Cour Pénale Internationale – International Criminal Court
The Hague, 7 June 2007
On the occasion of the signing of the Headquarters Agreement between the International Criminal Court and the Kingdom of the Netherlands, I would like to refer to negotiations held between representatives of the Court in which agreement was reached on the following explanatory notes constituting a joint interpretation by the parties of the provisions of the Headquarters Agreement to which the notes refer.
Article 1(i). The meaning of ‘‘subsidiary bodies’’
In the headquarters agreement, there is frequent reference to ‘‘the Assembly, including its Bureau and subsidiary bodies’’. It is the common understanding of the parties that the words ‘‘subsidiary bodies’’ include subgroups which can be established by the Assembly or its Bureau. It is understood that the members of such ‘‘subgroups’’ would be entitled to, and that the host State would accordingly extend to them, the same privileges, immunities and facilities accorded to the members of the respective parent body. Examples of such groups are the Working Groups established by the Bureau, in both The Hague and New York, on 1 December 2004.
Article 17. Privileges, immunities and facilities of judges, the Prosecutor, the Deputy Prosecutors and the Registrar
Article 18. Privileges, immunities and facilities of the Deputy Registrar and staff of the Court
During their term of office, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar and staff of the Court are exempted from taxation in the host State under article 17, paragraphs 1 and 2, and article 18, paragraphs 1, 2 and 3. Article 17, paragraph 3, and article 18, paragraph 4, specify that periods during which these persons are present in the host State for the discharge of their functions ‘‘shall not be considered as periods of residence’’. These two provisions are not designed to create tax exemptions in addition to the exemptions under article 17, paragraphs 1 and 2, and article 18, paragraphs 1, 2 and 3. They clarify that, in situations where the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar or staff of the Court maintain residence in the host State after the expiry of their term of office, no taxes will be due in relation to exemptions which were applicable during the period in which these persons held office.
Article 17, paragraph 6, according to which the ‘‘host State shall not be obliged to exempt from income tax pensions or annuities paid to former judges, Prosecutors, Deputy Prosecutors, and Registrars and their dependants’’, is based on the wording of article 17, paragraph 6, of the Agreement on the Privileges and Immunities of the International Criminal Court. It is understood by both parties that former judges, Prosecutors, Deputy Prosecutors, and Registrars and their dependants would only be subject to taxation by the host State if, upon expiry of their respective terms of office, they reside in the territory of the host State or are nationals of the host State. This explanation also applies, mutatis mutandis, to article 18, paragraph 5, which contains a provision similar to article 17, paragraph 6, with respect to former Deputy Registrars, members of staff of the Court and their dependants.
Article 27. Victims
Both parties understand that this provision applies also to victims participating in proceedings for reparation.
Article 39. Visas for visitors of persons detained by the Court
Both parties understand that visas will be issued in accordance with the national laws of the host State. It is also the understanding of both parties that in exceptional cases, such as where the applicant is unable to pay, visas for visitors who are family members of a detained person, shall, at the discretion of the national authorities of the host State, be issued free of charge or for a reduced fee.
Article 40. Independent bodies of counsel or legal associations, journalists and non-governmental organisations
The presence of representatives of independent bodies of counsel or legal associations, journalists and non-governmental organisations (NGOs) in the host State is fundamental to the fulfilment of the roles of the bodies, associations or organisations referred to in paragraph 1, in relation to the Court. Therefore, it has been decided to address issues relating to the entry into, stay and employment in the host State of representatives of independent bodies of counsel or legal associations, journalists and NGOs, in this Agreement. This procedure shall allow representatives of these three groups to fulfil their roles in relation to the functioning of the Court and to gain transparent and timely access to the host State.
At the heart of these obligations is a consultation mechanism that establishes channels of co-operation and dialogue between the host State, the Court and dedicated contact points of independent bodies of counsel or legal associations, journalists and NGOs, in order to assess whether a person may be regarded as representing a body or organisation within the meaning of paragraph 1. This dialogue will assist all stakeholders to gain reliable assurances as to whether that person is linked to an institution, association or organisation that performs functions related the work of the Court.
The outcome of the consultations will allow the relevant authorities of the host State to handle requests from such representatives, relating to their entry into, stay and employment in the host State, in a way which duly reflects the importance of the presence in the host State of the bodies, associations or organisations referred to in paragraph 1 for the functioning of the Court.
The procedure offers several benefits compared to the procedures that would normally apply when such persons come to the host State in a private capacity. Paragraph 2 indicates that the host State has a special responsibility to facilitate the entry into, stay and employment in the host State of representatives of bodies, associations or organisations referred to in paragraph 1. Paragraph 6 clarifies that the host State shall take into account this special responsibility when determining requests for visas and resident permits in accordance with the laws and regulations of the host State. Both provisions, when read together, provide a treaty basis for corresponding domestic practice. The information obtained through the consultation process envisaged under paragraph 3 may facilitate the practical aspects of the issuance of visas and residence permits. Moreover, it is important to note that persons who are considered as representing a body, association or organisation referred to in paragraph 1 would not be obliged to obtain work permits. They are eligible for an exemption of the requirement of a work permit following their identification as representatives of bodies, associations or organisations referred to in paragraph 1, and would thus be entitled to carry out their duties in the host State in relation to the roles of the bodies, associations or organisations referred to in paragraph 1.
