The ICC in Syria: A Ticking-Time Security Council Referral?

Posted on July 13, 2012 by Mark Kersten

A protestor in front of anti-Assad graffiti in Idlib, Syria (Photo: Rodrigo Abd / AP)

Like so many others, I find myself in the morally and politically ambiguous position of having no clue what the international community should do to stop the ongoing violence in Syria, recently described as descending into “a sectarian wasteland”. The options are unsavory. The Libya-intervention-recipe seems out of the question, but doing nothing seems morally abhorrent. The status quo is brutal but changing it could conceivably be worse. The only thing that seems clear, to me at least, is that some creative thinking is needed.

Before I lay out my thinking on a possible way to contribute to a cessation of violence in Syria, I should add a disclaimer to avoid confusion. This post is a thought exercise based on an idea that I have been mulling recently. As such, it does not represent any rigid conviction on my part nor a policy solution. Nevertheless, I think it is worth discussing and considering.

A Ticking-Time ICC Referral

My proposal is that the Security Council legally bind itself to a “ticking-time ICC referral”. In practice, this would require the Council to legally declare that they will refer Syria to the ICC by, say, August 1st, 2012 (it could be sooner or later). Once set in motion, the only way to stop the referral would be through a subsequent affirmative vote by the Security Council, following the advice of the UN Observer Mission and UN-Arab League Envoy Kofi Annan. Syrian and opposition forces would have until August 1st to stop the commission of atrocities. If indiscriminate violence on the part of the Syrian regime and the opposition forces did not cease, the referral to the ICC would go ahead automatically.

Why it might be worth it

If the ICC has any specific deterrent effect, this would be an opportunity to see it in action. The idea here is simple and oft-repeated (and oft-criticized): the ICC can have an effect on the willingness of actors to continue committing atrocities. A problem, that many scholars have pointed out, is that when the ICC intervenes in ongoing conflicts, the incentives to put down the guns and silence the tanks may be removed. Both of these positions are over-simplified and tenuous in that the empirical evidence across contexts is weak. But a delayed referral would theoretically allow for both a specific deterrent effect to change the calculus of the Assad regime without removing the incentive to cease the commission of human rights abuses. Of course, the ICC’s deterrence capacity is unclear and its record questionable. Nevertheless, in such instances, I’m not sure it’s useful to know whether the ICC can have a deterrence effect. It might be sufficient to believe it might or could.

Importantly, under this proposal, the Syrian regime would not be able to escalate violence until the end of July and then claim that they have stopped committing atrocities in the 11th hour. In order for the Council to stop the referral, all actors would have to show restraint and a commitment to a cessation of crimes in the time between the Security Council resolution and August 1.

(Cartoon: Kal / The Economist)

It is important to note that the reason that Syria has not been referred to the ICC is not because of the Security Council member states’ ambivalence to the Court itself. As Mark Leon Goldberg reminds us, past cases and practice indicates that “Russia and China are not intrinsically opposed to the ICC.” Thus, if the right political climate and guarantees were in place, it would be possible to get Russia and China on board (or at least abstain) with such a resolution – at least theoretically.

One political guarantee of the hypothetical Security Council resolution could be to make it clear that the ICC’s jurisdiction would be restricted to investigating crimes committed after August 1st, 2012. Crimes committed before this time would thus be beyond the ICC’s jurisdiction. In addition to providing the Assad regime with an incentive to stop committing atrocities, this could also assuage concerns of UN Security Council states that they would be targets of investigation. In particular, Russia would have time to halt its well-documented and dubious material support to the Assad regime without having to worry that it would be investigated by the ICC. For Russia, which seems to be increasingly amenable to the position that Assad needs to step down, the delayed referral could offer a ‘soft landing’. Notably, in Libya, Western states similarly ensured that the ICC could only investigate incidents after February 15, ensuring that their close political, economic and intelligence relations with the Gaddafi regime were outside the Court’s spectre. Continue reading →

Posted in International Criminal Court (ICC), Justice, Syria, UN Security Council | Tagged , | 7 Comments

The ICC: Three Remarkable Achievements

Posted on July 9, 2012 by Mark Kersten

(Photo: Robin Utrecht/EPA)

The ICC recently celebrated its tenth anniversary amidst heavy criticism of its international role and impact. Some of the criticism is valid, a lot of it misrepresents the mandate and role of the ICC. Regardless, in this context, after some time mulling over what the ICC has achieved in the first few years of its existence, I’ve come up with a list of three largely neglected achievements of the Court. I have a feeling they won’t be to everyone’s fancy, but while the ICC is very far from perfect, hopefully this post can highlight or bring to the fore a few issues which, in my mind, make the ICC – as an idea, institution and, above all, project – remarkable.

