Attorney-Client Privilege – Part VI: So Just How Immunized Am I Before the International Tribunals?

This is the final post on my discussion of the attorney-client privilege and the crime-fraud exception raised in Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my first post, I set out the factual context of the case. In the second and third posts, I discussed the attorney-client privilege in national tribunals and international tribunals. In the fourth post, I gave an overview of the crime-fraud exception and a legal analysis of the issues arising from the Pre-Trial Chamber1Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for Judicial Order to Obtain Evidence for Investigation under Article 70”, 29 July 2013. and Trial Chamber2Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters”, 21 July 2015. decisions relating to the ICC Office of the Prosecutor’s (“OTP”) request for a judicial order to obtain evidence. In my fifth post, I discussed the application of other types of evidentiary privileges at the international criminal tribunals. In this final post I will discuss the privileges and immunities accorded to those working at the international criminal tribunals, focusing primarily on the immunities afforded to Counsel.

All international criminal tribunals, including the ICC, provide some measure of immunity to persons working at these tribunals. Ostensibly, the privileges and immunities offered at these tribunals are similar. The extent of the privileges or immunities granted to any particular individual before the international criminal tribunals depends on to whom they are extended; title and function matters. Judges, the Prosecutor, and the Registrar are granted broader privileges and immunities than administrative staff members or Counsel. Conduct also matters: it must be consistent with and in furtherance of person’s official or professional duties. But even if the conduct is or could be considered part of an official or professional duty, the conduct must have been within the defined or acceptable limits of the official or professional duty Conduct exceeding these limits can and usually does render the accorded immunities inapplicable.

Immunity1And herein lies the conundrum. The contours of the discrete extent of immunities offered to Counsel and their team members (legal assistants, case managers, investigators, consultants, etc.) are not always so clear-cut. It should be of no surprise that lately immunities for (Defence) Counsel and their team members have become an increasingly relevant issue. Arrests have been made for charges arguably related to or in furtherance of Counsels’ professional duties in representing their clients at the international criminal tribunals.

Here I will examine how the international criminal tribunals have interpreted their statutes and agreements and either applied or rendered inapplicable the immunities. Though currently pending, Bemba will serve as an example of how domestic jurisdictions (at least the Netherlands) may interpret the immunities provisions of the international criminal tribunals. For comparative purposes and as a point of departure, I will also touch upon the differences in immunities offered to others involved, such as the Judges, the Prosecutor, and the Registrar, etc. This post is not intended to give an in-depth analysis of all the immunities accorded to all the various players at the international tribunals. Rather, it will give a sampling of the immunities accorded to the Judges, Prosecutors, and Registrars of international criminal tribunals in order to differentiate and further appreciate the limited immunities provided to Counsel. I hope it will serve as a brief primer lending to greater appreciation of immunities and Counsel’s need to be vigilant.

Privileges and Immunities in General

Before the advent of the international tribunals, privileges and immunities were first accorded at the international level to diplomatic officials and officials of international organizations, such as the United Nations (“UN”). The multilateral diplomacy of the 20th century and the push for friendly relations among States created the need to ensure that diplomatic officials were not subject to arbitrary interference (such as arrest and detention) by the government of a receiving State. Similarly, the creation of the UN spurred the need to ensure that UN officials are similarly treated. The Vienna Convention on Diplomatic Relations (“VCDR”)3Vienna Convention on Diplomatic Relations, 500 U.N.T.S. 95, 18 April 1961. and the Convention on the Privileges of and Immunities of the United Nations (“UN Convention on Privileges and Immunities”)4Convention on the Privileges and Immunities of the United Nations, 1 U.N.T.S. 15, 13 February 1946. codified concrete rules for the privileges and immunities accorded to diplomatic officials and UN officials. As we will see, these conventions have been incorporated into the documents governing the privileges and immunities accorded to various actors at the international criminal tribunals.

Vienna Convention on Diplomatic Relations

The VCDRdiplomaticimmunity was intended to codify rules of diplomatic intercourse, including the provision of privileges and immunities to diplomatic officials, to contribute to the development of friendly relations among nations.5Vienna Convention on Diplomatic Relations, 500 U.N.T.S. 95, 18 April 1961, Preamble. In order to facilitate the diplomatic exchanges between States, diplomatic officials must necessarily be able to perform their functions without the fear that they may be arrested by the government of a foreign State in which they are working. The privileges and immunities accorded under the VCDR are not to benefit individuals but to “ensure the efficient performance of the functions of diplomatic missions as representing States.”6Id.

The VCDR provides personal immunity to diplomatic agents – immunity accorded because of an official position. Article 29 of the VCDR states: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.” Article 30 provides that the diplomatic agent’s private residence, papers, correspondence, and property are likewise inviolable. Article 31 provides that diplomatic agents enjoy “immunity from the criminal jurisdiction of the receiving State,” as well as immunity from civil and administrative jurisdiction, except in a few narrowly defined cases.7These cases include: “(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; [and] (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” Article 31 does not, however, immunize the diplomatic agent from the jurisdiction of his or her sending State.8Id., Art. 31(4). The sending State may waive the diplomatic agent’s immunities.9Id., Art. 32.

Unlike diplomatic agents, who are afforded full personal immunity from criminal jurisdiction, members of the administrative and technical staff of a diplomatic mission are only accorded functional immunity – immunity for acts performed in the course of official duties.10Id., Art. 37(2). This functional immunity is not accorded to members of a diplomatic mission if they are nationals or permanent residents of the receiving State.11Id. Logical. States want to retain control over their own nationals.

Article 38 likewise limits the immunities accorded to diplomatic agents who are nationals or permanent residents of a receiving State that they would normally receive under Articles 29 and 31. Instead of total immunity from arrest and criminal jurisdiction, diplomatic agents who are nationals or permanent residents of a receiving State are accorded immunity only for “official acts performed in the exercise of their functions.”12VCDR, Art. 38.

UN Convention on Privileges and Immunities

The UN Convention on Privileges and Immunities is intended to ensure that the UN enjoys the legal capacity necessary for the exercise of its functions and the fulfillment of its purposes in the territory of its member States.13UN Convention on Privileges and Immunities, Preamble. This convention stems from Article 105 of the UN Charter, which provides:

  1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.
  2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.
  3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.

Article V, Section 18(a) of the UN Convention on Privileges and Immunities provides that UN “officials” shall: “Be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity[.]” The Secretary-General is responsible for defining who is an “official.”14UN Convention on Privileges and Immunities, Art. V, Section 17. Article V, Section 20 provides that privileges and immunities are granted to officials in the UN’s interests, and not for the personal benefit of the individuals themselves. The Secretary-General shall have “the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations.”15Id., Art. V, Section 20.

