Readers of JiC are likely already aware of the ongoing saga facing the ICC’s staff members in Libya. The ICC has just issued a press release regarding the situation facing Melinda Taylor, Helene Assaf, Alexander Khodakov, and Esteban Losilla, employees of the Court who were detained in Zintan, Libya, earlier this month after meeting with Saif al-Islam Gaddafi. Saif was indicted by the ICC for his role in the Libyan revolution. Libyan officials and Zintani militia leaders maintain that the Taylor and, by extension, Assaf over-stepped their mandate, were caught spying and posed a risk to Libya’s national security (see here for more details).

There have been many curious actors in this debacle. No one’s actions and words have received as much attention as Australia’s Foreign Minister, Bob Carr who has taken a front-row seat in the developing crisis. From the beginning of the crisis, Carr has advocated for the release of Taylor, mediated between the ICC and Libyan authorities, and making a personal visit to Libya to meet officials and expedite the release of the ICC staff members.

Recently, after meeting with Libyan officials, Carr suggested that in order for the ICC staff to be released the Court should apologize to Libyan authorities. In a June 19 interview with ABC, Carr argued the following:

“What would help – what would help, I’m coming to a proposal and putting to the ICC, in the form of words from the ICC that expresses regret, even apology about approaches to this very fraught justice question, which weren’t preceded by agreement on protocol and conventions.”

It seemed odd to many that the Court should apologize when it is rather clear (see here and here) that the ICC staff enjoy diplomatic immunity and, from the very get-go, there was no legally legitimate reason to detain Taylor et al. Predictably, Carr’s call for an apology has not been well-received in all corners.

In my view, Carr’s public assertion that the Court apologize to Libya put the ICC in an impossible position. Either the Court said sorry and risked undermining its position and legitimacy or it refused to apologize and risked being blamed for prolonging Taylor’s detention.

Amnesty International also had reservations. Widney Brown criticized the idea, arguing that it could undermine the Court in the long-term:

“I understand the urgency of the Australian government to see Melinda Taylor released, but I would urge the Australian government to have a much longer-term view of whether you want to undermine the independence of the International Criminal Court and create a precedent where governments think well, if we just lock somebody up then we’ll get them to back off.

‘We know that the best way to undermine justice is to attack those who defend the rights of those who are on trial, so this detention is utterly illegitimate; she should be released immediately and there should be no need to apologise.”

Libyan PM Abdurrahim El-Keib (right) with former ICC Prosecutor, Luis Moreno-Ocampo (Photo: Ismail Zitouny / Reuters)

Kevin Jon Heller vehemently opposed the idea of an apology. Heller claims that the ICC’s legitimacy would be severely hampered if it took up Carr’s suggestion:

“I cannot speak for Taylor, though what I know about her leads me to believe that she would never want the ICC to apologize to a brutal, lawless government for letting her do her job as a defence attorney.  I can say, though, that this is a critical moment in the ICC’s development.  If the Court caves into misguided pressure from Bob Carr and (presumably) the Australian government and apologizes to a brutal, lawless government for protecting the rights of a suspect, it might as well not exist.  And I am not being hyperbolic.”

Despite these criticisms, it appears that the Court has gone ahead and taken Carr up on his advice, issuing a statement of regret on Friday evening.

Statement on the detention of four ICC staff members  

On Friday, 22 June 2012, Mr. Abdelaziz Al-Hassadi, Attorney General of Libya, heading a high level Libyan delegation, visited the International Criminal Court (ICC) in The Hague (Netherlands) where he met with the ICC President, Judge Sang-Hyun Song, the ICC Registrar Silvana Arbia, and other ICC officials to discuss the situation of the four ICC staff members held in Zintan, Libya, following their mission to visit Saif Al-islam Gaddafi, who is subject to prosecution before the ICC for alleged crimes against humanity.

During the meeting, Mr. Al-Hassadi presented to the ICC officials information regarding the visit of the four staff members to Zintan on 7 June 2012.

The ICC President thanked the Attorney General for visiting the Court. He expressed appreciation for the mutual trust confirmed in the meetings and welcomed the commitment of the Libyan authorities to cooperate fully with the ICC in accordance with United Nations Security Council resolution 1970 (2011). The President underlined the shared interest of the ICC and the Libyan authorities that Saif Al-Islam Gaddafi and Abdullah Al-Senussi should face justice.  

The ICC takes very seriously the information reported by Libyan authorities in relation to the ICC staff members’ visit. The ICC fully understands the importance of the matter for the Libyan authorities and the people of Libya.

The Court attaches great importance to the principle that its staff members, when carrying out their functions, should also respect national laws. The information reported by the Libyan authorities will be fully investigated in accordance with ICC procedures following the return of the four staff members. For this purpose, the Court will be seeking further background information from the Libyan authorities. The ICC will remain in close contact with the Libyan authorities to inform them of progress.

The ICC deeply regrets any events that may have given rise to concerns on the part of the Libyan authorities. In carrying out its functions, the Court has no intention of doing anything that would undermine the national security of Libya.

When the ICC has completed its investigation, the Court will ensure that anyone found responsible for any misconduct will be subject to appropriate sanctions.

In fulfilling its mandate to end impunity and providing justice to victims, the ICC is ready to assist national authorities with their investigations if requests are submitted to the Court. The ICC is committed to continued mutual cooperation with the Libyan authorities and will do everything it can to assist them.

The ICC is extremely grateful to the Libyan authorities for their commitment to take all necessary action for the release of the Court’s staff members and their speedy reunification with their family members.

Australian Foreign Minister, Bob Carr (Photo: AAP Image/Alan Porritt)

For the moment, it remains unclear why the ICC chose to issue this statement of regret, released on a Friday afternoon/evening. Further, there is no evidence that Libyan authorities intend to accept such a statement. Only Carr has suggested it would expedite the process of releasing Taylor – not Libyan authorities. Contradicting the Australian Foreign Minister, Libya’s interim Prime Minister Abdurrahim El-Keib declared just yesterday that an early release from detention for Taylor was unlikely. There is likely a back-story to these developments that remains murky at best.

It is debatable whether the statement amounts to an apology given that, technically, the Court didn’t use the words “apologize” or “sorry”. In my view, however, for all intents and purposes it is an apology. Indeed, it takes the same strategy that many politicians, weary of legal implications, have employed in apologizing for historical injustices – saying sorry without using the word.

As important as what the statement says is what it doesn’t. Most notably, it does not maintain that the ICC staff members have diplomatic immunity. Instead, it goes to some lengths to reassure Libyan authorities that, if guilty of wrongdoing, the ICC staff will be investigated and “will be subject to appropriate sanctions.” Moreover, the the press release doesn’t suggest that the Zintani officials were wrong to arrest the four employees in the first place. This is a pretty remarkable step back from the Court’s initial response to the crisis.

Whether issuing this statement of regret was the right decision remains to be seen. In the long-term, making this statement could have serious implications for the Court, including how it defends staff working in fragile contexts like post-Gaddafi Libya as well as its claims that ICC staff enjoy diplomatic immunity. The short-term, too, is far from clear. It remains anyone’s guess whether the Court’s gamble will be the final straw in this unfolding debacle and whether Melinda Taylor and her colleagues will finally be released. Here’s hoping they are.

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Update: Over at Opinio Juris, Kevin Jon Heller has a much more thorough and sophisticated take on the ICC’s statement as a whole.