ICC Ducks the Article 95 Issue Regarding Gaddafi

by Kevin Jon Heller

The ICC’s Pre-Trial Chamber I (PTC) has rejected Libya’s request to postpone the surrender of Saif Gaddafi so that he can be prosecuted domestically for other crimes.  That request was based on Article 95, which reads:

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.

Readers will recall that Dapo Akande, Jens Ohlin, and I have been involved in a friendly debate about whether Article 95 applies to surrender requests, as they believe, or only to requests for the collection of evidence, as I believe.  (See here and here.)  Libya’s latest request gave the PTC an opportunity to give us an answer — but, unfortunately, the judges ducked the Article 95 issue, holding that Libya’s failure to bring a formal admissibility challenge pursuant to Article 18 or 19 meant that they did not have to reach it (emphasis mine):

18.    With regard to article 95 of the Statute, on which the Government of Libya further bases its Second Postponement Request, the Chamber recalls that this provision may be invoked only ”[wjhere there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19.” Consequently, article 95 of the Statute only applies when there is an admissibility challenge under consideration. 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. Consequently, the Second Postponement Request presented by the Government of Libya must be rejected. At this time, the Chamber does not consider it necessary to determine whether article 95 of the Statute applies to surrender requests.

I don’t think this statement tips the PTC’s hand, but it’s clear that the judges recognize the issue.  Once (if?) Libya does file a formal admissibility challenge, we’ll likely have our answer.

Hat-Tip: Gentian Zyberi at the always excellent International Law Observer.


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