It is understood by both parties that the host State will, where appropriate, assist the Court in obtaining information from countries other than the host State, where such information is necessary for the consultations under paragraph 3.
It is essential, as paragraph 3 emphasises, that each of the groups specified under a), b) and c) of paragraph 1 must have an official contact in order to be able to participate in the consultations. Both parties understand that each of the groups should, in principle, have one single point of contact only (e.g. one for the bodies of counsel or legal associations, one for the media and one for the NGO community) in order to facilitate the consultations.
Further details concerning the implementation of the procedure envisaged in this article shall be clarified by way of subsequent practical arrangements.
Article 44. Transport of persons in custody
Paragraph 6 ensures that the transport of persons in custody of the Court for purposes of the Court will not be delayed by any impediment, such as the immigration and asylum procedures of the host State. The asylum law and procedures of the host State require that asylum seekers lodge a claim for asylum in person at an asylum seeker centre within the host State. As this procedure would hamper the immediate transport of the person for purposes of the Court, its application would be undesirable in this context. It is understood that paragraph 6 does not deny a person in custody of the Court the ability to lodge a claim for asylum or another legal basis to remain in the Netherlands under the laws of the host State at a time other than during transport.
The term ‘‘transport’’ in this article refers to the transportation of a person within the territory of the host State.
The term ‘‘transfer’’ in this article refers to the transportation of a person from one State to another.
Article 47. Interim Release
Article 47 addresses the issue of interim release. Both sides agreed to regulate only those aspects relating to interim release into a State other than the host State in this Agreement. This is reflected in the language of paragraph 1 of article 47. The Agreement does not address the conditions and modalities of interim release into the host State. This matter must be solved by future practice. Both sides acknowledge that it is for the Court to determine whether a request for interim release should be honoured and, if so, under what conditions, in accordance with the principle of judicial discretion reflected in article 60, paragraph 2, of the Statute, rule 119 of the Rules of Procedure and Evidence and regulation 51 of the Regulations of the Court. It is understood that the host State will have an opportunity to present its views on this matter to the Court in accordance with regulation 51 of the Regulations of the Court before a decision on interim release is made, and that the views of the host State will be given full attention by the Court in the exercise of its judicial discretion.
Paragraph 2 of article 47 governs the re-entry into the host State of persons granted interim release. The practice of the International Criminal Tribunal for the former Yugoslavia (ICTY) has shown that there may be situations in which persons granted interim release may need to return to the host State for purposes related to proceedings before the Court. Paragraph 2 clarifies that the host State shall facilitate the transfer of such persons. The host State has entered into an arrangement to that effect with the ICTY, by way of an exchange of letters of December 2003, which governs ‘‘short-term stays on Dutch soil’’ of persons granted interim release by the ICTY. Paragraph 3 of this article provides a basis for both sides to conclude such and other types of practical arrangements concerning the implementation of article 47.
Article 49. Enforcement of sentences in the host State
Article 49, paragraph 5, provides that the ‘‘host State may communicate to the Court for its consideration humanitarian concerns or other concerns related to the conditions or modalities of enforcement for the purposes of supervision of enforcement of sentences and conditions of imprisonment’’. Relevant concerns may relate to aspects such as the detained person’s mental or physical health or well-being. Both parties understand that a communication under article 49, paragraph 5, would be considered by the Court for the purposes of supervision of enforcement of sentences and conditions of imprisonment. It is the common understanding of both parties that article 106, paragraphs 1 and 2, of the Statute and rule 211 of the Rules of Procedure and Evidence would apply, as appropriate, to a communication under article 49, paragraph 5. The provision is also designed to facilitate dialogue between the host State and the Court in accordance with rule 216 of the Rules of Procedure and Evidence.
Articles 17, 18, 25, 26 and 28. Nationals and permanent residents
According to subparagraph 7a) of article 17, subparagraph 6(a) of article 18, subparagraph 4a) of article 25, subparagraph 4a) of article 26 and subparagraph 4a) of article 28, the persons concerned shall enjoy immunity from personal arrest or detention or any other restriction of their liberty. In accordance with the chapeauof respective subparagraphs of these articles, these persons will enjoy such immunity to the extent necessary for the independent performance of their functions or their appearance or testimony before the Court. This shall be interpreted as follows: the persons concerned will not enjoy immunity from personal arrest or detention or any other restriction of their liberty in relation to acts performed outside the course of their official duties.
I should be grateful if you could confirm that the above is also the understanding of the host State.
Please accept, Excellency, the assurances of my highest consideration,
H.E. Maxime Verhagen
Minister of Foreign Affairs
2594 AC The Hague