Background Paper
for the Consultation with Representatives of the
International Criminal Tribunals for former
Yugoslavia and Rwanda
on
Privileges and Immunities of the
International Criminal Court
July 3, 2001
In no way is this paper intended to represent any particular position on the issues
raised. Rather, it aims to encourage interested Government delegates, NGOs,
international organization representatives, independent legal experts and others to
share their suggestions and recommendations on the subject of privileges and
immunities for the ICC.
Prepared by Maria Fariello Laux for the Center for the Development of
International Law and the World Federalist Movement.
All comments welcomed at maria@fariello.net.
Background paper on privileges and immunities of the ICC
1
I. Introduction
The aim of this paper is to aid in the search for an Agreement on the Privileges and
Immunities of the Court (APIC) which is conducive to consensus and both upholds
and strengthens the independence, fairness and effectiveness of the Rome Statute of the
International Criminal Court (ICC). This background paper comprises first a brief
introduction covering why strong privileges and immunities are crucial for an
independent ICC. Secondly, the paper will address two articles from the current draft
APIC which cover the privileges and immunities of the Court as a legal entity.
Thirdly, the draft APIC articles addressing the privileges and immunities, including
the questions related to travel such as the issuance of a laissez-passer and other
documents will be examined. The articles selected will serve as an outline to structure
the informational consultations to be held with the experts of the International
Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal
Tribunal for Rwanda (ICTR) on July 3, 2001.
A. The importance of privileges and immunities for the ICC
Traditionally in international law, privileges and immunities are of either a diplomatic
nature or of a functional character. While both derive from the principle of functional
necessity1 their source of origin differs. Diplomatic privileges and immunities, codified
by the Vienna Convention on Diplomatic Relations, are based on the principles of
state sovereignty and enforced through reciprocity. International organizations, on
the other hand, are not sovereign entities, but based on the constituent agreements
arrived at by their respective member states, who find that the establishment of the
organization serves a mutually beneficial purpose. It therefore follows that those same
states would ensure that the institution they establish has the means to carry out the
functions envisioned. In the case of the ICC the goal is to “put an end to impunity for
the perpetrators of these crimes and thus to contribute to the prevention of such
crimes.”2 For this to occur, the legal status of the ICC and its staff must be affirmed
and defined in the agreement on privileges and immunities. The different source of
origin of the privileges and immunities for diplomats as opposed to international “civil
servants”, serves to denote the additional difficulty international organizations face in
fulfilling their mandates.
For the ICC, where in Rome the independence of the Court from the UN was hard
won, the difficulty is even greater, for the Court cannot directly rely on the privileges
and immunities of the UN as the Ad Hoc Tribunals do. However, the UN privileges
and immunities have been well established in both treaties and practice over the past
1
Both diplomats and the staff members of international organizations require privileges and immunities
to allow them to fulfill their professional obligations. In neither case are privileges and immunities for
the personal benefit of the individual, but exist to allow them to carry out their activities in an
expedient and independent manner.
2
Rome Statute, U.N. Doc. A/CONF.183/9, Preamble.
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2
50 years3 and can serve as reference. Despite the fact that UN provisions could only
apply to the ICC through analogy, past cases on the privileges and immunities of the
UN can serve to indicate the types of issues the ICC may face. Thus, a brief summary
of three of the most notable cases can be found in Annex I.
There is another reason why Member States should ensure appropriate privileges and
immunities for the Court and its personnel, and that is the safety of the persons, most
likely to be the nationals of the Member States themselves, who will be serving the
Court. The relatively high risks related to working for international peace and justice
have led the UN to negotiate the UN Safety Convention to supplement the
Convention on the Privileges and Immunities of the UN.4 It is not difficult to imagine
that the investigators for the ICC (investigating for either the prosecution or the
defense) will be in situations equally precarious to those in which UN Peacekeepers
find themselves daily. Comparable privileges and immunities are therefore necessary,
for instance, to protect the ICC’s personnel from possible arbitrary arrest. Although
not a panacea, strong privileges and immunities will indicate that the Member States of
the ICC are committed to the Rome Statute and support the work being done on the
Court’s behalf by those in the most vulnerable positions, including locally recruited
staff outside the Host Country.
Because international organizations can only be empowered by the States who draft
their constituent treaties, because the ICC, as independent from the UN will not be
directly benefit from the privileges and immunities enjoyed by the UN, and because
the personnel serving the Court, especially in the field, will require the protection of a
strong privileges and immunities (P&I) agreement, the APIC must clearly provide for
privileges and immunities which suffice to ensure that the Court can function in a fair,
independent and effective manner. For this to occur, both the privileges and
immunities of the Court as a legal entity and of all persons who may act on behalf of
the Court must be guaranteed in this Agreement.
3
The general conventions include: The Convention on the Privileges and Immunities of the United
Nations, 1 U.N.T.S. 15, 13 February 1946. See University of Minnesota Human Rights Library,
[http://www1.umn.edu/humanrts/instree/unactivities.html].
The Convention on the Privileges and Immunities of Specialized Agencies, 33 U.N.T.S. 261, 1947. See
University
of
Minnesota
Human
Rights
Library
[http://www1.umn.edu/humanrts/instree/unactivities.html]
Furthermore, the following regional organizations have also concluded agreements specifically aimed at
defining privileges and immunities: the Council of Europe, the Organization of American States, the
Organization of Africa Unity, and the League of Arab States.
4
Convention on the Safety of United Nations and Associated Personnel, G.A. res. 49/59, 49 U.N.
GAOR Supp. (No. 49) at 299, U.N. Doc. A/49/49, entered into force January 15, 1999. See the
University of
Minnesota Human Rights Library [http://www1.umn.edu/humanrts/instree/unactivities.html
Background paper on privileges and immunities of the ICC
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B. The Structure of the CICC P&I Consultation with the ICTR/ICTY
The importance of a strong APIC agreement for an effective, fair and independent
Court has prompted the NGO Coalition for an International Criminal Court (CICC)
to informally consult the Ad Hoc Tribunals whose experience and insight are
invaluable. While each constituent article of the APIC is essential, the time limitation
has obliged this paper to prioritize certain articles to be addressed during the
consultation. Thus, the following articles have been identified for discussion during the
consultation:
Art ic le 6 Im m un it y of t h e C ourt , it s propert y , fun ds an d asset s
Art ic le 12 E xer cise of t h e fun ct ion s of t h e C ourt out si de t h e h ea dquart ers
Article 15 Bis Personnel recruited locally and assigned to hourly rates
Article 16 Counsel and person s assist in g coun se l
Art ic le 17 E xpe rt s, wit n e sses, vict im s an d ot h er person s required t o be pre sen t
[ …]
Art ic le 20 Not i ficat ion
Art ic le 21 Laissez -passer
Art ic le 22 Visa
Because of the difficulties which have surfaced in regard to the privileges and
immunities of the personnel of the Court (officials, staff, defense council, locally
recruited persons), particular emphasis will be placed on the articles providing for the
privileges and immunities of the Court’s personnel. However, the APIC can only
serve the Court if the privileges and immunities are comprehensive and comparable to
those of other independent international organizations. Thus the selection of these
articles should in no way exclude discussion of the other APIC articles where
appropriate.
