Amidst the memorials to 9/11 yesterday came more tragic news with mob attacks on the U.S. embassy in Cairo and the consulate in Benghazi, including the deaths of U.S. Ambassador J. Christopher Stevens and three other Americans.  My condolences go out to the victims’ families and the U.S. Foreign Service community, the Marines who guard them, as well as the local security and staff who accept the risk of working in places that are clear targets for violence.  Stevens was the first U.S. Ambassador killed on assignment since 1979, but it seems all too frequently we get stories of attacks on diplomatic or IO premises, from those in Syria last year, to the 2003 attacks on the UN Assistance Mission in Iraq to the 1998 bombings of the U.S. embassies in Nairobi and Dar es Salamm.  For my part, I will never forget walking the grounds of the U.S. Embassy in Nairobi several weeks after the bombing (before it was torn down), and witnessing first hand the horror perpetuated there.

For centuries, the international legal order has existed to regulate relations among States (and that remains true whatever one makes of its evolution to accommodate the regulation of non-State actors as well).  To allow “relations” among States, however, requires means and methods of inter-State communication, of which embassies and consulates are the most visible symbols.  As the ICJ put it in the case of US Diplomatic and Consular Staff in Tehran (paras 38-40):

[t]here is no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies . . . [T]he institution of diplomacy, with its concomitant privileges and immunities, has withstood the test of centuries and proved to be an instrument essential for effective co-operation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means . . . [and] the inviolability of consular premises and archives, are similarly principles deep-rooted in international law…

Thus, violations of the diplomatic or consular mission premises like those that occurred yesterday are clearly unlawful under international law.  The more challenging question is whether Egypt or Libya can be held responsible for these attacks.  There are at least two ways this could occur:  (a) via the law of state responsiblity; or (b) via their treaty obligations.

Mark Kersten has the scoop at Justice in Conflict:

So why, then, did Mauritania do it or, perhaps more accurately, how did Libya convince Mauritania to change its tune?

Having reached out to various contacts to see whether anyone knew what had changed Mauritania’s mind, a number of individuals quickly responded that there was only one possible motivation: money. While certainly not far-fetched, I thought there must be something else to the story – economic cooperation, perhaps some oil concessions, or the development of stronger geopolitical ties. Turns out I was wrong and it had everything to do with money.

According to numerous sources, including Der Spiegel and the Libyan Herald, Libya paid 200 million US dollars in order to guarantee Senussi’s transfer. While some Libyan officials have denied that there was any direct transfer of cash, rumours persist that the money was transfered to Mauritania via an off-shore account.

Importantly, the buying the custody of a former Gaddafi regime official would be in line with recent practice. The extradition of former Libyan Prime Minister, Baghdadi Al-Mahmoudi, in June was guaranteed by a payment of “a sum of $100m and another $100m as an interest-free loan” to Tunisia. Interestingly, Libya’s Finance Minister, Hassan Zaglam, was on the plane that brought Senussi back to Libya. This fact has only fueled speculation that Libya paid Mauritania off. After all, it is certainly uncommon for Finance Ministers to be involved in extradition negotiations.

Great work by Mark.  What a bizarre and wasteful move by the Libyan government — as Mark notes, $200m is more than the ICC’s entire yearly operating budget.

Just when you thought you’ve seen everything — you haven’t:

According to a statement posted on the website of the Special Court for Sierra Leone, Judge El Hadji Malik Sow, a Senegalese jurist who served as alternate judge for Trial Chamber II, has agreed to testify in the wake of the defense appeal.

A guilty verdict was handed down against Taylor last May for his role in the Sierra Leonean conflict.

It can be recalled that following the end of Presiding Judge Richard Lussick’s reading of the final verdict in Taylor’s trial in May, Judge Sow started to speak and people seated in the public gallery heard a few words before the microphones went off.

[snip]

In their appeal document dated August 17, 2012, Taylor’s defense council said that there was a need to proffer other evidence in their appeal motion.

“The defense intends to call as witness on appeal, former Special Court Justice El Hadji Malik Sow. He is expected to testify on his statement that there were “no deliberations” as is alleged in Ground of Appeal 36 of the notice of Appeal, including his presence (or lack thereof) at any purported deliberations amongst the justices of Trial Chamber II.

