Over the past few months, I have written a number of posts on whether Libya would be entitled to suspend (or postpone) its obligation to surrender Saif Gaddafi to the ICC in the event of Libya challenging the admissibility of ICC proceedings (see here, here, here , here and here). In what I thought was a great and really productive exchange of views,I debated the issue with Kevin Jon Heller at Opinio Juris and Jens David Ohlin at LieberCode. In April, the ICC Pre-Trial Chamber rejected Libya’s application to suspend the obligation to surrender Saif Gaddafi holding that although Libya had, at that stage, indicated its intention to challenge admissibility of the case, it had not actually done so. In May, Libya did file a challenge to the admissibility of the proceedings (which has been discussed here on EJIL:Talk!). Earlier this month, the Pre-Trial Chamber held that as a result of Libya’s admissibility challenge, Libya is entitled, under Article 95 of the ICC Statute to postpone its obligation to surrender Saif Gaddafi to the ICC. That suspension of the obligation of surrender will last until the ICC determines the validity of the admissibility challenge.
ICC’s Pre-Trial Chamber took the same position as I took in my blog posts on the issue and in my recent article in the Journal of International Criminal Justice. In fact, the chamber addressed the issue in pretty much the same way as I have, structuring their decision in a similar way to me and using similar arguments. In terms of the structure of the decision, the chamber first addressed the question of whether and how the ICC Statute applies to the obligation of cooperation in cases of a Security Council referral. Then the Chamber addressed the question whether Article 95 of the Statute applies to the obligation of surrender.
With regard to the application of the ICC Statute in case of UN Security Council referrals, the chamber reiterated its earlier decision that:
“the legal framework of the Statute applies in the situations referred by the Security Council in Libya and Darfur, Sudan, including its complementarity and cooperation regimes.” (para. 28)
This decision means that Libya’s obligation to cooperate with the ICC under UN SC Resolution 1970 is an obligation to cooperate in accordance with the Statute. It means that Libya is bound by the Statute but also entitled to rely on exceptions provided for in the Statute (such as the exception contained in Art. 95). This point is relevant to a number of things. As I have argued in the past, the imposition of this statutory framework in cases of SC referrals has implications for varied matters such as immunity of state officials, and, as noted in my earlier post, for the obligations of states to respect the immunity of ICC officials. It is important to note that it is not merely the cooperation obligations of Libya that is governed by the Statute. It is the legal framework of the Statute that applies to Libya. At a minimum, as provided for in Art. 1 of the Statute, and as noted by the chamber (para. 27), the jurisdiction and functioning of the Court is governed by the Statute (thus, provisions relating to jurisdiction and how the Court is to operate are binding on the referred State).
The chamber then turned to the interpretation of Article 95 of the ICC Statute and held that the permission to suspend ICC cooperation obligations provided for in that provision extends to the obligation of surrender. Art. 95 provides that:
“[w]here there is an admissibility challenge under consideration by the Court pursuant to article 18 and 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19”.
The chamber took the same view as mine on the scope of that provision. It held that “[t]he Chamber does not consider that the reference to ‘such evidence pursuant to article 18 or 19″ contained in the last sentence of article 95 of the Statue has the effect of narrowing its scope to requests concerning evidentiary issues only” (para. 33). The chamber confirmed my view that Art. 95 was to regarded, at least in part, as a consequence of the fact that when a State challenges admissibility proceedings in an ICC case, the Prosecutor is obliged to suspend investigations and proceedings are in effect frozen. However, the Prosecutor may, exceptionally, apply to the Court to continue to gather particular evidence and the “such evidence” language in Art. 95 refers to this feature of Arts. 18 & 19 but does not limit the scope of Art. 95.
In holding that the obligation of surrender is suspended in case of Art. 95, the Chamber confirmed the importance of complementarity as a key feature of the Statute. It held that:
“that the complementarity principle is a central aspect [of the Court’s legal framework] . . . and a key feature of the institution. The suspension of the investigation and the corresponding postponement of the cooperation requests is one major consequence of this principle. It would be untenable for the Court to insist on compliance with a request for arrest and surrender, even at the risk of hampering the national proceedings, while its own investigation is suspended.” (para. 36)
One issue that the Chamber failed to deal with was the interaction between Art. 95 which provides a general permission to suspend cooperation obligations in the case of an admissiblity challenge and Art. 89(2) which provides a specific permission to suspend the obligation to surrender in the case of a ne bis in idem challenge in a national court. It is not clear why this issue was omitted from the Chamber’s analysis as it was argued by the parties and was debated by Kevin, Jens and I (with our blog posts and my article being cited to the Court). My own view is that these provisions deal with different issues as Art. 89(2) relates to a challenge before a national court while Art. 95 deals with admissibility challenges at the ICC.