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

by Kevin Jon Heller

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.

It is hard to overstate Carr’s recklessness.  If Libya had reneged on its deal, Carr would have been squarely to blame.  I miss Kevin Rudd.  He might have a planet-sized ego, but at least he has the skills to back it up…
UPDATE:  Libya’s deputy foreign minister has said that “[i]f the ICC wants to send another team they will have to send one that respects Libyan sovereignty.”  Let’s review what Libya means by respecting its sovereignty: the attorney can be searched; attorney-client communications can be read; interviews with Gaddafi must take place in the presence of a government official; the attorney cannot leave with any communication by Gaddafi concerning his condition or the conditions of his confinement; the attorney cannot have a recording device or camera to document Gaddafi’s statements or the condition of his confinement.
In other words, the ICC is free to send another team — just as long as that team promises not to provide Gaddafi with even the rudiments of a meaningful defense.
http://opiniojuris.org/2012/07/02/melinda-taylor-released-though-not-because-of-bob-carr-or-the-apology/

9 Responses

  1. Really enjoyed the post, as always. Nevertheless, I don’t think that you can rule out the role of the apology in getting the staff members released. It seems quite clear that the Zintanis and Libyan authorities wanted the apology. In Zintan today, President Song explicitly said “I wish to apologize…” and I’m not sure he would have if it had not been demanded of him. What seems entirely possible is that a recognition of Taylor immunity by Libyan authorities was part of the negotiated deal to get Melinda Taylor and the ICC staff out of Libya. It certainly wouldn’t surprise me if that was the case. 

  2. So it’s not enough to take Taylor hostage; as part of the ransom, the ICC has to humiliate itself, as well.  I think this is the least confident I have ever been that the ICC can succeed as an institution.

  3. It’s also revealing, as I noted in the post, that the Libyan representative acknowledged that Libya always knew it couldn’t prosecute Taylor.  So it didn’t even need to be convinced to recognize her immunity — it simply didn’t care.  Trading an apology for Libya’s willingness to abide by international law (for now; there will definitely be a next time) strikes me as a horrible idea…

  4. I think you might be a bit too harsh on the ICC here. What could it do? Carr, as you pointed out, put the Court in a horrendous position by publicly saying that if it apologized, the staff would be set free. If they did it, they had a chance. If they didn’t, the Court would be blamed for prolonging their detention (wrongly, of course). Moreover, they got pretty dismal support in the international community. I still believe the Security Council could have and should have played a bigger role in demanding the return or Taylor et al.

    Regardless, I agree that it’s highly problematic for the Court. I was certainly taken aback that President Song did not simply state the Court’s “regret” but full-on apologized while in Zintan. It seems clear that they Court wouldn’t choose to do that unless it was specifically requested/demanded. 

    The wider picture is also troubling. After months of time, energy and money invested into justice in Libya the Court could end up completely empty handed.

  5. Just to be 100% clear, I am merely speculating that the apology and perhaps the statement regarding Taylor diplomatic immunity could have been part of a bargaining process to get the staff released. I’m not saying that this did happen, but that it could have very well been the case. 

  6. I could forgive the first statement, because I agree with you that Carr put the ICC in a bad spot — though I would have worded it differently, avoiding the profuse thanks for Libya’s cooperation it contained.  But the apology today is just inexcusable.  Why would any state ever cooperate with the Court after this, unless it’s investigating rebels?

    I completely agree about the Security Council.  But that still doesn’t excuse the ICC’s actions.  Freeing Taylor is important, but the Court’s long-term viability is more important.  The ICC has basically guaranteed that more of its staff will be taken hostage in the future.  What would it do then? It’s easy to sell out the defense, because international tribunals have always been hostile to that side of the profession. But let’s assume a prosecutor was taken hostage. Would the ICC, as a condition of having her immunity recognized, pledge to pull her from the case? To mount an investigation of her actions? To only send prosecution teams that would abide by the investigated state’s “national security” considerations? Honestly, you might as well not have an ICC if it is going to let those whom it is investigating set the ground rules. In that case, the Court will truly become an international criminal court for rebels — and rebels only.

    To return to your question, I think that the Court should have told Libya to acknowledge Taylor’s immunity and promised to investigate Libya’s allegations upon her return.  That’s it.  And I think the judges should have invoked their plenary authority and suspended Libya’s admissibility challenge until such time as she was released.

  7. As I think Kevin mentioned a while ago, this episode speaks volumes about how the ICC views defense attorneys, including those in OPCD. 

    Although it is very welcome news that Ms. Taylor has been freed,  anytime there is controversy involving the Court, some constituency therein always seems ready to blame the defense attorneys.  A more banal example: the OTP’s claim, during the second stay of the Lubanga trial, that the defense could no be trusted to keep information concerning the identity of an intermediary confidential.

    Dedicated defense attorneys are integral to the functioning of the ICC, but after this shameful episode, I am worried that the message for defense attorneys is that they are better off laying low in the Hague.  

      

     

  8. A new institution finding its way and this criticism helps it get it right for the next time.

    This quote

    “Let’s review what Libya means by respecting its sovereignty: the attorney can be searched; attorney-client communications can be read; interviews with Gaddafi must take place in the presence of a government official; the attorney cannot leave with any communication by Gaddafi concerning his condition or the conditions of his confinement; the attorney cannot have a recording device or camera to document Gaddafi’s statements or the condition of his confinement.”

    made me think of another country besides Libya.  No need to Git mo excited about the Libyans.

    Best,
    Ben

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  1. […] 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 […]