Is Libya Under an Obligation to Surrender Saif Gaddafi to the ICC? Part I (What Does the Rome Statute Say?)

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Since the capture of Saif Al Islam Gaddafi last week there have been questions asked about whether he ought to be tried in Libya or by the International Court Criminal which issued an arrest warrant for him in June. The Rome Statute of the ICC includes the principle of complementarity which means that the ICC must defer to genuine national proceedings. If the Libyan authorities are serious about conducting domestic proceedings against Saif they would be entitled to challenge the admissibility of the ICC proceedings under Article 19 of the ICC Statute.

 This week there has been a very interesting discussion of whether the Libyan authorities are entitled to hold Saif while they challenge admissibility or does Libya have an obligation to surrender  Saif Al Islam Gaddafi to the ICC pending the determination of any admissibility challenges. For a really good exchange of views, see posts by Kevin Jon Heller at Opinio Juris and by the equally excellent Jens David Ohlin (who teaches at Cornell Law School) at his new blog Lieber Code. Kevin takes the view that Libya has a continuing obligation to surrender Saif even if it challenges admissibility whereas  Jens takes the view that Libya’s surrender obligations will be suspended if it challenges admissibility. The discussion has focussed on the ambiguity in the Rome Statute regarding  surrender obligations in case of challenges to jurisdiction and admissibility. My own thinking on this issue is more in line with Jens. In this post, I set out my line of reasoning regarding the interpretation of the key provisions of the Rome Statute but would very much welcome comments on the arguments.n

However, I should note that the analysis that follows deals only with the Rome Statute. In the discussion between Kevin and Jens there is an assumption that it is the Rome Statute that is determinative of this matter. However, there is the possibility that the matter is actually to be determined by the Security Council resolution which refers the Libyan situation to the ICC. In short, is it possible that the Security Council may have imposed obligations on Libya which are different from (more extensive than) those contained in the Statute? I will deal with this in a later post.

The ICC issued a press release on Wednesday in which it appeared to be saying that Libya has an obligation to surrender even if it challenges admissibility. According to the Press Release:

“The warrant of arrest [against Saif] remains outstanding and procedures as provided for in the Rome Statute need to be followed. The Pre-Trial Chamber Judges have the exclusive competence to decide on the continuation of the ICC judicial procedure.

In accordance with Resolution 1970, adopted unanimously by the United Nations Security Council on 26 February 2011, the Libyan authorities have the obligation to cooperate fully with the Court. On 5 July 2011, a request for cooperation with regard to the surrender of the suspect was notified, together with the warrant of arrest, to the Libyan authorities.

Should the Libyan authorities wish to conduct national prosecutions against the suspect, they shall submit a challenge to the admissibility of the case before Pre-Trial Chamber I, pursuant to articles 17 and 19 of the Rome Statute of the ICC. Any decision on the admissibility of a case is under the sole competence of the Judges of the ICC.

Therefore, contrary to what has been reported in the media, Pre-Trial Chamber I of the ICC remains seized of the case and the Libyan obligation to fully cooperate with the Court remains in force.” [Emphasis added]

As an aside, I will say that I think such press releases are unfortunate. I don’t know whether they are issued by the press office acting alone or at the suggestion, or with the approval, of the judges but the ICC should not appear to be deciding  by press release. Where there are live legal questions (arising out of reasonable disputes too) the ICC should, where called upon to do so, be making proper judicial decisions, following a proper judicial process that has a basis in the Statute. It is not good enough for a judicial institution to simply issue a press release that asserts a view. Especially where the press release, as one would expect from a press release, does not consider the arguments in any detail.

Returning to substantive issues regarding Libya’s surrender obligations, the starting point under the Rome Statute is that parties have an obligation, under Article 86 of the Statute to cooperate fully with the Court,  and Article 89(1) makes it clear that this obligation includes an obligation to arrest and surrender persons where the ICC has requested arrest and surrender.  The ICC has requested the surrender of Saif so if Libya is to argue that it is not obliged to surrender him it will have to find a provision of the Statute that provides an exception to the obligation in Article 89. As Kevin notes there are three provisions of the Statute that seem most relevant to establishing whether the obligation to surrender is suspended pending an admissiblity challenge. They are in order in which they appear in the Statute:

Article 19(8)

Pending a ruling by the Court [on an admissibility challenge by a State], the Prosecutor may seek authority from the Court: . . .

(c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58.

