Category Archives: ictr

Defence counsel immunity at the ICTR: there in theory but harmless in practice?

As you may recall, Peter Erlinder, a defense counsel at the ICTR, made the headlines a few months back (in June) for having been arrested in Rwanda, along with Kagame political opponent Victoire Ingabire, on charges of genocide denial under Rwandan law. The detention did not go well, to say the least, Erlinder having alledgedly tried to commit suicide, and he was released some time later, with charges still pending. At the time, this sparked some interesting debates on the nature of laws prohibiting denial of genocide, and the political use of the such laws in Rwanda (including on this blog).

One key legal question that remained to be answered was the existence and extent of any immunity afforded to Erlinder as a defence counsel, given that, at the time it wasn’t entirely clear if the statements that were considered for the charges were made in the course of his work at the tribunal or not. Some weeks ago, on the 6th of October, the Appeals Chamber of the ICTR issued his decision on the immunity of Peter Erlinder, the defense counsel for one of the accused. I didn’t have time back then to comment on it, but still wanted to say a few words.

As to the existence of an immunity:

26. […] Defence Counsel benefit from immunity from personal arrest or detention while performing their duties assigned by the Tribunal and also with respect to words spoken or written and acts done by them in the course of the performance of their duties as Defence counsel before the Tribunal, in order to allow for the proper functioning of the Tribunal in accordance with Article 29 of the Statute.

This decision is based on an interpretation on the MOU between Rwanda and the ICTR, and an application of the Convention on the Privileges and Immunitities of the United Nations. In light of the latter document, Defense Counsel are to be considered experts and

23. […] While Defence Counsel are not officials of the Tribunal, some guarantee is necessary for the independent exercise of their Tribunal assigned functions which are integral to its functioning. Accordingly, the nature of their mission, which is to engage in preparations for proceedings before the Tribunal, is the defining factor in granting them such privileges and immunities as granted to experts on mission – not their administrative status with the Tribunal. 

This recognition that Defense lawyers should benefit of some form of immunity is welcome, as it would be incompatible with principles that they not benefit from equivalent protection as the Prosecutor.

Where the decision is more problematic is on the extent of the immunity. Indeed, they adopt a narrow reading of the immunity. Basically, the Court finds that because Erlinder is being essentially charged with statements done as an academic or a commentator (except for one of them), and not done directly in the context of the representation of his clients, he was not covered by the immunity. There is some logic to the statement… but it is extremely short-sighted in light of the rationale behind the immunity in the first place. Indeed, The ICTR holds that

30. […] Ntabakuze’s right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal.

But how can Erlinder adequately prepare for the defense of his client if he is in jail, whatever the charges? Or if he cannot set foot in Rwanda for fear of being arrested? This completely defeats the purpose of immunity.

This result is due to the in fact suprisingly unsophisticated discussion on the concept of functional immunity in the decision, especially by not taking into account the temporal dimension. On this point, one can refer to the ICJ Arrest warrant case, where it went into some detail on the scope of official immunities. It found, among other things, that (§61):

after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the iinmunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his oir her period of office, as well as in respect of acts committed during that period of office in a private capacity.

I know this judgment was strongly criticised in relation to the extent of immunities applying to crimes that fall under the jus cogens category, but for the purposes of our situation it seems to be a perfectly sensible solution. The immunity stands during the time a person is in “function”, both for personal and professional activities, in order to allow the good exercise of the function. Once the function seizes, the immunity from prosecution falls in relation to private acts, but remains in place for acts done in an official capacity. This would mean that Erlinder would be immune from prosecution altogether now, but could face charges for his “private” comments later, while still being protected for statements made in the course of his defense, thus continuing to protect the current functioning of the Tribunal, “which requires that Defence Counsel be free to advance arguments in their client’s case without fear of prosecution” (§29 of the decision).
It should be point out, as did the ICJ in the Arrest Warrant case (§60) that immunity does not mean impunity. It is mostly a temporary obstacle to prosecution, but does not remove individual responsibility once it is lifted.

It is intellectually puzzling that the Tribunal, having so clearly recognised the necessity for functional immunity, so dramatically fails to recognise the logical practical requirements to give it full effect. As a result, the Appeals Chamber has  proposed a wobbly, and I believe ultimately inefficient system of protection for defense counsel in international tribunals and at the end of day of protection of fair trial rights. This is not the first time, and therefore unsurprsing, but disappointing nonetheless.

Dead…and Guilty: Decision in Delic finally reached!

