The International Bar Association’s Human Rights Institute (IBAHRI) calls for the immediate release of four staff members of the International Criminal Court (ICC) who have been arbitrarily detained in Libya since 7 June, after meeting with Mr Saif al-Islam Gaddafi who is suspected by the ICC of crimes against humanity. Reportedly the four staff members were initially held at an unknown location then later moved to jail without having access to counsel or external contacts.
Phillip Tahmindjis, IBAHRI Co-Director, said: ‘The International Bar Association’s Human Rights Institute calls on the Libyan authorities to release the detained ICC staff members without delay as they were travelling in an official capacity and should therefore enjoy immunity under the provisions of the Rome Statute.’
The ICC delegation travelled to Libya on 6 June on a visit arranged by the Registry as per the Court order of 27 April 2012. It included counsel of the Office of Public Counsel for the Defence (OPCD), appointed earlier in April by the ICC Pre-Trial Chamber I to represent Mr Gaddafi in the case brought against him in The Hague, as well as Registry staff mandated to inform Mr Gaddafi on the possibility and modalities for the appointment of counsel of his own choosing. The visit was authorised and facilitated by the Libyan authorities who agreed to facilitate the mission as per their obligation to cooperate with the Court pursuant to the unanimous UN Security Council Resolution 1970, which referred the situation of Libya to the ICC.
Mark Ellis, IBA Executive Director, said: ‘The detention of the four staff members of the International Criminal Court is unacceptable. The right for the accused to appoint counsel of his own choosing together with privileged visits between counsel and client are key fair trial guarantees, which cannot be discarded. Defence rights are essential for any meaningful judicial proceedings at the national and international levels and should be adhered to in the proceedings of Saif Al-Islam Gaddafi’s trial.’
According to the Rome Statute, the founding treaty of the ICC, an accused is entitled, as a minimum guarantee, to communicate freely with counsel of his or her choosing in confidence, and such communications are not subject to disclosure. The UN Basic Principles on the Role of Lawyers specifies that detained persons shall be provided with adequate time and facilities to consult with a lawyer without delay, interference and in full confidentiality. Lawyer to client consultations may be within the sight, but not within the hearing, of law enforcement officials.
The detained ICC staff members are Ms Helene Assaf, an ICC translator and interpreter; Mr Alexander Khodakov, a Russian career diplomat who is the External Relations and Cooperation Senior Adviser at the Registry of the ICC; Mr Esteban Peralta Losilla, Chief of the Counsel Support Section at the ICC; and Ms Melinda Taylor, counsel from the OPCD.
Background on the Libya situation
In early 2011, following anti-regime protests in Libya and reports of violent suppression by the Libyan government, the UN Security Council unanimously approved resolution 1970, referring the situation in Libya to the International Criminal Court (ICC). The Security Council invoked its power to address threats to peace found in Chapter VII of the UN Charter, deciding that Libya ‘shall cooperate fully’ with the ICC investigation. On 3 March 2011 the ICC Prosecutor opened a formal investigation into the situation of Libya and on 27 June 2011, ICC Pre Trial Chamber I issued arrest warrants for Libyan leader Muammar al-Gaddafi, his son Saif al-Islam Gaddafi and former head of intelligence Abdullaj al-Sanussi for crimes against humanity allegedly committed in Libya since 15 February 2011.
Background to the ICC Registry mission to Libya
The ICC Office of Public Council for the Defence (OPCD) was formally appointed by the ICC Pre Trial Chamber as interim defence counsel for Saif al-Islam Gaddafi on 17 April 2012, following a signed declaration from the suspect. On 27 April 2012 the Pre Trial Chamber requested that Libyan authorities grant OPCD privileged access to Saif al-Islam Gaddafi in order to prepare his defence. The Pre Trial Chamber highlighted OPCD’s intent to discuss with Mr Gaddafi his option of appointing counsel of his choosing. The Judges further noted that the Libyan Government had informed the Court they would facilitate access to Mr Gaddafi by his lawyers.
Immunity of ICC Staff
ICC staff members on official visits authorised and facilitated by local authorities enjoy immunity by virtue of United Nations Security Council Resolution 1970, which by virtue of its referral of the Libyan situation to the ICC, brings Libya into the Rome Statute system. Resolution 1970 stresses that ‘the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court’.
The Rome Statute in dealing with privileges and immunities provides explicitly that staff of the ICC Registry ‘shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in accordance with the agreement on the privileges and immunities of the Court.’ Under Article 18 of the said agreement ICC staff members, as counsel and persons assisting defence counsel, share:
(a) Immunity from personal arrest or detention and from seizure of his or her personal baggage;
(b) Immunity from legal process of every kind in respect of words spoken or written and all acts performed by him or her in official capacity, which immunity shall continue to be accorded even after he or she has ceased to exercise his or her functions;
(c) Inviolability of papers and documents in whatever form and materials relating to the exercise of his or her functions;
(d) For the purposes of communications in pursuance of his or her functions as counsel, the right to receive and send papers and documents in whatever form;
(e) Exemption from immigration restrictions or alien registration;
(f) Exemption from inspection of personal baggage, unless there are serious grounds for believing that the baggage contains articles the import or export of which is prohibited by law or controlled by the quarantine regulations of the State Party concerned; an inspection in such a case shall be conducted in the presence of the counsel concerned;
(g) The same privileges in respect of currency and exchange facilities as are accorded to representatives of foreign Governments on temporary official missions;
(h) The same repatriation facilities in time of international crisis as are accorded to diplomatic agents under the Vienna Convention.
The right to have a counsel of his own choosing and to communicate with counsel in full confidentiality
According to the Rome Statute of the ICC, an accused is entitled, as a minimum guarantee, to communicate freely with counsel of his or her choosing in confidence. This is also valid under the International Covenant on Civil and Political Rights, which confirms the right to communicate with counsel of one’s own choosing as well as have adequate time and facilities for the preparation of one’s defence. The UN Basic Principles on the Role of Lawyers specifies that detained persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within the sight, but not within the hearing, of law enforcement officials. Accordingly under the Rome Statute regime communications between an accused and his or her legal counsel shall be regarded as privileged.
Mandate of the ICC OPCD
The Office of Public Counsel for the Defence is mandated to represent the general interests of the defence and to protect their rights during the initial stages of investigations at the ICC. OPCD has also been appointed by various Pre Trial Chambers to represent suspects and the Court has requested OPCD to file specific submissions on fair trial issues as well as on matters which may impact the rights of defence.
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The IBA’s administrative office is in London; regional offices are located in São Paulo, Brazil; Seoul, South Korea; and Dubai, United Arab Emirates.
Through a grant-funded project, the IBA also maintains an office in The Hague which manages the IBA’s International Criminal Court (ICC) Programme. This office follows the work and proceedings of the ICC, focusing primarily on the fair trial rights of the accused and the manner in which the Rome Statute and other legal documents of the Court are implemented and encourages the legal community to engage with the work of the Court.