Article 89(2)

Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.

Article 95

Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 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.

As discussed by Kevin and by Jens, the frst part of Article 95 appears to suspend the obligation to surrender pending an admissibility challenge. Kevin thinks the second part suggests that this suspension of the cooperation oblgation is only directed at collection of evidence. Jens thinks the suspension is general but that there is then a narrow exception to the suspension where the Court has made an order allowing for collection of evidence. Kevin is worried that if there is a general obligation of suspension which applies in all cases where there is a challenge to admissibility then Article 89(2) which deals with suspension of the surrender obligation in the case of a ne bis in idem challenge becomes redundant.

Interpreting the suspension obligation under Article 95

In my view, where there is a challenge to admissibility then the State’s obligation to surrender a wanted person are  suspended pursuant to the plain meaning of the first part of Article 95.  Moreover, I think the provisions of the Statute on this question can be  reconciled. First of all, the view that the  obligation to cooperate is  suspended is consistent with the fact when there is an admissibility challenge  by a State under Articles 18 or 19 the Prosecutor is required to suspend  investigation until the Court determines the admissibility of the case (Arts.  18(2) & 19(7)). So it appears that in the event of an admissibility  challenge (by a State) which occurs before the prosecution begins, the  case is frozen. This is where Article 19(8) becomes relevant. That  provision allows the Prosecutor to take certain specified steps, despite  the general freeze, but only where the Prosecutor gets the permission of  the Court. In my view, those steps include steps to prevent  persons,  for whom there is an arrest warrant, from absconding. So,  I imagine that the Prosecutor may, for example, ask the Court to make  orders which require the State in which the person is located to take  steps which will prevent this absconding. If this is right it would suggest  there is no obligation to hand the person over while the challenge is in place  (otherwise there would be no need to take steps to prevent absconding). Because  of the use of the word absconding, Kevin thinks Article 19(8) deals with a  situation where the State does not have the person in custody. Otherwise the  words “prevent the escape” might have seemed better. Kevin is right  that the words don’t accurately capture cases where the person is in custory and  the provisions certainly contemplate cases where the person is not in  custody. However, it is imporant to remember that where a State arrests  pursuant to an arrest warrant, it may, under Article 59 of the Rome  Statute grant interim release pending surrender. So even where a State has  arrested it may not have the person in custody and there what might be sought  is an arrangement to prevent the person from absconding. So the word absconding  might actually be a useful way of dealing both with cases where the person is  in custody and not in custody despite having been arrested.

The second part of Article 95  which allows a narrow exception to the State’s ability to suspend its  cooperation  obligation is intended to cater for those cases under Article  19(8) where the Court has specifically allowed the Prosecutor to take steps to  collect evidence despite the general freeze on investigation provided for  in Article 19(7). I admit that the way in which Art. 95 is phrased is  confusing (particular as the second part speaks of collection of “such  evidence” suggesting thus suggesting that this evidence has been referred  to earlier). However, I don’t think that the exception in the second part  of Article 95 determines the context of the suspension as a general matter. Rather  it responds to those parts of Art. 19 that suggest that a  State’s cooperation obligation will continue. What is curious though is  that by only permitting orders to allow collection of evidence  the  second part of Art 95 appears to cater only for the steps contemplated in Articles 18(6),  19(8)(a) and (b) which all contemplate that the Court may, exceptionally, permit  the Prosecutor to continue to collect particular evidence. The second  part of Art. 95 does not appear to cater for the situation contemplated in Art.  19(8)(c) where the Court may give the Prosecutor (in cooperation with  relevant States) authority to prevent absonding. How does one reconcile a  general suspension of the obligation to cooperate with the power of the Court to take steps to prevent absconding? Where the Court does give authority to the  Prosecutor to prevent absconding, does this prevail over the suspension in the first part of Art. 95? It may be argued that there really is no inconsistency between the suspension of obligations to fulfil requests from the Court under Art. 95 and the authority of the Court to make orders under Art 19(8)c which prevent absconding. This is because Art. 95 only deals with requests under Part 9 of the Statute whereas an order to prevent absconding would arguably not fall within Part 9 but is based on Art. 19(8) itself. Also, I have to say that is not clear that Art. 19(8) even allows the Court to make orders bindng on any State, it only speaks of giving authority to the Prosecutor to act in cooperation with relevant States to prevent absconding.

