The ICC Commits Cooperation Seppuku

As Mark Kersten has already ably discussed at Justice in Conflict, the ICC released a statement yesterday regarding Melinda Taylor’s detention.  Ironically, although I think everything about the statement is profoundly devastating to the Court’s credibility, I am actually slightly less bothered than Mark by the “regret” section of the statement:

The ICC deeply regrets any events that may have given rise to concerns on the part of the Libyan authorities. In carrying out its functions, the Court has no intention of doing anything that would undermine the national security of Libya.

This strikes me as a classic non-apology, the kind of weaselly language that politicians offer when they make a racist joke: they don’t actually apologize for making a racist joke, they simply say that they “regret” the fact that others didn’t find the joke as funny as they did.  The first sentence scrupulously avoids saying that Taylor did anything wrong; it simply expresses regret that Libya might have “concerns” about something Taylor might have done.  And the second sentence simply expresses the ICC’s desire not to harm Libya’s national security; it doesn’t say that Taylor actually harmed it.

The weaselly language of the “regret”  section of the statement, however, is small comfort.  In my view, the rest of the statement is far more objectionable — and will no doubt serve as a road-map for other states that don’t want to cooperate with the ICC.  Let’s start with the first substantive paragraph:

The ICC President thanked the Attorney General for visiting the Court. He expressed appreciation for the mutual trust confirmed in the meetings and welcomed the commitment of the Libyan authorities to cooperate fully with the ICC in accordance with United Nations Security Council resolution 1970 (2011). The President underlined the shared interest of the ICC and the Libyan authorities that Saif Al-Islam Gaddafi and Abdullah Al-Senussi should face justice.

There are two objectionable aspects here. First, what was the Court thinking when it “welcomed the commitment of the Libyan authorities to cooperate fully with the ICC in accordance with United Nations Security Council resolution 1970 (2011)”?  Taylor is being detained only because Libya is ignoring SC Res. 1970, which guarantees her immunity — a fact that the Security Council, unlike the ICC, has acknowledged.  Second, what is the final sentence in that paragraph doing there?  A defence attorney is illegally detained and the Court’s response is to reiterate that it shares Libya’s desire to successfully prosecute Gaddafi and Al-Senussi?  Really?  Does the Court want to give Libya the impression that it doesn’t care how it treats the two suspects as long as they’re convicted?

The next two paragraphs are little better:

The ICC takes very seriously the information reported by Libyan authorities in relation to the ICC staff members’ visit. The ICC fully understands the importance of the matter for the Libyan authorities and the people of Libya.

The Court attaches great importance to the principle that its staff members, when carrying out their functions, should also respect national laws. The information reported by the Libyan authorities will be fully investigated in accordance with ICC procedures following the return of the four staff members. For this purpose, the Court will be seeking further background information from the Libyan authorities. The ICC will remain in close contact with the Libyan authorities to inform them of progress.

To be sure, there is nothing overtly wrong with these paragraphs. The ICC should take seriously allegations of defence misconduct.  And the second paragraph makes clear, albeit weakly, that the Court itself should be the one to investigate Libya’s allegations against Taylor.  But that is nowhere near enough.  The ICC must state clearly and unequivocally that Libya had absolutely no legal right to search and detain Taylor, no matter what it thinks she has done.  I’m on record with my skepticism about Libya’s allegations; it has produced no proof, and media reports that Libya considers a letter from Saif complaining about his mistreatment an “illegal document” do not exactly inspire faith.  The more important point, though, is that Libya was not entitled to search and detain Taylor even if everything it alleges is true.  That is absolutely clear from the Agreement on the Privileges and Immunities of the ICC (APIC), which — as Dapo Akande has shown — is applicable to Libya via SC Res. 1970.  Here is the text of Art. 18 of APIC, concerning the immunity of “counsel and persons assisting counsel” (emphasis mine):

1.    Counsel shall enjoy the following privileges, immunities and facilities to the extent necessary for the independent performance of his or her functions, including the time spent on journeys, in connection with the performance of his or her functions and subject to production of the certificate referred to in paragraph 2 of this article:

(a) Immunity from personal arrest or detention and from seizure of his or her personal baggage;
(b) Immunity from legal process of every kind in respect of words spoken or written and all acts performed by him or her in official capacity, which immunity shall continue to be accorded even after he or she has ceased to exercise his or her functions;
(c) Inviolability of papers and documents in whatever form and materials relating to the exercise of his or her functions;
(d) For the purposes of communications in pursuance of his or her functions as counsel, the right to receive and send papers and documents in whatever form.

These provisions make no exception for actions that allegedly violate a state’s “national security.”  In light of Art. 18, therefore, Libya was not entitled to search Taylor, was not entitled to read the allegedly “illegal” documents exchanged between Taylor and Saif, was not entitled to detain Taylor, and is not entitled to investigate or prosecute Taylor.  If Libya has a problem with Taylor, it has one and only one remedy: expel her from the country and file a complaint about her conduct with the ICC.  The ICC must — absolutely must — remind Libya of that fact.  Mushy statements like the one the ICC just issued are nowhere near enough.

So why didn’t it?  Sadly, I think there is only one plausible explanation: Melinda Taylor is a defence attorney, and the ICC cares far less about defence attorneys than about prosecutors and other staff.  I find it impossible to believe that the Court would react so mutely to the detention of a prosecutor or investigator investigating government officials in a state.  I think that interpretation is supported, unfortunately, by the penultimate paragraph of the ICC’s statement, which echoes the first substantive paragraph:

In fulfilling its mandate to end impunity and providing justice to victims, the ICC is ready to assist national authorities with their investigations if requests are submitted to the Court. The ICC is committed to continued mutual cooperation with the Libyan authorities and will do everything it can to assist them.

A court that cares about defence attorneys and the rights of the defence does not make this statement.  A court that views defence attorneys as little more than a necessary evil — to be tolerated but not embraced — does.  The ICC’s statement should have been about one thing, and about one thing only: Taylor’s detention.  Until Taylor is released safe and sound, the ICC’s mandate must wait.

I say that, of course, as someone who has spent a career as a domestic and international defence attorney.  You do not have to be a defence attorney, though, to understand just how severely the ICC has damaged its effectiveness through its pathetic response to Taylor’s detention.  In the Libya situation, the defence attorneys are the bad guys, because both the ICC and the Libyan government want to see Saif convicted.  But that will not always be the case: as the situations in Kenya and Darfur indicate, the Court will often need to send prosecutors and investigators into a hostile state to investigate sitting government officials.  Perhaps, as I have suggested, the ICC would react more forcefully to the detention of a prosecutor or an investigator.  In light of yesterday’s statement, however, a state could be forgiven for believing otherwise.

Mark my words, this statement will come back to haunt the ICC.  It has indeed committed cooperation seppuku.