OPCD Report On Saif Al Islam Gaddafi’s Situation In Libya

Kevin Jon Heller

I discussed the Registry’s report (see below) of its visit with Saif Gaddafi in Libya, which was posted on the ICC website and then removed without explanation a few hours later.  It has come to my attention that the Office of Public Counsel for the Defence (OPCD) also prepared a report of that visit — and that the OPCD’s report also appeared and then disappeared from the ICC website.  I have uploaded a copy of the report for interested readers.  It’s much more heavily redacted than the Registry’s, yet offers a number of useful tidbits of information about Saif’s attitude toward the ICC:

33. [Redacted]. The details of ICC proceedings therefore appeared irrelevant to him, as his primary concern is his security in Libya. He would, however, prefer to be under the custody of the ICC in The Hague, rather than being detained in the current conditions, or transferred to Tripoli.

34. It is not correct that he informed the Libyan authorities that he did not wish to meet with any officials from the ICC.

35. Mr. Gaddafi met with the Attorney General and asked for a lawyer in connection with the Libyan proceedings. He was informed that it would be impossible for a lawyer to visit him in Zintan. Mr. Gaddafi does not think that he has signed anything waiving the right to have a lawyer, but in any case, he had been informed in definite terms at the beginning by the Attorney General that it would be impossible to implement in practice.

36. The persons guarding him have mobile phones but there did not appear to be any fixed telephone lines, from which he could call anyone to choose a lawyer. Although the visit did not take place in the particular room in which he is being detained, it is clear that he would not be able to keep privileged documents in a secure location.

37. When asked whether he would want someone, such as his family, to arrange for a Libyan lawyer for the domestic proceedings, he responded that he would.

38. Mr. Gaddafi has been interviewed by the Libyan authorities in connection with allegations concerning the fact that he allegedly did not have a licence for two camels, and issues concerning the cleaning of his fish farms.

39. Dr. Gehani informed Mr. Gaddafi during his meeting with him that Dr. Gehani is the ‘architect’ of the allegations against him. Dr. Gehani also notified him that their investigation into murder, rape et cetera had been terminated because they had no evidence against him.

40. In terms of his legal representation before the ICC, Mr. Gaddafi does want legal representation, but he was not in a position to select counsel himself.  He does not know any lawyers, his family did not have any retained lawyers to his knowledge, and he does not have the ability to call lawyers to interview them or ascertain their availability.

41. Mr. Gaddafi requested the OPCD to either select counsel or help him in this matter. [Redacted]. Mr. Gaddafi is also willing for the OPCD to continue to represent him before the ICC, until a counsel is appointed.

Saif’s statements about the status of the investigation into his actions obviously need to be taken with a grain of salt — as do Gehani’s, if Saif is reporting them accurately — but they are still cause for concern.  No matter what your view of complementarity, it would obviously be unacceptable for Libya to try him only for minor crimes.

I find Saif’s statements about the ICC particularly interesting, as well.  It’s not surprising that he would prefer to be turned over to the Court for prosecution — he’d get better detention conditions, much better legal representation, and a more fair trial.  And, of course, he would not be eligible for the death penalty.  Saif’s statements also contradict Moreno-Ocampo’s criticism of Xavier-Jean Keita, the head of the OPCD, which I discussed in an earlier post.  It seems quite clear that Saif does, in fact, want the OPCD to represent his interests at the ICC while the Court and the Libyan government debate his fate.

Now if someone could just explain to me why these two reports on Saif’s situation, both of which are marked public, disappeared from the ICC website…

Registry Report on Gaddafi’s Situation in Libya

Kevin Jon Heller

I have uploaded a copy of the report, which was available for a couple of hours on the ICC website but then removed without explanation.  (It’s marked public.)  Representatives of the Registry spent five days in Libya in late February and early March, so things could have changed significantly since that time.  Nevertheless, the report paints an interesting — and depressing — picture of the conditions of Gaddafi’s captivity and his feelings toward the ICC.  Here are some key paragraphs (emphasis mine):

15. The delegation left at 10 am on 3 March 2012 and arrived in a house located in Zintan around noon. The delegation was asked to wait in the house for a while, ft was then asked to walk to a house located opposite where Saif Al- Islam Gaddafi was staying. All shutters were closed. The door was heavy and in metal. Several young guards dressed up with military clothes and armed with Kalashnikovs were present in the house. The members of the Registry and the OPCD waited for approximately 40 minutes as Dr. El Gehani was talking to Mr. Gaddafi. Upon his return, the Coordinator indicated that Mr, Gaddafi wanted to talk to him about the Libyan procedures against him and about the possibility to have a lawyer. He mentioned that Mr. Gaddafi had requested to have an interview with him as a condition to speak to the Court. Dr. El Gehani added that he advised him to appoint a lawyer…

17. Saif Al-Islam Gaddafi appeared smiling and willing to talk to the Court. It was difficult to assess whether he had lost a lot of weight as he was wearing large clothes. He appeared slimmer than on the picture annexed to his arrest warrant. He was missing part of his thumb and index at his right hand. He had no visible bruise on his face….

