* This post is based on the ICC Press Releases ICC-CPI-20120702-PR820 and ICC-CPI-20120702-PR821 of 2 July 2012
In the evening of 2 July 2012, the President of the International Criminal Court (ICC), Judge Sang-Hyun Song, together with four ICC staff members previously detained in Zintan, Libya, as well as other staff of the Court, left Tripoli to return to The Hague, the Netherlands, on a plane generously provided by the Italian Government, following the release of the four ICC staff members.
The four staff members, Alexander Khodakov (Russia), Esteban Peralta Losilla (Spain), Melinda Taylor (Australia) and Helene Assaf (Lebanon), were well treated during their detention in Zintan since 7 June, and are in good condition.
The ICC expressed its warm gratitude to the Italian Government, in particular to the Minister of Foreign Affairs M. Giulio Terzi, for facilitating the travel of the ICC delegation back to The Hague to allow the four ICC staff members to be reunited with their families, by offering the transport and logistical facilities for them. The press release notes that the Italian Government’s support goes beyond Italy’s legal obligation as a State Party, and shows its continuous commitment, since the 1998 Rome Conference where the ICC’s founding treaty was adopted, to participate in the global fight against impunity for the perpetrators of the most serious crimes.
Earlier on 2 July the ICC released another press release (ICC-CPI-20120702-PR820), where President Song expressed his thanks to the Zintan authorities for their cooperation and his relief that the ICC staff members were well treated during their detention. The four ICC staff members were detained in Zintan during the course of a privileged visit to Saif Al-Islam Gaddafi. The visit, authorised by the ICC’s judges, had the purpose of preserving the rights of the defence in the case against him before the ICC.
The circumstances of the visit became a matter of concern to the Libyan authorities, and have been the subject of investigation by them. Information about that investigation was presented to the Court during the visit of the Attorney General of Libya to The Hague on 22 June. The ICC President confirmed that the information reported by the Libyan authorities on the visit’s circumstances will be fully investigated in accordance with ICC procedures following the return, scheduled today, of the four staff members to The Hague.
The ICC extended its gratitude for the unconditional cooperation and support of the States in ensuring the release of the ICC staff members, in particular Australia, Lebanon, Russia and Spain. Diplomatic representatives of Australia, Lebanon, Russia and Spain also traveled to Zintan to receive their nationals.
Among other things, the incident shows once more the general lack of understanding by State authorities of the immunities and privileges accruing to Defence staff, adding to the case of Peter Erlinder and the defence staff of Gotovina. It also strengthens the case for Saif Ghaddafi to be tried at the ICC, rather than at Zintan! In the coming months I will be writing a book chapter on the issue of immunities and privileges for the Defence for a book that will be published sometime next year. While misunderstandings with regard to rights and duties of parties to a case can arise, the detention of the four ICC staff in Libya resembled a lot a hostage-taking situation necessitating the involvement of the highest ICC leadership and the countries concerned for the fate of their own nationals! I doubt Saif Ghaddafi will be receiving any visits soon from his legal counsel. Nor can he expect much leniency from Zintan law.