Judicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay

When national courts are seized of a case in which the immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts. The governmental authorities of a party to the General Convention are therefore under an obligation to convey such information to the national courts concerned, since a proper application of the Convention by them is dependent on such information. Failure to comply with this obligation, among others, could give rise to the institution of proceedings under Article VIII, Section 30, of the General Convention.1 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 2, ICJ Reports 1999, p. 62 (“ICJ Advisory Opinion on Difference Relating to Immunity from Legal Process”), para. 61.

On or around 21 September 2016, Judge Aydin Sefa Akay, an international judge of the Mechanism for International Criminal Tribunals (MICT), was arrested for, presumably, being involved in, associated with, or sympathetic to the attempted coup to overthrow Turkish President Recep Tayyip Erdogan.  No formal charges have been brought against him, though it is reported that the damning evidence against Judge Akay is a book found in his library about the alleged mastermind of the coup, Fethullah Gülen, and a downloaded messaging app (ByLock), which is claimed to have been 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.

Two rather obvious facts are beyond cavil: a. Judge Akay was arrested and imprisoned at the behest of President Erdogan, and b. if there was any credible incriminating evidence against Judge Akay, the Turkish authorities would have produced it – if for no other reason than to justify his arrest and continuing imprisonment, albeit without being charged.  When invited before the MICT to account for Judge Akay’s arrest,3 Prosecutor v.  Ngirabatware, MICT-12-29-R, Invitation to the Government of the Republic of Turkey, 28 November 2016. President Erdogan opted to stonewall (more like thumb his nose at) this United Nations (UN) Security Council-established international court. Unbecoming conduct considering Turkey’s obligation to cooperate with the MICT, not to mention its obligation to respect and afford Judge Akay the immunity accorded to him – a matter that President Erdogan assuredly knows.

Before I get to the risk being posed to international judges by President Erdogan’s flagrant disregard of international norms, let me offer some facts meriting attention.

First, the MICT is an ad hoc international tribunal established by the UN Security Council in 2010.  Its purpose is to be a residual judicial institution for the phased-out ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR).4 See UN Security Council Resolution S/RES/1966 (2010), 22 December 2010.

Second, Turkey became a member of the UN Security Council in 2010 and, in fact, voted for the establishment of the MICT.5 The UN Security Council Resolution S/RES/1966 (2010), 22 December 2010, establishing the MICT was adopted 14 to 0, with Russia abstaining.  See UN Security Council Press Release, Security Council Establishes Residual Mechanism to Conclude Tasks of International Criminal Tribunals for Rwanda, Former Yugoslavia, 22 December 2010.

Third, the MICT Statute affords judges diplomatic immunity, as do its predecessors and other international(ized) courts and tribunals.  Article 29 is unambiguous:

The Convention on the Privileges and Immunities of the United Nations 13 February 1946 shall apply to the Mechanism, the archives of the ICTY, the ICTR, and the Mechanism, the judges, the Prosecutor and his staff, and the Registrar and his staff.

Fourth, Rule 90 of the MICT Rules of Procedure and Evidence provides for contempt measures for non-compliance with court orders.  In other words, the MICT is empowered to initiate contempt proceedings against President Erdogan that could result in the issuance of an arrest warrant. The issuance of such a warrant would obligate states to arrest him on their territory (much like South Africa was obliged to do with the President of Sudan, Omar Al Bashir, when he traveled to South Africa in 2015 to attend an African Union summit in Johannesburg).6 Al Bashir is wanted by the ICC for alleged war crimes and crimes against humanity over atrocities allegedly committed in the Darfur conflict.  Al Bashir left South Africa even though the High Court in Pretoria had ordered authorities to prevent him from doing so. The state’s appeal against the High Court ruling was dismissed by the Supreme Court of Appeal. See Don Melvin & Eliott C. McLaughlin, Sudan’s Leader Leaves South Africa before Court Orders Arrest, CNN, 15 June 2015. See also previous post, South Africa files for divorce from the ICC: the thrill is gone, 26 October 2016. Drastic as such an action may seem for ignoring Judge Akay’s immunity and imprisoning him, and for not abiding by a MICT order, it is so – as it must be.

Why should the UN Security Council intervene and why should international judges call for Judge Akay’s immediate release so he can resume his judicial duties at the MICT?

