The arrest of Australian Janelle Taylor and three other officials of the International Criminal Court ( ICC ) in Libya brings the matter of diplomatic immunity into question. It has long been the accepted custom that diplomats and government officials travelling on official business are protected from all forms of arrest and incarceration by the immunity conferred by their diplomatic passports. They may not be searched by customs or law officials, and any vehicle bearing diplomatic plates is deemed to be the territory of the country that issued those plates.
Of course this assumes that there is a civilized government in power and that it accepts the concept of International law. :Libya has just emerged from a protracted civil war, and while there is an interim government in the capital, Tripoli - it's control does not extend to the entire country.
The ICC legal team is in Zintan where they had been sent to provide defence for the deposed dictator's son Saif al-Islam Gaddafi, who is held by members of a militia which does not accept control from Tripoli. The sticking point with this militia is refusal to hand Saif al-Islam to the ICC for trial because they believe that he should be tried and punished in the land where his crimes were committed.
They do have a point. The ICC is prevented by it's charter from imposing the death penalty, and if Saif al-Islam is convicted he will serve his sentence in the prison system of a western power - where conditions will be more pleasant than the treatment he could expect in a Libyan gaol. The question of jurisdiction seems to be entirely separate from the reason the ICC team has been arrested.
This militia claims that they are in " preventive detention " while evidence of " spying " is being investigated. The details are still sketchy, but there is the suggestion that a camera pen was involved, and that papers were served on the prisoner which pose a " threat to national security ".
According to the concept of " Diplomatic Protection " there are no circumstances in which a person holding diplomatic immunity can be in any way restrained. When the Japanese Ambassador delivered a declaration of war to the government in Washington - the day after Japan attacked Pearl Harbour - he and his diplomatic staff were allowed to safely leave the country and return home.
The problem in Zintan is that the ICC team is in the hands of an excitable, highly volatile militia group who probably have little understanding of international law. A rescue mission could be dangerous and it is doubtful if the Libyan government can bring much pressure to achieve a favourable outcome.
The good news is that the militia have allowed consular access and communication lines are still open. It will take a lot of diplomacy and the " softly softly " approach to bring this situation to a close - and it may mean that the ICC has to back-off and allow Libya to deliver it's own form of justice to Saif al-Islam as the price of achieving freedom for it's people.
Just one of the dangers of relying on a diplomatic passport in places removed from the rule of law !
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