Does Libya Have to Surrender Saif to the ICC? (Answer: Yes)

by Kevin Jon Heller

Most commentators have assumed — Julian included — that Libya has an obligation under the Rome Statute to surrender Saif Gaddafi to the ICC before it can challenge the admissibility of the case against him.  At The Multilateralist today, David Bosco quotes a UN diplomat who believes that Libya can challenge admissibility without first surrendering Saif:

[Y]esterday, an extremely well informed diplomat at the UN got in touch to point me to a provision in the statute that appears to anticipate the possibility a country holding onto the subject of an arrest warrant whilethat state argues that it can try the individual. The provision is Article 19(8):

Pending a ruling by the Court, the Prosecutor may seek authority from the Court…(c)  In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58.

As the diplomat pointed out, this provision is nonsensical if a state must turn over anyone subject to an arrest warrant immediately. None of this means that the Libyan authorities can ignore the court; the ICC judges should, as a legal matter, still have the last word on where he will be tried. But it does mean that they may be within their rights to hold onto Saif while they convince the judges.

Although the Rome Statute is not the picture of clarity on the issue, I do not believe that the UN diplomat is interpreting Article 19(8)(c) correctly.  In my view, that provision envisions a situation in which a state challenges admissibility on the ground that it is investigating a suspect whom it does not yet have in custody.  We don’t normally talk about a suspect “absconding” from custody; “escape,” maybe, but not abscond.  Indeed, the two primary dictionary definitions of “abscond” are to “[l]eave hurriedly and secretly, typically to avoid detection or arrest,” and to “[f]ail to surrender oneself for custody at the appointed time.”  Moreover, if Article 19(8)(c) is designed to address suspects already in custody, why would it mention “the relevant States,” in the plural?  Doesn’t that envision the need for multilateral cooperation to apprehend a suspect whose whereabouts are unknown?  I think the provision would refer to the “relevant State” if it was worried about a suspect escaping from custody.

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