Saif Al-Islam Gadaffi, son of recently deposed Libyan dictator Muammar Gaddafi, was captured last year by local officials in Zintan, Libya, and has been held there ever since. Although the International Criminal Court has had an arrest warrant issued for Saif since June 2011, and since Saif’s capture been requesting that Libya transfer him into the ICC’s custody, Saif has remained in the control of the Zintani militia.

Last week, an ICC defense lawyer and her translator were arrested in Libya for “spying” and for providing illegal assistance to Saif. The Zintani militia that detained Melinda Taylor, the defense attorney appointed by the ICC to represent Saif Al-Islam, are now claiming that she had transmitting secret letters to her client. Two other ICC officials who were with Taylor were not arrested, but opted to remain with her and her Lebanese translator:

The four were in Zintan so that Taylor could meet with her client, Saif al-Islam Qaddafi, to discuss his defense in the ICC case against him. The court issued an arrest warrant last June for Saif, as well as his father Muammar and former Libyan intelligence chief Abdullah al-Senussi, for crimes against humanity committed during the regime’s brutal attacks on civilian demonstrators in early 2011. Now, the Libyan authorities claim that Taylor and Assaf exchanged documents with Saif, and had “recording equipment” with them during the interview. Neither activity would be unusual for an attorney-client meeting, but Taylor and her team are supposedly being investigated on charges of spying. Libyan authorities have said that they will be held for 45 days, and frequent references to “threats to national security” do not inspire confidence in their fate thereafter.

The reaction of the international community to the arrests has been oddly muted, perhaps in part due to uncertainty regarding the legal status of Libya’s actions under international law. Although Taylor was an ICC agent who was arrested for performing her official duties, it is not clear that international law actually prohibits Libya from arresting Taylor in this situations. To muddy the waters even further, the arrest of the ICC agents follows right on the heels of Libya’s challenge to the ICC’s jurisdiction to even hear the case against Saif — the first such jurisdictional challenge that the ICC has faced in it short history.

The odd and unfortunate situation has come about as a result of the nature of the ICC’s jurisdiction over Saif Al-Islam, which was not derived from any treaty obligation incurred by Libya but rather through a resolution of the U.N. Security Council Resolution. Resolution 1970 (2011), which authorized the initial multilateral intervention in Libya, also contained a provision referring the situation in Libya to the ICC:

ICC referral

4.  Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

5.  Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

6.  Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

7.  Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;

8.  Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;

The ICC’s authorization to prosecute human rights violations in such situations is provided via Article 13(b) of the Rome Statute. Referral of a case by the Security Council is the only manner by which jurisdiction can be conveyed to the ICC for a crime committed in the territory of a state that is not a party to the Rome Statute.

But even with a Security Council referral, the ICC’s jurisdiction is not necessarily guaranteed — the other jurisdictional requirements contained in the Rome Statute must also be met. Although Libya did not voluntarily authorize ICC jurisdiction, it still has the right to challenge that jurisdiction under Article 19 of the Rome Statute. Libya is in fact currently pursuing a jurisdictional challenge in regards to the ICC’s jurisdiction to prosecute several of the would-be defendants, including Saif. Libya asserts that ICC jurisdiction would be improper under Article 17(1)(a) of the Rome Statute, as “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” In Libya’s May 1, 2012 filing to the ICC, Libya moved to have the case deemed inadmissible before the ICC, claiming that the new Libyan transitional government was properly pursuing criminal charges against Saif and the other defendants through Libya’s domestic criminal justice system.

