States can bolster their support for international justice by ratifying the Agreement on Privileges and Immunities of the International Criminal Court (APIC). Add your voice now to our November Campaign for Global Justice.
Open to ratification by any state—including those not yet members of the ICC—the APIC is an international treaty that provides the ICC with the access and cooperation it requires from governments.
Universal ratification and implementation of the APIC is the November focus of the Coalition’s Campaign for Global Justice, which encourages states to fully support the international justice system.
“The APIC is crucial for the ICC system of international justice to work effectively,” said Kirsten Meersschaert, director of programs at the Coalition for the ICC. “Only by ratifying and implementing the Agreement can states guarantee their officials are aware of the actual scope and realities of these privileges and immunities and how to apply them in concrete situations.”
The Agreement gives ICC officials and staff, defense counsel, and state representatives certain privileges and immunities necessary to independently and unconditionally perform their duties. It complements cooperation provisions in Article 48 of the ICC’s founding treaty, the Rome Statute.
To date, only 74 states have ratified the APIC, leaving 50 ICC members’ in a potential legal vacuum when it comes to having the necessary framework to effectively cooperate with the Court. As the APIC is open to ratification by non-ICC members, like Ukraine which ratified it in 2007, such states can demonstrate a commitment to international justice by joining the APIC, even prior to ratifying the Rome Statute.
In a letter sent this week to heads of state and government of the 123 countries that have yet to ratify or accede to this critical treaty, the Coalition urged states to join the 74 countries that have already become party to the APIC.
In 2014, at the initiative of Belgium, ICC member states agreed to hold a ceremony at the 2016 Assembly of States Parties (ASP)—the ICC’s governing body—at which states could pledge to ratify the APIC by the 20th anniversary of the Rome Statute in 2018.
“The Coalition is calling on states to initiate the process of APIC ratification so that they can announce their ratification, or at the very least their pledge to do so, at the 2016 ASP session,” Meersschaert continued. “The Agreement can also be ratified by non-ICC members, as shown by the precedent of Ukraine in 2007.”
Ratifying the APIC remains an important step in strengthening the ICC. With preliminary examinations, investigations or cases ongoing in 17 situations, it is now more crucial than ever that the Court is able to rely on states to respect immunity and privileges as foreseen in the core ICC documents: the Rome Statute and the Agreement on Privileges and Immunities of the Court.
The Libyan example: Privileges and immunities contravened
In 2012, four ICC staff members, including one Court-appointed lawyer—Melinda Taylor—traveling to meet with ICC suspect Saif-al-Islam Gaddafi were detained by a rebel militia in Zintan, Libya. The Libyan National Transitional Council alleged that Taylor had passed unauthorized materials to Gaddafi in a direct threat to state security. Communications between counsel and client are protected by the Rome Statute.
As Libya is not party to the Rome Statute nor to the APIC, the ICC investigation and case against Gaddafi stems from a UNSC referral of the situation in Libya to the Court. The referral obliges Libyan authorities to cooperate fully with the ICC, and urges all concerned all states and regional and other international organizations to do likewise. Such cooperation includes ensuring the Court’s ability to execute its mandate—in the Libyan case, by providing a suspect with unfettered access to counsel, and respecting counsel’s privileges and immunities when executing the Court’s mandate.
As a solution to future instances of violations against such rights, necessary to the legitimate and efficient functioning of any judicial institution, all states—ICC member or not—should ratify the APIC.
Had Libya been party to the APIC, the immunities of the ICC personnel in Libya would have been legally clear. APIC Article 18 explicitly lists the privileges and immunities of ICC defense teams, including immunity from detention, the inviolability of documents and communications relevant to representation, and immunity from legal processes related to acts performed in an official capacity.
As an incentive to states keen on preserving the primacy of their national investigations, the APIC actually broadens the Rome Statute’s scope of immunity waivers enshrined in Article 48, adding, for example, the Court’s ability to waive defense teams’ privileges and immunities. Another advantage for states that ratify the agreement: their representatives enjoy immunities when participating in Court proceedings as well as at events related to the ASP.
An holistic view of the APIC reveals protective provisions on par with those under UN Charter Article 105, which covers the privileges and immunities of UN personnel. The APIC precisely defines protections and related obligations of states parties, bestowing the ICC with the capacity to effectively protect its personnel, victims and witnesses, as well as other people and resources necessary for its work.