

The term “Arab Spring”means the social disorder and the political upheaval that spread across

the Middle East in early 2011.45 A young man set himself to fire in a protest and this turned

into a civil uprising in Tunisia.46 Later, the President of Tunisia reacted against protests which

caused the demonstrations tospread all over the country and reach to the capital.47 In the same

month, similar kinds of movements were seen in other countries,in Egypt, Algeria, Libya,

40International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Muammer Abu Minyar Gaddafi, 2011, No. ICC-01/11 41International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Saif Al-Islam Gaddafi, 2011, No. ICC-01/11 42The Guardian. (2012). Arab spring: an interactive timeline of Middle East protests.Available: http://www.theguardian.com/world/interactive/2011/mar/22/middle-east-protest-interactive-timeline. Last accessed 1st Nov 2013. 43International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Abdullah Al-Senussi, 2011, No. ICC-01/11 44Ibid 45John G. Browning. (2013). Democracy Unplugged: Social Media, Regime Change, And Governmental Response In the Arab Spring. Michigan State International Law Review.21 (1), 63-83. 46Ibid 47The Guardian. (2010). Tunisian president vows to punish rioters after worst unrest in a decade.Available: http://www.theguardian.com/world/2010/dec/29/tunisian-president-vows-punish-rioters. Last accessed 26th Nov 2013.

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Lebanon, Bahrain, Iraq, Jordan, Kuwait, Morocco, Saudi Arabia, and Syria respectively.

In that period of time, Muammer Gaddafi condemned the uprising in Tunisia and stated the

following on Libyan Television:“Tunisia now lives in fear. Families could be raided and

slaughtered in their bedrooms and the citizens in the street killed as if it was the Bolshevik or

the American Revolution”.48 The arrest of one human rights activist andamong other

influential activists triggered the demonstration in Benghazi and other cities.49Government

forces responded to these protests and the clashes between the protesters and governmental

forces went on for more than eight months from the 14th of February 2011.50 During the

incidents, heavy guns and vehicles were used to suppress the anti-government forces.51Libyan

jets have launched several strikes on opposition to halt its advance to the other cities.52The

Human Rights Watch Report in 2011, ergo,states: “Government control and repression of civil

society remained in the norm in Libya”.53

2. Response of the United Nations Security Council and North Atlantic Treaty

Organization Operation

United Nations Security Council (UNSC) referred the case to the ICC by its resolution.54

Russian Federation and People’s Republicof China agreed with the other permanent members

in this UNSC Resolution.55In the resolution, there were clauses related to sanctions on

Libya.56These sanctions included the referral of the situation to the ICC, an arms embargo, a

travel ban and an asset freeze.57The assets of seven persons, including Saif Al-Gaddafi and

Colonel Abdullah Al-Senussi, were frozen.58 The arms embargo, which had been established

48The Guardian. (2011). Muammar Gaddafi condemns Tunisia uprising.Available: http://www.theguardian.com/world/2011/jan/16/muammar-gaddafi-condemns-tunisia-uprising .Last accessed 26th Nov 2013. 49The Guardian. (2011). Libyan protesters clash with police in Benghazi.Available: http://www.theguardian.com/world/2011/feb/16/libyan-protesters-clash-with-police. Last accessed 26th Nov 2013. 50CNN. (2011). http://edition.cnn.com/2011/10/20/world/africa/gadhafi-2011-timeline/.Available: http://edition.cnn.com/2011/10/20/world/africa/gadhafi-2011-timeline/. Last accessed 26th Nov 2013. 51 Ibid 52The Guardian. (2012). Arab spring: an interactive timeline of Middle East protests.Available: http://www.theguardian.com/world/interactive/2011/mar/22/middle-east-protest-interactive-timeline. Last accessed 1st Nov 2013. 53Human Rights Watch. (2011). World Report 2011: Libya. Available: http://www.hrw.org/sites/default/files/related_material/libya_1.pdf. Last accessed 26th Nov 2013. 54 "UN unanimously backs Gaddafi sanctions." . Financial Times, 26 FEBRUARY 2011. Web. 12 Aug 2013. <http://www.ft.com/intl/cms/s/0/cf73de4e-40c2-11e0-9a37-00144feabdc0.html 55Reuters. (2011). Russia joins Western chorus for Gaddafi to go. Available: http://www.reuters.com/article/2011/05/27/us-libya-idUSTRE7270JP20110527. Last accessed 26th Nov 2013 56 United Nations Security Council, Resolution 1970 (2011), S/RES/1970 (2011) 57 Ibid 58 Ibid

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back in 1970s, was ensured to be strictly implemented by the member States by increasing

inspections in their respective territories.59

The UNSC Resolution 1973, which is concluded under Chapter VII of the UN Charter,

constituted the legal basis of a military intervention, on grounds of the no-fly zone over

Libya.60Accordingly, in this military operation, North Atlantic Treaty Organization (NATO)

Allied Joint Force Command took command of the no-fly zone over Libya -hence there would

not be any ground forces against the Libyan Armed Forces61- and attacked Gaddafi’s forces.62

By this resolution, NATO imposed the no-fly zone over Libya. In this operation, 16 States

provided air assets to destroy 600 tanks or armoured vehicles and 400 artillery/rocket

launchers.63

Before the military intervention of NATO, the opposition started to organize itself and the

Libyan National Transnational Council (LNTC) was formed in Benghazi on 27 February

2011.64LNTC was considered as a form of functioning government as the constituent power.65

B. PROCEDURAL HISTORY

1. Referral of the UNSC to the Prosecutor

The UN Security Council voted unanimously to refer the situation to the Court, along with

signing for sanctions on Muammer Gaddafi's regime, accusing it with using excessive force

on Libyan civilians.66 The Council has expressed unanimity in referring a case for the first

time by a 15-0 vote, after which the Investigation in Libya over the regime's actions began as

ground of the following clause of the resolution:

59 Ibid 60UN News Centre. (2011). Security Council authorizes ‘all necessary measures’ to protect civilians in Libya. Available: http://www.un.org/apps/news/story.asp?NewsID=37808&Cr=libya&Cr1=#.UhTSXe36-fQ. Last accessed 26th Nov 2013. 61Ibid 62BBC News. (2011). Libya: US, UK and France attack Gaddafi forces . Available: http://www.bbc.co.uk/news/world-africa-12796972. Last accessed 26th Nov 2013. 63BBC News. (2011). Nato chief Rasmussen 'proud' as Libya mission ends. Available: http://www.bbc.co.uk/news/world-africa-15516795. Last accessed 26th Nov 2013. 64National Transitional Council-Libya. (2011). Available: http://ntclibya.org/english/about/. Last accessed 26th Nov 2013. 65National Transitional Council-Libya. (2011).Available: http://ntclibya.org/english/about/. Last accessed 26th Nov 2013. 66 "Libya: UN Security Council votes sanctions on Gaddafi." BBC News Africa. 27 FEBRUARY 2011. Web. 12 Aug 2013. <http://www.bbc.co.uk/news/world-africa-12589434>.

