The ICC and US Retaliatory Visa Measures: Can the UN Do More to Support the Privileges & Immunities of the Prosecutor?

On 12 April 2019, the ICC Pre-Trial Chamber II decided to reject the Prosecutor’s request to open an investigation into the situation in Afghanistan on the grounds that an investigation would not be “in the interests of justice,” though it found that the case otherwise satisfied the requirements of jurisdiction and admissibility set forth in the Rome Statute (see recent posts here). The ruling came on the heels of the US revocation on 5 April of ICC Prosecutor Fatou Bensouda’s visa for entry to the US, and prior US threats to take action against the ICC for examining the situations in Afghanistan and Palestine.

While the Pre-Trial Chamber (PTC) made no direct mention of recent US hostility towards the ICC, it appears to have implied, and others have suggested (here, here, and here), that such pressure played a role in the decision. As the PTC noted, “subsequent changes within the relevant political landscape both in Afghanistan and in key States (both Parties and non-Parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future […]” (para. 94).

Senior US officials were quick to claim victory and take credit for the development, ostensibly linking US pressure to the outcome. Alluding to a potential appeal of the PTC decision, as well as the Prosecutor’s preliminary examination into the situation in Palestine, President Trump menaced that US actions against the ICC could continue: “any attempt to target American, Israeli or allied personnel for prosecution will be met with a swift and vigorous response.”

This post considers how the United Nations can—and may be obliged to—play a bigger role in helping to protect the Prosecutor and her team from one form of this US hostility towards the Court: visa restrictions. Despite US obligations under the US-UN Headquarters Agreement to allow the transit of individuals conducting business at UN Headquarters, some ambiguity surrounds the question of when and under what conditions the US will allow the Prosecutor access to Headquarters now that her visa has been revoked. As Dapo Akande has pointed out, the US has previously refused to grant entry to certain foreign officials on the basis of a purported “security exception” contained in the Headquarters Agreement. In light of this “exception”, and emboldened by the apparent success of its coercive measures, the US may attempt to block or impose conditions on the Prosecutor’s access to Headquarters. We argue that the UN Secretary-General should respond by affirming the Prosecutor’s right of entry as an “expert on mission” under the 1946 Convention on Privileges and Immunities of the United Nations (known as the “General Convention”). While the General Convention is hardly a panacea for the wider problem of US influence over the ICC, more robust action by the UN could play a role in sustaining the Prosecutor’s independent exercise of her functions.

Duties of the UN under the UN-ICC Negotiated Relationship Agreement

The UN has an important interest in the Prosecutor’s free access to Headquarters. Security Council Resolutions 1593 and 1970, both adopted under Chapter VII, charge the Prosecutor with biannual reporting to the Council concerning the open investigations into situations in Libya and Darfur. The Council has encouraged cooperation with the Prosecutor in the context of the situation in the Central African Republic, and has invited her to address Arria formula meetings. The Prosecutor also attends the Assembly of States Parties (ASP), which under the Rome Statute (Article 112(6)), “shall meet at the seat of the Court or at the Headquarters of the United Nations,” and which is due to meet in New York at the end of 2019.

Moreover, the UN also has legal obligations with respect to the ICC. The ICC is an organization “brought into relationship with the United Nations” per Article 2 of the Rome Statute, which was given effect by the 2004 UN-ICC Negotiated Relationship Agreement and approved by the General Assembly in Resolution 58/318. In addition to a general obligation to “closely” cooperate with the Court, the UN is obliged under Article 18 of the Agreement to “cooperate with the Prosecutor and to enter with the Prosecutor into such arrangements […] as may be necessary to facilitate such cooperation, in particular where the Prosecutor exercises his or her duties and powers with respect to investigation.” In its 2016 Best Practices Manual for the implementation of the Agreement, the UN Office of Legal Affairs (OLA) makes clear that such cooperation includes “assistance with entry and exit formalities.” As the Prosecutor has been targeted in light of her investigatory activities, and as the Prosecutor’s participation at UN meetings is inherent in cooperation, the UN is arguably obliged to make additional “arrangements” to ensure her access to Headquarters and put to rest any doubt to the contrary.

The 1946 General Convention & Article VI “Experts on Mission”

One such “arrangement” would be for the UN Secretary-General to recognize the ICC Prosecutor as an “expert on mission” under Article VI of the 1946 General Convention. While the UN has a vital stake in preserving its long-standing position that the Headquarters Agreement imposes a nearly absolute obligation to grant appropriate visas and allow transit for all persons on official business seeking access to Headquarters, it is advisable for the Secretary-General to develop and maintain a broader scope of legal protections amidst concern about the US invoking a “security exception” to the Prosecutor’s access to Headquarters.

