Is the International Criminal Court Facing Its 'Black Hawk Down' Moment?

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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.

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Alajmi Ali Ahmed al-Atiri, the head of the militia holding Saif al-Islam Qaddafi, holds up a document as he addresses the media in Zintan. (Reuters)

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.

The reason established governments wouldn't do anything like this is that Taylor and her colleagues were in Libya on official ICC business and are therefore entitled to diplomatic immunity. Regardless of what the Libyans claim the ICC staff members did -- and regardless even of whether they actually engaged in any wrongdoing -- they cannot be detained, investigated, charged, tried, or punished.

Diplomatic immunity may seem like a trivial matter compared to the weighty issues Libya has faced -- war and peace, dictatorship and democracy -- but, as the oldest and most inviolable principle in international law, how it's treated here will have ramifications far beyond Libya. At the height of the Cold War, the U.S. and the Soviet Union honored the immunity of each other's diplomats, even when those diplomats were suspected of being spies. The superpowers have been equally respectful of the immunities of less powerful states. In 2004, for instance, the U.S. State Department intervened in support of Robert Mugabe's immunity from suit during a visit to the United Nations, though Zimbabwe was under U.S. sanctions at the time. Even countries that are actively at war nearly always honor the immunity of each other's officials. Immunity is the sinew that binds together so much of international relations. Without it, diplomacy, treaty negotiations, and the very existence of international organizations would all collapse into impossibility. In short: it is a very big deal.

And yet, thus far, there has been no global outcry in response to this violation of the ICC staff members' immunity. In particular, the UN Security Council's silence has been deafening, especially because the ICC got involved in Libya at the Security Council's express request. Apparently, the Council is willing to send the court's employees into dangerous situations, but can't be bothered to issue a press release if their safety is threatened as a result.

The ICC needs the international community's help to pressure Libya for the safe release of Melinda Taylor and her colleagues. If they don't get it, then it could set a precedent that would make it risky, possibly prohibitively so, for the ICC to operate in situations of political instability or ongoing conflict.

That matters, because the ICC's intended role is to "put an end to impunity for the perpetrators" of atrocities and "contribute to the prevention of such crimes." The court is expected to serve a particularly important function in places where weak, unreliable, or non-existent political and judicial institutions make trials impossible. In theory, the ICC, backed by its international mandate and cloaked in the protection of the international community, will be able to adjudicate war crimes and other mass atrocities in places where local attorneys and judges could never safely do so. But if the court is unable to safely conduct investigations, meet with witnesses, or ensure that defendants receive proper legal representation, it won't be able to adjudicate its way out of a paper bag.

The ICC is a young institution, and the outcome in Libya will signal whether the court can truly effect change in countries in crisis. If the court's involvement provides an opportunity for spoilers to destabilize the balance of power, then it cannot reliably promote peace in these sorts of situations. In that case, the court's future could be limited to addressing past crises in relatively stable countries. If, that is, it has a future at all.

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Kate Cronin-Furman & Amanda Taub

Kate Cronin-Furman is a lawyer and a PhD candidate in political science at Columbia University. Amanda Taub is a lawyer who teaches international law and human rights at Fordham University. They write regularly at WrongingRights.

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