Finally, the inclusion of privileges and immunities of the Court in an agreement
separate from the headquarters agreement creates both additional challenges and
opportunities. While the challenges are clear, with the guidance and experience of the
Ad Hoc Tribunals it is the hope of the NGO CICC that the APIC WG will maximize
the opportunities to consolidate strong privileges and immunities to ensure the
functioning of a fair, effective and independent ICC.
II. The P ri vi l eges and I mmuni ti es of the Cou rt
A. The ICC as a legal entity
Articles 2 through 12 of the APIC cover the privileges and immunities of the court as a
legal entity. This legal personality of the ICC is crucial for the Court’s functioning
both under international law and domestic legal systems where the court may be on
business.5 On the international level, “international organizations have rights, powers,
5
A.S. Muller, International Organizations and their Host States: Aspects of their Legal Relationship, 1995,
Kluwer Law International, 69.
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and duties which separate them from their member states and give them a distinct
appearance.” 6 For this reason the international legal status of the ICC is enshrined in
the Rome Statute.7
However, it is the privileges and immunities which will apply to the ICC as a legal
entity within the domestic jurisdiction of member states which, if not sufficiently
delineated in the APIC, could seriously hinder the work of the Court.8 This is
particularly relevant since the provisions of the APIC will extend beyond the Host
Country. For instance if the APIC does not ensure the privilege of tax exemption for
the Court, the Court’s funds and assets could be seriously reduced by the unilateral
imposition of taxes by a state. Similarly, should the archives and documents of the
Court not be defined as inviolable, they could be easily subject to confiscation.
The following two articles (6 and 12) were selected for discussion because they are
indicative of the added complexity the APIC faces in drafting provisions which should
apply beyond the Host State. However, because the provisions on privileges and
immunities of the Court as a legal person are interlinked, ICTY and ICTR
representatives may wish to comment on other articles.
B.
Article 6
Immunity of the Court, its property, funds and assets
1.
The Cour t, an d its pro perty , fun ds an d ass ets, where ver locate d
and by whomso ever held, shal l be immun e fro m eve ry fo rm of lega l
pro cess, exce pt in sofar as in any part icula r cas e the Cour t has expr essly
wai ved its im munit y. It is unders tood that any measur e of exe cutio n
sha ll re quire a se parat e exp ress waive r of immun ity. 9
2.
The prop erty, fund s and asse ts of the Court , whe rever loca ted and
by whoms oever held , sha ll be immu ne fr om se arch, seiz ure, requi sitio n,
con fisca tion, expr opria tion and any ot her form of int erfer ence, whet her
by execu tive, admi nistr ative , jud icial or legisl ative acti on.
3.
To the extent nece ssary to carry out the fu nctio ns of the Court , the
pro perty , fun ds an d ass ets of the Cour t, wh ereve r loc ated and by
who msoev er he ld, shall be ex empt from restr ictio ns, regula tions ,
con trols or morato ria of any natu re.
6
Ibid., 72.
Article 4, Legal status and powers of the Court
1. The Court shall have international legal personality. It shall also have such legal capacity as may be
necessary for the exercise of its functions and the fulfillment of its purposes.
2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of
any State Party and, by special agreement, on the territory of any other State.
The Rome Statute, U.N. Doc. A/CONF.183/9.
8
“An international organization’s international legal personality would be quite worthless if the
organization would not have the means to utilize it within the legal order of its member or host states.”
Muller, 88.
9
Footnote found in the current draft APIC, PCNICC/2001/L.1/Rev.1/Add.3 (hereafter draft APIC),
states: A concern was raised as to whether funds, property and assets of the Court could be
subject to execution.
7
Background paper on privileges and immunities of the ICC
5
Parag raph 1 of art icle 6 aft er t h e first Prep C om was d raft ed as follows:
1. The C ourt, and its pro perty , […] expr essly waiv ed its imm unity . It is,
h ow ever, un d e rstoo d th a t su c h wai ver of imm u n ity sh al l not exte n d
to an y measu r e of execu tion . 10 11
Th e reason fo r t h i s am e n dm en t is un cle ar si n ce i t dev iat es for t h e p rovision s for
pri vileg es an d im m un it i es of ot h e r in t ern at ion al orga n isat ion s. 12 Fo r in st an ce , t h e
IC T Y an d IC TR ben e fit f rom a m uch st ro n ger provi sion , wh er e t h e seco n d
sen t en ce of Art ic le VI II13 re ads a s fol lows:
1. […] It is under stood , how ever, that no waiver of immuni ty sh all
ext end to any meas ure of exe cutio n.
W h i le t h e Sec ret ar iat h ad in clude d t h e abov e IC T Y pro visio n ver bat im in t h e
ori gin al draf t of t h e A PIC , t h e c urren t dra ft in g faci lit at es t h e wai ver o f im m un it y .
Th i s dev iat io n fro m t h e prov ision s of ot h er in t e rn at i on al legal en t i t ies would
app ear t o pla ce t h e IC C at a disa dvan t age.
Fur t h erm ore, an ot h er re st ric t ion added by t h e AP IC W G is t h e fi rst sen t en ce of
t h e t h ir d par agrap h of Art ic le 6 wh ich h as added t h e cavea t of :
“To the exten t nec essar y to carry out the functi ons of the Cour t…”
C. A rt ic le 12 Exer cise of th e fu n ct ion s of th e C ou rt ou t si d e th e hea d q u art ers
In the event that the C ourt pursu ant to par agrap h 3 of art icle 3 of
the Stat ute consid ers it des irabl e to sit elsewh ere than at its head quart ers
at The Hague in th e Net herla nds, the C ourt may conclu de wi th th e Sta te
con cerne d an arran gemen t con cerni ng th e pro visio n of the approp riate
fac iliti es fo r the exer cise of it s fun ction s.
Article 12 of the APIC clearly differentiates the Agreement from a headquarters
agreement and is indicative of the importance of securing appropriate privileges and
immunities for the Court and its personnel wherever an office or a person may be
located. For this reason it is paramount that the Host Country14 as a leading supporter
of the ICC, set a high standard for privileges and immunities to be met by all other
countries.
10
Convention on the Privileges and Immunities of the United Nations, article II, section 2; Agreement
on the Privileges and Immunities of the International Tribunal for the Law of the Sea, article 5,
para. 1; ICTY Headquarters Agreement, article VIII, para. 1.
11
PCNICC/2000/L.4/Rev.1/Add.3 Dec 14, 2000. Emphasis added.
12
For example, the privileges and immunities agreement for the Council of Europe, which like the ICC
has a privileges and immunities agreement is separate for the headquarters agreement, has a provision
which reads: “The Council, its property and assets, wheresoever located and by whomsoever held, shall
enjoy immunity from every form of legal process except in so far as in any particular case, the
Committee of Ministers has expressly authorized the waiver of this immunity. It is, however,
understood that no waiver of immunity shall extend to any measure of execution or detention of
property.”
13
Fu n ds, Asset s an d Oth e r Pr o per ty Head quar t er Ag r eeme n t (S /1994 /848)
14
Article 3, Seat of the Court , 1. The seat of the Court shall be established at The Hague in the
Netherlands ("the host State"). The Rome Statute, U.N. Doc. A/CONF.183/9.
