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…