OPCD Report on Gaddafi’s Situation in Libya

by Kevin Jon Heller

In my previous post, I discussed the Registry’s report of its visit with Saif Gaddafi in Libya, which was posted on the ICC website and then removed without explanation a few hours later.  It has come to my attention that the Office of Public Counsel for the Defence (OPCD) also prepared a report of that visit — and that the OPCD’s report also appeared and then disappeared from the ICC website.  I have uploaded a copy of the report for interested readers.  It’s much more heavily redacted than the Registry’s, yet offers a number of useful tidbits of information about Saif’s attitude toward the ICC:

33. [Redacted]. The details of ICC proceedings therefore appeared irrelevant to him, as his primary concern is his security in Libya. He would, however, prefer to be under the custody of the ICC in The Hague, rather than being detained in the current conditions, or transferred to Tripoli.

34. It is not correct that he informed the Libyan authorities that he did not wish to meet with any officials from the ICC.

35. Mr. Gaddafi met with the Attorney General and asked for a lawyer in connection with the Libyan proceedings. He was informed that it would be impossible for a lawyer to visit him in Zintan. Mr. Gaddafi does not think that he has signed anything waiving the right to have a lawyer, but in any case, he had been informed in definite terms at the beginning by the Attorney General that it would be impossible to implement in practice.

36. The persons guarding him have mobile phones but there did not appear to be any fixed telephone lines, from which he could call anyone to choose a lawyer. Although the visit did not take place in the particular room in which he is being detained, it is clear that he would not be able to keep privileged documents in a secure location.

37. When asked whether he would want someone, such as his family, to arrange for a Libyan lawyer for the domestic proceedings, he responded that he would.

38. Mr. Gaddafi has been interviewed by the Libyan authorities in connection with allegations concerning the fact that he allegedly did not have a licence for two camels, and issues concerning the cleaning of his fish farms.

39. Dr. Gehani informed Mr. Gaddafi during his meeting with him that Dr. Gehani is the ‘architect’ of the allegations against him. Dr. Gehani also notified him that their investigation into murder, rape et cetera had been terminated because they had no evidence against him.

40. In terms of his legal representation before the ICC, Mr. Gaddafi does want legal representation, but he was not in a position to select counsel himself He does not know any lawyers, his family did not have any retained lawyers to his knowledge, and he does not have the ability to call lawyers to interview them or ascertain their availability.

41. Mr. Gaddafi requested the OPCD to either select counsel or help him in this matter. [Redacted]. Mr. Gaddafi is also willing for the OPCD to continue to represent him before the ICC, until a counsel is appointed.

Saif’s statements about the status of the investigation into his actions obviously need to be taken with a grain of salt — as do Gehani’s, if Saif is reporting them accurately — but they are still cause for concern.  No matter what your view of complementarity, it would obviously be unacceptable for Libya to try him only for minor crimes.

I find Saif’s statements about the ICC particularly interesting, as well.  It’s not surprising that he would prefer to be turned over to the Court for prosecution — he’d get better detention conditions, much better legal representation, and a more fair trial.  And, of course, he would not be eligible for the death penalty.  Saif’s statements also contradict Moreno-Ocampo’s criticism of Xavier-Jean Keita, the head of the OPCD, which I discussed in an earlier post.  It seems quite clear that Saif does, in fact, want the OPCD to represent his interests at the ICC while the Court and the Libyan government debate his fate.

Now if someone could just explain to me why these two reports on Saif’s situation, both of which are marked public, disappeared from the ICC website…

http://opiniojuris.org/2012/04/22/opcd-report-on-gaddafis-situation-in-libya/

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