LCHR urges States Parties to the ICC to promptly sign, ratify and implement the Agreement on Privileges and Immunities of the Court

May 28, 2003

The Agreement of Privileges and Immunities (APIC) of the ICC has been open for signature and ratification since September 10, 2024 and will remain open for signature until June 30, 2004. The Rome Statute holds that States Parties must provide certain privileges and immunities to officials and staff of the court. Without those privileges and immunities, it will be extremely difficult for ICC personnel and defense counsel to effectively carry out investigations, transport evidence and carry out other essential functions, and for witnesses to travel. Despite its importance, to date only Trinidad and Tobago and Norway have ratified the APIC, while 28 states have signed the Agreement. The APIC will enter into force after 10 states have ratified it. In addition to ratification, measures will need to be taken at national level to ensure that the terms of the Agreement are implemented in domestic law. This might involve amending already existing ICC implementing legislation or other legislation, or taking other steps.

As the Court will be operational soon, it is likely to encounter great difficulties in conducting its work if States Parties cannot offer the protection required under article 48 of the Rome Statute and under the Agreement on Privileges and Immunities (APIC). It will be particularly crucial to ensure that the staff of the Office of the Prosecutor and defense counsel are ensured sufficient protection in its investigative missions on the ground. As of now, there are no such guarantees in place in the legislation of any States Parties. LCHR therefore urges States Parties to the ICC to promptly sign, ratify and implement the Agreement on Privileges and Immunities of the Court.

WHAT IS THE AGREEMENT ON PRIVILEGES AND IMMUNITIES?

Since the ICC is not a U.N. body, but an independent treaty-based organization, the Court and its staff are not covered under the 1946 Convention on the Privileges and Immunities of the United Nations, which provides UN personnel the privileges and immunities necessary for the independent exercise of their functions. For this reason, Article 48 of the Rome Statute provides for privileges and immunities to be afforded to the Court and its representatives. According to Article 48:

• The judges, Prosecutor, Deputy Prosecutors and Registrar are to be granted the “same privileges and immunities as are accorded to heads of diplomatic missions.”
• The Deputy Registrar and the staff of the Office of the Prosecutor and of the Registry are to be granted the “privileges and immunities and facilities necessary for the performance of their functions”
• Counsel, experts, witnesses or any other persons required to be present at the seat of the Court are to be “accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court.”

Article 48 by itself, however, was not considered to be sufficient, and States Parties decided that, as with other international organizations, such as the U.N. itself and other international courts and tribunals, it was necessary to have a separate agreement in order to ensure that all of the appropriate protections and assurances that will be needed are set out in detail and implemented through incorporation into domestic law. The Agreement on Privileges and Immunities (APIC) was negotiated, and opened for signature and ratification on September 10, 2002.

The Agreement on Privileges and Immunities provides for privileges and immunities relating to the legal status of the Court (Articles 2 to 12) and then provides for immunities and privileges of the personnel of the Court (Articles 13 to 23). Articles 24 to 38 deal with various other issues relating to the privileges and immunities granted by the agreement.

For more in-depth information on the APIC, please see LCHR’s Briefing Paper