A Thought Experiment About ICC-State Cooperation

by Kevin Jon Heller

I have to admit, I’ve been very surprised by the negative reactions I’ve received concerning my belief that the ICC should not have expressed regret or apologized to Libya for Melinda Taylor’s (alleged) misconduct.  It seems that most people — or at least most of the people who have emailed me — think that the Court should have done anything it could to get her back, even if its actions mean that defence attorneys will find it far more difficult to effectively represent their clients in the future.

I certainly understand the sentiment.  I am delighted that Taylor is free.  But I continue to believe that the statement and the apology were a mistake — and that the ICC’s willingness to bend over backwards to placate the Libyans was a reflection of defence attorneys’ second-class status at the Court and in international criminal law more generally.  Let’s not forget what the Court said in its original statement, which was supposedly about the need to free Taylor: “[t]he 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 message was clear: it’s not nice to detain defence attorneys, but failing to prosecute suspects is even worse.

As I noted in an earlier post, I don’t expect people who have no experience with criminal defence to understand just how damaging the ICC’s actions have been.  So let’s turn the situation around and imagine a scenario that is all too possible — the detention of a prosecutor by a state being investigated for serious crimes:

High-ranking government officials in Rantania are widely believed to have orchestrated a genocidal campaign against an indigenous tribe suspected of supporting a rebel group funded by Aprophe, Rantania’s neighbor.  In early 2013, the Security Council refers the situation in Rantania to the ICC.  As part of the  Office of the Prosecutor’s investigation into the situation, a young prosecutor, Alexandra Evans, travels to Rantania on a fact-finding mission — talking to local human-rights NGOs, interviewing victims, and meeting with government officials.  After implying a bit too strongly that a particular government official was involved in the genocide, Evans is detained by the Rantanian intelligence service and her bag searched. Intelligence officers discover a list of suspects provided to her in confidence (and anonymously) by one of the human-rights NGOs.  Evans is promptly charged with espionage on the ground that the “accusations” on the list are an attempt by Evans and the NGO to subvert the lawful government of Rantania.  She is imprisoned and repeatedly interrogated concerning the identity of the NGO that gave her the list.

How would the ICC respond to such a situation?  Would the Court weakly assert that Evans was entitled to complete immunity from detention, search, and prosecution?  Would the Court quickly issue a statement expressing its “deep regret concerning any events that may have given rise to concerns on the part of the Rantanian authorities” and insist that the Court “has no intention of doing anything that would undermine Rantanian national security”?  When Rantanian government officials visited the Court to discuss Evans’ detention, would the Court “express its appreciation for the mutual trust confirmed in the meetings” and “welcome Rantania’s commitment to cooperate fully with the Court in accordance with the Security Council referral”?  Would the Court insist that it “takes very seriously the information reported by the Rantanian authorities,” “understands the importance of the espionage allegations to the government,” and “attaches great importance to the principle that its staff members, when carrying out their functions, should also respect national laws”?  Would the Court promise to “remain in close contact with the Rantanian authorities to inform them” of any progress it makes in its internal investigation of their espionage allegations?  And once Rantania finally agreed — after nearly a month — to release Evans, would the President of the Court travel to Rantania to apologize in person for Evans’ actions?

Unless you can answer each and every question with a resounding “yes,” the conclusion is inescapable: the ICC’s willingness to appease Libya is due, at least in part, to the fact that Melinda Taylor is a defense attorney, not a prosecutor.


7 Responses

  1. You are absolutely right Kevin. ICC should not have expressed regret or apologized to Libya and defense attorneys have a second-class status in international criminal law, which is pretty clear in your fictional scenario.
    I worked in a defense team at the ICTR. The willingness of Rwanda government to cooperate with defense teams is similar to the willingness of Zintan authorities to let the OPCD represent Saif effectively. Unfortunately, this happens because international community is more concerned to punish the “bad guys” than to provide the defense teams with good working conditions, which would probably result in more acquitted defendants. The point is: the system is not made to provide fair chances to defendants to be acquitted because international criminal justice is made to punish these “bad guys”. The countries that finance the system want to see defendants in jail. If there are many acquitted (and there are already 10 at ICTR), they think it’s not worth to finance such expensive tribunals. While we don’t change this logic, defense teams will always be treated with a second class status and worst working conditions that the prosecution team.

  2. I don’t know if I agree with you on this KJH.

    The whole situation seems a lot more complex than above.

    Especially when it’s seeming that the Libyan govt are more likely to be saying/doing what they have to appease the rebels who were holding Melinda Taylor. Therefore securing her release.
    I don’t suspect it would have been any different for an employee of the prosecutorial arm of the ICC.
    I would suspect they were all aiming for the safe release of those held.

    Or maybe I’m being too optimistic?

  3. …and re: The ICC, again maybe thinking too optimistically, but I’d hope they would be exactly the same under the circumstances for someone from the OTP.

    In Melinda’s case, I think the rebel element, changes the circumstances immensely.

  4. With respect, the likelihood that the ICC’s “statement of regret” would have been issued had Taylor been a prosecutor is precisely zero.

    And I fail to see the rebel/Libya argument.  The ICC should pander to Libya regarding the ability of a defence attorney to do her work because Libya cannot control the rebels who were actually holding her — and who continue to hold Saif?  If that’s the case, the OTP should be constantly and loudly insisting that the ICC must prosecute Saif itself.  But of course it’s not — in each and every motion it supports Libya’s right to prosecute Saif domestically. 

  5. I am with KJH on this one. It is for the same reason that states are reluctant to negotiate with terrorists/hostage takers. Ever time you concede in an individual case – you put yourself in much worse position in any similar situation in the future. ICC is an international entity its policy should not be different to that of states. It should hold ground – especially when its in the right legally – and not concede. “Apology” is a very strong word in international law. The US bombs 25 Pakistani soldiers and offers only “regret”. Of course, it’s unfortunate when people like Melinda Taylor find themselves in the middle of such international storm, and it is her that’s doing jail time. But then again, it’s not like her life was at stake. She would have been freed sooner or later through other means. And the stakeholders should have done it in a more graceful manner. This was shameful!

  6. On top of what I said before, I do agree with you in regards to the apology.
    I don’t think they should have even released a statement of regret. She was there to do her job after all.

    I just think with the unfortunate role regional politics is playing there, it’s not as cut and dry as it seems.

  7. I agree with KJH’s conclusion. In fact i already discuss it with friends. Before the ICC, there is a kind of scale in which the OTP is on the top and the OPCD on the low even regarding to the means that they have at their disposal.

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