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.
First, in relying on Article 48, the Pre-Trial Chamber has confirmed the argument that I made at the time that this provision of the Statute is binding on Libya, though Libya is not a party to the Statute and though the Security Council did not say explicitly that the whole Statute is binding on Libya. The explanation for this is that Libya’s obligation, under UN Security Council Resolution 1970, is an obligation to cooperate in accordance with the Statute (see previous post).
The second point is that Pre-Trial Chamber relied only on Art. 48(4) which refers to the immunities of “counsel, experts, witnesses or any other person required to be present at the seat of the Court” but did not refer to Art. 48(3) which refers, inter alia, to the immunities of the “staff of the Registry.” In my previous post, I had argued that both are applicable to defence counsel provided by the OPCD. This argument is based on the fact that the OPCD is a part of the ICC Registry, though it is independent. The Pre-Trial Chamber decision may be seen as an implicit rejection of the argument I put forward but the Chamber did not elaborate on this. I would like to see an argument that says OPCD lawyers are not part of the registry staff though OPCD is a part of the Registry. The failure to refer to Art. 48(3) is especially curious given that not all of the four detained personnel were part of OPCD. Some were clearly Registry staff. So why not refer to the provision that best fits them?
The third point, and perhaps ultimately the most important, is the fact that the Pre-Trial Chamber not only “noted” 2002 Agreement on the Privileges and Immunities of the International Criminal Court but seemed to apply it. Art. 48 provides that the privileges and immunities it provides for exist “in accordance with the agreement on privileges and immunities of the Court”. In its decision, the Pre-Trial Chamber held that:
“in accordance with article 26 of the Agreement on Privileges and Immunities of the International Criminal Court, it is not for this Chamber to determine whether there are grounds for waiving the privileged nature of the Defence documents seized in Zintan.”
This suggests that the Chamber took the view that the provisions of the Agreement was determinative. Libya is not a party to this agreement and it seems to me that the only way to argue that the Agreement is determinative is that Art. 48 suggests that it is. But if Art. 48 makes the Agreement on Privileges and Immunities binding on Libya, this suggests that the agreement is also binding for those States party to the Rome Statute, even if they have not ratified the Agreement. Such an argument would be far reaching as it would mean that States are bound by a treaty that they have not ratified. However, it is not easy to see what else Art. 48 of the Rome Statute means when it refers to immunities “in accordance with” the Agreement on Privileges and Immunities.