ICC Staff Locked up in Libya: An Unfolding Debacle

Zintan brigade

A member of the Zintan Martyr Brigade in September, 2011 (Photo: Eric Feferberg/AFP/Getty Images)

It isn’t getting any better for anyone involved. Many will already be aware of the arrest of four ICC staff by a militia in Zintan, Libya, on allegations of spying. The controversy it spawned revolves around Melinda Taylor, an Australian defense lawyer at the ICC who, it is alleged, passed on “dangerous” documents and was found with spying devices when she met with Saif al-Islam Gaddafi last week in a visit approved by Libyan authorities. Her interpreter, Lebanese-born Helene Assaf, is being considered an “accomplice”. Two other ICC staff members, a Spaniard and a Russian, are voluntarily staying with Taylor and Assaf, an act of remarkable solidarity and integrity.

Yesterday, the team was transferred from a guest-house in Zintan to a Libyan prison, on the behest of the Libyan Prosecutor General, for a forty-five day detention period. It is not clear which prison they are being held at, although AFP journalist Maude Brulard told me earlier that, according to members of the militia, the prison is under control of Libya’s defense ministry.

After arriving on Sunday, officials from the ICC were finally granted a visit by Libyan authorities to the four staff members in Zintan today. However, they found themselves unable to reach Zintan after being held up at a checkpoint. According to Marie-Louise Gumuchian,

In scenes that summed up the chaos and instability in Libya since a revolt last year ousted and killed Gaddafi, when the ICC delegation arrived at a checkpoint outside Zintan, militiamen told them no one was being allowed in because of clashes with a rival tribe nearby.

The 7-vehicle convoy parked up near the checkpoint but over an hour after arriving they were still waiting to go into Zintan, even though the visit had been approved by authorities in the capital, Tripoli…

…The clashes were happening about 50 km (30 miles) south of Zintan, well away from the route being used by the ICC delegation.

“I believe there is a problem, fighting. We weren’t told, we were just given orders not to allow any cars in,” said one man, dressed in military fatigues and carrying a Kalashnikov rifle at the checkpoint.

At the same time, a particularly controversial statement was made by NTC spokesperson, Mohammed al-Hareizi, in an interview with the Australian Broadcasting Corporation (ABC). Al-Hareizi suggested that Taylor was being held, not for any particular violation, but because the government believed that they could bargain her freedom for knowledge of Mohammed Ismail’s whereabouts. Ismail is considered a close friend, confidante and, some say, “henchman“, of Saif. It has been alleged that Taylor gave “coded” letters from Ismail to Saif during their meeting. Al-Hareizi is quoted as saying:

“We want this guy. It is very important to catch this guy because this guy is very, very, very danger(ous) for us…

…We don’t have anything against this woman. Just we need some information from her, after that she will be free.”

This is particularly damning evidence against any possible case that Libya has in detaining and investigating Taylor and Assaf. If al-Hareizi’s words reflect the attitude of the NTC, then it is clear that Taylor and Assaf’s arrest have nothing to do with the law or justice and everything to do with leveraging the freedom of ICC staff for political gain. Incredibly, this was admitted while Libya is attempting to convince ICC judges that it is able and willing to try Saif domestically. As I argued earlier this week, that seems an increasingly remote possibility. Of course, holding and investigating the two ICC staff members is problematic regardless of the NTC’s or the Zintani militia’s intentions behind doing so.

Melinda Taylor ICC

Melinda Taylor, who was detained with three other ICC staff members while visiting Saif al-Islam Gaddafi last week.

Like others, I am flabbergasted with how quickly some have suggested that the ICC team is guilty and that, if they broke the law, they should be investigated in Libya. This is hugely problematic. First of all, while the allegations are certainly serious, no real evidence has been presented that any laws were actually broken. We simply do not know the truth about what transpired. 

Second, if any of the allegations are true, it remains the ICC, and not a rebel militia, who should investigate any transgressions and mete out whatever punishment is necessary and appropriate. Perhaps there is some confusion that diplomatic immunity would translate into impunity. It wouldn’t.