UN “experts” (those who perform missions for the UN but are not “officials”) are accorded privileges and immunities to the extent they are “necessary for the independent exercise of their functions during the period of their missions[.]”16Id., Art. VI, Section 22. This includes, inter alia:

(a) Immunity from personal arrest or detention and from seizure of their personal baggage;

(b) In respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind. This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations; [and]

(c) Inviolability for all papers and documents[.]

The Secretary-General has a similar right and duty to waive the immunities of experts where the Secretary-General believes that the immunities would impede the course of justice, and where the immunities can be waived without prejudice to the UN’s interests.17Id., Art. VI, Section 23.

These privileges and immunities are necessary for UN officials to exercise their functions. The same rationale lies behind the privileges and immunities accorded to officials and others at the international criminal tribunals. Yet the immunities of Counsel are limited when compared to those of the Judges, Prosecutor, or Registrar. The following section will address some of the similarities and differences in the privileges and immunities granted at the various international criminal tribunals.

Privileges and Immunities at the International Criminal Tribunals

Whereas the privileges and immunities accorded to Judges, the Prosecutor and the Registrar – as “organs” of international criminal tribunals – are robust and well defined, the privileges and immunities accorded to Counsel are limited.

International Criminal Tribunal for the Former Yugoslavia (“ICTY”)

At the ICTY, privileges and immunities are regulated by the ICTY Statute and the Agreement between the United Nations for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (“ICTY Headquarters Agreement”).18Agreement between the United Nations for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, 27 May 1994.

            Privileges and Immunities for Judges, the Prosecutor, and the Registrar

The ICTY Statute and ICTY Headquarters Agreement have clear rules for the privileges and immunities of Judges, the Prosecutor, and the Registrar.

Article 30(1) of the ICTY Statute provides that the UN Convention on Privileges and Immunities applies to the Judges, the Prosecutor and his or her staff, and the Registrar and his or her staff. Article 30(2) provides that the Judges, the Prosecutor, and the Registrar enjoy the same privileges and immunities as those accorded to diplomatic officials. Article 30(3) provides that the staff of the Prosecutor and the Registrar enjoy the privileges and immunities accorded to UN “officials” under Articles V and VII of the UN Convention on Privileges and Immunities. As the ICTY is a tribunal created by Security Council mandate,19See UN Security Council Resolution 827, U.N. Doc. S/Res/827, 25 May 2003. logically the Judges, the Prosecutor, and the Registrar, as organs of the Tribunal, are for all intents and purposes UN officials.

The ICTY Headquarters Agreement likewise stipulates that the UN Convention on Privileges and Immunities and the VCDR apply “mutatis mutandis to the Tribunal.”20ICTY Headquarters Agreement, Art. IV. Article XIV(1) of the ICTY Headquarters Agreement more clearly defines the privileges and immunities accorded to the Judges, the Prosecutor, and the Registrar. Under Article XIV, the Judges, the Prosecutor, and the Registrar shall enjoy, inter alia: (a) personal inviolability, including immunity from arrest or detention; (b) immunity from criminal, civil and administrative jurisdiction in conformity with the VCDR; and (c) inviolability for all papers and documents. The privileges and immunities accorded to Judges, the Prosecutor, and the Registrar are not for the personal benefit of the individuals themselves, but the Tribunal.21Id., Art. XIV(3).

ImmunityCellThe “Tribunal” has the right and duty to waive the privileges and immunities of Judges “in any case where [they] can be waived without prejudice to the purpose for which [they are] accorded[.]”22Id. Presumably, the “Tribunal” would mean the President of the ICTY, the Judges’ plenary, or possibly a panel of three Judges, though there is no clear procedure in the Rules for waiving a Judge’s privileges and immunities. Under Rule 15(B) of the ICTY Rules of Procedure and Evidence (“Rules”), upon a party’s request for disqualification of a Judge the President may appoint a panel of three Judges to decide the merits of the complaint. Thus, it is reasonable to assume that a Judge’s misconduct, which would warrant a waiver of his or her immunities, would be decided by a similar procedure.

As for the Prosecutor and the Registrar, the Secretary-General has the right and duty to waive their privileges and immunities “in any case where [they] can be waived without prejudice to the purpose for which [they are] accorded[.]”23Id. This is logical, as one would not expect one organ of the Tribunal, which is on equal footing with the others, to be responsible for waiving the privileges and immunities of another organ.

The ICTY Headquarters Agreement is a bilateral agreement between the UN and the Government of the Netherlands. It is only binding between these two parties, and not, for instance, the States where the crimes occurred and where the investigations take place (the former Yugoslavia). However, the ICTY was established by Security Council under Chapter VII.24Security Council Resolution 827, U.N. Doc. S/Res/827, 25 May 1993. Other States have a duty to cooperate with the ICTY and to comply with the ICTY Trial Chamber’s requests for assistance or orders under Article 29 of the ICTY Statute.25Article 29 of the ICTY Statute provides: “States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber[.]”

Privileges and Immunities for Counsel

The privileges and immunities of Counsel before the ICTY are circumscribed in comparison to that of the Judges, the Prosecutor, and the Registrar. The ICTY Statute does not explicitly provide for immunities of Counsel. Article 30(4) of the ICTY Statute provides that “other persons, including the accused, required at the seat of the International Tribunal shall be accorded such treatment as is necessary for the proper functioning of the International Tribunal.” While not explicitly stated, as will be discussed below, the ICTY has held that this provision covers Counsel.26Prosecutor v. Gotovina et al., IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12 March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 14 February 2011, para. 33.

Article XIX(1) of the ICTY Headquarters Agreement provides that Counsel “shall not be subjected by the host country to any measure which may affect the free and independent exercise of his or her functions under the Statute.” Article XIX(2) provides that Counsel shall be accorded:

(a) exemption from immigration restrictions;

(b) inviolability of all documents relating to the exercise of his or her functions as a counsel of a suspect or accused;

(c) immunity from criminal and civil jurisdiction in respect of words spoken or written and acts performed by them in their official capacity as counsel. Such immunity shall continue to be accorded to them after termination of their functions as a counsel of a suspect or accused.

These immunities do not protect Counsel from disciplinary action in cases of professional misconduct.27Id., Art. XIX(3). Counsel’s immunities can also be waived by the Secretary-General.28Id., Art. XIX(4).

The issue of whether Counsel would enjoy immunities in States other than the Netherlands arose in Prosecutor v. Gotovina et al. In Gotovina et al., Martin Ivanović, an investigator employed by the Gotovina Defence, was indicted in Croatia for concealing archival material.29Prosecutor v. Gotovina et al., IT-06-90-T, Decision on Defendant Ante Gotovina’s Motion for a Restraining Order Against the Republic of Croatia, 23 July 2009. The Gotovina Defence requested that a restraining order be issued against Croatia to cease all criminal proceedings against him related to his work at the Tribunal.30Id., para. 1. It submitted that, as a Defence investigator, Ivanović should enjoy functional immunity as derivative of the accused’s fair trial rights.31Id., para. 6.

