Published on March
6, 2013 Author: Dapo
Akande
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 Courtbut
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.
