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Prosecutor v Al-Tuhamy (Mohamed Khaled), Warrant of Arrest for Al-Tuhamy Mohamed Khaled with under seal and ex parte Annex, Case no ICC-01/11-01-12-1, ICL 1782 (ICC 2017), 18th April 2013, International Criminal Court [ICC]; Pre Trial Chamber I [ICC]

Parties:
The Prosecutor
Al-Tuhamy Mohamed Khaled
Judges/Arbitrators:
Silvia Fernández de Gurmendi (President); Hans-Peter Kaul; Christine Van den Wyngaert
Procedural Stage:
Warrant of Arrest for Al-Tuhamy Mohamed Khaled with under seal and ex parte Annex
Subsequent Development(s):
Decision on reclassification of the warrant of arrest; Situation in Libya, Prosecutor v Al-Tuhamy, Case no ICC-01/11-01/13-18, 23 April 2017
Subject(s):
Torture — Imprisonment — Armed conflict, non-international — Other inhumane acts — Persecution
Core Issue(s):
Whether there were reasonable grounds to believe that an individual was responsible, under Articles 25(3)(a) and/or 25(3)(d), and/or 28(b) of the Rome Statute of the International Criminal Court (‘Rome Statute’), for crimes against humanity and war crimes committed in Libya between 15 February 2011 and 24 August 2011.
Whether the arrest of an individual was necessary pursuant to Article 58 of the Rome Statute.

Oxford Reports on International Criminal Law is edited by:

Professor William Schabas, Middlesex University London

Professor Göran Sluiter, University of Amsterdam

Facts

F1  The violence in Libya had erupted in February 2011 in the context of an uprising against the regime of Muammar Mohammed Gaddafi. By early March 2011, the situation had escalated into hostilities between governmental and rebel forces.

F2  The situation in Libya was referred to the Prosecutor of the International Criminal Court (‘ICC’) by the United Nations Security Council in its Resolution 1970, United Nations Security Council, S/RES/1970 (2011), 26 February 2011 in accordance with Article 13(b) of the Rome Statute of the International Criminal Court (17 July 1998) 2187 UNTS 3, UN Reg No I-38544, UN Doc A/CONF.183/9, entered into force 1 July 2002 (‘Rome Statute’). On 3 March 2011, the Prosecutor announced the decision to open an investigation into the situation in Libya.

F3  On 27 March 2013, the Prosecutor requested the issuance of an arrest warrant for Al-Tuhamy Mohamed Khaled (‘Al-Tuhamy’) for his alleged criminal responsibility under Articles 25(3)(a) and/or 25(3)(d), or 28(b) of the Rome Statute 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 Articles 7(l)(e), 7(l)(f), 7(l)(h), and 7(l)(k) of the Rome Statute and the war crimes of torture, cruel treatment, and outrages upon personal dignity committed in Libya from 24 February 2011 to 24 August 2011, in violation of Articles 8(2)(c)(i) and 8(2)(c)(ii) of the Rome Statute.

Held

H1  The case against Al-Tuhamy fell within the jurisdiction of the ICC. Nothing impelled the Chamber to exercise its discretionary power to determine the admissibility of the case at this stage. This finding was without prejudice to the Chamber’s determination of any future challenge to the admissibility of the case under Article 19(2)(a) and 19(2)(b) of the Rome Statute. (paragraph 4)

H2  There were reasonable grounds to believe that a widespread and systematic attack within the meaning of Article 7(1) of the Rome Statute had been carried out by the Libyan military, intelligence, and security agencies against the civilian population between 15 February and 24 April 2011. (paragraph 5)

H3  From at least early March 2011 to 24 August 2011, an armed conflict of non-international character had existed between governmental forces and rebel forces in Libya. (paragraph 6)