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“Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the

Prosecutor of the International Criminal Court”.67

2. Warrant of Arrest

Based on the Rome Statute, the United Nations Security Council referred the situation in

Libya to the Court.68 The Prosecutor examined the information and evidence provided for his

investigation. After the investigation of the Prosecutor regarding to the situation, the Office of

the Prosecutor applied to the Pre-Trial Chamber, pursuant to Article 58 of the Rome Statute in

order to request the issuance of a warrant of arrest for Muammer Mohammed Abu Minyar

Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi.69

The Pre-Trial Chamber has considered the evidence of the Prosecutor and issued a warrant of

arrest for these persons; afterwards, the International Policing Organization (INTERPOL),

followed by issuing a warrant of arrest for Muammar Gaddafi, his son Saif al-Islam, and the

chief of national intelligence, Abdullah al-Senussi.70

3. Challenges

Libya filed a challenge to the admissibility of the case and the Pre-Trial Chamber postponed

the surrender of the Saif Al-Islam Gaddafi.71 The Chamber pointed out two questions that

needed to be answered; first one related to the ongoinginvestigation or prosecution at national

level and the second one on whether the State is unwilling or unable to carry out such

investigation or prosecution.72 In the decision, the complementarity principle and the fact that

the Libyan Courts have missed several opportunities to prosecute the accusedare

underlined.73The Chamber decided that the case at hand was not appropriate to expect Libya's

67Financial Times. (2011). UN unanimously backs Gaddafi sanctions.Available: http://www.ft.com/intl/cms/s/0/cf73de4e-40c2-11e0-9a37-00144feabdc0.html#axzz2lWcHfGXZ. Last accessed 26th Nov 2013 68 "Libya: UN Security Council votes sanctions on Gaddafi." BBC News Africa. 27 FEBRUARY 2011. Web. 12 Aug 2013. <http://www.bbc.co.uk/news/world-africa-12589434>. 69International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Saif Al-Islam Gaddafi, 2011, No. ICC-01/11 70 "Interpol issues arrest warrant for Muammar Gaddafi."REUTERS, 9 September 2011. Web. 12 Aug 2013. <http://www.reuters.com/article/2011/09/09/us-libya-gaddafi-interpol-idUSTRE7882D220110909>. 71 "War crimes court issues Gaddafi arrest warrant." The Guardian, 27 Jun 2011. Web. 12 Aug 2013. <http://www.theguardian.com/world/2011/jun/27/muammar-gaddafi-arrest-warrant-hague>. 72International Criminal Court. (2013). Summary of the Decision on the admissibility of the case against Mr Gaddafi. Available: http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/icc0111/related%20cases/icc01110111/Documents/Summary-of-the-Decision-on-the-admissibility-of-the-case-against-Mr-Gaddafi.pdf. Last accessed 26th Nov 2013. 73 Ibid. See Further Detail For Complementary Principle, Study Guide Section I, Part C

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investigation to cover exactly the same acts of murder and persecution.74 The investigation for

the trial of Gaddafi was not considered to cover all conducts of the abovementioned crimes as

the present case at ICC, since the draft bill incorporating international crimes had not been

adopted in Libya at the time of the admissibility decision. Finally the Chamber rendered a

decision to reject the challenge by explaining the reasons:

“The Chamber did not doubt that the central Government was engaging in every effort to

obtain Mr Gaddafi’s transfer, but found that no concrete progress to this effect had been

shown since the date of his apprehension on 19 November 2011 and was not persuaded that

the problem would be resolved in the near future.”75

Model Courts of Justice Secretariat has decided to disregard any decision of the Court with

regards to any inadmissibility findings. The Court shall proceed with the merits of the case.

III. ALLEGED BREACHES OF ROME STATUTE

A. WARRANT OF ARREST: CHARGES

On 16thMay 2011, the ICC Prosecutor requested the Judges to issue a warrant of arrest for

Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for crimesclaimed to be

committed in Libya between 15th February 2011 and(at least) 28th February 2011.The Pre-

Trial Chamber duly issued a warrant of arrest for these persons of the charges of murder and

persecution as crimes against humanity on 17thJune 2011.76

B. CONTEXTUAL ELEMENTS OF CRIMES AGAINST HUMANITY

The ICC Prosecutor Luis Moreno-Ocampo summarized the evidence gathered by the OTP as

follows:

“The evidence shows that civilians were attacked in their homes; demonstrations were

repressed using live ammunition, heavy artillery was used against participants in

funeral processions, and snipers placed to kill those leaving the mosques after the

74International Criminal Court. (2013). Summary of the Decision on the admissibility of the case against Mr Gaddafi. Available: http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/icc0111/related%20cases/icc01110111/Documents/Summary-of-the-Decision-on-the-admissibility-of-the-case-against-Mr-Gaddafi.pdf. Last accessed 26th Nov 2013. 75 "International Criminal Court, Pre-Trial Chamber I rejects Libyan challenge to the admissibility of the case against Saif Al Islam Gaddafi." . International Criminal Court, 31 May 2013. Web. 12 Aug 2013. <http://www.icc-cpi.int/en_menus/icc/press and media/press releases/Pages/pr911.asp&xgt;. 76 International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Abdullah Al-Senussi, 2011, No. ICC-01/11

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prayers... They are being arrested, put into prisons in Tripoli, tortured and made to

disappear.''

According to the Rome Statute, any of the acts enumerated in Article 7(1)of the Statute will

constitute a crime against humanity if committed as a part of a widespread or systematic

attack directed against any civilian population with the perpetrator having knowledge of the

attack.77

In this Section, the contextual elements of crimes against of humanity will be examined in

detail. At the end, an evaluation will take place for all the different points of this examination.

1. Widespread or SystematicAttack

The case law of the ICC, as well as those of the ICTY and theICTR consents that the term

“widespread or systematic” is disjunctive.78 Therefore, proving the existence of either

systematic attack or widespread attack suffices.79

The Pre-Trial Chamber considers that the term "widespread" connotes the large-scale nature

of the attack, which should be massive, frequent, carried out collectively with

considerableseriousness and directed against a multiplicity of victims.80 It entails an attack

carried out over a large geographical area or an attack in a small geographical area directed

against a large number of civilians.81 The underlying offences must also not be isolated.82In

other words, such attack, which is planned, directed or organized, must not be spontaneous or

a sum of isolated acts of violence, but it must follow a regular pattern.83

The term systematic has also been defined in various ways. The most recent cases seem to be

settling on “the organized nature of the acts of violence and the improbability of their random

occurrence”.84Furthermore, in a relevant situation in anICTY Case, a systematic attack was

77UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 24 November 2013] 78Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717, paras 395 and 398; ICTR, The Prosecutor v. Akayesu, Case No.ICTR-96-40-T, "Trial Judgment", 2 September 1998, para. 580. 79 Ibid 80 Ibid 81 See for a similar approach, ICTY, Prosecutor v Blaskic, Case No. IT-95-14-T, "Trial Judgment", 3 March 2000, para.206; ICTY, Prosecutor v Kordic and Cerkez, Case No.IT-95-14/2-A, "Appeals Chamber Judgment", 17 December 2004, para.94; see also G. Werle, Principles of International Criminal Law, (TMC Asser Press, 2005), p. 225, para. 656. 82 Ibid 83 Pre-Trial Chamber, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, International Criminal Court, 2009, para.80 84Nahimana ICTR AC, 28.11.2007, para 920. Al Bashir arrest warrant case ICC PTCI, 4.4.2009 para. 81

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told to require a “pattern or methodical plan” or “organized pattern of conduct”.85In the

AkayesuCase, this term is defined as: “(1) thoroughly organized, (2) following a regular

pattern, (3) on the basis of a common policy and (4) involving substantial public or private

resources.”86Also, in BlaskicCase, it was defined as: “(1) a plan or objective, (2) large-scale

or continuous commission of linked crimes, (3) significant resources, and (4) implication of

high-level authorities”.87

In the BembaCase, the Judgment of Pre-Trial Chamber, the elements, which are the multiple

commissions of acts and the attacks being pursuant to or in furtherance of a State or

organizational policy to commit such attack, should also be present.88 It is further stated in

KatangaCase that an attack, which is planned, directed or organized - as opposed to

spontaneous or isolated acts of violence - will satisfy this criterion.89

2. Widespread or Systematic Attack

Article 7(2)(a) of the Statute, which reads: “‘Attack directed against any civilian population’

means a course of conduct involving the multiple commission of acts (…) against any civilian

population, pursuant to or in furtherance of a State or organizational policy to commit such

attack”.90The Elements of Crimes clarify within the term 'attack' that it does not necessarily

equate with a “military attack”.91 This term refers to a campaign or operation carried out

against the civilian population, or, with the appropriate terminology used in Article 7(2)(a) of

the Statute a "…course of conduct".92Also, it is indicated in the Statute and ICTR Tribunal

jurisprudence that,there must be at least multiple acts or multiple victims as the threshold.93

3. Civilian Population

The discussion of the exact definition of the term “civilian”is highly controversial, since the

Article's meaning does not stand out very clearly.94The term “civilian” is not defined in the