The relationship between suspension of the obligation of surrender under Article 95 and the suspension arising under Article 89(2)

One of the strongest arguments against construing Article 95 as permitting the suspension of the obligation to surrender persons in all cases where admissibility
is challenge is that it seems to render redundant Article 89(2) which specifically permits suspension of the surrender obligation where there is a ne bis in idem challenge. Why have a specific suspension of the surrender obligation if there is already a general suspension of that obligation under Art. 95?  The answer is that the general suspension under Art. 95 only applies where there is a challenge to admissibility made to the ICC under Articles 18 and 19. However, the situtaion contemplated in Art. 89(2) is slightly different as it relates to a challenge made in a national court but related to ne bis in idem as provided for in Article 20. In this case Article 95 does not apply on its face as there is no admissibility challenge at the ICC. The matter is complicated because Article 89(2) later speaks of the possibility of a pending admissibility ruling thus suggesting that there has in fact been an admissibility challenge at the ICC. However, this is not necesarily so as the ICC can determine admissibility on its own motion (Art. 19(1)) and Art. 89(2) suggests that even in that case the obligation to surrender is suspended.  Also it could be argued that the consultation in Art. 89(2), which is what may actually prompt the admissibility ruling is not a  challenge to admissibility. Alternatively, Art. 89(2) can be viewed as making explicit what is already provided for in Art. 95 for fear that if not mentioned in Art. 95 it could be seen as an implicit exception.

Is there a difference between admissibility challenges by the State and admissibility challenges by individuals?

One question that has arisen is whether the Statute deals differently with admissibility challenges by the State and admissibility challenges by individuals. I think the answer is yes and no. No in the sense that Article 95 does not make this distinction. All admissibility challenges are covered by Art. 95 and therefore the requested State may postpone execution of all cooperation requests whenever there is an admissibility challenge. However, Article 19(7) does make a distinction between admissibility challenges by the (or rather a) State and those by the accused. It provides that:

“If a challenge is maded by a State referred to in paragraph 2(b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17.”

 Thus only in cases of State challenge must investigations be suspended. Recall that article 19(8) deals with such suspension of investigations and allows certain investigative steps and also measures to prevent absconding to be taken or made. Therefore, Art. 19(8) and the other exceptions in Art. 95 only apply where the State has made an admissibility challenge. They do not apply where the individual has made an admissibility challenge. One may ask whether this makes any sense. Why should investigations be suspended when a State challenges admissibility but not the accused? It does seem to make sense as the purpose of the suspension in cases of challenge by the State seems to be to prevent aggravation of the State. It does not seem designed to preserve any rights of the accused but rather to preserve the rights of the State that has the primary jurisdiction. Where it is the accused, and not a State, that challenges admissibility there seems less risk of aggravation and therefore less reason to argue for a suspension of the investigation.

If all this is right, then Libya would be entitled to suspend it’s obligation to surrender Saif, if and when an admissibility challenge is made. However, as far as I know, no formal admissibility challenge has yet been made to the ICC. Thus, at the time of writing, it may be argued that Libya’s obligations to cooperate continues and they have an obligation to surrender Saif. They can only suspend this by actually making an admissibility challenge.

Has Libya challenged admissibility?

There is one question though about what it means to make an admissibility challenge for the purposes of Art. 95 (which is what suspends the obligations of cooperation). Does a State informing the Prosecutor that it is investigating count? Article 18(1) and (2) provides that in case of State referral or the Prosecutor initiating investigations propio motu, the Prosecutor is to notify States of the investigations. Where a State, within a month of receipt of that notification, informs the Court that it is investigating the same criminal acts which are within its jurisdiction, the State may request the Prosecutor to defer to the State’s investigation and the Prosecutor “shall” do this (unless the Pre-Trial Chamber decides otherwise). It seems to me that this is a challenge to admissibility under Art. 95 which not only suspends the investigation but also the obligations of cooperation. However, these provisions (Arts. 18 (1) & (2) seem inapplicable to the Libyan situation. Firstly, those provisions do not apply to Security Council referrals and secondly Libya is out of time.

