We have a piece up at The Atlantic today!
It’s about the four ICC staff members who have been detained by the Zintani militia in Libya, and why this is a super-duper-big-deal-for-serious-we-mean-it for the court. (We don’t want to spoil anything, but it’s possible that the phrase “Black Hawk Down” gets used.)
In short, the violation of the staff’s diplomatic immunity complicates an already tense interaction between Libya and the ICC, and potentially undermines the court’s ability to work in unstable contexts.
Some important issues raised by this crisis that we didn’t have space to discuss in the article:
- Reuters’ bizarre quote from outgoing ICC prosecutor Luis Moreno-Ocampo that “the Zintan authorities claim they have the right to investigate the case against the ICC pair,” but ”It’s not what we would expect from the court…from the defense.” Really, dude? How about “they have full immunity from investigation, detention, and prosecution, so this is categorically unacceptable and they must be released immediately.” Couldn’t he have started at FIFA last week?
- The fact that you can bet LMO would have given an unambiguous statement of support for any Office of the Prosecutor or Registry staff members in similar circumstances. Defense counsel have always had a bit of a struggle at the international tribunals (enthusiasm for international justice is limited to prosecuting the architects of mass atrocity, not so much defending them); should we take the absence of international outcry regarding Taylor et al.’s detention as one more indication of their second class status?
- Traditionally, a large part of immunity’s force within international law has been based on reciprocity; states respect foreign officials’ immunity because they didn’t want to put their own diplomats at risk. That dynamic isn’t present for international institutions, which “take” more immunity than they “give.” The ICC is a particularly strong example of this, given that it asserts the right to try heads of state and other officials who would otherwise be immune. Does the Court’s inability to reciprocate make its claim to immunity for its staff members less compelling?
- Unlike domestic courts, the ICC can’t try crimes that have been committed against itself. In light of recent events, that seems like a serious weakness.