In view of the increasing number of sanctions and repressive measures against judges of the International Criminal Court (ICC) and UN experts, MEPs from the Committee on Legal Affairs and the Subcommittee on Human Rights held a public hearing on Tuesday 24 February to consider the legal basis for international immunities and the instruments available to the European Union to respond to them.
Professor Cedric Ryngaert of Utrecht University pointed out that the 1946 Convention on the Privileges and Immunities of the United Nations protects officials and experts on mission from “any form of legal process, whether it is judicial or administrative”.
In his view, the sanctions constitute “administrative legal constraints” that impede the independent exercise of their functions.
He therefore stressed that a State cannot unilaterally decide that a rapporteur has acted outside his mandate. Such an assessment is a matter for the United Nations itself and where appropriate for the Secretary-General.
Article 48 of the Rome Statute – the 1998 international treaty that created the International Criminal Court – grants judges, prosecutors and registrars protection “on a par with that of heads of diplomatic missions”.
While some non-party States – led by the United States – dispute the scope of these obligations, States that are party to it, including EU Member States, may nevertheless have a “positive obligation to protect the immunity of ICC staff”, including through collective measures.
Slovenian judge Beti Hohler, herself a victim of US sanctions following a presidential decree, described the consequences as “immediate”, echoing the words of Nicolas Guillou, a French ICC judge who is also under US sanctions (see EUROPE 13810/18).
“Living with US sanctions means living with constant uncertainty”, she said.
It was also noted that these measures have consequences for families and the operation of the Court.
Michael Stelzer, Head of the Sanctions Unit at the European Commission’s Directorate General for Financial Stability, Financial Services and Capital Markets (DG FISMA), said that the Commission “deplores the use of sanctions by the United States”.
He recalled the role of the 1996 blocking regulation, which prohibits European operators from complying with extraterritorial sanctions not recognised by the EU, unless they have prior authorisation. A delegated act could update it in order to strengthen the protection of judicial independence and the multilateral system. (Original version in French by Nithya Paquiry)