01 Aug The Most Complete Account to Date of Melinda Taylor’s Detention
The OPCD has filed its formal response to Libya’s admissibility challenge. It’s a monster of a brief — 92 pages — so it will take a number of posts to deal with it adequately. In this first post, I want to pull together the various sections of the brief that provide unprecedented detail concerning Melinda Taylor’s detention. Before I do, though, I just want to say how lucky the ICC is to have professionals like Melinda Taylor and her detained colleagues (and their boss, Xavier-Jean Keita) working for it. They are a credit to their profession, to the Court, and to international criminal justice in general. They make me very proud to have spent the majority of my career working to protect the rights of criminal defendants.
Now, Taylor’s detention. It’s a sordid tale — and one that makes the ICC’s ill-advised and counterproductive apology to Libya seem even more ill-advised and counterproductive. First, some background to the OPCD’s appointment:
249. On 6 December 2012, the Pre-Trial Chamber appointed the OPCD to represent the interests of Mr. Gaddafi in the proceedings before the ICC. In January 2012, the OPCD liaised with the Libyan authorities in order to establish contact with Mr. Gaddafi with a view to advising him on his rights before the ICC.
250. The Prosecutor-General refused to conduct communications with the OPCD by telephone or to confirm by facsimile whether it would be possible for the OPCD tvisit Mr. Gaddafi. The OPCD was eventually instructed to Uaise with Dr. Gehani. Dr. Gehani informed the OPCD that it would not be feasible for the OPCD to communicate with Mr. Gaddafi due to the fact that Mr. Gaddafi had refused to see any ICC officials.
251. On 19 January 2012, the OPCD requested Dr. Gehani to convey a letter to Mr. Gaddafi, explaining the appointment and mandate of the OPCD, so that Mr. Gaddafi could make an informed decision regarding a potential visit. It is, however, apparent that Dr. Gehani failed to convey this letter to Mr. Gaddafi.
252. On 23 January 2012, the Libyan authorities averred to the Pre-Trial Chamber that Mr. Gaddafi had apparently refused to receive visits from a local or international lawyer, or from any ICC officials.
253. Pursuant to an order of the Chamber, the Libyan authorities arranged for representatives of the Registrar and the OPCD to meet with Mr. Gaddafi on 2 March 2012, that is 1 month after the Chamber had ordered that the visit be implemented ‘as soon as possible’.
The OPCD initially met with Saif on March 3. As that meeting made clear, the Libyan authorities had blatantly lied to the ICC from the beginning about Saif’s desires:
255. During the meeting with the OPCD, Mr. Gaddafi indicated that he had never informed the Libyan authorities that he did not wish to meet with officials of the ICC. Moreover, in contradistinction to the assertion of the Libyan authorities that Mr. Gaddafi did not wish to meet with or cooperate with any ICC officials, Mr. Gaddafi specifically requested the OPCD to visit him again, and indicated that he did not object to the OPCD continuing to represent him until he was in a position to be represented by counsel of his choice.
Having obtained some access to Saif, the OPCD then attempted to arrange a more formal meeting with him — one at which they could confidentially discuss privileged matters. Those efforts did not go well:
254. During a preliminary meeting with the prosecuting authorities, the OPCD attempted to obtain clarification as to how the OPCD could maintain privileged communications with Mr. Gaddafi. The OPCD was informed quite bluntly that such communications would not be possible whilst Mr. Gaddafi was detained in Zintan, and continuous requests for access to a mechanism for transmitting privileged materials to Mr. Gaddafi were ignored, as were subsequent requests.
Fortunately, at that point the Pre-Trial Chamber stepped in and ordered a privileged meeting. The Libyan authorities promised to abide by the order — and promised not to consider any statements made during that meeting to be treason under Libyan criminal law (a provision later held unconstitutional by the Libyan Supreme Court):
259. On 27 April 2012, the Pre-Trial Chamber ordered the Libyan authorities to implement a privileged visit between the Defence and Mr. Gaddafi. After several weeks had elapsed, the Libyan authorities explicitly confirmed to the Pre-Trial Chamber that they would implement a ‘privileged visit’, which respected ‘intemational law’, and that “any statements made by the OPCD which are made within their proper remit of defending Mr Gaddafi in criminal proceedings would not and cannot constitute a violation of Law No. 37”, thereby implying that there would not be any sanctions or retaliatory action taken against the Defence for its legal positions.
