Terrible Reporting on Melinda Taylor’s Detention

At Justice in Conflict, Mark Kersten is keeping track of developments concerning Taylor’s detention.  Checking out some of his links, I was struck (not for the first time, of course) by how little the media knows about how the ICC works — and by their willingness to think the worst of criminal defense attorneys, even in the absence of any evidence that they have done anything wrong.  Case in point, an article by someone named George Grant in the Libya Times, which has the following “when did you stop beating your wife” title: “ICC Still Not Denying Melinda Taylor Allegations.”  Here are a few paragraphs that are indicative of the article’s awfulness:

Taylor has been accused by both the commander of the Zintan brigade, Ajmi Al-Atiri, and the official spokesman of the NTC, Mohammed Harizi, of attempting to hand over “dangerous” documents to Saif Al-Islam Qaddafi. Taylor has been appointed by the ICC to represent Saif’s defence interests.

Amongst these documents are allegedly coded letters written by Saif’s fugitive right-hand man, Mohammed Ismail, with whom Taylor’s captors believe she has been in contact. Taylor has also allegedly been found in possession of three blank documents marked only with Saif’s signature, as well as a letter from Saif in which he complains of mistreatment at the hands of his captors and the absence of the rule of law in Libya. Assaf, meanwhile, is said to have been found in possession of a “spy camera”.

Taylor is not Saif’s appointed defence lawyer, and as such is not authorised to pass him any documents, from any source, that are not first authorised by the ICC. Saif has not yet appointed a defence counsel, and not until he has done so will that individual be at liberty to freely exchange correspondence with him.

Where to begin?  Perhaps by noting that Grant can’t keep his facts straight: in the first paragraph, he says (correctly) that Taylor has been appointed to represent Saif at the ICC, while in the third paragraph he says (incorrectly) that Taylor is not Saif’s appointed lawyer.  Both claims can’t be true.  Grant might also have mentioned that “Saif has not yet appointed a defence counsel” because Libya has consistently denied him that opportunity — and that, in fact, Saif specifically told the OPCD in its previous meeting that he wanted it to represent him at the ICC.  Finally, Grant simply invents the idea that the OPCD’s lawyers are required to have the Court authorize the exchange of documents with Saif; such a requirement not only doesn’t exist under the Rome Statute, Rules of Procedure, or Code of Conduct, it would be fundamentally at odds with the structure of the ICC, according to which “[t]he OPCD shall fall within the remit of the Registry solely for administrative purposes and otherwise shall function as a wholly independent office.”

As for the “dangerous” documents Taylor allegedly possessed, it’s revealing that Grant includes in that category “a letter from Saif in which he complains of mistreatment at the hands of his captors.”  Yes, such a letter is indeed dangerous — to a brutal and lawless regime that has consistently demonstrated its contempt for Saif’s rights as a suspect.  That’s why, assuming Grant is correct, Taylor had the letter; it’s her job to protect those same rights.  I’d also like to know what the Libyan government considers a “spy camera.”  I would not be surprised if the OPCD lawyers had a camera with them; a good defense attorney always documents his or her client’s condition.  Indeed, that documentation is particularly needed in Saif’s case, given that the Libyan government has consistently claimed that he has not been mistreated (contrary to Saif’s own statements).  Perhaps a “no camera” rule was part of the undefined “protocols” and “conventions” and “procedures” that Bob Carr has been citing as a reason for the ICC to apologize.  But if so, no apology is necessary.  Libya is not cooperating with the ICC if it won’t let the OPCD document Saif’s condition.