Background paper on privileges and immunities of the ICC
6
Article 17 of the Rome Statute clearly set the threshold for jurisdiction where a
country is “unwilling or unable” to prosecute. As noted by the ICTY Representative
during a meeting at the 7th PrepCom, this means that the persons assisting the Court
onsite are likely to face precarious situations and will be operating in surroundings
where authority is uncertain, “there are national security concerns behind every tree”
and where the state has or is trying to emerge from a conflict situation.
Furthermore, as noted by Amnesty International:
“Articles 3 (Seat of the Court) and 62 (Place of trial) [respectively
of the Rome Statute] authorize the Court to sit and to conduct
trials outside the seat of the Court. As the first truly global
international criminal court, the Court may well decide to hold
hearings and trials outside the seat of the Court when it would be
less expensive to do so or, even when it might be somewhat more
expensive, the benefits - such as strengthening reconciliation in a
region torn by conflict - outweighed the greater costs. In addition,
the Court, like the Yugoslavia and Rwanda Tribunals will almost
certainly establish regional and national offices, as needed,
throughout the world for research, holding archives in secure
locations and liaison with national officials.”15
15
Amnesty International, International Criminal Court: Concerns at the seventh session of the Preparatory
Commission(26 Feb. to 9 March 2001) AI Index: IOR 40/002/2001. Also available on [www.amnesty.org].
Background paper on privileges and immunities of the ICC
7
III. Privileges and immunities of the Court’s Personnel
The question of privileges and immunities for the personnel of the Court has proved
to be more laborious than the P&I of the Court as a legal entity. For this reason
explanations and clarifications from the Ad Hoc Tribunals have been sought and more
time will be dedicated to this topic.
The ICTY and ICTR, being established by the Security Council, are fully integrated
into the UN system, their personnel therefore benefits directly from the UN
Conventions covering privileges and immunities, including their “experts on mission”
as well as “personnel recruited locally…”. Their experience may nevertheless serve as
guidance for the APIC, which will serve as the primary source of privileges and
immunities for the personnel of the Court. Because of the difficulty of the articles
covering the persons who will be serving the Court, the still unresolved articles will be
the main focus of discussion. It is important to reiterate that the P&I are not for the
personal benefit of the persons but to allow them to carry out their assigned tasks.16
The persons to be covered by Article 15 bis (i.e. local staff) are among the most
vulnerable (See the The Wesoloska Case in Annex I). Whether the current article will
suffice to protect those persons for “words spoken and acts performed” is unclear and the
insight of the ICTY and ICTR will greatly elucidate the issue.
16
This is also enshrined in every treaty addressing privileges and immunities. For instance the Vienna
Convention on Diplomatic Relations states in its p reamble: “Realizing that the purpose of such
privileges and immunities is not to benefit individuals but to ensure the efficient performance of the
functions of diplomatic missions as representing States,” (U.N.T.S. Nos. 7310-7312, vol. 500, pp. 95-239,
18 April 1961.) Similarly the Convention on the Privileges and Immunities of the United Nations (1
U.N.T.S. 15, 13 February 1946) states in Section 20: “Privileges and immunities are granted to officials
in the interests of the United Nations and not for the personal benefit of the individuals themselves”.
Background paper on privileges and immunities of the ICC
8
A. Artic le 15 bis17 18Perso n n el recru ited local ly an d ass ign ed to h ou rly rate s
P er sonne l rec ruite d by the C ourt local ly an d ass igned to hourly
rat es sh all be acc orded immu nity19 fr om le gal proces s in respe ct of
wor ds sp oken or wr itten and acts perfo rmed by th em in thei r off icial
cap acity for the C ourt. Such immu nity shall cont inue to be acco rded
aft er te rmina tion of em ploym ent with the Co urt for ac tivit ies carrie d out
on behal f of the C ourt. They shal l als o be accor ded such other facil ities
as may be nec essar y for the indep enden t exe rcise of their funct ions for
the Cour t.
B. Artic le 1620 Cou n sel an d pe rson s assi stin g cou n sel
1.
C ou nsel and person s ass istin g def ence couns el in acco rdanc e wit h
rul e 22 of th e Rul es of Proc edure and Evide nce [21] sha ll en joy the
fol lowin g pri vileg es, immuni ties and facili ties to th e ext ent necess ary
for the indep enden t per forma nce of the ir fu nctio ns in any State Part y
whe re th ey ma y be on th e bus iness of the Co urt, or in any State Part y
17
Footnote in the draft APIC reads: A proposal was made that this provision should be drafted as
follows: “Personnel performing functions of a general, supportive character for the Court shall, even
after the termination of their employment with the Court, be accorded immunity from legal process in
respect of words spoken or written and acts performed by them in their official capacity for the Court.
During their employment, they shall also be accorded such other facilities as may be necessary for the
independent exercise of their functions for the Court.”
18
Footnote in the draft APIC reads: This provision will be the subject of further discussion in the
Working Group.
19
Footnote in the draft APIC reads: A suggestion was made that the word “immunity” should be
qualified by the words “necessary functional”.
20
Footnote in the draft APIC reads: Discussions on this article were not conclusive and issues raised
include: question whether or not in relation to the expression “persons assisting counsel in accordance
with rule 22 of the Rules of Procedure and Evidence” appearing throughout the article, the term
“counsel” should be qualified by the word “defence”; question of the precise nature of the privileges and
immunities accorded to counsel; question of the scope of the expression “persons assisting counsel”; and
question of the appropriateness of including subparagraph (e) of paragraph 1 in the article.
21
Ru le 22 Ap p o in t m e n t an d qu a lif ic at ion s of Cou n s el fo r th e def e n ce
1. A cou n sel for th e de fen ce sh al l hav e est ablis h ed compet en ce in in ter n a tion a l or cr imi n al law
an d pr oc edur e , as well as th e nec essar y rel evan t expe r ien c e, wh eth er as judge, pr os ecuto r ,
adv ocate or in oth er si milar capa city, in cr imin al pr oceed in gs. A co un sel for th e defen c e sh a ll
h av e an excel len t kn ow l edge of an d be fluen t in at le ast on e of th e wor k i n g la n guag es of th e
Cou r t. Coun se l for th e defen ce ma y be assis ted by oth er pe r son s , in c ludin g pr o fesso r s of law ,
w it h rel evan t expe r tise .
2. Coun s el fo r th e defe n ce en gage d by a per son exer ci sin g his or her righ t un d er th e Sta tute to
r et ain legal coun s el of his or he r ch o osin g sh al l fil e a pow er of at tor n e y wit h th e Regi str ar at th e
ear liest oppo r tun i ty.
3. In th e per for ma n ce of th e ir du ties, Coun sel for th e def en ce sh all be subjec t to th e S tatut e, th e
Rul es, th e Re gulat ion s, th e Code of Pr ofess ion al Con d uct for Co un sel adop ted in accor dan ce
w it h rul e 8 an d an y oth er docu men t adopt ed by th e Cour t th at may be re levan t to th e
per for ma n ce of th e ir du ties.
