Reconciliation and the ICC in Libya

The ICC's legal team have been accused of compromising Libyan security, during a visit to Saif Al-Islam Qadhafi in Zintan

The International Criminal Court has issued a statement expressing regret to the Libyan authorities over the allegations that one of its lawyers compromised Libya’s national security following a visit to Saif Al-Islam in Zintan. In spite of this letter, as well as talks with the Australian government, it appears unlikely that Libya will release the team of four that was representing the ICC in the country.

The accusation against the group specifically claims that Australian lawyer, Melinda Taylor, had clandestinely passed Saif Al- Islam a coded letter from his former aide and current fugitive, Mohammed Ismail. In addition to accusing her Lebanese translator Helene Assaf of being an accomplice, the group detaining Taylor has also accused her of carrying a camera in her pen. The two women were accompanied by two other nationals Russian Alexander Khodakov and Spaniard Esteban Peralta Losilla. They have remained in Libya though it is unclear if they are being detained or have remained out of solidarity to their team.

The expression of regret on the part of the ICC demonstrates the desperation of the institution in bringing back its representatives. The UN court had previously demanded the immediate release of all four individuals, arguing that their diplomatic status rendered their detention illegal.

Indeed, various groups in the international arena agree with the ICC’s original stance. In a recent article for the Guardian Richard Goldstone, former chief prosecutor for the UN criminal tribunals of the former Yugoslavia and Rwanda, stated that “the current arrest in Libya of four officials of the international criminal court is quite clearly a violation of international law.”

Such perspectives will have a long-term impact on Libya’s engagement with international institutions, but more importantly it demonstrates that the rule of law in the country is particularly weak. If diplomats are not adequately protected under the law, what types of trials might individuals associated with the previous regime have?

It is true that Libya’s current political transition requires the prosecution of those who collaborated with the Qadhafi regime. Implementing justice will be an important venue for reconciliation in the country in that it will publically address the crimes committed by the former regime. However, given the political vacuum the country is in, and the divisions apparent within the government, particularly between various militias, it is important that any prosecutions taking place happen in a transparent manner and that they uniformly apply the rule of law.

Unfortunately, the treatment of the ICC staff in Libya puts into question Libya’s ability to undertake these efforts.