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

by Kevin Jon Heller

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.

http://opiniojuris.org/2012/06/15/why-are-the-detained-icc-personnel-entitled-to-diplomatic-immunity/

13 Responses

  1. Hi KJH,

    Taylor et al. were acting in their official capacity, so all we need to support the claim that they have immunity is evidence that act/functional immunity for international organizations exists as a matter of customary law. I would argue that it does – it seems to me that there’s consensus that when you allow an international organization’s employees onto your territory, an obligation exists to respect their immunities so far as is necessary for them to do their job. Thus, even though Libya’s not a signatory to the Agreement on the Privileges and Immunities of the ICC, they’re bound not to arrest these guys for conduct in the course of their official duties. 

    (And I think you’re almost certainly right re: Resolution 1970’s instruction to “cooperate fully” operating as an independent source of this obligation.)

    -KCF 

  2. KCF,

    I still think your argument has to rely on the “cooperate fully” provision.  I don’t think we can say that Libya voluntarily “allowed” the OPCD to enter its territory; my guess is that it did so because of SC Res. 1970.  I like the “cooperate fully” argument; I just wonder whether others do!

  3. I’m not so sure. If it indeed has become a principle of customary international law that employees of international organizations have act-based immunity, then it’s binding on everybody. (I see your point about my use of the word “allow,” but I don’t think Libya’s non-voluntariness in this scenario should matter.) 

     

  4. query — is it possible to be a party to the Rome Statute but refuse to sign the APIC?  That’s a relevant question here.  First, have any countries actually done the first but not the second?  Second, even if no one has in reality, is it legally possible?
    If it is legally possible to sign one but not the other, then I think there is at least a colorable argument that cooperating with the court does not necessarily entail granting P&I to its officials.   
    I think an interesting research question would be how P&I are handled for the US-Iran Claims Tribunal, which isn’t a UN body either.  Was P&I part of the annex to the Algiers Accords or did the countries sign a separate agreement regarding P&I for officials — and litigants — before that tribunal?  Just curious.
     

  5. Jens,

    States Parties are not required to sign APIC, and not all of them have.  It is a separate treaty open to ratification by all states, not simply States Parties.

  6. To Kevin Jon Heller,
     
    I still agree with cooperation theory from SC Resolution 1970 Para 5 but i think that it must come after. The first legal base or the “genuine”, i think, is article 25 of UN Charter:

    “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.
     
    So, UNSC Resolutions precisely Resolution 1970 creates de facto a states obligation to cooperate [such in para 5] because, it is a “decision of the Security Council in accordance with the […] Charter”. Consequently, i think that the first legal base to get Lybia cooperation and Saif’s OPCD release is Article 25 of UN Charter.

  7. Response…I have a similar conclusion, but a bit more pessimistic and cynical: this is the result when politics takes control over law. While accepting its usefulness and worth in some possible cases, I believe that the referral clause in the ICC Statute is screwed up “as a whole”, it does not make any LEGAL sense, it can not even be properly applied: with Lybia, there are questions to be raised in connection with the principle of complemetarity, now this, where it is obvious, that these people have no diplomatic immunity at all… Personally I like ths cooperation-based argument, and I think that is the only possible one, but on the other hand I do not think that any SC resolution could overwrite existing customary law, which is – in this situation – the lack of existence of any norm.

  8. Kevin,

    I entirely agree with your conclusion that SC Res 1970 could be read as creating an obligation not to hinder the activities of ICC officials (which, as Raymond points out above, would have binding affect by virtue of Art 25 UN Charter). But for that very reason I would disagree that there is “diplomatic immunity” — that would not be the case even if APIC applied since that Agreement creates its own immunity regime that is distinct from the regime that applies to diplomats. At best, one could apply the 1969 Special Missions Convention by analogy.

    In cases where the SC refers a situation to the Court, and APIC does not apply, the UN should seriously think about designating relevant Court official as “experts on mission” for the purposes of the 1946 UN Privileges and Immunities Convention.

  9. I haven’t been following the back-and-forth with the Libyan government over Taylor et al’s detention quite as closely as I should have, but I understand the official justification/allegation is that they were passing coded messages from an alleged war criminal. I’ve been thinking about the immunity issue over the last few days, and I have a question:

    I think most of us believe that this is merely an excuse, but say hypothetically Libya truly believed these officials were engaged in some kind of secret correspondence about escape or facilitating bribery or in some other way aiding and abetting Saif re: escaping liability for his crimes; Taylor et al could therefore arguably be implicated in aiding and abetting war crimes themselves. (Admittedly, this is a very large and faintly ridiculous leap re: aiding and abetting. The point of the hypothetical, however, is that the ICC and even domestic institutions have repeatedly held one cannot claim immunity for the ‘worst’ international crimes – for one reason or another. If Libya honestly suspects these or other officials have been assisting in such crimes, are they not entitled to do the same?)

    Mind you, I’m not arguing for this conclusion, I’m honestly wondering how one might distinguish between ignoring immunity for people like Al-Bashir, and ignoring immunity for officials of the ICC or defence counsel who arguably assist criminals etc. Aside from saying that this particular conduct doesn’t (in our opinion) constitute a crime, or that they didn’t (in our opinion) do it if it was a crime – arguments that could equally be raised by people like Al-Bashir, since our opinion on these things can’t bind Libya anymore than Al-Bashir’s could bind the ICC. Can someone explain where my understanding is going wrong?

  10. Was she and her team traveling on a laissez-passer as opposed to their personal passports?  I know when my sister has been a contractor for the UN at least and traveled to Libya she was operating under a laissez-passer.  If she was under such a laissez-passer the situation may be more clear because of the obligations associated with the recognition of such a travel document. I recognize there may be different types of laissez-passer also (believe some refugees would get them sometimes) but I think there is something here. Also, as a functional or necessary implication of the Statute it would seem that people doing this work would need to have an equivalent to diplomatic immunity would seem to be the way the argument would go. The Libyans may allege anything but I find that other than expulsion they are treading on very thin ice or moving sands to hold her and her team like this.
    Best,
    Ben

Trackbacks and Pingbacks

  1. […] sure you check out Kevin Jon Heller’s take (and the comment section below) on whether or not the ICC staff are entitled to diplomatic […]

  2. […] required to do by Security Council resolution. Over at Opinio Juris, Kevin Jon Heller has suggested that the immunity of the ICC officials derives solely from Security Council Resolution 1970. However, strictly speaking, this is not an argument that the ICC officials had […]

  3. […] Minister, Bob Carr, by Mark Kersten on his  blog Justice in Conflict, and by Kevin Jon Heller on Opinio Juris. I agree with the view that these staff are immune and thin it is useful, and interesting, to set […]