“The defense inquiry through justice Sow will be limited to establishing the fact of their being no deliberations as alleged in Ground of Appeal, and will not extend to the substance or any discussion between Justices which might arguably be viewed as part of a purported deliberative process,” the appeal document revealed.

In furtherance, Justice Sow will also testify and expand upon his statement, in respect of Ground of Appeal 37, “that the whole system is not consistent with all the values of international criminal justice,” according to the appeal.

If Judge Sow testifies, it would almost certainly be unprecedented.  To the best of my knowledge, no international judge has ever testified on behalf of a defendant — or has testified at all, for that matter.  (Feel free to correct me, readers.)  But I cannot imagine that the Appeals Chamber will actually allow Judge Sow to testify.  Rule 29 of the SCSL’s Rules of Procedure and Evidence specifically provides that “[t]he deliberations of the Chambers shall take place in private and remain secret.”  Taylor’s attorneys are clearly trying to get around Rule 29 by claiming that Judge Sow will testify only to the absence of deliberations, but the distinction is illusory: the purpose of the rule is to ensure that what happens in chambers remains private, and that purpose would be no less defeated by Judge Sow testifying that there were no deliberations than by him testifying that the deliberations were flawed.  Moreover, nothing in the SCSL statute explicitly requires deliberation between the judges; Article 18 simply requires the Trial Chamber to produce “a reasoned opinion in writing” in support of its judgment.  If a majority of the judges can produce a reasoned opinion without sitting down together to deliberate, Article 18 is satisfied.

It is also difficult to see why the Appeals chamber would allow Judge Sow to testify concerning his belief that the “whole system” of the SCSL “is not consistent with all the values of international criminal justice.”  If his proposed testimony is based on the Trial Chamber’s deliberations (or lack thereof), it would be barred by Rule 29.  And if it is based on Judge Sow’s personal view of the trial or the SCSL system in general, I don’t think it would be relevant.  International tribunals notoriously admit any evidence that has probative value, but I don’t see how the reactions of an alternate judge to what takes place in open court could have any probative value whatsoever.  The Appeals judges are perfectly capable of examining the record for themselves to determine whether Taylor received a fair trial.

UPDATE: Annex A to the defence’s motion to disqualify a number of Appeals judges contains a screenshot of how the SCSL’s live transcription system recorded Judge Sow’s statement.  That screenshot has Judge Sow saying “[t]he only moment where a Judge can express his opinion, is during the deliberations or in the courtroom, and pursuant to the Rules, where there is no ^ deliberations, the only place left for me in the courtroom.”  I have no idea what the symbol means; it may be that Judge Sow said a word but the system did not pick it up.  In any case, my speculations about the presence of the symbol in an earlier version of this post were obviously unjustified, so I have amended the post accordingly.

What I said last month, about Mauritania refusing to extradite al-Senussi to Libya?  Never mind:

The man accused of having helped orchestrate some of the worst crimes committed by the regime of ex-Libyan leader Moammar Gadhafi has been extradited back to Libya, according to a Mauritanian government statement.

The communique carried by national radio and on Mauritania’s official news agency said Abdullah al-Senoussi, who ran Gadhafi’s feared intelligence service, was sent back to Libya, giving no further details. An official in the ministry of foreign affairs, who requested anonymity because he was not authorized to speak on the matter, said that al-Senoussi boarded a special flight at 9 a.m. local time (0900 GMT) and was headed to Tripoli.

This development makes it far more likely that Libya’s admissibility challenge to the ICC’s case against al-Senussi will succeed.  Libya is obviously no longer “unable to obtain the accused” for purposes of Article 17(3) of the Rome Statute.

Libya’s ridiculous stall tactics regarding its admissibility challenge appear to have paid off.  The big losers are France, which also wanted to prosecute al-Senussi, and al-Senussi himself, who will no doubt receive an unfair trial in Libya.

South Africa recently decided that, in order to avoid consumer confusion, goods imported from the Occupied Palestinian Territories must include special labels that make clear they were not produced in Israel.  Israel’s outrage was predictable — but its rhetoric was anything but:

The Israeli Foreign Ministry said it would summon South Africa’s ambassador to lodge a protest over the decision on labelling goods from Jewish settlements in the West Bank.

“Unfortunately it turns out the change that has begun in South Africa over the years has not brought about any basic change in the country, and it remains an apartheid state,” Deputy Foreign Minister Danny Ayalon said in response to Pretoria’s move.