85 See for a similar approach, ICTY, Prosecutor v. Tadic, Opinion and Judgement, 1997, para.648. 86AkayesuICTR Trial Chamber I, 2.9.1998 para. 580. 87BlaskicICTY Trial Chamber 3.3.2000 para. 203. 88 Pre-Trial Chamber, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, International Criminal Court, 2009, para.80 89Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717, para. 396 90As summarized in ICTY, Prosecutor v Kunarac et al, Case No. IT-96-23 & IT-96-23/1-A, "Trial Judgment", 22 February 2001, para. 425; 91 Elements of Crimes, Introduction to Article 7 of the Statute, para.3 92 R. Dixon in: O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court - Observer's Notes, Article by Article (NomosVerlag, 2nd ed., 2008), p. 175. 93KayishemaICTR Trial Chamber. II 21.05.1999 para.122 94 Pre-Trial Chamber, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, International Criminal Court, 2009, para.80

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Statute; therefore the Court considers this term by referringto various sources of various

branches of law.95 These are International Humanitarian Law, relevant caselaw, academics

and commentaries of conventions, which constitute one of the sources of International

Criminal Law pursuant to the explicit reference in the Article 21 of the Rome Statute.96

The Bemba Case refers to a well-established principle of international humanitarian law

as:“[t]he civilian population (...) comprises all persons who are civilians as opposed to

members of armed forces and other legitimate combatants”.97“Civilian” connotes crimes

directed against non-combatant instead of against combatants.98

The other term “population” means “a large body of victims is visualized” and “single or

isolated acts against individuals falloutside the scope of the concept”.99TadicCase makes a

reference to the term as “crimes of collective nature” buttargeting the entire population is not

required.100

4. Evaluation of the Contextual Element

a) The aim of the Evaluation

Significant question remains at the present case regarding to the status of

civilians.101Although many formal documents of the UN have not directly addressed the

alleged victims of the acts as such, the allegationsare claimed to be perpetrated against

civilians.102In this situation, because of the absence of the definition, it is assumed103 thatthe

term “Libyan Rebels” that the Security Councilused,104 is considered as “civilians”.105

The reason why this situation is important is that; if the abovementioned people are confirmed

to take an activepart in hostilities, they will lose their protection under the law of waras a

95 Pre-Trial Chamber, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, International Criminal Court, 2009, para.80 96UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 24 November 2013] 97S.C.Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011) 98RobetCryer, HakanFriman, Darryl Robinson, Elizabeth Wilmshurst (2010). An Introduction to International Criminal Law and Procedure. 2nd ed. New York, USA: Cambridge University Press p. 241 99 Ibid 100 Ibid 101Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW. 6:93. p.94 102 Ibid 103 Ibid 104 Ibid 105 Ibid

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civilian,106thus an attackagainst them for the duration of their participation is of much lower

gravity.107

b) Determination of the Existence of an Armed Conflict

While evaluating the definitions, first of all, it is must be determined whether there was an

armed conflict, in order for the laws of war to apply to the Libyan uprising altogether.108 The

application of International Humanitarian Law could be triggered only when there is an armed

conflict.109 It is concluded that there are two conditionsfor it: (1) a minimum level of violence

must be reached and (2) this violence must occur between relatively organized parties.110

ByFebruary 20th, 2011, it is claimed that there were many protesters who had already been

believed to be dead.111The uprising lasted with mutual armed attacks over the course of

several weeks and met the first criterion.112The parties could be explicitly identified as

“Gaddafi troops” and “the Rebels”, which were the semblance of a transnational government

together.113

Second determination is to decide whether the armed conflict was of a non-international

character or an international character. According to the Article 50(1) of theGeneva

Convention IVand the Article 4A(2) and Article 43(1) of the Additional Protocols, in an

international conflict, civilians can be distinguished from combatants; while in the law of a

non-international armed conflict, the concept of combatant status is not

addressed.114Additional Protocols might be applicable law before the Court to decide the

106International Committee of the Red Cross. (2003). Direct Participation in Hostilities under International Humanitarian Law. Available: http://www.icrc.org/ara/assets/files/other/direct_participation_in_hostilities_sept_2003_eng.pdf. Last accessed 26th Nov 2013. 107Ibid 108 Ibid p. 96 109Gabor Rona, An Appraisalof U.S. PracticeRelating to 'Enemy Combatants',10Y.B. INT'L HUMANITARIAN L. 232, 237 (2007). CITED Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW.6:93. 110Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW. 6:93. p. 96 111By February 20, 2011, 200 protesters were already believed to be dead. See Karin Laub, Libyan Estimate: At Least 30,000 Died in the War, GUARDIAN (Sept. 8, 2011), http://www.theguardian.com/world/2011/feb/20/libya-defiant-protesters-feared-dead CITED IN PHOENIX P.98 112By February 20, 2011, 200 protesters were already believed to be dead. See Karin Laub, Libyan Estimate: At Least 30,000 Died in the War, GUARDIAN (Sept. 8, 2011), http://www.theguardian.com/world/2011/feb/20/libya-defiant-protesters-feared-dead CITED IN PHOENIX P.98 113Ibid 114MARCO SASSOLI &ANTOE A. BOUVIER ET AL., Vol. I, How Does Law Protect In War143 (2d. ed. 2003) CITED IN Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus

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status and the inquiry should continue after having examined the situation under the light of

the Geneva Convention. Some argue that the below mentioned Articles can be applied to the

conflicts of an international character and some argue that such Articles can be applied to the

conflictswhich are not of an international character.115

To determine the character, it must be figured out whether the parties are one of the 'High

Contracting Parties' to the Geneva Conventions.116 Although Libya is one of the signatories to

the Geneva Conventions, the Rebels, asclaimed to be the other party in that time, cannot

constitute a nation-state and thereby cannot be one of the signatories.117 In other words, the

conflict between Libya as the State and the Rebels cannot be considered as international

conflict, since the Rebels were not a state.118 Consequently, the subjected armed conflict was

evaluated as of a non-international conflict.119

Final determination is withregards to the application of the relevant rules to the Libyan Rebels

as they were considered to be “combatants” or “civilians”. As stated at the beginning of this

section, it is clear thatthe definition of “civilian in the conflict”is absent in the Rome

Statute.120Also, the definition of itdoes not existin any existing treaty related to the non-

international armed conflict.121

The basic definition of civilian is provided in the Article 50(1) of the Geneva Conventions

and its additional protocols: “a civilian is any person who does not belong the one of the

categories of persons referred to in Article 4(A)(1), (2), (3) and (6) of the Third Convention

and in Article 43 of this Protocol”. Briefly, a civilian is any person who does not fall under

the category of combatants.122 Firstly, the latter category must be determined in order the

civilian category to be determined.123

In this present case, so as to evaluate the scope of the “Libyan Rebels”, the Article 4 A(2) and

Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW. 6:93 p.99 115Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW. 6:93. 116Convention (IV) Relative to the Protection of Civilian Persons in Time of War, art. 2, Aug. 12, 1949, 75 U.N.T.S. 287 117LibyanArab Jamahiriya: Ratifications/Accessions,INT'L COMM. RED CROSS, Available at: http://www. icrc.org/ihl.nsf/Pays?ReadForm&c=LY Last Accessed: 26 November 2013 118Ibid 119Ibid 120Michael Bothe, Karl Josef Partsch, Waldemar A. Solf (1982). New Rules for Victims of Armed Conflict.:MartinusNijhoff Publishers. P. 1-80 121 Ibid 122Frits Kalshoven and LiesbethZegveld. (2001). An Introduction to International Humanitarian Law. In: CONSTRAINTS ON THE WAGING OF WAR. 3rd ed. Geneva: International Committee of the Red Cross. 101 123 Ibid

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Article 43(1) of the Additional Protocols will be examined their applicability in this context.

These Articles follow as:

Article 4A(2) of the Geneva Conventions (III):

Members of other militias and members of other volunteer corps, including those of

organized resistance movements, belonging to a party to the conflict and operating in or

outside their own territory, even if this territory is occupied, provided that such militias or

volunteer corps, including such organized resistance movements, fulfill the following

conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and

customs of war.

Article 43(1) of the Additional Protocols:

1. The armed forces of a party to a conflict consist of all organized armed forces,

groups and units which are under a command responsible to that party for the

conduct of its subordinates, even if that party is represented by a government or an

authority not recognized by an adverse party. Such armed forces shall be subject to

an internal disciplinary system which, 'inter alia', shall enforce compliance with the

rules of international law applicable in armed conflict.

