‘History is written by the Victors’. When Winston Churchill expressed this iconic statement, he seemed to have been coining a more statesman-like version of Might means Right. In the case of the Melinda Taylor incident, considering the ICC’s strong-arm tactics, Might means Right seems to be the better fit for our discussion.
This issue’s relevance is that by the 20th of August 2014, the Melinda Taylor Documents were anticipated to be surrendered to the ICC by order of the New Libyan Parliament convening in Tobruk. We report that as of this article’s publishing on 27th August 2014 these documents have not been surrendered.
A case-study in expunging before the fact
When a judge wants to make a whole case; a whole embarrassing issue just disappear, we argue this is the case-study to follow. This is not just any judge; this is a revered International Criminal Court Judge and the uncomfortable incident is that of Melinda Taylor and her three colleagues. This slow motion case-study arguably is the elimination of a potentially catastrophic incident that if aired in court AND proven, could bring down The International Criminal Court as a bastion of bias. Perceived impartiality is the foundation of the Court’s legitimacy and without its neutral stance, the public perception of JUSTICE IS BLIND would no longer exist.
It could eliminate the Court’s credibility by exposing its employees as criminals working for the benefit of ONE particular defendant. Without its credibility intake, the Nations who are signatories to The Rome Statute, the founding statute that created the ICC, may resign their support both politically AND financially. And without political and/or financial support the ICC folds.
Although the ICC is an independent body, it is primarily funded by its member states. Over 12 years, it has cost $1 Billion USD to these members and is asking for an increase in funds. Without the financial and political support, the net result would be a whole alliance of judges, staff and human rights lawyers without a place to call home.
Pertinent to this part of the discussion is a quote by John Jones, Saif Gaddafi’s ICC lawyer:
‘Mr Jones told The Telegraph that his £70-an-hour legal fees were “minimal” and the UK taxpayer’s contribution “infinitesimally small”, whereas the legal expenses of the Libyan government ran into millions.‘
‘…the legal expenses of the Libyan government ran into millions.’ Serious money is made by human rights lawyers representing clients at the International Criminal Court. Hence, from the ICC alliance’s stance, one can see the potentially catastrophic nature of this incident.
An important Financial Update from the Authors:
On the 30 July 2015, we provide an excerpt from the 2015 United Nations Security Council Report about the Libyan assets freezes monitored by the UNSC Resolution 1970 – which noted that a 2013 “exemption” allowed the money looted by the Gaddafi Cronies – to in fact go to pay for Abdullah Senussi legal defense.
The 19(a) “exemption” noted that £500,000 ($750,000) of the Libyan people’s money was allowed to pay for Abdullah Senussi’s UK LAW FIRM for HIS DEFENSE at the International Criminal Court. That is only for the year of 2013 and only one law firm. He had lawyers from two UK law firms.
To the United Nations Security Council: We argue for the victims of Abdullah Senussi to PAY for ‘his defense’ after 42 years of brutalization ending as the head of the Gaddafi Regime’s Intelligence with 2 counts of crimes against humanity in YOUR ICC arrest warrants – is to victimize the Libyan people ONCE AGAIN. See our PDF: Page 143 of UN SECURITY COUNCIL REPORT 23 February 2015- 1502120 & UN SC Resolution 1970
The rest of the article…
We assert that the Court is so nervous about the potentially damaging evidence in this lighting-rod incident that the Court ordered the return and elimination of all copies of the evidence, BEFORE it is ever heard and documented in a Libyan court. While at the ICC, all discussions of the incident were in held in private sessions which resulted in heavily redacted ICC documents. See above or our PDF: 21 Nov. 2012 ICC PDF or HERE.
The ICC has FORCED the cancellation of a Saif’s Zintan case. To eliminate all the potential evidence, we argue, the Court has poetically illustrated the art of power-wielding by threats of UN Sanctions manifesting in the July 2014 ruling. This case-study offers glimpses into the bullying tactics and the political working of the ICC. One could argue that this concerted action is a slow-motion planned attempt to deprive Libya of its sovereign right to prosecute one of their accused, Saif Gaddafi.
Our op/ed discussion will focus on the diverse debate among legal academics on the issues surrounding the Melinda Taylor incident. After a look at the evidence, we discuss the Court’s reaction. Noting the overwhelming concern for its reputation, the Court stated that Ms. Taylor’s representation of Saif was ‘intrinsically problematic as it jeopardises the appearance of the impartiality of the Court.’ (Page 6) Further, we argue despite the allegation dismissals in the press, NO ONE is disputing the evidence: the OPCD, Libya and the Judges. All seem to agree with the allegations. Even Melinda Taylor’s office, the OPCD, didn’t debate the evidence. Rather, we argue after not disputing the existence of the incriminating evidence, the OPCD gave as their defense: the Libyan legal team didn’t prove that the documents and equipment were actually a ‘national security threat’.
We will re-examine the ICC petitions by seeking the analysis of overlooked academics. Yet another academic and an US State Department lawyer will lend their opinions on the taboo subject of the political nature of the International Criminal Court while touching on United States involvement. Although a signatory to The Rome Statute, it was not ratified in the United States. As such US citizens are neither subject to its regulations nor will be tried in its Court. This stipulation did not stop the US Government from indirectly funding the ICC. As such, it’s the utilization of these funds that we argue makes the ICC an arm of the US foreign policy. The New York Times uncovers the political nature of the ICC in their article:
‘Courtenay Griffiths, the defense lawyer for former President Charles Taylor of Liberia’: “To use the court as an adjunct to soft power makes sense for the U.S.,” he said. “It’s cost-effective. If you can remove a warlord through the court, it’s a lot cheaper and more acceptable than using force.’
As the ICC is now arguably being used as the legal arm of the US foreign policy, it opens up a debate about the Court’s impartiality. Is JUSTICE really BLIND? Next we ask, has politics effected the Court’s ruling in the Melinda Taylor incident? Considering the political nature of the Court, we will conclude by asking, Can Libya receive a FAIR trial in the Saif Gaddafi case at the International Criminal Court?
