Incident Undermines Lawyers' Independence
July 3, 2012

The release of the ICC staff who were detained while on an authorized visit to Saif al-Islam Gaddafi was long overdue. Libya had no right at all to hold ICC staff, yet did so for nearly one month.

Richard Dicker, international justice program director

(Tripoli) – The release by Libyan authorities of four International Criminal Court (ICC) staff members on July 2, 2012, was a positive move, but their detention appears to have been unlawful from the start, Human Rights Watch said today. The court officials, who had been held in the town of Zintan since June 7, flew out of Libya on a plane provided by the Italian government.

The arbitrary nature of their nearly four-week detention also highlights fundamental problems concerning detention and criminal justice in Libya that the authorities have failed to address. A Libyan official has suggested that authorities refrained from bringing one of the detainees before a judge because a judge would have ordered her release.

“The release of the ICC staff who were detained while on an authorized visit to Saif al-Islam Gaddafi was long overdue,” said Richard Dicker, international justice program director at Human Rights Watch. “Libya had no right at all to hold ICC staff, yet did so for nearly one month.”

UN Security Council Resolution 1970, which referred Libya to the ICC, requires the Libyan authorities to cooperate fully with the court—a binding requirement under Chapter VII of the UN Charter. Libya, though not a party to the treaty that established the court, is obligated to cooperate because of the Security Council resolution. This cooperation includes respecting the immunity of court officials, as stipulated in Article 48 of the court's treaty.

In a letter sent to the Security Council on June 20, the Libyan National Transitional Council (NTC) reiterated its commitment to cooperate with the ICC. The NTC also pledged its cooperation in a November 2011 letter to the ICC judges.

The four ICC staff members—Melinda Taylor, Helene Assaf, Alexander Khodakov, and Esteban Peralta Losilla—traveled to Libya to meet with Saif al-Islam Gaddafi in a visit authorized by the ICC judges. The ICC had issued an arrest warrant for Gaddafi, the son of the former Libyan leader Muammar Gaddafi, in June 2011. Anti-Gaddafi forces apprehended him on November 19, 2011 in southern Libya and are holding him in the town of Zintan. Libya recently challenged the admissibility of the case against Gaddafi at the ICC.

On April 27 the court asked Libya to allow Gaddafi's appointed ICC defense lawyers to visit with him. This visit was to be conducted on the basis of full respect for the confidentiality of communication between Gaddafi and the lawyers. The delegation was also sent to discuss with Gaddafi options for his legal representation at the court. Libya agreed to the visit.

Libyan officials said that Taylor was taken into custody after she attempted, during a meeting with Gaddafi, to pass suspicious documents to him that the Libyan officials described as a threat to national security. Initial media reports said Assaf was also detained as an "accomplice" while Khodakov and Losilla stayed behind in a show of solidarity. More recent news suggested that only Taylor had been officially held, while the other three staff members may have been free to go.

Although the court officials were seized and subsequently held by the Zintan militia detaining Gaddafi, the Libyan government supported the move and said it would ask the ICC to waive Taylor's immunity so it could initiate investigations against her. The Libyan general prosecutor imposed a 45-day detention order onTaylor and Assaf, and a government spokesman later announced that an interrogation of the ICC staff had begun. It appears that at no time did Libyan authorities bring any of the four before a judge, although international law requires authorities to bring anyone placed in detention before a judge “promptly.”

In an interview with Australian ABC radio, Libya's delegate to the ICC said: “I mean that [Taylor] has her privileges and immunity, which cannot be denied from the prosecutor general. For this reason the prosecutor general, Libyan prosecutor general is still insisting not to bring her before the judge. We know from the beginning, if she was brought to a judge, Libyan judge, he would release her because she has also her immunity and privileges.”

"If the Libyan government had any concerns regarding the conduct of the ICC staff, it should have submitted a complaint to the court," Dicker said. "The ICC has a framework in place for investigating allegations of misconduct by counsel."

The head of the Zintan militia, Alajmi Ali Ahmed al-Atiri, said the ICC team had asked to meet alone with Gaddafi but the request had been denied. Al-Atiri said that a man assigned by the militia to stay in the room during the visit with Gaddafi witnessed Taylor's attempt to pass suspicious documents to Gaddafi.

Based on an April decision by the ICC judges, Libya was under an obligation to ensure that the Zintan militia respects the confidentiality of communication between Gaddafi and his lawyers, Human Rights Watch said. The requirement under Security Council Resolution 1970 for Libya to cooperate with the ICC includes a requirement to abide by the court's decisions and requests. Gaddafi should have been permitted to meet with his lawyer in full confidentiality, Human Rights Watch said.

It has long been recognized that effective exercise of the right to counsel requires the ability to communicate in private with one's lawyers. People in custody cannot be expected to communicate freely with their lawyers about the facts and circumstances surrounding their cases if agents of the authorities who put them in custody are listening in, or are reading communications between lawyers and their clients, Human Rights Watch said.

The UN Basic Principles on the Role of Lawyers state that anyone detained has the right to be visited by and communicate with a lawyer “without delay, interception or censorship and in full confidentiality.” The Basic Principles also state that, “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”

The day of the ICC staff's release, news reports quoted Libyan officials saying that Taylor may not be permitted back in Libya. Other media accounts said the court staff had been summoned to a Libyan court on July 23 "to complete the judicial process which was set in motion by the prosecutor general's investigations." These statements, coupled with the ICC staff's long detention, cast doubt on Gaddafi's ability to mount a full and effective defense, Human Rights Watch said.

Human Rights Watch is also concerned that the detention of the ICC staff may intimidate lawyers in Libya from representing people associated with the former government. The threat of detention or prosecution may deter lawyers who might otherwise be willing to take on politically sensitive cases, Human Rights Watch said.

Dozens of senior Gaddafi-era officials and their relatives are in custody, held either by the NTC authorities or by militias around the country, which have no legal authority to hold detainees. The majority of these detainees have not had access to a lawyer or been brought before a judge.Human Rights Watch has long called for the militias in Libya to hand all their detainees over to the competent government authorities. Under a new law passed by the NTC, all militias are required to transfer the detainees to the state by July 12. What happens if the militias fail to meet this deadline remains unclear.

Some prominent detainees facing trial include two of Libya's former prime ministers: Abuzaid Dorda and Al-Baghdadi al-Mahmoudi. Human Rights Watch has requested access to these and other detainees, including Saif al-Islam Gaddafi and the four ICC staff during their detention. Human Rights Watch was able to visit with Gaddafi in December 2011, though permission for a follow-up visit has not been granted.

“Libya should ensure that all detainees are allowed to exercise their full due process rights, including by being brought promptly before a judge as a matter of right, not as a matter of the prosecutor general's discretion,” Dicker said.