The Appeals Chamber held that members of a Defence team, including investigators, “enjoy functional immunity under Article 30(4) of the Statute with regard to acts that fall within the fulfilment of their official functions before the Tribunal due to their functions being ‘necessary for the proper functioning of the […] Tribunal’.”32Prosecutor v. Gotovina et al., IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12 March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 14 February 2011, para. 33, citing Bagosora et al. v. Prosecutor, ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, 6 October 2010, para. 19. The Appeals Chamber found that the omission of an explicit immunity for defence members in the VCDR, the UN Convention on Privileges and Immunities, and Security Council resolutions did not mean that Counsel and those assisting Counsel are not accorded any immunities.33Id., para. 28. The Appeals Chamber considered that the relevant question is whether functional immunity for defence members is “necessary for the proper functioning of the … Tribunal,” and not whether such an immunity is provided for in a treaty or Security Council resolution.34Id. It also reasoned that finding and interviewing witnesses, conducting investigations, and gathering evidence in a State would be difficult without functional immunity as the State could interfere by exercising jurisdiction to impede or hinder the Defence’s activities.35Id., para. 31. “Failure to accord functional immunity to defence investigators could impact upon the independence of defence investigations, as investigators may fear legal process for actions related to their official Tribunal functions.”36Id., para. 33.

International Criminal Tribunal for Rwanda (“ICTR”)

At the ICTR, privileges and immunities are regulated by the ICTR Statute, the Agreement between the United Nations and the United Republic of Tanzania Concerning the Headquarters of the International Tribunal for Rwanda (“ICTR Headquarters Agreement”)37Agreement between the United Nations and the United Republic of Tanzania Concerning the Headquarters of the International Tribunal for Rwanda, 31 August 1995. and the Memorandum of Understanding between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to the Office in Rwanda of the International Tribunal for Rwanda (“UN-Rwanda Memorandum of Understanding”)38Memorandum of Understanding between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to the Office in Rwanda of the International Tribunal for Rwanda, 3 June 1999.

Privileges and Immunities for Judges, the Prosecutor, and the Registrar

Like the ICTY, the ICTR Statute and ICTR Headquarters Agreement have clear rules for the privileges and immunities of Judges, the Prosecutor, and the Registrar.

Article 29 of the ICTR Statute provides that the privileges and immunities in the UN Convention on Privileges and Immunities and the VCDR apply to the Judges, the Prosecutor and his or her staff, and the Registrar and his or her staff.39ICTR Statute, Art. 29(1)-(3).

Article IV(1) of the ICTR Headquarters Agreement provides that the UN Convention on Privileges and Immunities and the VCDR “shall be applicable mutatis mutandis to the Tribunal[.]” Article XIV(1) provides that the Judges, the Prosecutor and the Registrar shall enjoy, inter alia: (a) personal inviolability, including immunity from arrest or detention; (b) immunity from criminal, civil and administrative jurisdiction in conformity with the VCDR; and (c) inviolability for all papers and documents. Article XIV(3) provides that these immunities are for the benefit of the Tribunal and not the individuals themselves.

Like the ICTY, the “Tribunal” (ICTR) has the right and duty to waive the privileges and immunities of Judges “in any case where [they] can be waived without prejudice to the purpose for which [they are] accorded[.]”40ICTR Headquarters Agreement, Art. XIV(3). Presumably, the “Tribunal” means the Bureau, as it is empowered under ICTR Rule 15(B) to determine whether a Judge should be disqualified or removed.41ICTR Rule 15(B) provides: “Any party may apply to the Presiding Judge of a Chamber for the disqualification of a Judge of that Chamber from a case upon the above grounds. After the Presiding Judge has conferred with the Judge in question, the Bureau, if necessary, shall determine the matter. If the Bureau upholds the application, the President shall assign another Judge to sit in place of the disqualified Judge.”

As for the Prosecutor and the Registrar, the Secretary-General – in consultation with the President of the Tribunal – has the right and duty to waive their privileges and immunities “in any case where [they] can be waived without prejudice to the purpose for which [they are] accorded[.]”42ICTR Headquarters Agreement, Art. XIV(3).

The ICTR Headquarters Agreement is a bilateral agreement between the UN and Tanzania and is only binding on those parties. The ICTR was also established by the Security Council.43See Security Council Resolution 955, U.N. Doc. S/Res/955, 8 November 1994. Other States have a duty to cooperate with the ICTR and to comply with the ICTR Trial Chamber’s requests for assistance or orders under Article 28 of the ICTR Statute.44Article 28 of the ICTR Statute provides: “States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber.”

Though the ICTR’s seat is in Tanzania, the events occurred in Rwanda. This created the need for another agreement with the Government of Rwanda for the ICTR Office in Rwanda. Paragraph 1 of the UN-Rwanda Memorandum of Understanding provides that Rwanda must accord the “staff” of the Tribunal the privileges and immunities provided in the UN Convention on Privileges and Immunities. Paragraph 2 states that the Judges, the Prosecutor, the Registrar, the Deputy Prosecutor and other “key members” (P-4 level and above) enjoy the privileges and immunities accorded to “diplomatic envoys” in accordance with international law. Paragraph 2 requires that these names be communicated to the Government of Rwanda in advance.

Privileges and Immunities for Counsel

The privileges and immunities of Counsel before the ICTR are much more limited than the immunities of the Judges, the Prosecutor, and the Registrar. As with the ICTY, the ICTR Statute does not explicitly provide for immunities for Counsel. Article 29(4) provides that “[o]ther persons, including the accused, required at the seat or meeting place of the International Tribunal for Rwanda shall be accorded such treatment as is necessary for the proper functioning of the International Tribunal for Rwanda.” As discussed below, the ICTR has held that this provision covers Counsel.45Prosecutor v. Bagosora et al., ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlander, 6 October 2010, para. 19.

Article XIX of the ICTR Headquarters Agreement is identical to the ICTY Headquarters Agreement. Under Article XIX(1), in Tanzania, Counsel are accorded:

(a) Exemption from immigration restrictions;

(b) Inviolability of all documents relating to the exercise of his or her functions as a counsel of a suspect or accused;

(c) Immunity from criminal, civil and administrative jurisdiction in respect of words spoken or written and acts performed by him or her in his or her official capacity as counsel. Such immunity shall continue to be accorded to him or her after termination of his or her functions as a counsel of a suspect or accused.

Also similar to the ICTY, these immunities do not protect Counsel from disciplinary action in a case of professional misconduct,46ICTR Headquarters Agreement, Art. XIX(3). and immunities can be waived by the Secretary-General.47Id., Art. XIX(4).

