The Pre-Trial Chamber Agrees with Dapo and Jens Regarding Surrender

by Kevin Jon Heller

The Pre-Trial Chamber has held that Article 95 of the Rome Statute applies to requests for surrender, thereby agreeing with Dapo and Jens and disagreeing with me. It’s a poorly reasoned decision, giving a completely counterintuitive reading to the “such evidence” language in the article (pretending that the clause in question doesn’t actually contain the word “such”) and ignoring all of the difficult issues, such as the fact that its interpretation of Article 95 renders Article 89(2) a nullity. Instead, we get statements like this one:

In addition, the Chamber is not persuaded by the argument that interpreting article 95 of the Statute in this manner would be inconsistent with the object and purpose of the Statute as it would, inter alia, contravene the Court’s duty to convene expeditious confirmation proceedings, ensure the suspect’s right to participate in such proceedings, and thereby eliminate impunity.

Why is the Pre-Trial Chamber not persuaded? Your guess is as good as mine. The PTC doesn’t share its reasoning with us.

The decision is here.  Frankly, the PTC would have been much better off simply cutting-and-pasting Dapo and Jens’s work.  I hope the Appeals Chamber will take the issue more seriously.

PS. The Pre-Trial Chamber insists that “Libya must ensure that all necessary measures are taken during the postponement in order to ensure the possibility of an immediate execution of the Surrender Request should the case be found admissible.” Libya has already made clear that it has no intention of complying with an adverse decision, so the PTC’s admissibility analysis is a waste of time and resources. That is, of course, an additional reason why its Article 95 decision is so regrettable — it simply provides the Court with yet another opportunity to look completely ineffectual.

One Response

  1. I have not been following this matter particularly closely and at the risk of seeming overly cynical:

    If the PTC had held that Saif must be surrendered to the ICC pending the admissibility challenge, Libya likely would not have complied.  Even worse, the Security Council probably would not have condemned Libya for its non-compliance.   

    Given that courts – especially fledgling courts that are concerned about appearing ineffectual – generally avoid issuing decisions with which parties will not comply, the PTC’s ultimate decision was not surprising. The admissibility challenge by Libya may prevail for the same reason, although it will be interesting to see how the PTC reasons that a trial of Saif in Libya will  conform to “principles of due process recognized by international law.” 

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