The General Convention, a multilateral convention to which the US is party, implements Article 105(3) UN Charter, which calls for the conclusion of a convention governing “the details of the application” of UN privileges and immunities. On a practical level, one payoff of invoking the General Convention is that it does not contain a “security exception.” Moreover, commentators suggest that States are obliged to accord entry and exit to experts with documentation of their official UN business (see here, para. 50: “[T]he chapeau of Art. VI Section 22, read together with Art. VII General Convention [governing laissez-passer], has been understood to mean that experts on mission enjoy the right of entry and exit”). Obviously, this is all the more the case for entry and exit to Headquarters, where experts are required to report on their missions. In practice, States have relatively rarely (e.g., Myanmar, Israel, and Syria) refused to grant expert access.

Equally important, should the US persist in blocking entry of the Prosecutor, Section 30 of the General Convention allows the UN to request an ICJ advisory opinion, which will be “accepted as decisive.” The UN previously requested opinions in relation to disputes concerning Article VI in 1989 (Mazilu) and 1999 (Cumaraswamy), both of which were decided in its favor. Section 30 constitutes a more desirable dispute resolution mechanism than the somewhat-convoluted arbitration and legal referral mechanism contained in the Headquarters Agreement (described here), since that procedure could be derailed or delayed by US refusal to participate.

But is it possible to consider the Prosecutor an “expert on mission” for the UN? The text, travaux, ICJ jurisprudence, and UN practice suggest it is. The General Convention sets forth three categories of individuals who benefit from privileges and immunities: representatives of Members, officials, and experts on mission for the UN. The first two categories are relatively clear in scope and neither can apply to the Prosecutor. Nonetheless, Article VI, Section 22 liberally designates “experts” as persons “performing missions for the United Nations” who do not fall in the other two categories. “Experts” are entitled to such “privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions.” Although, as the ICJ has observed, the travaux reveal little about the motivation for the inclusion of this provision, the Legal Counsel suggested in his submissions before the Court (see here, para. 57) that this “wide category” was developed in light of difficulties faced by the League of Nations in obtaining privileges and immunities for members of ad hoc committees. The catchall provision was intended to “fill this gap.”

The Secretary-General has previously granted expert on mission status to rapporteurs, advisors, election observers, persons connected with peacekeeping, consultants, and certain participants in UN meetings (see here, Annex I). The ICJ has endorsed this broad application, noting that qualification for expert status “lies not in [individuals’] administrative position but in the nature of their mission.” Experts may be designated in various ways and need not necessarily be remunerated, contracted, or charged with tasks of any particular time-length.

The UN has afforded expert status to persons undertaking activities in furtherance of Security Council resolutions, such as monitoring sanctions regimes, as well as to members of human rights treaty bodies, which are not technically UN organs. In the case of members of the Committee on the Elimination of Racial Discrimination (CERD), expert status was granted because the CERD Convention advances UN Charter principles, CERD’s functions are similar to those of UN subsidiary organs, and because CERD meetings are held on UN premises (see here, p. 207, and commentary by Bandyopadhyay and Iwata). As one commentator summarizes, expert status is appropriate where “real and continuing” ties exist with the UN.

Notably, in advice published in the 2013 UN Juridical Yearbook, the Legal Counsel even recommended that officials of the Special Court for Sierra Leone (SCSL), including its Prosecutor, be recognized as enjoying expert on mission status (see here, pp. 384-386). Despite the SCSL’s status as an independent body, this was considered possible under the General Convention in light of the “special relationship between the United Nations and the SCSL” and the fact that “the Security Council has supported the SCSL in a number of ways.” Expert status serves as a gap-filling protection for SCSL officials “when they are outside the countries in which they already enjoy privileges and immunities.” Given the strong relationship between the UN and the ICC, as well as the Security Council’s active interest in several ICC investigations, a similar logic could be applied here: the Secretary-General could grant the ICC Prosecutor expert on mission status wherever she does not otherwise enjoy privileges and immunities under the Rome Statute, such as within the United States.

In sum, the UN should make clear that it is not possible for the US to refuse the entry of the ICC Prosecutor to the UN in New York. The UN and the ICC are inextricably linked as a matter of law, as well as in their respective missions to uphold the UN Charter. As noted by then-Vice President Weeramantry in the Cumaraswamy case, investigators “cannot discharge their responsibilities with the independence essential to free and complete enquiry if they need to keep looking over their shoulder for adverse personal consequences that may ensue from an independent investigation.” As the ICC traverses a period of great strain, the UN should deploy the most robust legal response available, including by granting the Prosecutor expert on mission status.