H4  There were reasonable grounds to believe that, between 15 February 2011 and 24 August 2011, members of the Internal Security Agency (‘ISA’) and other security forces had committed the crimes against humanity of imprisonment under Article 7(l)(e) of the Rome Statute, torture under Article 7(l)(f) of the Rome Statute, other inhumane acts under Article 7(l)(k) of the Rome Statute, and persecution under Article 7(l)(h) of the Rome Statute in various locations throughout Libya. Those acts had been committed in the context of the widespread and systematic attack against the civilian population. (paragraphs 7–9)

H5  There were furthermore reasonable grounds to believe that members of the ISA and other security forces had committed the war crimes of torture and cruel treatment under Article 8(2)(c)(i) of the Rome Statute and outrages upon personal dignity under Article 8(2)(c)(ii) of the Rome Statute from at least early March 2011 to 24 August 2011 and that these acts had been committed in the context of, and had been associated with, an armed conflict not of an international character. (paragraph 10)

H6  There were also reasonable grounds to believe that Al-Tuhamy had been the head of the ISA from at least 15 February 2011 until 24 August 2011. In this capacity, Al-Tuhamy bore individual criminal responsibility within the meaning of Articles 25(3)(a) and/or 25(3)(d) and 28(b) of the Rome Statute for these crimes. (paragraphs 11–12)

H7  Al-Tuhamy’s arrest was necessary to assure his appearance at trial pursuant to Article 58(l)(b)(i) of the Rome Statute in light of the nature of his former position as the head of an intelligence agency, the contacts, knowledge, and resources available to him, and his alleged possession of at least 10 different passports. (paragraph 13)

H8  The warrant of arrest for Al-Tuhamy for four counts of crimes against humanity and three counts of war crimes was granted. paragraph 14)

H9  The warrant of arrest for Al-Tuhamy would remain under seal, ex parte the Prosecutor and Registry only, but in order to effect his arrest and surrender to the seat of the Court, it could be communicated as necessary to third parties, including any state or international organizations. Reclassification of the warrant of arrest would be considered upon the arrest and surrender of Al-Tuhamy to the Court. paragraph 15)

H10  A request for cooperation was to be submitted to the Egyptian authorities and any other relevant state by the Registrar. paragraph 16) The Prosecutor was ordered to make, as far as her confidentiality obligation allowed, all necessary information available to the Registrar and the Chamber. paragraph 17)

Date of Report: 08 November 2017
Reporter(s):
Mirka Fries

Analysis

A1  The arrest warrant for Al-Tuhamy was the second public arrest warrant issued by ICC Prosecutor Fatou Bensouda. It was the fourth warrant publicly issued by the ICC for crimes allegedly committed in the Libyan revolution. In 2011, the Court had issued warrants of arrest for Muammar and Saif al-Islam Gaddafi and former intelligence chief Abdullah al-Senussi. This arrest warrant sent the message that further warrants were likely to be issued, or would be issued in the future, for additional individuals suspected of crimes committed in the Libyan conflict.

A2  The warrant of arrest for Al-Tuhamy, initially issued under seal, was reclassified as public on 24 April 2017—Situation in Libya, Prosecutor v Al-Tuhamy, Decision on reclassification of the warrant of arrest, Case no ICC-01/11-01/13-18, 23 April 2017. After having existed under seal and without public knowledge since 18 April 2013, the warrant of arrest was unsealed in April 2017 to alert the international community of its existence and to facilitate Al Tuhmany’s arrest and surrender. The fact that the Egyptian authorities were mentioned in the arrest warrant suggested that Al-Tuhamy had been suspected of being in Egypt, a non-member state to the ICC, at that time. The unsealing of the arrest warrant also sent the message that the ICC’s Prosecutor had not forgotten the crimes committed in Libya and was determined to end impunity in the country.

A3  Worrisome is the fact that—judging by the public arrest warrants—the ICC had not yet indicted members of the opposition fighters, despite widespread allegations that crimes against humanity and war crimes had been committed also on the side of the opposition.