The Registry also made clear to the Libyan authorities that the OPCD’s visit would involve the exchange of documents for Gaddafi to review. They did not object. Moreover, it was made clear to the Libyan authorities that Taylor and her team would be traveling on laissez-passer passports because they were on official UN business:
260. During the course of the organization of this visit, the ICC focal point was explicitly informed in advance by the Registry Representative tasked with organising the mission that the Defence wished to go through documents with Mr. Gaddafi related to the admissibility challenge, discuss issues relating to his representation concerning domestic proceedings, and bring personal items for Mr. Gaddafi, and that due to the complexity of the issues which would be discussed and the volume of documents, the Defence required more than one day to meet with Mr. Gaddafi.
261. At no point in time did the ICC focal point. Dr. Gehani, raise any objections to these requests or inform the ICC Registry of any specific domestic legal requirements which would prevent the Libyan authorities from implementing the privileged visit in a manner which was consistent with intemational law. In addition, the four ICC officials were – to the explicit knowledge of the Libyan authorities – travelling on United Nations laissez passer passports. [Redacted].
Once Taylor and her team arrived in Libya, however, any pretense of its willingness to cooperate with the ICC immediately evaporated:
262. Although Dr. Gehani had arranged with the Representative of the Registrar to discuss further details concerning the procedures for the visit on the morning of 7 June 2012, Dr. Gehani arrived late to the rendezvous point, and insisted that the ICC delegation depart immediately for Zintan without discussing the procedures in advance. Upon arrival in Zintan, Dr. Gehani also blatantly denied that the ICC Registry representative had ever liaised with him in advance concerning the requests of the Defence.
Those were the events that preceded the OPCD’s privileged meeting with Saif. During the meeting itself, Taylor and her team were monitored by a “guard” who had informed Taylor through an interpreter that he was illiterate and did not understand English. Many of the documents exchanged between Taylor and Saif were specifically “covered by ICC protective orders” (para. 271) and included a document “which explicitly noted that it had been prepared by a member of the Defence team, and which set out the views of his family and friends conceming his options for legal representation” (para. 205). Saif also asked the team’s interpreter “to complete a statement (confirming his wish to be tried before the ICC) and two powers of attomey for him (one for domestic
proceedings and one for the ICC)” (para. 205). Before the interpreter could do so, however, Saif tried to sign a letter he had written in which he claimed that he would not receive a fair trial in Libya. And then all hell broke loose:
11. These were the sentiments, which Mr. Gaddafi wished to convey to the Honourable Pre-Trial Chamber, based on the views he had provided to the OPCD on 3 March 2012, and reconfirmed on 7 June 2012. When Mr. Gaddafi attempted to sign this statement after reading it, the guard, who had informed the ICC delegation through the interpreter that he was illiterate, did not understand English and that his sole purpose of being present was to ensure issues of physical security, confiscated the statement and brought it to Dr. Gehani to read.
12. The ‘guard’, who is actually Mr. Ahmed Amer – a councillor who speaks several languages – was planted in the room to deliberately trick the delegation. He came back into the room and (in the presence of the ICC interpreter), started shouting that this statement was very dangerous, violated Libyan national security, and that the Defence could not have it back.
13. The Defence attempted to seek instructions from Mr. Gaddafi in relation to the content of the challenge to admissibility filed by the Libyan government, however… several additional documents were confiscated, including an annex to the challenge to admissibility filed by the Government of Libya. When the Defence attempted to go through other annexes with Mr. Gaddafi, the guard abruptly cut the visit short. The entire visit only lasted approximately 45 minutes and had been constantly disrupted by the fact that Mr. Amer kept confiscating documents and demanding to read Defence documents, which were on the table.