1. It Exists

It is all too easy to forget that it wasn’t a given that, ten years after it was created, the ICC would actually still be around. I remember the Court’s President Judge Sang-Hyun Song declaring that when he was sworn in, he and other judges did privately expressed their skepticism that the Court could survive the political climate of international relations.

There was every chance that states would rip this novel institution apart before it could get a hold on its place on the global stage. But the ICC managed to withstand political forces pulling it in a multitude of directions. Most dramatically, the Court survived the outright and active hostility from the world’s most powerful nation. Throughout the ICC’s formative years, the US creatively and consistently sought to undermine the prospects of the ICC being effective by pressing states into signing Bilateral Immunity Agreements and by passing the ‘Hague Invasion Act‘. Surviving such aggression and trucking on in the face of opponents like John Bolton is a pretty sweet feather in the ICC’s cap.

Somewhat ironically, the demand that the ICC have an impact on [insert pet project here] and have [insert ICTY’s caseload] number of cases concluded is a testament to just how far the Court has come. Today more typical demands courts can be made of the ICC in terms of conviction rates and international influence. It wasn’t always the case. The Court’s most consistent and vehement critics emphatically claim that the ICC needs to have more cases – whether outside Africa or in places it can’t go, like Syria – yet it wasn’t always clear that ICC judges would ever see any cases.

Importantly, I don’t believe reminding observers that the Court’s existence as a functioning international judicial institution wasn’t a foregone conclusion is grasping at straws. It’s a reminder. The Court, as a project, needs to be judged within the context, and against the record, of its lifespan, not in a cross-section of time, ten years on or whatever it may be.

 

An activist stands outside of the courtroom where former Egyptian President Hosni Mubarak was being tried. Demands for justice and accountability (including from the ICC) swept the Arab world in the ‘Arab Spring’ (Photo: Amr Nabil / AP)

2. It Shapes People’s Demands

Not only does the ICC exist – it appears to be at the vanguard of global and regional human rights and democracy movements. It is not just that demands for justice, human rights and accountability have been particularly pervasive in recent months and years – it’s that these demands are coming from places few imagined they would. I don’t think anyone could have predicted pre-2011 that protesters across the Middle East and North African would take to the streets demanding that their autocratic despots be sent to the The Hague. Yet that’s exactly what’s happened.  Continue reading →

Posted in International Criminal Court (ICC) | Tagged | 2 Comments

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

Posted on July 4, 2012 by Mark Kersten

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. Continue reading →

Posted in International Criminal Court (ICC), Libya, Libya and the ICC | Tagged , , , , , | 15 Comments

Can International Justice Tribune Die? No!

Posted on July 4, 2012 by Mark Kersten

Answer: No!

Dear readers,

I wanted to alert you to rather sad news. Many of you will already be aware that RNW – International Justice Tribune, an indispensable and widely respected resource for global and transitional justice news will no longer be published at Radio Netherlands Worldwide. According to IJT,

“It is with much regret that we announce that Radio Netherlands Worldwide (RNW) has decided to stop publishing the International Justice Tribune (IJT).

This sad decision was issued in the context of massive budgetary cuts faced by RNW on June 22. All future activities at RNW will be solely focused on young audiences in countries where free speech is under threat.”

The loss of IJT would be monstrous for those of us interested in international justice. In response, IJT has launched a campaign to save the Tribune. I encourage all JiC readers to sign their petition. The campaign is called “Can IJT Die?” The answer is an obvious and emphatic “no!” Here’s more:

We believe this coverage is both essential and complementary to the work of our core readership, composed of researchers, lawyers, journalists, political decision makers and human rights activists at national and international levels. We believe a rigorous and independent specialised newspaper is not only useful, but a condition for the healthy development of international justice. The steady increase in IJT’s readership over the years is proof of the needs it fulfils.

We believe that a free specialised press is essential to the main actors in the area of international justice both here and in the affected countries.