The UN-Rwanda Memorandum of Understanding does not provide explicit immunities for Counsel. Paragraph 2 of the Memorandum states that “other persons” whose names are communicated to the Government of Rwanda shall be accorded privileges and immunities as experts on mission in accordance with Article VI of the UN Convention on Privileges and Immunities.

The issue of Counsel’s immunities in Rwanda was raised in Prosecutor v. Bagosora et al. In Bagosora et al., Peter Erlinder, Lead Counsel for Aloys Ntabakuze, was arrested by Rwandan authorities on allegations of “genocidal denial.”48See Prosecutor v. Bagosora et al., ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlander, 6 October 2010, para. 2. Under Rwandan law, “[r]evisionism, negationism and trivialisation of genocide are punishable by the law.”49Constitution of Rwanda, adopted by Referendum of 26 May 2003, Art. 13, available at http://www.rwandahope.com/constitution.pdf. At the time of his arrest, Erlinder was in Rwanda for reasons unrelated to his work at the ICTR.50See Prosecutor v. Bagosora et al., ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, 6 October 2010, para. 2.

The Rwandan Prosecutor charged Erlinder with “[d]enying and minimizing genocide in his various writings and speeches” and “[s]preading rumours likely to disrupt the security of Rwandans.”51See Public Prosecutor v. Erlinder, RONPJO678/Kgl/NM, Decision of the High Court of Gasabo, 7 June 2010, paras. 1-2, annexed to Prosecutor v. Nzirorera, ICTR-98-44-T, Application for Certification to Appeal Re: Arrest of Peter Erlinder and for Stay Pending Appeal, 14 June 2010. The Rwandan Prosecutor’s allegations against Erlinder relied on Erlinder’s academic writings but also made specific references to Erlinder’s statements as Defence Counsel before the ICTR.52Id., paras. 10-11. The High Court of Gasabo considered that the Prosecutor’s allegations had merit:

Elsewhere in his writings, the Accused considers the genocide as a war and, even in the Military I case [Prosecutor v. Bagosora et al.], he submitted that the killings committed against the Tutsi in 1994 did not constitute genocide. He further states that in Rwanda, this issue is being used as a hurdle against those who want to challenge Kagame during the 2010 elections.

In the Edouard Karemera case before the ICTR, the Chamber stated that the genocide of the Tutsi no longer raises doubt. However, Carl Peter Erlinder ignores this decision and wants to make Rwandans believe that the Head of State committed genocide.53Id., paras. 10-11.

Aloys Ntabakuze requested the Appeals Chamber to order the Registrar to take immediate action to secure Erlinder’s release, and that the Rwandan Government dismiss the case against him.54Prosecutor v. Bagosora et al., ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, 6 October 2010, para. 14. Ntabakuze argued that the charges against Erlinder “constitute[d] intimidation and serious interference with a legal process,” affected his fair trial rights, and substantially impeded the Defence from functioning.55Id., paras. 14-15. He also argued that Rwanda’s jurisdiction over Erlinder was improper because the crime was undefined, the underlying acts were done outside of Rwanda, and in most jurisdictions the acts would have been protected by the right to freedom of expression.56Id., para. 15.

The ICTR Prosecutor responded that Ntabakuze’s motion should be summarily dismissed because the charges against Erlinder were not yet established.57Id., para. 16. The Prosecutor also argued that any immunity from which Erlinder benefited only protected him from legal process for words spoken or acts done in relation to his position as Defence Counsel at the ICTR.58Id. The Prosecutor also argued that Ntabakuze did not demonstrate that Erlinder’s arrest impacted the ability of other Defence Counsel to perform their functions.59Id., para. 16.

The ICTR Appeals Chamber held that Defence Counsel fall within the category of “other persons” under Article 29(4) of the ICTR Statute and paragraph 2 of the UN-Rwanda Memorandum of Understanding.60Id., para. 22. Thus, Counsel before the ICTR “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[.]”61Id., para. 26. The Appeals Chamber reasoned that “[t]he proper functioning of the Tribunal requires that Defence Counsel be able to investigate and present arguments in support of their client’s case without fear of repercussions against them for these actions. Without such assurance, Defence Counsel cannot be reasonably expected to adequately represent their clients.”62Id., para. 19. The Appeals Chamber considered that while Defence Counsel are not Tribunal employees, they are assigned and appointed by the Tribunal to their positions.63Id., para. 20 The Appeals Chamber also found that the procedures for going on mission in Rwanda indicate that the Tribunal considers Defence Counsel to be “acting in official capacity and on assignment in association with the Tribunal.”64Id., para. 20. It also considered that the Defence has a right to undertake investigations in order to prepare its case, and that if the UN-Rwanda Memorandum of Understanding did not extend to Defence Counsel, the right of equality of arms would be rendered meaningless.65Id., para. 21.

The Appeals Chamber concluded that Defence Counsel are to be considered experts on mission within the meaning of Article VI of the UN Convention on Privileges and Immunities.66Id., para. 23. It stated:

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.67Id.

Having found that Erlinder benefitted from “immunity from legal process in respect of words spoken or written and acts done by him in the course of his representation,” the Appeals Chamber then analyzed the facts.68Id., paras. 27. It found that the vast majority of material forming the basis of his investigation in Rwanda consisted of articles written in a private or academic capacity and were not covered by his immunities.69Id., para. 28. However, one document related to Erlinder’s closing arguments during the Bagosora case.70Id., para. 29. The Appeals Chamber found that the proceedings against Erlinder on the basis of his arguments before the ICTR violated his functional immunity and interfered with the proper functioning of the Tribunal.71Id. Accordingly, the Appeals Chamber ordered Rwanda to desist from proceeding against Erlinder “in relation to words spoken or written in the course of his representation of Ntabakuze before the Tribunal[.]”72Id., para. 31.

Special Court for Sierra Leone (“SCSL”)

In contrast to the ICTY and ICTR, the SCSL was not created by the Security Council. It is a “hybrid” tribunal created by an agreement between the UN and the Government of Sierra Leone.73Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002 (“SL-UN Agreement”). At the SCSL, privileges and immunities are regulated by the SL-UN Agreement and the Headquarters Agreement between the Republic of Sierra Leone and the Special Court of Sierra Leone (“SCSL Headquarters Agreement”)74Headquarters Agreement between the Republic of Sierra Leone and the Special Court of Sierra Leone, 21 October 2003. There are no provisions in the SCSL Statute that regulate privileges and immunities.

            Privileges and Immunities for Judges, the Prosecutor and the Registrar

Article 12(1) of the SL-UN Agreement provides that the Judges, the Prosecutor, and the Registrar enjoy the privileges and immunities provided for in the VCDR. Specifically, they enjoy, inter alia: (a) personal inviolability, including immunity from arrest or detention; (b) immunity from criminal, civil and administrative jurisdiction in conformity with the VCDR; and (c) inviolability for all papers and documents.