Background paper on privileges and immunities of the ICC
9
thr ough which they may pass on su ch bu sines s, su bject to produc tion of
the cert ifica te re ferre d to in pa ragra ph 2 of th is ar ticle :
(a) Imm unity from pers onal arres t or deten tion and from seizur e
of their pers onal bagga ge;
(b) Imm unity from lega l pro cess of ev ery kind in res pect of
wor ds sp oken or wr itten and all acts perfor med by the m in their offi cial
cap acity , whi ch im munit y sha ll co ntinu e to be ac corde d eve n aft er th ey
hav e cea sed to exe rcise thei r fun ction s;
(c) Inv iolab ility of docume nts, paper s and mate rials rela ting to
the exer cise of th eir functi ons;
(d) The righ t to recei ve an d sen d pap ers or cor respo nde nce by
cou rier or in seal ed ba gs an d to recei ve an d sen d ele ctron ic
com munic ation s;
(e) Exe mptio n
reg istra tion;
fro m
imm igrat ion
restri ction s
or
alien
(f) Exe mptio n fro m ins pecti on of pers onal bagga ge, unless ther e
are seri ous ground s for beli eving that the bagga ge co ntain s art icles not
for pers onal use or art icles the impor t or expor t of which is prohib ited
by law or con troll ed by the quara ntine regu latio ns of the State Part y
con cerne d; an insp ectio n in such a cas e sha ll be cond ucted in the
pre sence of the co unsel , or perso ns as sisti ng co unsel in accord ance with
rul e 22 of th e Rul es of Proc edure and Evide nce, conce rned;
(g) The same faci litie s in respe ct of curr ency and exchan ge as
are acco rded to re prese ntati ves of for eign Gover nment s on tempo rary
off icial miss ions;
(h) The same repa triat ion facili ties in ti me of inte rnati onal crisi s
as are accord ed to dipl omati c age nts under the Vienna Conv entio n.
2.
Upo n app ointm ent of cou nsel in ac corda nce with the St atute , the
R ul es of Proc edure and Evide nce and th e Reg ulati ons of the Cour t,
cou nsel and the pe rsons assi sting coun sel in acc ordan ce wi th ru le 22 of
the Rule s of Proce dure and Eviden ce sh all be pro vided with a ce rtifi cate
und er th e sig natur e of the R egist rar for th e per iod requir ed fo r the
exe rcise of their funct ions. Such cert ifica te sh all be wit hdraw n if the
pow er or mand ate or the empl oymen t to assis t cou nsel is te rmina ted
bef ore the ex piry of th e cer tific ate.
3.
Whe re th e inc idenc e of any form of tax ation depe nds upon
res idenc e, pe riods duri ng wh ich counse l or perso ns as sisti ng th em ar e
pre sent in a State Part y for the disch arge of th eir functi ons shall not be
con sider ed as peri ods of res idenc e.
One of the more contentious issues faced by the APIC WG has been on the extent of
the privileges and immunities to be granted to the defense Council. It has also been one
of the most complex aspects of the work of the Ad Hoc Tribunals.
Background paper on privileges and immunities of the ICC
10
Definition
While in ICC documents the term "Counsel" remains undefined,22 The Code of
Professional Conduct for Defence Counsel Appearing Before the International
Tribunal (IT/125)23 includes the following definition:
"Counsel" any person who has satisfied the Registrar that he is admitted to the practice of
law in a State, or is a University professor of law, and
(a) has filed his or her power of attorney with the Registrar; or
(b) has been assigned under the Rules to a Suspect, Accused, Detainee, Witness
or other Person.
Any reference to Counsel includes a reference to any co-counsel jointly and to each of
them severally.
This definition however, would not clarify whether all Counsel’s team (i.e. “such staff
and experts as are deemed by the Court to be necessary to the proper functioning of
counsel”24) would be covered.
The Need for Privileges and Immunities for Counsel
As noted by the International Criminal Defense Attorney’s Association (ICDAA), the
“following functions must be considered in establishing appropriate privileges and
immunities for defence counsel and others associated with the defence at the ICC:
1.
2.
3.
Ability to represent the client in Court;
Ability to communicate with the client in confidence, and to maintain
confidential files and channels of communication;
Ability to investigate on site in person or through investigators, to collect
evidence and interview witnesses wherever necessary in a timely manner.25
The ability of counsel to represent clients in Court is essentially protected by the
APIC.26 Provisions for confidential communications are included in Article 16,
although they could be improved upon. 27 As with the privileges and immunities for
22
Including under article 1 “Definition of terms”.
The same definition found in the ICTR’s Code of Professional Conduct for Defence Counsel is
identical.
24
Paper prepared by the International Criminal Defense Attorney’s Association (ICDAA), Protection of
the Rights of the Defence in the Agreement on the Privileges and Immunities of the International Criminal
Court, with Special Attention to the Needs of the Defence Outside the Host Country, revised 22 February
2001, proposed modifications to article 16. Distributed at the Seventh PrepCom.
25
Ibid., 2.
26
Ibid., 5.
27
The general immunity from legal process of any kind, discussed above, should adequately protect
confidentiality of face-to-face communications of counsel and client. This right, might, however, be
made clearer if an additional provision specifically stated the privilege of counsel to meet with the client
at all reasonable times and places, and in confidence, subject to the security needs of any place where the
client is lawfully maintained to regulate the time and place of meeting (but not to interfere with
confidentiality). ICDAA
23
Background paper on privileges and immunities of the ICC
11
experts, witnesses, victims and others discussed below, Article 16 has been significantly
improved towards ensuring adequate coverage for those serving the Court as defense
counsel in the field. However, the current draft has not yet been agreed upon and
many States continue to pose objections.
D. The ICTR Experience
During the Seventh PrepCom, the ICTR made available a discussion paper on several
issues under discussion.28 Because of their continuing relevance to the discussion of
Article 16, excerpts from the discussion paper are herewith included:
It must be highlighted that defence counsel are obliged to undertake extensive
travel to the territory and region were the crimes were allegedly committed, as
well as to numerous other destinations particularly in view of the fact that
potential witnesses are dispersed across the globe. While in the instance of the
ICTR, the Office of the Prosecutor has an office in Kigali, Rwanda, which
undertakes investigative work, defence teams of up to 5 members are self
sufficient and undertake investigations in various States around the globe.29
Currently Defence Counsel at the ICTR benefit from a “Letter of Mission” which
assists them during their travels in relation to their case. An example is provided
in annex.
Articles 16 - Counsel & Article 21 – Laissez Passer
The main issue is whether a “Certificate” as described in Article 16(2) would
provide the necessary functional access. It is important to note that such
Certificates are issued to “consultants on mission for the UN”, for instance for
UNDP, UNHCR etc. The Certificate in question resembles a “Laissez Passer”, in
that it is in the form of a renewable passport, with pages for visas etc. While the
format is identical, the words “Laissez Passer” are replaced with “Certificate”. This
travel document is widely recognised by customs officials. It has been the policy of
the United Nations not to issue “Laissez Passer” to persons who do not represent
the institution and are not official staff members of the institution.
Thus, if the “Certificate” as elaborated in Article 16(1) of the draft Agreement on
Privileges and Immunities displays in its inside cover (as do the Laissez Passer) the
extent of the privileges and immunities granted, particularly the exemption from
immigration restrictions, the defence counsel should be in an equal position to
prosecution staff.