For these reasons we, the IJT’s editors, are now committed to seeking an imminent and sustainable solution for this non-costly project to survive in its present form.

We would like to respectfully ask you to fill in our online petition and send us reasonable suggestions on urgent or long-term financial support.

Sign the petition and help save IJT!

Posted in Advocacy, JiC News | 2 Comments

Can the ICC Deliver Impartial Justice?

Posted on July 3, 2012 by Mark Kersten

My apologies for not blogging much over the last few days. I have just returned from a long-awaited and much-needed vacation but promise to get writing more substantially soon. In any case, I thought readers might be interested in an episode of Al Jazeera’s Inside Story I had the immense honour and pleasure to participate in over the weekend, entitled ‘Can the ICC Deliver Impartial Justice?‘

There is obviously much more to say about this subject than can be captured in a 25-minute program. Nevertheless, this is a subject that won’t – and shouldn’t – go away. I also believe some of the commentary offered in the episode vividly demonstrates our need to have a more sophisticated conversation about the limits and challenges facing international criminal justice. Particularly, I think some of the comments shed light on how critics effectively string together disparate (and often incorrect or irrelevant facts) and mount them in a campaign to undermine the Court’s very existence. Doing this simply distracts from a much-needed and honest discourse about addressing the real problems and issues with the ICC.

As always, your feedback and comments are very much welcome!

Posted in International Criminal Court (ICC), Interviews, Justice | Leave a comment

Separating Fact from Fiction: Melinda Taylor and the ICC Staff’s Detention in Libya

Posted on June 27, 2012 by Mark Kersten
Libya jail

(Photo: Reuters)

In times of crisis or scandal, misunderstandings are an unfortunate but inevitable consequence of not having sufficient information and only getting it in fits and spurts from political actors with competing interests. The continuing controversy surrounding the detention of ICC staff has been no exception. Since their visit to Saif al-Islam Gaddafi in early June, Melinda Taylor, Helene Assaf, Alexander Khodakov, and Esteban Peralta Losilla have been held by a militia from Zintan, Libya, for the most part incommunicado. Libyan and Zintani authorities alleged that they were spying and posed a threat to the country’s national security (for more see here and here).

Admittedly, I was amongst those who believed that after the story broke, it would slowly decline in coverage and be largely ignored by the media. However – and luckily – that has not been the case. Nevertheless, the relatively consistent coverage has not prevented fictions from sprouting and falsehoods from propagating. For this reason, I thought it might be useful to “clear the air” by doing a little exercise in separating fact from fiction.

————————

1. There is evidence that the ICC staff are guilty of breaking Libyan law, undermining Libyan national security, and violating the ICC’s protocols.

Fiction. The claim that the ICC staff must be guilty is unfortunately widespread. Remarkably, commentators acting as both judge and jury have seemingly convicted the ICC staff without trial, indeed without evidence. While there have been proclamations that Melinda Taylor smuggled secret and coded documents as well as a camera pen into her meeting with Saif, absolutely no evidence has been given to date by the Libyan authorities to indicate that this has indeed occurred or that the staff are guilty of any wrongdoing. The closest we have come to actually seeing any evidence came when the arrest of Taylor et al was announced and a Zintani militia leader waived the alleged documents in front of the camera. Importantly, this is not to suggest that the ICC staff haven’t done anything wrong. Some might argue that the ICC’s recent statement of regret regarding the situation implies a concession that something went awry when the staff met Saif. However, we simply do not know what occurred during the meeting between the staff members and Saif. It bears repeating: No evidence of wrongdoing has been brought forward. None.

2. The ICC apologized to Libya.

Fact. There is probably not enough agreement on this to outright declare that it is a fact but I continue to believe the ICC’s statement amounts to an apology, as do others. The ICC’s statement amounted to an apology without saying sorry. It is not an uncommon practice for state or international actors to express an apology for past injustices but avoid using language that they fear may make them liable to subsequent legal action.

In this context, it is worth considering that the ICC’s statement is much closer to an apology than, for instance, former US President Bill Clinton’s “apology” for inaction in the face of the Rwandan Genocide.

Esteban Peralta, one of the ICC staff who has remained in Libya since Melinda Taylor was arrested in order to provide her moral support.