In the light of these Articles, Rebels were deemed to constitute a party to the conflict and

deemed to be active in their own territory as the “organized resistance movements”.124

124Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW. 6:93. 109

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c) Evaluation of Relevant Articles of Geneva Conventions and Additional Protocols

i) In General

The Geneva Convention (III) relative to the Treatment of Prisoners of War provides the

conditions of a combatant in Article 4A(2).125 Therefore, the determination of civilian status

requires determining the combatant status.126 Accordingly, if it is found out whether the

persons are combatant, then the subjected persons are not in the scope of civilians.127 In this

section, first Article 4 of the Geneva Convention and then Article 43(1) Additional Protocol

will be deliberated with the events occurred in Libya at that time.128

The Geneva Convention According to the principle of distinction, two criteria must be sought

to determine this status: (1) requirement to distinguish between combatants and civilians and

(2) the rights of the belligerent to adopt means of injuring the enemy are not unlimited.129

These criteria should be taken into account in case of a discussion concerning to the concept

“quasi-combatants”, when civilians cross the line to take a direct part in hostilities then their

participation turns a combatant and lose their civilian status.130 However, the existing lack of

consensus on the meaning of this criterion can be problematic as the determination of status

remains largely to the interpretation, which is mostly brought before a court.131

ii) Evaluationpursuant to Article 4(2)

The Article 4(2) of the Convention set forth the conditions to determine the civilian status

according to this Article. First condition is “belonging to a party to the conflict”. There must

be a link between the individual or a group and a party to a conflict.132 One might say that the

subjected persons could be deemed as “ordinary people” who takepart in the conflict, but

cannot be a fighter or a combatant.133The Geneva Convention Commentary, in this situation,

disagrees with this opinion and claims that these persons are in the context of “belligerent

status”as they are“persons who, from time to time, participate on their own initiative in war

125Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW. 6:93 p. 109 126 Ibid 127 Ibid 128 Ibid 129Kenneth Watkin. (2005). Warriors Without Rights?Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy.OCCASIONAL PAPER SERIES. 2 p.8 130Ibid p.10 131Ibid p.25 132Ibid p. 25 133Ibid

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operations and then return to their peaceful pursuits.”134

Second condition is the “organization and responsible command”. This one requires thatthe

Rebels to be commanded by a person' civilian or military and, as the

HadsihasanovicJudgmentstated, these groups must have some degree of organization that is

over than the categorization as an identifiable party to the conflict.135It underlines the only

requirement as “an organization capable of planning and carrying out sustained and

concerted military operations on the one hand, and of imposing discipline in the name of a de

facto authority on the other”.136It is stated that the existence of command and responsibility in

that time was questionable.137 However,it is also claimed that the foundation of the Libyan

National Transnational Council (LNTC)points out a clear command and responsibility under

the official command of the LNTC Minister of Defence.138

Third condition is “to have fixed signs and carriage of weapons”. This condition is one of the

most problematic ones, since the terms “fixed”,“signs” or “distinctive” are imprecise.139 The

Commentary of the Geneva Convention Relative to the Treatment of Prisoners of War, details

for the qualification of combatant status as: “the distinctive sign should be recognizable by a

person at a distance not too great to permit a uniform to be recognized” and it is underlined

that “[t]his is not necessarily a uniform; rather it can be, but is not limited to, an armband, as

long as the armband is clearly visible”.140In this context, some argue that such criteria can be

applicable for the Libyan Rebels to determine their status as civilians under the qualification

of the combatant status.141

Before the assessment of the other clause, the political aspects of the Rebels should be

134Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, art. 1, 2, July 29 1899. CITED IN Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW. 6:93 p.109 135Prosecutor v. Hadzihasanovic, Case No.IT-01-47-PT, Judgment, 1 1352 (Int'l Crim. Trib. for the Former Yugoslavia Nov. 12, 2002). 136 ICTY, Prosecutor v. Hadzihasanovic, Case No. IT-01-47-PT, Judgment, 1 1352 .Nov. 12, 2002. 137Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW. 6:93. p. 112 138Ibid 139Kenneth Watkin. (2005). Warriors Without Rights?Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy.OCCASIONAL PAPER SERIES. 2 p. 29-30 140ICRC. (1949). Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. . Available: http://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?viewComments=LookUpCOMART&articleUNID=2F681B08868538C2C12563CD0051AA8D. Last accessed 26th Nov 2013. 141Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW. 6:93. p. 112

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touched upon. The Rebels’ status is considered as the de facto government, which was

established on 17thFebruary 2011.142The organization claims to be aiming to “have a

democratic constitution, which provides fair election and respects to the human rights” as it is

stated in the official website.143 It was claimed in that time as “only legitimate body

representing the people of Libya and Libyan State”.144 It has a complex structure in which

legislative body and executive board are provided in its constitution.145Therefore, it is argued

that this formation of the LNTC shows that it can be a party to the conflict.146If they are party

to the conflict, the members of the LNTC are in the scope of the conflict.147

iii) Evaluation pursuant to Article 43(I) The other clause considered to be applicable to thus determination is Article 43(I)of the

Additional Protocol I. It requires that the categorization of Rebels isbased on two elements:

(1) existenceof organized armed forces, groups and units, and (2) existence of a command

responsible to this party of the conflict for its subordinates' conduct.148These criteria are

assessed pursuant to this Article. Accordingly,it is claimed that it was difficult to prove the

existence of any command from the Minister of Defence.149

iv) Conclusion

To sum up, the evaluation was related to the status of the alleged victim persons. Their status

plays a significant role in determination the crimes allegedly committed in the region.

Basically, a crime against humanity is committed against civilian people. If these populations

are granted the civilian status, then the alleged perpetrators committed crimes against

humanity in the scope of the Rome Statute. On the other hand, if these persons have

combatant status, the alleged perpetrator did not commit crime against humanity; two

possibilities arise from this end: lack of substantial grounds for any crimes, or the commission

of war crimes. There are certain questions which remain in the evaluation as:

142National Transitional Council-Libya. (2011). Available: http://www.ntc.gov.ly/index.php?option=com_content&view=article&id=26&Itemid=22. Last accessed 26th Nov 2013. 143 Ibid 144National Transitional Council-Libya. (2011).Available: http://ntclibya.org/english/about/. Last accessed 26th Nov 2013. 145 Ibid 146 Ibid 147 Ibid 148Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973. PHOENIX LAW REVIEW. 6:93.p. 113 149Ibid.p. 113

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If the alleged acts fall in the scope of war crime, why did not the Prosecutor consider adding

a charge of war crime? Was the threshold of gravity not met?

If the threshold was not met, does this mean that less civilians lose their lives?

Are the “Rebels” “civilians”?

All in all, what were the statuses of the victims of the incidents?

Figure 5: Methods used for the determination of civillian status

.

Evaluation of the Civilian Status

The Rebels are evaluated as Non-

Combatant

Non-Combatants are in the scope of the

Civilian Status

The Crime wasallegedly committed

against Civilians

Crime Against Humanity

The Rebels are evaluated as Combatants

Combatants are not in the scope of Non-

Civilian Status

The crime was not committed against

Civilians

Perpetrators did not commit Crimes

Against Humanity

Did the perpetrators commit war crimes?

or are there no crimes at all?

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C. SPECIFIC ELEMENTS FOR THE CRIME OF MURDER

The first count of the charges is murder. Article 7(1)(a) of the Statute provides that the action

prohibited as a crime against humanity when it is knowingly committed as part of a

widespread or systematic attack directed against any civilian population.150 In this section, the

elements related to the actusreus of the crime will be explained.

1. The Perpetrator Killed One or More Persons

The term “killed” can be exchange with the term “caused death”. As to the ICC jurisprudence,

the victim of this crime has to be dead and the death must result from the act of murder.151

Also the act itself may be committed by action or omission.