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    Comments

    Kevin Jon Heller says

    November 26, 2011

    Dapo,

    Excellent post. I do, however, have a question and a comment for you. First, the question: what, in your view, is a ne bis in idem challenge in national court? I find much of your argument convincing, but I'm still troubled by how you distinguish Article 89(2). You avoid the redundancy argument by saying that "[t]he answer is that the general suspension under Art. 95 only applies where there is a challenge to admissibility made to the ICC under Articles 18 and 19. However, the situtaion contemplated in Art. 89(2) is slightly different as it relates to a challenge made in a national court but related to ne bis in idem as provided for in Article 20." That implies that there is a difference between a ne bis in idem challenge that a suspect would bring at the ICC (which falls under Article 19) and a ne bis in idem challenge that a suspect would bring at the national level (which falls under Article 19). Yet I see nothing in the Rome Statute that allows a suspect to challenge admissibility in a national court on the basis of ne bis in idem (except when he has been previously tried by the ICC, which is not the case for Article 89(2), where the duty to surrender a suspect to the Court is at issue). I don't even understand what such a challenge would look like, except in the sense that a suspect is asking the state to challenge admissibility on his behalf in order to avoid surrendering him, because he has already been tried by that state -- in which case I don't see any functional difference between the suspect challenging admissibility and the state doing so.

    In other words, I don't see how the ICC will ever deal with an admissibility challenge that is brought under something other than Article 19. So if Article 95 is not limited to requests for evidence, as the second clause implies, and requires suspension whenever "there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19," then Article 89(2) remains redundant.

    Finally, the comment: I think there is a strong policy reason not to read Article 95 as you and Jens do, because it makes it easier for states to shield their nationals from the ICC for impermissible reasons. A state that is completely committed to the ICC will bring a good-faith admissibility challenge and then turn the suspect over if it loses. A state that wants to shield a suspect from justice, however, will simply hold on to the suspect -- as you believe Article 95 permits -- and then not turn him over if it loses its admissibility challenge. It thus makes more sense to require states to turn the suspect over as a condition of bringing an admissibility challenge. Why should the Court go to the time and effort of addressing admissibility when there is little if any hope (see, e.g., Sudan) that the state will comply with a finding that goes against the state

    Dapo Akande says

    November 28, 2011

    Kevin,

    Thanks for the question and comment. With regard to your question, it is worth noting that my point about Art. 89(2) dealing with ne bis in idem challenges in national courts (while Art. 95 deals with admissiblity challenges before the ICC) is taken directly from the text of that provision. That is what the provison says. You're right that there is no where else in the Statute that speaks about such a challenge being made in a national court. However, that is not to say that the accused, where he has been previously tried, will not make this point in a national court. So, I imagine that Art. 89(2) should be regarded as the provision that explicitly contemplates this possibility and makes provision for it. You ask what the challenge would look like. I suppose that would depend on national law. However, whatever it looks like Art. 89(2) states that the State is to consult with the Court. I'm not sure this can be regarded as a challenge to admissibility by the State. At best I would regard it as an invitation by the State for the ICC to consider admissibility on its own motion where it has not previously been challenged. Incidentally, this is similar to what has happened in the ICJ on one or two occasions where States have invited the ICJ to order provisional measures propio motu. I think either the LaGrand case or the similar Paraguay v US case on the Vienna Convention on Consular Relations was such a case. It is actually important that the consultation under Art. 89(2) not be regarded as a challenge to admissibility by the State. This is because, if it is, then the Prosecutor is required to suspend the investigation (under Art. 19(7)) while this does not seem to be required where the Court considers admissibility propio motu.

    I agree with your comment when you say that the reading the Statute in the way in which I read it would give room to a State that wishes to shield a suspect to delay surrender simply by bringing an admissibility challenge. While it might have been better to require the State to first turn over the suspect, I think the drafters took the principle of complementarity seriously and I would not assume that the overriding goal was to simply ensure trial by the ICC. The context of the provisions regarding admssibility challenges suggests to me that there isn't this assumption that the Court just continues with its processes while an admissibility challenge is ongoing. This is why I started my analysis above of Art. 95 by referring to Art. 19(7). That provision states that:

    "If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17."

    This means that an admissibility challenge by a State (at least one before prosecution commennces, whatever that may mean) effectively brings the case to a halt until that admissibility challenge is determined. Also we agree that Art. 95 would also suspend the State's other obligations to comply with requests. Given this context, it is not at all obvious that the singular obligation to surrender should continue while everything else is frozen. In any event, though a State acting in bad faith can use the provision to suspend it's obligations those obligations are only suspended. The obligation will resume if the admissiblity challenge fails. I suppose if the provisions are construed the way in which I read them, this will provide an incentive for the Court to move swiftly.

