court: icc

doctype: arrest-warrant

identifier: ICC-01/11-01/13 (Warrant of Arrest for Al-Tuhamy Mohamed Khaled with under seal and ex parte Annex)

caseName: None (Situation only)

chamber: Pre-Trial Chamber I

decisionType: arrest-warrant

publisher: International Criminal Court

text: Rome Statute, article 13

text: the Statute, article 19

text: the Statute, article 25

text: the Statute, article 28

text: the Statute, article 58

text: the Statute, article 7

text: the Statute, article 8

text: the Statute, article 87

text: the Statute, article 89

text: the Statute, article 91

text: the Statute, article 92

text: Cour Pénale / ^ ^ _ ^ \ Internationale

type: stycke

text: imi

text: International ^ ^ Criminal Court

text: Original: English No.: ICC-01/11-01/13 Date: 18 April 2013

text: PRE-TRIAL CHAMBER I

type: rubrik

text: Before: Judge Silvia Fernandez de Gurmendi, Presiding Judge Judge Hans-Peter Kaul Judge Christine Van den Wyngaert

text: SITUATION IN LIBYA IN THE CASE OF THE PROSECUTOR v. AL-TUHAMY MOHAMED KHALED

text: URGENT

text: Under Seal t x farte I'rosecutor Unly

text: No. ICC-01/11-01/13 1/8 18 April 2013

text: To be notified, in accordance with Regulation 31 of the Regulations of the Court, to: The Office of the Prosecutor Counsel for the Defence Fatou Bensouda James Stewart Legal Representatives of Victims Legal Representatives of Applicants Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

text: States Representatives Amicus Curiae

text: REGISTRY Registrar Deputy Registrar Herman von Hebel Victims and Witnesses Unit Detention Section Victims Participation and Reparations Others Section

text: No. ICC-01/11-01/13 2/8 18 April 2013

text: Pre-Trial Chamber I ("the Chamber") of the Intemational Criminal Court hereby issues a warrant of arrest for Al-Tuhamy Mohamed Khaled ("Al- Tuhamy").! 1. On 26 February 2011, the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, unanimously adopted Resolution 1970, referring the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the Court, in accordance with

text: article 13

text: (b) of the

text: Rome Statute

text: ("Statute") and urging all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.2

text: On 27 March 2013, the Prosecutor filed the "Prosecutor's Urgent Application Pursuant to Article 58 as to Al-Tuhamy Mohamed Khaled" (the "Application"), requesting the issuance of a warrant of arrest for Al-Tuhamy for his alleged criminal responsibility under

text: articles 25

text: (3)(a) or (d), or 28(b) of

text: the Statute

text: for the crimes against humanity of imprisonment, torture, persecution, and other inhumane acts committed in Libya from 15 February 2011 until 24 August 2011, in violation of

text: articles 7

text: (l)(e), (f), (h), and (k) of

text: the Statute

text: and the war crimes of torture, cruel treatment and outrages upon personal dignity committed in Libya from 24 February 2011 to 24 August l u l l , in viuiaciuii ui ardeieb o(l)yL){^L) aiid O{^^)(L)(LL) UL ciie ocaLUce. 3. The Chamber notes

text: articles 19

text: and

text: of

text: the Statute

text: . 4. The Chamber considers that, on the basis of the evidence submitted and without prejudice to its determination of any future challenge to the admissibility of the case under

text: article 19

text: (2)(a) and (b) of

text: the Statute

text: , the case against Al-Tuhamy falls within the jurisdiction of the Court and no ostensible ^ Alternative romanised spellings of his name include Al-Touhami Khalid, Al-Tohamy Khaled, Tourhi Kalid, Touhami Khalid, Touhamy Khaled. ' S/RES/1970 (2011). No. ICC-01/11-01/13 3/8 18 April 2013 cause or self-evident factor impels the Chamber to exercise its discretionary power to determine the admissibility of the case against Al-Tuhamy at this stage. 5. The Chamber finds that the evidence establishes reasonable grounds to believe that between 15 February and 24 August 2011, in furtherance of a policy designed by the Libyan State to quash the political opposition to the Gaddafi regime by any means, including lethal force and by arresting, detaining, torturing and abusing perceived political opponents to the Gaddafi regime, an attack within the meaning of

text: article 7

text: (1) of

text: the Statute

text: was carried out by the Libyan military, intelligence and security agencies (the "Security Forces") against the civilian population, including by arresting, detaining and mistreating perceived opponents of the Gaddafi regime. In addition, the Chamber finds reasonable grounds to believe that the attack was widespread, given the number of victims and its geographical scope as well as systematic, given that the Security Forces acted in accordance to a pattern by regularly identifying, tracing, locating, arresting and mistreating perceived opponents of the Gaddafi regime. 6. The Chamber finds that the evidence also establishes reasonable grounds to believe that a non-international armed conflict between governmental l u i c e b a i i d r e u e i i u r e e b e x i b i e d Ü U Ü I a i ieat>L e a r l y I v l a r c i i l u i i LU Z 4 A u g u ^ L 2011. 7. The Chamber finds reasonable grounds to believe that, between 15 February 2011 and 24 August 2011, members of the Internal Security Agency (the "ISA") and of other Security Forces arrested and detained persons perceived to be opponents of the Gaddafi regime, who were subjected to various forms of mistreatment, including severe beatings, electrocution, acts of sexual violence and rape, solitary confinement, deprivation of food and

text: No. ICC-01/11-01/13 4/8 18 April 2013 water, inhumane conditions of detention, mock executions, threats of killing and rape in various locations throughout Libya including Zawiya, Tripoli, Tajoura, Misratah, Sirte, Benghazi and Tawergha. 8. The Chamber finds reasonable grounds to believe that these acts constitute the crimes against humanity of imprisonment under

text: article 7

text: (l)(e) of

text: the Statute

text: , torture under

text: article 7

text: (l)(f) of

text: the Statute

text: , other inhumane acts under

text: article 7

text: (l)(k) of

text: the Statute

text: and persecution under

text: article 7

text: (l)(h) of

text: the Statute

text: from 15 February 2011 until 24 August 2011. 9. Further, the Chamber finds that there are reasonable grounds to believe that these acts were committed in the context of the above-mentioned widespread and systematic attack against the civilian population, within the meaning of

text: article 7

text: (1) of

text: the Statute

text: . 10. The Chamber moreover finds reasonable grounds to believe that the abovementioned acts committed by members of the ISA and of other Security Forces constitute the war crimes of torture under

text: article 8

text: (2)(c)(i) of

text: the Statute

text: , cruel treatment under

text: article 8

text: (2)(c)(i) of

text: the Statute

text: and outrages upon personal dignity under

text: article 8

text: (2)(c)(ii) of

text: the Statute

text: from at least early March 2011 to 24 August 2011 and that these acts were committed in the context of and were associated with an armed conflict not of an international character, within the meaning of

text: article 8

text: of

text: the Statute

text: . 11. The Chamber finds that the evidence establishes reasonable grounds to believe that Al-Tuhamy was the head of the ISA from at least 15 February 2011 until 24 August 2011 and that, in his capacity, Al-Tuhamy had the authority to implement Gaddafi's orders to arrest, detain, conduct raids, conduct surveillance, investigate, monitor and torture politicai prisoners. The Chamber finds reasonable grounds to believe that Al-Tuhamy, in his capacity

text: No. ICC-01/11-01/13 5/8 18 April 2013 as the head of the ISA, was in charge of all 33 ISA sub-agencies located on the Libyan territory and that the members of the ISA were his subordinates. 12. The Chamber further finds reasonable grounds to believe that in his capacity as the head of the ISA, Al-Tuhamy bears criminal responsibility for: (i) his participation or contribution to the commission of the crimes set out in this Warrant of Arrest from 15 February 2011 until 24 August 2011, within the meaning of

text: article 25

text: (3)(a) and (d) of

text: the Statute

text: ; or (ii) as a superior, for the commission of the crimes set out in this Warrant of Arrest from 15 February 2011 until 24 August 2011 by his subordinates under his effective authority and control, within the meaning of

text: article 28

text: (b) of

text: the Statute

text: . 13. Finally, pursuant to

text: article 58

text: (l)(b)(i), the Chamber is satisfied that the arrest of Mr Al-Tuhamy appears necessary to ensure his appearance at trial, in light of the nature of Al-Tuhamy's former position as the head of an intelligence agency, the contacts, knowledge and resources available to him, including his alleged possession of at least 10 different passports, some issued under other identities.

text: FOR THESE REASONS, THE CHAMBER HEREBY ISSUES a warrant of arrest against Al-Tuhamy Mohamed Khaled, a Libyan national, born in 1942 in the Janzour area of Libya, west of Tripoli, former Lieutenant General of the Libyan army and former head of the Libyan Intemal Security Agency, for his alleged criminal responsibility pursuant to

text: article 25

text: (3)(a) and (d) and

text: article 28

text: (b) of

text: the Statute

text: for the crimes against humanity of imprisonment under

text: article 7

text: (l)(e) of

text: the Statute

text: ; torture under

text: article 7

text: (1 )(f) of

text: the Statute

text: ; other inhumane acts under

text: article 7

text: (1 )(k) of the

text: No. ICC-01/11-01/13 6/8 18 April 2013

text: Statute and persecution under

text: article 7

text: (1 )(h) of

text: the Statute

text: committed in the territory of Libya from 15 February 2011 to 24 August 2011; as well as for the war crimes of torture under

text: article 8

text: (2)(c)(i) of

text: the Statute

text: ; cruel treatment under

text: article 8

text: (2)(c)(i) of

text: the Statute

text: article 8

text: (2)(c)(ii) of

text: the Statute

text: committed in the territory of Libya from at least early March 2011 until 24 August 2011; DECIDES that the warrant of arrest is to remain under seal, ex parte Prosecutor and Registry only, but that, in order to effect the arrest and surrender of Mr Al-Tuhamy to the seat of the Court, it may be communicated as necessary to third parties, including any state or intemational organisations. The Chamber will consider the reclassification of the warrant of arrest in due course, upon the arrest and surrender of Al-Tuhamy to the Court; DECIDES that, as soon as practicable, the Registrar shall: (i) prepare a request for cooperation seeking the arrest and surrender of Al-Tuhamy Mohamed Khaled and containing the information and documents required by

text: articles 89

text: (1) and

text: of

text: the Statute

text: and by rule 187 of the Rules of Procedure and Evidence; and (ii) transmit, in consultation and coordination with the Prosecutor, the request to the competent authorities of Egypt in accordance wiLii r u l e iVo^l) UL Liie R u i e b u i r r u c e d u r e ai id E v i d e i i c e ; ai id ^iii; iiivÎLe Liie Egyptian authorities in accordance with

text: article 87

text: (5) of

text: the Statute

text: and resolution 1970 of the United Nations Security Council to cooperate with the Court for the purpose of executing the request for arrest and surrender of Al- Tuhamy;

text: REQUESTS the Egyptian authorities, pursuant to

text: article 87

text: (3) of

text: the Statute

text: , to keep this request and any document accompanying this request

text: No. ICC-01/11-01/13 7/8 18 April 2013 confidential, except to the extent that the disclosure is necessary for execution of the request. DIRECTS the Registrar, pursuant to

text: article 89

text: (3) and

text: of

text: the Statute

text: , to prepare and transmit to any relevant state, in consultation and coordination with the Prosecutor, any request for transit and provisional arrest which may be necessary for the surrender of Al-Tuhamy Mohamed Khaled; ORDERS the Prosecutor to transmit to the Registry, as far as her confidentiality obligations allow, and to the Chamber all information available to her that may be of assistance in the execution of the request for arrest and surrender as well as any information of relevance to assessing any risks to victims and witnesses associated with the transmission of the request for arrest and surrender; URGES the Registry to make all possible efforts for the immediate implementation of this warrant of arrest.