“At the moment South Africa’s apartheid is aimed at Israel,” added Ayalon, a nationalist hardliner in right-wing Prime Minister Benjamin Netanyahu’s governing coalition.

Substantively, Israel’s criticism is absurd.  The South African government isn’t even banning settlement goods, which it would be well within its rights to do; it is simply making it possible for consumers to avoid purchasing goods produced in settlements that it — like nearly every other government in the world — considers to be illegal.  How that qualifies as apartheid is anyone’s guess.  (The Reuters article notes that Ayalon didn’t bother to explain his claim.)

Israel, of course, is free to disagree with South Africa’s decision.  But you’d think that a government that is often accused of pursuing apartheid-like policies would avoid using the rhetoric of apartheid itself — especially to describe a South African state that is still struggling to overcome its racist past.  Israel has obviously decided that it has no reason to maintain even the semblance of cordial diplomatic relations with South Africa.  It better be right — because South Africa is unlikely to forget Israel’s offensive rhetoric anytime soon.

As I noted last week, I have just finished a long chapter critically assessing the work of the Human Rights Council-created International Commission of Inquiry on Libya (COI).  My basic conclusion is that although the COI generally did an excellent job, particularly in terms of its fact-finding methodology, it seems clear that it was less interested in holding the rebels — the thuwar — accountable for serious violations of international law than the Qadhafi government.  I thought readers who don’t have the time to read the entire chapters might be interested in what I consider the COI’s most serious oversight: its failure to consider whether the Misratan thuwar‘s treatment of the inhabitants of Tawergha, a city that Qadhafi forces used as a base for military operations against Misrata, qualifies either as the crime against humanity of persecution or as genocide.  I think a strong case can be made for both.

Before getting to persecution and genocide, it is important to note that the COI condemned the Misratan thuwar‘s attacks on the Tawerghans in no uncertain terms.  Here are a couple of illustrative paragraphs from the COI’s final report:

485. The Commission finds that the Misrata thuwar targeted the Tawerghan community in a widespread and systematic manner.

486. As detailed above, the Commission finds that Misrata thuwar have extra-judicially executed, otherwise unlawfully killed and tortured to death Tawerghans during Phase II and III of events in Libya. The Commission found that Misrata thuwar have arbitrarily arrested Tawerghans in locations across Libya, including but not limited to Tawergha, Al Khums, Tripoli and Sirte; that, in the majority of cases, they have transported them to Misrata, where most are held in various detention centres; that some of these arrests have been accompanied by extortion and looting.  The Commission found that Misrata thuwar tortured Tawerghan men on multiple occasions and subjected them to cruel, inhuman or degrading treatment.

487. The Commission finds that, in respect of Tawergha itself, the Misrata thuwar have looted and destroyed properties during the period of time that hostilities were ongoing. It also found that the continuing destruction of Tawergha in the post-conflict period has been done with the intent of making Tawergha uninhabitable and so preventing the return of displaced Tawerghans.

488. The instances of cruel treatment and pillaging which occurred during the hostilities constitute a war crime. Where they have continued since, they violate international human rights law.  The torture and killing committed against the Tawerghans by the Misrata thuwar, and other Misratans, would each individually, given the widespread and systematic manner in which they have occurred here, be capable of constituting a crime against humanity and the facts indicate crimes against humanity have taken place.

Those paragraphs, however, simply accentuate the COI’s failure to consider persecution and genocide…

I honestly believed that the Libyan government couldn’t make a public claim more ridiculous than the one about the Swatch with a hidden camera and GPS locator.  Silly me for my lack of imagination!  Mark Kersten, whose Justice in Conflict blog should be prominently featured in your newsreader, called my attention to this recent gem from the prosecutor in charge of Saif’s case (offered during an interview with al-Arabiya):

[Interviewer]: Mr.Milad, what about the case from a legal perspective and what had happened with the ICC delegation? Can you please briefly explain it to us? What was the serious misconduct that was committed by this delegation sent by the ICC? We heard about pens containing cameras, we heard about documents signed en blanc…

[Milad]: Here is what happened. As I am the coordinator for this case, I went to the ICC delegation in the Hotel, then, we went to Zintan. They were put under an administrative search. During the search, a video-recording pen was found; the Prosecution was, by coincidence, present on site in order to continue the interrogation of Saif Al-Islam. The Prosecution was informed about this incident, then the President of the Prosecution, who was in charge of the investigation, ordered the continuation of the interrogation. He decided to take all necessary measures fearing for the life safety of the Accused. The group’s main preoccupation was the possibility of Saif Al-Islam’s assassination or poisoning, because there was, in addition to the pen, a watch containing a camera and a GPS.

