Judicial expediency yields to judicial immunity: why relieving MICT Judge Aydin Sefa Akay from judicial duties in the Ngirabatware case is not an option

If a state can arrest a Judge and the Judge has to be replaced because of that action, then our Judges are subject to the restrictions that any state may choose to impose upon them by taking away their immunity in one form or another. That goes to the very heart of judicial independence. We don’t want judges having to answer to their states or be fearful of their states if they take a certain decision or they don’t. They have to be completely independent. That’s why they have diplomatic immunity.1 Prosecutor v. Ngirabatware, MICT-12-29-R, 17 January 2017, Transcript, p. 29.


Peter Robinson

Judge Aydin Sefa Akay

It came as no surprise that Judge Theodor Meron, the Pre-Review Judge of the Mechanism for International Criminal Tribunals (MICT) Appeals Chamber, would find that Judge Aydin Sefa Akay enjoyed (and continues to enjoy) full diplomatic immunity as a sitting judge at the MICT at the time of his arrest for allegedly participating in or being sympathetic to the attempted overthrow of Turkish President Recep Tayyip Erdogan. Judge Akay was arrested after it was discovered that he had in his 2,000-volume library a book about the alleged coup mastermind, Fethullah Gulen, and that he had downloaded ByLock, a messaging app allegedly used by the coup plotters.2 See Margaret Coker, How a Top International Judge Was Trampled by Turkey’s Purge, Wall Street Journal, 29 December 2016.

The law is clear, both on its face and in how it has been interpreted.  No first impression dilemma as to whether diplomatic immunity and all its appurtenances must be afforded to MICT Judges by all states – including the state where the person cloaked with diplomatic immunity hails from.  The fact that Judge Akay was in Turkey, his homeland, at the time of his arrest makes no never mind.  Judge Meron’s ruling was spot on.

Judge Meron deserves our respect and gratitude in refusing to cave in to the Prosecution’s calls for judicial expediency by removing Judge Akay from the Ngirabatware case (a fascinating post-conviction matter that could result in the reversal of a conviction and sentence of 30 years) and placing him on some other matter (fictional or otherwise) as a way of preserving Judge Akay’s diplomatic immunity.3 Prosecutor v. Ngirabatware, MICT-12-29-R, 17 January 2017, Transcript, pp. 13-25.

Having come across a news clip on Judge Meron’s Order to the Government of the Republic of Turkey for the Release of Judge Aydin Sefa Akay,4 Prosecutor v. Ngirabatware, MICT-12-29-R, Order to the Government of the Republic of Turkey to for the Release of Judge Aydin Sefa Akay, 31 January 2017 (“Order of 31 January 2017”). I was curious to read the Order, having written on immunity extended to lawyers practicing before international(ized) tribunals and courts.5 See Attorney-Client Privilege – Part VI: So Just How Immunized Am I Before the International Tribunals?, 24 November 2015.

The Order is solid, citing international instruments and legal authority such as the Convention on the Privileges and Immunities of the United Nations of 13 February 1946,6 Convention on the Privileges and Immunities of the United Nations, adopted by United Nations General Assembly Resolution A/RES/22(I)A, 13 February 1946. the United Nations Basic Principles on the Independence of the Judiciary,7 United Nations Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and Treatment of Offenders, 26 August – 6 September 1985, endorsed by United Nations General Assembly Resolutions A/RES/40/32 and A/RES/40/146 of 29 November 1985 and 13 December 1985. the International Court of Justice Advisory Opinion on Differences Relating to Immunity from Legal Process8 Differences Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999. etc.  Expected.