Taylor and her team were immediately detained. The Libyan authorities informed them that the entire meeting had been secretly filmed and claimed — despite their official representations to the ICC and the Pre-Trial Chamber’s order — that the meeting was not, in fact, covered by professional privilege:
264. The four ICC officials were explicitly informed that everything (i.e. the hidden camera, the designation of a guard who understood multiple languages) had been set up by the prosecuting authorities in advance of the ICC visit. In contradistinction to the explicit recognition by the Libyan authorities in their filing to the Pre-Trial Chamber that the OPCD was entitled to meet with Mr. Gaddafi on a privileged basis, Dr. Gehani and the prosecuting authorities initially attempted to assert that since the OPCD was only appointed on a temporary basis, the OPCD was not entitled to the protection of legal professional privilege. Dr. Gehani and the prosecuting authorities also tried to compel the ICC interpreter to respond to questions conceming the content of the communications between the Defence and Mr. Gaddafi by claiming that the interpreter was not an ICC official, and was thus not covered by either confidentiality or the privileges and immunities of the ICC.
The final sentence is particularly interesting, because it indicates that the Libyan authorities recognized from the beginning that at least some members of Taylor’s team were entitled to immunity — yet monitored, searched, and arrested them anyway.
Later, the Libyan authorities explained to Taylor why they had been detained:
265. Dr. Gehani also informed both the Counsel for Mr. Gaddafi and the ICC interpreter on independent occasions that the actions of the Libyan authorities were ‘retaliation’ for the allegations, which had been set out in the OPCD report of 7 March 2012. Dr. Gehani spoke to the ICC interpreter in Arabic, and as such, his words cannot be attributed to a misunderstanding or a mistranslation.
Gehani’s comments are not surprising, given that at one point he threatened to sue Xavier-Jean Keita, the head of the OPCD, because of the allegations in the report.
Taylor and her team were also detained incommunicado, because the Libyan authorities needed to prevent them from telling their side of the story and intended to lie to the Security Council about what happened (emphasis in the original):
266. The continued incommunicado detention of all four ICC officials allowed the Libyan authorities to pre-empt any criticism of their actions by proactively attributing blame to the ICC, whilst at the same time, preventing the four ICC officials from recounting the events to either the ICC or the international community.
267. At the same time, in order to avoid potential repercussions from the Security Council, the Libyan authorities falsely informed the Security Council that only one ICC official had been arrested, and that the other three officials had stayed in detention ‘out of solidarity’.
The bolded text is revealing, because the “solidarity” line was widely reported by the media (see here, for example). Nice story or not, there was no such solidarity; in fact, all four members of the team had been arrested and detained by order of the Libyan authorities:
268. On 7 June 2012, Mr. [Redacted] and Dr. Gehani informed the ICC delegation that all four ICC officials were detained under the authority of the Prosecutor-General,and that the Counsel and the ICC interpreter were suspects, although no written orders were provided to them nor was the legal basis for their detention explained. Dr. Gehani also informed the ICC delegation that the NTC Chairperson had confirmed their detention. After the Prosecutor finished interrogating the guard and Mr. Gaddafi, the ICC delegation was informed that it could in principle leave, but since it was late at night, it would be necessary to stay in Zintan and depart the next morning.
269. The next morning. Dr. Gehani informed the ICC delegation that only Mr. Peralta Losilla and Mr. Khodakov were free to leave; Counsel and the ICC interpreter were required to stay until the prosecutors retumed, and then they could leave. The four ICC officials decided that Mr. Peralta Losilla should travel to Tripoli in order to liaise with the ICC and authorities there, however, when Mr. Perlata Losilla tried to leave, he was then informed that all four ICC officials were under arrest, and Mr. Peralta Losilla was prevented from departing. At no point in time were the four officials provided with any legal documentation concerning the basis for detaining them, and, on 10 June 2012, they were transferred to a jail, which was surrounded by tanks.
