Foreign Minister Bob Carr Goes Shopping in the Department of Bad Ideas

by Kevin Jon Heller

So, you’re Bob Carr, Australia’s Foreign Minister.  You’ve decided you want to free Melinda Taylor, ICC lawyer, detained and imprisoned by the Libyan government.  You fly to Libya to meet with government officials.  Do you demand Taylor’s immediate release, citing the cooperation provisions of SC Res. 1970?  Do you remind the officials that their consistent refusal to allow Saif legal representation is undermining the government’s attempts to convince the international community that Libya has a credible criminal-justice system?  Do you threaten the emnity of the Australian government if Libya continues to wrongly detain an Australian citizen?

No, of course not.  Instead, according to an interview with Australian radio, you parrot the Libyan line and demand that the ICC apologize for Taylor’s actions:

BOB CARR: I accept absolutely the goodwill of the leadership and I believe that they want the detainees released. There’s no advantage for them in continuing the hold the four detainees or employees of the International Criminal Court.

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.

I believe that it would have been far better for the ICC to have settled with the government of Libya on the procedures before they sent Melinda Taylor and her colleagues into Zintan.

[snip]

ALEXANDRA KIRK: So you’re offering to act as an intermediary?

BOB CARR: I’m happy to have Australia act as an intermediary, to see that the concerns of what is a democratic leadership at the head of a transitional council in Libya — in particular their prime minister, their foreign minister, their deputy prime minister.

Their concerns are reflected in ICC procedures and practices and protocols when it comes to what is an extremely emotional case inside this country, namely the treatment of the person who is now the embodiment of the dictatorship that oppressed and exploited the people of Libya for so many decades.

ALEXANDRA KIRK: How quickly do you think Melinda Taylor and her colleagues could be released?

BOB CARR: Too many imponderables to settle on a timetable or to place timing on the roadmap. But I think we’ve got a roadmap in place, and there is goodwill from the prime minister of Libya, remarkable goodwill.

Reading Carr’s interview literally left me so angry that I was speechless — although I’ve since regained my voice.  Carr could not have done a better job shilling for the Libyan government if he was on their payroll.  Emphasize the good intentions of the Libyan government?  Check.  Blame Taylor for her predicament?  Check.  Put the responsibility for a solution on the ICC?  Check.  Remind everyone that Saif was a really bad guy whom Libyans hate?  Check.

And notice what is not in the interview: even the slightest blame for the Libyan government for wrongfully detaining an Australian citizen who is working on behalf of an international organization — one to which Australia is ostensibly committed.  Nor is there any mention of SC Res. 1970, cooperation obligations, or the international outcry against Taylor’s wrongful detention.  Indeed, Carr does not even bother to actually identify what Taylor supposedly did wrong — all we get are vague generalities about deficient “protocols” and “conventions” and “procedures.”  That’s a pretty significant omission, particularly given Libya’s consistent refusal to provide Saif with any kind of legal representation and its previous refusal to let the OPCD talk to Saif about the conditions of his confinement in private.  (And recall that, in the few moments during the OPCD’s previous visit where the Libyan government official left the room, Saif quickly implied that he had been mistreated by his captors.)

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.

Note to Bob Carr: you claim that “there is goodwill from the prime minister of Libya, remarkable goodwill”?  Here’s a thought: perhaps you should ask him to make use of that goodwill and release Taylor immediately.

http://opiniojuris.org/2012/06/20/foreign-minister-bob-barr-goes-shopping-in-the-department-of-bad-ideas/

6 Responses

  1. I agree with all what you write Kevin. But I think it has to be diluted. I don’t think we can blame Carr for his job. He’s doing it and is trying to help with the release of the 4 ICC workers. It’s pretty valuable. what is more critical is that we are in a full process of negociation, that should be confidential and he goes public on this matter.

    On the other way what ICC did until now? Ex Prosecutor Ocampo in a press release agreed that Melinda Taylor should be under investigation… no word of any diplomatic immunity. And what about the charges of spying? the only one denying it is Keita, the chief of the OPCD in an article published in le Monde. The last press relase of the ICC dated June 15th is already an apology and does not deny anything …

    At this stage, we are not talking anymore  about 1970 SC resolution, international criminal law or Rome statute. We know Lybian felt   “a breach of trust” by the ICC. Of course, the detention is illegal and should not be. Let’s forget law and let’s focus on human being relationships: what Carr is doing is the right thing: trying to reconcilate two very angry parties. It’s what we call mediation. And I hope ICC will understand that.    

  2. Jane,

    I’m sorry, but I disagree.  Carr is not trying to reconcile angry parties; he is serving as Libya’s mouthpiece, demanding a “solution” that would not only undermine the Court’s legitimacy, but would also make it impossible for Taylor and others like her to do their jobs — represent unpopular clients.  If the ICC accepts his “solution,” the Court will never again be able to operate in a hostile country.

    As for LMO and the ICC’s muted reaction, I couldn’t agree wit you more.  It’s shameful.

  3. Kevin,

    Things will have to change by the ICC after the release of Melinda. In my opinion, the double role of Melinda (employee of the ICC and appointed co-counsel of Saif) triggered this crisis. Do you really think that OPCD and OPCV can carry out theses two charges without infringing the principle of independency of the lawyer?  

    Did you read the extremely critical briefs written by the OPCD (therefore by Melinda) and adressed to the Lybian in the conflict of saif’s jurisdiction? And the fight between LMO and OPCD?

    Either you are an independant lawyer either you are an employee of the ICC. You cannot be both. So the Court will continue to send its people part of the registar office but this unhealthy practice will have to stop. 
      
    This  does not change a thing about the illegality of the detention.. It’s a very complicated problem furthermore with a country which functionned with a political justice  for the past 40 years . And it still does. Melinda is the sole victim  …    

  4. Jane,

    Do you really think Taylor would have not been detained if she was a private attorney appointed by the Court to represent Saif?  How would Saif have chosen her in the first place, given what has happened?  Do you think she would have even been allowed into Libya if she had not been part of the OPCD?

    I think previous tribunals demonstrate that, to be effective, the defence bar has to be an organ of the Court.  At least then the Court has some authority to ensure that the defence can operate effectively — which is particularly critical for a court like the ICC, which will have suspects all over the world, many of whom will be disliked by the states in which they are located.

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