Over 9 weeks after the death of Rasim Delic during the appellate procedure at the ICTY, the Appeals Chamber has finally reached a decision on the termination of the proceedings. It’s an interesting case, because it is the first time that an appellate body of an international criminal tribunal has to deal with such a situation. In all other cases, the person had died before completion of trial proceedings. Both Delic’s lawyer and the prosecutor had filed motions in support of the continuation of the proceedings, based on the interests of justice and of the family’s right to know the truth.
Several legal issues of interest had to be considered, which I briefly laid down at the time of his death. Basically, 1) should the proceedings continue and 2) if they are terminated, what happens to the trial judgment.

In its decision, the Appeals Chamber decides to terminate the proceedings and render the trial judgment final.
On the first point, it argues for the termination based on the personal jurisdiction of the Court, citing examples from other tribunals having dealt with this issue.
On the second point, the Chamber first shows that there is no uniform practice among civil law and common law traditions that would enable it to establish a general principle of law applicable to the specific situation. It therefore does an analysis based on the nature of the appellate proceedings, where contrary to trial, the presumption of innocence does not apply. It therefore concludes that (§15):

“Having found that the death of the appellant results in the termination of the proceedings and given that no appeal judgment can be rendered in this case, nothing can undermine the finality of the Trial Judgment. As a consequence, the Trial Judgment shall be considered final”.

It’s not a surprising decision on the substance, and the Chamber did make an effort to provide reasoned arguments, in difficult circumstances where, as often, judges have been left to deal with poor drafting and a most amazing normative void. There are however some questions that can still be raised on the argumentation.

For one, the Chamber draws no link whatsoever between the two aspects of the decision, the termination of the proceedings and the finality of the trial judgment. It decides to terminate the proceedings, and then in effect uses that finding as a reason to declare the judgment final. But the question of the presumption of innocence is also central to the termination of proceedings. Indeed, when trial chambers in various courts have terminated proceedings, the person benefited from the presumption of innocence and therefore died innocent. That is not the case at the appellate stage, according to the Appeals Chamber’s reading of the ICTY framework. This is a fundamental difference and should have at least warranted some discussion on the part of the judges.

Second of all, one can question the link between the lack of presumption of innocence at the appellate level and the finality of the trial judgment. One could argue that it is mostly a procedural question, with a different distribution of the burden and standard of proof at this stage of the proceedings, and has no impact on the finality of the trial judgment, especially as the whole point of the Appeal is that the trial judgment is not final. It’s a false “but for” causality approach. “But for” the Appeal, the trial judgment would be final. But that is always the case, even if there were application of the presumption of innocence at the appellate stage! For example, where a Prosecutor has appealed an acquittal, the death of the defendant could still be said to finalize the trial judgment, despite the presumption of innocence certainly applying to these crimes for which the acquittal was pronounced… I therefore think the Court should have found another basis for its ruling. And no, I don’t have any other ideas, given that I personally would have put an end to the proceedings ab initio. This would be based on a global concept of criminal proceedings that include both Trial and Appeal phases, both degrees of jurisdiction being actually recognised by human rights instruments as part of fair trial rights, their conditional application being solely dependent on the exercise of the right by the accused, which he did here.

Third of all, the Appeals Chamber touches upon a persistent grey area, namely the nature of the appellate proceedings. It might not be a trial de novo and the presumption of innocence might not apply, as the Appeals Chamber claims, but how is that compatible with the systematic practice of the Chamber to review evidence in a similar fashion to a Trial Chamber, increase sentences and even sometimes reverse “not guilty” findings, where you can’t really argue that the presumption of innocence doesn’t apply! There are several ways in dealing with these difficulties, especially in the last situation, by for example denying a right of appeal for the prosecutor in cases of not guilty verdicts, or requiring automatic remanding to a trial chamber, as is the case for most systems where the Appeals Chamber has a similar role. Right now, the Chamber has devised a system where it can have its cake and eat it, depending on the flavor…

Finally, and more generally, the 9 weeks it has taken to issue a 9 page decision (including the procedural history) essentially based on legal opinion in the absence of statutory rules, following the 18 months during which the appeals judgment was not rendered in what was not the most complicated case in the history of international justice, is a further testimony to the Tribunal’s chronic incapacity to render justice in a efficient way in conformity with fundamental fair trial requirements. You could even say that if the Appeals Chamber had done its job correctly the issue of Delic’s death might not have been an issue at all…
And the worst part is that the tribunals don’t even seem to acknowledge this difficulty, hiding, among other things, behind the complexity of the situations. This recent decision at the ICTR is interesting in that respect, where more than 9 years of detention before the trial judgment and more than 2 years without an Appeals Judgment being rendered was not considered undue delay! See particularly the dissenting opinion where Judge Short clearly finds that it is undue delay, and specifically considers the appalling personnel management of the ICTR, which assigns too many cases to the judges, thus preventing speedy justice.