Two ICC Decisions (and one Article) on Libya’s Request to Postpone Surrender of Saif Gaddafi

Earlier this month, the Pre-Trial Chamber of the International Criminal Court dealing with the case against Saif Gaddafi released two decisions rejecting two requests of the Libyan Government that Libya be allowed to postpone the surrender, to the ICC, of Saif Gaddafi. The first decision was actually issued on 7 March, but was only released on April 4 at the same as the decision rejecting Libya’s second postponement request. As readers will recall, the ICC issued an arrest warrant and a request for surrender for Saif Gaddafi in June last year and Saif has been detained since November last year. However, Libya has insisted on prosecuting Saif Gaddafi in Libya and has refused to hand him over to the ICC. Readers may also recall that Kevin Jon Heller at Opinio Juris, Jens David Ohlin at LieberCode and I (here, here and here) have engaged in a discussion on whether Libya is entitled to surrender its obligation to surrender Saif to the ICC. Libya’s requests for postponement raise all the issues that Kevin, Jens and I covered in our discussion. While the decisions of the Pre-Trial Chamber answer some of the questions, the Pre-Trial Chamber has not yet answered the central question of whether the obligation of surrender can be postponed in the event of an admissibility challenge based on the principle of complementarity. Hopefully, the ICC will return to this issue soon.

In the meantime, I have written an article  setting out my thoughts on these issues. The article is titled “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC” and will be published by the Journal of International Criminal Justice (in May). However, the article is now available for download on SSRN.

In Libya’s first request for postponment of surrender, it stated that it was investigating Saif for various crimes under national law. According to a Guardian article of earlier this week, some of the crimes for which Saif is being investigated include alleged failure to have licences for two camels and cleaning of fish farms!! (though this later Guardian article says the charges will be murder, rape and torture). Libya also stated in that first postponement request that it was considering whether to initiate proceedings against Saif for the same conduct for which he was charged by the ICC. In that request, Libya stated that it was not challenging admissibility of the ICC proceedings and its postponement request was based on Article 94 of the ICC Statute which 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.”

In its first decision, the Pre-Trial Chamber held that Article 94 does not apply to a request for surrender, which is the same position that I take. In this first decision, the PTC implicitly decides that despite the fact that Libya’s obligation arise not under the ICC Statute directly, but under Security Council resolution 1970, Libya can rely on the exceptions provided for in Part 9 of the Statute. This is an issue I address in more detail in my article.

In its second request, Libya stated that it will challenge the admissibility of the case at the ICC and based its new request for postponement of the surrender obligation on Article 95 of the ICC Statute, which provides that:

“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.”

The PTC rejected Libya’s reliance, at this time, on Article 95. It stated that Libya had not yet actually challenged admissibility and therefore Art. 95 was not yet applicable. [“Though Libya has announced that an admissibility challenge is forthcoming, there is currently no such challenge before the Chamber. Therefore, the Chamber holds that article 95 of the Statute cannot serve as a legal basis for Libya’s Second Postponement Request.”]

The key question with regard to Art. 95 is whether it would permit postponement of an obligation of surrender. Kevin thought the answer was no, Jens and I thought it was yes. I develop my thoughts on this in the aforementioned article. Since the PTC stated that Art. 95 was not yet applicable, it chose, understandably, to avoid this question for now. However, it was clearly alive to the issue when it stated that:

At this time, the Chamber does not consider it necessary to determine whether article 95 of the Statute applies to surrender requests.

Libya has stated that it will challenge admissibility by 30 April so the PTC may be asked to decide on Art. 95 very soon.