The Pre-Trial Chamber in Bemba Case also underlines the details regarding to the victim's

death as follows:

“...the Chamber concedes that there is no need to find and/or identify the corpse, the

Prosecutor is still expected to specify, to the extent possible, inter alia, the location of the

alleged murder, its approximate date, the means by which the act was committed with enough

precision, the circumstances of the incident and the perpetrator's link to the crime.”152

D. SPECIFIC ELEMENTS FOR THE CRIME OF PERSECUTION

The second count of the charges is persecution. In this section, the elements related to the

actusreus of the crime and the basics of this crime will be explained.

First of all, Article 7(1)(h) of the Rome Statute proscribes as a crime against humanity as

follows:

“Persecution 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.”

It must be noted that the crime of persecution, which is one of the types of crimes against

humanity, is different from the crime of genocide.153Basically each one requires a particular

150 Pre-Trial Chamber, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, International Criminal Court, 2009, para. 78 151 Ibidpara. 132. 152 Ibid para.133 153RobetCryer, HakanFriman, Darryl Robinson, Elizabeth Wilmshurst (2010). An Introduction to International Criminal Law and Procedure. 2nd ed. New York, USA: Cambridge University Press. 260

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intent.154As to the crime of genocide, there must be “anintent to destroy a group”and “the

target must be a national, ethnical, racial or religious group”.155 Genocide can only be

established on the listed acts in the Article 6 of the Rome Statute, while the conduct

amounting persecution is much broader than such list of acts.156

1. The Perpetrator Severely Deprived, against InternationalLaw, One or More

Persons Fundamental Rights

Severe deprivation of fundamental rights means a gross or blatant denial on discriminatory

grounds of a fundamental right, laid down in international customary or treaty law reaching

the same level of gravity as other crimes against humanity.157 Such discriminatory grounds of

fundamental rights are listed in the other elements and also this deprivation must occur by the

other acts connected to the other crimes.

The Kordic and CerkezCase explainedthe crime of persecution within the scope of this

element as follows:

“… these acts must constitute a denial of or infringement upon a fundamental right laid down

in international customary or treaty law; not every act, if committed with the requisite

discriminatory intent, amounts to persecutions as a crime against humanity”158

As to this element of the crime, the international human rights treaties that Libya signed must

be assessed. Accordingly, following treaties are listed:159

International Covenant on Economic, Social and Cultural Rights

International Covenant on Civil and Political Rights

Optional Protocol to the International Covenant on Civil and Political Rights

International Convention on the Elimination of All Forms of Racial Discrimination

Convention on the Elimination of All Forms of Discrimination against Women

Optional Protocol to the Convention on the Elimination of Discrimination against Women

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes

Against Humanity 154Ibid 155Ibid 156Ibid 157Kupreskic, ICTY, Trial Chamber II, 14.1.2000, para 621 158Jennifer Trahan. (2006). Crimes Against Humanity (Article 5).Genocide, War Crimes, and Crimes Against Humanity: A Topical Digest of the Case Law of the International Criminal Tribunal for the Former Yugoslavia. New York, USA: Human Rights Watch (Organization). 269. 159University of Minnesota Human Rights Library.Ratification of International Human Rights Treaties - Libya. Available: http://www1.umn.edu/humanrts/research/ratification-libya.html. Last accessed 28th Nov 2013.

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Convention on the Prevention and Punishment of the Crime of Genocide

International Convention Against the Taking of Hostages

2. The Perpetrator Targeted Such Person or Persons by Reason of the Identity ofa

Group or Collectivityor Targeted the Group or Collectivity as Such

The perpetration of this crime grounds on discrimination. Basically, the perpetrator commits a

crime provided in Article 7, on ground of discrimination. The Trial Chamber of the ICTY for

the case Naletilić and Martinovićunderlined that such targeted group, which may be

subjectively defined, and the relevant paragraphs are followed:

“The targeted group must be interpreted broadly, and may, in particular, include such

persons who are defined by the perpetrator as belonging to the victim group due to their close

affiliations or sympathies for the victim group…[T]his interpretation is consistent with the

underlying ratio of the provision prohibiting persecution, as it is the perpetrator who defines

the victim group while the targeted victims have no influence on the definition of their status.

The Chamber finds that in such cases, a factual discrimination is given as the victims are

discriminated in fact for who or what they are on the basis of the perception of the

perpetrator”160

3. Such Targeting Was Based on Political, Racial, National, Ethnic, Cultural, Religious

orGender Grounds as Defined in Article 7, Paragraph 3, of the Statute, or Other

Grounds Universally Recognized as Impermissible under International Law

The fundamental feature of persecution is that it has to be committed on discriminatory

grounds. Such prohibited grounds are enumerated in an inclusive list in the Statute and also

universal rules are to be added that list, despite of that they are not mentioned in the Statute.161

In this list, the grounds are on political, racial, national, ethnic cultural, religious and

gender.162

4. The Conduct Was Committed in Connection With Any Act Referred to in Article 7,

Paragraph 1, of the Statute or Any Crime withinthe Jurisdiction of the Court

Another element of persecution provides the connection between the acted behaviour and the

other crimes listed in the Article 7 and thisArticle enumerated the list of acts constituting

160Naletilić and Martinović, Trial Chamber, 31 March 2003, para. 636 161Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002 (ICC-ASP/1/3 and Corr.1) 162Ibid

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crimes against humanity. The acts in this list are murder, extermination, enslavement,

deportation or forcible transfer of population, imprisonment or other severe deprivation of

physical liberty in violation of fundamental rules of international law, torture, rape, sexual

slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of

sexual violence of comparable gravity, enforced disappearance of persons, the crime of

apartheid and other inhumane acts of a similar character intentionally causing great suffering,

or serious injury to body or to mental or physical health.163The connection between the

conduct and any act referred to in Article 7 must be established and the listed acts of the

Article must be committed. The Trial Chamber of BrdjaninCase underlines such connection

with the listed acts of crime against humanity provided in Article 5 of the ICTY Statute as:

“Not every act or omission denying a fundamental right is serious enough to constitute a

crime against humanity. While acts or omissions listed under other sub-paragraphs of Article

5 of the Statute are by definition serious enough, others (either listed under other Articles of

the Statute or not listed in the Statute at all) must meet an additional test. Such acts or

omissions must reach the same level of gravity as the other crimes against humanity

enumerated in Article of the Statute. This test will only be met by gross or blatant denials of

fundamental rights”164

IV. INDIVIDUAL CRIMINAL RESPONSIBILITY

According to the principle of individual criminal responsibility, a person who commits a

crime is criminally liable and this person is the perpetrator of the crime.165 It is not taken into

account whether he does alone or jointly with other persons. Contrary to the domestic law, in

which the general aspect of a criminal is the primary perpetrator such as the person who pulls

the trigger, in international criminal law, the paradigmatic offender is often the person who

orders, masterminds, or takes part in a plan at a high level.166

In the present case, Saif Al-Gaddafi is accused of being responsible for the further

implementation of Muammer Gaddafi's the policy.167 According to the ICC Prosecutor's

163 Ibid 164Jennifer Trahan. (2006). Crimes Against Humanity (Article 5).Genocide, War Crimes, and Crimes Against Humanity: A Topical Digest of the Case Law of the International Criminal Tribunal for the Former Yugoslavia. New York, USA: Human Rights Watch (Organization). 266. 165RobetCryer, HakanFriman, Darryl Robinson, Elizabeth Wilmshurst (2010). An Introduction to International Criminal Law and Procedure. 2nd ed. New York, USA: Cambridge University Press. 361 166Ibid 167International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Saif Al-Islam Gaddafi, 2011, No. ICC-01/11

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application, Saif al-Islam Gaddafi exercised control over crucial parts of the State apparatus,

namely finances and logistics; therefore, he was regarded to have the powers of a “de facto”

prime minister. Hence, the Court issued warrants of arrest for Muammer Gaddafi, with his son

Saif Al-Islam and Al-Senussi who was the head of the Military Intelligence, over crimes

against humanity allegedly committed during the past regime.168The arrest warrants and the

modes of liability of these people are the key for the evaluation of the responsibility of the

accused persons.

