Has the ICC Learned Its Lesson from Melinda Taylor’s Detention?

by Kevin Jon Heller

The Pre-Trial Chamber has ordered the Registrar to arrange a privileged visit between al-Senussi and his ICC lawyer, Ben Emmerson, in Libya. On the positive side, the PTC seems to have learned something from Libya’s abhorrent detention of Melinda Taylor. Witness the following language in the order:

15. Taking into account the purpose of the visit, the provisions of the ad hoc arrangement should be appropriate to ensure, in particular, the right of Mr Al-Senussi to communicate freely with his counsel in confidence, in  accordance with article 67(l)(b) of the Statute.

16. Therefore, the arrangement should include all practical arrangements necessary to ensure the unhindered entrance of the Defence team and their belongings to Libya as well as their appropriate treatment and protection during their stay on Libyan territory. This treatment should explicitly include, at a minimum, immunity from arrest and detention and from search of personal baggage for the individuals participating in the visit, the inviolability of the Defence documents, and the non-interference with and guarantee of the privileged nature and communication between Mr Al-Senussi and his Defence during the meeting. The Chamber recalls that, in conformity with international law, such privileges and immunities are without prejudice to the obligation of those participating in the visit to respect the national laws of Libya. If Libya has reasonable grounds to believe that the Defence of Mr Al-Senussi has violated Libyan law, Libya shall, however, not take any action that may impact on the necessary treatment that must be accorded to the Defence under the Statute, unless and until the Presidency of the Court has, upon prompt official request by Libya, waived the relevant immunity.

It’s good to see the PTC insisting on a privileged meeting and immunity for Emmerson and the other members of the defence team. But I’m baffled by the fact that the order is directed to the Registrar and not to Libya; indeed, the PTC denied the defence’s request for finding Libya in breach of its obligation to cooperate with the Court. The Registrar, however, is not the problem. Libya is. The Registrar has not prevented Emmerson from meeting with al-Senussi in the seven months since the PTC first requested a privileged visit. Libya has.

There is no reason to believe that Libya will suddenly start to cooperate with the Registrar. The only consistent aspect of Libya’s behavior has been its contempt for the Court. Will the PTC ever get around to ordering Libya to respect al-Senussi’s right to counsel?

Stay tuned.


One Response

  1. Kevin,
    I confess that I haven’t tracked this very closely.  Is there some hint that the Court questions its inherent judicial authority over Libya as a nation-state?  In other words, because the Security Council referred the “situation in the Libyan Arab Jamahiriya” to the Court and decided “Libyan authorities shall cooperate fully and provide any necessary assistance to the Court” does the Court perhaps doubt its inherent authority, or perhaps its authority as an agent of the Security Council (that “remains actively seized of the matter”), to directly order the nation-state of Libya to do anything?  Perhaps the Court believes that only the Security Council can supplement its previous directive to Libyan authorities or the state of Libya or can determine the sanction for their failure to cooperate with the Court’s processes?  
    My recollection of the Rome Statute is that it imposes obligations on states and delegates authority to the Court but does not empower the Court to assume authority over states party to the Rome Statute.  Even if it did, Libya’s obligations toward the Court on this matter stem from the U.N. Charter rather than the Rome Statute.  It could be argued that while the court has inherent judicial power over individuals that come to be within its jurisdiction, it does not have such power over states and their obligation to cooperate.  
    I’d be happy to know if I am missing something, even if obvious to someone whose research focuses on the Court and its processes.

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