ILO Tribunal Finds Against ICC in the Libya Detention Debacle

This is a major development, one that I hope does not get lost in the welter of commentary on the Bemba acquittal. If you recall, in June 2012 the Libyan government detained four ICC officials who were in Zintan on official Court business: Melinda Taylor from the Office of Public Counsel for the Defence (OPCD), who had been provisionally appointed Saif Gaddafi’s defence counsel; two officials from the Registry; and a translator, Helene Assaf. Libya charged all four with various criminal offences and ultimately detained them for 27 days.

About a year after being released, Assaf filed an internal complaint with the ICC. The ILO Administrative Tribunal summarises her allegations in its judgment as follows (p. 3):

On 3 June 2013 the complainant submitted to the ICC a “request for compensation and/or other damages” in which, amongst other relief, she claimed moral and punitive damages in connection with her detention in Libya on the basis that the ICC had acted with malice, reckless disregard for her safety and gross negligence. In support of her request, she referred not only to the inadequate preparation of the mission, but also to the conditions of her detention and to events after her release, including the denial of her requests for assistance, restrictions on travel due to the pending criminal charges and the ICC’s failure to protect her reputation by issuing a public statement denying media reports that she was a “spy”.

Assaf’s complaint followed a long and tortuous path within the ICC. After a lengthy investigation, the Internal Oversight Mechanism (IOM) found in October 2012 that the Court had largely been at fault for what had happened to its officials. In December 2013, however, the (now former) Registrar refused to provide Assaf any compensation after she rejected his initial offer to settle. In his view, the IOM’s conclusion was incorrect and Assaf had contributed to Libya’s decision to detain her and her colleagues. Here is the Tribunal’s summary of his explanation (pp. 3-4):

He considered that the mission planning had complied with the applicable legal framework and that liability for the injuries suffered by the complainant lay primarily with the Libyan authorities. He found that some of the complainant’s actions during the mission went far beyond her role as an interpreter and might constitute unsatisfactory conduct, but he decided not to initiate disciplinary proceedings against her. Nevertheless, in his view, these “shortcomings” had raised suspicions with the Libyan authorities and had thus contributed to her arrest and to that of her colleagues.

Assaf’s complaint eventually reached the ICC’s Appeal Board, which unanimously upheld her appeal. The Board agreed with the IOM’s report, rejected the Registrar’s assertion that Assaf had acted inappropriately, and ordered the Registrar to try again to reach a fair settlement with Assaf. Those negotiations failed — almost certainly because the Registrar specifically told Assaf that he disagreed with the Board and continued to believe she had acted inappropriately.

At that point, having exhausted her internal remedies, Assaf filed a complaint with the ILO seeking €800,000 in moral damages, €400,000 in exemplary damages, and €60,000 in costs and fees. In response, the ICC admitted that it had breached its duty of care regarding certain aspects of the Libya mission but claimed Assaf was entitled to only €20-25,000 in damages. The two detained Registrar officials also asked to intervene in the proceedings, and the Tribunal granted the request of one of them — Mr. P-L.

Two days ago, the Tribunal released its decision. Assaf and P-L won — handily (p. 10):

16. The Tribunal recognizes that the complainant’s ordeal in Libya was a direct result of the ICC’s failure to properly prepare for the mission, specifically, its failure to: (a) establish a diplomatic basis by ensuring that a Memorandum of Understanding was established and/or Notes Verbales were exchanged with the Libyan authorities prior to the mission’s initiation; (b) establish a mission plan which identified the objectives of the mission, the locations to visit and persons to be met, as well as naming the Head of Mission and clarifying the specific responsibilities of the team members; and (c) ensure that all security protocols were followed and advice was implemented to guarantee the safety and security of the staff members on mission. For these failures, and taking into consideration the damage suffered by the complainant and Mr P. L. during their period of confinement, the Tribunal awards moral damages in the amount of 140,000 euros to each of them. This amount addresses the damage to their psychological well-being as well as to their public and private relations – due to the stress, and difficulties in traveling, due to the ongoing charges against them in Libya and the defamation of their characters which would have been mitigated if the ICC had issued a statement asserting their innocence immediately instead of waiting until the Libyan accusations had been widely publicized.

17. The complainant was also subjected to continuous mistreatment by the Registrar in the period following her return from Libya. This behaviour amounts to abuse of power, bad faith and retaliation and warrants an additional award of moral damages which the Tribunal sets in the amount of 60,000 euros. The Tribunal finds that this is not a case for exemplary damages, particularly in view of the considerable efforts made by the ICC to secure the release of the complainant and her colleagues when they were detained in Libya.

Assaf deserves her victory. (As does P-L.) I blogged extensively, and with mounting horror, about the ICC’s unconscionable failure to stand up to Libya regarding its treatment of Taylor, Assaf, and the others. You can find a list of my nearly 30 posts here. So I am delighted that Assaf won — and am particularly pleased by the Tribunal’s insistence that the Court should have immediately and loudly proclaimed the four officials’ innocence. I argued at the time that the Court would never have taken such a laissez-faire approach to their detention if Melinda Taylor had a been a prosecutor or investigator instead of member of the OPCD, and I continue to believe that.

For those of you who are keeping score, this is at least the third time the ILO has found against the ICC — Moreno-Ocampo had two judgments go against him personally. It is very unfortunate that this latest fiasco will cost the Court a total of €360,000 it cannot afford. But if the ILO judgment leads the Court to be more protective of its officials — all of its officials, including those involved with the defence — it will be worth it in the long run.