Explaining My Art. 89(2) Argument Regarding the Obligation to Surrender
Dapo Akande has just posted about the Pre-Trial Chamber’s recent conclusion that Art. 95 of the Rome Statute permits Libya to delay surrendering Saif to the Court pending resolution of its admissibility challenge. I don’t want to rehash the general issue; readers can simply check out Dapo’s post and my post here. Instead, I want to focus on the one issue that Dapo acknowledges the Pre-Trial Chamber ignored: namely, whether Art. 89(2) is mere surplusage in light of the PTC’s reading of Art. 95. I say yes; Dapo says no, arguing that “these provisions deal with different issues as Art. 89(2) relates to a challenge before a national court while Art. 95 deals with admissibility challenges at the ICC.”
I have never denied that Art. 89(2) relates to a challenge before a national court, while Art. 95 deals with admissibility challenges at the ICC. What I have pointed out is that, in practice, reading Art. 95 to suspend surrender for all admissibility challenges means that the Art. 89(2)’s suspension of surrender for a specific kind of admissibility challenge — one included in Art. 95 — is mere surplusage. Here is Art. 89(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.
To see why the PTC’s reading of Art. 95 renders Art. 89(2) mere surplusage, we need to consider how Art. 89(2) would function in practice. It contemplates a situation in which (1) the ICC asks a state to surrender a suspect to face international charges, and (2) the suspect, having previously been tried for the same conduct in a domestic court of that state, challenges his surrender in the domestic court on ne bis in idem grounds (Art. 20(3), in particular). What happens then? According to Art. 89(2), the state in question must consult with the Court concerning the admissibility of the suspect’s case. If the Court has already deemed the case admissible, the state must surrender the suspect. But if an admissibility challenge is still pending — one presumably brought by the suspect himself pursuant to Art. 19(2)(a) — the state is entitled to delay surrender until the Court resolves the admissibility challenge.
In short: under Art. 89(2), a state is entitled to delay surrender pending the resolution of an admissibility challenge based on ne bis in idem; under Art. 95, as read by the PTC, a state is entitled to delay surrender pending the resolution of an admissibility challenge brought on any grounds, including ne bis in idem. The only difference is that Art. 89(2) deals with an admissibility challenge at the ICC initiated by the suspect instead of by the state — a situation that requires the suspect to go to domestic court to avoid surrender. Under both articles, the state’s obligation to surrender the suspect is determined by the same consideration: whether there is an admissibility challenge pending before the Court.
Now we can see the basis for my argument: if Art. 95 permits a state to delay surrender pending resolution of any admissibility challenge, no matter who brings it, all Art. 89(2) challenges are included within Art. 95 — making Art. 89(2) mere surplusage. And that is precisely how the PTC reads Art. 95: it did not hold that an admissibility challenge by a state permits the state to delay surrender; it held that any admissibility challenge permits such delay, including a challenge brought by a suspect. Here is paragraph 37 (my emphasis):
In light of the above, the Chamber concludes that article 95 of the Statute is applicable to requests for arrest and surrender, pending determination of an admissibility challenge brought before the Court. Since it is the Chamber that has issued the warrant of arrest and the related request for surrender to the Court, the Chamber has the authority to decide that a state may postpone the execution of a surrender request to the extent that such a challenge has been properly made pursuant to article 19(2) of the Statute and rule 58(1) of the Rules.
Article 19(2) includes admissibility challenges made by suspects as well as by states.
Does this argument mean that it is completely clear the drafters of the Rome Statute wanted to permit a state to delay surrender when a suspect challenges admissibility on ne bis in idem grounds, but not when a state challenges admissibility on other grounds? Absolutely not. The Rome Statute is an imperfectly drafted document; the overlap between Art. 89(2) and Art. 95 could simply be a drafting error, thus justifying the PTC’s interpretation of Art. 95. Indeed, I’m troubled by the permissive language in Art. 89(2) (“may postpone”); one would think that, since Art. 20’s ne bis in idem provisions are designed to protect suspects from being tried multiple times for the same conduct, Art. 89(2) would prohibit a state from surrendering a suspect pending resolution of his admissibility challenge. It is also possible that, for some reason, the drafters felt it necessary to distinguish between admissibility challenges brought by suspects on ne bis in idem grounds (art. 89(2)) and admissibility challenges brought by states on any ground (art. 95), even though they wanted the the outcome — the state being permitted to delay surrender — to be the same in both situations. (Although it is worth emphasizing again that the PTC did not read Art. 95 in that manner, because it held that Art. 95 applies to admissibility challenges brought by suspects as well as by states.)
I don’t know whether one of those possibilities is correct. But I do know that the Art. 89(2) issue deserves more attention than it has received from either the PTC or from Dapo. I hope the Appeals Chamber will address it.