Three debatable Issues among Academics surrounding the Melinda Taylor incident
First Issue: Is Libya even subject to the tenets of the Rome Statute, the founding document of the International Criminal Court? It is a wildly varying debate among academics. Libya is not a signatory and was a vehement opponent to at its inception. Therefore, legal academics have argued that under customary law because of the ‘persistent objector’ rule, Libya is not necessarily subject to The Rome Statute. Others argue that Security Council Resolution 1970 itself makes Libya not subject. 1970 was passed as a reaction to the Libyan Revolution. Susan Simpson, a graduate of George Washington University Law School wrote that ‘Libya is not a party to the Rome Statute, and is not bound by any international obligations through that instrument.’ She elaborated, ‘Even though the Security Council has referred the situation in Libya to the ICC, that does not have the effect of conferring the treaty obligations contained in the Rome Statute onto Libya. Paragraph 4 of Resolution 1970 did not, in itself, curtail any of Libya’s jurisdiction as sovereign…’
Conversely, a new Academic at Doughty Street Chambers, justifies Libya’s compliance to The Rome Statute (and Melinda’s diplomatic immunities) based on Security Council Resolution 1970. We note that in Libya’s ICC case, Saif Gaddafi, Abdulla Senussi AND Libya are all represented by Doughty Street Chambers simultaneously. Still others note that SC Resolution 1970’s wording is weak. ICC Referral Point 5, ‘urges all states… to cooperate’ and NOT ‘demands’ therefore open to a looser interpretation for compliance.
A gratified note to our readers: SUSAN SIMPSON, George Washington University graduate and legal expert, acknowledges our utilization of her research in this The New Libya Report article with pingback on her ‘About Me’ The View From LL2. See insert.
Second Issue: The perceived notion that the Libyan courts are subservient to the whims of the ICC Chambers when prosecuting their accused, i.e. the case of Saif’s Zintan trial. Libya’s legal team noted in its 27 February 2013 petition that 89.4 of The Rome Statute indicates that Libya may proceed with the investigation. The Rome Statute (page 62).
‘89.4 If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.’
The Zintan case is distinct from the ICC case as it is a different crime. The Court heard the distinction. In the case in Zintan, Saif was facing ‘charges of “compromising national security through the exchange of documents with the ICC delegation, and insulting the State’s flag and national emblem”. (Page 4)
‘Mr Saif Al-Islam Gaddafi is allegedly criminally responsible as indirect co-perpetrator for two counts of crimes against humanity: Murder, within the meaning of article 7(1)(a) of the Statute; and Persecution, within the meaning of article 7(1)(h) of the Statute’.
The debate is that the Zintan case is based on evidence collected in the Melinda Taylor incident. Note the distinction that was reflected in their ruling: the Court considers the ‘evidence’ privileged as it was apprehended at the scene. Even if a registered ICC Coordinator who witnessed the incident saw Melinda in possession of ‘Arabic documents’.
Libya’s contrasting argument re-interprets the same regulation the Court used to justify privilege. Both refer to 18.c of the Agreement on the Privileges and Immunities of the International Criminal Court. This compelling argument claims that an Arabic document in the hands of a non-Arabic reader (Melinda) is NOT applicable to 18.c, “relating to the exercise of his/her functions”. As such is NOT privileged and therefore NOT subject to the ICC regulations. The argument considers that wording of 18.c, inviolability of the papers, documents and materials to include ONLY those ‘relating to the exercise of her function.’ Inviolability of the documents is NOT a blank slate to include anything on the table including incriminating documents and alleged spy equipment. Libya noted this in their 30 July 2012 petition: (Page 5)
‘Notwithstanding the cooperation of Libya in facilitating the OPCD visit (which was granted despite earlier difficulties with the conduct of the OPCD during a previous visit) from that day until 2 July 2012 the delegation was detained in Zintan because of the alleged misconduct of OPCD counsel(which Libya considered to constitute a threat to national security and inconsistent with the performance of defence counsel’s functions).’
In other words, if Ms. Taylor is not fluent in Arabic, and did not know what the documents stated, THEN the documents would NOT be part of her ICC legal work. So why would the documents STILL be privileged? Further, considering that ‘The Court’s official working languages are English and French’, that is ALL official documents are in either language, why would the ‘official document’ be in Arabic? The Daily Telegraph article gave Ms. Taylor’s account of the documents:
‘But Ms Taylor said the papers were legal documents and the alleged codes were innocent items, including personal doodles and Gaddafi’s nickname, “Engineer Saif”, could easily be found online.’
‘Personal doodles’ on official ‘legal documents’? Seems uncharacteristically improper for an ICC professional, especially as these documents were a power of attorney about her representation. (page 7 & 10) Would Ms. Taylor have an official ICC legal document addressed to, or doodled with, a colloquial title such as ‘Engineer Saif’? Did Ms. Taylor or ANY ICC Department, in ANY official capacity EVER refer to Saif as such? In Ms. Taylor’s post-release PDF/speech, she only referred to him as Saif Al-Islam. On the other hand, we know that among Saif’s legions of minions such as former UK Prime Minister Tony Blair and his office manager Mohamed Ismail, Saif’s title was ‘Engineer Saif’. But on any official ICC document, this would be a stretch to believe. (Libyan authorities said the controversial, Arabic letter seized was from Mohamed Ismail) Our PDF copy of Ms. Taylor’s attempt at her POA: 11 December 2012 doc1524311
Mohamed Ismail is known to the US Government as interlocker for the Gaddafis. In a FOIA Hillary Clinton email dated Sunday, August 21, 2011 forwarded to Huma Abedin in turn forward to Hillary Clinton. The email originated from “the State Department’s top Middle East hand, Jeffrey D. Feltman, (now #2 at UN) had sent a lengthy email with an utterly different tone about what he had seen on his own visit to Libya.” In this email, Mr. Feltman noted on page 2 “They do have a point that, despite signs of desperation around Qadhafi (e.g., Mohammed Ismail’s multiple attempts to contact Gene Cretz and me), there is no indication that Qadhafi himself is prepared to throw in the towel….” Our PDF copy: MOHAMED ISMAIL-FOIA- JEFFREY FELTMAN C05781926
‘The ICC’s Agents Have No Immunity in Libya through the Rome Statute. States Parties to the Rome Statute are obligated by Article 48 to provide the ICC with “such privileges and immunities as are necessary for the fulfillment of its purposes.” But Libya is not a party to the Rome Statute, and is not bound by any international obligations through that instrument. (Nor is Libya a party to the Agreement on Privileges and Immunities of the International Criminal Court, which supplements and expands the immunity of Court officials, but likewise only applies to states that are signatories to the instrument.)
