Tinker, Tailor, Lawyer: ICC Staff Arrested in Libya for “Spying”

Saif Gaddafi Zintan

Saif al-Islam Gaddafi, not long after his arrest by Zintani rebels in November, 2011

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.

Ajmi al-Atiri Zintan

Zintani commander, Ajmi al-Atiri, speaks at press conference regarding the detention of four ICC staff members (Photo: AFP)

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.

About Mark Kersten

Mark is a PhD student in International Relations at the London School of Economics. His work focuses on the nexus of international criminal justice and conflict resolution. Specifically, he is examining the effects of the ICC on peace processes and negotiations in northern Uganda and Libya.
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4 Responses to Tinker, Tailor, Lawyer: ICC Staff Arrested in Libya for “Spying”

  1. Maya says:

    This is an interesting development. I am curious how this will unfold, especially since I know little about the law of UN (ICC) staff immunity ‘in action.’ I don’t believe there has been a case like this in the other ICC situation countries?

    I would also be curious to find out more about the more damning of the two charges, i.e. that the ICC had tried to ‘smuggle in’ a document stating that Saif would not get a fair trial in Libya. I’m not sure about the recording equipment (seems more like a national security issue), but the other allegation is more directly related to the Court’s work and fair trial principles. My intuition is that defense counsel has the right to draft such statements in the defendant’s name, and then just have him or her sign it. After all, the defense has the defendant’s best interests at heart, and there is no fiduciary duty to the Court or the national authorities (unlike the ICC Prosecutor, who has this strange double disclosure duty under the Rome Statute).

    But maybe there are other people who are more knowledgeable about this aspect of (international) criminal procedure? Assuming defense counsel did what the Zintan militia claims, can this be perceived as a violation of the Rome Statute, Libyan criminal procedure or, more generally, ethics’ standards of lawyers?

  2. Sorry: “Tending Topic” With HUNDREDS OF FAKE ACCOUNTS. 90% of the accounts spreading the Saif Issue ere FAKE! It’s so easy to see it.
    That is also other question: why so many FAKE accounts spreading this event? As we have seen before… Why so many FAKE accounts spreading this kind of PROPAGANDA Pro-NTC?

  3. Dean. says:

    Considering it’s not so long ago that the Zintan brigade were considered the ‘fairest’ of all Libyan militia, how times have changed since Saif himself ‘thanked his lucky stars’ that it was they that had captured him and not the less than merciful that claimed his brother and father. They now appear to be a complete law unto themselves, the recent storming of hotel Rixos and the arresting at will, is certainly no isolated incident..but to hear Ajmi al-Atiri, commander of the Zintan brigade, ‘lording it over’ the ICC lawyer arrest press conference, gave more insight than they surely ever planned. With all that paranoid power trip nonsense aside, this only served to reassure us all that something clearly isn’t quite right with exactly who is pulling the strings IF Saif is ever to receive both ‘good’ legal representation ( and whilst I’m at it, why do the NTC appear so uneasy over international lawyers ever representing him…even ‘leaking’ Saif’s so called desire to defend himself ? ) and the fair trial Zintan have insisted all along…or is it a case of Zintan believing he’d only ever get a fair trial at their expense rather than being transported to the ‘safe hands’ of Tripoli…who knows, but their constant mutterings of his safety is just beginning to wear a bit thin when equal talk of ‘possible escape’ and letters written to Saif by ‘Gaddafi cohorts’ are alluded to in the same conference. To suggest that one of the very senior men that arrested Saif was ‘playing a trick’ in the interview room, on the ICC reps, and Saif himself, by pretending to be a deaf / old and illeterate guard and then catching them out because he understood their English conversation is just laughable. Primarily because the man involved stands out like a sore thumb not for the reason that he speaks half a dozen languages and is personally very well known to Saif, but that Saif is supposed to have mocked him as being a ‘deaf idiot’…it’s comical.
    I believe commander al-Atiri’s insistence that he believes his actions were justifiable as none of the ICC representatives were actually appointed by Saif to represent him. The point being that only counsel personally acting for Saif have any right to pass on ‘important information regarding his case’…and most certainly not be seen to be passing \ collecting information that they consider ‘anti NTC government.’ They are effectively fighting two fronts, in the mistaken belief that they are fighting off both Tripoli’s challenge to hand Saif over for trial and international efforts to try him outside of Libya

  4. All this is a little more. … Nobody in media reacted to the aljazera Program where a NTC Spokerman ASSUMED that Saif had only 2 Possibilities: “Or escape or Die in his way to Tripoli ” http://www.scoop.it/t/saif-al-islam/p/1819659863/schoking-libya-on-the-line-part-1-part-2-saif-icc-ntc-nato-justice-freesaif-bravesaif-ocampo-ocampocriminal?hash=eafe6773-7673-43b7-905d-6e7d7f6ca057 — The fact was: nobody reacted to this. Seems Natural that Saif assassination would be a inevitability! ( Bcs escape just only if a allien invasion PUT some DECENCY IN this ROTTEN Humanity ).

    Rumors … The ICC staff team was in Zintan with Saif to know the Location for the Place be bombed.

    In this moment, if shame and Dignity would be Human Goals: Hillary Clinton, Obama, Cameron, Sarkozy and the Idiot BHL should be the targets of ICC – But ICC is nothing more than a Lawless Court.

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