Vol. 138, No. 13 — June 30, 2004

Registration
SOR/2004-156 21 June, 2004

FOREIGN MISSIONS AND INTERNATIONAL
ORGANIZATIONS ACT

International Criminal Court Privileges and Immunities Order

P.C. 2004-770 21 June, 2004

Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs and the Minister of Finance, pursuant to subsections 5(1) (see footnote a) and (2) (see footnote b) of the Foreign Missions and International Organizations Act (see footnote c), hereby makes the annexed International Criminal Court Privileges and Immunities Order.

INTERNATIONAL CRIMINAL COURT
PRIVILEGES AND IMMUNITIES ORDER

INTERPRETATION

1. The following definitions apply in this Order.

"Agreement" means the Agreement on the Privileges and Immunities of the International Criminal Court adopted under the Rome Statute by the Assembly. (Accord)

"Assembly" means the Assembly of States Parties established under Article 112 of the Rome Statute. (Assemblée)

"Convention" means the Convention on the Privileges and Immunities of the United Nations set out in Schedule III to the Foreign Missions and International Organizations Act. (Convention)

"International Criminal Court" means the International Criminal Court established by the Rome Statute. (Cour pénale internationale)

"Rome Statute" has the meaning assigned to that term in subsection 2(1) of the Crimes Against Humanity and War Crimes Act. (Statut de Rome)

PRIVILEGES AND IMMUNITIES

2. (1) The International Criminal Court shall have in Canada the legal capacities of a body corporate and, to the extent specified in the Agreement, the privileges and immunities set out in Articles II and III of the Convention.

(2) Subject to subsection (4), representatives of a foreign state that is a member of or that participates in the Assembly shall have in Canada, to the extent specified in the Agreement, the privileges and immunities set out in Article IV of the Convention.

(3) Subject to subsection (4), judges, officials and staff of the International Criminal Court and counsel, experts, witnesses and other persons required to be present at the seat of that Court shall have the privileges and immunities set out in Article 48 of the Rome Statute and in the Agreement.

(4) This Order does not exempt permanent residents of Canada and Canadian citizens from liability for taxes or duties imposed by any law in Canada.

COMING INTO FORCE

3. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Order.)

Description

The purpose of the Order is to grant privileges and immunities to the office of the International Criminal Court (ICC) if it is required that an office of the ICC be set up in Canada. Additionally, this Order grants the ICC the legal capacity of a body corporate. In furtherance of Canada's obligations under the Agreement on the Privileges and Immunities of the International Criminal Court (APIC), which was adopted during the meeting of the Assembly of the State Parties ("Assembly"), held from September 3 to 10, 2002, this Order also gives representatives of State Parties, personnel and officers of the Court, experts, witnesses, victims and any other person required to be present at the seat of the Court, privileges and immunities needed for the exercise of the ICC's duties.

The privileges and immunities will be granted in furtherance of Canada's obligations under article 48 of the Rome Statute of the International Criminal Court (Rome Statute), which Canada ratified on July 7, 2000.

By reference to APIC, to the Rome Statute, to the Convention on the Privileges and Immunities of the United Nations ("UN Convention") as provided for in APIC, this Order will grant certain privileges and immunities to the ICC, representatives of State Parties, personnel and officers of the Court, experts, witnesses, victims and any other person required to be present at the seat of the Court.

This Order will be made pursuant to paragraphs 5(1)(a) and 5(1)(b) of the Foreign Missions and International Organizations Act, (FMIOA) in order to grant the ICC the legal capacity of a body corporate and to grant the ICC the privileges and immunities to the extent of Articles II and III of the UN Convention, respectively.

This Order will also be made pursuant to paragraph 5(1)(i) of the FMIOA. The FMIOA was amended under section 54 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 in anticipation of the implementation of APIC. Section 54 states:

Subsection 5(1) of the FMIOA is amended by striking out "and" at the end of paragraph (g), by adding the word "and" at the end of paragraph (h) and by adding the following after paragraph (h):

The Privileges and Immunities Granted to the ICC

The ICC, which sits at The Hague, will be granted privileges and immunities as set out in Article 48(1) of the Rome Statute and Articles 2 to 11 of APIC. Article 2 of APIC grants the ICC international legal personality and juridical personality limited to the extent necessary for the exercise of its functions and the fulfilment of its purpose. International legal personality ensures that the ICC has rights, powers and duties which separate it from the State Parties of APIC. The juridical personality allows the ICC to enter into contracts, to acquire and to dispose of immovable and movable property and to participate in legal proceedings.