Article 12(2) of the SL-UN Agreement provides that these privileges and immunities are not for the benefit of the individuals themselves, but the SCSL. The right and duty to waive the immunities of the Judges, the Prosecutor, and the Registrar lies with the Secretary-General, in consultation with the President of the Tribunal.

Article 14(1) of the SCSL Headquarters Agreement provides that the Judges, the Prosecutor, the Deputy Prosecutor, and the Registrar enjoy the privileges and immunities set forth in Article 12(1) of the SL-UN Agreement. Article 14(2) provides that the Judges, the Prosecutor, the Deputy Prosecutor, and the Registrar continue to enjoy “immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity after termination of their employment with the Special Court.”

            Privileges and Immunities for Counsel

In contrast to the ICTY and ICTR, the SCSL’s legal texts explicitly provide for the privileges and immunities of Counsel. Article 14 of the SL-UN Agreement explicitly provides for privileges and immunities of Counsel. Article 14(1) states: “The Government shall ensure that the counsel of a suspect or an accused who has been admitted as such by the Special Court shall not be subjected to any measure which may affect the free and independent exercise of his or her functions.” Under Article 14(2), Counsel are accorded:

(a) Immunity from personal arrest or detention and from seizure of personal baggage;

(b) Inviolability of all documents relating to the exercise of his or her functions as a counsel of a suspect or accused;

(c) Immunity from criminal or civil jurisdiction in respect of words spoken or written and acts performed in his or her capacity as counsel. Such immunity shall continue to be accorded after termination of his or her functions as a counsel of a suspect or accused.

(d) Immunity from any immigration restrictions during his or her stay as well as during his or her journey to the Court and back.

Article 18 of the SCSL Headquarters Agreement similarly provides for privileges and immunities of Counsel. Article 18(1) provides that Counsel enjoys the privileges and immunities in Article 15 of the SL-UN Agreement. Article 18(2) provides that these privileges and immunities do not protect counsel from disciplinary action in cases of professional misconduct. Article 18(3) provides that the President of the Tribunal can waive Counsel’s immunities.

Extraordinary Chambers in the Courts of Cambodia (“ECCC”)

Like the SCSL and the Special Tribunal for Lebanon (discussed below), the ECCC is a “hybrid” tribunal, established by an agreement between the UN and the Royal Government of Cambodia (“RGC”)75Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, 6 June 2003 (“UN-RGC Agreement”). At the ECCC, privileges and immunities are regulated by the UN-RGC Agreement and the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (“ECCC Establishment Law”)76Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, 27 October 2004.

The structure of the ECCC is unique in that it requires the cooperation of national and international staff. At the ECCC there are National and International Judges, National and International Co-Investigating Judges, National and International Co-Prosecutors, as well as National and International Defence Counsel.77See UN-RGC Agreement, Arts. 3, 5, 6; ECCC Internal Rules, Rule 22(1).

Privileges and Immunities of the Judges, Co-Investigating Judges, Co-Prosecutors, the Director of the Office of Administration, and the Deputy Director of the Office of Administration

The unique hybrid structure of the ECCC entails different privileges and immunities accorded to International and National staff.

Article 19 of the UN-RGC Agreement provides that the International Judges, the International Co-Investigating Judge, the International Co-Prosecutor, and the Deputy Director of the Office of Administration (who is an International staff member) enjoy the privileges and immunities accorded to diplomatic agents in accordance with the VCDR, specifically: (a) personal inviolability, including immunity from arrest or detention; (b) immunity from criminal, civil and administrative jurisdiction in conformity with the VCDR; (c) inviolability for all papers and documents; (d) exemption from immigration restrictions and alien registration; and (e) the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic agents.

Article 20 of the UN-RGC Agreement provides that the National Co-Investigating Judge, National Co-Prosecutor, and other National personnel are accorded “immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity[.]” Such immunities continue to be accorded after termination of their employment.78UN-RGC Agreement, Art. 20.

Article 41 of the ECCC Establishment Law provides that the International Judges, International Co-Investigating Judge, International Co-Prosecutor, and the Deputy Director of the Office of Administration (who is a National staff member) enjoy the privileges and immunities accorded to diplomatic agents in accordance with the VCDR. Article 42 new (1) provides that the National Judges, National Co-Investigating Judge, National Co-Prosecutor, and the Director of the Office of Administration and other National personnel shall be accorded “immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity[.]” This immunity continues to be accorded to the National officials after termination of their employment.79ECCC Establishment Law, Art. 42 new.

Privileges and Immunities for Counsel

The UN-RGC Agreement and the ECCC Establishment Law explicitly provide for privileges and immunities of Counsel, albeit in a more limited form than those accorded to the International Judges, International Co-Investigating Judge, International Co-Prosecutor, and the Director and Deputy Director of the Office of Administration.

Under Article 21(1) of the UN-RGC Agreement, “Counsel” (both National and International) shall not be subjected by the RGC to any measure that may affect the free and independent exercise of his or her functions. Article 21(2) provides that Counsel shall be accorded:

(a) immunity from personal arrest or detention and from seizure of personal baggage;

(b) inviolability of all documents relating to the exercise of his or her functions as a counsel of a suspect or accused;

(c) immunity from criminal or civil jurisdiction in respect of words spoken or written and acts performed by them in their official capacity as counsel. Such immunity shall continue to be accorded to them after termination of their functions as a counsel of a suspect or accused.

Article 21(3) provides that both National and International Counsel must respect the “Cambodian Law on the Statutes of the Bar and recognized standards and ethics of the legal profession.” Thus, Counsel’s immunities will not protect him or her from disciplinary action if he or she commits professional misconduct.

Article 42 new (3) of the ECCC Establishment Law repeats the language in Article 21(1) of the UN-RGC Agreement. Neither the UN-RGC Agreement nor the ECCC Establishment Law specifies the immunities accorded to persons assisting Counsel, such as legal consultants or case managers. Arguably, Article 42 new (2) could apply to international legal consultants. Under Article 42 new (2), “International personnel” are accorded immunity from legal process in respect of words spoken or written and acts performed in an official capacity. “Such immunity shall continue to be accorded after termination of employment with the co-investigating judges, the co-prosecutors, the Extraordinary Chambers, the Pre-Trial Chamber and the Office of Administration[.]”80ECCC Establishment Law, Art. 42 new (2). The term “employment with … the Extraordinary Chambers” is not specific to UN staff members, and could include contracted international legal consultants. International legal consultants are contracted by the United Nations Assistance to the Khmer Rouge Trials (“UNAKRT”), through the Defence Support Section (“DSS”) which is in tasked with “substantive defence matters.”81See ECCC Internal Rules, Rule 11. DSS falls under the Office of Administration.82Id. If legal consultants are contracted by UNAKRT through DSS, and DSS falls under the Office of Administration, legal consultants should be considered “international personnel” and be accorded immunity from legal process in respect of words spoken and written and acts performed in an official capacity.

