Appeals Chamber Rejects Libya’s Request to Suspend Transfer of Saif

by Kevin Jon Heller

In the wake of the Pre-Trial Chamber’s categorical rejection of Libya’s admissibility challenge, the Libyan government asked the Appeals Chamber to suspend its obligation to transfer Saif Gaddafi to the ICC pending its appeal of the decision. The Appeals Chamber has now rejected that request and ordered Libya to surrender Saif to the Court. Here are the critical paragraphs of its decision:

24. Libya argues that implementation of the Impugned Decision would create an irreversible situation or one that would be very difficult to correct or would potentially defeat the purpose of the appeal. It argues that “[t]he purpose of the present appeal is to allow the Libyan domestic criminal process in respect of Mr. Gaddafi to continue to completion”. The Appeals Chamber finds, however, that the purpose of the appeal is for the Appeals Chamber to reach a decision pursuant to rule 158 (1) of the Rules of Procedure and Evidence, which provides that “[a]n Appeals Chamber which considers an appeal referred to in this section may confirm, reverse or amend the decision appealed”. The purpose is not to permit Libya to conduct its domestic criminal proceedings.

25. Second, Libya argues that transfer of Mr Gaddafi to the ICC “would undermine the domestic investigation concerning his individual culpability, as well as creating substantial impediments with regard to a wider prosecutorial strategy and Libya’s transitional justice policy as a whole”. It refers to, inter alia, the creation of an “irreversible situation” or “one that would be very difficult to correct and may be irreversible”.

26. The Appeals Chamber notes that, as far as national investigations are concerned, Libya is in a position to continue its investigations irrespective of the ongoing proceedings before the Court. The Appeals Chamber considers that it has not been provided with information as to why Mr Gaddafi’s transfer to the Court would prevent Libya from continuing with its investigations concerning him, in addition to any other investigations or prosecutions. The Appeals Chamber is not convinced by the reasons provided as to why surrender of Mr Gaddafi to the Court would produce the results alleged.

27. Having concluded that there is no reason to grant suspensive effect in this case, the Appeals Chamber recalls that Libya is currently obliged to surrender Mr Gaddafi to the Court.

The Appeals Chamber’s decision is plainly correct. The ICC would return Saif to Libya if Libya prevailed in its appeal of the Pre-Trial Chamber’s decision. But there is no chance whatsoever that Libya would transfer Saif to the ICC if Libya lost its appeal. So surrendering Saif to the Court would not create an “irreversible situation” with regard to the domestic prosecution. And as the Appeals Chamber notes, Libya would remain free to continue to build its case against Saif while he is in ICC custody.

Libya is now in something of a pickle. It has no intention of ever turning Saif over to the ICC, regardless of what the Court decides. At the same time, Libya would like to avoid openly flouting the Court’s authority, because doing so will harm its international reputation. But here’s the problem: it is far from clear whether the Appeals Chamber will be willing to consider Libya’s appeal if Libya simply ignores its decision. I wouldn’t think so. My guess — and certainly my hope — is that the Appeals Chamber would refer Libya’s misconduct to the Security Council and suspend consideration of Libya’s appeal pending Council action. And that could be a very long wait…

http://opiniojuris.org/2013/07/18/appeals-chamber-rejects-libyas-request-to-suspend-transfer-of-saif/

One Response

  1. Spot-on analysis and an insightful question raised. The text following the quoted excerpt is also interesting, and it may shed some light on the question of what the Appeals Chamber may do if Libya ignores its decision:
    “Leaving aside the question of whether article 95 of the Statute relates also to requests for surrender, the Appeals Chamber finds that, in any event, article 95 of the Statute is not applicable to the appellate phase of proceedings. This is because this phase of the proceedings is regulated by article 82 (3) of the Statute. In addition, in the view of the Appeals Chamber, once the Pre-Trial or Trial Chamber has ruled on an admissibility challenge, it is no longer “under consideration by the Court”, as referred to in article 95 of the Statute. Rather, the decision on the admissibility challenge is being reviewed by the Appeals Chamber pursuant to article 82 (1) (a) of the Statute.”
    The Appeals Chamber is clearly signalling (to Libya but also to the PTC) that Libya has been in breach of its surrender obligation since at least the admissibility decision (and possibly earlier if article 95 doesn’t apply). Further delay in surrender probably wouldn’t go down well with the Appeals Chamber. At the same time, the Appeals Chamber demonstrates a clear distinction between the role of the PTC in the case generally and the limited appellate role of the Appeals Chamber. This suggests to me two likely aspects of how the Appeals Chamber will proceed:
    First, the explicit limitation of the Appeals Chamber’s role to reviewing the Impugned Decision suggests strongly that the Appeals Chamber wouldn’t wait for Libya’s cooperation before deciding the appeal. There’s not really any need to wait for his surrender.
    Second, as the decision not being enforced is the PTC’s decision (note there’s no operative part to the Appeals Chamber’s decision), it’s likely that the Appeals Chamber would consider that the PTC and not the AC is the competent Chamber to make a finding of non-cooperation and refer the matter under Regulation 109. PTC’s have occasionally treated decisions as not final pending appeal. This decision makes it clear that the PTC should not wait until the Appeals Chamber resolves the appeal to push for cooperation. 
     

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.