28
ICTR Discussion Paper on the Working Documents of the Preparatory Commission of the International
Criminal Court, 24 Nov.-8 Dec, 200 and 24 Feb.- 3 March, 2001.
29
The ICTR paper further explains: A total of seventy counsel, coming from twenty different countries,
29
have been assigned to the accused by the Registry. The costs of another eighty-two assistants and
investigators are also covered by the Registry. There are six duty counsel. The Lawyers and Detention
Facilities Section [LDFMS] is responsible for defence counsel issues. Since the beginning of the
programme the Registry has assigned 110 counsel.
Background paper on privileges and immunities of the ICC
12
ICTR Clarification:30
(1) Art. 16 (2) with regard to the “Certificate”, providing the privileges, immunities and
facilities listed in 16(1)(a) – (h) are comprehensive and include exemption from immigration
restrictions. This will reduce costs.
(2) In addition, the mention of a “letter of mission” (lettre de mission) which would commit the
State parties to fully co-operate and provide assistance as far as possible, whenever the
Counsel assigned by the ICC has to conduct a fact finding mission in their territory.
(3) Counsel and co-counsel, assistants and investigators will benefit from the Certificate for the
duration of their appointment. Return of the certificate will be included in the Code of
Professional Conduct. Letters of mission will be granted to any members of the team as
requested by counsel, and approved by the Registry as necessary.
30
ICTR Discussion Paper on the working documents of the Preparatory Commission of the International
Criminal Court (24 November – 8 December 2000 and 24 February – 3 March 2001). Distributed at the
end of the Seventh PrepCom at the UN Headquarters in New York.
Background paper on privileges and immunities of the ICC
13
E. Artic le 1731 Exp e rts, witn e sses, vict ims an d ot h er person s req u ired to be pre sen t
at th e seat of th e Cou rt
1.
Exp erts, witn esses , vic tims parti cipat ing in the proc eedin gs in
acc ordan ce wi th ru les 89 to 91 [S ee An nex II] of the Rules of P roced ure
and Evid ence, and other pers ons requir ed to be presen t at the seat of the
C ou rt sh all be acc orded such trea tment as is nec essar y for the prope r
fun ction ing of the Cour t and shal l be accor ded, durin g the peri od of
the ir mi ssion s, in cludi ng th e tim e spe nt on jour neys in co nnect ion with
the ir mi ssion s, th e pri vileg es, immuni ties and facili ties provi ded for in
art icle 16, subpar agrap hs (a ) to (f), of th e pre sent Agree ment.
2.
Exp erts, witn esses and other pers ons requir ed to be presen t at the
sea t of the C ourt shall be accord ed re patri ation faci litie s in time of
int ernat ional cris is.
3.
Exp erts, witn esses and other pers ons accord ed th e pri vileg es,
imm uniti es an d fac iliti es re ferre d to in pa ragra ph 1 of th is ar ticle shal l
be provi ded by the Cour t wit h a docume nt ce rtify ing that their prese nce
is requi red at the seat of the Co urt and sp ecify ing a time peri od du ring
whi ch su ch pr esenc e is neces sary.
F. Art icle 17 bi s Th e ad d i tion of th e fol lowin g tex t for a ne w art icle 17 bi s was
su g geste d :
“S uch privil eges and immuni ties as ma y be accor ded to nat ional s wit hin
the ir te rrito ry sh all be und ersto od to have been gran ted, in th e cas e
ref erred to in art icle 15, exclus ively for the perfor mance of their
fun ction s, an d, in the cases refe rred to in arti cles 16 an d 17, by reason of
the ir ac tions befo re th e Cou rt. ”
Th e lim i t at io n of perso n s co vered by t h is a rt icl e t o t h ose “required to be present at
the seat of the Court” m ay h a ve or igin a t ed f rom t h e fa ct t h at pr ovisi on s f or
pri vileg es an d im m un it i es ar e oft en fo un d i n t h e h ead quart er ag reem e n t s ( or St at us
of Force s Agr eem en t s) o f org an isa t ion s. Th u s, t h e fir st dr aft b y t h e Secr et ari at 32 wa s
sig n ific an t ly in fl uen ce d by t h e h eadqu art er s agr eem en t s of t h e Ad Hoc Tri bun al s,
sin ce t h at is wh er e t h e prov ision s for t h ei r pri vileg es an d im m un it i es ar e fou n d.
However, in the drafting of Article 17, the specification of the location of the experts,
witness and others may unnecessarily limit the effectiveness of the Court. Numerous
persons may be required to assist the Court, but may never need to be present at its
31
Footnote found in the draft APIC states: Discussions on this article were not conclusive and issues
raised include: the need to expand the scope of the article to cover other persons involved in the
proceedings but not required to be present at the seat of the Court or persons assisting the Court in one
way or the other; differentiating the scope of privileges, immunities and facilities for experts and other
persons referred to in this article; appropriateness of coverage for victims insofar as they are not
expressly referred to in article 48 of the Statute; the need to distinguish between different categories of
witnesses and victims and to allocate appropriate privileges, immunities and facilities to them; the need
to distinguish between privileges and immunities and protective measures; inclusion of express reference
to article 68 (3) of the Statute; redrafting of this article along the lines of article XVIII of the
Headquarters Agreement of the International Tribunal for the Former Yugoslavia.
32
P CN ICC/2 000/W G A P IC /L. 1 9 Aug ust 2000
Background paper on privileges and immunities of the ICC
14
seat (i.e. its headquarters). While amendments to Article 15 (see below) and 16 have
expanded the coverage granted by the APIC, ambiguities remain.
Definition
This question of location of the persons covered is interlinked to that of the
classification of persons who may be called upon to assist the Court. At the last
PrepCom, the APIC Working Group (WG) removed the term "officials of the Court"
from Article 1 on the “Use of terms” following extensive discussions on who would
classify as an official. However, in Article 15 “Officials of the Court” were more
clearly defined as the “Registrar, staff of the Office of the Prosecutor and staff of the
registry.” Article 44 or the Rome Statute defines staff as follows:
1.
The Prosecutor and the Registrar shall appoint such qualified staff as may be
required to their respective offices. In the case of the Prosecutor, this shall include the
appointment of investigators.
2.
In the employment of staff, the Prosecutor and the Registrar shall ensure the highest
standards of efficiency, competency and integrity, and shall have regard, mutatis mutandis,
to the criteria set forth in article 36, paragraph 8 [specifying geographic, legal and gender
balance].
3.
The Registrar, with the agreement of the Presidency and the Prosecutor, shall
propose Staff Regulations which include the terms and conditions upon which the staff of
the Court shall be appointed, remunerated and dismissed. The Staff Regulations shall be
approved by the Assembly of States Parties.
4.
The Court may, in exceptional circumstances, employ the expertise of gratis
personnel offered by States Parties, intergovernmental organizations or non-governmental
organizations to assist with the work of any of the organs of the Court. The Prosecutor may
accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall
be employed in accordance with guidelines to be established by the Assembly of States
Parties.
While this clarification in Article 15 could be interpreted to extend coverage of
privileges and immunities to investigators the distinctions between “staff” and experts
(as yet undefined in Article 17) remain unclear.
