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.
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;
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.