What caught my attention, however, was the subtext for holding the hearing and issuing this Order: whether to remove and replace Judge Akay from the Ngirabatware case, (a case in which a former Rwandan minister of planning was convicted for direct and public incitement to commit genocide and instigating and aiding and abetting genocide)9 Ngirabatware v. Prosecutor, MICT-12-29-0094/1, Appeals Judgement, 18 December 2014, IX. Disposition. thus allowing Augustin Ngirabatware’s pending request for review of his convictions to go forward.  Obviously, it would make sense for Ngirabatware to get on with the matter; after all, he is currently in a detention center in Tanzania, claiming to have newly discovered evidence that would exonerate him of all charges for which he was convicted.10 See Order of 31 January 2017, paras. 2-3. See also Prosecutor v. Ngirabatware, MICT-12-29-R, Order Assigning Judges to Consider a Case before the Appeals Chamber, 25 July 2016. Even the Prosecution agrees that this new evidence merits the reevaluation of Ngirabatware’s conviction.11 Prosecutor v. Ngirabatware, MICT-12-29-R, 17 January 2017, Transcript, pp. 13-14; Order of 31 January 2017, para. 3.

It benefits not Ngirabatware to be languishing as an innocent man in a detention facility when all agree that a hearing should be held and the new evidence examined – and expectedly / as claimed by his lawyer a reversal of the conviction would follow. Yet, from the Order it appeared that Ngirabatware’s lawyer, Peter Robinson, was pressing against expediency.  Taking the moral high ground, Robinson pressed for maintaining Judge Akay on the case, upholding the independence of the judiciary, and ensuring Judge Akay’s immunity remains intact and unendangered.

Curiously, the Prosecution was advancing arguments for the removal and replacement of Judge Akay, and, for all intents and purposes, asking Judge Meron to throw Judge Akay under the proverbial bus.

Strange for the Prosecution to be hell-bent on pushing forward with the proceedings when Ngirabatware is in detention and not going anywhere, and the removal of Judge Akay from the Ngirabatware case would, assuredly, compromise his immunity. You would think that with Ngirabatware secured behind bars, the Prosecution would opt for a slow-burn: let the proceedings remain in abeyance until Erdogan comes to his senses and frees Judge Akay from detention for his alleged involvement in the coup for which he has yet to be charged and for which there seems to be no credible evidence. And if the ongoing events in Turkey related to the coup are foretelling, when considering that it is being reported that Erdogan has jailed around 40,000 people, of which more than 3,000 are judges, prosecutors, and court staff,12 See Margaret Coker, How a Top International Judge Was Trampled by Turkey’s Purge, Wall Street Journal, 29 December 2016. Judge Akay is likely to remain in prison for some time to come.

The Order, having piqued my curiosity even more, led me to the submissions of the parties, especially their oral arguments during the hearing of 17 January 2017.  Hence this post.  Reading the transcript of the oral arguments was time well spent.  I highly recommend to anyone interested in oral advocacy to go down the rabbit hole on this one.  A master class.

Judge Theodor Meron

Setting aside the substance of the arguments, some observations on this hearing and why I think the transcript has much to offer on effective oral advocacy. In some ways, it is also a lighthearted read: Judge Meron was superb, if not wickedly playful, with the lawyer for the Prosecution, as he probed, cajoled, and confounded her with simple, rhetorical, tautological, checkmate questions.

The Prosecution lawyer was either not prepared or had not thought through the arguments she was instructed to make by her boss, MICT Prosecutor Serge Brammertz – hard to think that in a matter where judicial independence and immunity are at play a prosecution lawyer would take a position that had not been cleared and approved by the Prosecutor. The Prosecution lawyer was pressed over and over by Judge Meron to give concise answers to his questions, much like a good cross-examiner patiently reminding the incalcitrant or slippery witness to simply answer the question asked without further obfuscation.  She was often caught flat-footed, not having (or not wanting to admit) the answers to the questions which Judge Meron already knew.  The position advocated by the Prosecution lawyer was simply untenable.  This may explain her difficulty in cogently advancing coherent, compelling, and credible counters to Robinson’s simple yet eloquent arguments.

To the contrary, Robinson’s presentation was a real treat in many ways.  A master at work, shrewdly advancing his client’s case while fervently advocating the importance of judicial independence and why a quick fix – such as the one peddled by the Prosecution – was as unwise as unjust. It was a real pleasure to read Robinson’s presentation and see a seasoned advocate at work.

