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Saturday, July 7, 2012

Legitimation Crisis Cancelled? A Pyrrhic Victory for the ICC

Two weeks ago I asked whether a burgeoning legitimation crisis was striking international criminal justice.  Four ICC lawyers were taken into custody in Libya on widely considered trumped up charges of espionage, and the Mladic Trial at the ICTY was put on indefinite hold.  Now, both issues have been resolved.  Or have they?  Melinda Taylor and the other ICC personnel were released from the custody of the Zintan Brigade in Libya, and the ICTY Trial Chamber has scheduled the Mladic trial to resume with the prosecution’s presentation of evidence.  But both situations strike a worrisome tone for the future of international criminal justice.

The primary concern about the Melinda Taylor situation is that the status of her diplomatic immunity was insufficiently resolved in my opinion.  The Libyan NTC managed to secure her release after weeks of diplomatic wrangling, and the Zintan rebels finally agreed to allow her and the other court personnel to travel back to The Hague.  But, as a formal matter, neither the Libyan NTC nor the Zintan Brigade made any formal statements accepting the immunity of the court personnel.  Furthermore, the ICC itself did not strenuously enough state that the release was pursuant to diplomatic immunity.  Formerly, the Libyan officials stated that a case against the individuals was still pending in Libya, though no one thinks that Taylor and the others will return to Libya to participate in such a case.  Regardless, though, even the theoretical existence of a pending case against Taylor is inconsistent with the view that diplomatic immunity attaches to court officials.

Of course, this seems to have been the diplomatic trade-off that was made to secure their release.  The ICC, the UN, the Australian government as well as other national governments all pressured the Libyans to release the defendants, but there was apparently insufficient leverage to get them released quickly.  The release was only secured as long as both the Libyan NTC and the Zintan rebels were allowed to maintain the position that they were entitled to detain the court personnel given their alleged conduct (including position of an alleged pen camera).  If the ICC and the UN wanted the Libyans to concede the issue of diplomatic immunity, then the Libyans weren’t going to release them.

Was this an acceptable trade-off for the ICC to make?  Or perhaps it was a Pyrrhic victory, opening the door to a very disastrous situation the next time a defense counsel – or even a prosecutor – is traveling in an uncooperative country.  Here’s the real result: trips in these countries aren’t going to happen in the future and that’s a very bad thing for the court.  And I think it sets a worse precedent for prosecutors than it does for defense counsel.  In my view, the OTP had the most incentive to make sure that the right precedent was set in this case, and it wasn't.  It is future OTP personnel that will bear the brunt of this mistake.

On the Mladic trial:  The trial will resume, assuming that the prosecution does not run into more disclosure problems with the court. That’s certainly a good thing, but the overall pace of the trial is still a concern, and Mladic isn’t getting any younger.  More importantly, though, the recent dismissal of the genocide charge for Karadzic for crimes committed outside of Srebrenica will probably have an impact on the Mladic trial, with a possible argument that Mladic should not face a genocide charge for those municipalities either.  More on that in my next post.