The four members of the International Criminal Court made it home safely to the Hague after 25 days in custody in the western Libyan town of Zintan. Still in jail in that town, however, is a far-higher-profile detainee — Saif al-Islam Gaddafi — who on Tuesday was languishing through his 227th day in captivity, with his case now seemingly in shambles, and with questions still lingering about the ICC’s role itself.
The arrest of the four ICC employees was the gravest crisis the international court has experienced since it opened its doors a decade ago; last Sunday, in fact, marked its 10th anniversary. The ICC had dispatched one of its defense attorneys, Melinda Taylor, to Zintan for her second visit, along with three others, to nail down legal representation for the slain leader Muammar Gaddafi’s most powerful son, who was cornered in the country’s Sahara last November by Zintan’s armed brigade, which now runs that town. Taylor was also tasked with helping the ICC decide whether Libya should be permitted to try Saif on its own soil, rather than transfer him for ICC trial in the Dutch capital, under Libya’s obligations as a U.N. member state.
Midway through Taylor’s meeting with Saif, Zintani officials broke up the discussion and arrested her, saying she was passing him coded letters that threatened Libya and that she had smuggled in a hidden camera and recording device. One of the letters Taylor gave to Saif had been written by his close aide Mohamed Ismail, according to a TIME interview with Ismail. One day after Taylor’s arrest, a Foreign Ministry official told reporters that passing the letters was an “act that is jeopardizing the national security of Libya” and predicted that Taylor would “be with us for a while.” In the end, it took a public apology from the ICC last weekend to get Taylor, an Australian, released without charges.
But did the ICC do anything wrong? That remains unclear, since the ICC has not denounced the arrest of its staff, choosing instead to use cautious language in its handling of the crisis. On Monday the ICC’s president, South Korean lawyer Song Sang-hyun, said he was “grateful” to Libya for releasing the team, and after the arrests last month, Song said the ICC was “very concerned about the safety of our staff” and asked Libya to “ensure their safety and security and to liberate them.”
Indeed, having finally made it home to her husband and young daughter, Taylor, 36, could find herself under scrutiny from her bosses about how her Libyan mission — the most crucial of her career — went wrong. “We are seeking full information about the investigations in Libya in order to conduct our own investigation,” ICC spokesman Fadi el-Abdallah told TIME on Tuesday. “We can ask them exactly what happened.” Taylor did not respond to TIME’s text messages to her cell phone on Tuesday. When TIME asked el-Abdallah whether Taylor would continue to work on Saif’s case, he said, “Nothing is decided.”
Back in Zintan, meanwhile, Saif’s case appears to have reverted to square one. Taylor, who had been the only lawyer Saif had seen during his seven months in captivity, is unlikely to be allowed to return to Libya, judging by official Libyan statements in recent weeks. Even before her visit last month, Taylor had harshly criticized Libya’s handling of Saif, who has not been allowed phone calls or visits since being captured last November and as yet has not officially appointed his own legal counsel. Writing in a statement after her first visit to Saif earlier this year, Taylor said Libya was keeping him “in a legal black hole.” She also criticized the Libyan government for having “performed a dramatic volte-face,” by first informing Saif that he was under investigation for irregularities concerning his fishing business and later telling him and the ICC’s public-defense office that he was under investigation for war crimes.
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As Libya is scheduled to hold its first elections in 60 years on Saturday, Saif’s case is unlikely to advance until a new government is elected and installed, probably later this month. Even then, it will require some work to ready a deeply dysfunctional justice system for a trial that would meet international standards. Thousands of Libyans remain detained by various militia groups that have arrested them over the past months on suspicion of being Gaddafi supporters. “Rebuilding the Interior Ministry and the whole justice system, that will be our main concern after the elections,” says Fathi Baja, head of the National Transitional Council’s international-relations committee, on a phone call from Benghazi on Tuesday. “All these people will have to be handed to the legal justice system of Libya, otherwise there will be disorder.”
The top prisoner, of course, is Saif al-Islam Gaddafi, and Baja believes the new Libyan government will ultimately conduct a fair trial — especially given how determined it will be to avoid transferring him to the ICC. “Most people I know agree that he has to have a fair trial,” Baja says. “He has to choose his own lawyers.” The ICC’s defense lawyer Melinda Taylor might not be among them.
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