A. ARREST WARRANT: CONTENT

Arrest Warrant was issued for Saif Al-Islam Gaddafi, since is considered as allegedly

criminally responsible as indirect co-perpetrator and Abdullah Al-Senussi is allegedly

criminally responsible as indirect perpetrator.169

B. INDIRECT PERPETRATION

The warrant of arrest contends that these conditions of indirect perpetrator's responsibility

could also be established for Abdullah Al-Senussi, since he was allegedly not the direct

committer but the one assigning for crime as the direct perpetrator.170

Abdullah Al-Senussi discharged the duty of the National Head of the Military Intelligence

which, as understood from the naming, was a significantly powerful as the state security

organ accountable for monitoring the military camps and has taken part in Libyan armed

forces to cause deaths and injuries of civilians.171

Abdullah Al-Senussi is an accused, also comprising the arraignment that he used the

hierarchy to ensure the commission of the abovementioned crimes committed by the Libyan

Security Forces.172It is claimed that Security Forces committed murder named within crimes

against humanity under the command of Abdullah Al-Senussi.173

He was supposedly responsible for the use of unlawful force to crush the uprising as the

highest person in charge of the Security Forces.174Moreover it is known that he was present in

168 Ibid 169International Criminal Court. (2013). Libya. Last accessed 29th Nov 2013.Available: http://www.icc-cpi.int/EN_Menus/ICC/Situations%20and%20Cases/Situations/ICC0111/Pages/situation%20index.aspx> 170International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Abdullah Al Senussi Gaddafi, 2011, No. ICC-01/11 171 Ibid 172 Ibid 173 Ibid 174 Ibid

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the inner circle of Gaddafi,175 which was allegedly formed to implement policies to repress

the anti-regime protests; according to the ICC Prosecutor’s application.176 It is claimed that

his involvement in the plan to deter and quell civilian demonstrations against the regime in

Benghazi by the use of military forces, is the basic factor for the criminal responsibility.177

C. INDIRECT CO-PERPETRATION

1. In General

If more than one person commits a crime and these persons perform the same act, these are

co-perpetrators of the same crime. These perpetrators may get involved in a certain identical

plan or be active on the same policy by fulfilling the subjective and objective elements. The

Pre-Trial Chamber of the LubangaDyiloCaseexplains the co-perpetration as:

“The concept of co-perpetration is originally rooted in the idea that when the sum of the

coordinated individual contributions of a plurality of persons results in the realization of all

the objective elements of a crime, any person making a contribution can be held vicariously

responsible for the contributions of all the others and, as a result, can be considered as a

principle to the whole crime.”178

Indirect co-perpetrator means a perpetrator committed crime through another person and this

person “must be aware of the character of their organizations, their authority within the

organization, and the factual circumstances enabling near automatic compliance with their

orders”179

The warrant argues that Saif Al-Islam is not the direct perpetrator, but an indirect one since

physical perpetrators of the crimes named are the Security Forces who severely deprived the

civilian population of its fundamental rights with their being a political opposition as the

warrant.180Saif Al-Islam Gaddafi is accused of being an indirect co-perpetrator, which means

he was involved in a policy in which the Libyan Security Forces committed the

abovementioned crimes.181The warrant of arrest clearly considers the term ''State Policy'' to

175 Ibid 176 Ibid 177 "Inside Gaddafi's Inner Circle." Al Jazeera-English. Al Jazeera-Africa, 27 February 2011. Web. 12 Aug 2013. <http://www.aljazeera.com/news/africa/2011/02/2011227192852808945.html>. 178See Pre-Trial Chamber I, Lubanga decision, ICC-01/04-01/06-803-tEN, paras 37 to 39; Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717-tEN, para. 326 179RobetCryer, HakanFriman, Darryl Robinson, Elizabeth Wilmshurst (2010). An Introduction to International Criminal Law and Procedure. 2nd ed. New York, USA: Cambridge University Press. 36 180Ibid 181International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Saif Al-Islam Gaddafi, 2011, No.

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clarify his involvement to the crimes.182 The reason is that the State Policy, at that time, was

allegedly aimed at deterring and quelling by the use of lethal force183 and other unlawful uses

of force that the Statute absolutely prohibits.184Secondly, he was allegedly Muammer

Gaddafi's unspoken successor185 as one of the most influential characters and186 Thirdly,

Article 25(3)(a) provides another element, "common plan'' to be deemed in the scope of co-

perpetration. It is claimed that Saif Al-Gaddafi contributed to the implementation of the plan

in which essential tasks were accounted for the commission of the foregoing crimes and that

his contribution was essential for the realization of the plan.187

2. Subjective and Objective Elements

This type of responsibility divides into two main elements: subjective and objective elements.

First objective element is the existence of an agreement or common plan between two or more

persons that, if implemented, will result in the commission of the crime.188Second objective

element is that the accused provided essential contribution to the common plan that resulted in

the commission of the relevant crime.189Third objective element is the existence of the

common plan or agreement between co-perpetrators can be inferred from circumstantial

evidence.190

Subjective elements are enumerated: First element is that the accused meant to engage in the

relevant conduct and meant to cause the crime, or he was aware that, by implementing the

common plan, crime would occur in the ordinary course of events.191 Second element is that

he provided an essential contribution to the implementation of the common plan; in other

words, factual circumstances enabling him to jointly control a crime, including preventing

them.192

ICC-01/11 182 Ibid 183 Ibid 184 Ibid 185International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Saif Al-Islam Gaddafi, 2011, No. ICC-01/11 186 Ibid 187 Ibid 188International Criminal Court,Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, No. ICC-01/05-01/08, 2009.paras.1134-1136 189 Ibid paras. 1006, 1137-1169, 1263-1272 190 Ibid para. 988 191 Ibid para. 1018 192 Ibid para. 101

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D. DEFENCE ARGUMENTS

1. In General

The Statute uses the term “grounds for excluding criminal responsibility” to provide certain

legal grounds for the defencewith regards to the exclusion of criminal

responsibility.193Several legal grounds, such as “immunity”, “youth” or “limitation

periods”,are considered as separate matters.194This is also not related to the mitigating factors,

which are provided in the other provisions of the Statute, are not linked to the responsibility,

but sentencing.195

Finally, pursuant to Article 31 of the Rome Statute, the applicable grounds or defences to

international crimes are set out as “insanity”, “intoxication”, “self-defence”, “duress” and

“necessity”. In the following sectionsthe specific grounds will be explained in brief.

Furthermore, the Article 31 also provides the other defences that are not listed in the Statute

but referred to the other resources, such as the other applicable treaties, customary law,with

regards to the hierarchy of sources provided in the Article 21.196 This provision is followed as:

“At trial, the Court may consider a ground for excluding criminal responsibility other than

those referred to in Paragraph 1 where such a ground is derived from applicable law as set

forth in Article 21.”197

2. Mental Incapacity

In the scope of mental incapacity, insanity is provided in Article 31(1)(a) and will be applied

in three circumstances of person who (1) is not able to understand the nature of his or her

behaviour, (2) is incapable of understanding the lawfulness of his or her conduct and (3)

understands the nature and wrongfulness of the conduct, but is unable, because of mental

illness, to stop from acting as he or she did.198The Article 31(1)(a) follows as:

193UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 24 November 2013] 194RobetCryer, HakanFriman, Darryl Robinson, Elizabeth Wilmshurst (2010). An Introduction to International Criminal Law and Procedure. 2nd ed. New York, USA: Cambridge University Press. 402 195Ibid 196Ibid 197UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 24 November 2013] 198RobetCryer, HakanFriman, Darryl Robinson, Elizabeth Wilmshurst (2010). An Introduction to International Criminal Law and Procedure. 2nd ed. New York, USA: Cambridge University Press. 406-7

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“The person suffers from a mental disease or defect that destroys that person’s capacity to

appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her

conduct to conform to the requirements of law”

3. Intoxication

It is defined in the Article 31(1)(b) as follows:

“The person is in a state of intoxication that destroys that person’s capacity to appreciate the

unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to

conform to the requirements of law, unless the person has become voluntarily intoxicated

under such circumstances that the person knew, or disregarded the risk, that, as a result of

the intoxication, he or she was likely to engage in conduct constituting a crime within the

jurisdiction of the Court”;199

The Article should be evaluated whether it is voluntary intoxication or whether it destroys the

capacity.200Such evaluation must be present in order to be a defence argument.201

4. Self Defence, Defence of others and of property

This ground is provided in the Statute as follow:

“The person acts reasonably to defend himself or herself or another person or, in the case of

war crimes, property which is essential for the survival of the person or another person or

property which is essential for accomplishing a military mission, against an imminent and

unlawful use of force in a manner proportionate to the degree of danger to the person or the

other person or property protected. The fact that the person was involved in a defensive

operation conducted by forces shall not in itself constitute a ground for excluding criminal

responsibility under this subparagraph.”

