When Libyan authorities arrested four ICC staffers, they created what could become a make-or-break moment for the court's ability to work in ongoing crises.
The 1993 Battle of Mogadishu, colloquially known as "Black Hawk Down," marked a turning point in U.S. foreign policy. The United States had sent troops to Somalia to protect humanitarian aid convoys and promote peace and security, in an operation that seemed to signal a new era of humanitarian military interventions. However, that era lasted only until televisions across America showed Somali rebels dragging U.S. soldiers' mutilated bodies through the streets of Mogadishu. Three days later, President Clinton ordered a halt to all military actions in Somalia except those required for self-defense. Six months later, U.S. forces pulled out entirely. Shortly after that, when genocide broke out in Rwanda, the United States stuffed its fingers in its ears and hummed loudly.
Now the International Criminal Court faces what could be a defining moment of its own as an intervener in international crises. Last Thursday, four ICC employees -- defense attorney Melinda Taylor, translator Helene Assaf, and senior staffers Alexander Khodakov and Esteban Peralta Losilla -- were arrested in Zintan, Libya, where they are still being held. If their safe release cannot be achieved quickly, then the implications for the court's future are likely to be grave.
The four were in Zintan so that Taylor could meet with her client, Saif al-Islam Qaddafi, to discuss his defense in the ICC case against him. The court issued an arrest warrant last June for Saif, as well as his father Muammar and former Libyan intelligence chief Abdullah al-Senussi, for crimes against humanity committed during the regime's brutal attacks on civilian demonstrators in early 2011. Now, the Libyan authorities claim that Taylor and Assaf exchanged documents with Saif, and had "recording equipment" with them during the interview. Neither activity would be unusual for an attorney-client meeting, but Taylor and her team are supposedly being investigated on charges of spying. Libyan authorities have said that they will be held for 45 days, and frequent references to "threats to national security" do not inspire confidence in their fate thereafter.
Libya is an important test for the International Criminal Court. It's a challenging case -- this is the first time the ICC has faced opposition to its jurisdiction from a national government that genuinely wants to try its accused war criminals domestically. But it's arguably exactly the sort of situation that the court was designed to resolve: a country with a recent history of violence and a national government interested in ensuring accountability. However, because Libya has only recently emerged from civil war, and the new administration has still not managed to disarm all the militias, the potential for violence to break out again is high.
The ICC staff members were arrested by a local Zintani militia beyond the control of Libya's new government, the National Transitional Council. The same militia has custody of Saif, and has been using him as a bargaining chip with the NTC, so the arrest of the ICC staff may simply be an attempt to secure more valuable hostages. This scenario is most likely to recur in other unsettled contexts such as Libya's, where the central state hasn't consolidated its monopoly on organized violence. Although more stable post-atrocity governments may be inveterate violators of the finer points of international law (not massacring ethnic minorities, for example), they are sufficiently interested in the good opinion of the international community to refrain from grabbing diplomatic staff and shaking them upside down to see if any toy surprises pop out.