Does Libya Have to Surrender Saif to the ICC? (Answer: Yes)

Most commentators have assumed — Julian included — that Libya has an obligation under the Rome Statute to surrender Saif Gaddafi to the ICC before it can challenge the admissibility of the case against him.  At The Multilateralist today, David Bosco quotes a UN diplomat who believes that Libya can challenge admissibility without first surrendering Saif:

[Y]esterday, an extremely well informed diplomat at the UN got in touch to point me to a provision in the statute that appears to anticipate the possibility a country holding onto the subject of an arrest warrant while that state argues that it can try the individual. The provision is Article 19(8):

Pending a ruling by the Court, 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.

As the diplomat pointed out, this provision is nonsensical if a state must turn over anyone subject to an arrest warrant immediately. None of this means that the Libyan authorities can ignore the court; the ICC judges should, as a legal matter, still have the last word on where he will be tried. But it does mean that they may be within their rights to hold onto Saif while they convince the judges.

Although the Rome Statute is not the picture of clarity on the issue, I do not believe that the UN diplomat is interpreting Article 19(8)(c) correctly.  In my view, that provision envisions a situation in which a state challenges admissibility on the ground that it is investigating a suspect whom it does not yet have in custody.  We don’t normally talk about a suspect “absconding” from custody; “escape,” maybe, but not abscond.  Indeed, the two primary dictionary definitions of “abscond” are to “[l]eave hurriedly and secretly, typically to avoid detection or arrest,” and to “[f]ail to surrender oneself for custody at the appointed time.”  Moreover, if Article 19(8)(c) is designed to address suspects already in custody, why would it mention “the relevant States,” in the plural?  Doesn’t that envision the need for multilateral cooperation to apprehend a suspect whose whereabouts are unknown?  I think the provision would refer to the “relevant State” if it was worried about a suspect escaping from custody.

This interpretation of Article 19(8)(c), it is worth noting, is supported by what seems to me to be the far more relevant provision in the Rome Statute, Article 89 (emphasis mine):

1. 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.

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 89(1) makes clear that States have an obligation to surrender a suspect for whom an arrest warrant has been issued.  (It refers specifically to States Parties, but there is no reason to believe that Security Council referrals function any differently.)  And Article 89(2) indicates that there is one — and only one — exception to that obligation: where a suspect has already been tried for a particular crime and has been either convicted or acquitted.  Expressio unius est exclusio alterius: if Article 89(2) was designed to permit a State to “postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility” under Article 17(a) or (b) — i.e., prior to conviction or acquittal — it would have said so.

Readers, your thoughts?

UPDATE: It is also worth noting Article 95, which has to be one of the worst written provisions in the Rome Statute:

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 first part of Article 95 seems to imply that a state does not have to surrender a suspect if it is challenging admissibility.  The second part, however, seems to imply that Article 95 actually applies only to cooperation challenges that deal with the collection of evidence (“collection of such evidence”).  I have no idea how to reconcile those two aspects of Article 95, although I think the narrower reading is better — if Article 95 applies to all admissibility challenges, Article 89(2), which deals specifically with pending ne bis in idem admissibility challenges, is mere surplusage.  That seems unlikely to me.

That said, Article 89(2) literally deals only with ne bis in idem challenges brought by the suspect in national court (whatever that means), so perhaps the drafters intended to distinguish between personal and state challenges — personal challenges being subject to Article 89(2), state challenges being subject to Article 95.  But that doesn’t make much sense.  I don’t see why the two challenges should be treated any differently — and in any case, Article 95 does not apply only to state admissibility challenges.  Personal ne bis in idem challenges are also brought under Article 19.  So the surplusage problem remains.