Here's what's bound to be a popular question on international law exams for first-year law students: What do you get when you mix a bungled international prosecution, an intransigent Security Council, and a transitional government with no respect for the rule of law? The correct response, as we have learned this past week, is quite simple -- house arrest in Libya!
Unfortunately, the person to teach us this dark lesson is Australian national Melinda Taylor, who was arrested this weekend in Libya for meeting with her client Saif al-Islam Gaddafi and attempting to pass him documents that were not "in the interest of national security," according to a spokesperson for a bunch of rebels living in the desert.
Miss Taylor is the second-in-command at the International Criminal Court's defense office and my former boss. She is also a person who her colleagues have called "an oasis of humanity in the sometimes harsh area of international criminal law" and, per my own experience, one of the most knowledgeable, caring, and helpful lawyers I have ever encountered. For her efforts, she languishes as of this writing in house arrest in Zintan, Libya.
As Counsel of the ICC's Office of Public Counsel for Defense (OPCD), Miss Taylor met with Mr. Gaddafi as his defense lawyer. The OPCD is the ICC organ responsible for suspects' defense during the pre-trial stages, per Regulation 77 of the ICC's Regulations of the Court, and is headed by Maître Xavier-Jean Keita, a Malian lawyer who began his career in Senegal. Mr. Keita has since been chair and/or president of nearly every French bar association or lawyer's union you can name, helping along the way to establish the International Criminal Bar. He is also one of the most energetic, and perhaps the best dressed, employees of the ICC. He has always called the OPCD a "family," and in his writings to present and former OPCD staff, he never fails to mention that their family misses them.
But now, a vital member of the "family" is under house arrest by a host of unorganized rebel troops in Libya. And the international community is crawling all over itself, demanding why.
Clash With the Prosecution
Many in the international community are blaming the recent actions of ICC Prosecutor Luis Moreno-Ocampo for Miss Taylor's imprisonment, citing his leniency with the National Transition Council's claims that Seif al-Islam should be charged in Libya despite an outstanding ICC warrant for his arrest.
In what one professor has called an "ironic inversion", the Prosecutor's office has argued that Libya is under no obligation to surrender Mr. Gaddafi, concurring with the Libyan government that Article 95 of the Rome Statute permits the suspect's surrender to be postponed while the Court decides on the admissibility of the case. The OPCD, on the other hand, argued that not only does the Rome Statute require a surrender in this case, but that allowing Libya to get away with a refusal to surrender Gaddafi will allow them to slip into the dangerous territory of yet another rogue state refusing to cooperate with the Court's orders. The Pre-Trial Chamber agreed with the Prosecutor.
What makes all of this so ridiculous, of course, is that it is the Prosecutor's obligation to seek prosecution, not deny it. Ocampo illustrated this principle rather comically by what some have called a barrage of "idle and ridiculous" threats at a recent UN Security Council meeting. Ocampo stabbed his finger at the Sudanese UN ambassador, loudly threatening to investigate the ambassador himself for refusing to turn over the Sudanese suspects, and finally accusing the diplomat of lying and hiding information from the UN.
It might be said that this kind of behavior reflects the failure of a powerful man to grasp the subtleties of international diplomacy, not unlike the Bush-era "with us or against us" mentality. But the first prosecutor of the first international criminal court is not an American president from Texas -- he must instead strive to avoid isolating the very diplomats he needs to persuade to surrender the accused. At the very same time, he publicly contradicts himself by allowing the Libyan authorities to hold Mr. Gaddafi indefinitely, undermining the entire Court's legitimacy in the process.
Leaving Gaddafi to the Rebels
In April, Ocampo publicly hinted that he may have struck a deal to allow the rebel Libyan government to try Gaddafi themselves, despite the outstanding arrest warrant and the fact that the government had, at the time, never formally asked for the proceedings to be suspended.
In response, Mr. Keita and the OPCD argued for the disqualification of the prosecutor from the case, citing his lack of neutrality, appearance of siding with the Libyan government, and constant claims that Mr. Gaddafi was indeed guilty, thereby breaching the presumption of innocence enshrined in the Court's Rome Statute.
Meanwhile, the Libyan National Transitional Council passed an amnesty law absolving themselves for any crimes that may have committed by rebels during the violent overthrow of Gaddafi. This furtive move appears even wiser now that Russia has called for the ICC investigation of the "other" side's potential crimes, which would include NATO and rebel troops.
Defending the Indefensible
It was Ocampo himself who asserted last year that no side in the Libya conflict is immune to ICC investigation. And he was right in doing so.
The crux of international justice is that the powerful are no longer immune from prosecution, while the weak will always have a voice in a court of law. It was in this context that Miss Taylor visited Mr. Gaddafi in Zintan, who is now a beaten and dirty man. She needed to present the accusations against her client and provide him with the means to state his case, as is required by the due process of nearly every nation in the world. And it is for exactly this reason that the OPCD asked the Pre-Trial Chamber in 2010 to warn the prosecutor from publicly condemning the Libya suspects -- though the Chamber again sided with the Prosecutor. Publicly stating a suspect is guilty before a trial begins degrades the rule of law and encourages summary justice, which is precisely what the squads in Zintan have done -- at Miss Taylor's expense.