National case managers should be covered under Article 42 new (1) of the ECCC Establishment Law. Article 42 new (1) provides: “Cambodian judges, the Co-Investigating Judge, the Co-Prosecutor, the Director of the Office of Administration and personnel shall be accorded immunity from legal process in respect of words spoken or written and all acts performed by them in their official capacity.”83emphasis added. “Personnel” is also not specific and could include National case managers.

Special Tribunal for Lebanon (“STL”)

Similar to the SCSL and ECCC, the STL is a “hybrid” tribunal created by an agreement between the UN and the Government of Lebanon. The agreement was made pursuant to Security Council Resolution 1664, which responded to the Government of Lebanon’s request to “establish a tribunal of an international character[.]”84See STL Statute, Preamble; Security Council Resolution 1664, S/Res/1664, 29 March 2006. As the STL has offices in both the Netherlands and Lebanon, privileges and immunities are regulated by the Agreement Between the Kingdom of the Netherlands and the United Nations concerning the Headquarters of the Special Tribunal for Lebanon (“STL Headquarters Agreement”)85Agreement Between the Kingdom of the Netherlands and the United Nations concerning the Headquarters of the Special Tribunal for Lebanon, 21 December 2007. and the Memorandum of Understanding between the Government of the Republic of Lebanon and the Special Tribunal for Lebanon Concerning the Office of the Special Tribunal in Lebanon (“STL-Lebanon Memorandum of Understanding”). There are no provisions in the STL Statute that relate to privileges and immunities.

Privileges and Immunities for Judges, the Prosecutor, the Registrar, and the Head of the Defence Office

Article 17(1) of the STL Headquarters Agreement provides that the Judges, the Prosecutor, the Deputy Prosecutor, the Registrar, and the Head of the Defence Office (being an independent organ of the STL on equal footing with the Judges and Prosecutor)86See STL Statute, Art. 7. enjoy the same privileges and immunities accorded to the heads of diplomatic missions under the VCDR. Specifically, they enjoy, inter alia: (a) personal inviolability, including immunity from personal arrest or detention or any other restriction of their liberty; (b) immunity from criminal, civil and administrative jurisdiction; and (c) inviolability of all papers, documents in whatever form and materials. Article 17(3) provides that persons within this category continue to enjoy immunity from legal process in respect of words spoken or written and acts performed by them in an official capacity after the expiry of their terms of office.

Article 15(1) of the STL-Lebanon Memorandum of Understanding provides while in Lebanon, that the Judges, the Prosecutor, the Deputy Prosecutor, the Registrar, and the Head of the Defence Office enjoy the privileges and immunities accorded to diplomatic agents in accordance with the VCDR. Article 15(2) provides that the privileges and immunities accorded to these persons are not for their individual benefit, but for the benefit of the STL. Under Article 15(2), the Secretary-General, in consultation with the President of the Tribunal, has the right and duty to waive the privileges and immunities of these individuals “in any case where [they] can be waived without prejudice to the purposes for which [they are] accorded[.]”

            Privileges and Immunities for Counsel

As with the SCSL, the STL Headquarters Agreement and STL-UN Memorandum of Understanding explicitly provide for privileges and immunities for Counsel. Article 22 of the STL Headquarters Agreement provides that Counsel enjoy privileges and immunities “to the extent necessary for the free and independent exercise of their functions[.]” Specifically, Counsel enjoy, inter alia:

(a) immunity from personal arrest or detention or any other restriction of their liberty in respect of acts or convictions prior to their entry into the territory of the host State;

(b) immunity from seizure of their personal baggage;

(c) immunity from legal process of every kind in respect of words spoken or written and all acts performed by them in their official capacity, which immunity shall continue to be accorded even after they have ceased to perform their functions;

(d) inviolability of all papers, documents in whatever form and materials relating to the performance of their functions;

(e) for the purposes of communications in pursuance of their functions as counsel, the right to receive and send papers and documents in whatever form[.]

Article 22(6) specifies that these provisions apply mutatis mutandis to persons assisting Counsel, such as investigators, case managers, or legal assistants. Article 22(7) provides that these privileges and immunities will not protect Counsel from disciplinary action.

Article 18(1) of the STL-Lebanon Memorandum of Understanding provides that while in Lebanon, the Lebanese Government shall ensure that Counsel is not subjected, “to any measure that may affect the free and independent exercise of his or her functions.” Article 18(2) provides that Counsel enjoy:

(a) Immunity from personal arrest or detention and from seizure of personal baggage;

(b) Inviolability of all documents and material relating to the exercise of his or her functions as counsel;

(c) Immunity from criminal or civil jurisdiction in respect of words spoken or written and acts performed in his or her capacity as counsel as determined by the Head of the Defence Office. Such immunity shall continue to be accorded after termination of his or her functions as counsel; and

(d) Immunity from any immigration restrictions while in Lebanon and while travelling between Lebanon and the seat of the Special Tribunal in the Netherlands.

Article 18(3) provides that these privileges and immunities apply mutatis mutandis to persons assisting Counsel, such as investigators, case managers, or legal assistants.

At the STL, the Defence Office also signed a Memorandum of Understanding with the Government of Lebanon concerning the modalities of their cooperation.87Memorandum of Understanding between the Government of the Lebanese Republic and the Defence Office on the Modalities of their Cooperation, 28 July 2010 (“STL Defence Memorandum of Understanding”). Under Article 3(1) of the STL Defence Memorandum of Understanding, “Defence Counsel and their teams may carry out freely any investigation within the territory of Lebanon that does not require coercive measures.” Under Article 3(2), the Lebanese Government undertakes to ensure that Defence teams have the necessary independence to carry out their functions, including to:

(a) Guarantee the freedom of movement of members of the Defence teams, in accordance with Article 5 of the Memorandum of Understanding concerning the Office of the Tribunal;

(b) Take all the necessary measures to ensure the safety of Defence teams while they are in Lebanese territory;

(c) Guarantee freedom of access for Defence teams to the sites, persons and documents necessary for the conduct of their investigations and defence of the suspects and accused they represent, in accordance with Article 15 of the Annex;

(d) Allow the Defence directly to take the statements of witnesses and experts who have informed it of their willingness to testify.

