After the capture of Saif Gaddafi (who is wanted by the International Criminal Court) in November last year, Libya’s National Transitional Council stated that it would seek to prosecute Saif in Libya and that the NTC did not intend to turn him over to the ICC (see document filed by ICC Prosecutor). This prompted discussion here and elsewhere as to whether Libya was under an obligation to surrender Saif Gaddafi to the ICC pending the determination of where he would be tried. Kevin Jon Heller at Opinio Juris, Jens David Ohlin at LieberCode and I (here and here) had a discussion about the relevant provisions of the ICC Statute and whether those provisions permit a State to suspend its obligation to surrender an accused person, pending the determination of an admissibility challenge by the ICC. Kevin thought the answer was yes, David and I thought it was no. Well, nearly two months on, Libya has not only failed to surrender Saif but it has not made an admissibility challenge either! It did write a letter to the ICC on 23 November stating that:
“The National Transitional Council wishes to affirm that, in accordance with the Rome Statute, the Libyan judiciary has primary jurisdiction to try Saif al‐Islam Gaddafi and that the Libyan State is willing and able to try him in accordance with Libyan law”
However, no specific reference was made in that letter to the provisions of the Statute dealing with complementarity or admissibility, nor was there an explicit statement that the case should be regarded by the ICC as inadmissible.
Since November, there have been some proceedings at the ICC where the Pre-Trial Chamber has sought Libya’s views on the matter. For reasons which are entirely unclear to me, Libya’s submission to the PTC, made on the 23rd of January, were made on a confidential basis and all that is public is a report by the ICC Registry indicating that the observations were made. If anyone knows why the observations are confidential, I would be delighted to know. The Prosecutor’s response, which was due on the 2nd of February is also absent from the ICC website. The NTC letter of 23 November, though it is the most innocuous letter, and contains nothing at all that is remotely sensitive, was also originally classified as confidential. There, is on the website, a response to Libya’s observations filed by the ICC’s Office of Public Counsel for Defence (OPCD) but parts of that document are redacted. It all seems rather mysterious to me. In any case, the OPCD response gives some indication of the arguments relied on by Libya. It appears that Libya is relying solely on Article 94 of the ICC Statute as justification for its failure to hand over Saif Gaddafi (see para. 36, OPCD submission and NTC letter of 23 Nov). In the previous discussion here (and here), at Opinio Juris, and at LieberCode of whether the obligation to surrender is suspended where there is an admissibility challenge, we focussed on Article 19, 89(2) and 95 – all of which deal with the effect of admissibility challenges. We did not discuss Article 94. As I discuss below, I think Libya’s reliance on Art. 94 is misguided. Given that it has a much stronger claim under Art. 95, it is not clear to me why they are relying on Art. 94. Art. 94(1) provides that:
“If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions.”
The reason we didn’t discuss Art. 94 is that it does not explicitly purport to apply to admissibility challenges. Two questions arise with respect to this provision. The first question is whether it may be utilised in the case of an admissibility challenge or where there are domestic proceedings relating to the same conduct in respect of which the ICC wants the accused person. The second question that arises with respect to Art. 94 is whether the provision may be used to postpone execution of a request for surrender. This is similar to the question Kevin, Jens and I discussed earlier as to whether Art. 95 may be used to suspend the obligation to surrender. However, unlike the position I take with regard to Art. 95, I am of the view that Art. 94 does not apply to the obligation to surrender an accused person.
Article 94, Admissibility challenges and Cases Dealing with the Same Conduct
It is possible to construe Art. 94 as also applying in the case of a challenge to admissibility since admissibility challenges will, in the main, be based on the fact that the case is being investigated or prosecuted domestically. Whether this is an appropriate interpretation depends on how one interprets the phrase “prosecution of a case different from that to which the request relates” and on the test adopted with regard to complementarity and admissibility under Articles 17, 18 and 19 of the ICC Statute. If the test for (in)admissibility is that the same person is being investigated for the same conduct in national proceedings and if different case under Article 94 means a national case relating to conduct different from the conduct at stake in the ICC case, then Art. 94 could not apply to cases of admissibility challenges. However, if different case under Article 94 simply means a case other than the ICC case, it would encompass a domestic investigation with regard to the same conduct. It seems that the best way to interpret Art. 94 is to interpret it in context, i.e together with Art. 95 which deals with suspension of the obligation of cooperation in cases of admissibility challenges. The best way to regard the interaction of the two is that Article 94 deals with a domestic case that deals with different conduct while Article 95 deals with a domestic case that deals with the same conduct. In the latter case, it is expected that an admissibility challenge will be made. Any other interpretation would mean that there is too much overlap between the two provisions. Also, to interpret Art. 94 as applying to cases dealing with the same conduct as under investigation by the ICC would be to permit the requested State to suspend its obligations without making an admissibility challenge but simply by relying on its domestic investigation.
Even, if Article 94 applied to a domestic case dealing with the same conduct covered by the ICC case, it does not seem likely that a State would rely on it where it has made an admissibility challenge since reliance on Art. 95 would be the better option. This is because Art. 95, like Article 94, permits the suspension of the obligation to cooperate with the Court but, unlike Art. 94, does not require agreement of the Court as to the duration of the suspension of the obligation. However, were Art. 94 to be applied, there would be a suspension but the Prosecutor cannot apply to the Court to collect new evidence (as may happen under Art. 95) but can only seek measures to preserve evidence.
Article 94 and the Obligation of Surrender
Although Art. 94 does not state explicitly that it does not apply to requests for arrest and surrender, the provision ought not to be interpreted as permitting suspension of the obligation to surrender to the ICC. While Art. 95 states that it relates to “a request under this Part”, i.e a request under Part 9, Art. 94 ought to be regarded as confined to requests for forms of cooperation other than arrest and surrender. One reason for the different interpretation is that Art. 94 applies to any national investigation and so would apply to any investigation for even relatively minor crimes (while Art. 95 would apply only to serious crimes). Also, while Art. 95 might apply in the context of a general freeze of ICC proceedings (where the State challenges admissibility) and it would seem understandable for the obligation of surrender to also be suspended, with Art. 94 the ICC proceedings are not frozen and the investigation or prosecution carry on. In that context, there seems to be no reason to allow the State to suspend its obligation of surrender, especially where the national investigation is for a lesser crime.
The drafting history of Art. 94 also suggests that the provision was not intended to apply to requests for surrender. In Part 9 of the Statute, Articles 89 – 92 deal with the obligation of cooperation with regard to requests for arrest and surrender. Art. 93 then deals with “Other forms of cooperation”, and relates to requests other than for arrest and surrender. The working group responsible for the negotiation of this part of the Statute indicated in its report to the drafting committee that what is now Art. 94 (then 90(a)) should be placed after Art. 93 (Other forms of cooperation) and before Art. 96 (then Art. 90 bis: Contents of request for other forms of assistance under article 93) (see ftnt 230, p.331 & p. 334 of Vol. 3 of the Official Records of the Rome Conference). This makes it clear that the working group thought there was a close relationship between Art.94 and other provisions dealing with forms of assistance other than surrender.
Since Art. 94 is only applicable to requests for cooperation other than arrest and surrender, Libya is not entitled to rely on it in order to delay or postpone the surrender of Saif Gaddafi. The only way Libya can postpone such surrender lawfully is to challenge the admissibility of proceedings before the ICC. Why they have refused to do so thus far is quite a mystery.