3. Only Melinda Taylor is being held in detention for threatening Libya’s national security.

Fact. Originally, it appeared that both Helene Assaf and Melinda Taylor would be charged in Libya. In a show of remarkable solidarity and integrity, after being told the were free to leave Libya, Alexander Khodakov and Esteban Peralta Losilla chose to stay with Assaf and Taylor for “moral support”. While the circumstances are unclear, it recently became clear that Assaf was also free to leave. All three remain with their colleague but it seems clear that only Taylor is being held in detention. Continue reading →

Posted in Defense Counsel, Libya, Libya and the ICC | Tagged , , , , , | 5 Comments

Updates on Melinda Taylor, Helene Assaf and ICC Staff Detained in Libya

Posted on June 25, 2012 by Mark Kersten

Dear readers,

I have decided to create a post dedicated to updates on the ICC staff detained in Libya. Unfortunately, the media is likely to tire of this story quickly and I figured JiC could contribute to creating a space where information and news on the situation could be shared. I had begun culling articles on my previous post, but it would seem to make more sense to simply have one post dedicated to emerging news on the situations facing Melinda Taylor, Helene Assaf, Alexander Khodakov, and Esteban Losilla. 

I will update this page whenever new information comes in. If you have articles or sources to share, please don’t hesitate to do so, either by contacting me or in the comment section. 

Here’s hoping this debacle ends soon.

Mark

(Photo: Suhaib Salem / Reuters)

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.

The Libyan leadership has been described as “powerless” to release the four ICC staff members.

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.” (see also here)

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.

This piece by Rory Callinan argues that troubles in providing Saif with a fair defense started long before the most recent visit by the ICC staff. He further suggests that pre-existing tensions contributed to the situation Melinda Taylor et al find themselves in.  Senior ICC defense counsel, Xavier-Jean Keita, for whom Taylor worked, has previously been barred from visiting Saif because of fears that his African heritage might put him at risk. Black Africans are often assumed to have been Gaddafi mercenaries. Nick Kaufman, who is currently representing Muammar Gaddafi’s daugher, Aisha, said that the Defense’s filing of sharp critiques of Saif’s captors “contributed to creating a highly flammable atmosphere in Zintan and if you ask me, I believe Melinda has fallen victim of this hostility which is because of the intensity of the litigation…There is no doubt that these filings contributed to cementing the, shall we say, anger of the local authorities holding Saif, against Melinda and her superior.”

Writing in the New York Times, Marlise Simons confirms that  Khodakov and Losilla have been told they are free to leave Zintan but that they have remained in order to provide “moral support” to Melinda Taylor and Helene Assaf. Simons also quotes Ahmed al-Gehani, a Libyan lawyer who was to be the ICC staff’s liaison when meeting Saif. Gehani confirms that the staff are being held in order to leverage their freedom for information: “[Taylor] had not wanted to answer any questions — this has been the problem from the start.”

June 15: Geoff Roberts, Taylor’s husband, fears that the arrest of the ICC staff will put all Court employees at risk.

According to this France24 piece, the four ICC staff members are in good health. The article also quotes the Court as saying:

“The court is very keen to address any regrettable misunderstandings on either side about the delegation’s mandate and activities during its mission in Libya….The ICC expresses its strong hope that the release of the four persons will take place with no delay in the spirit of cooperation that has existed between the court and the Libyan authorities.”

The UN Security Council made a brief statement regarding Melinda Taylor and the four ICC staff members:

The following Security Council press statement was issued today by Council President Li Baodong ( China):

The members of the Security Council express serious concern over the detention in Libya since 7 June 2012 of the International Criminal Court (ICC) staff members, and urge Libyan authorities at all levels and all concerned to work towards immediate release of all the ICC staff members.

The members of the Security Council emphasize that it is the legal obligation of Libya under the Council’s resolution 1970 (2011) to cooperate fully with and provide any necessary assistance to the ICC pursuant to that resolution.

Australia’s Foreign Minister, Bob Carr, welcomed the news, stating that he was “heartened at the strong international support for a swift resolution in this matter.” Carr also reiterated that the Australian government is working to have Talyor’s case expedited but remains cautious and hesitant in commenting on the allegations against the ICC staff members.

