Taylor Released! (Though Not Because of Carr) (Updated)

The Australian media is reporting that Melinda Taylor is heading home, having being illegally detained by the Libyan government for 25 days.  That is fantastic news — and for Taylor and her family, it does not matter why she is free. Institutionally, however, the reason for her release matters a great deal.  So it is very important to note that, according to Libya’s representative to the ICC, she is free because of her immunity from prosecution, not because of Bob Carr’s counterproductive diplomacy (emphasis mine):

MICHAEL VINCENT: You were there when she was apprehended initially, but she was never charged, was she, with spying?

AHMED AL-JEHANI: Yes the prosecutor general insisting that he should charge her in crime of spying, but really there is some obstacles in legal procedure, law and even in the international law. I mean that she has her privileges and immunity, which cannot be denied from the prosecutor general. For this reason the prosecutor general, Libyan prosecutor general is still insisting not to bring her before the judge.

We know from the beginning, if she was brought to a judge, Libyan judge, he would release her because she has also her immunity and privileges. Nevertheless, she committed a mistake really. I was an eye-witness when she took and surrendered and hand over documents and letters to Saif al-Islam Gaddafi.

MICHAEL VINCENT: So even though, as she say, she may have made mistakes by handing over these documents to Saif al-Islam Gaddafi, these documents relating to his right-hand man, Mohamed Ismail, you don’t think that she ever broke any laws either Libyan or international?

AHMED AL-JEHANI: Yes, yes communication with the enemy. There is a crime in Libya in the criminal court to communicate with the enemy of the state.

MICHAEL VINCENT: But you believe as a defence lawyer from the ICC she was protected?

AHMED AL-JEHANI: All the elements of this crime is proven really. And she brought a letter written in Arabic and she should be more, what we say, more careful to read, or to bring this letter to an interpreter to know what the contents of this document and this letter.

How can have and bring with you letters and documents without knowing its content?

MICHAEL VINCENT: But you believe her immunity has meant that she cannot be charged in Libya?

AHMED AL-JEHANI: Yes, from the prosecutor she was (inaudible) charges. But her immunity in, what we say, was an obstacle to prosecute here in Libya. So the prosecutor general he realise it, but too late, that he can’t prosecute them before the Libyan courts.

Libya’s acceptance of Taylor’s immunity, however belated, is a welcome development.  But notice two problems with its position.  To begin with, Taylor’s immunity not only prohibits her prosecution; it also prohibited her search and detention.  If Libya recognized her immunity from the beginning, it made a calculated decision to violate its cooperation obligations when it searched and detained her.  Moreover, if Libya knew that it could not prosecute Taylor, it had no legitimate reason to keep her in custody for nearly a month — its sole remedy for her alleged misconduct was to expel her from Libya and file a complaint with the ICC.  That Libya did not do so indicates that Taylor’s detention was motivated by a desire to send a message to the ICC (one it received, as indicated by the credibility-damaging “apology”) and to try to squeeze useful information out of Taylor.

The critical question going forward, of course, is what this episode will mean for the relationship between Libya and the ICC.  The Libyan representative makes clear elsewhere in the interview that Taylor will not be allowed back into Libya.  Will it allow other representatives of the OPCD to meet with Saif?  If so, will it impose such onerous restrictions on such meetings that it will make it impossible for the OPCD to represent him effectively?  There is certainly reason to be concerned about the latter, given that Libya apparently believes — still! — that it is acceptable to search an OPCD attorney and read confidential client documents.  Moreover, given how easily the ICC allowed itself to be blackmailed into making a damaging statement about Taylor’s detention, Libya will have little incentive in the future to cooperate more readily with the Court.  If the ICC won’t stand up to Libya on an issue as critical to the Court’s credibility as the ability of its defence attorneys to represent suspects, what will it stand up for?

In the end, we should all rejoice at Taylor’s release.   But the ICC has done itself considerable institutional harm by not insisting — again and again and again — that Libya had no right to search, detain, or prosecute Taylor because she had immunity.  I hope the Court has learned its lesson.  Otherwise the bully will be back again for its lunch money.

PS. I can’t resist pointing out that Carr’s bumbling diplomacy could easily have snatched defeat from the jaws of victory.  The ICC originally wanted Libya’s agreement to release Taylor to remain confidential until she was released.  Enter Bob Carr (emphasis mine):

Ms Taylor’s father, John, said he was ecstatic at the news and that they had not expected her release until after this weekend when elections were planned.

Mr Taylor told the National Times he and his wife believed that the Libyans were unlikely to make any decision until after consulting with their cabinet.

“And because of the disparate voices out of Libya we were concerned we might not get anywhere before the elections this weekend – the government might not want to make decisions,’’ he said.

But he said he had received a phone call from Ms Taylor’s boss at 1am today with the news Melinda’s release was imminent.

“We were supposed to keep it under wraps but [Foreign Minister] Bob Carr broke it this morning so the whole world knows,’’ he said.