I really hope John le Carré has read news of the arrest of four ICC staff members in Zintan while attempting to visit Saif al-Islam Gaddafi. A delegation, which includes an Australian lawyer, Melinda Taylor (media reports have not named any other members of the delegation), were detained while attempting to provide Saif with information and documents pertaining to his defense against charges of war crimes for his role in the Libya’s revolution. The team had been invited by the Libyan General Prosecutor’s office to visit Saif. When the delegation went to visit Saif, however, everything went pear-shaped.
A commander from the Zintan brigade, Ajmi al-Atiri, described what appeared to be an intelligence operation against the ICC staff:
“We tricked the ICC team by presenting them with one of our men who we told them was deaf and old and illiterate but he is actually a wise man who can speak four languages including English.
That is when we found out the lawyer had a letter written in English that they wanted him to sign admitting that there is no law in Libya and asking to be transferred to the ICC. When we searched the woman we found she had a letter from [close confidante] Mohammed Ismail for Saif and another one written back to Ismail.
They also took a number of empty papers with his signature on it, and he gave them a number of letters written by Saif for Mohammed Ismail. Before the delegation entered the meeting with Saif, we inspected them and discovered spying and recording materials on one (member) of the delegation.
The case is a homeland security issue…The lawyer should have presented the material to the prosecutor-general’s office before taking it into the suspect.
Saif would only be allowed private meetings with a lawyer if he had appointed one for himself, but in this case the ICC appointed this lawyer for him and so has no right to sit with Saif privately.”
The validity – or lack thereof – of these rather serious allegations remain unclear. For one, I’m very curious what “spying and recording materials” were confiscated. The use of cameras and tape recorders, for example, should not be an issue when meeting with defendants. It has also been suggested, but not confirmed, that Taylor smuggled the allegedly “dangerous” documents in her bra. Media outlets have not picked up on it, but on Twitter #ICCBra has been a trending topic.
Regardless, what is crystal clear is that there remains zero to no trust of anyone who attempts to provide any kind of legal assistance to Saif. Of course, this is nothing new (see also here). Anyone seeking to provide a modicum of fairness to the proceedings against Saif by providing him with legal services, it would seem, will face heavy resistance – or worse.
The ICC is clearly concerned about the situation. Relations between the Court and the Libyan government may quickly deteriorate. Sang-Hyun Song, the President of the ICC, declared that
“These four international civil servants have immunity when on an official ICC mission. I call on the Libyan authorities to immediately take all necessary measures to ensure their safety and security and to liberate them.”
No one will be particularly comforted by assurances that the ICC staff are ”under house arrest in Zintan, not in prison.” According to Rana Jawad, a BBC correspondent in Tripoli, ICC officials will be arriving in Tripoli today in order to persuade Libyan authorities to release the detained staff members. Unfortunately, it is not clear whether the Court can do much other than demand the release of its employees and encourage the national governments of the detained staff members to provide consular services. Australia, presumably on behalf of Taylor, is already doing so.
The situation really brings to the fore the reality that Libyan authorities do not have control over powerful militias nor the fate of Saif. Gaddafi’s son remains in the custody of the Zintani rebels who captured him last November and who have never suggested that they are willing to cooperate with the National Transitional Council in trying Saif. For months, members of the NTC have repeated their line that Saif will soon be transferred to their custody. They even built him an apparently state-of-the-art prison in Tripoli and showed off re-furbished courtrooms. But the faction of Zintani rebels who have held Saif since his capture have remained uninterested. Indeed, they have suggested that Saif should be tried in Zintan, not Tripoli. Some believe that only once the Zintan rebels have squeezed out all of the political utility of holding Saif will they release him to the national authorities. That is unlikely to happen until after elections later this summer.
Of course, another pressing question is whether this will affect Libya’s admissibility challenge before the ICC. My view is that, like the government’s declaration of a blanket amnesty passed last month for any “acts made necessary by the 17 February revolution”, it absolutely must. Not only does this underline the reality that national authorities have little control over the Zintani rebels in possession of Saif, but it should infuriate the Court’s members – including judges. To affirm Libya’s rather shaky admissibility challenge would be to affirm the conduct of the Zintani rebels towards both Saif al-Islam as well as the ICC’s staff.
We can debate whether or not issues regarding fair trial procedures or treatment of ICC staff have any legal standing in how the ICC’s Pre-Trial Chamber rules on Libya’s admissibility challenge. But, as I’ve said before, judges are not politically blind. The question is whether the arrest of ICC staff trying to provide legal services to an individual charged by the ICC is the last nail in the coffin.