There is a reason why judges are afforded immunity: they must be independent

The arrest of Judge Akay has a chilling effect on and puts at risk other international judges.  There is a reason why judges are afforded immunity: they must be independent; they must be able to carry out their judicial functions without fear, without interference, without coercion, without having the sword of Damocles hung over their head by national authorities who may wish to affect the judicial proceedings and game the process. Judicial independence is the foundation for judges; they must be afforded the freedom to render just decisions without fear, prejudice or favor.

There are reasons why international criminal tribunals and courts are established.  They serve a function that many national courts are unable or unwilling to serve. The judges serving in these courts deserve and must have adequate protection.  Today it is Judge Akay, but tomorrow it could be some other judge who may hail from a state where the rule of law is an inconvenience, where the judicial system is not independent, and where judges are expected to do as instructed by the governing authorities lest they find themselves relieved of their duties, or, worse yet, in the dock on trumped-up charges or arbitrarily imprisoned.

Even in national jurisdictions with a tradition of respect for and deference to the judiciary, constitutionally appointed, life-tenured federal judges are being denigrated as “so-called” judges, while judges in the United Kingdom are being derided as “enemies.”  In this environment, the need for protecting judges at international courts is all the more essential.

Also, think of the perception that Judge Akay’s arrest is creating. How can an international court claim to be independent and have its decisions accepted if judges who enjoy immunity are summarily arrested, and the very institution that established the court where the judge sits does nothing.  This strikes at the heart of a court’s integrity, impugning its image and denuding it of its authority, its credibility, its raison d’être.

President Erdogan has legitimate reasons to arrest and prosecute anyone involved in the attempted coup; this is not in dispute. But his arrest of Judge Akay, his continuing imprisonment of Judge Akay, and his flagrant (and repeated) disregard for the MICT cannot be countenanced. Not by the MICT, not by the UN Security Council, and, dare I say, not by Judge Akay’s fellow international judges.

The Secretary-General of the UN, through the UN Office of Legal Affairs, has formally asserted to the Turkish government – and thus to President Erdogan – Judge Akay’s diplomatic immunity, requesting his immediate release from imprisonment (no sense in sugar coating it by calling it detention) and the termination of all proceedings against Judge Akay.7 Letter dated 17 November 2016 from the President of the International Residual Mechanism for Criminal Tribunals addressed to the President of the Security Council, U.N. Doc. SI2016/975, 17 November 2016, Annex I, para. 13. And as we see from the International Court of Justice (ICJ) Advisory Opinion on Difference Relating to Immunity from Legal Process:

When national courts are seised of a case in which the immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and it is thus to be given the greatest weight by national courts.8 ICJ Advisory Opinion on Difference Relating to Immunity from Legal Process, para. 61.

Considering that the Turkish government (President Erdogan) is unmoved by the Secretary-General’s assertion of Judge Akay’s diplomatic immunity, it is high time for the UN Security Council to weigh in.  Judge Theodor Meron, the Pre-Review Judge of the MICT, has demonstrated his commitment in opting for judicial independence over judicial expediency.    He may next opt to proceed with contempt proceedings, which may lead to an arrest warrant for President Erdogan. This is of no immediate solace to Judge Akay who is languishing in prison, being denied immunity, being denied his fundamental human rights, and being prevented from carrying out his judicial functions at the MICT.

As for the international judges, it is also high time to come to Judge Akay’s aid. His brothers and sisters of the crimson robe serving in international courts must react; an attack on one of them is an attack on all of them. This is not an inconsequential matter that can or should go unheeded.  At a minimum they can galvanize their collective voice through a petition to the UN Security Council.  International judicial independence is at risk.  Silence is not an option.  In the words of Roberto Bolaño:

One has a moral obligation to take responsibility for one’s actions, and that includes one’s words and silences, yes, one’s silences, because silences rise to heaven too, and God hears them, and only God understands and judges them, so one must be very careful with one’s silences.9 Roberto Bolaño, By Night in Chile 1 (Random House, 2009).

 

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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.

5 thoughts on “Judicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay”

  1. Dear Michael:

    You are on point in protecting judges, whether be they are local or international, as a latch on, all legal professionals for that matter. This protection must be an absolute protection and nothing less. The up and coming popularity of a term, made by a single one in the United States of America, of the so-called term “so-called judges” is an attack of the fabric of rule of law. Others may agree that one’s stomach just churns to no end having heard of this excrement. Regardless of the power bestowed upon one, any contradictory to the phrase “No One is above the Rule of Law” shall not be received with opened arms. If one does not respect the judiciary, the individual is nothing less than a tyrant.