text: Done in both English and French, the English version being authoritative.

text: ÛI

text: Judge Silvia Fernandez de Gurmendi Presiding Judge /

text: ;M.. 4 ^

text: Dated this 18 April 2013 At The Hague, The Netherlands

text: No. ICC-01/11-01/13 8/8 18 April 2013

title: None (Situation only)

type: avgorande


identifier: ICC-01/11-01/17 (Second Warrant of Arrest)

caseName: The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli

title: Second Warrant of Arrest

text: the Statute, article 13

text: Rome Statute, article 15

text: the Statute, article 17

text: the Statute, article 19

text: the Statute, article 25

text: the Statute, article 30

text: Rome Statute, article 58

text: Rome Statute, article 61

text: the Statute, article 74

text: the Statute, article 8

text: the Statute, article 87

text: the Statute, article 89

text: the Statute, article 91

text: the Statute, article 92

text: while pointing to facts that suggested that the Government of Lybia may be unable to move to the case forward

text: Original: English No.: ICC-01/11-01/17 Date: 4 July 2018

text: PRE-TRIAL CHAMBER I

text: Before: Judge Péter Kovács, Presiding Judge

text: Judge Marc Perrin de Brichambaut Judge Reine Adélaïde Sophie Alapini-Gansou

text: SITUATION IN LIBYA

text: IN THE CASE OF THE PROSECUTOR v. MAHMOUD MUSTAFA BUSAYF

text: AL-WERFALLI

text: Public

text: Second Warrant of Arrest

text: No. ICC-01/11-01/17 1/20 4 July 2018

text: Warrant to be notified, in accordance with regulation 31 of the Regulations of the Court, to:

text: The Office of the Prosecutor Counsel for the Defence

text: Fatou Bensouda, Prosecutor James Stewart, Deputy Prosecutor

text: Legal Representatives of Victims Legal Representatives of Applicants

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

text: States Representative Others

text: REGISTRY

text: Registrar Counsel Support Section

text: Peter Lewis

text: Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Other Section

text: No. ICC-01/11-01/17 2/20 4 July 2018

text: PRE-TRIAL CHAMBER I (the “Chamber”) of the International Criminal Court (the “Court”) issues this warrant of arrest pursuant to

text: article 58

text: (1) of the

text: Rome Statute

text: (the “Statute”) for

text: Mahmoud Mustafa Busayf AL-WERFALLI

text: a Libyan national, born in 1978, belonging to the al-Sahibani family of the Werfalla tribe, son of Na’imah Ibrahim Mahmoud, reported to live at Square 8, Number 40 Qundulah Road in the Bu-Hadimah area of Benghazi, commander in the Al-Saiqa st Brigade, and graduate of the military college in Libya in Jamahiriya’s 41 graduation class, 1 September 2000, bearing the military service number 33568.

text: I. Procedural History

text: On 26 February 2011, the United Nations Security Council (the “Security Council”), acting under Chapter VII of the Charter of the United Nations, unanimously adopted Resolution 1970 and referred the situation in the Libyan Arab Jamahiriya (“Libya”) since 15 February 2011 to the Prosecutor of the Court, in accordance with

text: article 13

text: (b) of

text: the Statute

text: , urging all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor. 2. On 15 August 2017, the Chamber – in a previous composition – issued a warrant of arrest for Mr. Mahmoud Mustafa Busayf Al-Werfalli (“Mr. Al-Werfalli”) for his alleged criminal responsibility for the war crime of murder pursuant to

text: articles 8

text: (2)(c)(i) and 25(3)(a) and (b) of

text: the Statute

text: (the “First Warrant of Arrest”). The First Warrant of Arrest referred to seven incidents in which 33 persons were allegedly murdered, either directly by Mr. Al-Werfalli or upon his orders, from on or

text: 1 Alternative spellings of his last name include: “Al-Warfalli”, “Al-Warfilli”, “Al-Warfaly”, “Al-Warfally” and “Al-Werfali”. LBY-OTP-0053-1338 and translation LBY-OTP-0053-1476, at 1477. 2 S/RES/1970 (2011). No. ICC-01/11-01/17 3/20 4 July 2018 before 3 June 2016 until on or about 17 July 2017 in Benghazi or surrounding areas, in Libya.

text: On 16 March 2018, the Presidency recomposed the Chambers of this Court and assigned the situation in Libya to the Chamber in its present composition.

text: On 21 March 2018, the Judges of this Chamber issued a decision indicating that Judge Péter Kovács would act as Presiding Judge of the Chamber. 5. On 1 May 2018, the Prosecutor submitted, under seal, the “Prosecution’s request to amend the warrant of arrest for Mahmoud Mustafa Busayf AL-WERFALLI” (the “Request”) pursuant to

text: article 58

text: (6) of

text: the Statute

text: . The Prosecutor alleges that Mr. Al-Werfalli is responsible for an additional war crime of murder pursuant to

text: articles 8

text: (2)(c)(i) and 25(3)(a) of

text: the Statute

text: , committed on 24 January 2018 in Benghazi, Libya and requests the Chamber to amend the First Warrant of Arrest by adding this crime.

text: On 19 June 2018, the Chamber received, under seal, updated information from the Prosecutor.

text: II. Preliminary Remarks

text: The Chamber notes that the Prosecutor has requested the Chamber to amend the First Warrant of Arrest by adding murder as a war crime within the context of an eighth incident. After reviewing the Prosecutor’s allegations and the evidence submitted in support, the Chamber considers it appropriate to issue a second warrant of arrest pursuant to

text: article 58

text: (1) of

text: the Statute

text: to complement the First Warrant of Arrest, rather than amend it pursuant to

text: article 58

text: (6) of

text: the Statute

text: . The 3 Pre-Trial Chamber I, “Warrant of Arrest”,

text: , p. 16. The Presidency, “Decision assigning judges to divisions and recomposing Chambers”, ICC-01/11- 01/17-7, p. 9. 5 Pre-Trial Chamber I, “Decision on the Election of the Presiding Judge”, ICC-01/11-01/17-8-tENG. 6 ICC-01/11-01/17-9-US-Exp, paras 1, 10-11 and 69. 7 ICC-01/11-01/17-12-US-Exp. No. ICC-01/11-01/17 4/20 4 July 2018

text: Chamber will focus therefore on the facts underpinning this second warrant of arrest. It will however rely, at times, on findings made in the First Warrant of Arrest which may be necessary for the purposes of this second warrant of arrest.

text: III. Classification

text: Pursuant to regulation 23 bis(3) of the Regulations of the Court and considering the reasons provided by the Prosecutor in her Request, the Chamber is of the view that it may issue this warrant of arrest publicly. Where the Chamber has made reference to confidential information, it has kept such remarks to a minimum and has made them without endangering the interests concerned and without defeating the very purpose of confidentiality. The Chamber clarifies that this does not affect the classification of any evidence in the record of the case.

text: IV. Statement of Facts

text: In the First Warrant of Arrest, the Chamber found that there were reasonable grounds to believe that an armed conflict not of an international character had been ongoing on the territory of Libya, from at least early March 2011, between governmental forces and different organized armed groups or among various such armed groups. One of the groups involved in the conflict was the Al-Saiqa Brigade, where Mr. Al-Werfalli held the position of Axes Commander. Notably, the Chamber found that since May 2014, the Al-Saiqa Brigade had been taking part in an operation launched by the Libyan National Army (the “LNA”) in Benghazi, known as “Operation Dignity”, under the command of General Khalifa Haftar

text: 8 ICC-01/11-01/17-9-US-Exp, para. 6. 9 First Warrant of Arrest, paras 4-8 and 25. 10 First Warrant of Arrest, paras 7-9 and 25. 11 The Chamber recalls that the LNA is a coalition of army units, ex-revolutionary groups and tribal militias, acting under the command of General Khalifa Haftar, which should be distinguished from the Libyan National Army in existence during the Gaddafi regime; see First Warrant of Arrest, para. 6. No. ICC-01/11-01/17 5/20 4 July 2018

text: (“Mr. Haftar”). The Chamber sees no reason to depart from these findings and finds them equally applicable in relation to the crime described in the Request.

text: The Chamber notes further that armed clashes among forces affiliated with the Government of National Accord (the “GNA”), international forces and armed groups have continued to occur on the territory of Libya after the issuance of the First Warrant of Arrest and have extended to the period relevant for the purposes of the Request. In the west, forces affiliated with the GNA engaged in fighting against several armed groups west and south of Tripoli, in October and early November 2017. The fighting – which involved one opposing group affiliated with the LNA – resulted in over 60 persons killed and more than 300 injured. On 15 January 2018, a militia known by the name of Al-Bugra launched an assault on Mitiga airport in Tripoli, which led to clashes with the Special Deterrence Force, a group allegedly affiliated with the GNA. The fighting involved the use of tanks and other heavy weapons and resulted in 23 persons killed and 60 injured. 11. In northern, central and southern Libya, the Islamic State in Iraq and the Levant (“ISIL”) carried out several attacks on LNA checkpoints in August and October 2017 which resulted in 15 persons killed and 8 injured. In September and November 2017, the Libyan Air Force and the United States of America conducted airstrikes against ISIL positions in and around the city of Sirte.

