Over at Opinio Juris, Kevin Jon Heller notes that the debate which he, Jens David Ohlin and I have had regarding whether Libya can postpone it’s obligation to surrender Saif Gaddafi to the International Criminal Court is now being waged by organs of the ICC. As Kevin notes:
Two organs of the Court have now weighed in on the issue, with a rather ironic inversion: the Office of the Prosecutor takes the position that Libya is under no obligation to surrender Saif, while the Office of the Public Counsel for the Defence, which is representing Saif, argues that it does have such an obligation.
The motions are a study in contrasts. The OTP’s motion is a mere six pages, noting that Article 95 refers to postponements of requests under Part IX of the Rome Statute, a part that applies to both requests for surrender and other forms of cooperation, and analogizing Article 95 to Article 89(2), which allows surrender to be postponed when a suspect brings a ne bis in idem challenge in a national court. It’s a very underwhelming motion, and I don’t say that simply because I disagree with it. Had the OTP relied much more heavily on Dapo and Jens’s arguments, the motion would have been much stronger.
Kevin goes on to note that the OPCD motion makes arguments similar to his arguments in his Opinio Juris points on the issue and indeed cites his posts. In addition to the filings by these two organs of the ICC, there is a third motion on this question, which was recently filed before the ICC. This is the request by the National Transitional Council of Libya for the ICC to postpone or suspend the obligation to surrender Saif Gaddafi. Libya’s previous requests for postponement of the surrender obligation were rejected by the ICC (see my earlier post). Those requests were made at a time when Libya had not contested the admissibility of the ICC proceedings. However, Libya has now challenged the admissibility of the proceedings against Saif Gaddafi. Libya asserts that the case against Saif and Al Sanussi are inadmissible because Libya’s “national judicial system is actively investigating Mr Gaddafi and Mr Al-Senussi for their alleged criminal responsibility for multiple acts . . . amounting to crimes against humanity.” Libya’s admissibility challenge changes the picture significantly as it is now entitled to rely on Article 95 of the ICC statute which explicitly applies where admissibility has been challenged.
The question that arises is whether Article 95, which permits postponement of a State’s obligation to cooperate with the ICC extends to the obligation of surrender. Libya (and the OTP) argue that Art. 95 does. Libya argues that interpreting Article 95 as permitting postponement of the obligation of surrender upholds the principle of complementarity. This is a point that I made in my previous EJIL:Talk! post and which I develop more fully in my recent article on this issue published earlier this month in the Journal of International Criminal Justice. Indeed, Libya cites and rely on both my post and on my article.
Of the three motions on the issue of postponement of Libya’s obligation of surrender, only the motion of the OPCD addresses the question of the source of Libya’s obligation to cooperate with the ICC. The OPCD argues that since Libya is not a party to the ICC Statute, it is not entitled to rely on Art. 95 of the ICC Statute. The argument is based on the fact that Libya’s obligation of cooperation is derived not from the ICC Statute but from the UN Security Council resolution that refers the Libyan situation to the ICC. In its previous decisions in the Saif case, the ICC Pre-Trial Chamber has implicitly assumed that Libya is entitled to rely on the exceptions in Part 9 of the ICC Statute to the obligation of cooperation. The OPCD motion invites the ICC to rule on this issue explicictly. In my article, I argue that the SC can indeed impose an obligation of cooperation with the ICC which goes beyond what is in the ICC Statute. However, I also argue that the SC has not (yet) done this, and Libya’s (and Sudan’s) obligation to cooperate with the ICC is an obligation to cooperate in accordance with the ICC Statute. Thus entitling Libya to rely on exceptions within the Statute.