The ICC has indicated, however, that it is not going to concede jurisdiction without a fight. On June 5th, just two days before the kidnapping of Taylor’s party, the Office of the Prosecutor (OTP) filed its response to Libya’s challenge. Although it was conceded that Libya had in fact brought domestic charges against the defendants, which under principles of complementarity would prevent the ICC from trying the case, the OTP concluded that Libya has failed to demonstrate that it has the practical ability to actually carry out a prosecution of Saif Al-Islam Gadaffi itself:

The Applicant has demonstrated that it has taken concrete steps to investigate the same person for the same conduct at issue in the case before the ICC. Further, there is no evidence to suggest that the Applicant is not genuine in its investigation and prosecution of Saif Al-Islam. However, there remain questions about its ability to advance the investigation and prosecution of Saif Al-Islam. Therefore the Court should accept the Applicant’s offer to provide further information, including the testimony of the General Prosecutor, to provide clarity on its ability to advance its case.

The OTP was concerned in particular about Libya’s failure to afford Saif Al-Islam with defense counsel:

However, despite the Applicant’s predictions at the time it filed its challenge on 1 May 2012, it does not appear that Saif Al-Islam has received a defence lawyer  within Libya, a precondition to presenting to him the charges and completing the  investigation under Libyan law”. This lack of progress could be related to the restrictions established because the Zintan militia exercise custody over him. The Prosecution is mindful of the substantial challenges faced by the Applicant, but this apparent lack of progress raises questions about whether the Applicant is able to “otherwise carry out its proceedings” within the meaning of Article 17(3). Therefore, the Prosecution submits that the Court should require the Applicant to appear before the Court to provide additional information on its ability to advance the investigation and prosecution of Saif Al-Islam.

Given the timing of these events, it could seem at first glance that the arrest of Taylor on June 7th was in retaliation to, or at least related to, the OTP’s filing on June 5th indicating that it intended to proceed with criminal charges before the ICC. There is another wrinkle, however — the Libyan transitional government was not responsible for the arrest of the ICC officials. Rather, it was a local Zintani militia group — the same group holding Saif Al-Islam — that detained the ICC defense counsel, apparently at the militia’s own initiative. The Zintani militia group has been holding Saif as a way of gaining leverage over the federal Libyan government, and now they may have decided to double up on their claims by taking the ICC staff as prisoners too.

So the whole situation is a mess right now. The ICC is claiming that it maintains jurisdiction to prosecute Saif for war crimes due, in part, to Libya’s inability to provide Saif with access to counsel. Local government actors in Libya have now kidnapped the ICC defense counsel that was being provided to Saif, for their own motives, which tends to confirm the ICC’s assessment regarding Libya’s ability to try Saif and the other defendants in its own courts. And the Libyan transitional government is still trying to argue that the ICC shouldn’t have jurisdiction to bring charges, but lacks sufficient control over the Zintani militia to either try Saif for itself or to free the ICC staff.

But while the arrest of the ICC defense counsel is clearly a poor diplomatic move on Libya’s part, it is less certain whether it also constitutes a breach of international law. Some commentators have suggested that the ICC staff have immunity from domestic judicial processes, but the source of such immunity is debatable.

1. The ICC’s Agents Have No Immunity in Libya through the Rome Statute. States Parties to the Rome Statute are obligated by Article 48 to provide the ICC with “such privileges and immunities as are necessary for the fulfilment of its purposes.” But Libya is not a party to the Rome Statute, and is not bound by any international obligations through that instrument. (Nor is Libya a party to the Agreement on Privileges and Immunities of the International Criminal Court, which supplements and expands the immunity of Court officials, but likewise only applies to states that are signatories to the instrument.)

Even though the Security Council has referred the situation in Libya to the ICC, that does not have the effect of conferring the treaty obligations contained in the Rome Statute onto Libya.  Paragraph 4 of Resolution 1970 did not, in itself, curtail any of Libya’s jurisdiction as sovereign, but instead expanded the jurisdictional reach of the ICC to permit it to bring charges against violators of human rights in Libya — in effect, the Security Council has delegate a sliver of its own administrative jurisdiction to the ICC, to permit it to bring charges against a crime that was otherwise not within its jurisdictional ambit. But the ICC was not granted any rights to enter the territory of a sovereign entity which had not already ceded those rights to the ICC via treaty.

