A Thought Experiment About ICC-State Cooperation

I have to admit, I’ve been very surprised by the negative reactions I’ve received concerning my belief that the ICC should not have expressed regret or apologized to Libya for Melinda Taylor’s (alleged) misconduct.  It seems that most people — or at least most of the people who have emailed me — think that the Court should have done anything it could to get her back, even if its actions mean that defence attorneys will find it far more difficult to effectively represent their clients in the future.

I certainly understand the sentiment.  I am delighted that Taylor is free.  But I continue to believe that the statement and the apology were a mistake — and that the ICC’s willingness to bend over backwards to placate the Libyans was a reflection of defence attorneys’ second-class status at the Court and in international criminal law more generally.  Let’s not forget what the Court said in its original statement, which was supposedly about the need to free Taylor: “[t]he President underlined the shared interest of the ICC and the Libyan authorities that Saif Al-Islam Gaddafi and Abdullah Al-Senussi should face justice.”  The message was clear: it’s not nice to detain defence attorneys, but failing to prosecute suspects is even worse.

As I noted in an earlier post, I don’t expect people who have no experience with criminal defence to understand just how damaging the ICC’s actions have been.  So let’s turn the situation around and imagine a scenario that is all too possible — the detention of a prosecutor by a state being investigated for serious crimes:

High-ranking government officials in Rantania are widely believed to have orchestrated a genocidal campaign against an indigenous tribe suspected of supporting a rebel group funded by Aprophe, Rantania’s neighbor.  In early 2013, the Security Council refers the situation in Rantania to the ICC.  As part of the  Office of the Prosecutor’s investigation into the situation, a young prosecutor, Alexandra Evans, travels to Rantania on a fact-finding mission — talking to local human-rights NGOs, interviewing victims, and meeting with government officials.  After implying a bit too strongly that a particular government official was involved in the genocide, Evans is detained by the Rantanian intelligence service and her bag searched. Intelligence officers discover a list of suspects provided to her in confidence (and anonymously) by one of the human-rights NGOs.  Evans is promptly charged with espionage on the ground that the “accusations” on the list are an attempt by Evans and the NGO to subvert the lawful government of Rantania.  She is imprisoned and repeatedly interrogated concerning the identity of the NGO that gave her the list.

How would the ICC respond to such a situation?  Would the Court weakly assert that Evans was entitled to complete immunity from detention, search, and prosecution?  Would the Court quickly issue a statement expressing its “deep regret concerning any events that may have given rise to concerns on the part of the Rantanian authorities” and insist that the Court “has no intention of doing anything that would undermine Rantanian national security”?  When Rantanian government officials visited the Court to discuss Evans’ detention, would the Court “express its appreciation for the mutual trust confirmed in the meetings” and “welcome Rantania’s commitment to cooperate fully with the Court in accordance with the Security Council referral”?  Would the Court insist that it “takes very seriously the information reported by the Rantanian authorities,” “understands the importance of the espionage allegations to the government,” and “attaches great importance to the principle that its staff members, when carrying out their functions, should also respect national laws”?  Would the Court promise to “remain in close contact with the Rantanian authorities to inform them” of any progress it makes in its internal investigation of their espionage allegations?  And once Rantania finally agreed — after nearly a month — to release Evans, would the President of the Court travel to Rantania to apologize in person for Evans’ actions?

Unless you can answer each and every question with a resounding “yes,” the conclusion is inescapable: the ICC’s willingness to appease Libya is due, at least in part, to the fact that Melinda Taylor is a defense attorney, not a prosecutor.