Academics acknowledge debate on this issue because of abuse by some diplomats. Since the 1980’s western countries have instituted countermeasures for protecting national sovereignty to counter abusive, illegal activity of foreign diplomatic staff within their territory. (Page 735) For instance, although claimed by the ICC as an illegal arrest and the seizure of privileged documents, academics argue that an arrest of a diplomat can be warranted; “on occasion” to “prevent the commission of that crime.” (Page 746) As such, for the ICC staff in Libya, the immunities and privileges enshrined in article 18 of the Agreement on the Privileges and Immunities of the International Criminal Court could be argued, DO NOT necessarily apply for Melinda Taylor et al IF they were committing a crime. In this situation her actions would be covered by the countermeasure, Article 26 of the same document, Wavier of Immunities and Privileges (Page 228)
26.1 ‘The privileges of and Immunities provided for in articles 15 to 22 of the present Agreement are granted in the interest of the good administration of justice and not for the personal benefit of the individuals themselves. Such privileges and immunities may be waived in accordance with article 48, paragraph 5. Of the Statute and the provision of this article and there is a duty to do so in any particular case where they would impede the course of justice and can be waived without prejudice to the purpose for which they are accorded.’
‘Such privileges and immunities may be waived….and there is a duty to do so in any particular case where they would impede the course of justice…’ AND ‘…are granted in the interest of the good administration of justice and not for the personal benefit of the individuals themselves.
This countermeasure to diplomatic immunities and privileges has NOT been widely discussed NOR applied to the Melinda Taylor incident.
The result of this influx of new opinions is that it twists on its head what we know about the Melinda Taylor incident. The prior legal opinions offered have been generated in many cases by affiliated academics to human rights lawyers and/or NGOs now denounced for ‘actively promoting the (Gaddafi) regime’. We wish to dispel some of these narrow legal opinions. Northwestern Law PDF or HERE
Abuse of Diplomatic Immunities and Privileges
We included some links to the varying opinions of abuse of diplomatic privileges and immunities and the countermeasures taken by states. HERE, HERE, HERE, HERE, HERE, HERE, HERE, HERE, and this ONE is funny.
And now we can discuss the specifics of the incident…
AN UPDATE As of the 11 July ICC ruling, we need to update about the Melinda Taylor incident.
Old Facts: as noted in our 1st of July article:
The world is certainly a small place: John Jones’ recommendation to the ICC’s Judges as the new legal representative of Saif Gaddafi came from none other than Melinda Taylor. The world remembers Melinda Taylor as the ICC public defender that while visiting her client, Saif Gaddafi in Zintan was taken into custody in June 2012. Allegations against Ms. Taylor and her three colleagues included possession of spy equipment and assorted documents, including a coded letter from Saif’s office manager, Colonel Mohamed Ismail. Although allegations were neither proved nor disproved, Saif is on trial for charges resulting from that incident.
New Facts: Saif is NO LONGER on trial for the charges resulting from the Melinda Taylor incident.
The ICC Ruling: its unveiled threat
In the 11th July ruling, ‘Decision on matters related to Libya’s duties to cooperate with the Court’ ICC Judge Silvia Fernández de Gurmendi stated Libya had NOT met ‘three obligations’ that demonstrates Libyan ‘cooperation’ with the Court. (page 4) The three obligations were to (i) hand Saif over to the court; (ii) give a privileged visit to Abdulla Senussi’s team, (Amal Alamuddin and Ben Emmerson) and (iii) handover ‘the originals of the materials that were seized from the former Defence counsel for Mr Gaddafi by the Libyan authorities during her visit to Mr Gaddafi in Zintan, and destroy any copies thereof’. (Page 4)
‘[T]o inform the Chamber, by Wednesday, 28 May 2014, as to the status of the implementation of: (i) its duty to immediately surrender Mr Gaddafi to the Court; (i) its duty to return to the Defence of Mr Gaddafi the originals of the materials that were seized from the former Defence counsel for Mr Gaddafi by the Libyan authorities during her visit to Mr Gaddafi in Zintan, and destroy any copies thereof; and (i) its duty to arrange a privileged legal visit to Mr Al-Senussi by his Defence and Abdullah Al-Senussi,..’
This Court order came with an unveiled threat from Judge Fernández de Gurmendi to the Libyan Authorities to comply with three obligations OR ‘the Chamber may decide at any time what further action is appropriate, including making a formal finding of non-cooperation and transmitting it to the Security Council.’ (page 8) or: (page 4)
3. On 15 May 2014, the Single Judge observed that Libya had failed to discharge, in particular, three obligations arising from three requests by the Court for cooperation with respect to the case against Saif Al-Islam Gaddafi and Abdullah Al-Senussi, and noted that “[i]n case of non-compliance with obligations to cooperate the Court with respect to situations which have been referred to the Prosecutor by the Security Council, one of the tools available to the Court is to make a finding of non-cooperation by the State and refer the matter to the Security Council” …’
What is interesting to note is the Court LINKED these three obligations; surrender of Saif, a visit by Senussi’s legal team AND the documents. By linking them, the Court arguably EQUATES and therefore VALUES the return of the Melinda Taylor documents as much as it does Saif Gaddafi’s surrender to the Court.