    Kevin Jon Heller says

    November 26, 2011

    Damn it. The second "Article 19" in the first paragraph should be "Article 89(2)."

    Jannek says

    November 27, 2011

    Good stuff. My remark to Kevins OJ posting runs along the same line, i think.

    Jens David Ohlin says

    November 29, 2011

    Dapo, great post. I have added another level of complication here: http://www.liebercode.org/2011/11/libya-death-penalty-can-icc-complain.html

    Specifically, if the defendants are sent to The Hague immediately, and Libyan subsequently wins an admissibility challenge, would the ICC really send them back to face the death penalty?

    John Smith says

    November 29, 2011

    I've been following the discussions over at Opinio Juris and here with some interest. To me, though, it seems to key issue is whether the ICC can exercise jurisdiction, not whether Libya is under an obligation to surrender Saif. Perhaps my general principles of international law are a bit rusty, but isn't the effect of art 17(1)(a) that if Libya is in a position to prosecute, the Court has no jurisdiction? I'm curious about the relationship between Res 1970 and this provision. Can Res 1970 override the Statute? I can see how art 17(1)(a) will pose no problem if the State is a lawless, but in a situation where it appears Libya is considering trying Saif itself, can Res 1970 really make inactive provisions of the Statute? I can see how - if this is the case - that the ICC could effectively be made a malleable puppet by the UNSC. If the UNSC declared a provision in the Statute inactive, for instance, isn't this a similar situation in that the Statute has been overridden? I'm curious to hear your thoughts.

    Darryl Robinson says

    February 24, 2012

    Dapo, Kevin, Jens - These are all wonderful arguments. It is a treat to see three great minds weaving these intricate provisions into slightly different patterns. I sympathized with the laments about drafting by committees, but alas there is no other known way to produce a treaty!

    May I venture to lay out what I believe is the scheme? I think it supposed to be simple and beautiful. I may match up here with Dapo and possibly Jens:

    1) there is a general ongoing obligation to cooperate & execute requests (arts 86-89)
    2) exception: can postpone during admissiblity challenge (art 95)
    3) however you still have to cooperate where investigative steps for collecting/preserving evidence pending the admissiblity determination are authorized (art 95, 19) (great point by Dapo re accidental gap re orders re 'absconding').

    And the following provisions are not part of the picture here:

    4) Art 89(4), 94 aren't part of the picture because those concern pursuit of a different 'case'; admissibility (Art 17) is about the (same) 'case'.

    5) Art 89(2) is where a ne bis in idem challenge is brought in national courts. Such a challenge is commonly available in in extradition legislation, and thus would be available if states use an extradition template, or have something similar in their surrender legislation, or if it is available as a constitutional right. In Canada, for example, a person could always challenge extradition or surrender by claiming "autrefois acquit/autrefois convict" (it's a Charter right). 89(2) says if such a challenge is made, check if admissibility has been raised at the ICC, and if it has, then let the ICC determination govern.

    You can't challenge 'admissibility' in a Canadian (or other) extradition hearing because there is no such concept in domestic criminal law. You can however bring a ne bis in idem challenge in the extradition laws of many countries, because it is a human right.

    Darryl Robinson says

    February 27, 2012

    Hi John Smith, I noticed you've posted your question in a couple of places, so maybe I can help you a bit.

    First, Article 17 doesn't affect 'jurisdiction' per se. The ICC has concurrent jurisdiction by virtue of its Statute, the UNSC resolution, and Libya's acceptance of UNSC powers under the UN Charter. Article 17 can however operate to render a particular case "inadmissible", meaning that the ICC won't exercise the jurisdiction that it clearly has.

    Second, you are mostly correct about the significance of Article 17. Your references to Libya "being in a position" or "considering" prosecuting suggests that you might have fallen prey to a popular and persistent misquoting of Article 17. What Article 17(1)(a) expressly requires is a showing that "the case is being investigated or prosecuted", for example by Libya. *If* that is done, then the case will be inadmissible, *unless* it is shown that Libya is unwilling or unable to genuinely carry out the proceeding. But you are right about the outcome: if Libya investigates and prosecutes the case, then the case is inadmissible at the ICC (unless Libya is unwilling or unable to carry it out genuinely).

    However, procedurally, this consequence of inadmissibility requires an inadmissibility determination. There are several ways this can happen, including inter alia if Libya brings a challenge. What Dapo, Kevin and Jens David are discussing is what happens to the obligation to surrender pending that determination.