Melinda Taylor and the ‘ICC4′ Released: Five Pressing Questions

ICC President Song, Zintani Brigade commander Ajmi Ateri and Libya’s Deputy Foreign Minister Mohammed Abdel Aziz shortly before the release of the ICC’s staff in Zintan (Photo: Anis Mili / Reuters)

It is a huge relief to be able to write that Melinda Taylor, Helene Assaf, Alexander Khodakov, and Esteban Peralta Losilla were released from Libya on Monday and have returned to be reunited with their families. The four had spent nearly a month in Zintan after being detained following a meeting with Saif al-Islam Gaddafi. Their detention and its consequences have been a focal point of JiC over the past few weeks (see here, here, here, here, here and here – phew!)

While it is likely to be some time before any of the ICC staff members openly discuss their experiences – and rightfully so – there are a number of pressing questions that need to be answered in the coming weeks. Here are five.

1. What led the Zintani and Libyan authorities to agree to Taylor et al’s release?

There were many rounds of negotiations between Libya and the ICC. Assuredly, there were likely as many rounds between Libyan authorities and Zintani militia leaders. But it remains unclear what finally tipped negotiations in favour of releasing the ICC staff?

I, for one, am unconvinced that it was the initial statement of regret or apology from the ICC. Libyan authorities were quick to say that the apology would not result in Taylor’s release, that the statement wasn’t enough.

But the reasons given by Libya for Taylor’s release are contradictory. Libya’s representative to the ICC, Ahmed al-Jehani, maintained that it was because Taylor had diplomatic immunity (see also here). The country’s Prosecutor General, however, declared that Taylor would face a court hearing in Libya in late July but that an in absentia hearing could also take place. These two statements can’t be reconciled unless each is playing to a different constituency – which they likely are. This brings us to question two.

2. Who got and gave what?

A rather large group of actors have vested interests in this saga. Let’s consider the Zintani militia, Libya’s interim government, the ICC and the detained ICC staff themselves. Each played a part in the eventual release of Taylor et al. But, by and large, it remains unclear what was required of and demanded by each party.

For the Zintanis, it is clear that getting a direct apology from the ICC was part of the deal – and they got it. ICC President Song explicitly used the word “apologize” in an address in Zintan prior to Taylor’s release. But did the Zintani militia get anything else? Remember,  they have leveraged their custody of Saif for political gain before. Moreover, there have recently been indications that Libya’s interim Defense Minister Osama Juwaili, who is from Zintan and whose appointment was linked to Zintan’s custody of Saif, was recently livid about his treatment and role. It would not surprise me if improvements in his position were linked into negotiations between Libyan authorities and the Zintani brigade over the ICC staff.

Melinda Taylor (right) and Helene Assaf in Zintan shortly after being released (Photo: AFP)

It is a distinct possibility that Libyan authorities simply wanted this debacle to end. The country’s first-ever free and democratic elections are due to take place within days and having ICC staff members in detention is a distraction any emerging democracy would want to avoid. Nevertheless, the apology and statement of regret from the ICC was surely spurred by Libyan authorities as well. They have consistently voiced disappointment and sought to counter international perceptions of the country as lawless and unstable. Having the Court reaffirm that Libya is a legitimate and lawful government with legitimate grievances fits into these efforts.

The ICC never seemed to have much leverage in this case. Moreover, the Court was largely left hung out to dry by the international community. Statements by the UN Security Council had the political weight of a feather and it appears the Council actually did nothing else to press Libya. Of course, this is unsurprising. The Security Council has generally been disinterested in the ICC’s mandate in Libya (see here and here). The one area of leverage the Court had was with issuing their statement of regret. Over at Opinio Juris, Kevin Jon Heller has opined about the potential consequences of the Court taking the blame for their staff’s predicament. Indeed, the potential consequences seem grim. But with barely a modicum of international support and having been put on the spot by Australian Foreign Minister Bob Carr, I’m not sure the Court had any choice but to issue an apology. Importantly, however, al-Jehani’s statement that Taylor had diplomatic immunity may have been a small victory for, and perhaps even demanded by, the Court.

A more subtle cost for the Court (and again, one it couldn’t avoid) is its appearance as overtly political throughout this process. The ICC engaged in political bargaining and negotiating, not to mention issuing statements of regret we generally expect of politicians, not judicial institutions. For those who dream of a Court divorced from the machinations international politics and living blissfully in a political vacuum, this must have been rather uncomfortable.