The ICC Ruling: Noting the termination of Saif’s trial in Zintan
Also in her 11th July ruling, Judge Fernández de Gurmendi noted as a ‘relevant step’ that the Libya’s Attorney General ordered the Chief Prosecutor of Zintan to terminate ‘the domestic criminal proceeding in Zintan.’ The Judge gave Libya until 20 August 2014 to ‘return the originals of the privileged documents to the Defence AND destroy any copy.’ (page 9)
6. It appears to the Single Judge that the letter of Libya’s Attorney General to the Chief Prosecutor of Zintan confirming that the domestic criminal proceedings in Zintan, which are at least in part predicated on the Defence privileged documents, must be terminated can be considered a relevant step towards the implementation of the duty to return the privileged documents to the Defence and destroy any copy thereof. The Single Judge also notes Libya’s submissions that confirmation that the national proceedings against Mr Gaddafi arising out of the events in Zintan in summer 2012 will no longer be pursued is expected to take place “in an upcoming procedural hearing taking place in Tripoli in the main criminal proceedings relating to crimes committed during the 2011 revolution”.
NOTE: This document was not specific as to which Attorney General. It was either Attorney General Abdel Kader Radwan or Anis Ibrahim Peschici. Radwan retired 30 June 2014.
Reasoning behind the Court’s demand for the documents
The result of the Court’s insistence that the case ‘must be terminated’ is that there will be NO TESTIMONY GIVEN or EVIDENCE SEEN in ANY court including Zintan. ALL documents will be returned and ALL copies destroyed. ALL evidence will be gone. Even if a copy surfaces, it will be discredited as there is no original with which to compare. And poof, it will be as if the incident had never have taken place.
The Court’s insistence backed up by threats of UN sanctions, implies that the ICC is fretting about what the testimony and evidence aired in a Zintan public court would do to their reputation.
The Chamber’s concern for its reputation
The Chamber is keenly aware and concerned about its reputation. The Court discussed how to ‘dispel confusions in the public perception’ and ‘the potentially adverse impact of continuing active representation of a particular suspect by the OPCD on the appearance of neutrality of the Court…’ The 11 December 2012 decision: (page 5) See our PDF: 11 Dec. 2012 ICC
‘…’Nevertheless, the Chamber took note of the concerns expressed by Libya and the Prosecutor as regards the potentially adverse impact of continuing active representation of a particular suspect by the OPCD on the appearance of neutrality of the Court.’
The Court continued: ‘…extremely difficult to dispel confusion in the public perception’: (page 5)
‘In this context, the Chamber acknowledged that “the representation of a suspect by OPCD in admissibility proceedings is intrinsically problematic as it appears to be extremely difficult to dispel confusions in the public perception in relation to the role of OPCD as opposed to the role of the Court.’
Even the OPCD, recognized that the Court found that its representation of Saif ‘intrinsically problematic’. (page 6)
5…the OPCD identifies the following two issues on which leave to appeal is sought: (i) whether the Chamber erred in its finding that the appointment of the OPCD in admissibility proceedings to represent the defendant is intrinsically problematic as it jeopardises the appearance of the impartiality of the Court…’
We argue that the Court was so concerned of the negative perception of its reputation; its motivation was to disassociate itself completely from the Melinda Taylor incident. Yet, in its attempt to disassociate itself the Court arguably sidestepped legal regulations thereby setting a legal precedent. See the beginning of our article: John Jones, Amal Alamuddin and Libya: A Financial Cache of Libya’s ICC Case.
The legal precedent set within THE CASE OF THE PROSECUTOR v. SAIF AL-ISLAM GADDAFI and ABDULLAH AL-SENUSSI
The legal precedent was to accommodate the appointment of John Jones, Saif Gaddafi’s lawyer, we argue. The appointment process prompted by the incident resulting in perceived bias forced BOTH Libya and the Prosecutor to request the replacement the OPCD as Saif’s legal representation. The Court rejected Libya and the Prosecutor’s request stating that IMMEDIATE replacement would probably result in the ‘re-litigation’ of the case so far. Apparently the Court didn’t want to go down that road. So, although ‘the appearance of neutrality’ concerned the Court, it took the action, NOT to remove OPCD as Libya and the Prosecutor requested but to order the OPCD to begin searching for its own replacement.
The above is detailed in this ICC decision on 11th December 2012:
(page 5) ‘Nevertheless, the Chamber took note of the concerns expressed by Libya and the Prosecutor as regards the potentially adverse impact of continuing active representation of a particular suspect by the OPCD on the appearance of neutrality of the Court,‘
(Page 4) ‘On 22 November 2012, the Chamber issued the “Decision on the ‘Submissions of the Libyan Government with respect to the matters raised in a private session during the hearing on 9-10 October 2012′”, in which, inter alia, it rejected Libya’s request to revoke the appointment of counsel from the OPCD as counsel for Mr Gaddafi (the “Decision”).’
(page 7-8) ’19….the OPCD argues that “[t]he replacement of Mr Gaddafi’s Counsel at this juncture necessarily impacts on OPCD “[s]ince the Decision has called into question the legitimacy and propriety of the OPCD’s representation thus far, either the replacement Counsel or the Government of Libya are likely to request that certain issues be re-litigated…’
As the OPCD requested, the Chamber ordered the Appeals Chamber to immediately reaffirm the validity of office of OPCD to prevent against re-litigation.
(Page 14) ‘and (ii) the Chamber has called into question the status of submissions made by the OPCD thus far. On these very premises the OPCD avers that the identified issues arise out of the Decision, affect the fairness and expeditiousness of the proceedings and must immediately be decided by the Appeals Chamber in order to materially advance the proceedings.’
As a result, three months later (March 2013) the OPCD citing ‘an imminent depletion in staffing’ as the basis of the ‘request to withdraw’ and offered John Jones as their recommended replacement. (Page 3) Although ordered, the ICC Registrar was NOT consulted about John Jones and warned that acceptance of both, withdrawal and the replacement recommendation, would set a legal precedent. (Page 5) Yet, the Court accepted both. (Page 8) To accommodate the recommendation and withdrawal, the Court arguably sidetracked ICC regulations.
Our article goes into more detail about warning of and arguable the legal precedent set by the Court and the firestorm that raged between the ICC departments concerning the appointment of John Jones.
