Home Archive for category "Diplomatic Immunity" (Page 3)

Jurisdictional and Immunity Issues in the Story of Enrica Lexie : A Case of Shoot & Scoot turns around!

Published on March 25, 2013        Author: 

Harisankar K S is Assistant Professor of Law, National Law University Jodhpur, Indiaharishankar

The Enrica Lexie incident (discussed by Douglas Guilfoyle here on EJIL:Talk! a year ago) has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident.  The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code.

The following discussion highlights certain important developments in the legal arena, both domestic and international, in the context of criminal jurisdiction on high seas and immunities of state offiials. In addition, I suggest some possible outcomes of the case.

The Shooting  Incident

Prior to a discussion of Indian jurisdiction over the Italian marines for the shooting incident, there is a preliminary question as to whether India violated international law by engaging in the “Hot Pursuit” of the Italian ship? Read the rest of this entry…

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ICC Decides on Immunities and Privileges of Defence Counsel and ICC Staff

Published on March 6, 2013        Author: 

Last week, the Pre-Trial Chamber of the International Criminal Court issued a decision with important implications for the privileges and immunities of counsel acting at the ICC, and also of ICC staff. In its decision, the Pre-Trial Chamber confirmed that the immunities provided for in Article 48 of the ICC Statute apply to defence counsel and to staff of the ICC involved in the ICC proceedings against Saif Gaddafi. It also held “that the inviolability of documents and materials related to the exercise of the functions of the Defence constitutes an integral part of the treatment that shall be accorded to the Defence pursuant to article 48(4).” This means that these documents may not be seized by States, and in this particular case, the ICC held that Libya is under an obligation to return such seized documents.

The decision arose out of the detention in Libya, last June, of four members of staff of the ICC, including Melinda Taylor a lawyer at the Office of the Public Counsel for Defence (OPCD). The ICC staff were detained by the militia holding Saif Gaddafi (who is represented by the OPCD) when they were in Libya to meet with Saif. At time of the detention, I and others argued that these detained persons were entitled to immunity from criminal process in Libya (see previous post).

There are three interesting points that arise out of this decision. The first relates to the applicability of the Statute (and in particular Art. 48) to Libya. The second relates to which part of Art. 48 applies to defence counsel employed by OPCD. The third, and perhaps most important, point is that the decision  implies the applicability of the 2002 Agreement on the Privileges and Immunities of the International Criminal Court to States that have not ratified it.

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The Julian Assange Affair: May the UK Terminate the Diplomatic Status of Ecuador’s Embassy? UPDATED

Published on August 17, 2012        Author: 

Ecuador has announced that it is granting asylum to Julian Assange, the Wikileaks founder, who has taken refuge in the Ecuardor’s embassy in London. Assange sought refuge in the Embassy after the UK Supreme Court ruled a few weeks ago that he may be extradited to Sweden where he is wanted for trial on allegation of committing sexual offences. In this dispute there are some points in the UK’s favour. It is fairly clear that Assange is not covered by Refugee Convention and is therefore not entitled to asylum as a matter of international law. That Convention does not apply to persons in respect of which there are serious reasons to believe they have committed a serious non-political crime (Art. 1(F)(ii)). Furthermore, as Matthew Happold pointed out in a previous post, general international law does not provide for diplomatic asylum. Thus, States are not required to grant safe passage out of their territory to those who seek asylum in diplomatic premises within their territory (unless there is a specific treaty which provides for such an obligation, which there is not in this case).

However, the UK also faces a number of legal difficulties. The main challenge it faces is that international law (in the form of Art. 22 of the Vienna Convention on Diplomatic Relations) provides that the premises of a diplomatic mission are inviolable and agents of a State may not enter them to perform law enforcement (or other) functions without the consent of the head of the diplomatic mission. So UK agents may not enter into the Ecuadorian Embassy to arrest Assange. The question raised is whether this inviolability is absolute and whether there are any ways in which the UK could get hold of Assange, without violating international law. In particular, may the UK unilaterally terminate the diplomatic status of Ecuador’s embassy by withdrawing its consent for that building to be regarded as diplomatic premises? If the UK did withdraw that consent, would the building then cease to be inviolable such that UK agents could go in to it?