According to this clause, the criminal responsibility provides an exclusion of responsibility on

account of reasonable defence of self, another or property that is “essential for the survival of

the person or property which is essential for accomplishing a military mission”.202The

defence needs to be against “an imminent and unlawful use of force”and should claim that

199UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: http://www.refworld.org/docid/3ae6b3a84.html [accessed 24 November 2013] 200RobetCryer, HakanFriman, Darryl Robinson, Elizabeth Wilmshurst (2010). An Introduction to International Criminal Law and Procedure. 2nd ed. New York, USA: Cambridge University Press. 406-7 201Ibid 202Ibid p.409-410

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this would be “proportionate to the degree of danger”in accordance with the Article 31.This

“proportion”must be reasonable to resort to force.203 In other words, “the level of force must

be proportionate to the degree of danger faced”.204Although there is no specific scientific test

to set down the proportionality, “such considerations as the nature of the weapon, and so

forth, have to be considered”.205

In this context, lawful means the lack of right to defend against someone who is acting

lawfully and it should be noted that the difference between the one who strikes the first below

and the one responds.206

5. Duress and Necessity

Duress and necessity are provided in Article 31(1)(d) as follows:

“The conduct which is alleged to constitute a crime within the jurisdiction of the Court has

been caused by duress resulting from a threat of imminent death or of continuing or imminent

serious bodily harm against that person or another person, and the person acts necessarily

and reasonably to avoid this threat, provided that the person does not intend to cause a

greater harm than the one sought to be avoided. Such a threat may either be:

(i) Made by other persons; or

(ii) Constituted by other circumstances beyond that person’s control.”

There must be a ‘serious harm’; otherwise, such as blackmail cannotbe a defence argument

within this context.

It was stated in ErdemovicCase that “Duress does not afford a complete defence to a soldier

charged with a crime against humanity and/or war crime involving the killing of ‘innocent

persons’”and also stated that“soldiers should exercise fortitude and more resistance to

threats than civilians”.207

E. CONCLUSION

In the light of the situation that led the Office of the Prosecutor to commence the international

criminal law procedure; Saif Al-Gaddafi and Abdullah Al-Senussi are allegedly responsible

under Article 25(3)(a) for two counts of crime against humanity. The case is now in the hands

203Ibid 204Ibid 205Ibid 206Ibid 207ErdemovicICTY Appeals Chamber 7.10.1997. IT-96-22-T para 80-88.

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of the Pre-Trial Chamber to determine the substantial grounds to verify that these persons are

criminally responsible in the light of the evidence presented.

In this case, first the contextual elements of the crime against humanity need to be assessed

with an emphasis on the condition of the victims of the alleged crimes. Secondly, the statuses

of accused persons, Saif Al-Gaddafi and Abdullah Al-Senussi, need to be considered before

the Court with a focus on their indirect perpetration or co-perpetration. After having

considered all these issues, the responsibility of these accused persons, because of their

alleged actions which are claimed to constitute crimes against humanity, must be thoroughly

evaluated. These phases must be achieved within the competence of the Pre-Trial Chamber in

the Confirmation of Charges Hearing.

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BIBLIOGRAPHY

"Inside Gaddafi's Inner Circle." Al Jazeera-English. Al Jazeera-Africa, 27 February 2011.

Web. 12 Aug 2013.

http://www.aljazeera.com/news/africa/2011/02/2011227192852808945.html

"International Criminal Court, Pre-Trial Chamber I rejects Libyan challenge to the

admissibility of the case against Saif Al Islam Gaddafi." International Criminal Court, 31 May

2013. Web. 12 Aug 2013. http://www.icc-cpi.int/en_menus/icc/press and media/press

releases/Pages/pr911.asp&xgt

"Interpol issues arrest warrant for Muammar Gaddafi." REUTERS, 9 September 2011. Web.

12 Aug 2013. http://www.reuters.com/article/2011/09/09/us-libya-gaddafi-interpol-

idUSTRE7882D220110909

"Libya: UN Security Council votes sanctions on Gaddafi." BBC News Africa. 27 FEBRUARY

2011. Web. 12 Aug 2013. http://www.bbc.co.uk/news/world-africa-12589434

"UN unanimously backs Gaddafi sanctions." Financial Times, 26 FEBRUARY 2011. Web. 12

Aug 2013. http://www.ft.com/intl/cms/s/0/cf73de4e-40c2-11e0-9a37-00144feabdc0.html

"War crimes court issues Gaddafi arrest warrant." The Guardian, 27 Jun 2011. Web. 12 Aug

2013. http://www.theguardian.com/world/2011/jun/27/muammar-gaddafi-arrest-warrant-

hague

AkayesuICTR Trial Chamber I, 2.9.1998 para. 580.

Antonio Cassese (2003). International Criminal Law. Oxford: Oxford University Press p.348

As summarized in ICTY, Prosecutor v Kunarac et al, Case No. IT-96-23 & IT-96-23/1-A,

"Trial Judgment", 22 February 2001, para. 425

BBC News. (2011). Libya: US, UK and France attack Gaddafi forces. Last accessed 26th

Nov 2013.Available at: http://www.bbc.co.uk/news/world-africa-12796972

BBC News. (2011). Nato chief Rasmussen 'proud' as Libya mission ends. Last accessed 26th

Nov 2013. Available at: http://www.bbc.co.uk/news/world-africa-15516795

BlaskicICTY Trial Chamber 3.3.2000 para. 203.

CITED IN Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws

Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N.

Resolution 1973. PHOENIX LAW REVIEW. 6:93.P.98

ICC / Study Guide

42

CNN. (2011). Gadhafi intelligence chief captured, Libyan officials say.Available:

http://edition.cnn.com/2011/11/20/world/africa/libya-arrest/index.html?hpt=hp_t2. Last

accessed 10 Dec 2013.

CNN. (2011). Gadhafi intelligence chief captured, Libyan officials say.Available:

http://edition.cnn.com/2011/11/20/world/africa/libya-arrest/index.html?hpt=hp_t2. Last

accessed 10 Dec 2013.

CNN. (2011). http://edition.cnn.com/2011/10/20/world/africa/gadhafi-2011-timeline/.Last

accessed 26th Nov 2013Available: http://edition.cnn.com/2011/10/20/world/africa/gadhafi-

2011-timeline/>

Convention (II) with Respect to the Laws and Customs of War on Land and its Annex:

Regulations Concerning the Laws and Customs of War on Land, art. 1, 2, July 29 1899.

CITED IN Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws

Of War: A Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N.

Resolution 1973. PHOENIX LAW REVIEW. 6:93 p.109

Convention (IV) Relative to the Protection of Civilian Persons in Time of War, art. 2, Aug.

12, 1949, 75 U.N.T.S. 287

Dr. Dominic Hoerauf. (2012). The Status Of The Libyan Rebels Under The Laws Of War: A

Litmus Test For The Lawfulness Of Nato's Libyan Engagement Under U.N. Resolution 1973.

PHOENIX LAW REVIEW. 6:93. p.94

Elements of Crimes, Introduction to article 7 of the Statute, para.3

ErdemovicICTY Appeals Chamber 7.10.1997. IT-96-22-T para 80-88.