[Update: Over at EJIL Talk, Dapo Akande makes the argument that the treaty obligations contained in the Rome Statute can also be imposed on a state by Security Council resolution. Article 48 of the Rome Statute, he argues, now applies to Libya

because the UN Security Council, in referring the Libyan situation to the Court, has imposed the Statute on Libya. In SC Res 1970, the SC decided that Libya shall cooperate with the ICC. That resolution does not make it explicit that this is an obligation to cooperate in accordance with the Statute. However, … the obligation to cooperate under SC Res 1970 is an obligation to cooperate in accordance with the Statute. It is the Rome Statute that defines and sets out the boundaries of Libya’s obligation to cooperate. Art. 48 is part of that obligation of cooperation. Just as ICC  parties have an obligation to accord immunities to ICC personnel, so does Libya. Indeed, this provision is absolutely crucial to the cooperation obligation. Were Libya not obliged to provide immunity to ICC personnel working on the situation referred to by the Security Council, the obligation to cooperate would be rendered meaningless. Libya would be able to frustrate ICC investigation simply by using its national law and legal processes to harass ICC staff.

This explanation is not entirely satisfying to me. Akande’s argument is that, through a one line resolution ordering Libya to “cooperate” with the ICC, the Security Council has essentially forced Libya to become party to the Rome Statute and incur all the obligations of a party to that treaty. But which parts of the Rome Statute? All of them? Or just the ones that the Court finds convenient to invoke? Why is Article 48 automatically applied to Libya, but not Article 88 — which mandates that “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part”? Or may Libya propose changes to the ICC’s Rules of Procedure and Evidence pursuant to Article 51? And what about financial contributions to the ICC — is Libya on the hooks for those too?

Secondly, the text of the Rome Statute does not necessarily support the claim that the entirety of the instrument applies to cases where jurisdiction is invoked through Article 13(b) — after all, the Rome Statute does clearly provide at different points provisions governing “States Parties” and other provisions that govern simply “a State.” This would imply “States Parties” refers only to parties, while “a State” includes both parties and states that have voluntarily accepting jurisdiction in a specific case or had jurisdiction forced upon them.

But, the Rome-Statute-Applies-Automatically argument certainly does make things more convenient. I’d just be more comfortable with it if the Security Council was required to be explicit before it could mandate a state’s accession to a treaty.]

2. The ICC officials have no immunity from domestic judicial process, but by arresting them, Libya is failing “to cooperate fully with the [ICC] and the Prosecutor”, as it is 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 have “immunity.” That is, it is not that Taylor and her interpreter have a special immunity from judicial process under international law, but rather that Libya had a more general prohibition against failing to cooperate with the ICC. In the present situation, it so happens that  Libya’s failure “to cooperate fully with and provide any necessary assistance to” the ICC took the form of Libya’s decision to arrest the ICC’s officials. However, Libya would be equally in violation of international law had it, say, built a giant wall around Zintan that prevented Taylor and her interpreter from entering.

The claim that the ICC’s “immunity” is nothing more than a side effect of the Security Council’s mandate of cooperation is also supported by Article 87 of the Rome Statute, and Article 17 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations. Article 17 of the Negotiated Relationship, which is titled “Cooperation between the Security Council of the United Nations and the Court,” provides at Section 3 that:

Where a matter has been referred to the Court by the Security Council and the Court makes a finding, pursuant to article 87, paragraph 5 (b) or paragraph 7, of the Statute, of a failure by a State to cooperate with the Court, the Court shall inform the Security Council or refer the matter to it, as the case may be, and the Registrar shall convey to the Security Council through the Secretary-General the decision of the Court, together with relevant information in the case.  The Security Council, through the Secretary-General, shall inform the Court through the Registrar of action, if any, taken by it under the circumstances.