text: 12 First Warrant of Arrest, paras 6 and 8. 13 The GNA was established pursuant to the Libyan Political Agreement signed in December 2015 and brokered by the United Nations; see LBY-OTP-0049-0205. The GNA received the support of United Nations Member States as the sole legitimate representative of the Libyan people; see LBY-OTP-0053- 1152, at 1154, para. 10. 14 LBY-OTP-0062-0060, at 0060, para. 4 and at 0062, paras 14-15. 15 LBY-OTP-0062-0060, at 0062, para. 14. 16 LBY-OTP-0049-0205, at 0211. 17 LBY-OTP-0062-0060, at 0062, para. 17; LBY-OTP-0062-0077, at 0077. 18 LBY-OTP-0062-0060, at 0064, para. 26. 19 LBY-OTP-0062-0060, at 0064, para. 24. No. ICC-01/11-01/17 6/20 4 July 2018

text: The security situation remained volatile also in the east, in particular in the cities of Darnah and Benghazi. On 30 October 2017, an unidentified aircraft carried out airstrikes on several positions around the city of Darnah, killing 15 and injuring 17, including civilians. Parts of the city controlled by the Darnah Mujahadin Shura Council were under siege by LNA forces. In Benghazi, the building of the Ministry of Interior was hit by mortar fire on 10 November 2017 and ensuing clashes with LNA forces resulted in 14 persons killed and 25 injured, including civilians. A particularly deadly attack occurred on 23 January 2018, when two vehicle-borne improvised explosive devices (“IEDs”) were detonated in front of the Bi’at al-Radwan Mosque, in the Salmani district of Benghazi. The attack resulted in at least 30 persons killed, including children, and at least 56 injured. On 9 February 2018, another two IEDs exploded inside a mosque, in the Majuri district of Benghazi, killing 1 civilian and injuring another 116.

text: In total, 52 civilian deaths and 196 injuries were documented in January and February 2018 alone, as a result of hostilities across the country, caused by IEDs, explosive remnants of war, gunfire and shelling.

text: In the period following the issuance of the First Warrant of Arrest, the Al-Saiqa Brigade remained engaged in fighting in Benghazi. In November-December 2017, it was reported that the Al-Saiqa Brigade had conducted assaults in the Sidi Akribesh district, one of the last areas in Benghazi under the control of opposing forces, which had been under siege for four months.

text: 20 LBY-OTP-0062-0060, at 0063, para. 20. 21 LBY-OTP-0062-0060, at 0063, para. 19. 22 LBY-OTP-0062-0060, at 0063, para. 18. 23 LBY-OTP-0062-0077, at 0077-0078; see also LBY-OTP-0062-0060, at 0063, para. 18, stating however that the attack occurred on 24 January 2018. 24 LBY-OTP-0062-0081, at 0082; LBY-OTP-0062-0060, at 0063, para. 18. 25 LBY-OTP-0062-0077, at 0077; LBY-OTP-0062-0081, at 0081. 26 LBY-OTP-0062-0277; LBY-OTP-0062-0707 and translation LBY-OTP-0063-0048, at 0049. No. ICC-01/11-01/17 7/20 4 July 2018

text: There are reasonable grounds to believe that Mr. Al-Werfalli continued to act as a commander in the Al-Saiqa Brigade. The Chamber notes that Mr. Al-Werfalli was still in a position of command on 14 August 2017 when he issued a circular in his capacity of “Special Forces Axes Commander”. Later on, in the autumn of 2017, he st reportedly commanded the 1 battalion of the Al-Saiqa Brigade during an assault in the Sidi Akribesh district of Benghazi, on 30 November 2017. At the time relevant for the purposes of the Request, he was still being referred to as a commander with the Al-Saiqa Brigade. 16. The additional crime the Prosecutor alleges Mr. Al-Werfalli to be responsible for occurred on 24 January 2018, in Benghazi. The incident took place in the aftermath of the double IED attack mentioned above which was carried out on 23 January 2018, in front of the Bi’at al-Radwan Mosque, in the Salmani district of Benghazi. Mr. Al-Werfalli reportedly committed the alleged crime as a response to the said attack. 17. The available evidence indicates that there are reasonable grounds to believe that Mr. Al-Werfalli is directly responsible for the killing of 10 persons in front of the same Bi’at al-Radwan Mosque, in the Salmani district of Benghazi on 24 January 2018. A video footage shows Mr. Al-Werfalli wearing a camouflage uniform and

text: 27 LBY-OTP-0054-0262 and translation LBY-OTP-0054-0758, at 0759. 28 LBY-OTP-0062-0707 and LBY-OTP-0063-0048, at 0049. 29 LBY-OTP-0062-0060, at 0063, para. 10, stating that, at the time relevant for the purposes of the Request, Mr. Al-Werfalli was a “Libyan National Army Commander”; and LBY-OTP-0062-0077, at 0079, referring to Mr. Al-Werfalli in January 2018 as “a field commander with the Special Forces”. The “Special Forces” is the formal name of the Al-Saiqa Brigade; see LBY-OTP-0062-0707 and LBY-OTP-0063-0048, at 0049. 30 LBY-OTP-0062-0091; LBY-OTP-0062-0077, at 0079; LBY-OTP-0056-0407 and LBY-OTP-0063-0063, at 0064; LBY-OTP-0062-0187, at 0197, para. 70; see however LBY-OTP-0062-0060, at 0063, para. 18, reporting that the alleged crime was committed on 25 January 2018. 31 See para. 12 above; LBY-OTP-0062-0187, at 0197, para. 70. 32 LBY-OTP-0062-0703; LBY-OTP-0062-0654, at 0656, lines 9-20; LBY-OTP-0056-0407 and translation LBY-OTP-0062-0166, at 0168. No. ICC-01/11-01/17 8/20 4 July 2018 holding a firearm in his left hand. In front of him, 10 persons dressed in blue jumpsuits are lined up kneeling down, blindfolded and with their hands behind their backs. Beginning from the left of the row of kneeling persons, Mr. Al-Werfalli starts shooting each person in the head in quick succession. As they are shot, the persons fall one by one to the ground. After the last person is shot, Mr. Al-Werfalli fires freely at the 10 persons now lying on the ground. A crowd of people are chanting: “The blood of martyrs shall not go in vain”. The 10 persons who were shot are shown lying on the ground in what appear to be pools and streams of blood. Bodies in blue jumpsuits are then seen being loaded and transported in two pick-up trucks as the crowd of onlookers continues chanting. 18. The Chamber is satisfied that the above mentioned video has sufficient indicia of authenticity in order to be relied upon at this stage of the proceedings. The Chamber notes, in particular, that the Prosecutor has submitted an expert report on the authentication of the video, prepared by a renowned, independent institute. Having analysed the video and its key frames, the report concluded that there were no traces of forgery or manipulation in relation to locations, weapons or persons shown in the video. The location has also been confirmed by a witness, who stated that the video was shot “[i]n front of the mosque at Al-Salmani” where “[a] day before […] there was a bombing”.

text: 33 LBY-OTP-0056-0407, 00:48. The Chamber notes that Mr. Al-Werfalli is mainly seen from behind in the video and is not identifiable based on his facial features; see also LBY-OTP-0063-0068, at 0075-0078. The Chamber nevertheless finds reasonable grounds to believe that Mr. Al-Werfalli is indeed the person appearing in the video based on a number of other pieces of evidence which identify Mr. Al-Werfalli as the person who shot dead the 10 individuals in front of the Bi’at al-Radwan Mosque in Benghazi: see para. 19 below. 34 See also LBY-OTP-0060-4362. 35 LBY-OTP-0056-0407, 00:48 – 01:10. 36 LBY-OTP-0056-0407, 01:10 and translation LBY-OTP-0062-0166, at 0168, line 20. 37 LBY-OTP-0056-0407, 01:28 – 01:55. 38 LBY-OTP-0063-0068. 39 LBY-OTP-0063-0068, at 0072-0074. 40 LBY-OTP-0062-0187, at 0197, paras 69 and 75. No. ICC-01/11-01/17 9/20 4 July 2018

text: Further evidence before the Chamber provides reasonable grounds to believe that Mr. Al-Werfalli is directly responsible for the killing of the 10 persons on 24 January 2018. In particular, the Chamber notes a public statement made by the spokesperson of the LNA on or around 7 February 2018, according to which Mr. Al-Werfalli had admitted to the killings. A letter allegedly sent by Mr. Haftar to the Prosecutor of the Court also confirms that Mr. Al-Werfalli “killed some detained terrorists […] as a reaction to the bombings” of 23 January 2018. This allegation is further supported by other evidence before the Chamber, including a report by the United Nations.

text: V. Jurisdiction and Admissibility

text: Jurisdiction

text: The Chamber finds, pursuant to

text: articles 19

text: (1) and

text: (1)(a) of

text: the Statute

text: , on the basis of the evidence submitted and without prejudice to its future determinations, that the crime referred to in the Request falls within the jurisdiction of the Court. The incident that forms the basis of the Request occurred in Benghazi, on 24 January 2018, and is associated with the ongoing armed conflict underlying the referral by the Security Council pursuant to

text: article 13

text: (b) of

text: the Statute

text: concerning the situation on the territory of Libya since 15 February 2011. The Chamber recalls its finding in the First Warrant of Arrest that the Al-Saiqa Brigade has been involved in an armed conflict not of an international character in Libya ever since the days of the revolution against the Gaddafi regime. The Chamber finds that there are reasonable

text: 41 LBY-OTP-0062-0654, at 0656, lines 17-20; LBY-OTP-0063-0063, at 0063. 42 LBY-OTP-0062-0703. 43 LBY-OTP-0062-0060, at 0063, para. 18, reporting however that the alleged crime was committed on 25 January 2018; LBY-OTP-0062-0091; LBY-OTP-0056-0374 and draft translation LBY-OTP-0062-0174, at 0175. 44 S/RES/1970 (2011). Pre-Trial Chamber I, Prosecutor v. Callixte Mbarushimana, “Decision on the Prosecutor’s Application for a Warrant of Arrest against Callixte Mbarushimana”, 28 September 2010,

text: , paras 5-7. 45 First Warrant of Arrest, para. 23. No. ICC-01/11-01/17 10/20 4 July 2018 grounds to believe that the Al-Saiqa Brigade remained engaged in said conflict after the issuance of the First Warrant of Arrest and that Mr. Al-Werfalli continued to hold a position of command in the Al-Saiqa Brigade. In light of the above, the Chamber is satisfied that the alleged crime described in the Request is sufficiently linked with the situation that triggered the jurisdiction of the Court through the Security Council referral.