Make sure you check out the always insightful Kevin Jon Heller’s take (and the comment section below) on whether or not the ICC staff are entitled to diplomatic immunity. While it is less clear than many (including myself) have made it out to be, Heller concludes that there is a good argument to make that Taylor et al do, in fact, qualify for diplomatic immunity:

I do think there is a persuasive argument in favor of immunity: paragraph 5 of SC Res. 1970, which provides, as part of the Security Council’s referral of the situation in Libya to the ICC, that “the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.”  The cooperation obligation in paragraph 5, I believe, requires Libya to honor the substantive provisions of the APIC; the argument parallels Dapo Akande’s compelling claim that the Security Council’s referral of the Darfur situation implicitly removed Bashir’s Head-of-State immunity.  Basing immunity on paragraph 5 seems much stronger to me than arguing that all members of international organizations have immunity under customary international law.  Moreover, emphasizing paragraph 5 should serve as a stark reminder to the Security Council that it has a legal — and not simply moral — obligation to do everything in its power to end Taylor and her translator’s indefensible detention. Continue reading →

Posted in Defense Counsel, International Criminal Court (ICC), Lebanon, Libya, Libya and the ICC, Russia, Spain | Tagged , , , | 22 Comments

Did the ICC just issue an Apology to Libya?

Posted on June 22, 2012 by Mark Kersten

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.   Continue reading →

Posted in Defense Counsel, Libya, Libya and the ICC | Tagged , , , , | 5 Comments

Libya Explains Detention of ICC Staff to the UN Security Council

Posted on June 22, 2012 by Mark Kersten

(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. Continue reading →

Posted in Libya, Libya and the ICC, UN Security Council | Tagged , | Leave a comment

Failed States and International Judicial Intervention

Posted on June 20, 2012 by Alana Tiemessen

Image (c) Fund For Peace

The new Failed States Index, published yearly by Foreign Policy magazine and The Fund for Peace, is just out and it comes as no surprise that most states with cases at the International Criminal Court are highly ranked as “failed.”  The degree to which a stated is failed is determined by a compilation of 12 indicator scores. Here, I will put aside my skepticism that “state failure” has become a conceptual garbage can to collectivize the world’s governance problems and speculate about the nature and relevance of a correlation between failed states and international judicial intervention.

First, in some ways, the correlation seems obvious. As a “court of last resort,” the intentions of those who designed and continue to support the ICC will argue that it is meant to fill impunity gaps in states that have weakened to the point where atrocities become possible and the rule of law is flawed or entirely absent. Therefore, the ICC will intervene within its legal jurisdiction and consider situations and cases admissible if a) there are grave and mass human rights violations and b) the relevant authorities prove incapable and unwilling to pursue genuine accountability. Three indicators in the failed states index are most relevant to these criteria and states with cases at the ICC have relatively to exceptionally high scores on them:

Former ICC Chief Prosecutor, Luis Moreno-Ocampo, visits a massacre site in the DRC.
Photo (c) Sheila Velez, White Pine Pictures

Vengeance Seeking Group Grievance. This indicator includes a “history of aggrieved communal groups citing injustices of the past” and a “pattern of atrocities committed with impunity against communal groups.”

These factors make atrocities more likely and aptly characterize most of the conflict situations among ICC states, particularly those with an ethnic dimension and where electoral contests spark violent protests. Many of the state failure indicators are consistent causes and consequences of atrocities but, of course, not all failed states are home to such mass human rights violations.

Legitimacy of the State. This indicator includes “resistance of ruling elites to transparency, accountability and political representation…”

The Court’s mandate puts pressure on ruling elites to mete out accountability domestically or find themselves in The Hague alongside their rivals.  In practice, investigations and prosecutions are imbalanced in this regard. For example, ruling elites in DRC, Uganda, Cote d’Ivoire have successfully resisted the pressure for domestic trials but have not been called to account at the ICC for their own alleged crimes.

Violation of Human Rights and Rule of Law. This indicator includes the “emergence of authoritarian, dictatorial or military rule in which constitutional and democratic institutions and processes are suspended or manipulated” and the “outbreak of politically inspired (as opposed to criminal) violence against innocent civilians.”

As alluded to above, the ICC can and will only intervene selectively. Impunity gaps and the absence of rule of law make atrocities and human rights violations possible and necessitate international judicial intervention.

(The Fund for Peace provides more elements of each indicator here.) Continue reading →

Posted in Central African Republic (CAR), Complementarity, Democratic Republic of Congo, International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Kenya, Libya, Sudan, Uganda | Tagged | 1 Comment