On 4 April 2012, Pre-Trial Chamber I issued its ‘Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif Al-Islam Gaddafi’. This is a short, but very interesting decision (nine pages long). In the dispositif, the Chamber rejected Libya’s Second Postponement Request and reiterated its request that Libya make its decision to grant the Surrender Request and proceed immediately with the surrender of Mr Gaddafi to the Court. It, however, left open the question whether Article 95 of the Statute applies to surrender requests.
Interestingly, the Prosecutor did not respond to either the Second Postponement Request of Libya or its Request to Reply (par. 8). It bears mentioning here another decision of the same date, where the Chamber decided that a lot of confidential documents be reclassified as public and that for a number of documents public redacted versions be filed by 10 April. That will provide more clarity about what has been happening at the Court during the last six months with regard to the situation in Libya and restore the principle of publicity of proceedings.
Procedural history (paras. 1-8)
An arrest warrant against Mr Gaddafi was issued by the Pre-Trial Chamber I on 27 June 2011. On 5 July 2011, the Registrar notified the Libyan authorities of a request for cooperation asking for their assistance in arresting Mr Gaddafi and surrendering him to the Court (the ‘Surrender Request’). The National Transitional Council confirmed the arrest of Mr Gaddafi on 19 November 2011 in Libya, through a letter transmitted to the Chamber on 23 November 2011. On 23 January 2012, the Libyan authorities sought, pursuant to article 94 of the ICC Statute postponement of the Surrender Request pending the completion of national proceedings in relation to other crimes against Mr Gaddafi (the ‘First Postponement Request). On 7 March 2012, the Chamber issued the ‘Decision on Libya’s Submissions Regarding the Arrest of Saif Al-Islam Gaddafi’ (the ‘7 March 2012 Decision’), dismissing the First Postponement Request and requesting that Libya make its decision to grant the Surrender Request and inform the Chamber accordingly within seven days of notification of the Arabic translation of the 7 March 2012 Decision.
On 22 March 2012, Libya notified the Chamber of its intention to challenge the admissibility of the case concerning Mr Gaddafi pursuant to articles 19(2)(b), (5), and (6) of the Statute by 30 April 2012 and requested, pending a decision on this challenge, that the Pre-Trial Chamber suspend its execution of the Surrender Request in accordance with, inter alia, article 95 of the Statute and rule 58 of the Rules of Procedure and Evidence (RPE) (the ‘Second Postponement Request’).
Submissions (paras. 9-13)
The Chamber found inadmissible the OPCD Response to the Second Postponement Request, since it was more than 2,000 words over the maximum number which is allowed under the Regulations of the Court for a response in these circumstances (par. 11). Noting that no admissible responses had been filed to the Second Postponement Request and, in any case, considering that it did not need any further submissions on the proper interpretation of article 95 of the Statute at this time, the Chamber rejected Libya’s Request to Reply (par. 16).
Applicable Law and Findings of the Chamber (paras. 14-19)
As to the legal bases presented by Libya in support of its Second Postponement Request, the Chamber first noted that rule 58 of the Rules only details some specific points of procedure which are involved when making an admissibility challenge under article 19 of the Statute. According to the Chamber, this rule makes no mention of postponing a request for cooperation and cannot therefore be used as a legal basis by the Government of Libya in support of its Second Postponement Request.
With regard to the use of Article 95 of the Statute as a second legal basis, the Chamber stated that this article only applies when there is an admissibility challenge under consideration. Since Libya had announced that an admissibility challenge was forthcoming, but there was currently no such challenge before the Chamber, the latter decided that Article 95 of the Statute cannot serve as a legal basis for Libya’s Second Postponement Request. Consequently, the Chamber rejected the Second Postponement Request presented by the Government of Libya.
Article 95, entitled ‘Postponement of execution of a request in respect of an admissibility challenge’, reads as follows:
Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.
The Chamber further noted that, despite its request in its 7 March 2012 Decision, the Government of Libya had not informed the Chamber hitherto of its decision to grant the Surrender Request. According to the Court, absent any justification for postponing the execution of the Surrender Request, the Government of Libya must take the following steps:
(i) make its decision to grant the Surrender Request;
(ii) (ii) afford Mr Gaddafi the procedure described in article 59 of the Statute which necessarily follows from arresting a person pursuant to a surrender request; and
(iii) (iii) start making arrangements in preparation for the surrender of Mr Gaddafi to the Court without further ado.
Furthermore, the Chamber clarified that for all possible purposes that any failure on the part of the Government of Libya to comply with its obligations to enforce the warrant of arrest against Mr Gaddafi may warrant that the Court make a finding to this effect.
Some Final Remarks
From the tone of the decision it seems that the patience of the Chamber with the government of Libya with regard to the surrender of Mr Gaddafi is running thin. Eventually, if Mr Gaddafi is not surrendered to the Court in the coming weeks, it might well happen that a finding to this effect is made and brought to the attention of the Security Council. It seems that Mr Gaddafi wants to be transferred to the Court, whereas Libya wants him tried domestically. For Mr Gaddafi, being tried before the ICC would mean, among others, escaping the death penalty, which potentially might be imposed on him, should he be tried under Libyan law.