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Breaking: Ecuador Grants Asylum to Julian Assange

Published on August 16, 2012        Author: 

BBC report here. Immediately below is a timely post by Roger O’Keefe on an alleged ‘threat’ by UK authorities to enter the Ecuadorian embassy in London. More commentary will follow – stay tuned.

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Enter at Your Own Risk

Published on August 16, 2012        Author: 

Roger O’Keefe is Deputy Director, Lauterpacht Centre; University Senior Lecturer in Law, University of Cambridge and Fellow & College Lecturer in Law, Magdalene College, Cambridge.

Ecuador has alleged that the UK has ‘threatened’ to rely on the Diplomatic and Consular Premises Act 1987 (‘DCPA’) to enter the Ecuadorian embassy to arrest Julian Assange, who has taken refuge there in order to avoid his extradition to Sweden (see, e.g. a Guardian report here). In a letter said by Ecuador to have been delivered through a British embassy official in Quito, the UK government is purported to have stated:

You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the embassy.

We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna convention and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.

We only have Ecuador’s word for it that the UK government has made this ‘threat’, and we should be cautious in accepting this without corroboration. But let us assume for the sake of argument that the allegation is true.

The DCPA—‘[a]n Act to make provision as to what land is diplomatic or consular premises’, in part of the words of the long title—regulates, among other things, the UK government’s acceptance of or consent to the designation of land in the UK as diplomatic or consular premises. The relevant provision in this case is presumably section 1(3) of the Act, which provides in relevant part:


(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or

(b) the Secretary of State withdraws his acceptance or consent in relation to land,

it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.

The main enactment alluded to in section 1(3) is the Diplomatic Privileges Act 1964 (‘DPA’), which enacts into UK law certain provisions of the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’), among them article 22(1), which codifies the rule that the premises of a diplomatic mission are inviolable. The inviolability of diplomatic premises means, among other things, that the authorities of the receiving state (here, the UK) may not enter the mission’s premises, except with the consent of the head of the mission. (This does not, contrary to popular misconception, make the embassy premises Ecuadorian territory. The premises remain UK territory, albeit UK territory that the UK authorities are not allowed by the DPA to enter without permission.) In short, the UK authorities may not enter the Ecuadorian embassy without the permission of the Ecuadorian ambassador—provided, that is, that the embassy premises remain diplomatic premises.

The suggestion would seem to be that the Ecuadorian embassy has ceased or will cease to be diplomatic premises within the meaning of section 1(3) DCPA and article 22(1) VCDR. There are two possible ways this could be argued to have happened or to happen.

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The Immunity of the ICC Lawyers and Staff Detained in Libya

Published on June 18, 2012        Author: 

Readers will be aware that four staff of the International Criminal Court have been detained in Libya after meeting with Saif Gaddafi over a week ago. The visit to Saif Gaddafi was organized by the ICC’s Office of the Public Counsel for Defence which has been appointed to represent Saif Gaddafi in the ICC proceedings against him. One of the persons detained is Melinda Taylor, an Australian defence lawyer at the ICC. She has been accused of spying, and of passing on to Saif a letter from Saif’s former right hand man, Mohammed Ismaili, who is wanted by the Libyan authorities. Taylor and the other ICC staff were detained by a militia in Zintan, the town where Saif Gaddafi is being held.  Since their detention, they have been visited by an ICC delegation together with the Ambassadors of Australian, Russia, Lebanon and Spain. Thankfully, an ICC Press Release reports that the detained staff indicated that they are in good health and being well treated.

Since the incident first began, there have assertions that these ICC staff are entitled to immunity from arrest and detention in Libya. This claim has been made by the ICC President, Judge Sang-Hyun Song, by the Australian Foreign Minister, Bob Carr, by Mark Kersten on his  blog Justice in Conflict, and by Kevin Jon Heller on Opinio Juris. I agree with the view that these staff are immune and think it is useful, and interesting, to set out the basis on which that immunity exists.

The most straightforward argument for the immunity is that it is provided for in Article 48 of the ICC Statute and that this provision is binding on Libya as a result of UN Security Council Resolution 1970. Article 48 provides that:

“(3) The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in accordance with the agreement on the privileges and immunities of the Court.

(4) Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court.”

Before getting on to which immunities this provision grants to ICC staff, one ought to begin by explaining why Art. 48 is binding on Libya. Read the rest of this entry…

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Is IMF Managing Director (DSK) Entitled to Immunity from Prosecution?

