The key fault lines dividing the interim Libyan central government from both the militias and the international community are starkly illustrated in the ongoing saga surrounding the detention of four International Criminal Court (ICC) officials in Libya since June 7th. Among the detainees, Melinda Taylor has received the brunt of media attention, because she is a young and attractive Australian lawyer who was assigned by the ICC to represent the deposed dictator’s son, Saif al-Islam al-Qadhafi. She is currently being held captive by Zintani militiamen for ‘spying’.  She allegedly possessed a digital pen camera and passed her client encrypted messages from Mohammad Ismael — a former crony of Saif’s, wanted for war crimes.

It will likely be impossible for the ICC to prove the truth or falsehood of these allegations against their employee. To resolve this impasse, on June 19th representatives of Libya’s National Transitional Council (NTC) purportedly suggested to the Australian Foreign Affairs Minister, Senator Bob Carr, that Taylor might be released if only the ICC apologized ‘for breaches in protocol’, and on Friday, June 22nd the ICC expressed its ‘regret’ that Ms. Taylor’s actions gave ‘rise to concerns on the part of the Libyan authorities’.

The Dangers of Apologizing

Experts in international law such as Widney Brown of Amnesty International counseled against a direct apology feeling it would undermine the authority of the court.  ‘I understand the urgency of the Australian government to see Melinda Taylor released, but I would urge the Australian government to have a much longer-term view of whether you want to undermine the independence of the International Criminal Court and create a precedent where governments think well, if we just lock somebody up then we’ll get them to back off.’ Despite the wisdom of her argument from a theoretical perspective, her emphasis on issues of international legal precedent clearly misunderstands the Libyan context.

And Apologizing Doesn’t Always Work

The NTC have only provided legal cover for the militia’s detention of Taylor to pretend to be in control of the situation; and now they have procured the ICC’s pseudo-apology for the exact same reason. In the latest twist, as the NTC  has absolved their fellow Libyans of any wrong doing by forcing the ICC to apologize, the Guardian reports that Libyan Prime Minister Abdel Rahman Al-Keib stated that Taylor won’t be released because she ‘compromised Libyan national security.’ In other words, now that the apology was procured, it is being deemed insufficient. However, other news outlets have a conflicting report that Australia’s Department of Foreign Affairs and Trade cannot confirm that Al-Keib made such a statement.

The Back Story

To understand the likelihood of her release and what this issue tells us about post-Qadhafi Libya, the motives behind Taylor’s incarceration must be unraveled. Taylor is merely a pawn in a larger conflict between the proactive ICC led by Luis Moreno Ocampo, who is eager to secure Saif’s extradition, and Libya’s interim government, which is reluctant to turn over the most prominent living symbol of the regime it overthrew.  And although they are the ‘legitimate’ actors in this saga, it is actually a non-state actor, the militia from the city of Zintan, which captured Saif, which holds most of the cards and is successfully channeling popular sentiment. Surrendering Saif to the ICC would be seen by most Libyans as an abject failure.

NTC’s Lack of Judicial Capacity

The simmering tensions between the ICC and Libya were bound to explode after Taylor’s last meeting with Saif on March 3.   At that time the ICC refused to grant Libya’s NTC the right to try Saif in Libya. In numerous subsequent briefs ICC prosecutors have consistently argued that they alone possess jurisdiction. Professor Ahmad Jihani, Libya’s representative to the ICC and former NTC Infrastructure Minister, told court officials in March that Libya’s murder case against Saif al-Islam Qadhafi ‘had been terminated because they had no evidence against him.’  In lieu of prosecuting him for crimes against humanity, he is being held on charges of not possessing a camel license and the dubious hygienic conditions on his fish farms.  Though the NTC will eventually bring fresh incitement to murder charges against him, the obstacles are reflective of the deeper challenges the new Libya faces.  After forty-two years of Muammar al-Qadhafi, few functioning government institutions remain.