A4  The question of whether the ICC’s arrest warrants, especially those issued in the context of the Situation in Libya, should be issued sealed or unsealed has repeatedly caused debates in international criminal justice circles. Supporters of keeping the warrants sealed have argued that unsealing them would decrease the prospects of the arrest warrants being executed. Others held the position that disclosing the arrest warrants might deter the commission of further crimes.

Date of Analysis: 08 November 2017
Analysis by: Mirka Fries

Instruments cited in the full text of this decision:

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Decision - full text

Paragraph numbers have been added to this decision by OUP

Pre-Trial Chamber I (“the Chamber”) of the International Criminal Court hereby issues a warrant of arrest for Al-Tuhamy Mohamed Khaled (“Al-Tuhamy”).1

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 article 13(b) of the Rome Statute (“Statute”) and urging all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor.2

2.  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 articles 25(3)(a) or (d), or 28(b) of the Statute 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 articles 7(1)(e), (f), (h), and (k) of the Statute and the war crimes of torture, cruel treatment and outrages upon personal dignity committed in Libya from 24 February 2011 to 24 August 2011, in violation of articles 8(2)(c)(i) and 8(2)(c)(ii) of the Statute.

3.  The Chamber notes articles 19 and 58 of the Statute.

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 article 19(2)(a) and (b) of the Statute, the case against Al-Tuhamy fails within the jurisdiction of the Court and no ostensible 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 article 7(1) of the Statute 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 forces and rebel forces existed from at least early March 2011 to 24 August 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 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 article 7(1)(e) of the Statute, torture under article 7(1)(f) of the Statute, other inhumane acts under article 7(1)(k) of the Statute and persecution under article 7(1)(h) of the Statute 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 article 7(1) of the Statute.

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 article 8(2)(c)(i) of the Statute, cruel treatment under article 8(2)(c)(i) of the Statute and outrages upon personal dignity under article 8(2)(c)(ii) of the Statute 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 article 8 of the Statute.

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 political prisoners. The Chamber finds reasonable grounds to believe that Al-Tuhamy, in his capacity 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 article 25(3)(a) and (d) of the Statute; 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 article 28(b) of the Statute.

13.  Finally, pursuant to article 58(1)(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.

FOR THESE REASONS, THE CHAMBER

14  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 Internal Security Agency, for his alleged criminal responsibility pursuant to article 25(3)(a) and (d) and article 28(b) of the Statute for the crimes against humanity of imprisonment under article 7(1)(e) of the Statute; torture under article 7(1)(f) of the Statute; other inhumane acts under article 7(1)(k) of the Statute and persecution under article 7(1)(h) of the Statute committed in the territory of Libya from 15 February 2011 to 24 August 2011; as well as for the war crimes of torture under article 8(2)(c)(i) of the Statute; cruel treatment under article 8(2)(c)(i) of the Statute and outrages upon personal dignity under article 8(2)(c)(ii) of the Statute committed in the territory of Libya from at least early March 2011 until 24 August 2011;

15  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 international 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 articles 89(1) and 91 of the Statute 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 with rule 176(2) of the Rules of Procedure and Evidence; and (iii) invite the Egyptian authorities in accordance with article 87(5) of the Statute 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;

16  REQUESTS the Egyptian authorities, pursuant to article 87(3) of the Statute, to keep this request and any document accompanying this request confidential, except to the extent that the disclosure is necessary for execution of the request.

DIRECTS the Registrar, pursuant to article 89(3) and 92 of the Statute, 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;

17  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.

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

Judge Silvia Fernández de Gurmendi

Presiding Judge

Judge Hans-Peter Kaul

Judge Christine Van den Wyngaert

Dated this 18 April 2013

At The Hague, The Netherlands

 

Footnotes:

1  Alternative romanised spellings of his name include Al-Touhami Khalid, Al-Tohamy Khaled, Tourhi Kalid, Touhami Khalid, Touhamy Khaled.

2  S/RES/1970 (2011).