International Criminal Court (“ICC”)

In Contrast to the tribunals discussed above, the ICC is a permanent institution created by a multilateral treaty: the Rome Statute.88Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90, entry into force 1 July 2002 (“Rome Statute”), Art. 1. Whereas the ad hoc tribunals, the SCSL, ECCC, and STL have relations with one or two States (the seat of the Tribunal and the location of the crimes/investigations), the ICC has relations with many. To date, 123 States are parties to the Rome Statute.89UN Treaty Series, Status of Treaties, Rome Statute of the International Criminal Court, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en. At the ICC, privileges and immunities are regulated by the Rome Statute, the Agreement on the Privileges and Immunities of the International Criminal Court (“ICC Agreement on Privileges and Immunities”),90Agreement on the Privileges and Immunities of the International Criminal Court, ICC-ASP-1/3, 10 September 2002. and the Headquarters Agreement between the International Criminal Court and the Host State (“ICC Headquarters Agreement”)91Headquarters Agreement between the International Criminal Court and the Host State, ICC-BD/04-01-08, 1 March 2008.

Privileges and Immunities of the Judges, the Prosecutor, the Deputy Prosecutor, and Registrar

Article 48(2) of the Rome Statute provides:

The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity.

Article 15(1) of the ICC Agreement on Privileges and Immunities restates Article 48(2) of the Rome Statute.

Article 17(1) of the ICC Headquarters Agreement is more specific. It provides that the Judges, the Prosecutor, the Deputy Prosecutor, and the Registrar enjoy, inter alia: (a) personal inviolability, including immunity from personal arrest or detention or any other restriction of their liberty; (b) immunity from criminal, civil and administrative jurisdiction; and (c) inviolability of all papers, documents in whatever form, and materials. Article 17(5) of the ICC Headquarters Agreement provides that these individuals continue to enjoy immunity from legal process in respect of words spoken or written and acts performed in their official capacity after expiry of their terms of office. Under Article 26(2)(a) of the ICC Agreement on Privileges and Immunities, an absolute majority of the Judges may waive the immunities of a Judge or Prosecutor. Under Article 26(2)(b), the Presidency may waive the immunities of the Registrar. Under Article 26(2)(c), the Prosecutor may waive the immunities of the Deputy Prosecutor and staff of the Office of the Prosecutor.

Under Article 30(2)(a) of the ICC Headquarters Agreement, an absolute majority of the Judges is required to waive the immunities of a Judge or Prosecutor. Under Article 30(2)(b), the Presidency may waive the immunities of the Registrar. Under Article 30(2)(c), the Prosecutor may waive the immunities of the Deputy Prosecutor.

Privileges and Immunities of Counsel

“Counsel” at the ICC includes not only Defence Counsel, but also the legal representatives of victims.92ICC Rule 90(1) provides that victims are entitled to legal representation. The Rome Statute explicitly provides for privileges and immunities of Counsel, albeit in a more limited form than those accorded to the Judges, the Prosecutor, the Deputy Prosecutor, and the Registrar.

Article 48(4) of the Rome Statute provides that Counsel shall be accorded “such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court.” The Rome Statute does not indicate who may waive the privileges and immunities of Counsel. However, Article 27(2) of the Rome Statute indicates that immunities will not serve as a bar to prosecution for crimes, including offenses against the administration of justice under Article 70.93Offenses under Article 70 include: (a) Giving false testimony; (b) Presenting evidence that the party knows is false or forged; (c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence; (d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; (e) Retaliating against an official of the Court on account of duties performed by that or another official; and (f) Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties. Under Article 58 of the Rome Statute, the Pre-Trial Chamber has the authority to issue arrest warrants.

The ICC Agreement on Privileges and Immunities provides Counsel at the ICC with a more robust list of privileges and immunities than at the other international criminal tribunals. Under Article 18(1) of the ICC Agreement on Privileges and Immunities, Counsel are accorded the following privileges and immunities “necessary for the independent performance of his or her functions”:

(a) Immunity from personal arrest or detention and seizure of his or her personal baggage;

(b) Immunity from legal process of every kind in respect of words spoken or written and all acts performed by him or her in official capacity, which immunity shall continue to be accorded even after he or she has ceased to exercise his or her functions;

(c) Inviolability of papers and documents in whatever form and materials relating to the exercise of his or her functions;

(d) For the purposes of communication in pursuance of his or her functions as counsel, the right to receive and send papers and documents in whatever form;

(e) Exemption from immigration restrictions or alien registration;

(f) Exemption from inspection of personal baggage, unless there are serious grounds for believing that the baggage contains articles the import or export of which is prohibited by law or controlled by the quarantine regulations of the State Party concerned; an inspection in such case shall be conducted in the presence of the counsel concerned;

(g) The same privileges in respect of currency and exchange facilities as are accorded to representatives of foreign Governments on temporary official missions; [and]

(h) The same repatriation facilities in the time of international crisis as are accorded to diplomatic agents under the Vienna Convention.

Article 18(4) stipulates that these privileges and immunities apply mutatis mutandis to persons assisting Counsel, such as investigators, case managers, or legal assistants. Under Article 26(2)(f), the Presidency has the right and duty to waive the immunity of Counsel and persons assisting Counsel where the privileges or immunities would “impede the course of justice and can be waived without prejudice to the purpose for which they are accorded.”

In the Netherlands, Counsel and persons assisting counsel are accorded immunities under the ICC Headquarters Agreement. Article 25(1) of the ICC Headquarters Agreement provides that Counsel shall be afforded privileges and immunities “to the extent necessary for the independent performance of their functions”:

(a) immunity from personal arrest or detention or any other restriction of their liberty in respect of acts or convictions prior to their entry into the territory of the host State;

(b) immunity from seizure of their personal baggage;

(c) immunity from legal process of every kind in respect of words spoken or written and all acts performed by them in their official capacity, which immunity shall continue to be accorded even after they have ceased to perform their functions;

(d) inviolability of all papers, documents in whatever form and materials relating to the performance of their functions;

(e) for the purposes of communications in pursuance of their functions as counsel, the right to receive and send papers and documents in whatever form;

(f) together with members of their family forming part of their household, exemption from immigration restrictions or alien registration;

(g) exemption from inspection of personal baggage, unless there are serious grounds for believing that the baggage contains articles the import or export of which is prohibited by law or controlled by the quarantine regulations of the host State; an inspection in such a case shall be conducted in the presence of the counsel concerned;

(h) the same privileges in respect of currency and exchange facilities as are accorded to representatives of foreign governments on temporary official missions;

(i) the same repatriation facilities in time of international crisis as are accorded to diplomatic agents under the Vienna Convention.

Article 25(6) provides that these privileges and immunities are accorded to persons assisting Counsel. Under Article 30(2)(b), the Presidency has the right and duty to waive the immunities of Counsel and persons assisting Counsel where they “would impede the course of justice and can be waived without prejudice to the purpose for which they are accorded.”

