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

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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.

 

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    Markus P. Beham says

    March 7, 2013

    As to your point 'that the Agreement is determinative', Article 48 in its paras. 3 and 4 specifically contains the reference 'in accordance with the agreement on the privileges and immunities of the Court'. The solution to your point that ‘this suggests that the agreement is also binding for those States party to the Rome Statute, even if they have not ratified the Agreement’ would therefore be that the agreement has a determinative status only with regard to paras. 3 and 4 of Article 48, leaving the applicability of the other provisions of the agreement dependent upon ratification. An alternative argument might be that a referral by the Security Council under Chapter VII also entails applicability of the agreement.

    David Koller says

    March 7, 2013

    Dapo,

    Thanks for calling attention to this decision and for your very well-reasoned and articulate analysis. What follows is a quick (and therefore not necessarily thoroughly thought through) reaction to your second and third points.

    I would agree with your first point that paragraphs 3 and 4 of article 48 apply equally to all of the formerly detained persons. However, I don’t think that the lack of mention of article 48 (3) should necessarily be seen as a rejection of your previous arguments. It may be that the Chamber found article 48 (4) to be more appropriate for the following reasons.

    First and my suspicion is this is what’s really going on, it’s not clear what authority the Chamber would have to deal with issues related to the immunities of staff under article 48 (3). In contrast, the Chamber’s authority to rule on matters related to the immunities of counsel would clearly fall within the Chamber’s powers to ensure the rights of the accused. It is worth noting that the Chamber did not refer to article 48 (4) alone but also “in light of article 67 (1) of the Statute”.

    Second, at issue in this decision was solely the material seized. It wasn’t strictly necessary to go into other issues related to the detention more broadly. In fact, raising immunities under article 48 (3) may have only confused matters as different legal standards and different procedures apply to immunities of counsel and staff. Putting aside the issue of the applicability of APIC for the moment, compare its articles 16 (1) (c) and 18 (1) (c). It seems that the provision on counsel may provide broader immunities concerning unofficial documents.

    Third, I took a quick look at the OPCD filing cited in the decision, and it seems they did not rely on article 48 (3) but only 48 (4). The Chamber simply may not have found it necessary to raise an unargued issue.
    In fact, I think there is indirect support in the decision for your point on article 48 (3) applying. In referring to article 26 of the APIC, the Chamber said that it was not the “appropriate organ of the Court”. Article 26 provides clearly that the Presidency may waive immunities of counsel and the Registrar may waive immunities of the staff of the Registry. By not simply stating “Presidency”, it appears that Chamber may have been deliberately leaving open the possibility of article 48 (3) applying as well.

    This then raises another interesting question. Where two rules on immunities exist applicable to the same people, how do they interrelate? [Here, you may get arguments based on regulation 77 that the Registrar has no authority over OPCD, but, for the reasons above, I don’t think it’s necessary to get into the issue of whether OPCD staff are Registry staff for understanding the present decision.]

    On your third point, could the decision be read two ways? It could be read to say that APIC applies altogether, which raises the interesting questions you note. But, could the decision also be read solely that article 26 which governs the procedure on immunities applies. The reason why the Chamber needed to have recourse to article 26 may have been due to a lacuna in article 48 (5). This paragraph sets out who may waive immunities for the various persons covered in article 48, but it does not mention counsel. Without recourse to article 26, it could be argued that the Chamber could waive immunities (or alternatively that no organ of the power could waive immunities).