The PTC’s Erroneous Decision Regarding the Surrender of Al-Senussi

On 6 February 2103, the PTC ordered Libya to surrender Al-Senussi to the ICC. Libya failed to comply with that order; instead, on April 2, it filed an admissibility challenge in the case and argued that Art. 95 of the Rome Statute entitled it to postpone surrender pending resolution of its challenge. Yesterday, the PTC agreed with Libya.

The PTC correctly found — in light of previous ICC jurisprudence — that a state is entitled, as a matter of right, to postpone surrendering a suspect pending resolution of an admissibility challenge. The more important question was whether Libya had properly filed its admissibility challenge to the case against Al-Senussi. Art. 19(5) of the Rome Statute requires a state to challenge admissibility “at the earliest opportunity.” According to the Appeals Chamber in the Kenya admissibility proceedings, that means a state must “challenge admissibility as soon as possible once it is in a position to actually assert a conflict of jurisdictions.”

The PTC rejected the defence argument that Libya had not challenged the admissibility of the case against Al-Senussi “as soon as possible.” Here are the relevant paragraphs (emphasis mine):

30. The Admissibility Challenge was filed by Libya on 2 April 2013, almost seven months after Mr Al-Senussi’s transfer to Libya from Mauritania. The Chamber notes the Defence argument to the effect that this fact “shows without a doubt that Libya […] has not filed its challenge expeditiously”. The Chamber is not persuaded that this mere chronology per se renders the Admissibility Challenge tardy, and, as such, abusive. Indeed, the Chamber must take into account the circumstances of the individual case, with a view to determining whether the challenge was filed in violation of article 19(5) of the Statute.

[snip]

32. In the case at hand, and without entertaining, for the purposes of the present decision, the validity of the arguments advanced by Libya in support of its Admissibility Challenge, the Chamber is of the view that the information before the Chamber does not appear to indicate that Libya, despite being in a position to properly and timely challenge the admissibility of the case against Mr Al-Senussi, unduly failed to do so, in violation of article 19(5) of the Statute.

There are three very significant problems with the PTC’s analysis. To begin with, the PTC provides no explanation — literally, none — for why Libya’s decision to wait seven months after Al-Senussi’s extradition qualifies as challenging admissibility “as soon as possible.” We are just supposed to trust that the PTC took the matter seriously, considered all of the available information, and decided that Libya had a good reason for waiting so long. Al-Senussi deserves better, given that he has already spent seven months in detention without access to a lawyer — and that the PTC’s decision means that, if its dilatory approach to the Saif admissibility challenge is any indication, he will spend another ten months or so in the same situation.

Even worse, the PTC seriously misrepresented the defence’s argument concerning the length of time Libya waited to file its admissibility challenge. The PTC says, as the bolded text in para. 30 indicates, that the defence claimed Libya waited seven months. But that is not what the defence argued. Here is the relevant paragraph from the defence response to Libya’s request to postpone Al-Senussi’s surrender (emphasis mine):

35…. The chronology of these proceedings outlined above shows without a doubt that Libya – which has been filing pleadings in respect of admissibility for Mr. Gaddafi for over a year – and has held Mr. Al-Senussi for over 7 months – has not filed its challenge expeditiously. It should therefore not be allowed to use article 95 to cause further unacceptable and unnecessary delay.

Nothing can justify the PTC’s mischaracterization of the defence’s argument. But perhaps the PTC could be forgiven if seven months was the correct length of time that Libya waited to challenge admissibility. But it is easy to see that the defence claim, not the PTC’s, was far closer to the truth. As the defence noted in its response, Libya initially challenged the admissibility of the cases against Saif and Al-Senussi in the same motion, which it filed with the PTC on 1 May 2012. On May 4 — only three days later — the PTC informed Libya that it did not consider its Al-Senussi challenge to have been properly filed:

8. As a preliminary matter, the Chamber has considered Libya’s submissions as to the scope of the Article 19 Application and considers that it must be understood to only concern the case against Mr Gaddafi. Accordingly, the Chamber will not consider the admissibility of the case against Mr Al-Senussi in resolving the Article 19 Application.

In short: (1) Libya believed that it was in a position to challenge the case against Al-Senussi sometime prior to 1 May 2012 (whenever it began work on the joint admissibility challenge); (2) Libya formally challenged the admissibility of the case on 1 May 2012; (3) Libya learned that it had not filed a proper admissibility challenge on 4 May 2012; yet (4) Libya waited until 2 April 2013 — more than 11 months later — to file a proper admissibility challenge. At a minimum, therefore, the PTC should have determined whether Libya’s decision to wait 11 months, not seven, was reasonable under the circumstances.

Perhaps the PTC would have still given Libya the benefit of the doubt. We have no way to know, of course, because the PTC did not bother to explain its decision concerning a seven month delay. From my perspective, I cannot see how even seven months was reasonable — after all, Libya not only initially challenged the admissibility of the cases against Saif and Al-Senussi in the same motion, it subsequently formally submitted to the Court (see para. 175) its intention to try the two men together. Both of those facts strongly imply that Libya considers the case against the two men to be substantially similar. So if Libya felt able to challenge the case against Saif on 1 May 2012, it is difficult to understand why it needed an additional 11 months to challenge the case against Al-Senussi.

The PTC’s decision to permit Libya to keep Al-Senussi in custody was clearly erroneous. The defence should appeal — and, at a minimum, the Appeals Chamber should order the PTC to consider whether Libya’s failure to file a proper admissibility challenge for 11 months, not seven, is consistent with Art. 19(5).