Several times I've argued that the Libyan authorities have an obligation to ship Saif Gaddafi to the ICC and only then, with Saif in the Hague, to argue that they are capable of trying him in Libya. If they can convince the ICC judges that the new Libya is capable of carrying out a trial, Saif should be returned. In a recent press release, Human Rights Watch appeared to make a similar argument:
Surrendering Saif al-Islam Gaddafi to the ICC would not prevent the new Libyan authorities from preparing their own cases against him and others concerning events since February 15 or before. Security Council Resolution 1970 requires the Libyan authorities to cooperate fully with the ICC. This includes surrendering him to the court. Should the Libyan authorities wish to try Saif al-Islam Gaddafi domestically for crimes in the ICC's arrest warrant, they can challenge – through a legal submission – the court's jurisdiction over the case. The Libyan authorities will have to show that they are genuinely able and willing to prosecute the case in fair and credible proceedings. Demonstrating an ability to fairly prosecute Saif al-IslamGaddafi would likely require swift and substantial reform of the judicial system, Human Rights Watch said. For the ICC to find that the case is inadmissible, and that it must be returned to Libya for prosecution, the Libyan proceedings must encompass both the person and the conduct that are the subject of the case before the ICC. Ultimately, it is up to the ICC judges to determine whether any national proceedings exist that would trump the court's ability to hear this case. Because the ICC is a judicial institution, its proceedings must run their independent course.
I now think this may not be correct as a matter of legal obligation. My interpretation was based on the fact that the ICC has already issued an arrest warrant, the Security Council has required Libya to cooperate with the court, and that the Rome Statute clearly allows a state to contest the admissibility of a case once a person is in the court's custody.
Several commenters, however, have insisted that my reading of the statute is stretched. And yesterday, 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 while that 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.
I'd welcome any more insight on this question from Rome Statute junkies.
Update: Over at Opinio Juris, Kevin Jon Heller has responded to--and differed with-- my post. His intervention in turn sparked some excellent input in the comments section from Rome Statute experts. Cornell law professor Jens David Ohlin also takes a crack at untangling the statute's complexities on the obligation to surrender a suspect. His ultimate conclusion is dead on: "the Rome Statute was drafted by committee and gives all of us a headache."
More: Abstracting for a moment from the textual analysis, there's an interesting institutional point: the ICC at the moment has a clear interest in downplaying Libya's obligations while it negotiates. Insisting loudly that Libya is already in violation of its legal obligations would only highlight the court's impotence.