Libya’s Remarkable Contempt for the OPCD — Ex Parte Version

We know what is stake at in Libya’s admissibility challenge regarding Saif Gaddafi: either a fair trial at the ICC that will likely result in a lengthy prison sentence or an unfair trial in Libya that will almost certainly result in execution. Libya has done nothing to disguise the unfairness of its national proceedings, but it has generally pretended to be concerned with Saif’s right to a fair trial in its many filings at the ICC. So I was very surprised to find Libya argue in its most recent motion that Saif’s lawyers, the Office of Public Counsel for the Defence (OPCD), should not even be allowed to see the evidence it provides the Pre-Trial Chamber in support of its admissibility challenge:

29. In its 7 December 2012 Decision concerning Mr. Gaddafi the Pre-Trial Chamber requested Libya to make available sample investigative materials. Libya has made such samples available (as set out in Annexes 4 to 7 and 15 to 17), prior to the accusatory phase of proceedings on an exceptional basis as a demonstration of its genuine commitment to fully cooperate with the Court in these admissibility proceedings. Libya requests however that this material be treated as being submitted to the Chamber on an ex parte basis. This is necessitated by the strict non-disclosure requirements of investigative material prior to the accusatory phase of proceedings under Article 59 of the Libyan Code of Criminal Procedure (as set forth in the Application of Libya), and for
obvious reasons of confidentiality.

30. Article 59 requires non-disclosure of investigative material under threat of criminal punishment. It provides that:

Investigation procedures and their results shall be considered confidential.
Investigators, prosecution members and their assistants of clerks and experts who are related to the investigation or attend to their profession or post shall undertake not to disclose same. Anyone who breaches this provision shall be punished in accordance with Article 236 of the Penal Code.

The unfairness of Libya’s ex parte request is obvious — the OPCD can hardly challenge Libya’s claim that the national proceedings against Saif satisfy the principle of complementarity if they don’t have access to the supporting evidence. Which is, of course, precisely the point of the request.

To be sure, Libya doesn’t acknowledge the real reason it doesn’t want the OPCD to see its evidence. Instead, it chooses to once again attack the integrity of the OPCD’s lawyers:

32. In addition to the penal sanctions under Article 59, there is a real and substantial risk that premature or inappropriate disclosure of such confidential and sensitive information could be used by Gaddafi-regime loyalists or others to undermine national criminal proceedings. Such actions that might be taken include the destruction of evidence, threatening witnesses and their families, harming or assassinating the Prosecutor-General’s professional staff, and facilitating prison escapes or carrying out terrorist bombings to foment chaos and jeopardize national security in the context of a delicate democratic transition.

Get that? If the Pre-Trial Chamber provides sensitive information to the OPCD, the OPCD might leak it to “Gaddafi-regime loyalists” who will then do all kinds of terrible things with it. The stated basis for that fear? None, of course. The “fear” simply reflects and reiterates Libya’s ongoing contempt for the lawyers who work in the OPCD.

There is also a formal problem with Libya’s argument. Notice the categorical language of Article 59 of the Libyan Code of Criminal Procedure: it says that investigative material “shall be considered confidential” — full stop.  Read literally, Article 59 applies to disclosures to the Pre-Trial Chamber no less than to the OPCD.  Libya, however, never explains why it is free to breach Article 59 by disclosing information to the Pre-Trial Chamber but not free to breach it by disclosing information to the OPCD; it simply claims that it is making an exception for the Pre-Trial Chamber as a “demonstration of its genuine commitment to fully cooperate with the Court in these admissibility proceedings.” (Short of complying with an adverse ruling, of course.)

Nor is that all. Libya doesn’t simply believe that an exception to Article 59 is warranted for the Pre-Trial Chamber.  Even worse, it suggests that a further exception could be made for the OTP:

33. Libya’s request for ex parte submission makes an exception for the Office of the Prosecutor. Libya notes the reference in the Chamber’s Decision to the Prosecutor’s obligation under Article 53(2)(b) of the Statute to “assess on an ongoing basis the admissibility of the case”. Thus, the exception to Article 59 of its Code of Criminal Procedure is intended to facilitate the Prosecutor’s on-going ability to assess issues of admissibility parallel to the proceedings before the Chamber.

34. Perhaps most importantly, the provision of such material to the Prosecutor on an exceptional basis is intended to assist the expeditious resolution of the Admissibility Challenge, since the Prosecutor is in a unique position to be able to compare the evidence in the possession of her office with that gathered by the Libyan authorities in the national investigation. Libya has not had any access to the investigative materials of the ICC Prosecutor, and does not anticipate
reciprocal disclosure. For this reason, Libya’s assessment of the “same conduct” test is necessarily limited to the Article 58 Decision of 27 June 2011 whereas the ICC Prosecutor’s assessment of this issue will be a more informed one.

Not surprisingly, Libya conveniently fails to mention the OPCD’s role in “assessing the admissibility of a case.” Only the OTP matters — because, of course, the OTP supports Libya’s admissibility challenge. Give Libya credit: it would indeed “assist the expeditious resolution of the Admissibility Challenge” to give the evidence supporting the challenge only to those who are in favor of it!

Fortunately, and unusually, the story has a happy ending: the Pre-Trial Chamber categorically rejected Libya’s request to submit evidence ex parte. Indeed, it offered at least tepid support for the OPCD, noting (para. 12) that “Libya fails to assert to what extent and under which circumstances the OPCD (as opposed to the general public) would be the source of any of the alleged risks that the domestic investigation be prejudiced and/or Libya’s national security jeopardized, should the OPCD eventually be provided with the concerned material.”

There are many murky aspects of Libya’s admissibility challenge. Libya’s contempt for the OPCD and for Saif’s right to a fair trial, however, are not among them.