text: Admissibility

text: The Chamber recalls the Appeals Chamber’s pronouncement that, when deciding on an application for a warrant of arrest in ex parte Prosecutor only proceedings, the Pre-Trial Chamber should exercise its discretion to address the admissibility of the case pursuant to

text: article 19

text: (1), second sentence, of

text: the Statute

text: only when it is appropriate in the circumstances of the case and bearing in mind the interests of the suspect. 22. Following the issuance of the First Warrant of Arrest, it was reported that an investigation had been initiated in Libya, by a Military Prosecutor, upon the orders of Mr. Haftar, into the crimes allegedly committed by Mr. Al-Werfalli and two cases were opened against him. While the first case concerns conduct that formed the basis of the First Warrant of Arrest, the second case allegedly concerns conduct that is the subject matter of the Request. On 19 June 2018, the Chamber received updated information from the Prosecutor.

text: 46 See above paras 14-15. 47 Pre-Trial Chamber I, Prosecutor v. Callixte Mbarushimana, “Decision on the ‘Defence Challenge to the Jurisdiction of the Court’”, 26 October 2011,

text: , para. 16. 48 Appeals Chamber, Situation in the Democratic Republic of the Congo, “Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’”, 13 July 2006, ICC-01/04-169, paras 1-2, 52. 49 LBY-OTP-0062-0654; LBY-OTP-0062-0703. 50 LBY-OTP-0055-0186 and translation LBY-OTP-0063-0004; LBY-OTP-0055-0231; LBY-OTP-0062-0654. 51 LBY-OTP-0062-0654; LBY-OTP-0062-0703. 52 ICC-01/11-01/17-12-US-Exp. No. ICC-01/11-01/17 11/20 4 July 2018

text: The Chamber considers that the reported opening of a case against Mr. Al-Werfalli in Libya for the crime he allegedly committed on 24 January 2018 constitutes an ostensible cause that impels it to exercise its discretion pursuant to

text: article 19

text: (1), second sentence, of

text: the Statute

text: and determine at this stage the admissibility of the case against Mr. Al-Werfalli. In what follows, the Chamber will focus on the investigation allegedly opened into the events of 24 January 2018, which form the subject matter of the Request.

text: a) Complementarity 24. In August 2017, following an order issued by Mr. Haftar, Mr. Al-Werfalli was suspended from his military functions and an investigation was initiated by the Military Prosecutor which reportedly covered the same conduct that made the object of the First Warrant of Arrest. Mr. Al-Werfalli was immediately arrested and was thereafter interrogated by the Military Prosecutor. However, by 30 November 2017, Mr. Al-Werfalli had allegedly been released. 25. Following the alleged killing of the 10 persons in front of the Bi’at al-Radwan Mosque on 24 January 2018, Mr. Haftar once again ordered Mr. Al-Werfalli’s arrest and detention in order for the Military Prosecutor to initiate an investigation into the said acts, as well as to continue the investigation opened in August 2017. On 6 February 2018, Mr. Al-Werfalli appeared in a video stating: “Upon the instructions of the General Command, the Commander-in-Chief, regarding my arrest, I, Major Mahmoud Mustafa Busayf AL-WERFALLI […] I’ll surrender to the Military Police in

text: 53 See Appeals Chamber, Situation in the Democratic Republic of the Congo, “Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58’”, 13 July 2006, ICC-01/04-169, para. 52. 54 LBY-OTP-0055-0186 and translation LBY-OTP-0063-0004; LBY-OTP-0055-0231; LBY-OTP-0062-0703. 55 LBY-OTP-0055-0186 and translation LBY-OTP-0063-0004; LBY-OTP-0055-0231; LBY-OTP-0062-0703. 56 See above para.15; see also LBY-OTP-0062-0654, at 0656, lines 14-15. 57 LBY-OTP-0062-0703. No. ICC-01/11-01/17 12/20 4 July 2018 the town al-Marj so that the investigations relating to the International Criminal Court could be concluded”.

text: On 7 February 2018, Mr. Al-Werfalli was allegedly in the custody of the Military Police. The official spokesperson of the LNA stated on or around the same day that it had been established that Mr. Al-Werfalli was the perpetrator and that a second case was opened against him concerning the events of 24 January 2018. Following Mr. Al-Werfalli’s surrender, a demonstration took place in Benghazi in opposition to legal action being taken against him, with roads being blocked and tires burnt. On 8 February 2018, it was reported that the investigation was completed and that Mr. Al-Werfalli was released. 27. The Chamber finds that the proceedings allegedly initiated against Mr. Al-Werfalli in Libya do not render the case against him inadmissible before this Court. The Chamber finds that irrespective of whether the entity exercising authority in the territory controlled by the LNA can be considered a State for the purposes of

text: article 17

text: of

text: the Statute

text: , there remains a situation of inactivity. The Chamber recalls that for a case to be considered as “being investigated” within the meaning of

text: article 17

text: (1)(a) of

text: the Statute

text: , tangible, concrete and progressive investigative steps must have been taken. Based on the limited available information, the Chamber considers that the investigation has not complied with these requirements.

text: 58 LBY-OTP-0062-0648, at 0650. 59 LBY-OTP-0062-0654, at 0656, lines 24-25; LBY-OTP-0060-7303 and translation LBY-OTP-0062-0651; LBY-OTP-0062-0091. 60 LBY-OTP-0062-0654, at 0656, lines 17-24. 61 LBY-OTP-0062-0089, LBY-OTP-0062-0091. 62 LBY-OTP-0062-0089, LBY-OTP-0062-0091. 63 Pre-Trial Chamber III, “Public Redacted Version of ‘Decision Pursuant to

text: Article 15

text: of the

text: Rome Statute

text: on the Authorization of an Investigation into the Situation in the Republic of Burundi’, ICC-01/17-X-9-US-Exp, 25 October 2017 ”, ICC-01/17-9-Red, 9 November 2017, para. 148; Pre-Trial Chamber I, Prosecutor v Simone Gbagbo, “Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo”, 11 December 2014,

text: -Red, para. 65; Appeals Chamber, Prosecutor v Simone Gbagbo, “Judgment on the appeal of Côte d’Ivoire against the decision No. ICC-01/11-01/17 13/20 4 July 2018

text: First, the Chamber observes that the investigation was closed only one day after Mr. Al-Werfalli surrendered to the Military Police and two weeks after the alleged crime was committed. The Chamber is concerned by the limited timeframe of the investigation especially considering the seriousness of allegations made against Mr. Al-Werfalli. Second, the Chamber notes based on the available evidence that no concrete investigative steps have been taken. No witnesses were interviewed with regard to the events of 24 January 2018, despite the fact that a large crowd of onlookers was present at the scene of the alleged crime, and no forensic examination of the bodies was conducted, although such an examination would have been a crucial investigative step. The Chamber observes, based on the available evidence, that the only investigative step that has been taken since the opening of investigations into crimes allegedly committed by Mr. Al-Werfalli was an interrogation of him by the Military Prosecutor in August 2017, which in any case concerned conduct which made the object of the First Warrant of Arrest. Finally, the Chamber notes that no explanation was provided for the closing of the investigation, despite the fact that only one day before Mr. Al-Werfalli’s release officials of the LNA had stated that it was established that Mr. Al-Werfalli was the perpetrator. 29. In the light of the foregoing, the Chamber finds that it cannot be concluded that the case against Mr. Al-Werfalli is being or has been investigated in Libya within the meaning of

text: article 17

text: (1)(a)-(b) of

text: the Statute

text: . This conclusion stands notwithstanding the Prosecutor’s updated information provided to the Chamber regarding an alleged ongoing investigation against Mr. Al-Werfalli for the incident set out in the Request. The Prosecutor has not provided the Chamber with any evidence that shows that the required investigative activities, as elaborated in paragraph 28 of the present decision, were undertaken. In view of the foregoing, the Chamber considers that there remains to be a situation of inactivity.

text: of Pre-Trial Chamber I of 11 December 2014 entitled ‘Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo’”, 27 May 2015,

text: -Red, para. 122. No. ICC-01/11-01/17 14/20 4 July 2018 b) Gravity 30. The Chamber recalls that in determining whether a case is of sufficient gravity to justify further action by the Court, within the meaning of

text: article 17

text: (1)(d) of

text: the Statute

text: , it must have regard to: (i) whether the case captures those persons who may bear the greatest responsibility for the alleged crimes committed; and (ii) the gravity of the crimes allegedly committed, which may be examined following both a quantitative and a qualitative approach. With regard to the second element, the Chamber notes that cases encompassing a limited number of casualties or even those dealing exclusively with the destruction of buildings dedicated to religion have been considered to be sufficiently grave to justify prosecution. 31. The Chamber recalls that there are reasonable grounds to believe that Mr. Al-Werfalli was a commander in the Al-Saiqa Brigade at the time relevant for the purposes of the Request and that he had been in a commanding role since at least December 2015. In the First Warrant of Arrest, the Chamber found that he had many men under his command and had authority over at least one detention centre. The Chamber sees no reason to depart from these findings which are equally applicable to the crime described in the Request. The Chamber further observes that, while the number of victims in the case at hand is limited, the manner in which the crime was committed and publicized was cruel, dehumanizing and degrading. The victims were lined up on a public street, kneeling down and with

text: 64 Pre-Trial Chamber II, Situation in the Republic of Kenya, “Decision Pursuant to

text: Article 15

text: of the

text: Rome Statute

text: on the Authorization of an Investigation into the Situation in the Republic of Kenya”, ICC-01/09-19-Corr, paras 60-62. 65 Pre-Trial Chamber I, Prosecutor v Abdallah Band Abakaer Nourain, “Corrigendum of the ‘Decision on the Confirmation of Charges’”, 7 March 2011,

text: -Corr-Red, paras 48-123. 66 Trial Chamber VIII, Prosecutor v Ahmad Al Faqi Al Mahdi, “Judgment and Sentence”, 27 September 2016,

text: , paras 34-37. 67 See para. 15 above. 68 First Warrant of Arrest, para. 9. 69 First Warrant of Arrest, para. 9. No. ICC-01/11-01/17 15/20 4 July 2018 their hands tied behind their backs. They were shot dead one by one, in front of a crowd of onlookers who were chanting in apparent support for the killings.

text: For these reasons, the Chamber considers that the case against Mr. Al-Werfalli is of sufficient gravity to justify further action by the Court within the meaning of

text: article 17

text: (1)(d) of

text: the Statute

text: . In light of the foregoing, the Chamber determines that the case against Mr. Al-Werfalli is admissible before this Court.