19. The Registry representative asked to continue the meeting alone as another person from the Libyan authorities was present in the room. This person was the one who drove the delegation to Zintan. The person said that the law prevented the Registry to meet the suspect alone and that he had to stay. The member of the OPCD left the room. The member of the Registry asked the person present to state his identity for the record. He said that he was Mr. MILAD from the Office of the Prosecutor and that Mr. Gaddafi could reply freely to all questions that would be put to him.

23. The Representative explained that the Registry was a neutral organ to be differentiated from the Office of the Prosecutor that had the mandate to investigate and prosecute suspects. The representative indicated that the Registrar had specific responsibilities towards the defense. Among these responsibilities, the Registrar has to ensure that all suspects can benefit from the assistance of a lawyer. She also explained that these lawyers were to be qualified and have at least 10 years of relevant experience. She provided a list of lawyers available for the suspect’ scrutiny and a form to designate a lawyer. Saif Al-Islam Gaddafi took (he documents but questioned the possibility for him to give back the document to the Registry.  The Registry said that he could give the document to the authorities for transmission to the Registry.

24. Mr. Gaddafi was very interested in knowing whether the lawyer would help him in Libya. The Registry indicated that the lawyer could help him in Libya but only in relation with the ICC proceedings. The Registry explained that the Libyan authorities had received a request to arrest him and to surrender him to the Court.

25. Mr. Gaddafi explained that he was being interviewed in Libya regarding his camels and fish farms. He asked whether the procedures would take long should he come to The Hague. He was told that the cases before the ICC were complex and that as a result could last for years. The representative added that he could be released by the Pre-Trial Chamber at an early stage if the Prosecutor did not have enough evidence against him. She also indicated that he could ask for interim release throughout the proceedings. Finally, she reiterated that he will be presumed innocent until the Chamber renders its verdict.

27. He declared ‘I hope I can be tried here in my country whether they will execute me or not’. He inquired about the detention centre in The Hague. The Registry representative gave a brief description of the detention centre and replied to the questions put to her regarding the possibility to have fresh air, to see other people and regarding the food. Mr Gaddafi indicated that he would like to see the sun. When the Registry representative indicated that inmates could have access to an open air yard, he said that they were lucky to be able to see birds and trees.

28. At this point, the representative of the Libyan Prosecution left the room for 5 minutes. The Registry representative quickly asked the suspect how he was and whether he was mistreated. His attitude changed from relaxed to intense and without saying a word he waived the hand where two fingers were missing and pointed to a missing tooth in the upper front of his dentition. He then said that he was kept in total isolation, that he had not seen the sunlight in 20 days and he had nobody to speak to.

29. As the Libyan Prosecutor came back to the room, the Registry representative indicated she was going to read him his rights before the ICC. Mr. Gaddafi was very sceptical while he was read his rights, He asked whether these rights should apply to him immediately. He was told that these were basic rights respecting ICC standards. When asked about whether these rights were respected in Libya, he said ‘what do you think?’

33. Asked about whether he had an opportunity to meet a lawyer, he said no. Asked about whether he had seen a Judge he said only the Attorney General or the Prosecutor regarding his camels and fishing farms. When asked who was in charge of his custody, he replied Dr. El Gehani. When asked what happened to his fingers, he said that this was the result of the NATO bombing that also had killed 26 persons travelling with him. Asked whether the guards were aggressive with him, he said ‘some are nice others were not nice all the time’. Asked whether he could see his family, he said only in his dreams, He said that he received the visit of the Red Cross in November 2011 and of Human Rights Watch. When asked where he was sleeping, he pointed to a room In the back of the house. When asked whether there was a bed, he said that there are several definitions for a bed. When asked to describe the room, he said that it was not important.

There is much  that is disturbing in the report, not least how quickly Gaddafi’s attitude toward his captivity and future prospects changed once the Libyan prosecutor left the room.  It seems clear that he is not being treated well by his captors and that the Libyan government has been unwilling or unable to provide him with even minimal due process.  Either way, his treatment does not bode well for him receiving a fair trial in Libya.

http://opiniojuris.org/wp-content/uploads/RegistryReport.pdf
http://opiniojuris.org/wp-content/uploads/OPCD-Report.pdf

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