Thanks for taking up this important immunity issue regarding Melinda Taylor and the rest of the detained ICC staff in Libya.

I had also briefly reflected on this issue and reached a similar conclusion (see here: http://iclferment.blogspot.com/2012/06/melinda-taylor-is-entitled-to-immunity.html). Overall, I agree that the strongest argument in favor of immunity for the ICC staff rests on Article 48 of the Rome Statute, which necessarily applies to Libya, in line with the Court’s holding on the point, Libya’s acceptance that the Statute governs, and your own argument that the effect of Chapter VII Resolution 1970 (2011) is to impose the Statute on the referred State.

Although I had essentially suggested the same on the applicability of the Agreement on Privileges and Immunities, I remain dissatisfied with the position that the entire instrument constitutes a mere fleshing out of the obligations contained in Art. 48 since that would then seem to obviate the need for a subsequent state signature, ratification or accession to that secondary agreement.

I know this was only parenthetical to your main argument, but I am even less certain that the proposition that all states parties may even be bound by the privileges agreement, absent their consent to it. In other words, if that was the intention of states, why would they not say that? Why did they introduce the second step?

Best,

Charles

That said, I tend to disagree that the

I think that when the regulation setting up OPCD says that OPCD is within the Registry for admnistrative purposes it is saying that OPCD is formally part of the registry. Even the ICC’s website has it as under the Registry. However, the regulation says it is to be independent meaning that it cannot be controlled by the Registrar. The fact that OPCD is part of the Registry brings it within Art. 48(3). The reason OPCD is part of the Registry is that Art. 34 of the Statute has a closed list of organs of the Court. So, for the OPCD to be an organ of the Court it has to fall under one of the organs listed in Art. 34 and the Registry was the natural choice.

Great post. But is it really the case that OPCD personnel are included in 48(3)? I think the natural reading of the operative language — “The OPCD shall fall within the remit of the Registry solely for administrative purposes and otherwise shall function as a wholly independent office” — means that OPCD personnel are not “staff” of the Registry but staff of the OPCD. If the OPCD personnel were Registry staff, presumably the Registry would have far more control over aspects of their work than is consistent with the OPCD being a “wholly independent office.” I think the 48(4) argument is much stronger — especially in light of the Gotovina decision.