G. UN Staff definitions
Through treaties and practice, the UN has developed categories which may serve to
clarify the extent of privileges and immunities necessary for the functioning of the
ICC. In particular, the lessons of both Ad Hoc Tribunals, which operate in very
different geographical regions and therefore different circumstances, can serve as
examples.
In addition, the extensive experience of international organizations has lead to an
existing classification of personnel. Key among these are “experts on mission” whose
privileges and immunities are included in Article VI, Experts on Missions for the
Background paper on privileges and immunities of the ICC
15
United Nations, of the Convention on the Privileges and Immunities of the United
Nations33 which enumerates the following privileges and immunities:
SECTION 22. Experts (other than officials coming within the scope of Article V)
performing missions for the United Nations shall be accorded 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. In particular they shall be accorded:
(a) Immunity from personal arrest or detention and from seizure of their personal
baggage;
(b) In respect of words spoken or written and acts done by them in the course of the
performance of their mission, immunity from legal process of every kind. This
immunity from legal process shall continue to be accorded notwithstanding that the
persons concerned are no longer employed on missions for the United Nations;
(c) Inviolability for all papers and documents;
(d) For the purpose of their communications with the United Nations, the right to use
codes and to receive papers or correspondence by courier or in sealed bags;
(e) The Same facilities in respect of currency or exchange restrictions as are accorded to
representatives of foreign governments on temporary official missions;
(f) The same immunities and facilities in respect of their personal baggage as are
accorded to diplomatic envoys.
It is important to note that regardless of the established principle of privileges and
immunities for UN personnel in international law, UN staff members of all categories
continue to be vulnerable when on duty in difficult situations in the field. Since those
serving the Court where genocide, crimes against humanity and war crimes have
occurred will be in equally precarious situations, a comprehensive APIC is at the very
least a goodwill gesture by the ICC’s member states that they are serious about
enabling the Court to prosecute and at best it will serve as a legal guarantee to ensure
the functioning of the Court and the safety of its personnel.
There are two options addressing this issue:
ß
Ensuring complete coverage of all categories of potential collaborators (both on
behalf of the Prosecutor and the Defense) within article 17
ß
Enumerating the categories of personnel and specifying the relevant privileges and
immunities in separate articles
33
The Convention on the Privileges and Immunities of the United Nations, 1 U.N.T.S. 15, 13 February
1946.
Background paper on privileges and immunities of the ICC
16
Guidance and recommendations from the Ad Hoc Tribunals on the issue would be
particularly appreciated.
H. Artic le 2034 Noti fication
Not ifica tion rega rding expe rts and wi tness es as well as victim s sha ll
be subje ct to any decis ions taken by the Co urt regard ing the pr otect ion of
wit nesse s, ex perts and victi ms. 35 Th e Reg istra r sha ll co mmuni cate perio dical ly
to all S tates Part ies the ca tegor ies and na mes of per sons to wh ich the
pro visio ns of the prese nt Ag reeme nt sh all apply, in partic ular the judges , the
P ro secut or, the De puty Prose cutor s, th e Reg istra r, th e Dep uty R egist rar, the
sta ff of the Offic e of the P rosec utor, the staff of the Re gistr y and coun sel. The
R eg istra r sha ll al so co mmuni cate to al l Sta tes P artie s inf ormat ion on any
cha nge in the stat us of thes e per sons.
The concerns regarding Article 20 and the notification of persons who for security
reasons may have their identity concealed has been addressed through the addition of
the first sentence. However, the examination of this article reaffirms the need for clear
distinctions of the privileges and immunities for all categories of persons who may be
called to serve the ICC.
I. Artic le 2136 L aisse z-p asser
The Stat es Pa rties shal l rec ogniz e and acce pt th e Uni ted Nation s
lai ssez- passe r iss ued to the judg es, the Pr osecu tor, the Deputy Pros ecuto rs, the
R eg istra r, th e Dep uty R egist rar, the staff of th e Off ice of the Pros ecuto r and
the staf f of the R egist ry as a va lid travel docu ment. 37
J. Artic le 17
38 39
L aiss ez-p asser [of the d raft relation s h ip agreem en t betwee n th e UN
an d th e ICC (P C N IC C /2001/L . 1/R ev. 1/A dd. 1)]
Wit hout preju dice to th e rig ht of the Court to issue its own tr avel
doc ument , and in partic ular in th e abs ence of an y suc h tra vel docume nt, the
jud ges, the P rosec utor, the Deput y Pro secut or, the Re gistr ar an d off icial s of
the Offi ce of the Prose cutor and the R egist ry sh all be ent itled , in accor dance
wit h suc h spe cial arran gemen ts as may be co nclud ed be tween the Secre taryGen eral and the Co urt, to us e the lais sez-p asser of the Un ited Natio ns as a
val id tr avel docum ent40 wh ere such use is reco gnize d by State s Par ties to, and
34
Footnote found in draft APIC states: This provision will be the subject of further discussion in the
Working Group.
35
Footnote found in draft APIC states: It was suggested that, in order to ensure adequate protection,
any notification should be preceded by Court authorization.
36
Footnote found in the draft APIC text: Final wording of this article awaits drafting of the relevant
provision of the Relationship Agreement between the United Nations and the International Criminal
Court.
37
Footnote found in draft APIC text: It was suggested that the Court could issue its own laissez-passer,
which could serve as travel document for the persons referred to in articles 13 to 17 of this Agreement.
38
Footnote found in draft ICC-UN text: Some delegations questioned whether this articl e was
necessary. Some delegations also suggested that consideration of this article should be deferred pending
the completion of the articles on the privileges and immunities of the Court.
39
Footnote found in draft ICC-UN text: Some delegations suggested that this article should be
simplified and shortened.
40
Footnote found in draft ICC-UN text: A suggestion was made to end the article after this word.
Background paper on privileges and immunities of the ICC
17
in accor dance , wit h the Agre ement on the Pr ivile ges and Im munit ies of the
Int ernat ional Crim inal Court , con clude d pur suant to articl e 48 of th e Sta tute,
or other agre ement s def ining the privi leges and immun ities of the Co urt.
As noted by Amnesty International, “there may well be times when a UN laissezpasser would be useful as a supplementary travel document for Court personnel and
counsel, for example, in certain states which had not yet ratified either the Rome
Statute or the Agreement on the Privileges and Immunities of the Court, the Court
should be able to issue its own travel documents and they should be recognized by
states. There will be many times when it will be essential for Court personnel and
counsel to distinguish themselves from the UN, for example, in areas where a UN
peace-keeping operation is taking place.”41
Counsel and members of the counsel's defence team should have the same, or
essentially the same, ability to travel on a Court document as officials of the Court,
(please see above).
K. Article 22 Visas
Applications for visas or entry/exit permits, where required, from all
persons who are holders of the United Nations laissez-passer, and also from
persons referred to in articles 16 and 17 of the present Agreement, who have a
certificate or other document issued by the Court confirming that they are
travelling on the business of the Court, shall be dealt with by the States Parties as
speedily as possible and granted free of charge.42
Previous information from experts of the ICTY have indicated that their experience
has been that the Court, rather than the victims and witnesses themselves, should
obtain the necessary entry and exit permits and visas. For the ICTY, witnesses and
victims do not generally want to be seen or know to be approaching the Dutch
Embassy to obtain visas for their travel to The Hague. Furthermore, once visas have
been obtained for witnesses, they do not normally require any additional
documentation, neither during their travels nor during their stay in The Hague since
the relevant Dutch authorities are aware of their presence in the Netherlands.