It is anticipated that the ICC may be required to be in the territory of States other than the Netherlands, the seat of the Court as established by Article 3 of the Rome Statute (Article 12 APIC). Under Article 4 of APIC, the ICC's premises have been accorded inviolability, meaning that States will abstain from exercising sovereign rights over these premises. The ICC's other property, funds, and assets will be immune from every form of legal process (Article 6 APIC). This protection also extends to archives and documents of the ICC (Article 7 APIC).

Under Article 8 of APIC, the ICC shall be exempt from all direct taxes, customs and duties, and import or export restrictions. This is to protect the ICC's assets from serious reduction by the unilateral imposition of taxes by a State and to ensure that the ICC will be able to have and use articles and evidence to fulfill its official functions. The ICC will also be entitled to carry out certain financial activities and shall enjoy treatment in respect of rates of exchange not less favourable than those granted to any intergovernmental organisation (Article 10 APIC). Finally, all aspects of official communication and correspondence of the ICC will be treated with the same consideration as diplomatic communications (Article 11 APIC).

The Privileges and Immunities Granted to the Representatives of States

This Order will grant privileges and immunities to representatives of States participating in the Assembly and in its subsidiary organs and to representatives of intergovernmental organizations. The privileges and immunities granted are not for the personal benefit of the individuals but in order to safeguard the independent exercise of their functions in connection with their work for the ICC. These privileges and immunities are expressed in Article 13 of APIC, including: immunity from personal arrest and detention; immunity from legal process in respect to opinions expressed or acts performed in their official capacity; inviolability of all papers and documents; exemption from immigration restrictions and alien registration requirements; and in determining periods of residency for taxation purposes, the periods during the attendance of meetings of the Assembly will not be considered as periods of residence.

This Order will grant certain privileges and immunities found therein to representatives of States participating in the Assembly and in its subsidiary organs and to representatives of intergovernmental organizations such as immunities in respect of their personal baggage and the same protection as accorded to diplomats in time of international crisis.

The Privileges and Immunities Granted to Judges, Prosecutor, Deputy Prosecutors and Registrar

This Order will grant privileges and immunities to the Judges, Prosecutor, Deputy Prosecutors and Registrar of the ICC. The Judges, Prosecutor, Deputy Prosecutors and Registrar will be granted the same privileges and immunities as are accorded to heads of missions. These privileges and immunities are found in Article 15 of APIC and include: protection from any legal process in relation to statements by them or acts performed in their official capacity; exemption from immigration restrictions, including their families; protection from arrest and detention, including their families; exemption, for non-Canadians who are not permanent residents of Canada, from taxation on salaries, emoluments, and allowances; and inviolability of all official papers and documents.

The Privileges and Immunities Granted to Deputy Registrar, staff of the Office of the Prosecutor and staff of the Registry

This Order will grant privileges and immunities to the Deputy Registrar, staff of the Office of the Prosecutor and staff of the Registry in order to enable the ICC to investigate and to prosecute crimes while ensuring the safety of its personnel and officers during the performance of their functions. These privileges and immunities are found in Article 16 of APIC and include: immunity from personal arrest or detention and from seizure of their personal baggage; immunity from any legal process in respect to statements given and acts performed in their official capacity; inviolability of all official papers and documents; exemption, for non-Canadians who are not permanent residents of Canada, from taxation on their salaries, emoluments and allowances; exemption from immigration restrictions, including members of their families forming part of their household; and the right, for non-Canadians who are not permanent residents of Canada, to import free of duties and taxes except for payments for services.

This Order will grant the recognition and acceptance of the United Nations laissez-passer or the travel document issued by the ICC to the Judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry as valid travel documents (Article 29 APIC).

Immunity Granted to Personnel Recruited Locally

This Order will grant immunity from any legal process in respect to statements given or acts performed in their official capacity to personnel recruited locally. Such immunity will continue to be accorded after termination with the ICC for activities carried out on behalf of the ICC.