As for Taylor and the other ICC staff, there is no indication they played any role in their release – and that’s a good thing. While there were reports that Taylor was being “interrogated” and that she would be released if she cooperated with Libyan authorities, in their letter to the UN Security Council, Libya noted that she had not been cooperating.

3. Will the ICC investigate and sanction its staff?

Some suggest that after this debacle, the Court may “now try to prolong the internal investigation against [Melinda Taylor] until it can be quietly forgotten.” I doubt that will happen. There is a significant thirst amongst the public to know exactly what occurred in Zintan. Moreover, the ICC and its staff need to know what happened with their colleagues and why, not to mention the reasoning behind the Court’s own actions to get its staff released. As importantly, the Court cannot improve its protocols and guidelines for defense lawyers if it does not take its investigation seriously or pushes this situation under the carpet.

ICC President Sang-Hyun Song (Photo: AP)

4. Who now will represent Saif al-Islam Gaddafi?

It was made clear that Taylor would not be welcomed back into the country. No surprise there. But who, then, will represent Saif al-Islam Gaddafi? His defense at the ICC is complicated by the fact that Principal Defense Counsel Xavier-Jean Keita cannot travel to meet Saif because of fears that Keita’s African heritage may lead him to be presumed a Gaddafi mercenary and consequently attacked. More broadly, who really wants to take the personal risk or a job that may be so inherently neutered that effective defense counsel can’t actually be given?

5. How will this debacle affect ICC-Libya relations?

I think the general consensus has been that this saga will hamper the relationship between the ICC and Libya. But, in my opinion, it has the potential to actually improve relations.

The ICC has said that it is compartmentalizing the detention of Taylor from its considerations of Libya’s admissibility challenge regarding the trial of Saif al-Islam Gaddafi. Of course, few believe that is true. The Court is neither dumb nor blind. But more importantly, they shouldn’t compartmentalize. The experience of the past few weeks should be a learning moment and, as such, could actually have a positive effect on the relationship between the Court and Libya authorities, especially if a lot of the “misunderstandings” between the two were thrashed out. I don’t think this is being overly optimistic, although it certainly is striving for a silver lining which may or may not exist.

Part of the problem, exposed by the detention of the ICC staff, has been the dominant narrative of Libya as a lawless country disinterested in justice versus a desperate or irrelevant Court trying to have any effect it can on justice in Libya. That’s not a particularly healthy framing but it is a foreseeable consequence of less-than-stellar lines of communication between the Court and Libya. In this context, perhaps there remains some way to get out of this mess with a relationship intact and which strives to do what it should have done from the beginning: seek a compromise position that reflects the interests of all involved and allows both the ICC and Libyans a role in post-Gaddafi justice. With a ruling on Libya’s admissibility challenge looming, this raises the question: is it too late to consider an ICC trial in Libya?

About Mark Kersten

Mark researcher, consultant and teacher based in London. His research focuses on the nexus of international criminal justice and conflict resolution. Specifically, his work examines the politics of the International Criminal Court and the effects of its interventions.
This entry was posted in International Criminal Court (ICC), Libya, Libya and the ICC and tagged , , , , , . Bookmark the permalink.

15 Responses to Melinda Taylor and the ‘ICC4′ Released: Five Pressing Questions

  1. kevinjonheller says:

    Mark,

    Great post, but I’d take issue with this statement: ”As importantly, the Court cannot improve its protocols and guidelines for defense lawyers if it does not take its investigation seriously or pushes this situation under the carpet.” I think it is problematic to assume that the Court needs to improve its protocols and guidelines. It may — and as I’ve written, I’m not opposed to the ICC investigating. But I have yet to see any substantial proof that Taylor did anything wrong, and no one (especially not Bob Carr) has identified how exactly the ICC\’s arrangements for Taylor’s visit were deficient. Any deficiency, it seems to me, lies on the Libyan side — with their inability to take seriously the basic requirements of an effective defense or to recognize the OPCD’s immunity from search and detention. Barring additional evidence of Taylor’s “wrongdoing,” then, I think the lesson from this fiasco has to be that Libya has no intention of providing Saif with even the semblance of a fair trial.

