Libya Thumbs Its Nose at the ICC — Again…

As I recently noted, the Appeals Chamber has rejected Libya’s request to suspend its obligation to surrender Saif Gaddafi to the ICC pending resolution of its admissibility appeal. Libya, of course, has no intention of complying with that obligation. Indeed, it admitted as much today:

According to Libya’s Justice Minister Salah al-Marghani, Seif, who is being detained in the Libyan city of Zintan by order of the General attorney, will soon be transferred to Tripoli to stand trial. But the ICC wants to try him, and Gaddafi’s brother-in-law and former intelligence chief Abdullah Senussi on the same charges.

On July 18 the Hague-based ICC rejected Tripoli’s request to keep Seif in Libya for trial, saying that Libya remained “obliged” to hand over Seif to the court.

Libya’s representative to the ICC, Ahmed al-Jehani said that as soon as Seif is transferred to Tripoli, the Libyan government would again appeal the ICC decision.

Mr al-Jehani added: “The ICC decision is based on Seif al-Islam’s detention in Zintan and not under the control of the judicial authorities in Tripoli. This (ICC) decision is not final. Libya’s right to try Seif al-Islam is linked to his transfer to Tripoli.”

Salah al-Marghani said that Libya would appeal the Court’s decision as soon as it meets the three demands expressed by the ICC, namely, the transfer of the Seif to Tripoli and the appointment of lawyers for Seif and Abdullah Senussi. He pointed out that the Public Prosecution would handle the investigation.

He added: “The provision of lawyers, we are working on, that, as well as on several different investigations other than rape and murder.”

Put more simply: Libya will not comply with a binding order to surrender Saif to the ICC, but it fully expects the ICC to let it file a second admissibility challenge. The Rome Statute does, in fact, leave open the possibility of multiple admissibility challenges; Art. 19(4) provides that, “[i]n exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial.” But there is nothing exceptional about Libya’s circumstances that would justify a second admissibility challenge; Libya simply wants to be rewarded for ignoring the Court’s surrender order long enough to fix the problems with its initial challenge. For that reason alone, the Court should reject any Libyan request to file a second admissibility challenge — a decision that, as Art. 19(4) makes clear, is left to the Court’s discretion.

As an aside, I feel obligated to point out that Ahmed el-Gehani, the same man who regularly makes clear to the press that Libya will not surrender Saif to the ICC — and who once told Saif that he was the “architect” of the domestic charges against him — also signs each and every legal document that Libya files with the Court. (See, for example, Libya’s latest brief.) In my view, a strong case can be made that el-Gehani’s actions violate the ICC’s Code of Professional Conduct for Counsel (CPCC) which specifically applies to “counsel acting for States.” Art. 7(3)  of the CPCC provides (emphasis mine) that “[c]ounsel shall comply at all times with the Statute, the Rules of Procedure and Evidence, the Regulations of the Court and such rulings as to conduct and procedure as may be made by the Court, including the enforcement of this Code.” Moreover, Art. 25(1) provides (emphasis mine) that “Counsel shall at all times maintain the integrity of evidence, whether in written, oral or any other form, which is submitted to the Court. He or she shall not introduce evidence which he or she knows to be incorrect.” Those obligations seem difficult to reconcile with el-Gehani’s actions.