ICC promises made and reneged
It seems that The ICC has since reneged on its obligations concerning this incident. The ICC has removed from their site the “Letter of Regret” to Libya over the incident. Although publicly promised at the time, there seems to be no investigation of the ICC staff. From our article:
We do note the ICC’s statement of regret to Libya for the incident “does not exist“any longer on the ICC site. Nor is the link available in several international sites as it was reported at the time: Here, Here , Here, Here, HERE. Although reported in the International Bar Association’s IBA ICC Programme: Fair Trial Digest May-June 2012 issue, “The ICC promised a full investigation into any misconduct…”, we were unable to find any evidence of an ICC investigation or conclusion of Ms. Taylor and her colleagues’ actions.
Attorney General of Libya went to The Hague on 22 June 2012, following which the President stated that: “The ICC 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.”
The Court NEVER ordered an investigation that we found – let alone ‘completed’ one.
Ahmed Al-Jehani, Libyan ICC Coordinator recognized by the Court was an eyewitness and present when Melinda Taylor was detained by the Libyan officials. His account was given to Michael Vincent of ABC PM during a radio interview.
An excerpt from the 2nd July 2012 radio interview: transcript and audio available.
MICHAEL VINCENT: You were there when she was apprehended initially, but she was never charged, was she, with spying?
AHMED AL-JEHANI: Yes the prosecutor general insisting that he should charge her in crime of spying, but really there is some obstacles in legal procedure, law and even in the international law. I mean that she has her privileges and immunity, which cannot be denied from the prosecutor general. For this reason the prosecutor general, Libyan prosecutor general is still insisting not to bring her before the judge.
We know from the beginning, if she was brought to a judge, Libyan judge, he would release her because she has also her immunity and privileges. Nevertheless, she committed a mistake really. I was an eye-witness when she took and surrendered and hand over documents and letters to Saif al-Islam Gaddafi.
MICHAEL VINCENT: So even though, as she say, she may have made mistakes by handing over these documents to Saif al-Islam Gaddafi, these documents relating to his right-hand man, Mohamed Ismail, you don’t think that she ever broke any laws either Libyan or international?
AHMED AL-JEHANI: Yes, yes communication with the enemy. There is a crime in Libya in the criminal court to communicate with the enemy of the state.
MICHAEL VINCENT: But you believe as a defence lawyer from the ICC she was protected?
AHMED AL-JEHANI: All the elements of this crime is proven really. And she brought a letter written in Arabic and she should be more, what we say, more careful to read, or to bring this letter to an interpreter to know what the contents of this document and this letter.
How can have and bring with you letters and documents without knowing its content?
MICHAEL VINCENT: But you believe her immunity has meant that she cannot be charged in Libya?
AHMED AL-JEHANI: Yes, from the prosecutor she was (inaudible) charges. But her immunity in, what we say, was an obstacle to prosecute here in Libya. So the prosecutor general he realise it, but too late, that he can’t prosecute them before the Libyan courts.
Highlights of Ahmed Al-Jehani’s interview: ‘Nevertheless, she committed a mistake really. I was an eye-witness when she took and surrendered and hand over documents and letters to Saif al-Islam Gaddafi.’… ‘All the elements of this crime is proven really. And she brought a letter written in Arabic and she should be more, what we say, more careful to read, or to bring this letter to an interpreter to know what the contents of this document and this letter…’How can have and bring with you letters and documents without knowing its content?’
The Reaction to the Evidence: OPCD
We argue that NO ONE is disputing the evidence: the OPCD, Libya and the Chambers. No one seems to vary from story with the alleged evidence as reported in the press. It was argued in Court despite the denials in the media. It is all there.
Actually, the OPCD’s argument is NOT that the evidence existed, but that Libya ‘failed to establish’ that the evidence was a security threat: (Page 14)
The Libyan authorities have also failed to establish that the contents of monitored communications or seized documents related in any way to attempts to “(i) arrange escape; (i) interfere with or intimidate a witness; (i) interfere with the administration of justice or (iv) otherwise disturb the maintenance of security and good order in the detention unit”.
As we examine the OPCD’s arguments, we arguably found contradictions. (Page 14) Note the image of the quote. In pure legalese, it seems the OPCD argued THEIR victimization.
We re-ordered the comments so as to make sense of the statement. The OPCD: ‘Everything that went into the meeting was visually surveyed and approved’, and then, ‘The ICTY detention regime does not permit the detention authorities to scrutinize the contents of Defence communications.’ But, logically if the Libyans were not allowed to ‘scrutinize’, how would they know what the documents were PRIOR to the meeting?
Further, IF the Libyans actually DID SEE the controversial documents/devices during the ‘visually survey’ PRIOR to the meeting, WHY allow the meeting to take place? This begs the question, how did the incriminating evidence materialize in the room? Logically, something is missing in this account.
It seems after NOT arguing the EXISTENCE of the controversial material, NOR how the incriminating evidence materialize in the meeting, we argue the OPCD’s defense was, ‘The Defence did not take in any concealed devices or concealed documents.’ (Do you hear the echo of trust me) (Page 14)
’30 Contrary to the Government’s insinuations, it is worth noting that the ICC delegation was subjected to a security screening before the meeting with Mr. Gaddafi. Everything, which went into the meeting with Mr.Gaddafi, had been visually surveyed and approved. The Defence did not take in any concealed devices or concealed documents. The ICTY detention regime does not permit the detention authorities to scrutinize the contents of Defence communications…’
NOR does the OPCD seem to dispute WHAT the multilingual guards actually HEARD during the meeting rather the OPCD’s complaint was that Ms. Taylor was NOT INFORMED of the linguistic ability of the guards.
(page 16)’… nor have they disputed that they deliberately misled the delegation concerning the linguistic abilities of the guards, who were planted in the meeting between the Defence and Mr. Gaddafi.’
The OPCD did not seems to dispute the evidence…just that Libya didn’t prove it was a threat
We reiterate The OPCD doesn’t seem to dispute the existence of evidence. Rather, the OPCD argument is Libya did not prove ‘that the contents of monitored communications or seized documents related in any way to attempts to “(i) arrange escape; (i) interfere with or intimidate a witness; (i) interfere with the administration of justice or (iv) otherwise disturb the maintenance of security and good order in the detention unit”. (Page 14)
The Reaction to the Evidence: Libya
Simply speaking, we argue the legal team representing Libya; Ahmed Al-Jehani, Philippe Sands, Payam Akhavan and Michelle Butler FAILED the Libyan people.