Unlike in Tunisia and Egypt, the Libyan interim government must build all its ministries from scratch. Some technocratic expertise exists in Libya — especially in the fields of oil, water, banking, and agriculture, but virtually none exists in the justice system.  During the Qadhafi era, ‘relationships and negotiations took precedence over the legal system’ according to American diplomatic cables released by Wikileaks. The NTC, therefore, has few judicial officials it can rely on to prosecute Saif’s case in a way that would demonstrate to international observers that he can receive a fair trial in Libya, which does not bode well for the thousands of other prisoners awaiting trial in the transitional justice process.

The NTC: Between a Rock and a Hard Place

Cognisant of these challenges, yet reluctant to relinquish its most prized prisoner, the NTC understood that another acrimonious meeting with ICC defense counsel would be detrimental to its goal of trying the younger Qadhafi in Libya.  As Professor Jihani said in an interview with an anonymous colleague of the author’s in December 2011, ‘if we don’t start to investigate and prosecute Saif, the incessant demand to turn him over to the ICC will increase in force, and we will have no convincing reason for not doing so.’ Yet even in that scenario it is unlikely the militia would comply with NTC demands. Instead, the Libyan interim authorities would be caught between a rock and a hard place — unable to simultaneously satisfy the contradictory demands of the Zintan militia and the international community.

In formally arresting Taylor and her colleagues after they had already been de facto detained by the militia, the NTC has sought to hamstring the ICC’s efforts. Simultaneously, they are sending the court a message that Libya will not tolerate any infringements on its sovereignty.  Then, by offering to attempt to secure Taylor’s release from the Zintanis in exchange for an apology from the ICC, the NTC is still grasping at her as a means to prop up its tottering legitimacy.  Securing the pseudo-apology was a tacit admission by the ICC that if they want to be involved in Saif’s case they have to play by Libyan rules. It was also a marked victory for the NTC, demonstrating to the militias that the NTC can ‘face down the West’.

Populism Libyan Style

From the ICC’s perspective, they merely did the minimum necessary in terms of ‘apologizing’ to push the ball back into the court of the Libyans. Yet by claiming Taylor had compromised Libyan national security, the NTC appears to be passing the buck as well — most likely because they can’t cause Taylor’s release since they have no power over the Zintanis and they are covering up for that by claiming that she compromised Libyan National security and that further investigations are required. The possibility of her being genuinely guilty of pro-Qadhafi spying appears ludicrous, yet she may have passed Saif documents from Mohammad Ismail as alleged. However, if this actually happened, it is unclear why the Libyans have simply not produced photos of the documents.

Hence, the only other plausible alternative is that the NTC are genuinely able to effectuate her release, but are making this into a populist issue where they can ‘stand up’ to the West. If this is the case, the Taylor affair resembles the issue of the Bulgarian nurses that Colonel Qadhafi accused of infecting Libyan children with the HIV virus.  Qadhafi manufactured a crisis around the issue so as to be able to ‘stand up to the West’ and deflect criticism away from himself for the awful state of Libyan hospital care that resulted in children in Benghazi contracting HIV from contaminated blood.

Power in Libya is Tragically Zero-sum

In today’s Libya, the NTC does not have a monopoly on force. Far from it. It is the plethora of regional militias that effectively control the country.  This ongoing tug of war between the NTC and the militias does not bode well for Taylor and her colleagues. The most probable explanation for all the diplomatic maneuvering is that the NTC simply lacks the power to compel the Zintani militia to release her but simultaneously wishes to use the Taylor issue to stake out a populist position. Moreover, since Taylor’s incarceration on June 7th, the Libyans have a powerful bargaining chip to trade for the ICC’s “determination” that Libya now possesses the judicial capacity to try Saif.

The NTC is clearly caught up in a zero-sum struggle for power with the militias, setting a bad precedent for the forging of a working relationship between the militias and the soon-to-be-elected new government. Caught in the whirlwind is Melinda Taylor, whose bosses at the ICC do not seem to appreciate how power is currently being contested in the new Libya. The ICC appears willing to appease the NTC, but what are they offering the Zintani militiamen who actually hold her captive? As far as I can tell, nothing.

Jason Pack is a researcher of Middle Eastern History at Cambridge University, author of In War’s Wake: The Struggle for Post-Qadhafi Libya, and President of Libya-Analysis.com

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