The Privileges and Immunities Granted to Counsel and Persons assisting Defence Counsel

This Order will grant privileges and immunities to counsel and to persons assisting defence, which can include investigators in order to protect the independence of counsel and those who are part of the defence team to reflect international standards for a fair trial. These privileges and immunities are found in Article 18 of APIC and include: immunity from personal arrest or detention and from seizure of his or her baggage; immunity from any legal process in respect of statements given or acts performed in his or her official capacity; inviolability of documents relating to the exercise of his or her functions; the right to receive and send documents; exemption from immigration restrictions; exemption from inspection of baggage unless there are serious grounds for believing that the baggage contains contraband; and where taxation depends on residency, periods during which counsel is present for the discharge for his or her functions shall be exempt.

Upon appointment, counsel shall be provided with a certificate under signature of the Registrar for the period required for the exercise of his or her functions.

The Privileges and Immunities Granted to Witnesses

This Order will grant privileges and immunities to witnesses. These privileges and immunities provide a measure of protection to those who could be at great risk in view of the testimony they give. These privileges and immunities are found in Article 19 of APIC and include: immunity from personal arrest and detention; immunity from seizure of baggage unless there is serious grounds for believing that the baggage contains contraband; immunity from legal process of any kind in respect to statements given or acts performed in the course of testimony; inviolability of documents relating to their testimony; the right to receive and send documents for the purpose of communication with the ICC and counsel in connection to their testimony; and exemption from immigration restrictions when they travel for the purposes of their testimony.

The Privileges and Immunities Granted to Victims

This Order will grant privileges and immunities to victims in order to reflect the need for protection and safety as well as access to the ICC. These privileges and immunities are found in Article 20 of APIC and include: immunity from personal arrest or detention; immunity from seizure of their personal baggage unless there are serious grounds for believing that the baggage contains contraband; immunity from any legal process in respect to statements given or acts performed in the course of their appearance before the ICC, with such immunity continuing after their appearance in respect to those statements given at the time of their appearance; and exemption from immigration restrictions when they travel to the ICC for the purposes of their appearance.

The Privileges and Immunities Granted to Experts

This Order will grant privileges and immunities to experts to reflect the experience of international criminal tribunals which have shown that experts are extremely valuable. The privileges and immunities granted to experts are found in Article 21 of APIC and include: immunity from personal arrest or detention and from seizure of their personal baggage; immunity from any legal process in respect to statements given and acts done in the course of the performance of their functions for the ICC, and with such immunity continuing to be accorded even after the termination of their functions; inviolability of papers relating to their functions for the ICC; the right to receive and send papers relating to their functions for the ICC; exemption from inspection of personal baggage, unless there are serious grounds for believing that the baggage contains contraband; and exemption from immigration restrictions in relation to their functions as specified.

The Privileges and Immunities Granted to Other Persons Required to be at the seat of the ICC

This Order will grant privileges and immunities to other persons required to be present at the seat of the ICC. The immunities and privileges granted to other persons required to be at the seat of the ICC are found in Article 22 of APIC and include: immunity from personal arrest or detention; immunity from seizure of their personal baggage unless there are serious grounds for believing that such baggage contains contraband; immunity from any legal process in respect to statements given in the course of their appearance before the ICC, with such immunity continuing to be accorded, in respect to such statements, after their appearance before the ICC; and exemption from immigration restrictions to and from the ICC for the purposes of their appearance.

Witnesses, victims, experts and others will be provided with a document provided by the ICC certifying that their appearance is required by the ICC and specifying a time period during which such presence is necessary.

Alternatives

To allow the Government of Canada to fulfill its international commitment, there is no alternative solution but to adopt this Order.

Benefits and Costs

This initiative will allow Canada to fulfill its international commitments under the Rome Statute and APIC. The costs associated with this measure are insignificant to nil and should not be an overriding factor.

Consultation

Discussions took place between the Department of Foreign Affairs and International Trade's representatives and those of the Department of Finance, the Department of Justice, the Department of Citizenship and Immigration and the Privy Council Office.

Compliance and Enforcement

As the purpose of this Order is to grant specific privileges and immunities, appropriate actions are taken on a case by case basis.

Contact

David Sproule
Director
United Nations, Human Rights and Economic Law Division
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: (613) 992-6296
FAX: (613) 992-2467
E-mail: david.sproule@dfait-maeci.gc.ca

Footnote a

S.C. 2002, c. 12, s. 3

Footnote b

S.C. 1995, c. 5, par. 25(1)( n)

Footnote c

S.C. 1991, c. 41

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