ICC vs. Libya: Taylor still in the middle

It is more than three weeks since Melinda Taylor was detained in Zintan as the result of the standoff between International Criminal Court (ICC) and Libyan interim authorities on who will put Saif Gaddafi on trial. Ms. Taylor was a part of ICC delegation that traveled June 6, 2012 to Zintan to meet with S.Gaddafi. Due to the indictment of Gaddafi by the ICC in crimes against humanity, Ms. Taylor was appointed as his lawyer to represent him in future trial in Hague. Militants that are responsible for the detention of the Saif Gaddafi, have reported that ICC team was in possession of several documents, one of which was a letter from one of the former accomplices of Gaddafi that is now residing in Egypt. That letter served as an official motive for the militants to detain Ms. Taylor and her team on June 7^th.

The situation attracted concern and attention from international community and many experts in international criminal and humanitarian law as well as certain governments and their officials.

Australian Prime Minister J.Gillard called on Libyan authorities to expedite the end of Ms. Taylor’s (who is an Australian national) detention. Australian Foreign Minister B.Carr said that there seems to be no interest from Libyans in the early release of Taylor and she was denied communication with her family, however her detention conditions are quite good. International movement Coalition for International Criminal Court have also extended its support to Taylor and urged the Libya to release the lawyer as soon as possible.

Nonetheless, the most interesting reaction was from ICC itself that posted press release on June 22, 2012. Through it ICC states that: “… [it] takes 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” and that: “… [it] 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.” Basically, Court have only acknowledged the graveness of the situation as its staff members were accused of breaching the domestic laws in Libya and its readiness to work with Libyan authorities on the matter. At the same time it did not demand the immediate release of its staff, only hinted that according to the procedures of the Court there will be an inquiry after the return of its four staff members.

Moreover, Court “… 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. When the ICC has completed its investigation, the Court will ensure that anyone found responsible for any misconduct will be subject to appropriate sanctions”. It seems Court have tried to secure itself in case there was a legitimate breach of domestic law on account of its staff and ensures Libyan authorities there are no hostile intentions on its part.

However, the question is still standing on whether the Libyan authorities had a right to detain ICC staff in the first place. Right now in the international law there are two standing arguments both supporting the claim that ICC staff should possess diplomatic immunity abroad when engaged in the official Court business. One of them argues in favor of applying customary international law. Basically, it argues that even states that are actively at war in vast majority of cases honor the immunity of their respective officials and diplomats. International relations are in themselves bound to one of the oldest principles of international law that is immunity. When we are talking about diplomacy, negotiations of treaties and agreements, international organizations activity we have to keep in mind that all of that would have been impossible without the notion of immunity. Thus considering the practice of states – diplomatic immunity should also be covering ICC officials.

The other point of view refers us back to the law of the treaties. There is an Agreement on the Privileges and Immunities of the ICC (APIC). Even though Libya has not ratified this agreement (as it hasn’t ratified Statute of ICC itself), the argument draws and analogy to the referral of the case of Gaddafi to the ICC by the UN Security Council. Thus if Libya is bound by the rules of ICC Statute through the referral, same goes to the immunities of its staff.

Whatever the stance of the international law is, however, it seems that ICC and UN Security Council are far from pushing its implementation, therefore putting Ms. Taylor in the middle. Nonetheless, diplomatic immunities have to be respected at all times.

Kamal Makili-Aliyev

Doctor of Laws (LL.D)

27.06.2012