Financial Times. (2011). UN unanimously backs Gaddafi sanctions.Last accessed 26th Nov

2013 Available at: http://www.ft.com/intl/cms/s/0/cf73de4e-40c2-11e0-9a37-

00144feabdc0.html#axzz2lWcHfGXZ.>

Frits Kalshoven and LiesbethZegveld. (2001). An Introduction to International Humanitarian

Law. In: CONSTRAINTS ON THE WAGING OF WAR. 3rd ed. Geneva: International

Committee of the Red Cross. 101

Gabor Rona, An Appraisalof U.S. PracticeRelating to 'Enemy Combatants',10 Y.B. INT'L

The Guardian,(2011), ‘Libya on brink as protests hit Tripoli’, Guardian (Feb. 21, 2011),

http://www.theguardian.com/world/2011/feb/20/libya-defiant-protesters-feared-dead

ICC / Study Guide

43

Human Rights Watch. (2011). World Report 2011: Libya. Last accessed 26th Nov

2013.Available: http://www.hrw.org/sites/default/files/related_material/libya_1.pdf>

ICRC. (1949). Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12

August 1949last accessed 26th Nov 2013. Available:

http://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?viewComments=LookUpCOMART&arti

cleUNID=2F681B08868538C2C12563CD0051AA8D>

ICTR, Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717-tEN, para. 326

ICTR, Pre-Trial Chamber I, Lubanga decision, ICC-01/04-01/06-803-tEN, paras 37 to 39

ICTR, The Prosecutor v. Akayesu, Case No.ICTR-96-40-T, "Trial Judgment", 2 September

1998, para. 580.

ICTY, Prosecutor v. Hadzihasanovic, Case No. IT-01-47-PT, Judgment, 1 1352 .Nov. 12,

2002.

ICTY, Prosecutor v Blaskic, Case No.IT-95-14-T, "Trial Judgment", 3 March 2000, para. 206;

ICTY, Prosecutor v Kordic and Cerkez, Case No. IT-95-14/2-A, "Appeals Chamber

Judgment", 17 December 2004, para. 94.

ICTY, Prosecutor v. Tadic, Opinion and Judgement, 1997, para.648.

International Committee of the Red Cross. (2003). Direct Participation in Hostilities under

International Humanitarian Law. Last accessed 26th Nov 2013. Available:

http://www.icrc.org/ara/assets/files/other/direct_participation_in_hostilities_sept_2003_eng.p

df>

International Criminal Court, Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717-

tEN, para. 65.

International Criminal Court, Pre-Trial Chamber I, Lubanga decision, ICC-01/04-01/06-803-

tEN, paras 37 to 39;

International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Muammer Abu

Minyar Gaddafi, 2011, No. ICC-01/11

International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Abdullah Al-Senussi,

2011, No. ICC-01/11

International Criminal Court, Pre-Trial Chamber I, Warrant of Arrest for Saif Al-Islam

Gaddafi, 2011, No. ICC-01/11

ICC / Study Guide

44

International Criminal Court,Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and

(b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo,

No. ICC-01/05-01/08, 2009, para.28-33

International Criminal Court, Pre-Trial Chamber, Decision Pursuant to Article 61(7)(a) and

(b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo,

International Criminal Court, 2009, para.80

International Criminal Court. (2013). About the Court. Last accessed 26th Nov 2013,

Available: http://www.icc-

cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx>

International Criminal Court. (2013). Libya. Last accessed 29th Nov 2013.Available:

http://www.icc-

cpi.int/EN_Menus/ICC/Situations%20and%20Cases/Situations/ICC0111/Pages/situation%20i

ndex.aspx>

International Criminal Court. (2013). Pre-Trial Division. Last accessed 24th Nov 2013.

Available: http://www.icc-

cpi.int/en_menus/icc/structure%20of%20the%20court/chambers/pre%20trial%20division/Pag

es/pre%20trial%20division.aspx.

International Criminal Court. (2013). Summary of the Decision on the admissibility of the case

against Mr. Gaddafi. Last accessed 26th Nov 2013.Available: http://www.icc-

cpi.int/en_menus/icc/situations%20and%20cases/situations/icc0111/related%20cases/icc0111

0111/Documents/Summary-of-the-Decision-on-the-admissibility-of-the-case-against-Mr-

Gaddafi.pdf>

International Criminal Court. (2013). Trial Division.Available: http://www.icc-

cpi.int/en_menus/icc/structure%20of%20the%20court/chambers/trial%20division/Pages/trial

%20division.aspx>

Jennifer Trahan. (2006). Crimes Against Humanity (Article 5).Genocide, War Crimes, and

Crimes Against Humanity: A Topical Digest of the Case Law of the International Criminal

Tribunal for the Former Yugoslavia. New York, USA: Human Rights Watch (Organization).

P. 269

John G. Browning. (2013). Democracy Unplugged: Social Media, Regime Change, And

Governmental Response In the Arab Spring. Michigan State International Law Review.21 (1),

ICC / Study Guide

45

63-83.

KayishemaICTR Trial Chamber. II 21.05.1999 para.122

Kenneth Watkin. (2005). Warriors Without Rights?Combatants, Unprivileged Belligerents,

and the Struggle Over Legitimacy.OCCASIONAL PAPER SERIES. 2 p. 29-30

Kupreskic, ICTY, Trial Chamber II, 14.1.2000, para 621

LibyanArabJamahiriya:Ratifications/Accessions,INT'L COMM. RED CROSS, Last

Accessed: 26 November 2013Available at: http://www.

icrc.org/ihl.nsf/Pays?ReadForm&c=LY

Marco Sassoli&AntoeA. Bouvier Et Al., Vol. I, How Does Law Protect In War,2d. Ed. 2003

p.143

Michael Bothe, Karl Josef Partsch, Waldemar A. Solf (1982). New Rules for Victims of Armed

Conflict: MartinusNijhoff Publishers. P. 1-80

Nahimana ICTR AC, 28.11.2007, para 920. Al Bashir arrest warrant case ICC PTCI, 4.4.2009

para. 81

Naletilić and Martinović, Trial Chamber, 31 March 2003, para. 636

National Transitional Council-Libya.(2011).Available: http://ntclibya.org/english/about/. Last

accessed 26th Nov 2013.

Official Records of the Assembly of States Parties to the Rome Statute of the International

Criminal Court, First session, New York, 3-10 September 2002 (ICC-ASP/1/3 and Corr.1)

Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717, para. 396

Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717, paras 395 and 398;

Prosecutor v. Hadzihasanovic, Case No.IT-01-47-PT, Judgment, 1 1352 (Int'l Crim. Trib. for

the Former Yugoslavia Nov. 12, 2002).

R. Dixon in: O. Triffterer (ed.), Commentary on the Rome Statute of the International

Criminal Court - Observer's Notes, Article by Article (NomosVerlag, 2nd ed., 2008), p. 175.

Reuters. (2011). Russia joins Western chorus for Gaddafi to go.Available:

http://www.reuters.com/article/2011/05/27/us-libya-idUSTRE7270JP20110527. Last accessed

26th Nov 2013

RobetCryer, HakanFriman, Darryl Robinson, Elizabeth Wilmshurst (2010). An Introduction

ICC / Study Guide

46

to International Criminal Law and Procedure. 2nd ed. New York, USA: Cambridge

University Press p. 241

S.C.Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011)

The Guardian. (2010). Tunisian president vows to punish rioters after worst unrest in a

decade. Last accessed 26th Nov 2013.Available:

http://www.theguardian.com/world/2010/dec/29/tunisian-president-vows-punish-rioters.>

The Guardian. (2011). Libyan protesters clash with police in Benghazi. . Last accessed 26th

Nov 2013.Available: http://www.theguardian.com/world/2011/feb/16/libyan-protesters-clash-

with-police>

The Guardian. (2011). Muammar Gaddafi condemns Tunisia uprising. Last accessed 26th

Nov 2013.Available: http://www.theguardian.com/world/2011/jan/16/muammar-gaddafi-

condemns-tunisia-uprising.>

The Guardian. (2012). Arab spring: an interactive timeline of Middle East protests. Last

accessed 1st Nov 2013.Available:

http://www.theguardian.com/world/interactive/2011/mar/22/middle-east-protest-interactive-

timeline.>

UN General Assembly, Rome Statute of the International Criminal Court (last amended

2010), 17 July 1998, ISBN No. 92-9227-227-6, Last accessed 24 November 2013. Available

at: http://www.refworld.org/docid/3ae6b3a84.html>

UN News Centre. (2011). Security Council authorizes ‘all necessary measures’ to protect

civilians in Libya. Last accessed 26th Nov 2013.Available:

http://www.un.org/apps/news/story.asp?NewsID=37808&Cr=libya&Cr1=#.UhTSXe36-fQ.>