News headlines running across the screen. Milad Abdul-Nabi Dekali: We were afraid that the ICC team would assassinate or poison Saif Al-Islam.

[snip]

What did the ICC team say when they were confronted with this evidence?

M: they confessed to these accusations, in detail and in the presence of a French lawyer that was appointed by the ICC.

So, the Libyan government now claims not only that Melinda Taylor and her team were in Libya to kill Saif Gaddafi, but also that they confessed to wanting to kill him.  Yep, that’s convincing.  After all, who would want Saif dead more than his formally-appointed OPCD attorneys?

For you, dear reader, I risked life and limb to obtain the schematics of the video/GPS Swatch that the OPCD’s interpreter used to undermine Libya’s national security.  After assuming deep cover, prowling some of the world’s most dangerous locales, and making contact with too many shadowy characters to count, I finally succeeded.  Here it is — look at your own risk:

The threat is self-evident.  Thank God for the Libyan government’s vigilance!

At Justice in Conflict, Mark Kersten calls attention to a recent motion filed by the Libyan government asking for more time — read: stalling — to reply to the OPCD’s response to its admissibility challenge.  The government doesn’t actually want a deadline to respond; it would like to have 18 days from whenever it gets around to appointing a new Ministry of Justice team (para. 14).  That request in itself is a mockery of the ICC’s rules for filing motions and responses, but what is particularly chilling about the motion is the way that it attempts to use the Libyan government’s illegal detention of Melinda Taylor and her team as grounds for removing the OPCD from the case.  I can’t cut-and-paste the relevant paragraphs — thanks, Registry! — so I’ll summarize them:

8. This paragraph points out that Taylor and her team were detained because the Libyan government feels their actions threatened Libya’s national security.  It also notes the ICC’s initial statement “deeply regretting” those actions.

9. This paragraph notes that the ICC promised to investigate the OPCD’s actions.

10. This paragraph complains that the ICC has not updated the Libyan government about the investigation and suggests that the OPCD should not be allowed to continue to represent Saif Gaddafi because “communications between the Libyan Government and the OPCD appear to have irretrievably broken down,” casting into doubt “the OPCD’s ability to properly and genuinely represent Mr Gaddafi’s views on the admissibility challenge.”

14b. This subparagraph asks for “an informed and open discussion” regarding “the propriety of the continued appointment of the OPCD as counsel.”

14d.  This subparagraph asks for “a new timetable for the proceedings, which takes into account the possible need for new and independent counsel for Mr Gaddafi to take instructions on him on the issue of admissibility.”

The entire motion is positively Orwellian — an attempt to create a parallel universe in which the Libyan government didn’t repeatedly lie to the ICC, didn’t illegally detain four members of the OPCD, didn’t intentionally undermine Saif’s right to counsel, and didn’t lie to the Security Council about its actions.  The motion also conveniently fails to mention, when expressing concern for Saif’s wishes on admissibility — how touching! — either Saif’s handwritten statement that leaves no doubt where he stands (the one that the Libyan government prevented him from signing and then confiscated) or the fact that the Libyan government has intentionally denied Saif’s right to domestic counsel for months.  But really, the government just has Saif’s best interests at heart!

In the end, though, it’s difficult to get too upset at the Libyan government for filing the motion.  It has already demonstrated, time and again, that it has nothing but contempt for the ICC.  Sadly, the Court has no one but itself to blame for the Libyan government’s cynical attempts to manipulate it.  As I have pointed out before, the Court’s willingness to apologize for the OPCD’s actions on the basis of lies fed to it by the Libyan government made this kind of motion inevitable.  Even worse, by apologizing, the Court has provided every state it investigates with the perfect blueprint for getting rid of attorneys who will zealously represent their clients.  All a government has to do is illegally detain the attorneys, lie about their actions, and then claim that the lack of communication between the two parties means that the attorneys have to be replaced.