text: VI. Requirements of

text: Article 58

text: (1) of

text: the Statute

text: Whether Mr. Al-Werfalli has committed a crime under the jurisdiction of the

text: Court (

text: article 58

text: (1)(a) of

text: the Statute

text: The Chamber finds that there are reasonable grounds to believe that an armed conflict not of an international character has been ongoing on the territory of Libya from at least early March 2011 until at least February 2018 between governmental forces and different organized armed groups or among various such armed groups, including the Al-Saiqa Brigade. The Chamber recalls that in the First Warrant of Arrest it found that there were reasonable grounds to believe that the Al-Saiqa Brigade was an organized armed group. The Chamber finds no information in the evidence to show that the facts have changed in this regard. Further, the evidence before the Chamber sufficiently demonstrates, to the required standard of proof, that the violence among the above mentioned armed groups has been protracted, rising above the level of isolated and sporadic acts of violence, with the parties to the conflict conducting airstrikes, mortar attacks and IED attacks in the period following

text: 70 See paras 9-14 above. 71 First Warrant of Arrest, para. 26; see Trial Chamber III, Prosecutor v Jean-Pierre Bemba Gombo, “Judgment pursuant to

text: Article 74

text: of

text: the Statute

text: ”, 21 March 2016,

text: , paras 128 and 132-136. 72

text: Article 8

text: (2)(d) of

text: the Statute

text: . No. ICC-01/11-01/17 16/20 4 July 2018 the issuance of the First Warrant of Arrest. The Chamber notes also the number of casualties and the spread of the violence throughout the country.

text: The Chamber finds that there are reasonable grounds to believe that the acts described in Section IV, paragraphs 16-19 above, constitute the war crime of murder and were committed in the context of and were associated with an armed conflict not of an international character, pursuant to

text: article 8

text: (2)(c)(i) of

text: the Statute

text: . The Chamber is satisfied to the required threshold that the persons killed were either placed hors de combat by being deprived of liberty or were civilians taking no active part in the hostilities. There is no information in the evidence to show that they have been afforded a trial by a legitimate court, whether military or otherwise, that would comport with any recognised standard of due process. This finding does not prevent the Prosecutor from amending the legal characterisation of the acts described in this warrant of arrest.

text: Further, the Chamber finds that there are reasonable grounds to believe that Mr. Al-Werfalli is criminally responsible for the crime of murder described in paragraphs 16-19 above pursuant to

text: article 25

text: (3)(a) of

text: the Statute

text: , as a direct perpetrator, having personally committed the crime. The Chamber is satisfied to the required standard of proof that he acted with intent and knowledge and that he was aware of the status of the victims and of the factual circumstances that established the existence of an armed conflict not of an international character. This does not prevent the Prosecutor from amending the legal characterisation of

text: 73 Trial Chamber III, Prosecutor v Jean-Pierre Bemba Gombo, “Judgment pursuant to

text: Article 74

text: of

text: the Statute

text: ”, 21 March 2016,

text: , paras 137-141; International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Boškoski and Tarčulovski, Case No. IT-04-82-T, “Judgement”, 10 July 2008, para. 177. 74 Article 8(2)(c)(i)-1, Elements of Crimes. 75 Pre-Trial Chamber II, Prosecutor v. Bosco Ntaganda, “Decision Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: on the Charges of the Prosecutor Against Bosco Ntaganda”,

text: , 9 June 2014, para. 136. 76

text: Article 30

text: of

text: the Statute

text: Article 8

text: (2)(c)(i)-1, Elements of Crimes. No. ICC-01/11-01/17 17/20 4 July 2018

text: Mr. Al-Werfalli’s criminal responsibility in light of evidence presented at a later stage.

text: Whether the arrest of Mr. Al-Werfalli appears necessary (article 58(1)(b) of the

text: Statute)

text: Finally, the Chamber is satisfied, in conformity with

text: article 58

text: (1)(b) of

text: the Statute

text: , that the arrest of Mr. Al-Werfalli appears necessary to ensure that (i) he is prevented from continuing with the commission of such crimes or related crimes arising out of the same circumstances, as described in Section IV; and (ii) he appears at trial. The Chamber notes that Mr. Al-Werfalli has committed the alleged crime described above after the issuance of the First Warrant of Arrest. The Chamber takes the view that, unless prevented, Mr. Al-Werfalli is likely to continue to carry out crimes of similar gravity in the near future. The Chamber is satisfied that Mr. Al-Werfalli is unlikely to cooperate with a summons to appear, within the meaning of

text: article 58

text: (7) of

text: the Statute

text: , considering that the First Warrant of Arrest remains unexecuted. In light of the above, the issuance of the present warrant of arrest is necessary.

text: FOR THESE REASONS, THE CHAMBER HEREBY

text: ISSUES a warrant of arrest for Mahmoud Mustafa Busayf AL-WERFALLI, a Libyan national, born in 1978, reported to live at Square 8, Number 40 Qundulah Road in the Bu-Hadimah area of Benghazi, commander in the Al-Saiqa Brigade, for his alleged criminal responsibility pursuant to

text: article 25

text: (3)(a) of

text: the Statute

text: , for the war crime of murder under

text: article 8

text: (2)(c)(i) of

text: the Statute

text: , committed on 24 January 2018, in Benghazi, Libya; DECIDES that the warrant of arrest is issued publicly and may be communicated to any State or international organization for the purposes of its execution;

text: No. ICC-01/11-01/17 18/20 4 July 2018

text: DECIDES that, as soon as practicable, the Registrar shall: (i) prepare a request for cooperation seeking the arrest and surrender of Mr. Al-Werfalli and containing the information and documents required by

text: articles 89

text: (1) and

text: of

text: the Statute

text: and rule 187 of the Rules of Procedure and Evidence; and (ii) transmit the request, in consultation and coordination with the Prosecutor, to the competent authorities of Libya or any other relevant State, or to any other competent authority, in accordance with

text: article 87

text: of

text: the Statute

text: and Resolution 1970 of the United Nations Security Council to cooperate with the Court for the purpose of executing the request for arrest and surrender of Mr. Al-Werfalli; DIRECTS the Registrar to prepare and transmit to any relevant State, in consultation and coordination with the Prosecutor, any request for transit pursuant to

text: article 89

text: (3) of

text: the Statute

text: or any request for provisional arrest pursuant to

text: article 92

text: of

text: the Statute

text: which may be necessary for the surrender of Mr. Al-Werfalli; ORDERS the Prosecutor to transmit to the Registry and to the Chamber all information available to her that may be of assistance in the execution of the request for arrest and surrender as well as any information of relevance to assessing any risks to victims and witnesses associated with the transmission of the request for arrest and surrender; and ORDERS the Registrar to prepare, as soon as practicable, an Arabic translation of the present warrant of arrest for the purposes of transmitting it to the Libyan authorities.

text: No. ICC-01/11-01/17 19/20 4 July 2018

text: _____________________________ Judge Péter Kovács Presiding Judge

text: _____________________________ _____________________________ Judge Marc Perrin de Brichambaut Judge Reine Adélaïde Sophie Alapini-Gansou

text: Dated this Wednesday, 4 July 2018 At The Hague, The Netherlands

text: No. ICC-01/11-01/17 20/20 4 July 2018

title: The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli


identifier: ICC-01/11-01/17 (Warrant of Arrest)

title: Warrant of Arrest

text: the Statute

text: the Statute, article 13

text: the Statute, article 19

text: the Statute, article 25

text: the Statute, article 30

text: Rome Statute, article 58

text: Rome Statute, article 61

text: the Statute, article 74

text: the Statute, article 8

text: the Statute, article 87

text: the Statute, article 89

text: the Statute, article 91

text: the Statute, article 92

text: while pointing to facts that suggested that the Government of Lybia may be unable to move to the case forward

text: Original: English No.: ICC-01/11-01/17 Date: 15 August 2017

text: PRE-TRIAL CHAMBER I

text: Before: Judge Joyce Aluoch, Presiding Judge

text: Judge Cuno Tarfusser Judge Péter Kovács

text: SITUATION IN LIBYA

text: IN THE CASE OF THE PROSECUTOR v. MAHMOUD MUSTAFA BUSAYF

text: AL-WERFALLI

text: Public

text: Warrant of Arrest

text: No. ICC-01/11-01/17 1/17 15 August 2017

text: Warrant to be notified, in accordance with Regulation 31 of the Regulations of the Court, to:

text: The Office of the Prosecutor Counsel for the Defence

text: Fatou Bensouda, Prosecutor James Stewart, Deputy Prosecutor

text: Legal Representatives of Victims Legal Representatives of Applicants

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

text: States Representative Others

text: REGISTRY

text: Registrar Counsel Support Section

text: Herman von Hebel

text: Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Other Section

text: No. ICC-01/11-01/17 2/17 15 August 2017

text: PRE-TRIAL CHAMBER I (the “Chamber”) of the International Criminal Court (the “Court”) issues this warrant of arrest pursuant to

text: article 58

text: (1) of the

text: Rome Statute

text: (the “Statute”) for

text: Mahmoud Mustafa Busayf AL-WERFALLI

text: a Libyan national, born in 1978, belonging to the al-Sahibani family of the Werfalla tribe, son of Na’imah Ibrahim Mahmoud, reported to live at Square 8, Number 40 Qundulah Road in the Bu-Hadimah area of Benghazi, commander in the Al-Saiqa st Brigade, and graduate of the military college in Libya in Jamahiriya’s 41 graduation class, 1 September 2000, bearing the military service number 33568.

