In a recent article published on the Opinio Juris blog, Kevin Jon Heller discussed the latest development in the Libyan government’s ongoing admissibility challenge in the case of Saif Al-Islam Gaddafi. Heller critically discusses Libya’s recent request to the ICC Pre-Trial Chamber to disclose evidence supporting its admissibility challenge on an ex parte basis.
The Libyan government argued that if the Pre-Trial Chamber provides sensitive information to Gaddafi’s lawyers, the Office of the Public Counsel for the Defence (OPCD), the OPCD might leak it to “Gaddafi-regime loyalists” who would “undermine national criminal proceedings”.
Libya also argued that its ex parte disclosure is based on Article 59 of the Libyan Code of Criminal Procedure which provides an obligation of non-dislosure of investigative material prior to the accusatory phase of proceedings.
For Kevin Jon Heller, there is a formal problem with Libya’s argument, as read literally, Article 59 applies to disclosures to the Pre-Trial Chamber no less than to the OPCD. However, says Heller, Libya “never explains why it is free to breach Article 59 by disclosing information to the Pre-Trial Chamber but not free to breach it by disclosing information to the OPCD.”
For him, this argumentation simply reflects Libya’s ongoing contempt for the lawyers who work in the OPCD.
On 30 January, the Pre-Trial Chamber rejected Libya’s request to submit evidence ex parte, stating that it failed to assert to what extent the OPCD could be a source of risks that the domestic investigation be prejudiced and/or Libya’s national security jeopardized, if the OPCD was provided with the concerned material.