Despite Libyan ICC Coordinator Ahmed Al-Jehani’s as an attested eyewitness, in the subsequent ICC documents, Libya’s legal team:
DID NOT provide ANY supporting evidence ((page 15)
DID NOT argue misconduct, rather argued misjudgment (page 15)
DID NOT file an official misconduct complaint (Page 14)
DID NOT file a waiver of the diplomatic immunities and privileges (page 10)
DID NOT file with the ‘correct organ of the Court’ to pursue the Zintan case. (Page 9-10)
Considering the above list of work that the Libya’s legal team DID NOT DO, one could argue that the legal team failed in their duty to provide competent service in the best interest of the Libyan people. To attest, we provide quotes from the ICC documents.
Radio Interview Highlighted 2012 quotes from eyewitness, ICC Coordinator Ahmed Al-Jehani:
‘Nevertheless, she committed a mistake really. I was an eye-witness when she took and surrendered and hand over documents and letters to Saif al-Islam Gaddafi…’ ‘All the elements of this crime is proven really. And she brought a letter written in Arabic and she should be more, what we say, more careful to read, or to bring this letter to an interpreter to know what the contents of this document and this letter…’ ‘How can have and bring with you letters and documents without knowing its content?‘
(page 15) Libya DID NOT provide ‘supporting evidence’ i.e. the documents & equipment:
’32. The Chamber also notes that under the duties towards the Court pursuant to article 24 of the Code of Conduct, counsel is indeed personally responsible for the conduct and presentation of the client’s case and must exercise personal judgement on the substance and purpose of statements and questions made. However, the Chamber is not persuaded that the information provided by Libya, in the absence of supporting evidence, is sufficient to substantiate an allegation of a breach of such duties on the part of counsel from the OPCD.’
(page 15) Libya argued misjudgment NOT misconduct against Melinda Taylor:
31. The Chamber notes that the representatives of Libya fall short of specifically and clearly asserting that Counsel for Mr Gaddafi has breached a duty under the Code of Conduct. Rather, as detailed above, they (Libyan Lawyers) point at the elements that could demonstrate a misjudgement “of such gravity that it calls into question whether or not the OPCD can be said to be in compliance with its duties to the court under article 24 of the Code of Professional Conduct” .^^At the hearing, Counsel for Libya indicated that they were not necessarily making an allegation of professional misconduct, but they were certainly making an allegation of professional misjudgement.’
(page 15) Libya DID NOT file an official complaint of misconduct against Melinda Taylor:
1. The Chamber is also entitled, according to article 34(l)(a) of the Code of Conduct, to submit to the Commissioner – through the Registry – a complaint of misconduct which “shall describe in sufficient detail the alleged misconduct”. However, the Chamber is of the view that the allegations presented by Libya against the OPCD do not warrant a filing of a complaint of misconduct by the Chamber.
(page 10) Libya DID NOT file for a waiver of Melinda Taylor’s privileges and immunities:
7. For these reasons, the Chamber is of the view that, in the absence of a waiver of privileges and immunities by the appropriate organ of the Court, the principle of inviolability of the Defence documents stands fully. Accordingly, Libya must return to Counsel the originals of the materials belonging to the Defence and seized in Zintan as well as destroy any copies thereof.
(Page 9-10) Libya DID NOT file with the ‘correct organ of the Court’ to pursue Libya’s right to proceed with the Zintan case. As a result it gave the Chamber the right to cancel the Zintan case by default. The Court, by saying it is not their duty to investigate upheld the documents inviolability, then ordered the documents returned. As the documents are the basis of the Zintan case, the case is over:
26. At the same time, the Chamber is not in a position to determine whether an exception to the principle of inviolability of the concerned documents would be justified, and therefore whether the privilege should be lifted. Such a determination cannot be made in the abstract but would require an assessment of the particular circumstances surrounding the events in Zintan. In this regard, the Chamber reiterates that it is not the competent organ to establish such factual circumstances and it does not have the power to seek and receive submissions of fact and law in relation to these events.
It was easy for the Court to rule. It seems that the Libya’s legal team broached the issues but either did not follow through or did not use the ‘correct organ of the Court’ to file their petitions. One could argue the Libyan legal team DID NOT represents the Libyan people competently.
Pertinent to our discussion, again we note that Ahmed Al Jehani, Philippe Sands, Payam Akhavan and Michelle Butler are part of the ICC alliance of lawyers which John Jones referred to as the recipients of “the legal expenses of the Libyan Government ran into millions.”
The Reaction to the Evidence: The Court
As it seems that the Libya’s Legal team DID NOT provide the correct case, the Court’s 1 March 2013 ruling cited The Rome Statute and Agreement on Privileges and Immunities of the International Criminal Court 48.4 (page 8). The Court Ruling: (page 10) SEE: ICC Document MARCH 1 3013 PDF
7. For these reasons, the Chamber is of the view that, in the absence of a waiver of privileges and immunities by the appropriate organ of the Court, the principle of inviolability of the Defence documents stands fully. Accordingly, Libya must return to Counsel the originals of the materials belonging to the Defence and seized in Zintan as well as destroy any copies thereof
The Court’s Ruling: Irresponsibility and Hypocrisy
The significance of this ruling one could argue is irresponsibility. We argue the Court’s concern was technicalities, NOT did she actually do the crime. As such the Court’s decision is based on: Is it technically covered by the privileges and immunities? We argue that the Court DID NOT follow the spirit or wording of Regulation Article 26.1 of the Wavier of Immunities and Privileges: (Page 228)
26.1 The privileges of and Immunities provided for in articles 15 to 22 of the present Agreement are granted in the interest of the good administration of justice and not for the personal benefit of the individuals themselves. Such privileges and immunities may be waived in accordance with article 48, paragraph 5. Of the Statute and the provision of this article and there is a duty to do so in any particular case where they would impede the course of justice and can be waived without prejudice to the purpose for which they are accorded.