Furthermore, for reasons of confidentiality and security witnesses should not carry
documentation identifying their affiliation with the ICTY.
While this will also hold true for instances where the ICC trials are held at The Hague,
the APIC should also consider the possibility that the Court hold seat in a country
where, for instance, the relevant authorities are not necessarily as efficiently
coordinated as they are in the Netherlands.
41
Amnesty International paper. See supra note 15.
42 Foot n ote foun d in cur r en t dr aft: A reser vati on was exp r essed as to th e app r opr iaten e ss of
r ecog n iz in g cer tificates as valid tr avel docu men ts for th e pur pos e of issui n g visas.
Background paper on privileges and immunities of the ICC
18
Therefore, the question of whether victims and witnesses should be dealt with in a
different provision rather than in the same manner as the staff, experts and officials of
the Court should be further examined.
Background paper on privileges and immunities of the ICC
19
IV. General provisions
Finally, mention should be made of the “most favourable clause”, which the APIC
WG has already used to address the issue regarding the transfer of currency.43
However, this provision could also be included in regard to the general privileges and
immunities of the Court. The Organisation for the Prohibition of Chemical Weapons
(OPCW), while having had two distinct advantages over the APIC,44 secured a
provision which has been key to the independent and effective functioning of the
organisation. The provision states the following:
4. Additional provision [to the Headquarters Agreement]
(a) If and to the extent that the Government shall, in the future, enter into an
agreement with any intergovernmental organisation containing terms or conditions
more favourable to that organisation than comparable terms or conditions in this
Agreement, the Government shall extend such more favourable terms or
conditions to the OPCW or to any person entitled to privileges and immunities
under this Agreement.
(b) The Government shall inform the OPCW of the office designated by the
Ministry of Foreign Affairs to serve as official contact point and to be primarily
responsible for all matters in relation to this Agreement. The OPCW shall be
informed promptly about this designation and of any subsequent changes in this
regard.45
V. Conclusion
In conclusion, it is the hope of the Coalition that the informal consultation will
increase the understanding of both NGOs and delegates of what the draft agreement
on privileges and immunities will translate into for the ICC with regard to its daily
tasks in the fight against impunity. It is also hoped that the deepened understanding of
the practical day to day requirements of international tribunals will be reflected in
draft proposals and the conclusion of a satisfactory APIC during the next Preparatory
Commission.
43
Draft APIC, Article 10 -Funds and freedom from currency restrictions […]
(d) The Court shall enjoy the same facilities, if any, in respect of rates of exchange for its financial
transactions as are accorded to the most favourably treated foreign mission in that particular State Party.
The footnote to this articles reads: This subparagraph will be the subject of further discussion in the
Working Group.
44
Firstly, the OPCW Headquarters Agreement is the result of a competitive bid by member states to
host the organization. Secondly, as a headquarters agreement it is a bilateral treaty.
45
Organisation for the Prohibition of Chemical Weapons Headquarters Agreement, Conference of the
States Parties, First Session, C-I/DEC.59, Agenda item 18, 14 May 1997. Available on [www.opcw.org]
Background paper on privileges and immunities of the ICC
20
Annex I
Several cases and advisory opinions by the International Court of Justice have dealt
with various aspects of the privileges and immunities of UN personnel. While these
cases are indicative of the problems that may arise, the ICC will be independent from
the UN and as such will not directly benefit from the established international case
law which is based on provisions specific to the UN.
The Cumaraswamy Case46
Dato’ Param Cumaraswamy is a Malaysian jurist who was appointed Special
Rapporteur on the independence of judges and lawyers by the UN Commission on
Human Rights in 1994. He was subsequently sued for civil damages of over $100
million for allegedly defamatory remarks made in an interview. The UN Secretary
General supported his claim of functional immunity and indicated to the Government
of Malaysia that since Mr. Cumaraswamy had acted in his official capacity he was
immune from prosecution under the Convention on the Privileges and Immunities of
the United Nations.
In August 1998, ECOSOC requested an advisory opinion on the issue from the
ICJ, on the question. The ICJ found (by 14 votes to one) that article VI, section 22, of
the Convention on the Privileges and Immunities of the United Nations was
applicable. It also found that the Malaysian Government had the obligation to inform
its national courts of the decision.
At the end of 1999 the Secretary General had again written to the Malay
Government requesting that the ICJ Opinion be respected and that the court
proceedings against Mr. Cumaraswamy be terminated.
The Mazilu Case
In 1984 Dimitri Mazilu, a Romanian, was assigned Special Rapporteur to draft a
report on human rights and youth by the UN Sub-Commission on the Prevention of
Discrimination and Protection of Minorities. In 1987, when the terms of the UN SubCommission members expired, Mr. Mazilu was nowhere to be found. His government
claimed he was ill. The Secretary General (SG), at the request of the Sub-Commission
asked the Romanian government to allow a member of the Sub-Commission to visit
Mr. Mazilu. The government refused. The SG then and invoked the UN General
Convention but the Romanian authorities replied that Article VI section 22, protects
only experts on mission, not special rapporteurs.
The International Court of Justice (ICJ) advisory opinion which followed dealt
not only with the question of whether a special rapporteur was covered by Article VI
section 22, but also with the question of whether an “expert on Mission” for the UN
could invoke the privileges and immunities under the UN Convention with regard to
their own countries case.
46
International Court of Justice http://www.icj-cij.org
Background paper on privileges and immunities of the ICC
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The ICJ ruled unanimously that the Convention on the Privileges and
Immunities of the UN (Article VI Section 22) of Mazilu was applicable.47
The ICJ also found that in the absence of a reservation by a state, the privileges
and immunities of the General Convention do apply to experts “in their relations with
the States of which they are nationals or on the territory of which they reside.”
The Wesoloska Case 48
In 1979-80, a Polish criminal proceeding caused great concern to the UN Staff
Union and its members. Ms. Alicija Wesolowska, a Polish national employed as a
stenographer by the UNDP, was arrested in August 1979 while she was visiting her
parents in Poland en route from her former UNDP assignment in New York to a new
one in Mongolia. The Polish government held her without formal charges, and
without allowing UN representatives to visit her, until March 1980. Then she was
tried on a charge of "collecting and transmitting intelligence information on Polish
citizens and on individuals from some other countries who were employed by the UN,
as well as carrying out tasks assigned to her by said intelligence, i.e. of one of those
NATO countries."
The UNSG requested not only that his representative be permitted to visit her,
but that a UN observer be allowed to attend the trial. These requests were denied and
Ms. Wesolowska was sentenced to seven years in prison, upheld by the Polish Supreme
Court. Ms. Wesolowska had obtained her UNDP position without the approval of her
government, as was customary at the time, and some observers suspected that this was
the real offence.
