Why I Think the Detained ICC Personnel Are Entitled to Diplomatic Immunity

It will not come as a surprise to regular readers that I am appalled by Libya’s detention of Melinda Taylor, a lawyer with the ICC’s Office of Public Counsel for the Defence, and her translator.  There is no evidence that Taylor has done anything wrong; indeed, as Mark Kersten notes, it seems eminently possible that her detention is simply a way to blackmail her into revealing the whereabouts of one of Saif’s henchmen.  Moreover, no one who knows Taylor — as I do a little — could ever believe that she was acting anything but professionally in her dealings with Saif.

That said, I was struck by the following paragraphs in a recent (and excellent) post on the Atlantic website by my Wronging Rights friends, Amanda Taub and Kate Cronin-Furman:

The reason established governments wouldn’t do anything like this is that Taylor and her colleagues were in Libya on official ICC business and are therefore entitled to diplomatic immunity. Regardless of what the Libyans claim the ICC staff members did — and regardless even of whether they actually engaged in any wrongdoing — they cannot be detained, investigated, charged, tried, or punished.

Diplomatic immunity may seem like a trivial matter compared to the weighty issues Libya has faced — war and peace, dictatorship and democracy — but, as the oldest and most inviolable principle in international law, how it’s treated here will have ramifications far beyond Libya. At the height of the Cold War, the U.S. and the Soviet Union honored the immunity of each other’s diplomats, even when those diplomats were suspected of being spies… Even countries that are actively at war nearly always honor the immunity of each other’s officials. Immunity is the sinew that binds together so much of international relations. Without it, diplomacy, treaty negotiations, and the very existence of international organizations would all collapse into impossibility. In short: it is a very big deal.

And yet, thus far, there has been no global outcry in response to this violation of the ICC staff members’ immunity. In particular, the UN Security Council’s silence has been deafening, especially because the ICC got involved in Libya at the Security Council’s express request. Apparently, the Council is willing to send the court’s employees into dangerous situations, but can’t be bothered to issue a press release if their safety is threatened as a result.

Whether Taylor and her translator are entitled to diplomatic immunity in Libya is a difficult question.  As I understand it, the diplomatic immunity of international organizations is explicitly treaty-based; there is no such immunity under customary international law.  And no treaty specifically provides Taylor and her translator with diplomatic immunity.  The Convention on the Privileges and Immunities of the United Nations applies only to UN officials, which Taylor and her translator are not.  There is also a Convention on the Privileges and Immunities of the Specialized Agencies, but the ICC is not a specialized agency.  And although the Court itself has an Agreement on the Privileges and Immunities of the ICC (APIC), Libya has not ratified the agreement (which is not surprising, because it has not ratified the Rome Statute).

All that said, I do think there is a persuasive argument in favor of immunity: paragraph 5 of SC Res. 1970, which provides, as part of the Security Council’s referral of the situation in Libya to the ICC, that “the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.”  The cooperation obligation in paragraph 5, I believe, requires Libya to honor the substantive provisions of the APIC; the argument parallels Dapo Akande’s compelling claim that the Security Council’s referral of the Darfur situation implicitly removed Bashir’s Head-of-State immunity.  Basing immunity on paragraph 5 seems much stronger to me than arguing that all members of international organizations have immunity under customary international law.  Moreover, emphasizing paragraph 5 should serve as a stark reminder to the Security Council that it has a legal — and not simply moral — obligation to do everything in its power to end Taylor and her translator’s indefensible detention.