Dapo Akande on Surrendering Saif — and a Brief Reply

Dapo Akande has a typically excellent discussion of the surrender issue today at EJIL: Talk!, in which he agrees with Jens Ohlin and disagrees with me.  In his view, Libya is entitled to challenge the admissibility of the case against Saif without having to first surrender him to the ICC. I find much of Dapo’s argument convincing, but I am skeptical of the way in which he distinguishes Article 89(2), which he admits is critical to the issue.  Here is what he says (emphasis mine):

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 challenged 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 situation 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.

Dapo’s argument relies on the distinction between a ne bis in idem challenge brought by a suspect at the ICC (which would fall under Article 19) and a ne bis in idem challenge brought by a suspect at the national level (which would fall under Article 89(2)).  But that distinction seems illusory to me.  To begin with, nothing in the Rome Statute actually allows a suspect to challenge admissibility in a national court on the basis of ne bis in idem.  (Article 20 implies that a suspect could bring a domestic ne bis in idem challenge when he has been previously tried by the ICC and is seeking to avoid a second trial in a national court, but that is not what is contemplated by Article 89(2), where the duty to surrender a suspect to the Court is at issue). The only provision that permits a suspect to challenge admissibility — on any ground — is Article 19(2), which clearly, if not explicitly, concerns admissibility challenges brought at the ICC.  So I fail to see how Article 89(2) is not redundant if Article 95 is not limited to requests for evidence, as its second clause implies, but requires suspension whenever “there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19.”

It is also difficult to understand what a ne bis in idem challenge in a national court would look like.  A national court obviously has no power to hold that the ICC cannot prosecute a suspect again; at most it can instruct the state to challenge admissibility on the suspect’s behalf.  But in that case the suspect’s (successful) ne bis in idem challenge in national court is effectively a state challenge to admissibility.  Dapo’s reading of Article 95 thus still renders Article 89(2) redundant, because Article 95 would suspend the surrender obligation independent of Article 89(2).

Finally, I think it is important to note that there is an important policy consideration that cuts against accepting Dapo’s interpretation of Article 95: it makes it much easier for states to shield their nationals from the ICC for unacceptable reasons.  We do not have to worry about a state that is committed to the ICC: that state 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 that suspect pending an admissibility determination — as Dapo believe Article 95 permits — and then refuse to turn him over if it loses that challenge.  Why would the drafters of the Rome Statute have enabled that kind of bad faith?  It makes more sense to believe that the drafters wanted to require states to turn the suspect over as a condition of bringing an admissibility challenge, thereby avoiding situations in which the Court goes 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 it.  Indeed, viewed in that light, my reading of the interrelationship between Article 89(2) and Article 95 makes perfect sense: the surrender obligation is suspended only in the one situation in which we do not have to worry about a state acting in bad faith, because the state has already genuinely prosecuted the suspect.  (If the state has not genuinely prosecuted him, because it wants to shield him from justice, it will not need a formal ne bis in idem challenge by the suspect to refuse to surrender him to the Court.)

Readers, any thoughts?