Of particular relevance is the UN Legal Counsel brief on the question of who
among the UN Personal is covered by the UN Convention on the Privileges and
immunities of the Specialised Agencies and IAEA:
The right to meet with and converse with a person in custody is essential to the
privileges and immunities of that person, for if immunity is to be waived the
organization must establish the facts.
47
International Court of Justice, Advisory Opinion, 1989. [1989] I.C.J. 177, 29 Int’l Legal Materials 100
(1990)
48
Frederic L. Kirgis, Jr., International Organizations in Their Legal Setting, West Publishing Company,
1993,
Background paper on privileges and immunities of the ICC
22
Annex II
P CNICC/2000/INF/3/Add. 1
Report of the P reparatory Commission for the International
Criminal Court
Add endum
F inalized draft text of the Rules of P rocedure and Evidence*
[…]
Section III
Victims and witnesses
[…]
Sub secti on 3
Par ticip ation of v ictim s in the p rocee dings
Rul e 89
App licat ion f or pa rtici patio n of victi ms in the
pro ceedi ngs
1.
In order to presen t the ir vi ews and co ncern s, vi ctims shal l mak e
wri tten appli catio n to the R egist rar, who shall trans mit the ap plica tion to
the rele vant Chamb er. S ubjec t to the provis ions of th e Sta tute, in
par ticul ar ar ticle 68, parag raph 1, th e Reg istra r sha ll pr ovide a co py of
the appl icati on to the Prose cutor and the defenc e, wh o sha ll be enti tled
to reply with in a time limit to be set by the Ch amber . Sub ject to th e
pro visio ns of sub- rule 2, th e Cha mber shall then spec ify the pr oceed ings
and mann er in whic h par ticip ation is consid ered appro priat e, wh ich may
inc lude makin g ope ning and closin g sta temen ts.
2.
The Cham ber, on it s own init iativ e or on th e app licat ion of the
P ro secut or or the defen ce, may re ject the applic ation if it con sider s tha t
the pers on is not a vic tim or tha t the crit eria set forth in ar ticle 68,
par agrap h 3, are not ot herwi se fu lfill ed. A vic tim whose appli catio n has
bee n rej ected may file a new appl icati on la ter in the proc eedin gs.
3.
An appli catio n ref erred to in thi s rul e may also be made by a
per son acting with the conse nt of the victi m, or a pe rson actin g on
beh alf of a victim , in the case of a victim who is a child or, when
nec essar y, a victi m who is disabl ed.
4.
Whe re th ere are a numbe r of appli catio ns, the Ch amber may
con sider the appli catio ns in such a ma nner so as to ensure the
eff ectiv eness of the pr oceed ings and may is sue one de cisio n.
* In view of paragraph 16 of the Introduction, the final version of this report will be issued at a later stage
under the symbol PCNICC/2000/1. The title of rule 93 (former rule 6.30 quinquies) has been added in the
editing process of the document.
Background paper on privileges and immunities of the ICC
23
Rul e 90
Leg al re prese ntati ves o f vic tims
1.
A vi ctim shall be free to cho ose a lega l rep resen tativ e.
2.
Whe re th ere are a numbe r of victi ms, the Ch amber may, for the
pur poses of ensuri ng th e eff ectiv eness of the pr oceed ings, requ est the
vic tims or pa rticu lar groups of victim s, if nece ssary with the assis tance
of the R egist ry, to cho ose a comm on le gal repres entat ive or
rep resen tativ es. In fac ilita ting the coordi natio n of victi m rep resen tatio n,
the Regi stry may provid e ass istan ce, int er al ia, by ref errin g the vict ims
to a lis t of couns el, mainta ined by th e Reg istry , or sugge sting one or
mor e com mon legal repre senta tives .
3.
If the victim s are unab le to choo se a commo n leg al re prese ntati ve
or repre senta tives with in a time limit that the Chamb er ma y dec ide, the
C ha mber may reques t the Regi strar to choose one or mo re co mmon
leg al re prese ntati ves.
4.
The Cham ber and th e Reg istry shal l tak e all reas onabl e ste ps to
ens ure that in the sele ction of common lega l rep resen tativ es, the di stinc t
int erest s of the victim s, pa rticu larly as provid ed in arti cle 68, pa ragra ph
1, are repres ented and that any confli ct of inte rest is av oided .
5.
A vi ctim or gr oup of vic tims who lack the ne cessa ry me ans to pay
for a co mmon legal repr esent ative chos en by the Court may recei ve
ass istan ce fr om th e Reg istry , inc ludin g, as appr opria te, financ ial
ass istan ce.
6.
A le gal repres entat ive of a victim or victim s sha ll ha ve th e
qua lific ation s set fort h in rule 22, sub-ru le 1.
Rul e 91
Par ticip ation of l egal repre senta tives in t he pr oceed ings
1.
A Ch amber may modif y a previo us ru ling under rule 89.
2.
A le gal repres entat ive of a victim shal l be entit led to att end and
par ticip ate in the proc eedin gs in acco rdanc e wit h the term s of the ruling
of the C hambe r and any modif icati on th ereof give n und er ru les 89 and
90. This shal l inc lude parti cipat ion in hea rings unle ss, in the
cir cumst ances of the ca se, the Ch amber conc erned is of the view that the
rep resen tativ e’s interv entio n sho uld be con fined to writte n obs ervat ions
or submi ssion s. Th e Pro secut or an d the defe nce shall be al lowed to
rep ly to any oral or wr itten obse rvati on by the legal repr esent ative for
vic tims.
3.
(a) Whe n a legal repre senta tive atten ds an d par ticip ates in
acc ordan ce wi th th is ru le, and wi shes to qu estio n a witnes s, in cludi ng
que stion ing under rules 67 and 68 , an exper t or the accuse d, th e leg al
rep resen tativ e mus t mak e app licat ion to the Cham ber. The C hambe r
may requ ire the le gal repres entat ive to pro vide a wri tten note of th e
que stion s and in that case the qu estio ns sh all be com munic ated to th e
P ro secut or an d, if appr opria te, the de fence , who shal l be allow ed to
mak e obs ervat ions withi n a time limit set by the Cham ber.
Background paper on privileges and immunities of the ICC
24
(b) The Cham ber shall then issue a ru ling on th e req uest, taki ng
int o acc ount the stage of th e pro ceedi ngs, the rights of the ac cused , the
int erest s of witne sses, the need for a fair , imp artia l and expe ditio us tr ial
and in order to gi ve ef fect to ar ticle 68, parag raph 3. Th e rul ing may
inc lude direc tions on the ma nner and order of th e que stion s and the
pro ducti on of docu ments in accord ance with the powers of the Ch amber
und er ar ticle 64. The C hambe r may , if it co nside rs it appr opria te, put th e
que stion to the wi tness , exp ert or acc used on be half of th e vic tim’s lega l
rep resen tativ e.
4.
F or a he aring limi ted to re parat ions under arti cle 75, th e
res trict ions on qu estio ning by th e leg al re prese ntati ve se t for th in subrul e 2 shall not apply. In that case, the legal repre senta tive may, with the
per missi on of the Chamb er co ncern ed, questi on wi tness es, expert s and
the pers on co ncern ed.
Background paper on privileges and immunities of the ICC
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