text: I. Procedural History

text: On 26 February 2011, the United Nations Security Council (the “Security Council”), acting under Chapter VII of the Charter of the United Nations, unanimously adopted Resolution 1970, referring the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the Court, in accordance with

text: article 13

text: (b) of

text: the Statute

text: , and urging all States and concerned regional and other international organisations to cooperate fully with the Court and the Prosecutor. 2. On 1 August 2017, the Prosecutor submitted under seal the “Prosecution’s urgent application under article 58 for a warrant of arrest against Mahmoud Mustafa Busayf AL-WERFALLI” (the “Application”). The Prosecutor requested the Chamber to issue a warrant of arrest for Mahmoud Mustafa Busayf AL-WERFALLI (“Mr Al- Werfalli”) for his alleged criminal responsibility under

text: article 25

text: (3)(a), (b) or (d) of

text: the Statute

text: for the war crime of murder, alleged to have been committed in seven incidents, taking place from on or before 3 June 2016 until on or about 17 July 2017,

text: 1 Alternative spellings of his last name include: “Al-Warfalli”, “Al-Warfilli”, “Al-Warfaly”, “Al- Warfally” and “Al-Werfali”. LBY-OTP-0053-1338, draft translation LBY-OTP-0053-1476, at 1477. 2 S/RES/1970 (2011). ICC-01/11/58-US-Exp, including three annexes. No. ICC-01/11-01/17 3/17 15 August 2017 in Benghazi or surrounding areas, in Libya, in violation of

text: article 8

text: (2)(c)(i) of

text: the Statute

text: II. Statement of Facts

text: In issuing this warrant of arrest, the Chamber bases its findings on an analysis of the evidence supporting the Application, which includes, in particular (i) recordings of witness interviews and summaries of witness interviews; (ii) video material and transcripts of video material; (iii) internal orders, and social media posts by the Media Centre of the Al-Saiqa Brigade; and (iv) reports of international organizations, non-governmental organizations, and research centres. The findings of the Chamber are made based on the statutory standard applicable at this stage of the proceedings, i.e. “reasonable grounds to believe”, as envisaged by

text: article 58

text: (1)(a) of

text: the Statute

text: . 4. In February 2011, violence erupted in Libya in the context of an uprising against the regime of Muammar Mohammed Abu Minyar Gaddafi (“Mr Gaddafi”). By early March 2011, the situation had escalated into hostilities between governmental forces and rebel forces.

text: After the fall of the Gaddafi regime, the existing rebel forces did not lay down their arms and were not integrated into a national army. Consequently, the following years were marked by periodic fighting between various armed groups. In particular, major clashes erupted in Tripoli and surrounding areas in 2013 and 2014 between, inter alia, (i) Zintan brigades, affiliated with the Ministry of Defence;

text: LBY-OTP-0022-2540, at 2545; LBY-OTP-0053-0990, at 1000, para. 32. 5 LBY-OTP-0053-0990, at 1000; Pre-Trial Chamber I, Prosecutor v. Al-Tuhamy Mohamed Khaled, “Warrant of Arrest for Al-Tuhamy Mohamed Khaled with under seal and ex parte Annex”, ICC- 01/11-01-13-1, 18 April 2013, para. 6. 6 LBY-OTP-0053-0990, at 1000, para. 33; at 1005, para. 52; LBY-OTP-0053-1098, at 1098, para. 2; LBY- OTP-0036-0219, at 0228; LBY-OTP-0053-1369, at 1380-1381; LBY-OTP-0053-1369, at 1390. 7 LBY-OTP-0053-0990, at 1000, para. 33; LBY-OTP-0053-1134, at 1137-1139, paras. 22-31; LBY-OTP- 0053-1098, at 1101, para. 16; LBY-OTP-0053-1204, at 1204, para. 2. No. ICC-01/11-01/17 4/17 15 August 2017

text: (ii) the Supreme Security Committee in Tripoli, affiliated with the Ministry of

text: 8 9

text: Interior; and (iii) the Libya Shields units. The hostilities involved exchanges of

text: heavy artillery and rocket fire, with the shelling of populated residential areas in

text: Tripoli.

text: In Benghazi, a coalition of army units, ex-revolutionary groups and tribal

text: militias calling themselves the “Libyan National Army” (the “LNA”), and acting

text: under the command of General Khalifa Haftar (“General Haftar”), launched

text: Operation Dignity, on 16 May 2014. The reported objective of the operation was to

text: fight terrorist groups in Benghazi, which included Ansar al-Sharia, the February

text: 17 Revolutionary Martyrs’ Brigade, the Rafallah Al-Sahati militia and the eastern

text: Libya Shield brigade, which joined forces to form the Benghazi Revolutionaries

text: Shura Council (the “BRSC”). The violence gradually escalated, including aerial

text: bombings and frequent missile and/or mortar attacks. In mid-October 2014 and on

text: 20 February 2016, General Haftar launched renewed military operations to oust the

text: BRSC from the city. The fighting between the LNA and the BRSC continued in

text: Benghazi at least until 18 March 2017.

text: LBY-OTP-0053-1134, at 1138, para. 21. LBY-OTP-0053-1134, at 1138, paras 21-22; LBY-OTP-0053-0990, at 1001, paras 36-37; at 1008, paras 61- 62; and at 1080; LBY-OTP-0053-1204, at 1206, para. 17; LBY-OTP-0053-1369, at 1397-1398; and at 1389- 1390. LBY-OTP-0053-1204, at 1206, paras 18-19; LBY-OTP-0053-0990, at 1001, para. 36. The Libyan National Army mentioned here should be distinguished from the Libyan National Army which existed during the Gaddafi regime. LBY-OTP-0048-0677, Track 1, 50:00-51:20; LBY-OTP-0053-0474, at 0487, para. 32; LBY-OTP-0053- 0990, at 1079. LBY-OTP-0053-0474, at 0487, para. 33; LBY-OTP-0053-0990, at 1001, para. 35; LBY-OTP-0053-1204, at 1205, para. 5; LBY-OTP-0053-1369, at 1395. LBY-OTP-0048-0677, Track 1, 57:55- 59:06; Track 2, 36:30-37:35; LBY-OTP-0053-0474, at 0487, para. 33; LBY-OTP-0053-0990, at 1007, para. 60. LBY-OTP-0053-0474, at 0487, para. 33, and at 0489, para. 42; LBY-OTP-0053-0990, at 1001, para. 35; LBY-OTP-0053-1204, at 1207, para. 25. LBY-OTP-0053-0990, at 1001, para. 35; LBY-OTP-0053-1170, at 1173, para. 15. LBY-OTP-0053-1152, at 1154, para. 15; LBY-OTP-0053-1187, at 1190, para. 18; LBY-OTP-0053-1437; LBY-OTP-0053-0643, at 0655, para. 48.

text: No. ICC-01/11-01/17 5/17 15 August 2017

text: One of the forces taking part in Operation Dignity was the Al-Saiqa Brigade, an elite unit which, during the Gaddafi regime, had been part of the Libyan National Army. It defected at an early stage of the 2011 uprising and joined the revolutionary forces. The group operates under the command of Colonel Wanis Abdel Kareem Bukhmada (“Colonel Bukhmada”), who has the power to issue orders and appoint members of the group. Among its ranks it numbers also field officers, such as Field Commander Major Muhammad al-Ghazali, Advances Coordinator Captain Anas al-Zuway, Inquiries Commander Sargent Fadl al-Hasi 22 23 (deceased on 22 May 2017) and Mr Al-Werfalli, as Axes Commander, as well as 24 25 other axes commanders. The group is reported to have up to 5000 soldiers, 26 27 organized into divisions and battalions.

text: The Al-Saiqa Brigade joined Operation Dignity in its early stages, in May 2014. On 13 August 2016, General Haftar met with the Al-Saiqa commanders Mr Al- Werfalli, Major al-Ghazali, Captain al-Zuway, and Sargent al-Hasi to consider updates from the combat areas where the Al-Saiqa Brigade was stationed and to discuss ways to provide logistic and moral support to land forces. On 17 August 2016, Colonel Bukhmada met with the officers and axes commanders of the Al-Saiqa Brigade, including Mr Al-Werfalli, to receive updates and plan a military operation in the west of Benghazi. The Al-Saiqa Brigade remained active throughout

text: 18 Not to be confused with General Haftar’s Libyan National Army mentioned above. 19 LBY-OTP-0053-1369, at 1393. 20 LBY-OTP-0048-0677, Track 1, 55:02-55:32; LBY-OTP-0053-1369, at 1393; LBY-OTP-0053-0942, at 0945. 21 LBY-OTP-0053-1533, at 1534; LBY-OTP-0053-0317, at 0318; LBY-OTP-0053-1733, at 1734. 22 LBY-OTP-0053-1533, at 1534. 23 LBY-OTP-0053-1527, at 1528. 24 LBY-OTP-0053-1519, at 1521. The axes refer to geographical areas of active military operations in Benghazi, LBY-OTP-0053-1533, at 1534. 25 LBY-OTP-0053-0942, at 0945. 26 LBY-OTP-0053-1533, at 1534. 27 LBY-OTP-0053-0317, at 0318. 28 LBY-OTP-0053-0990, at 1007, para. 59; and at 1079. 29 LBY-OTP-0053-1527, at 1528. 30 LBY-OTP-0053-1519, at 1520. No. ICC-01/11-01/17 6/17 15 August 2017

text: Operation Dignity as the BRSC was being driven out of Benghazi, and continued to remain engaged, making military advancements throughout the relevant period for the purpose of this warrant of arrest. 9. Mr Al-Werfalli joined the Al-Saiqa Brigade after the fall of the Gaddafi regime. He has been in a commanding role since at least December 2015. Currently he holds the position of Axes Commander. He is reported to have many men under his command. For example, on 9 April 2017, following instructions from Colonel Bukhmada, he issued an order to the al-Burkan Battalion, under the command of officer Ali Sa’d al-Tawurghi, to take up positions on the al-Sabiri axis. Mr Al- Werfalli also has authority over at least one detention centre. 10. Mr Al-Werfalli appears to be directly responsible for the killing of, in total, 33 persons in Benghazi or surrounding areas, between on or before 3 June 2016 and on or around 17 July 2017, either by personally killing them or by ordering their execution. The persons killed appear to have been detained and to have been either civilians or persons hors de combat. There is no information in the evidence to show that they have been afforded a trial by a legitimate court, whether military or otherwise, that would comport with any recognised standard of due process. The executions took place in the course of seven incidents, as described below, and were exceptionally cruel, dehumanising and degrading.

text: 31 LBY-OTP-0048-0296 and LBY-OTP-0053-1656. 32 LBY-OTP-0053-1733, at 1734; LBY-OTP-0053-1735, at 1736; LBY-OTP-0053-1737, at 1738. 33 LBY-OTP-0048-0686, Track 1, 50:34-50:43; LBY-OTP-0053-1476, at 1477. 34 LBY-OTP-0053-1535, at 1536. 35 LBY-OTP-0053-1533, at 1534. 36 LBY-OTP-0048-0686, Track 1, 01:05:46-01:05:56. 37 LBY-OTP-0053-0317, at 0318. 38 LBY-OTP-0053-0643, at 0661, para. 90; LBY-OTP-0048-0678, Track 1, 48:48-48:55. No. ICC-01/11-01/17 7/17 15 August 2017

text: Incident One

text: Mr Al-Werfalli, wearing camouflage trousers and carrying a weapon, is seen in a video footage to stand near a hooded, unidentified person, who is moving around an open dirt area with his arms in the air. Mr Al-Werfalli is heard saying “Put your hands up! Put your hands up! Put your hands up!”. After that, he shoots the hooded person with his left hand a number of times and the person falls on the ground. Mr Al-Werfalli approaches the body, shoots again the body on the ground for a number of times and states “You have been misled by he who did you harm. You have been misled by Satan”. The video depicting this incident was posted on Facebook on 3 June 2016.