‘The privileges of and Immunities…are granted in the interest of the good administration of justice and NOT for the personal benefit of the individuals themselves is EXACTLY what the Court conveniently FAILED to consider in their ruling. Article 26.1 is NOT for the ‘benefit of ‘ or to PROTECT the recipient from prosecution due to illegal activity. In other words, not a GET OUT OF JAIL FREE card. The valid argument can be made that regardless if Libya failed in their case, the Court SHOULD have investigated Melinda and et al for their conduct. Not to is tantamount to hypocrisy.
The Parallels between the incident of Former Chief Prosecutor Luis Moreno Ocampo
We offer the case of former Chief Prosecutor Luis Moreno Ocampo. In both cases, there are accusations of bias. The Court recognized that each incident might “lead observers to question the integrity of the Court as a whole…’ Yet, the Court settled each incident differently. This coincides with how differently each participant viewed the ICC’s authority over Saif Gaddafi’s case. The OPCD and Melinda Taylor argued Saif should be tried at the ICC and conversely, Mr. Ocampo felt Libya should try him. (Note, the OPCD filed the complaint against Ocampo.)
Chief Prosecutor Ocampo received a public rebuke after vigorously pursuing the original arrest warrants and dared to question the International Criminal Court’s authority over these cases. We quote Beth Van Schaak: HERE
“The Office of the Prosecutor’s position in this admissibility challenge is significant. The prior Prosecutor, Luis Moreno Ocampo, had from the beginning taken the position that the Libyans should be allowed to prosecute the two defendants, once stating that he was “not competing for the case.” Such remarks, coupled with statements about Gaddafi’s guilt in public appearances with members of the Libyan transitional government, prompted the Office of Public Council for the Defense (OPCD)—a sort of legal aid office that represents defendants before they appoint private counsel—to move for Ocampo’s disqualification from the Gaddafi case on grounds of partiality. (Biased towards Libya) Although the motion was not granted, it did earn Ocampo a public rebuke from the judges, who ruled that the prosecutor’s behavior was “clearly inappropriate in light of the presumption of innocence” and might “lead observers to question the integrity of the Court as a whole…”
Yet, with Melinda Taylor et al., the Court chose to ignore the applicable regulation to pursue a different approach. On why, we offer a plausible answer…Politics.
The Political Dimension of the International Criminal Court
Politics of the ICC, a taboo subject, is rooted in the fact that the Court’s legitimacy is based on competing ideas of impartiality, neutrality and the basic idea of FIGHTING IMPUNITY.
However, the International Criminal Court due to its funding, is vulnerable to international political actors. In particular from the United States says The New York Times’ article U.S. Grows More Helpful to International Criminal Court, a Body It First Scorned. In the April 2013 article MARLISE SIMONS interviewed a state department lawyer and an academic who agree that the United States financial contributions to the Court played a role in making the ICC “an important forum” for advancing United States national security and humanitarian interests.’ We provide two excerpts from the article:
Harold H. Koh, the State Department’s legal adviser, speaking last November in the Netherlands, made a strong impact on his audience, including lawyers and diplomats, when he called the court “an important forum” for advancing United States national security and humanitarian interests. Global criminal justice “can help increase stability and thus decrease the need for more costly military interventions in the future,” he said.
Florian Jessberger, who teaches international criminal justice at the University of Hamburg, described the I.C.C. as a global court that is “somewhere between a court of justice and politics,” adding, “If the U.S. got involved without even being a member, it is to extend its influence for political reasons.”
The ICC is a ‘global court that is somewhere between a court of justice and politics.’ Conflicting Ideas at work: justice & politics? It seems that the US has been using its Reward for Justice Program to indirectly fund the ICC. Direct funding is illegal under US law. Stephen J. Rapp, the United States ambassador for global criminal justice elaborated in the article:
“The offer of rewards for I.C.C. fugitives will be the biggest step we’ve taken toward engagement and support” for the court, he said’…. ‘Under United States law, no money can be paid directly to the court. But a law adopted by Congress in January allows for payments to third parties for crucial information leading to fugitive arrests. Similar payments were offered to track down fugitives from the courts investigating atrocities in Rwanda and the former Yugoslavia’…“We have paid 14 rewards in the last three years,” from $75,000 to $2 million, Mr. Rapp said’…
‘… To use the court as an adjunct to soft power makes sense for the U.S.,” he said. “It’s cost-effective. If you can remove a warlord through the court, it’s a lot cheaper and more acceptable than using force.”.. says ‘Courtenay Griffiths, the defense lawyer for former President Charles Taylor of Liberia:
Not all human rights lawyers find a problem on the neutrality issue with the influx of ‘American Muscle’ in the International Criminal Court. Geoffrey Robertson, founding partner in Doughty Street Chambers, actually encourages it. The article:
“This court needs some American muscle and power to produce in the future,” said Geoffrey Robertson, the author of “Crimes Against Humanity” and a former international judge. “The Obama administration could become an associate member, if this were on offer. That the United States remains leader of the free world should realistically be welcomed, given the alternative candidates.”
We note that Doughty Street Chambers are flexing their muscles too. Members Amal Alamuddin, John Jones and Wayne Jordash represent three DIFFERENT Libyan clients on EITHER side of the SAME Libyan case at the ICC. That is ALL the case’s participants. See our article: Doughty Street’s Amal Alamuddin, John Jones and Wayne Jordash & ALL their Libyan Clients.
An arm of the US foreign Policy?
We reiterate that during the Barack Obama & Samantha Power administration the ICC has become “an important forum” for advancing United States national security and humanitarian interests”. We can only speculate how politics affected the ruling in the Melinda Taylor incident… and the Saif Gaddafi case?
Previous Accusations of Political Games at the ICC
In 2013, The Independent ran a Robert Fisk article that speculates that the ICC is playing political games with the Abdulla Senussi case. The article entitled ‘Is the Hague Making a Mockery of Justice so the CIA and MI6 can Save Face?’ starts with the statement ‘There’s a spot of skulduggery going on in the International Criminal Court (ICC) at The Hague’. According to Mr. Fisk, the ICC motive for letting Libya try Abdulla Senussi is that “Human rights activists regard Senussi as the black box recorder of the secret liaison between MI6, the CIA and Gaddafi’s security regime.’