In other words, the Security Council is the ultimate arbiter of whether or not a state is failing to abide by its command that the state in question cooperate with the ICC, and is the entity that is responsible for taking action when its orders are not being followed. Although the ICC has the ability to notify the Security Council of any incidents that may arise, the state’s obligation is solely to the Security Council and not to the Court. So, at least pursuant to Article 87 of the Rome Statute or Article 17 of the Negotiated Relationship, the proper procedure for the ICC in this situation is to refer the issue to the Security Council and let them decide how to figure it out. So far, however, the only sort of decisive action that the Security Council has taken in response to the matter is to release a press statement:

The members of the Security Council express serious concern over the detention in Libya since 7 June 2012 of the International Criminal Court (ICC) staff members, and urge Libyan authorities at all levels and all concerned to work towards immediate release of all the ICC staff members.

The members of the Security Council emphasize that it is the legal obligation of Libya under the Council’s resolution 1970 (2011) to cooperate fully with and provide any necessary assistance to the ICC pursuant to that resolution.

This press statement indicates that the Security Council is of the position that Libya’s obligation to release the ICC staff members is derived from resolution 1970, and not from an alternative source under international law. However, although Libya is certainly obligated to cooperate with the ICC pursuant to the Security Council resolution, this may not be the sole source of the rights of the ICC’s agents in Libya. Taylor, as the ICC appointed defense counsel for Saif, may also have true immunity under international law through two other sources, discussed below.

3. The ICC’s Agents May Have Immunity as Agents on Missions Pursuant to the Convention on the Privileges and Immunities of the United Nations. Because Libya has not ceded any of its jurisdiction to the ICC, any immunity that the ICC officials have comes not through the Rome Statute, but through the U.N. conventions to which Libya is a party. Pursuant to the Convention on the Privileges and Immunities of the United Nations (CPIUN), the U.N.’s officials are “immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity.” However, as the ICC is not itself a U.N. agency, the ICC’s personnel are not covered by the terms of that instrument, at least not directly. But it is possible that, at least in this particular case, and owing to the nature of the ICC’s involvement in Libya, ICC officials have agent on mission immunity pursuant to the CPIUN.

Section 22 of the Convention on the Privileges and Immunities of the U.N. provides for immunity not just for U.N. officials, but also for “Experts on Missions for the United Nations”:

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 … immunity from personal arrest or detention and from seizure of their personal baggage[.]

Could the ICC defense counsel be Experts on Missions for the U.N., and therefore immune from criminal prosecution pursuant to the CPIUN? After all, the ICC’s jurisdiction to prosecute Saif was provided by the U.N.’s Security Councilm, and was supplemented by Paragraph 5 of Resolution 1970, which instructed that “Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” The ICC was only in Libya pursuant to the Security Council’s mandates, performing work that the Security Council had requested.

The question turns upon the meaning of “Experts on Missions” under the treaty. The ICJ’s Advisory Opinion

On the Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations would lend some support to the claim, anyway:

The Court will … consider first what is meant by “experts on missions” for the purposes of Section 22, and then  the meaning to be attached  to  the expression “period  of  [the] missions”[.] …

The  General Convention  gives  no definition  of  “experts  on missions”. Al1 it does is to clarify two points, one negative and the other positive. From Section 22 it is clear, first that the officials of the Organization, even if chosen in consideration of their technical expertise in a particular field, are not included in the category of experts within the meaning of that provision; and secondly that only experts performing missions for the United Nations are covered by Section 22. The Section does not, however, furnish any indication  of  the nature,  duration  or place  of these missions.

Nor is there really any guidance in this respect to be found in the travaux préparatoires of the General Convention. The Convention was initially drafted and submitted to the General Assembly by the Preparatory Commission set up at San Francisco in June 1945; that initial draft did not contain anything corresponding to the present Article VI. That article was added by the Sub-Commission on Privileges and Immunities established by the Sixth Committee to examine the draft, but the contemporary official records do not make it possible to ascertain the reasons for the addition

The purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an officia1 of the Organization, and to guarantee them “such privileges and immunities as are necessary for the independent exercise of their functions”. The experts thus appointed or  elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission. …

To sum up, the [International Court of Justice] takes the view that Section 22 of the General Convention is applicable to persons (other than United Nations officials) to whom a mission has been entrusted by the Organization and who are therefore entitled to enjoy the privileges and immunities provided for in this Section with a view to the independent exercise of their functions; that during the whole period of such missions, experts enjoy these functional privileges and immunities whether or not they travel; and that those privileges and immunities may be invoked as against the State of nationality or of residence unless a reservation to Section 22 of the General Convention has been validly made by that State.