Even worse, Libyan authorities initially prevented Taylor and her team from contacting the ICC:
274. When the ICC delegation attempted to contact the Presiding Judge of the Pre-Trial Chamber to obtain further clarification or confirmation conceming the correct procedures in such a situation, the telephones of the four ICC officials were confiscated at the very moment that the Presiding Judge was about to speak to the Counsel for Mr. Gaddafi.
Not surprisingly, Taylor wanted the Libyan authorities to explain why they had been detained. The real answer was that — despite their earlier promise to the Pre-Trial Chamber — they considered any efforts to help Saif to be treason:
270. The Libyan authorities have also never provided a cogent explanation as to how the documents in the possession of the Defence violated domestic law or national security. Rather, it appears from the respective statements of the first guard (Mr. Ahmed Amer), Captain Al-Ajami, the Minister of Defence, and Mr. [Redacted], that the Libyan authorities consider that either providing assistance to Mr. Gaddafi or advising him to be tried before the ICC in itself violates national security and/or constitutes treason.
n258. On 29 June 2012, the Minister of Defence, Minister of Health, and a member of the Zintan Council visited the four detained ICC officials. During this meeting, the Minister of Defence announced that ‘Anyone who assists former members ofthe Gaddafi regime is a traitor, and they consider this to be a crime worse than murder’. This statement was filmed, but the Representative of the Registrar, Mr. Khodakov, requested them not to broadcast it, and they agreed.
n259. Mr. [Redacted] – who is the prosecutor assigned to the case of Mr. Gaddafi – interrogated Counsel with the question as to whether she was aware that a document in her possession contained a sentence, which violated national security. Although Mr. [Redacted] did not initially read out the sentence, it was later revealed by the interpreter to be a sentence to the effect that Mr. Gaddafi’s friends and family wanted him to live, and therefore supported him being tried before the ICC.
There you have it. I don’t have much to add, other than to point out that there is no evidence whatsoever that Taylor and her team did anything wrong — unlike Libya, which repeatedly lied to the ICC, lied to the Security Council, and lied to the media.
And yet the ICC apologized to Libya and thanked it for its cooperation…
You seem surprised that a sovereign lies, detains people on spurious grounds, and plays the process to its advantage to the extent it can. Nothing new under the sun. What is great is that they WERE traveling on laissez-passer as conducting official UN business which helped them enormously. They got played when they allowed anything to happen that did not give them complete and unfettered access. The “illiterate guard” routine should have sounded alarms – they got played. They should have had with them technical people who could verify the room ahead of time. And, if people are shocked by this law in Libya, the question is what are the Libyan rules on privileged communications between a counsel and his/her client. The impression is that they did not exist under Qaddhafi and do not exist now – at least when in a criminal process. Now the attempt is to overlay this international procedure on privileges etc on that background that finds these things alien to Libyan criminal procedure. No one in Libya wants to lose face (or life?) by being seen as soft on Saif. Like in the US no one wants to be seen as soft on terrorism. Nothing new… Read more »
I seem to remember you arguing previously that the relevant Rome Statute clause on admissibility (17(2)) only depends on whether the prosecuting state is attempting to shield the accused from criminal responsibility, not whether the prosecution would comply with international standards of due process. Libya’s actions seem to cast serious doubt on its ability to comply with international due process standards. Do you think that any of Libya’s actions with regards to the OPCD could or should be considered as relevant to Libya’s admissibility challenge?
(My apologies in advance if I have mis-remembered the position you took on host state due process protections.)
Your recollection is correct. I’m going to post later on that issue. To preview: Libya’s failure to live up to international standards of due process is irrelevant for purposes of 17(2); Libya’s failure to live up to its own standards of due process, insofar as that failure could threaten a prosecution — because Libya has an independent judiciary — is very relevant.
[…] of the arrest and detention of Melinda Taylor and the ICC4. Kevin Jon Heller at Opinio Juris has covered the most controversial and pertinent bits of the report (see here and here) and has posted a […]