  2. Mark Kersten says:

    Kevin,

    Thanks for the comment! Fair point, especially given that we still know absolutely nothing about what actually happened during that meeting with Saif. But I also think it’s worthwhile separating investigating any alleged wrongdoing from re-examining protocols for defense lawyers entering hostile areas. I certainly did not want to suggest that there was wrongdoing and therefore ICC guidelines need to change. However, I generally believe that in the wake of events like this, it’s good practice, at the very least, to explore whether protocols and guidelines can be altered and how, in order minimize the possibility that situations like these don’t reoccur.

  3. Liz says:

    Is it too late to consider an ICC trial in Libya? My answer, way way too late now. The same players in this ICC staff detention have already stated they do NOT want Saif talking in a public trial period, and especially an open public trial where everyone/anyone inside Libya or internationally could hear him.

  4. kevinjonheller says:

    Perhaps the ICC should start negotiating directly with the Republic of Zintan. Perhaps the Zintanis would allows an ICC trial in Zintan in exchange for recognition as the legitimate government of Libya.

    (And yes, I’m kidding. Kind of.)

  5. Liz says:

    Do not believe that would help or happen. And I’m not kidding.

    Adel al-Morsi, who in April became the commander of the Tripoli branch office of Preventative Security established by Salim el-Hasi as domestic intelligence, said this regarding dissidents: “We won’t be safe until they are all eliminated.” http://online.wsj.com/article/SB10001424052702304782404577488493816611850.html

    If this is taken to mean all dissidents, ex-regime, soldiers, are to be killed [eliminated] then no fair trials will ever occur. There are estimated by some to be around 7,000 to 9,000 soldiers and loyalists, regime figures held besides all the Sub-Saharan people. The UN figures are woefully inadequate as does not appear to be any attempt to discover/investigate all the secret prisons such as underground prison in Benghazi that is rumored to exist.

    • Brian O. says:

      “If this is taken to mean all dissidents, ex-regime, soldiers, are to be killed [eliminated] then no fair trials will ever occur.”
      This is a distortion: Morsi made these comments with regard to dissidents who “are plotting an armed insurgency with exiled Gadhafi family members.” There are good grounds for believing that this is not a paranoid presumption; and if so its a reasonable response.

  6. Chamba Chada says:

    Nobody here seems to know how much Gadaffi was loved and how much Saif is still loved. That the living conditions were good for all Libyans and that much is destroyed in the revolution. That Zintan loves saif and that they have not found him guilty of anything but irregular license for fish farms and camels. Saif may well become a political force and never be tried. War criminals like Bush and Obama belong in the ICC, not Saif el Islam.

  7. Liz says:

    Reread several times your questions and they are to the point. However, the question I have is Why is Libya being treated differently than any other country? Ocampo has stated there is nothing wrong with Libya/they are doing just great. Ocampo was up in Misurata so would be presume he knew of Heaven Hotel slaughter, the forced intake of diesel since the author states that is a common known torture, mutilation, torture, and then slaughter of 1000 regime soldiers. Who wouldn’t confess to anything under those conditions? Where was the trial? How was the determination that their lives had no meaning? Something is missing that I just don’t understand.

    There is a tag for Abu Salim but no tag for Funduq Al-Jannah. Why is it permisseble for Libya, Misurata to take such actions and not for say the Kenya 4? Or anyone on trial at the Hague? Could someone explain the whys?

    Please understand not taking sides just perplexed. Perhaps that explanation will then answer most of your questions.

    http://www.dailymail.co.uk/news/article-2170025/Back-bloody-anarchy-Andrew-Malone-revisits-Libya-finds-country-riven-torture-mass-murder-savage-vengeance.html?ito=feeds-newsxml

    • Brian O. says:

