PTC: Information Regarding an Admissibility Challenge Cannot Be Confidential

by Kevin Jon Heller

This may be a bit inside baseball for most, but the Pre-Trial Chamber issued an interesting decision yesterday regarding the Office of Public Counsel for the Defence’s formal response to Libya’s admissibility challenge.  According to the PTC, the OPCD wanted some of the information contained in its response to remain confidential not only in perpetuity, but also ex parte.  In other words, the OPCD wanted the PTC to rely on that information but not disclose it to either Libya or the OTP.  Presumably, the information in question relates to Melinda Taylor’s detention in Libya; when I found the decision, I was just about to write a short post wondering what had happened to Taylor’s report, which she had promised to file with the court nearly 10 days ago.

In any case, the PTC rejected the OPCD’s request:

10.    Having reviewed the Request, the Chamber is of the view that the extent of permanent redactions sought by the OPCD defeats the purpose of a response to an admissibility challenge. Indeed, it is the understanding of the Chamber that it may base its decision on the admissibility of the case exclusively on information which is accessible to the other parties to the admissibility proceedings. Accordingly, the OPCD may not rely on submissions and material which are not duly communicated to the other parties.

This is clearly the correct decision.  No matter how sensitive the information may be, the PTC cannot take it into account unless Libya and the OTP have the opportunity to respond to it.  That’s the nature of the adversarial process.

The PTC ordered the OPCD to file its response by July 24 and to rely solely on information that could be disclosed to Libya and the OTP.  Alas, that probably means some of the information will be redacted in the Court’s public documents.  We’ll have to wait and see.

One Response

  1. Agreed – principles of natural justice.

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