Libya Explains Detention of ICC Staff to the UN Security Council

(Photo: Gallo Images/Thinkstock)

I have just received a copy of a letter, dated June 19 2012, and sent from Libya’s Ambassador and Permanent representative to the United Nations. For the time being, I will withhold any elaborate commentary on the letter but, in short, this is Libya’s version of events regarding the detention of Melinda Taylor and Helene Assaf. There doesn’t seem to be anything new. Nevertheless, it is important to note that Libya is engaging the UN Security Council on this issue.

Non-Official Translation

Memorandum on the Arrest of the ICC Delegation

As positive response to Security Council resolution 1970(2011) of 26 Februa12¢ 2011 requesting the full cooperation of the Libyan authorities with the International Criminal Court (ICC) and the Prosecutor-General of the court and in fulfillment of its commitments to the ICC, the Libyan government received an ICC delegation upon the approval of the Prosecutor-General in Libya starting fi’om 6 June 2012.

The main goal of the visit was to provide an opportunity to the defense counsel assigned by the court to meet the accused Saif al-Islam al-Qaddafi in his detention in the city of Zantan, as well as discussing the possibility of assigning a counsel of his own choice.

The delegation consisted of:

o Ms. Melinda Taylor – Defense Counsel (Australian)

o Ms. Helen Assaf – Translator (Lebanese)

o Mr. Alexander Chodakov – Court Expert (Russian)

o Mr. StevenBeralta Lucia – Head of Defense Support Office (Spanish)

During the meeting, Ms. Taylor handed over to the accused documents which content constitutes a threat to the Libyan National Security, in the presence of the interpreter. One of these documents was a coded letter sent by Mohammed Ismael who had been working as the main aide to the accused, as well as a close security and intelligence assistant to the former Head of Intelligence Service Abdullah al-Sanusi. Remarkably, these documents are irrelevant to the procedures of the ICC and have no connection of any kind with the process of providing a relevant legal advice in the case of the accused. Additionally, it was discovered that Ms. Taylor and the other members of the delegation were carrying spying devices and recorders (a video camera pen and a watch that functions for the same purpose). This act violates the mandate of the court’s delegation and is contrary to the tasks assigned to the assigned defense counsel. It is also considered a blatant violation of the Libyan laws and regulations and a crime under the Libyan criminal legislations. It is contrat3, to the moral and professional commitments of the members of the delegation of the ICC, and a violation of the provisions of the Code of Conduct of the profession for counsels adopted by the court on 2 December 2005.

The present circumstances and the red handed situation urged the Prosecutor-General’s office to launch an immediate investigation where the two accused; Ms. Melinda Taylor and Ms. Helen Assafwere to be interrogated as soon as possible. The Prosecutor-General’s office decided to release the other two members of the delegation, however, they willingly decided to stay in solidarity with their colleagues. The abstention of cooperation of Ms. Taylor with the investigator of the Prosecutor-General’s Office and the decline to make any statements led to restrict her movement with Ms. Helen Assaf. She insisted not to say a word without the presence of an international defense counsel while the Prosecutor-General’s office already provided a local counsel.

The Ministry of Foreign Affairs and International Cooperation immediately transferred the request of Ms. Taylor to provide her with an international counsel to the officials in the ICC. The abstention of cooperation of Ms. Taylor led to a remarkably prolonged detention.

On 7 June 2012, the Ministry of Foreign Affairs and International Cooperation reported to the ICC what happened. Rather than consulting with the Libyan authorities on how to deal with this issue, the ICC issued a press release on 15 June 2012 calling upon Libya to release the ICC team urgently and to ensure their safety and the good treatment, without referring to the violations committed by the members of the ICC delegation, and the non-observance of the profession’s code of conduct.

Following two meetings held on 11 June 2012, the first one between an ICC delegation and the Prosecutor-General’s office, and the second one between the delegation and the Prosecutor-General and a team fi’om the minim’,/ of Foreign Affairs and International Cooperation responsible for cooperation with the Court, it was agreed to arrange a visit for the ICC delegation to the city of Zantan accompanied by the ambassadors of Australia, Russia, Spain and Lebanon on 12 June 2012. During the visit, the delegation as well as the accompanying ambassadors met the arrested members of the ICC delegation and had a direct conversation with them. The visitors checked the facility as well as the utilities provided by the Libyan authorities in the arrest utility. It was remarkable that during the meeting, the detainees expressed their satisfaction with the good treatment and the facilities provided to them. At the conclusion of the visit, the ambassadors requested the Libyan authorities for private visits to the detainees and to facilitate phone calls with their relatives. The Libyan authorities have promised to respond favorably to this request upon completion of this investigation.

In compliance with its commitments to Security Council resolution 1970, and in spirit of cooperation to solve this issue, the Libyan authorities complied with the request of the court to enable [a name I’ve withheld for the moment], defense counsel, to attend the investigation sessions which took place on 16 and 17 June 2012.

The Prime Minister gave special attention to the relationship of Libya with the ICC, H.E. Dr. AbdullLaheem el-Keib, convened three meetings with the deputies of Prime Minister, Minister of Justice, Prosecutor General, and Deputy Minister of Foreign Affairs and International Cooperation to exchange views and opinions on the most successful means to solve this issue in compliance with the requirements of the National and International Laws. The meeting held on Sunday 17 June 2012 resulted in discussing a road map for fastening the negotiations with the ICC within a time frame to agree on an effective action and consulting mechanism that would serve justice to all relevant parties.

In order to follow up the investigation, the Ministry of Foreign Affairs and International Cooperation held a meeting on 18 June 2012 with the ICC delegation in the presence of a representative of Prosecutor-General Office and the Legal Advisor of the Prime Minister to discuss the steps that must be taken by both sides; Libya and the ICC, and to agree on a road map for the solution of this issue.

The Libyan government is fully committed to cooperate with the ICC to find a satisfactory solution for all parties in the context of respect of national and International laws. The government is still committed to the cooperation with the ICC regarding the procedures against the accused Sail al-Islam al-Qaddafi and his full rights in defense. In return, the Government is looking forward to the court to ensure the respect of the Code of Conducts by those delegated to Libya, the respect of the Libyan Law and the State Sovereignty and to abstain from any violations that would hinder the establishment of an effective and positive partnership with the court.

The Ministry of Foreign Affairs and International Cooperation

19 June 2012

Note: I have continued to post updates on this story at an earlier post, here.


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).
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