None of this is to argue that Taylor and her team did nothing wrong – again, there is no evidence either way. However, given that the staff members have diplomatic immunity, it should be for the ICC to establish their guilt or innocence. But if that remains unconvincing, consider the law.

According to Article 18 of the 2002 Agreement on the Privileges and Immunities of the International Criminal Court, on Counsel and persons assisting defence counsel:

Counsel shall enjoy the following privileges, immunities and facilities to the extent necessary for the independent performance of his or her functions, including the time spent on journeys, in connection with the performance of his or her functions and subject to production of the certificate referred to in paragraph 2 of this article:

(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;

Saif al-Islam Gaddafi with his Zintani captors in November, 2011.

All of this brings up a seemingly pressing question: where has the UN Security Council been in all this? Does the Council not bear any political responsibility for those who work as an extension of a process that it initiated? Not to be too reductionist but, after all, had it not been for the Security Council referral of the situation in Libya to the Court, no ICC staff would have ever been in danger by visiting Saif.

The ICC itself has also been rather quiet since issuing statements demanding the release of their staff members. This may be strategic, as the Court works behind the scenes to get Taylor and Assaf released. Nevertheless, it was reported today that ICC Prosecutor Luis Moreno-Ocampo broke his silence with particularly insensitive comments. Moreno-Ocampo, whose tenure ends in mere days, apparently believes that Libya should investigate the Court’s staff and seems to blame them for their current predicament. According to Gumuchian,

Luis Moreno Ocampo, the ICC’s chief prosecutor, told Reuters on Monday evening the Libyan authorities had the right to investigate the case against the ICC pair.

But he said the allegations against them surprised him. “It’s not what we would expect of the court, of the defence,” the prosecutor said.

It is almost an entire week since the four staff members of the ICC were in contact with the Court, their embassies or their families. One can only hope that this period of being held incommunicado is broken soon but, as the above developments show, what happens next is anyone’s guess. This much seems clear: none of the involved parties will leave this debacle unscathed.



I will continue posting updates on the situation as they come about here.

June 13: A convoy, which included the Ambassadors of Australia, Lebanon, Spain, and Russia as well as ICC officials, was able to visit with Melinda Taylor and the detained staff. However, according to Australia’s Foreign Minister, Bob Carr, it appears unlikely that they will receive an early release. Carr also relayed reports on the conditions in the prison, saying they were “were generally adequate” and that “Taylor appeared to be well and in reasonable spirits given the circumstances.”

For those interested, you can watch an interview with Taylor’s parents here.

June 14: NATO Secretary-General Anders Fogh Rasmussen has added his voice behind efforts to release the ICC staff, saying “I strongly regret that certain groups in Libya have arrest or withheld representatives of the International Criminal Court. I would urge them to release these individuals as soon as possible.”

Melinda Taylor’s husband, Geoff Roberts, who, like Taylor, is an international criminal lawyer, has spoken about the ordeal. He has suggested that Libya’s behaviour should be reflected in the country’s admissibility challenge: “If they can’t protect their own people when they go into these dangerous places, how will it work? Unless they can protect their staff, these courts can’t function.”

Kate and Amanda, of the fantastic blog Wronging Rights, have a salient piece at The Atlantic where they consider what the arrest of the ICC staff will have on the Court’s ability to investigate in fragile conflict and post-conflict contexts.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Defense Counsel, International Criminal Court (ICC), Libya, Libya and the ICC and tagged , , , . Bookmark the permalink.

7 Responses to ICC Staff Locked up in Libya: An Unfolding Debacle

  1. sharpfang says:

    mm you do seem to give a lot of leeway to the dodgy-brothers ICC.
    The Zintan say Taylor had a hidden camera ie spyware – does this too, get a pass under ‘Diplomatic Immunity’ ?
    Personally I see the ICC as carrtying responsibility for the illegal destryuctiion and occupation of Libya – they lied, acted on very dubious hearsay 0- and Ocampo abandoned any pretense of professionalism in accusing/issuing warrants for the Gadaffi family.

    I’m unsure why you want to present the ICC, as anything other than an extension of US power, with a fig-leaf of respectability ? Their performances over African leaders – bringing them in by the shoal, whilst those(from the West) responsible for Iraq and Palestinian genocide, Colombia mass-murders, Guatemala, the Congo’s millions of dead etc, go untroubled by ‘International Law’.