text: 2.Incident Two

text: Mr Al-Werfalli, wearing camouflage trousers and a black t-shirt with the logo of the Al-Saiqa Brigade, and carrying a weapon, is seen in a video footage shooting with his left hand three male figures in the head. The three persons are kneeling in front of a wall with their arms tied behind their backs. After the bodies of the three men fall, Mr Al-Werfalli shoots at the bodies a few more times. Two of the victims are alleged to have been revolutionaries in Benghazi. The video depicting this incident was posted on social media on 20 March 2017.

text: Incident Three

text: Mr Al-Werfalli, wearing camouflage trousers and a black t-shirt with the logo of the Al-Saiqa Brigade, and carrying a weapon, is seen in a video footage in a room, with others being present as well. He is standing next to an unidentified man in a

text: 39 LBY-OTP-0049-0040, draft translation LBY-OTP-0049-0330. 40 LBY-OTP-0049-0314, at 0314. 41 LBY-OTP-0048-0582. 42 LBY-OTP-0053-1502, at 1505-1506. 43 LBY-OTP-0049-0314, at 0314. 44 LBY-OTP-0048-0593; LBY-OTP-0048-0602. No. ICC-01/11-01/17 8/17 15 August 2017 white t-shirt, who is kneeling bare feet, with his hands behind his head. Mr Al- Werfalli shoots the person with his left hand in the head and continues to do so after the man falls down. The men around Mr Al-Werfalli cheer in approval and another unidentified man from the group comes forward and shoots the victim two more times. The videos depicting this incident were posted on social media on 7 and 8 May 2017.

text: 4.Incident Four

text: Mr Al-Werfalli is seen in a video footage in an outdoor setting together with two other men who carry weapons and whose heads are covered. The three men stand behind two other men, who are dressed in camouflage and are kneeling bare feet on the ground. The two men are claimed to be, the first, a member of the BRSC, and the second, possibly a member of Ansar al-Sharia. The two men can be seen earlier in the video footage being detained in a cage. Mr Al-Werfalli is seen walking away from the kneeling men, while the other two men with firearms walk towards them. Mr Al-Werfalli has his left hand in the air and sweeps it down towards the ground in a manner that suggests that he is ordering them to proceed with the execution. The two men shoot the kneeling persons who fall on the ground. The video depicting this incident was posted on social media on or about 22 May 2017.

text: 5.Incident Five

text: Mr Al-Werfalli, wearing a full camouflage uniform, is seen in a video footage in an outdoor setting together with five men wearing hoods and camouflage trousers and holding firearms. Those five hooded, armed men stand behind four other

text: 45 LBY-OTP-0049-0314, at 0315-0316. 46 LBY-OTP-0048-0609, 02:37. 47 LBY-OTP-0053-1669, at 1673; LBY-OTP-0048-0609, draft translation LBY-OTP-0053-1637, at 1639. 48 LBY-OTP-0053-1669, at 1673; LBY-OTP-0048-0609, draft translation LBY-OTP-0053-1637, at 1639. 49 LBY-OTP-0048-0609, 01:21-01:45. 50 LBY-OTP-0049-0314, at 0316. 51 LBY-OTP-0048-0554, 04:30. No. ICC-01/11-01/17 9/17 15 August 2017 hooded men, who are kneeling barefoot on the ground with their hands behind their backs. They point their firearms at each kneeling person’s head. Mr Al-Werfalli raises his left hand in the air and sweeps it down towards the ground in a manner that suggests that he is ordering them to proceed with the execution. The five men shoot the four kneeling persons, who fall on the ground. The video depicting this incident was posted on social media on 9 June 2017.

text: 6.Incident Six

text: Mr Al-Werfalli is seen in a video footage in an area of desert together with two other men who are holding firearms. They stand behind two other persons, who are kneeling on the ground with their hands behind their back. Mr Al-Werfalli is seen speaking into the camera and then raising his left hand in the air and sweeping it down towards the ground in a manner that suggests that he is ordering the two men to proceed with the execution. The men shoot the persons kneeling, who fall on the ground. The video depicting this incident was posted on social media on 19 June 2017.

text: 7.Incident Seven

text: Mr Al-Werfalli, wearing a black cap, camouflage trousers and a black t-shirt bearing the logo of the Al-Saiqa Brigade, is seen in a video footage, together with two other persons wearing camouflage trousers, black t-shirts, and holding firearms. Mr Al-Werfalli is holding a white document from which he reads. He refers to the document as a “Decree decision” which “shall be executed today 17/07/2017”. The video also depicts 18 persons wearing orange jumpsuits and black hoods, with their hands tied behind their backs, kneeling bare feet on the ground, in

text: 52 LBY-OTP-0049-0314, at 0316. 53 LBY-OTP-0048-0556. 54 LBY-OTP-0049-0314, at 0317 55 LBY-OTP-0049-0027, 01:12. 56 LBY-OTP-0049-0326, at 0328, lines 6, 10-11. No. ICC-01/11-01/17 10/17 15 August 2017 four lines. After reading the document, Mr Al-Werfalli says “Attention! The first group!” and then “Ready! Aim! Fire!” As he does so, five men in camouflage uniform, hooded, and carrying firearms, walk from behind the group of kneeling persons to the front and position themselves behind the first line of five kneeling persons. They raise their firearms at them and shoot. The persons fall on the ground. One person in the second line also falls. The shooters then return behind the group of the other kneeling persons. 18. Then Mr Al-Werfalli is recorded saying “The second group! Ready! Aim! Fire!” As he does so, five men walk again from behind the group and position themselves behind the second line of five kneeling persons. The person who has collapsed during the first shooting is pulled back to his knees by one of the men. The five men then raise their firearms and shoot the five kneeling persons, who fall on the ground. The shooters then return behind the group of the other kneeling persons. 19. When Mr Al-Werfalli says “Attention! Attention, the third group!” and “Ready! Aim! Fire!” five men walk again from behind the group, position themselves behind the third line of five kneeling persons, raise their weapons and shoot them. The persons fall on the ground and the shooters return behind the group of the remaining kneeling persons. 20. Mr Al-Werfalli and the two other persons wearing camouflage trousers, black t-shirts, and holding firearms then walk behind the final line of three remaining kneeling persons. Mr Al-Werfalli is seen to still hold the white document from which he has read earlier. Mr Al-Werfalli and the other two men raise their firearms and shoot the three kneeling persons, who fall on the ground. He and one of the other

text: 57 LBY-OTP-0049-0326, at 0328, lines 11 and 14. 58 LBY-OTP-0049-0326, at 0328, line 21. 59 LBY-OTP-0049-0326, at 0328, lines 29 and 32. No. ICC-01/11-01/17 11/17 15 August 2017 men fire some additional shots towards the persons on the ground before walking away. 21. In the same video, in a new segment, Mr Al-Werfalli, wearing a black cap, camouflage trousers and a black t-shirt bearing the Al-Saiqa Brigade logo, is seen together with two men wearing orange jumpsuits and black hoods kneeling on the ground. One of the two kneeling men has his hands in front of him while the other has his hands on the back of his head. Mr Al-Werfalli is holding a white document folded in his hand. He is recorded saying “Ready! Aim! Fire!” As he does so, two hooded men in camouflage, carrying firearms, walk forward, raise their weapons and shoot at the two kneeling persons, who fall on the ground. The men fire some additional shots at the victims before walking away. 22. The video depicting this incident, involving in total 20 executed persons, was posted on social media on 23 July 2017. The data indicates that the video may have been uploaded in the Benghazi area, in Libya.

text: III. Jurisdiction of the Court and Admissibility

text: The Chamber finds, pursuant to

text: article 19

text: (1) of

text: the Statute

text: , on the basis of the material submitted and without prejudice to its future determinations on the matter, that the case against Mr Al-Werfalli falls within the jurisdiction of the Court. In particular, the seven incidents occurring in Benghazi or surrounding areas between on or before 3 June 2016 until on or about 17 July 2017 are associated with the ongoing armed conflict underlying the referral by the Security Council pursuant to

text: article 13

text: (b) of

text: the Statute

text: concerning the situation on the territory of Libya since

text: 60 LBY-OTP-0049-0027, 04:19. 61 LBY-OTP-0049-0326, at 0329, line 45. 62 LBY-OTP-0049-0314, at 0318. 63 LBY-OTP-0049-0304, at 0306. No. ICC-01/11-01/17 12/17 15 August 2017

text: 15 February 2011. Importantly, the Chamber recalls that the Al-Saiqa Brigade has been involved in this non-international armed conflict ever since the days of the revolution against the Gaddafi regime. Therefore the Chamber concludes that the alleged crimes described in the Application are sufficiently linked with the situation that triggered the jurisdiction of the Court through the Security Council referral. 24. The Chamber declines, at this stage, to use its discretionary proprio motu power to determine the admissibility of the case against Mr Al-Werfalli as there is no ostensible cause or self-evident factor which impels it to exercise its discretion pursuant to

text: article 19

text: (1), second sentence, of

text: the Statute

text: IV. Requirements of

text: Article 58

text: (1) of

text: the Statute

text: Whether Mr Al-Werfalli has committed a crime under the jurisdiction of the Court

text: Article 58

text: (1)(a) of

text: the Statute

text: The Chamber finds that there are reasonable grounds to believe that an armed conflict not of an international character has been ongoing on the territory of Libya, from at least early March 2011, between governmental forces and different organized armed groups, or among various such armed groups, which include the Al-Saiqa Brigade. The Al-Saiqa Brigade has been involved in the armed conflict ever since the days of the revolution against the Gaddafi regime and since May 2014, against the forces opposing Operation Dignity, in particular the BRSC. 26. The Chamber finds that there are reasonable grounds to believe that (i) the Al-Saiqa Brigade was organized in a hierarchical structure, with field commanders,

text: 64 S/RES/1970 (2011). Pre-Trial Chamber I, Prosecutor v. Callixte Mbarushimana, “Decision on the Prosecutor’s Application for a Warrant of Arrest against Callixte Mbarushimana”,

text: , 28 September 2010, paras 5-7. 65 Pre-Trial Chamber I, Prosecutor v. Callixte Mbarushimana, “Decision on the ‘Defence Challenge to the Jurisdiction of the Court’”,

text: , 26 October 2011, para. 16. 66 Appeals Chamber, Situation in the Democratic Republic of the Congo, “Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”’, ICC-01/04-169, 13 July 2006, paras 1-2, 52. No. ICC-01/11-01/17 13/17 15 August 2017 acting under the overall command of Colonel Bukhmada; (ii) orders circulated down the chain of command and were obeyed; and (iii) the brigade had the ability to plan military operations and put them into effect. Further, the evidence shows that the violence among the above mentioned armed groups has been protracted, rising above the level of isolated and sporadic acts of violence, with the parties to the conflict employing airstrikes, and missile and/or mortar attacks over long periods of time. Notably, the conflict has also attracted the attention of the Security Council.