Published on May 18, 2011        Author: 

I intended to write a post explaining why International Monetary Fund (IMF) Managing Director, Dominique Strauss-Kahn (DSK), does not have immunity under the applicable treaties dealing with the immunity of the IMF and its employees. However, Chimene Keitner has beaten me to it and written an excellent piece over at Opinio Juris. I agree with the points that she makes and recommend her piece to readers. In summary, although Article VI, Section 22 of the 1947 Convention on the Privileges and Immunities of United Nations Specialized Agencies provides that “the executive head of each specialized agency . . . the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law”, and even though diplomatic envoys have absolute immunity from criminal jurisdiction of foreign States, the United States is not a party to that treaty. This means that the only relevant treaty is the IMF Articles of Agreement which provides in Article IX, Section 8(i) that IMF Staff, “shall be immune from legal process with respect to acts performed by them in their official capacity except when the Fund waives this immunity.” Thus, as Chimene puts, DSK does not have status immunity (or diplomatic immunity) but only official act (or functional) immunity. The latter immunity only covers acts carried out in official capacity and it is difficult to see how the alleged acts could have been carried out in an official capacity. So, the matter as regards the relevant treaties (and the relevant US federal statute –  The International Organization Immunities Act, 1945 22 USC § 288d(b)) appears to be quite straight forward. However, I wonder if that is the end of the matter. Could it be claimed that DSK has diplomatic immunity under customary international law which the US is bound to respect? If he were the head of a foreign State then customary international law would obviously be relevant. But do international organizations and their employees have immunity under customary international law? Are US courts bound to respect such immunity? There is actually a plausible case that the broader immunities in the Convention on Specialised Agencies represent customary international law but I don’t think this is at all certain and suspect that the courts will not accept that view. Nonetheless, I set out the argument below. Read the rest of this entry…

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Yet More on Arresting the Pope

Published on April 25, 2010        Author: 

In more news on the prosecute the Pope front (see Dapo’s earlier post), Christopher Hitchens, that glorious contrarian and one of the originators of the whole idea, has an article in Newsweek in which he elaborates on the legal strategy that, shall we say, the anti-Pope movement will adopt in advance of the Pope’s planned visit to the UK (h/t Julian Ku at Opinio Juris).

Let me say at the outset that, to my mind, it is clear that the Catholic Church has been indelibly tarnished by the priestly rape of children in many countries, and the systematic attempts to cover-up the abuse by the hierarchy. A credible case has also been made that the current Pope has himself shamefully participated in the cover-up. In short, I have no love lost for the Catholic Church.

Likewise, on a lighter note, I have always enjoyed the writings of Christopher Hitchens, who is often enlightening on many an issue, and never fails to entertain. His skills as a polemicist are beyond question, as numerous clips on Youtube of him demolishing worthy and unworthy opponents can attest. And let’s not forget his famous critique of the purported saintliness of Mother Theresa, which I thoroughly recommend.

Hitchens, in short, is never boring. But with this particular piece, which touches on several questions of international law, I must confess that he truly comes off as quite the know-it-all dilettante. The piece is full of such glaring holes and inaccuracies that one must really question the wisdom of publishing it. Now, I don’t of course expect people who are not (international) lawyers to know anything about international law – but then they at least should exercise more caution in writing about legal issues. So, let’s start off with Hitchens’ argument, given with the benefit of legal advice from Geoffrey Robertson QC:

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Can the Pope Be Arrested in Connection with the Sexual Abuse Scandal?

Published on April 14, 2010        Author: 

The sexual abuse scandal surrounding the Catholic Church has taken a new turn in recent weeks with calls for the Pope to be prosecuted  for crimes against humanity. The Pope is due to visit the UK in September this year and some prominent campaigners and lawyers have argued that he should be arrested in the UK  and prosecuted for his role in the cover up of sexual abuse. Alternatively, these campaigners and lawyers say they will seek an arrest warrant by the International Criminal Court  on charges of crimes against humanity. The leaders of this campaign are eminent people and include Richard Dawkins, the well known Oxford Professor and, shall we say, atheist campaigner, Christopher Hitchens, another promiment atheist author and Geoffrey Robertson QC, a prominent British barrister who was a judge at the Special Court for Sierra Leone (see reports here and here  and an article by Richard Dawkins here).