Deconstructing Robinson’s submission

Peter Robinson

Robinson opens like an engaging storyteller, telling of his efforts to get the Turkish government engaged in the hearing – to come and make their case as to why Judge Akay does not have immunity, and is thus lawfully secured in a prison facility in Turkey.  He notes that he rode his bicycle past the Turkish Embassy, thus setting the stage of a modest lawyer biking it to court and taking a detour in a last-ditch effort to get a representative of the Turkish government to appear at the hearing. The best he could do is make phone contact with the Judicial Counsellor to the Turkish Embassy.  He is told no one can discuss the matter, no one will be representing Turkey at the hearing.13 Prosecutor v. Ngirabatware, MICT-12-29-R, 17 January 2017, Transcript, p. 6, lines 11-18. Due diligence.

Robinson then tells Judge Meron how he got into the Ngirabatware case, motivated by his belief – belief backed by out-of-pocket / put your money where your mouth is expenses to investigate and gather evidence – that his client was an innocent man convicted for crimes which he did not commit – similar to another case which Robinson had the privilege to be involved in where he exonerated a client who was convicted for a murder he did not commit and was serving a life sentence.14 Id., p. 6, lines 19-25. So, right from the start, we see Robinson weave in his client’s innocence, his belief in and passion for his client, his client’s pressing need to get on with the hearing on the new evidence, get the conviction reversed, and get his client back into the bosom of his family and friends.

Having informed the court of the extra mile he went on behalf of his client and on behalf of the court, Robinson takes on the role of proxy advocate for Turkey. If Turkey does not want to send anyone to advocate the righteousness of their position, i.e., that Judge Akay is not covered by diplomatic immunity, then Robinson will advance Turkey’s arguments – those available and most likely to be advanced – however tenuous. Brilliant.

Noting that as advocates we are trained to place ourselves in our opponents’ shoes to identify all their arguments in preparation to argue against them (another good point that is often overlooked by advocates), Robinson proceeds to layout clearly and logically the available arguments that a representative of the Turkish government would be making.  With each argument, Robinson shows the inherent weaknesses, demonstrating why the Turkish government has no viable arguments in support of disregarding the immunity enjoyed by Judge Akay, and why his imprisonment is unjust and illegal.15 Id., pp. 8-12. And why the Turkish government is absent.

Having dispensed with the arguments the Turkish government could likely make, Robinson cogently argues why it is not in the best interest in this case, for future cases, and for the MICT, to take expedient and convenient actions which undermine the independence of the judiciary. And the removal and re-shuffling of Judge Akay to another matter (assuming it is possible), not only endangers Judge Akay, for it could result in the lifting of his immunity, but also has far-reaching implications concerning judicial independence.

From reading the transcript you sense Judge Meron’s appreciation for Robinson’s presentation.  You can tell where Judge Meron is heading on this one well before you get to the Order.  In response to the Prosecution’s argument that Judge Akay be removed from the Ngirabatware case and reassigned to another one – something Judge Meron cannot do without first consulting with Judge Akay16Id., p. 16. (a matter which would have been known to the Prosecution lawyer)17 Judge Meron reminds the Prosecution lawyer that she has been around for a long time; she is no neophyte. Id., pp. 15-16. – Judge Meron recalls “we Judges must respect to maintain our integrity and to act in accordance with our judicial obligations, we have to respect judicial practices.”18 Id., p. 26, lines 16-24. Touché.

While more can be written on this gem of a hearing, I will stop here.

Sometimes reading a good transcript can be every bit as valuable in learning, honing, and refreshing advocacy skills, as attending a training seminar.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

1 thought on “Judicial expediency yields to judicial immunity: why relieving MICT Judge Aydin Sefa Akay from judicial duties in the Ngirabatware case is not an option”

  1. Very interesting article – when we have a good lawyer we will be sure that the case will be resolved!

    Best regards!

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