A Small (But Important!) Win for the OPCD
The win in question concerns the privileged documents the Libyan government seized from Melinda Taylor and her OPCD colleagues while they were meeting with Saif Gaddafi in Libya. In late January, the OPCD asked the Pre-Trial Chamber to order Libya to return the documents and destroy any copies it had made of them. Here is what it argued, as summarized by the Pre-Trial Chamber:
16. With regard to the privileged documents seized by the Libyan authorities, the Defence submits that it never waived their privileged nature, that their seizing has never been legally or factually justified by the Libyan authorities, that they remain property of the Defence and that they are “integral to the ability of the Defence to both represent Mr. Gaddafi in the admissibility proceedings, and to respond to any false allegations which have been made by the Libyan authorities in relation to the conduct of Counsel and the defendant.” It is submitted that the Pre-Trial Chamber “retains the exclusive competence for determining whether the privileged nature of the documents should be lifted” .
17. According to the OPCD, the Chamber has the power to order that they “be immediately retumed to the Defence, and all copies should be destroyed”25 since this “falls squarely within the Chamber’s powers under Article 57(3)(b) and (c) of the Statute” and “[t]he duty to return such documentation also inheres in Libya’s obligation to respect the functional immunity of the Defence as required by Article 48 of the Statute” .
Libya, not surprisingly, opposed the request. Again as summarized by the Pre-Trial Chamber:
21. With regard to the OPCD request to retum and destroy all copies of certain privileged documents, Libya argues that, since the privileged nature of this material has not been waived, the diplomatic channel is the only appropriate one to make such a request. In this regard, Libya submits that an order by the Court would be inappropriate, given that there are still matters of Libyan criminal law and procedure in relation to these materials to be determined by Libyan national courts.
On Friday, the Pre-Trial Chamber categorically rejected Libya’s argument and granted the OPCD’s request for the return of the privileged documents and destruction of any copies:
25. In relation to the material seized from the Defence by the Libyan authorities, the Chamber notes article 48(4) of the Statute that provides that Counsel “shall be accorded such treatment as is necessary for the proper functioning of the Court”. The Chamber considers that the inviolability of documents and materials related to the exercise of the functions of the Defence constitutes an integral part of the treatment that shall be accorded to the Defence pursuant to article 48(4) of the Statute and in light of article 67(1) of the Statute. This holds true in particular considering that the materials at issue were seized from the Defence in the occasion of a privileged visit specifically authorized by the Chamber and agreed by Libya, in the context of the admissibility proceedings initiated before this Chamber.
27. For these reasons, the Chamber is of the view that, in the absence of a waiver of privileges and immunities by the appropriate organ of the Court, the principle of inviolability of the Defence documents stands fully. Accordingly, Libya must return to Counsel the originals of the materials belonging to the Defence and seized in Zintan as well as destroy any copies thereof.
This may seem like a minor victory for the OPCD. The ICC obviously cannot allow states to undermine the attorney-client privilege by seizing confidential documents prepared by defence counsel. But I actually think the victory is critically important, because it is extremely unlikely that Libya will comply with the order. Without the seized documents, the Zintan prosecution of Gaddafi, Taylor, and her colleagues will collapse completely. Moreover, it is not clear whether Libya even has the power to return the documents (much less ensure the destruction of any copies); they may well be in the possession of the Zintan militia holding Saif.
And therein lies Libya’s quandry. If it wants the Zintan prosecution to proceed, it cannot return the documents and destroy any copies. But if it does not return the documents and destroy any copies, it will very publicly violate an explicit order of the Pre-Trial Chamber. That will make Libya look terrible — and will make it look terrible just as the Pre-Trial Chamber is getting set to rule on its admissibility challenge. That’s a no-no.
My guess? Libya will try to avoid complying with the order by filing various motions challenging the Pre-Trial Chamber’s decision. It will, in other words, try to stall until the Pre-Trial Chamber rules on its admissibility challenge.
Here’s hoping the Pre-Trial Chamber doesn’t let Libya get away with it.