text: The Chamber finds reasonable grounds to believe that the acts described in Section II (Incidents 1 to 7) constitute the war crime of murder and were committed in the context of and were associated with an armed conflict not of an international character, pursuant to

text: article 8

text: (2)(c)(i) of

text: the Statute

text: . This finding does not prejudice the Prosecutor to amend the legal characterisation of the acts described in the incidents as set out in this warrant of arrest.

text: Further, the Chamber finds that Mr Al-Werfalli personally committed the murders described in Incidents 1, 2, 3 and one of the murders described in Incident 7, and that he ordered, as a superior to others in the Al-Saiqa Brigade, the commission of the murders described in Incidents 4, 5, 6, and 19 of the murders described in Incident 7. The Chamber is further satisfied that he acted with intent and knowledge, and that he was aware of the status of the victims and of the factual circumstances that established the existence of the non-international armed conflict. The Chamber therefore finds reasonable grounds to believe that Mr Al-Werfalli bears individual criminal responsibility as a direct perpetrator under article 25(3)(a)

text: 67 Trial Chamber I, Prosecutor v. Thomas Lubanga Lyilo, “Judgment pursuant to

text: Article 74

text: of

text: the Statute

text: , 14 March 2012, paras 534-538. 68

text: Article 8

text: (2)(d) of

text: the Statute

text: . 69 S/RES/1970 (2011); S/RES/1973 (2011). 70 In particular, “the staging of these executions in front of the camera and the posting of the videos to social media”, the Application, para. 156. 71

text: Article 30

text: of

text: the Statute

text: Article 8

text: (2)(c)(i)-1, Elements of Crimes. No. ICC-01/11-01/17 14/17 15 August 2017

text: 72 73 of

text: the Statute

text: , and under

text: article 25

text: (3)(b) of

text: the Statute

text: for ordering the commission of crimes. This does not prejudice the Prosecutor to amend the legal characterisation of Mr Al-Werfalli’s criminal responsibility in light of the evidence presented at a later stage. 2. Whether the arrest of Mr Al-Werfalli appears necessary (Article 58(1)(b) of the

text: Statute)

text: article 58

text: (1)(b) of

text: the Statute

text: , that the arrest of Mr Al-Werfalli appears necessary to ensure that (i) he is prevented from continuing with the commission of these crimes or related crimes arising out of the same circumstances, as described in Section II; and (ii) he appears at trial. Considering the pattern of executions committed over the past months, since March 2017, and the recent escalation of Mr Al-Werfalli’s conduct, the Chamber is of the view that Mr Al-Werfalli, unless prevented, is likely to continue to carry out crimes of similar gravity in the near future. The posting on social media of the videos depicting the executions, and the frequency and particular cruelty with which they are carried out satisfy the Chamber that Mr Al-Werfalli is unlikely to cooperate with a summons to appear, within the meaning of

text: article 58

text: (7) of

text: the Statute

text: . Thus, the issuance of a warrant of arrest is necessary.

text: V. Classification

text: Pursuant to regulation 23bis(3) of the Regulations of the Court, and considering the reasons provided by the Prosecutor in her Application, the Chamber is of the view that it may issue the warrant of arrest publicly. At the same time, the Prosecutor is ordered to prepare a public redacted version of the Application as soon as possible.

text: 72 Pre-Trial Chamber II, Prosecutor v. Bosco Ntaganda, “Decision Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: on the Charges of the Prosecutor Against Bosco Ntaganda”,

text: , 9 June 2014, para. 136. 73 Pre-Trial Chamber II, Prosecutor v. Sylvestre Mudacumura, “Decision on the Prosecutor’s Application under Article 58”,

text: -Red, 13 July 2012, para. 63. No. ICC-01/11-01/17 15/17 15 August 2017

text: FOR THESE REASONS, THE CHAMBER HEREBY

text: articles 25

text: (3)(a) and (b) of

text: the Statute

text: , for the war crime of murder under

text: article 8

text: (2)(c)(i) of

text: the Statute

text: , in seven incidents against 33 persons as described in Section II, which took place from on or before 3 June 2016 until on or about 17 July 2017 in Benghazi or surrounding areas, in Libya; DECIDES that the warrant of arrest is issued publicly and may be communicated to any State or international organisation for the purpose of its execution; DECIDES that, as soon as practicable, the Registrar shall: (i) prepare a request for cooperation seeking the arrest and surrender of Mr Al-Werfalli and containing the information and documents required by

text: articles 89

text: (1) and

text: of

text: the Statute

text: and rule 187 of the Rules of Procedure and Evidence; and (ii) transmit, in consultation and coordination with the Prosecutor, the request to the competent authorities of Libya or any other relevant State, or to any other competent authority, in accordance with

text: article 87

text: of

text: the Statute

text: and Resolution 1970 of the United Nations Security Council to cooperate with the Court for the purpose of executing the request for arrest and surrender of Mr Al-Werfalli; DIRECTS the Registrar to prepare and transmit to any relevant State, in consultation and coordination with the Prosecutor, any request for transit pursuant to

text: article 89

text: (3) of

text: the Statute

text: article 92

text: of

text: the Statute

text: which may be necessary for the surrender of Mr Al-Werfalli; ORDERS the Prosecutor to transmit to the Registry and to the Chamber all information available to her that may be of assistance in the execution of the request for arrest and surrender as well as any information of relevance to assessing any

text: No. ICC-01/11-01/17 16/17 15 August 2017 risks to victims and witnesses associated with the transmission of the request for arrest and surrender; ORDERS the Registrar to prepare, as soon as practicable, an Arabic translation of the present warrant of arrest for the purpose of transmitting it to the Libyan authorities; ORDERS the Registrar to open a case record and to transfer first the Prosecutor’s Application from the situation record into the case record; and ORDERS the Prosecutor to prepare a public redacted version of the Application as soon as possible.

text: Done in both English and French, the English version being authoritative.

text: Judge Joyce Aluoch Presiding Judge

text: _____________________________ _____________________________

text: Judge Cuno Tarfusser Judge Péter Kovács

text: Dated this Tuesday, 15 August 2017 At The Hague, The Netherlands

text: No. ICC-01/11-01/17 17/17 15 August 2017


identifier: ICC-01/12-01/15 (Order concerning the transfer of documents into the record of the case and their level of classification)

caseName: The Prosecutor v. Ahmad Al Faqi Al Mahdi

text: the Statute, article 58

text: fBAE

text: Original: English No.: ICC-01/12-01/15 Date: 30 September 2015

text: PRE-TRIAL CHAMBER I

text: Before: Judge Cuno Tarfusser, Single Judge

text: SITUATION IN THE REPUBLIC OF MALI IN THE CASE OF THE PROSECUTOR v. AHMAD AL FAQI AL MAHDI

text: Public

text: No. ICC-01/12-01/15 1/4 30 September 2015

text: To be notified, in accordance with regulation 31 of the Regulations of the Court, to:

text: The Office of the Prosecutor Counsel for the Defence

text: Fatou Bensouda Mohamed Aouini James Stewart

text: Legal Representatives of the Victims Legal Representatives of the Applicants

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

text: States Representatives Amicus Curiae

text: REGISTRY

text: Registrar Counsel Support Section

text: Herman von Hebel

text: Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Other Section

text: No. ICC-01/12-01/15 2/4 30 September 2015

text: Judge Cuno Tarfusser, Single Judge exercising the functions of the Chamber in the present case, issues this order concerning the transfer of documents into the record of the case and their level of classification. 1. In order to ensure that documents in the record of the situation which are relevant to the present proceedings are available in the record of the case, it is necessary that the Registrar copies into the record of the case, maintaining the current level of classification, the documents listed in the operative part to this decision. 2. Noting regulation 23 bis of the Regulations of the Court, the Single Judge further considers that there exists a need to review the continued necessity for the level of classification of the documents thus transferred into the record of the case, in order to ensure to the greatest possible extent that they are accessible to the Defence and to the public. This does not concern the material filed in support of the Prosecutor’s application under

text: article 58

text: of

text: the Statute

text: (ICC-01/12-33-Secret-Exp and annexes), for which a separate order for review of the level of classification of the material has been issued (ICC-01/12-01/15-2- Secret-Exp).

text: FOR THESE REASONS, THE SINGLE JUDGE

text: ORDERS the Registrar to copy from the record of the situation into the record of the case, maintaining the current level of classification, the following documents:  ICC-01/12-12-Conf-Exp and annexes;  ICC-01/12-13-Conf-Exp and ICC-01/12-13-Conf-Exp-tENG;  ICC-01/12-15-Conf-Exp and annexes;  ICC-01/12-17-Conf-Exp and annexes;

text: No. ICC-01/12-01/15 3/4 30 September 2015

text:  ICC-01/12-18-Conf-Exp and ICC-01/12-18-Conf-Exp-tENG;  ICC-01/12-19-Conf-Exp and annexes;  ICC-01/12-27-Conf-Exp and annexes;  ICC-01/12-28-Conf-Exp;  ICC-01/12-29-Conf-Exp and annexes;  ICC-01/12-30-Conf-Exp;  ICC-01/12-32-US-Exp; and  ICC-01/12-33-Secret-Exp and annexes. ORDERS the Prosecutor and the Registrar to review each of their filings which are not currently classified as “public” and, by 7 October 2015: (i) to indicate those which can be reclassified as “public” or, failing that and as appropriate, “confidential”; (ii) to file, insofar possible, public or confidential redacted versions of documents which cannot as such be reclassified as “public” or “confidential”; (iii) to put on the record of the case reasons justifying the level of classification of any filing that cannot be made public. Done in both English and French, the English version being authoritative.

text: Judge Cuno Tarfusser Single Judge

text: Dated this 30 September 2015 At The Hague, The Netherlands

text: No. ICC-01/12-01/15 4/4 30 September 2015