A couple of weeks ago, I noted that the Pre-Trial Chamber had ordered Libya to return the documents it wrongfully seized from Melinda Taylor during her privileged meeting with Saif Gaddafi. I also predicted that Libya would try to avoid complying with the order by filing various motions challenging the Pre-Trial Chamber’s decision.
Guess what? Libya has filed two motions in response, one asking for leave to appeal and the other asking the Pre-Trial Chamber to reconsider its decision. The arguments are the same in both motions, and the reconsideration motion doesn’t even cite any legal basis — in the Rome Statute, in the Rules of Procedure and Evidence, or in ICC jurisprudence — for being able to request the Pre-Trial Chamber to reconsider its decision. The leave for appeal motion at least points to Art. 82(1)(d) of the Rome Statute — but as the OPCD points out in its response, that provision permits only the Prosecution and Defence (“Either Party”) to seek interlocutory review of a Pre-Trial Chamber decision.
Moreover, even if the Pre-Trial Chamber erroneously allows Libya to invoke Art. 82(1)(d), that provision only permits interlocutory review of “[a] decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.” Whether the documents were wrongly seized has nothing to do with the fairness or expeditiousness of Libya’s admissibility challenge; they are relevant only to Libya’s prosecution of Saif in Zintan for allegedly violating national security and trying to escape custody, charges that — as Libya itself has admitted in the past — do not involve the “same conduct” that is at issue in the ICC proceedings. The OPCD makes the point well in its response:
68. When stripped of its indignation and rhetoric, it is quite clear that the current Request actually bears no relation to the Impugned Decision, but is simply a last ditch stalling tactic by the Govemment in order to obtain more time for its admissibility challenge. However, in light of the fact that the Impugned Decision only concems the discrete question as to the Government’s obligation to retum these documents and destroy any copies, even if the Appeals Chamber were to grant suspensive effect of the Impugned Decision, this would have absolutely no impact on the pending admissibility proceedings. Appellate review would therefore fail to advance admissibility proceedings, which are already at a very advanced stage.
Once again, let me express my hope that the Pre-Trial Chamber will resolve Libya’s admissibility challenge sooner rather than later. Each time it permits Libya to engage in these kind of stall tactics, the ICC loses a bit more credibility.