Although Taylor was clearly acting on behalf of the ICC at the time of her arrest, she was acting on a mission that had been delegated to the ICC by the Security Council. Possibly, then, that is sufficient to grant her immunity from prosecution under Article 22 of the CPIUN, as the ICJ’s Advisory Opinion is clear that it is not necessary for the expert to have a contract with the U.N. or to be paid by the U.N. to be entitled to immunity. “Experts on Missions” are determined not by their administrative title, but by the nature of their mission, and their immunity extends to the extent necessary to permit the expert to carry out her duties.

As Taylor was on a mission to serve as defense counsel for Saif Al-Islam, and that mission was performed at the (albeit indirect) behest of the Security Council, and as Libya’s arrest of Taylor interfered with the ICC’s ability to afford a criminal defendant with the right to counsel that is provided both by international law and by the Rome Statute, Taylor may have had immunity from prosecution pursuant to the CPIUN.

4. The ICC’s Agents May Have Functional Immunity by Operation of Customary International Law. It is also possible that the ICC officials’ immunity from criminal prosecution exists entirely apart from any treaty or convention. Although diplomatic immunity is often codified in treaties and other international instruments, it is also a part of customary international law, at least as it applies to the foreign officials of sovereigns. But do agents of international organizations, like the agents of foreign states, posses functional immunity under customary international law?

Functional immunity, as opposed to the more general immunity ratione personae granted to heads of states and other diplomatic bigwigs, is the immunity of foreign officials in relation to acts performed in their official capacity. If Taylor had been acting on behalf of a foreign state rather than an international organization, she would not be entitled to any general immunity under customary international law, but she would likely be entitled to functional immunity. As counsel for Saif, it was Taylor’s performance of her official duties that lead to her arrest — and thus functional immunity would presumably apply.

However, Taylor was not acting in Libya on behalf of a foreign state, but on behalf of an international organization. Whether or not the customary norm of diplomatic immunity extends to officials acting on behalf of international organizations in general, or to officials of the ICC in particular, remains an unsettled question. There is conflicting domestic case precedent cutting both ways, and although the state practice is largely there, measuring the opinion juris in this situation is made somewhat difficult by the lack of official pronouncements.

In any event, the question of the ICC official’s diplomatic immunity under customary international law is more convoluted than I care to get into in this blog post, but there is a decent argument to be made that such a norm  of immunity does in fact exist. Even if agents of international organizations are not granted a blanket immunity under CIL, for instance, they could have immunity in circumstances such as those surrounding Melinda Taylor’s presence in Libya. It could also be bolstered in this particular case by other tenants of international law, as a showing that the functions carried out by Taylor as an IO agent, and for which she is arrested, are the sort of functions for which IO agents are customarily immune from sovereign interference, even if there is no generally applicable immunity.  For instance, human rights law provides for a right to assistance of counsel in all criminal proceedings —  and a norm providing ICC defense counsel with immunity from criminal prosecution that is intended to interfere with that right would be consistent with both human rights norms and with the norms of diplomatic immunity as applied to states. Similarly, this customary norm of IO immunity could be held to apply automatically to IO agents that are in a state pursuant to a lawfully ordered intervention. That is, when the Security Council takes the step of interfering with a state’s sovereignty by ordering that the state accept certain IO officials and agents into its territory, there could be an implicit norm that the Security Council has also usurped the state’s sovereign right not merely to exclude that person, but also to pursue criminal charges against that person for engaging in the acts that they were sent to the state to perform.

-Susan