A Concept without Consensus: Conceptualisation of the ‘Situation’ Notion in the Rome Statute

in International Criminal Law Review
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In response to quelling Libya’s popular uprising against the authoritarian rule of Gaddafi, the United Nations Security Council referred the situation in Libya to the International Criminal Court. Subsequently, the Office of the Prosecutor brought four cases against the most responsible seniors for attacking civilians protesting the Gaddafi regime in 2011. Later, the Prosecutor went behind the borders of the original situation by prosecuting Al-Werfalli, who was accused of crimes taking place in the summer 2017, when there was no repressive apparatus against Gaddafi’s opponents. This recent case may pose a jurisdictional challenge that leads to a conceptual question: what does the concept of a ‘situation’ mean? The Court’s jurisdiction limits the contours of a situation. The main constituent element of a situation is a concrete crisis that differentiates the situation from others. This contextual element will be discussed in this article.