    As long as the ICC plays a partisan-role, acting on behalf of the US-cabal and their Endless-wars, your ludicrous citing of the regulations protecting ICC members – as if they were unbiased actors for Justice, rings very hollow.

  2. Tony Irungu says:

    Nothing to add, Sharpfang. Very well said. The West’s hypocrisy and self-righteous posturing in all this saga is nauseating. They betrayed and sold out Gaddaffi, only to usher in a supposedly more malleable and cooperative Libyan puppet regime, but which has turned out to be a congregation of bloodthirsty, primitive and racist savages unwilling to kow-tow to anyone in the so called NTC ‘Govt’, leave alone to ‘International law’. The ICC is reaping what it sowed in it’s unquestioning and overenthusiastic resolve to do America’s bidding…good for them.

  3. are the two of you African……I love the anti WEST….!@#$%^&*(…..just sad..that you knock them that care about…,most just
    do not……give a dam…..

    • Tony Irungu says:

      You sound like a typical South African with his head buried deep in the sand hankering after the good old days when you could whatever you wanted and there were no questions asked by the ‘natives’. Those days are gone forever and never coming back, and you would do well to try and understand fellow Africans like myself and where i am coming from when i criticise the mind-numbing hypocrisy of western human rights policies.

      Yes, i am an African from Kenya, and a proud one too, but first and foremost i am also a member of the human race and who believes passionately in the humanity of all, not just for some people – as do-gooder busybody civil rights groups who don’t live up to even 1/10th of their self righteous proclamations are wont to do. My views therefore have nothing to do with any perceived anti-western bias. As a matter of fact, i believe most westerners are inherently good people with good intentions, but the same ordinary people in the west have also allowed their thuggish political leaders and the establishment including the mainstream media free reign to define who they are and what they stand for in relation to how they interact with the rest of the world, and especially the developing world which includes Africa.

      To criticise Western policies therefore is not to support murderous African regimes such as that in
      Sudan or Equatorial Guinea. I am not insane in that respect. What i detest however, is that there is no consistency in western leaders urging the ICC to go after leaders like Bashir, Nguema,Taylor etc., but will not apply the same pressure in going after a Benjamin Netanyahu in Israel when they murder innocent Palestinians, as Ocampo did just the other day by stating he cannot investigate Israeli massacres in Gaza in 2008 because ‘Palestine is not a State’. Does Palestine not being a State mean that Palestinians are lesser human beings with no right to a full and predictable, hopeful life? Why has the ICC/the west not seen it fit to go after the new Libyan leadership which is responsible for the massacre of thousands of Black African migrant labour and even fellow Libyans who just happened to be black? Who will punish western soldiers in Afghanistan and Pakistan when they commit war crimes? This is the hypocrisy and inconsistency i am talking about.

      You therefore need to dump the knee-jerk defensiveness most westerners assume when confronted with their leaders hypocrisy and cruel policies. I am sure it would be shocking to most people in the west to learn about their leaders double faced personality, such as when Sarkozy accepts us$50million from Gaddafi to conduct an election campaign but has no qualms orchestrating his overthrow and even manipulating the international political system outside UN rules to do so.
      You really should address the issues raised instead of whining, you will be the better for it.

  4. hey i am African….and care……but also understand little people sometimes need HELP to see the BIG picture….

  5. sharpfang says:

    @Robert – no, I am not African (except way back, no doubt 🙂
    I;m, Australian and;like many of my compatriots, I am deeply concerned by Australia;s growing involvement with the uncontrolled and rapacious, US-Empire.
    We are situated in Asia and trade with China is our lifeblood; lining up with the cazy-US, threatens our immediate economic future.

    Beyond that, the US’s push for war with China and Russia – which os what Libya, Syria and Iran are ultimately about,(control of ME and African resources) seems to me total insanity.

    The US is failing before our eyes; we should not assist and encourage them to obliterate us, as they go down – that is not the futire I want for my kids.

  6. Pingback: The Immunity of the ICC Lawyers and Staff Detained in Libya « EJIL: Talk!

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