 However, this attempt to get the Pope arrested and prosecuted in the UK has no chance of success as such an arrest would be in violation of international law. Likewise, the proposed prosecution by the International Criminal Court is most unlikely to get off the ground and similarly flawed as a matter of international law. However, these proposals raise some interesting issues of international law surrounding the status of the Pope, the Vatican and the Holy See.

The  reason the Pope cannot be arrested and prosecuted in the UK is because he is entitled to Head of State immunity.  Dawkins and Hitchens are not unaware of this problem.  Apparently they have enlisted Geoffrey Robertson QC to provide an opinion stating that the pope is not a head of State and therefore not entitled to head of State immunity. Robertson elaborates on this point in a recent article in the Guardian. Robertson argues that the Pope is not entitled head of State immunity as a matter of international law because the Vatican is not a State.  His arguments are simply incorrect. The Vatican has a tiny territory and a tiny population but it does fulfill the criteria for Statehood. As James Crawford puts it, in his authoritative work The Creation of States in International Law (2nd ed, 2006), p. 225, after detailed analysis: “it is clear that the Vatican City is a State in international law, despite its size and special circumstances.” The size of population or territory are irrelevant for the purposes of Statehood.  What is important is that the entity possesses those criteria as well as the two other criteria for Statehood – which are: a government in effective control of the territory and independence (or what is called “capacity to enter into legal relations” in the words of the Montevideo Convention on the Rights and Duties of States 1935). The Vatican as a territorial entity does have a government: the Holy See which is headed by the Pope. As Crawford’s analysis makes clear, the Holy See has its own independent legal personality (about which more later on) and that personality predates the Statehood of the Vatican. However, the Holy See is also the government of the Vatican City State. More imporantly, the Vatican is independent of any other State. Its independence from Italy which is the State that could have had claims to control that territory is recognised in the Lateran Treaty of 1929. Read the rest of this entry…

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Should the ICC Appeals Chamber have a made a decision on Bashir’s Immunity?

Published on February 13, 2010        Author: 

Readers will probably know by now that the ICC Appeals Chamber handed down a decision on February 3 reversing the Pre-Trial Chamber’s 2009 decision not to issue a warrant of arrest for Sudanese President Bashir with respect to the charge of genocide in Darfur. The Pre-Trial Chamber (PTC) issued an arrest warrant with respect to war crimes and crimes against humanity but held that the Prosecutor had failed to satisfy the standard in Art. 58(1) of the Rome Statute that there were “reasonable grounds” to believe that genocide had been committed.  The PTC held that  “if the existence of a . . . genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution, the Prosecution Application in relation to genocide must be rejected as the evidentiary standard provided for in article 58 of the Statute would not have been met.” As Marko commented  here on EJIL:Talk! at the time, the decision by the Pre-Trial Chamber on this issue was highly problematic as it did not in fact apply a reasonable grounds to believe test but seemed to require proof beyond reasonable doubt. The Appeals Chamber agrees and held that

“In the view of the Appeals Chamber, requiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely “reasonable grounds to believe”. Rather, it establishes genocidal intent “beyond reasonable doubt”.” (para. 33)

However, the Appeals Chamber did not itself reinstate the genocide charge, but, rather, remanded the matter to the PTC to make a new decision applying the correct standard.

This is all well and good.  However, I wonder why the Appeals Chamber did not decide to take up the elephant in the room regarding the arrest warrant for Bashir – the issue of whether as a serving head of State he is entitled to immnity from arrest and whether the Court is entitled to order his arrest in the first place.  This is an issue that we have discussed at length here on EJIL:Talk! (see here, herehere and here). Its a matter that has exercised African States and led to a call by the Assembly of Heads of States of the African Union for African States not to cooperate with the ICC with respect to the arrest of  Bashir case.  The length of time taken by the Appeals Chamber to issue a decision in this matter suggested that it was considering a weighty issue (see the excellent post by Prof. Bill Schabas on his blog regarding the time taken by the Appeals Chamber). In the end it came up with a rather brief decision saying what was obvious to most knowlegable observers (though to be fair not obvious to the majority of the PTC). So why that lenghty delay?

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