Unlike the agreements setting out privileges and immunities at the other international tribunals, the ICC agreements do not indicate whether Counsel’s immunities will be inapplicable if he or she engages in professional misconduct. This does not mean that immunities will serve as a shield if Counsel engages in a crime or fraud, such as one of the offenses listed in Article 70 of the Rome Statute. The issue of Counsel’s and his or her staff’s immunities regarding Article 70 offenses arose in Bemba.

In Bemba, Judge Tarfusser, the Single Judge, found that OTP had sufficient evidence showing that communications between Jean-Pierre Bemba Gombo and members of his Defence team fell under a crime-fraud exception to the attorney-client privilege.94Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for Judicial Order to Obtain Evidence for Investigation under Article 70”, 29 July 2013, paras. 3-5. Judge Tarfusser then appointed an Independent Counsel to identify portions of communications that might be relevant for the limited purpose of the OTP’s contempt investigation, and deliver them to the OTP.95Id., paras. 6-7. While the Independent Counsel assessed the communications, Judge Tarfusser requested the Presidency to waive the immunities of Aimé Kilolo Musamba and Jean-Jaques Magenda Kabongo, Lead Defence Counsel and Case Manager for the Bemba Defence, respectively.96Situation in the Central African Republic, ICC-01/05, Decision on the Urgent Application of the Single Judge of Pre-Trial Chamber II of 19 November 2013 for Waiver of the Immunity of Lead Defence Counsel and the Case Manager for the Defence in the Case of The Prosecutor v. Jean-Pierre Bemba Gombo, 20 November 2013, para. 1. Judge Tarfusser determined that there were reasonable grounds to believe that Kilolo and Magenda had corruptly influenced witnesses and that the immunities granted pursuant to the Rome Statute, the ICC Headquarters Agreement, and the ICC Agreement on Privileges and Immunities should be waived.97Id., paras. 4-5.

The Presidency noted that under Article 25 of the ICC Headquarters Agreement and Article 18 of the ICC Agreement on Privileges and Immunities, Counsel enjoy immunities to the extent necessary for the independent performance of their functions, including immunity from legal process in respect of words spoken or written and acts performed in an official capacity.98Id., paras. 8-9. The Presidency considered that such immunities would only include legitimate functions and not the type of conduct envisaged in Article 70 of the Rome Statute.99Id., para. 10. “The purposes for which immunity is granted do not include the commission of offences against the administration of justice.”100Id., para. 13.

The Presidency also noted that under Article 30 of the ICC Headquarters Agreement and Article 26 of the ICC Agreement on Privileges and Immunities, the Presidency has a duty to waive immunities where “they would impede the course of justice” and “can be waived without prejudice to the purposes for which they are accorded.”101Id., para. 11. The Presidency found that “the facts of the present case meet this criteria,” and waived Kilolo’s and Magenda’s immunities.102Id., paras. 11, 13.

The OTP had also requested the Netherlands to wiretap the Defence team’s telephone conversations and transmit those wiretaps to the ICC.103Decision of The Hague District Court, the three-judge division for criminal cases, on the motions by the public prosecutor and the complaints pursuant to Section 552a of the Dutch Code of Criminal Procedure of the suspects: Aime Kilolo Musamba & Jean-Jacques Mangenda Kabongo, 09/767240-13, Case Number RK 14/718 (2014), p. 2. A previous decision allowed the wiretaps and because no appeal was filed, the wiretapping was deemed final and irrevocable.104Id. The Hague District Court only examined the issue of transferring those wiretaps to the ICC.105Id. Kilolo and Magenda argued that the Dutch authorities violated their immunities under the ICC Headquarters Agreement.106Id., p. 5-6.

The Hague District Court did not examine the applicability of the immunities of Defence team members, instead basing its decision on the rule of non-inquiry:

In the court’s opinion, the international rule of non-inquiry applies to the relationship between the Netherlands and the ICC. The Dutch courts are entitled to rely on the decision of an international judicial body that provides every guarantee of impartiality and independence. The Netherlands must therefore operate on the basis of the legal presumption that the ICC will apply its own law – including the provisions relating to immunity – adequately and properly.107Id., p. 7.

It dismissed Kilolo’s and Magenda’s complaints and granted leave to the Public Prosecutor to deliver the tapped phone calls to the ICC.108Id., p. 10.

As discussed in my first post and fourth post, the Trial Chamber ultimately found several of the tapped communications to fall under the crime-fraud exception to the attorney-client privilege and ordered them to be delivered to the OTP and the other parties.109Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-947, Decision Providing Materials in Two Independent Counsel Reports and Related Matters, 15 May 2015.

Bemba illustrates that immunities accorded to Counsel will not bar the prosecution of alleged offenses against the administration of justice or other alleged unethical conduct. Nor will the attorney-client privilege serve as a shield as to prevent an international tribunal or court from reviewing confidential communications between the attorney and client when Counsel is alleged to have engaged in such behavior. Unethical and/or criminal conduct – such as tampering with witnesses – is not part of Counsel’s legitimate functions. In such cases, no privileges and no immunities are warranted.

Conclusion

The extent of the privileges and immunities given to those working at the international criminal tribunals differs depending on the professional functions of the individual. The privileges and immunities may also differ slightly depending on the structure of the tribunal and scope of the documents setting out privileges and immunities.

Judges, Prosecutors, and the Registrar are seen as “organs” of the tribunal and are accorded a higher level of immunities. Counsel on the other hand are independent of the tribunal and are only offered a limited functional immunity. Counsel only enjoy immunities to the extent necessary for the free and independent performance of their activities in representing their clients.

The limited immunities accorded to Counsel ignore the need for Counsel to enjoy such immunities. Unlike the Judges, the Prosecutor, or the Registrar, Counsel are most often put in situations where immunities are necessary. Defence Counsel’s words and actions (such as arguing that a genocide did not occur) are more likely to generate negative responses in domestic jurisdictions, making Counsel a prime target for domestic prosecution. Victim’s Counsel may also be subject to harassment from a government that is hostile to the victims being represented. By strengthening the privileges and immunities accorded to Counsel, tribunals can encourage Counsel to take up the cause of the accused or victims.

clarionLastly, it is critical to note that, as is case with the attorney-client privilege, Counsel’s immunities do not serve as a shield when Counsel engages in professional misconduct. Engaging in a crime or fraud against the administration of justice, or other unethical behavior, will pierce the shield of immunity. Confidential communications may be reviewed and Counsel can be subject to criminal liability. As the Bemba case demonstrates, when Counsel’s alleged conduct impedes the course of justice, his or her immunities can and will be waived. Bemba is currently pending. Irrespective of the outcome (for all we know, the facts may reveal banal conduct by Counsel and members of the Defence and an unalloyed case of prosecutorial overreach), Bemba is nothing short of a clarion call to Counsel and their staff to be aware of the limited contours of the immunities afforded to them and to be vigilant as they go about meeting their responsibilities in representing their clients.

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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.

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