Interviewed in that article is Ben Emmerson, lead counsel for Abdulla Senussi, who discussed his client’s case. With reference to Saif case, noting these are the SAME cases, Mr. Emmerson stated:
The ICC had ruled that Libya was “not fit to try Saif Gaddafi”, said Mr Emmerson. “The same standard must equally apply to Mr Senussi who is charged in the same case with Saif Gaddafi in Libya.”
Let’s flip that around, in light of the reaffirmation of the ICC ruling that considers the Libyan Justice System WILLING and ABLE to providing a FAIR trial for Abdulla Senussi, logically speaking, competent for one MUST BE competent for BOTH. So, Saif could be given a fair trial in the same ICC-approved system. If not, IS the Court’s illogical decision…a political decision? The Court in anticipation of this quandary preempted the inquires in its press release by saying there is NO LINK between the two cases.
‘Today’s judgment has no bearing on the case against Saif Al-Islam Gaddafi. On 31 May 2013, Pre-Trial Chamber I rejected Libya’s challenge to the admissibility of the case against Saif Al Islam Gaddafi and reminded Libya of its obligation to surrender the suspect to the Court. On 21 May 2014, the ICC Appeals Chamber confirmed the Pre-Trial Chamber I’s decision.
In light of the political aspect of the Court, and the illogical ruling on Saif, is the ICC a fair broker?
As Robert Fisk, Ben Emmerson, Academic Florian Jessberger, Courtenay Griffiths, President Charles Taylor lawyer and Harold H. Koh, US State Department legal adviser STATED the ICC is a political/legal entity, we ask has the ICC been playing political games with Saif Gaddafi’s case? Again, if the Court considers and reaffirms that the Libyan justice system competent for Abdulla Senussi, WHY NOT for Saif? Considering the Melinda Taylor incident, Libyan must ask …will Libya get a fair trial concerning Saif at the ICC?
Finally, the Libya government has asked the UN Security Council to assist it with its deteriorating security issues. Does this assistance come with strings? Has the Security Council, a political organization made Saif’s surrender a prerequisite for their assistance? We hope that this not the case.
Libya’s ICC Lawyer Payam Akhavan made a comment in 2011 about the importance for Libyans to try Saif, themselves. (video 1:14 or Our Copy) Although his quote seems less likely today, it is much more important.
“..but for Libya courts, naturally they are interested in trying to hold this case in Libya, itself where it will have much more immediate impact and perhaps contribute to national reconciliation.’
We hope the Security Council gives the Libyan people this chance.
What is ironic or just sad about these ICC documents is that they are written by those who portray themselves as the purveyors of the World’s Justice. It is unconscionable to think that Melinda Taylor’s office, the OPCD is arguing NOT the EXISTENCE of incriminating evidence but the fact that we argue, no matter what she did, illegal or not, it was an action protected under the umbrella of Agreement on the Privileges and Immunities of the International Criminal Court. ( Page 224)
Melinda Taylor and Mr. Xavier-Jean Keïta are counsels of The Office of Public Counsel for the Defense, the OPCD, and represent the International Criminal Court. As public defenders of The International Criminal Court, Melinda Taylor and Mr. Xavier-Jean Keïta degraded, we argue, not only themselves but the office they represent and the ICC in general. The ICC Judges are lured into the discussion as the OPCD argue technicalities on why her activities are not necessarily criminal under diplomatic immunities and privileges. Ringing a bit hollow; The ICC at a Glance states that:
‘In all of its activities, the ICC observes the highest standards of fairness and due process. The jurisdiction and functioning of the ICC are governed by the Rome Statute.’
‘The highest standards of fairness and due process’ is not reflected in the allegations leveled against Melinda Taylor et al. The allegations against Ms. Taylor included violations of Chapter 3 of ICC Code of Professional Conduct for Counsel. In particular Article 24 of “Duties to the Court” and 31-“Misconduct”. (Page 6) ‘The Chamber notes article 19 of the Rome Statute, rule 58 of the Rules of Procedure and Evidence, regulations 24, 34 and 35 of the Regulations and articles 31, 33, 34, 37, 39-42 of the Code of Professional Conduct of Counsel (the “Code of Conduct”).’
Privileges and Immunities
Although Libya’s legal team did not present a case, we argue the one at blame is the Chambers. Article 26.1 (Page 228) ‘The privileges of and Immunities…are granted in the interest of the good administration of justice and NOT for the personal benefit of the individuals themselves‘ is exactly what we argue the Court conveniently FAILED to consider in their ruling. As Article 26.1 is NOT for the ‘benefit’ or protection of the recipient because of illegal activity. If Libya failed, the Court should have initiated the investigation. Therefore, we wish to present again why Ms. Taylor SHOULD HAVE been held to account for the incident. In the words of the OPCD, not that she didn’t have illegal items, just that Libya didn’t prove that it was a threat: (page 14)
‘The Libyan authorities have also failed to establish that the contents of monitored communications or seized documents related in any way to attempts to “(i) arrange escape; (i) interfere with or intimidate a witness; (i) interfere with the administration of justice or (iv) otherwise disturb the maintenance of security and god order in the detention unit”.
The net result of this ICC strong-arm tactics is the removal without any trace of the incident that it will go down in history without being proved or disproved. Lacking any evidence, it leaves the world to believe that Libya was unwarranted in its arrest and that Melinda Taylor et al were victims of a Libyan aggressor without cause.
And that my brethren, is how we argue, a judge, in this case an ICC Judge, wipes clean, expunges from history an incident by forcing it to disappear without any actual examination of the evidence, thus leaving the International Criminal Court’s reputation unblemished. As Winston Churchill said “History is written by the victors.” We say in this case, History was written by the bullies.
August 20th was the due date for the documents to be handed over. As of 27th August 2014, the documents have not been surrendered.Follow @newlibyareport
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