      I really don’t know how how to evaluate this story. Its hard to beleive that a journalist for a mainstream paper (even the Daily Mail) would fabricate something like this. But there are many things about it that don’t make sense. The article is short on information that would allow verification – apart from the name of the place where these events are supposed to have taken place.It relies on unnamed sources and is an amalgam of sensationalist accounts of various incidents – some of which I can see no other verification for on the internet; and one of which appears to be grossly distorted. There is no photographic evidence accompanying the article (all the pictures seem to be stock photos) – not even of this spot with its bulldozer tracks
      The events it purports to describe – some 1000 executions in a spot near Misrata’s popular beach, mostly over a short period, and covered up by earth moving equipment – must have been highly visible. Indeed, he states that “Everyone in Misrata knows of the events that unfolded at this desolate spot” and claims to have spoken to officials who have acknowledged them; and reports that “older, wiser leaders in Misrata were horrified” when they learned about them.
      But despite this visibility, widespread awareness, and sharp dissent in the city, over a period of 11 months not a whisper of it reached the international press or the two human rights organisations (Amnesty & HRW) who have been monitoring and reporting events in and around Misrata closely. This doesn’t seem credible, and its interesting that no one else has picked up on it.
      My guess would be either that there is some factual foundation to this story but its been grossly exaggerated; or that someone has sold this reporter a load of rubbish – or possibly both.
      asserthatthat

  8. Jan Triska says:

    I am not sure about many things that are going on in Libya but I am pretty sure about one thing: it is a bloody mess and the security situation isn’t good. I don’t necessarily believe all the grim stories of revenge but I’d say it’s not surprising and some of it is undoubtedly happening. It just seems to me that the ‘civilized’ world with its lofty notions and norms is not yet welcome in a country that is basically run by a bunch of loosely connected militias. Who do you think is going to happen in Syria, after they finally overthrow Assad? Who do you think happened in Iraq between 2005 and 2009, and to some extent continuing till today? It’s the same kind of bloody, post-revolutionary chaos with a uniquely Arab falvour to it. – This may sound harsh and judgemental but I’ll say it: don’t waste your time with these places, until a lot of dust has settled.

    • Liz says:

      Would agree that the dust needs to settle and if Somalia, which is very close in comparison, is to considered will be Quite some time before that dust settles.

      The recent election in Libya was very comparable to Somalia in 1969 — On Somalia in 1969: Many candidates affiliated with a major party only long enough to use its symbol in the election campaign and, if elected, abandoned it for the winning side as soon as the National Assembly met. Somalia still has a transitional government with city states/autonomous region.

      Libya had 2 major parties and 4 other parties that received 2 or 3 party seats and 15 parties with each a party seat. There were 24 parties that received votes and no party seats. The Islamic parties, including Muslim Brotherhood, [and those are parties stated in the media to be Islamic so there could be several more parties] had 389,743 votes from the total number with Belhadj incomplete total 37,420 – not quite 10%.

      Was also interesting to see how Belhadj and Sami Al-Saddi parties got torpedoed. Al Saddi party name was National Central Party. To begin with the Jibril/Tarhouni party was together but when the election results were being given Ali Tarhouni had his own party with the name of National Centralist Party or perhaps Central National Party — but on the final results it is called National Central Party.

      And Belhadj in Murzuk with 98% vote counted Belhadj was for sure 3rd and a seat but in Final had Zero; Azzuzyah with 98% vote counted Belhadj was competetive with second place and thus a seat behind by 150 but in Final had Zero; and in Sabha with 97% vote counted Belhadj was for sure 3rd for a seat, actually less than 150 votes for 2nd but in
      Final had Zero.

      The NTC still had 18-20 days to pass laws and the National Assembly/Congress can overrule with a 2/3rds vote (133 votes from 200). There are no checks or balances that have been published. Thus not stated what happens if the Assembly does not create a constitution and what happens if a constitution on referendum does not pass.

  9. Peter says:

    Didn’t the NTC announce a somewhat “final ruling” about the ICC4 case for July 23rd? Has anyone any news about what was the result of this or if it took place at all? Just wondering…

  10. Peter says:

    So, following the detailed report of Ms. Taylor that just has been published on the ICC Homepage it seems to have been a trap placed by Libya to teach the OPCD team a lesson for recent complaints about missing cooperation of Libyan authorities. The name that appears again and again when dealing with this matter is the one of Dr. Gehani / Jehani – official contact for ICC in Libya -what is wrong with this guy? He seems to pull the strings from the background. If the statements of Ms. Taylor are true, this whole matter would probably not come to an end in advantage of Libya. They cannot be that stupid, so my assumption is they simply don’t care about ICC and possible decisions made there and do not plan to hand over Mr. Gadaffi at all.

  11. Pingback: ‘History is written by the Victors’ or is it the Bullies? The Eradication of the Melinda Taylor Incident | The New Libya Report

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