The ICC needs to put a stop to the Libyan government’s unconscionable behavior — and it needs to put a stop to it now.  It needs to deny the Libyan government’s motion, reaffirm that the OPCD will continue to represent Saif, and order Libya to file its reply to the OPCD’s response in a set amount of time — not when the government feels like it.  And it needs to make clear to the Libyan government that it will be investigating its actions as well as the OPCD’s.

The ICC’s ability to function effectively in the future hangs in the balance.

In my previous post, I noted that Libya’s admissibility challenge should fail regarding Saif Gaddafi because the government cannot demonstrate that it is able to obtain him from the Zintan militia that is holding him.  It’s now clear that the Libyan government has even less chance of obtaining al-Senussi:

Mauritania’s president has said former Libyan intelligence chief Abdullah al-Senussi must be tried there before being extradited.

President Mohamed Ould Abdel Aziz said Mr Senussi, who fled after last year’s uprising, must first face charges of illegal entry into Mauritania.

Libya is seeking to try Mr Senussi for crimes committed during his time as Muammar Gaddafi’s right-hand man.

He is also wanted by France and the International Criminal Court.

Mr Senussi was held at Nouakchott airport after flying in from Morocco in March, five months after the capture and death of Gaddafi.

Two months later he was charged for illegally entering the country and for the use of forged documents, judicial officials at the time said.

“Senussi has problems with Mauritania’s judiciary and has to face court for entering Mauritania under a false identity,” President Abdel Aziz said overnight on Sunday in the town of Atar.

“The passport Senussi used to enter Mauritania was not falsified but it presents him as Malian and under a fake name, which is why he must undergo trial in Mauritania,” Mr Abdel Aziz said, according to AFP news agency.

He said the Mauritanian stance had already been made clear to Libyan and French officials.

If you’re scoring at home, it looks like Libya is going to be 0-2 with its admissibility challenges.

In my earlier post on Libya’s admissibility challenge, I explained how the Libyan government’s failure to provide Saif with due process could be relevant to the admissibility of the case against him.  There is, however, a far stronger argument against Libya’s admissibility challenge, one that I’ve discussed before: namely, that Article 17(3) deems a case admissible if “the State is unable to obtain the accused,” and Libya is unable to obtain Saif from the Zintan militia that has him in custody.  The OPCD’s response makes the argument at length, with considerably more information than has appeared to date.  (I just wish the OPCD had foregrounded the argument more clearly in the motion; it doesn’t appear until page 80).  Here are the relevant paragraphs…

In my post on the detention of Melinda Taylor and her team, I mentioned that the “guard” planted by the Libyan government to spy on the OPCD’s official meeting with Saif first intervened when Saif tried to sign a statement describing his attitude toward the Libyan criminal-justice system.  I thought readers might be interested in the statement itself:

Unsigned statement/sentiments from Mr, Saif Al Islam Gaddafi 7 June 2012, Zintan

1. I want to face justice.

2. I want to do so because I believe that Libya, the victims in Libya, the internationally community and myself all have a right to the truth, and for the truth to be made public.

3. I would have liked to have been tried in Libya by Libyan judges under Libyan law in front of the Libyan people. But what has been happening in my case cannot be called a trial,

4. The truth is only possible in a fair and impartial trial,

5. There will be no truth if I am kept locked up and silenced in a remote mountain village, with no or very limited possibility to speak to my lawyers in order to convey my defence,

6. There will also be no truth if witnesses are faced with possible life sentences for simply testifying in my favour, there is no security or protection for them, nor any consequences if these witnesses are threatened and killed,

7. There will certainly be no justice in the case, if the prosecution is based on evidence extracted from torture and other inadmissible evidence, or persons who are too scared to say the truth,

8. I am not afraid to die but if you execute me after such a trial you should just call it murder and be done with it.

9. I would also prefer to live to see Libya become a democracy based on human rights and respect for the rule of law, but you cannot expect democracy to flourish if all the Libyan people see are show trials run by political expediency,

10. Over a year ago, representatives of the NTC asked the international community to intervene so that the Libyan people could have justice, I am asking for exactly the same thing — the only way for Libya and the Libyan people to have justice is for the ICC to try this case in a fair, impartial and independent manner, and, in so doing, set standards, which Libya can follow on its future path to democracy and the rule of law.

It’s a fascinating statement — and one that completely contradicts everything the NTC has been saying about Saif’s desires.  It’s obviously much easier to misrepresent what a suspect wants when he’s being held incommunicado…