The OTP and the OPCD Spar over Libya’s Obligation to Surrender Saif

As readers know, Dapo Akande, Jens Ohlin, and I have been having a friendly debate over whether Article 95 of the Rome Statute requires Libya to surrender Saif to the ICC pending the Pre-Trial Chamber’s resolution of its admissibility challenge.  (See here and here.)  Two organs of the Court have now weighed in on the issue, with a rather ironic inversion: the Office of the Prosecutor takes the position that Libya is under no obligation to surrender Saif, while the Office of the Public Counsel for the Defence, which is representing Saif, argues that it does have such an obligation.

The motions are a study in contrasts.  The OTP’s motion is a mere six pages, noting that Article 95 refers to postponements of requests under Part IX of the Rome Statute, a part that applies to both requests for surrender and other forms of cooperation, and analogizing Article 95 to Article 89(2), which allows surrender to be postponed when a suspect brings a ne bis in idem challenge in a national court.  It’s a very underwhelming motion, and I don’t say that simply because I disagree with it.  Had the OTP relied much more heavily on Dapo and Jens’s arguments, the motion would have been much stronger.

The OPCD’s motion, by contrast, is 19 pages and offers a variety of very strong arguments in defense of its position that Libya must surrender Saif prior to resolution of its admissibility challenge.  The first section of the motion not only tracks my arguments very closely, it specifically cites the Opinio Juris post in which I argued that Article 89(2) actually supports a surrender obligation under Article 95, because the OTP’s interpretation renders Article 89(2) mere surplusage.  (An Article 89(2) postponement depends upon on Article 19 admissibility challenge, which is what supposedly triggers an Article 95 postponement.)  The motion also spends a good deal of time arguing that permitting postponement of Saif’s surrender would undermine the ICC’s ability to ensure that Libya lives up to its obligation to cooperate with the ICC under S.C. Res. 1970, because the Court will be powerless to force Libya to surrender Saif should it reject Libya’s admissibility challenge. I made a similar argument in my posts, and I continue to believe that the ICC should not be put in a position where it has to resolve Libya’s admissibility challenge even though it knows full well that Libya will simply ignore an adverse decision.

Interested readers will definitely want to check out both motions.