Since Libya has declared its preference for trying Saif Gaddafi in a domestic criminal court, the new question on everyone’s mind (including Kevin Heller and Julian Ku), is whether Libya has a duty to send him to The Hague right away. The question turns out to be not so simple.
As most readers will recall, and as I blogged about previously, Libya has primary jurisdiction and the ICC -- under the doctrine of complementarity -- can only assert its jurisdiction if Libya is unwilling or unable to prosecute him. No one doubts that Libya is willing. The remaining question is whether it is able to. Does Libya have a functioning judicial system capable of the task?
Now here’s the complicated part. If Ocampo, the ICC Prosecutor, decides to go ahead with his case in The Hague, then Libya will need to officially challenge the ICC’s jurisdiction under the doctrine of complementarity. Can Libya wait until that challenge is litigated (and they lose) before turning over Saif, or do they need to surrender him to The Hague now before challenging the court’s jurisdiction on grounds of complementarity?
What does the Rome Statute say on the matter? It’s a thicket of overlapping rules. First, article 89 establishes that Libya needs to comply with the current arrest warrant:
The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
Unfortunately, though, Article 89 says nothing about timing, nor does it say anything about challenges to jurisdiction. Then there is Article 95, which states 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.
Unfortunately, we are not talking about the collection of evidence; we are considering a request for an arrest and transfer of a defendant.
So here is my reading of the situation. Article 89 establishes the duty to surrender a defendant if there is a valid warrant. Article 95 then carves out an exception to that rule in cases where the court’s jurisdiction is being challenged. So far so good. However, the court can rule that the state has to comply even before the jurisdictional challenge is resolved, which carves in the duty to cooperate, but only with regard to requests for the collection of evidence. The carve-in does not appear to apply to requests for surrender.
The bottom line is that although Libya has a general duty to turn over Saif, and may even be in breach of its international obligations for not doing so quickly enough (though the Rome Statute does not provide a timeline for surrender of a requested defendant), the real question is what the consequences are to Libya for this alleged breach of its international responsibilities.
One could argue that Libya is not permitted to challenge the jurisdiction of the court while it is in breach of these obligations. But I don’t see any evidence for this argument, at least not yet. The Rome Statute does not say that a Pre-Trial Chamber would be prevented from considering the merits of Libya’s jurisdictional challenge if Saif is still in Libyan custody.
What the Rome Statute does say in Articles 18 and 19 is that the challenge can come from the state or the defendant, that each party can only challenge jurisdiction once, and that the challenge should happen before the commencement of trial, unless the court grants leave to hear the challenge after the trial begins. But notice the absence of any provision stating that a state must turn over a defendant before it challenges the court’s jurisdiction.
(The one thing that everyone agrees with here is that the Rome Statute was drafted by committee and gives all of us a headache).