Qaddafi: No Asylum Across Libya's Southern Border

Reports of a Libyan military convoy crossing the country's southern border  into Niger led this week to a wave of  speculation that the country's beleaguered leader Muammer Qaddafi might be on the run—heading  first into Niger, and then on south to Burkina Faso.

Qaddafi himself recently stated he is still in Libya. However, reports have highlighted the notion that the two states—and Burkina Faso in particular—could provide some form of sanctuary should he try to flee. Burkina Faso 's leader Blaise Compaoré  allegedly had various ties to Qaddafi. Niger has suggested it would be ill-equipped to close its border to a well-armed Libyan convoy.

However, both Niger and Burkina Faso have ratified the Rome Statute of the International Criminal Court, which has issued arrest warrants for Qaddafi, his son Saif el-Islam, and his former intelligence chief Abdullah al-Senoussi. Burkina Faso ratified the Rome Statute on April 16, 2004,  and Niger on April 11, 2002. Given that the Court jurisdiction began in 2002, the two nations therefore have relatively long-standing acceptance of their obligations under the Rome Statute.

The Rome Statue sets out the arrest obligations on state parties such as Niger and Burkina Faso in mandatory terms: under Article 59(1), Niger and Burkina Faso “shall immediately take steps to  arrest  the  person  in  question.” The Rome Statute even goes so far as to require that the arrest shall be directly implemented and “[i]t shall not be open to the competent authority  of  the  custodial  State to  consider  whether  the  warrant  of  arrest  was properly issued [by the ICC]” (Article 59(4)). Once the national authorities have arrested the suspect and preliminary detention matters addressed, “the person shall be delivered to the Court as soon as possible” (Article 59(7), as reinforced in Article 86 and 89(1)).

There is nothing in these provisions which leaves scope for Niger or Burkina Faso to refrain from arresting and transferring Qaddafi, should he be present on their territory.

What if Libya seeks to obtain custody? Given that there are calls for Qaddafi to be put on trial in Libya, it is possible that both Libya and the ICC may request transfer, should Qaddafi be apprehended in a country outside Libya, such as Niger or Burkina Faso.

Libya is mandated to cooperate with the ICC under the terms of UN Security Council Resolution 1970. However, it is possible for Libya to make legal arguments before the judges of the ICC that the case is inadmissible before the ICC and should be tried within Libya. Under the law of the Rome Statute, Libya would need to demonstrate that they are willing and able to prosecute the three sought by the ICC and that there are national proceedings concerning the same conduct as that indicted under the ICC arrest warrants.

The status of such arguments on admissibility would have an impact on the assessment of any potential competing Libyan request for surrender of suspects located outside of Libya.

If an ICC state party (such as Niger or Burkina Faso) receives a competing request for surrender from a nonstate party (such as Libya) priority must be given to the ICC request, if the court has determined that case is admissible before the ICC and not able to be litigated in Libya. If, however, the case has not been determined to be admissible by the court, the country holding the suspect “may, at its discretion” grant the competing request (Article 90).

Although there are many unknown aspects in terms of how events may unfold, the Rome Statue and the UN Security Council Resolution 1970 provide the legal framework applicable to the three individuals named in the ICC arrest warrant.

The clearest obligation remains the arrest of Muammar Qaddafi, Saif Al-Islam Qaddafi and Abdullah Al-Senussi, whether located within or outside Libya.