Dapo Akande on Surrendering Saif — and a Brief Reply

by Kevin Jon Heller

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?


5 Responses

  1. This is certainly a thorny legal question.  I have a couple of observations.  

    Article 95 states that “the requested state may postpone the execution of a request under this part, pending a[n] [admissibility] determination by the Court.”  However, there are a number of different types of requests addressed in Part 9 of the ICC Statute, not just requests for surrender.  The drafters may simply not have been thinking of arrest warrants when drafting Article 95 but rather other requests for assistance/cooperation.  

    In this regard, there is a far more specific provision addressing the obligations of states that have custody of ICC Defendants: Article 59. Pursuant to this provision, a state has the obligation to immediately arrest an ICC defendant if he/she is on its territory and to initiate proceedings to “fulfill its duty to surrender the person to the Court.”   The state’s domestic courts are not even permitted to question the validity of the warrant.  

    To be sure, under Article 59(1), the duty to “immediately take steps to arrest” is “in accordance with the provision of Part 9,”  but even if Article 95 is read broadly like some have suggested, it seems pretty dubious to argue that Article 95 entitles a state to refuse to abide by its immediate obligations under Article 59 on the basis that at some point in the future it may choose to file an admissibility challenge with the ICC.

    I think Article 18 is also relevant here.  If a state wishes to investigate crimes that the Prosecutor is also investigating, then the State may, pursuant to Art. 18(2), inform the Prosecutor, and he is required to defer his investigation.  However, this option seems not to be available to states where the original referral to the Prosecutor was made by the Security Council.  It would be odd, I think, for Libya to not be able to request that the Prosecutor “defer” his investigation on the basis of its willingness to investigate and prosecute crimes committed by Saif and others and yet be entitled to refuse to comply with an arrest warrant for these individuals on the basis of an admissibility challenge that it intends to file with the Court.  Indeed, I am not sure why any state would choose to seek a deferal under Art. 18 if it could simply ignore an arrest warrant until the admissibility issue has been addressed by the Court (which could take a significant amount of time, given that any rulings on admissibility can be appealed).  

  2. My take on the redundancy issue:

    I think we agree that the suspense effect of Art. 95 applies only to admissibility rulings pursuant to Art. 17 and 19.

    So the test for redundancy of 89 (2) is this:
    For it to be redundant, a challenge made by defendant pursuant Art. 19 (2) a) in conjunction with Art. 17 (1) c) would have to trigger the provisions of Art. 95, namely the suspension of the states duty to surrender the person.

    But what if Art. 95 does not apply to defendant challenges?

    The first thing worth noting here is that the suspense effect on the investigation is triggered exclusively by state challenges (“if a challenge is made by a State […] the Prosecutor shall suspend the investigation”) but NOT by defendant challenges.
    Does this mean that the statute indeed differentiates between state and defendant challenges with regard to their suspense effect ?

    As i mentioned in a previous comment, i read Art. 95 as the counterpart to Art. 19 (7) and (8). I would therfor think that the scope of procedural actions affected by the suspense effect of either provision must be consistent as long as one is the response to the other (court request -> state execution).

    Now, if there is indeed a differentiation between defendant and state challenges and by taking into account that defendant challenges do NOT trigger suspense of investigation, i am inclined to say that the same differentiation also applies to Art. 95.
    As a conclusion the suspense of state cooperation provisioned in Art. 95 would only apply to state challenges and exclude defendant challenges, which then brings Art. 89 (2) back into the game.

    The result of such a reading of  the statute is also dogmatically and political persuasive:
    It limits the means of a defendant to prevent his extradition to a ne bis idem challenge pursuant 89 (2), which is both the only “personal” admissibility criterion and a comparatively easy one to rule on.

    The alternative reading (including defendant challenges in Art. 95) would render the full scope of inadmissibility grounds of Art. 17 and 18 (which are unequally more complicated matter to rule on) fair game for the defendant to use as a pretext to prevent his extradition.

  3. Hi Kevin,
    Thanks for the thoughtful question and comment. I have provided a response over at EJIL:Talk!

  4. Kevin, nice analysis.
    I have added another level of complication here at LieberCode.  Assume, the defendants are transferred now, but Libya wins the admissibility challenge. Will the ICC really send them back to face the death penalty?

  5. Jens,

    Excellent question.  My position is the same one that I take in my “Shadow Side of Complementarity” article: concerns about the fairness of punishment, like concerns about the fairness of trial procedures, do not justify the ICC holding a case admissible.  The drafting history of article 17 seems quite clear on this point — states did not want the Court to serve as a court of appeal, passing judgment on the adequacy of a national judicial system, except insofar as it is attempting to shield a suspect from justice.

    Perhaps, if the death penalty was per se prohibited by international law, it could be argued that Article 21(3) would prohibit turning Saif over to the Libyans.  (Though I reject that argument.)  But that’s not the case, as you point out.

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