    It is mentioned that there may or should be a contempt of court hearing to issue an arrest warrant for the president of a country that is currently holding an honorable judge hostage due to without due process is commendable and tethering to appropriateness, although perhaps a different venue may be well served also. Infringing on a sovereign country with international standing may be considered as meddling in its internal matters. Agreed that the Security Council should and must be involved as they can provide the necessary pressure on the international stage for the the government in question to heed or obliged to its obligations as a member of the Charter. On the same token, you are right, and attack on one is an attack on all. The chambers (Judicial Consorts of the UN) should voice in one voice and don’t just express but be activists so that this type of thing shall never happen in civilized world. Not to take your words into play here, but if this is allowed to happen, who is next? A very sad predicament, indeed if left unchallenged.

    Thanks the insights as always,

    West,

  2. Dear michael Karnavas
    My friend thank you
    Once again you have proved to me your highest standards in international and humanitarian laws // you raise the issue and problem then you give the right solutions .
    For the arrest of judge Akay , i agree with you hundred percent and put my voice into action if it will be needed .

  3. Thanks for that interesting post , I do agree generally speaking with the analysis of the respectable author of that post , yet worth to note , a very major crucial principal concerning immunity of UN agents and in general :

    In that case , it appears from the post , that the judge Akay , is allegedly accused of plotting against the regime ( in such or such degree ) .

    Immunity , of UN agents , are meant , to carry out duties , or , fulfilment of UN roles and duties , not for plotting against the national regime of course . Here I quote from the ” convention on the privileges and immunities of the united nations ” in the preamble :

    ” Whereas Article 104 of the Charter of the United Nations provides that the Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes . ”

    End of quotation :

    So , it is for ” The exercise of its functions ” and if not , no immunity can be granted of course . Alos Article IV , here :

    ” SECTION 11. Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to
    and from the place of meeting, enjoy the following privileges and immunities:

    End of quotation :

    So again : ” while exercising their functions ” not otherwise !! And that is the CIL also , UN agents of such , are convicted in national courts , while offense made outside of their corp of duty . In such , what counts of course , is the nature of the offence , and its context . Although , beyond guilt and innocence , it is clear , that holding him in detention , clearly amount to an overwhelming and unreasonable , and disproportional measure . But that depends also , on the mere question , of how strong are the evidences against him ( if at all of course ) .

    Thanks

    1. Thank you for your comment.

      Your take on diplomatic immunity is noted: judges cannot get away with murder (or engage in coup attempt) and hide behind immunity. Not an issue in dispute.

      The UN Secretary-General has formally asserted to the Turkish government Judge Akay’s diplomatic immunity. It carries a strong presumption that can only be set aside for the most compelling reasons; reasons which Turkey has yet to produce. And let’s be rational: if Turkey had evidence that Judge Akay was involved in the attempted coup, why has it not produced any, why has it not charged Judge Akay, why has it refused to appear at the MICT as it must?

      Judge Meron’s Order sufficiently deals with the issue of “while exercising their (Judge Akay’s) function.” And seriously, would the UN Secretary-General be intervening if there was evidence that Judge Akay was not exercising his judicial duties when he was arrested? No.

      As I’ve noted, Turkey is entitled to arrest, detain, prosecute and imprison those who were involved in the coup attempt. That said, the onus has been on Turkey to overcome the presumption afforded to Judge Akay who has diplomatic immunity as an international judge serving at the MICT. Thus far, Turkey has produced nothing other than deafening silence.

      1. Thanks for the reply Michael . Well , As I have noted , I also doubt whether there is such degree of compelling evidence , justifying arrest of the judge .That intervention of The Secretary-General of the UN , can’t bind in no way the Turkish government , it is their sovereign discretion , although , must meet of course , reasonable and legal standard .

        On the other hand , I wonder : why would Erduan insist on one innocent judge arrest , while such international uproar is produced . But maybe , he got used to exercise such overwhelming means and power , having apparent legitimacy , after that manifestly illegal and illegitimate attempt of coup d’etat .

        Thanks

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