{"id":1980,"date":"2017-02-13T02:02:07","date_gmt":"2017-02-13T01:02:07","guid":{"rendered":"http:\/\/michaelgkarnavas.net\/blog\/?p=1980"},"modified":"2017-02-20T16:23:16","modified_gmt":"2017-02-20T15:23:16","slug":"judicial-independence-at-risk","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2017\/02\/13\/judicial-independence-at-risk\/","title":{"rendered":"Judicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay"},"content":{"rendered":"

<\/div><\/p>\n

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.(( 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 (\u201cICJ Advisory Opinion on Difference Relating to Immunity from Legal Process\u201d), para. 61.))<\/p><\/blockquote><\/p>\n

\"\"<\/a>On or around 21 September 2016<\/a>, 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.\u00a0 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 G\u00fclen, and a downloaded messaging app (ByLock), which is claimed to have been used by the coup plotters.(( See <\/em>Margaret Coker, How a Top International Judge Was Trampled by Turkey\u2019s Purge<\/em>, Wall Street Journal, 29 December 2016.))<\/p>\n

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 \u2013 if for no other reason than to justify his arrest and continuing imprisonment, albeit without being charged.\u00a0 When invited before the MICT to account for Judge Akay\u2019s arrest,(( Prosecutor v.\u00a0 Ngirabatware, <\/em>MICT-12-29-R, Invitation to the Government of the Republic of Turkey, <\/em>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\u2019s obligation to cooperate with the MICT, not to mention its obligation to respect and afford Judge Akay the immunity accorded to him \u2013 a matter that President Erdogan assuredly knows.<\/p>\n

Before I get to the risk being posed to international judges by President Erdogan\u2019s flagrant disregard of international norms, let me offer\u00a0some facts meriting attention.<\/p>\n

First, the MICT is an ad hoc<\/em> international tribunal established by the UN Security Council in 2010.\u00a0 Its purpose is to be a residual judicial institution for the phased-out ad hoc<\/em> International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR).(( See <\/em>UN Security Council Resolution S\/RES\/1966 (2010), 22 December 2010.))<\/p>\n

Second, Turkey became a member of the UN Security Council in 2010 and, in fact, voted for the establishment of the MICT.(( The UN Security Council Resolution S\/RES\/1966 (2010), 22 December 2010, establishing the MICT was adopted 14 to 0, with Russia abstaining.\u00a0 See <\/em>UN Security Council Press Release<\/a>, Security Council Establishes Residual Mechanism to Conclude Tasks of International Criminal Tribunals for Rwanda, Former Yugoslavia<\/em>, 22 December 2010.))<\/p>\n

Third, the MICT Statute affords judges diplomatic immunity, as do its predecessors and other international(ized) courts and tribunals.\u00a0 Article 29 is unambiguous:<\/p>\n

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.<\/p>\n

Fourth, Rule 90 of the MICT Rules of Procedure and Evidence provides for contempt measures for non-compliance with court orders. \u00a0In 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).(( Al Bashir is wanted by the ICC<\/a> for alleged war crimes and crimes against humanity over atrocities allegedly committed in the Darfur conflict.\u00a0 Al Bashir left South Africa even though the High Court in Pretoria had ordered authorities to prevent him from doing so. The state\u2019s appeal against the High Court ruling was dismissed<\/a> by the Supreme Court of Appeal. See <\/em>Don Melvin & Eliott C. McLaughlin, Sudan\u2019s Leader Leaves South Africa before Court Orders Arrest<\/em>, CNN, 15 June 2015. See also <\/em>previous post, South Africa files for divorce from the ICC: the thrill is gone<\/em><\/a>, 26 October 2016.)) Drastic as such an action may seem for ignoring Judge Akay\u2019s immunity and imprisoning him, and for not abiding by a MICT order, it is so \u2013 as it must be.<\/p>\n

Why should the UN Security Council intervene and why should international judges call for Judge Akay\u2019s immediate release so he can resume his judicial duties at the MICT? <\/em><\/strong><\/p>\n

There is a reason why judges are afforded immunity: they must be independent<\/p><\/blockquote><\/div>The arrest of Judge Akay has a chilling effect on and puts at risk other international judges.\u00a0 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.<\/p>\n

There are reasons why international criminal tribunals and courts are established.\u00a0 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.\u00a0 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.<\/p>\n

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<\/a>” judges, while judges in the United Kingdom are being derided as “enemies<\/a>.” \u00a0In this environment, the need for protecting judges at international courts is all the more essential.<\/p>\n

Also, think of the perception that Judge Akay\u2019s 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.\u00a0 This strikes at the heart of a court\u2019s integrity, impugning its image and denuding it of its authority, its credibility, its raison d\u2019\u00eatre.<\/p>\n

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\u2019s fellow international judges.<\/p>\n

The Secretary-General of the UN, through the UN Office of Legal Affairs, has formally asserted to the Turkish government \u2013 and thus to President Erdogan \u2013 Judge Akay\u2019s 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.(( 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:<\/p>\n

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.(( ICJ Advisory Opinion on Difference Relating to Immunity from Legal Process, para. 61.))<\/p>\n

\"\"<\/a>Considering that the Turkish government (President Erdogan) is unmoved by the Secretary-General\u2019s assertion of Judge Akay\u2019s diplomatic immunity, it is high time for the UN Security Council to weigh in.\u00a0 Judge Theodor Meron, the Pre-Review Judge of the MICT, has demonstrated his commitment in opting for judicial independence over judicial expediency<\/a>.\u00a0\u00a0 \u00a0He 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.<\/p>\n

As for the international judges, it is also high time to come to Judge Akay\u2019s 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.\u00a0 At a minimum they can galvanize their collective voice through a petition to the UN Security Council.\u00a0 International judicial independence is at risk. \u00a0Silence is not an option.\u00a0 In the words of Roberto Bola\u00f1o:<\/em><\/p>\n

One has a moral obligation to take responsibility for one\u2019s actions, and that includes one\u2019s words and silences, yes, one\u2019s 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\u2019s silences.(( Roberto Bola\u00f1o, By Night in Chile 1 (Random House, 2009). ))<\/p><\/blockquote><\/p>\n

\u00a0\"\"<\/a><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 No formal charges have been brought against him, though it is reported … Continue reading “Judicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay”<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_s2mail":"yes","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[21,25],"tags":[7,26],"class_list":["post-1980","post","type-post","status-publish","format-standard","hentry","category-international-criminal-law","category-mict","tag-international-criminal-law","tag-mict"],"yoast_head":"\nJudicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay - michaelgkarnavas.net\/Blog<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/michaelgkarnavas.net\/blog\/2017\/02\/13\/judicial-independence-at-risk\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Judicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay - michaelgkarnavas.net\/Blog\" \/>\n<meta property=\"og:description\" content=\"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.\u00a0 No formal charges have been brought against him, though it is reported … Continue reading "Judicial independence at international courts is at risk: why the UN Security Council must intervene in the release of MICT Judge Aydin Sefa Akay"\" \/>\n<meta property=\"og:url\" content=\"https:\/\/michaelgkarnavas.net\/blog\/2017\/02\/13\/judicial-independence-at-risk\/\" \/>\n<meta property=\"og:site_name\" content=\"michaelgkarnavas.net\/Blog\" \/>\n<meta property=\"article:published_time\" content=\"2017-02-13T01:02:07+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2017-02-20T15:23:16+00:00\" \/>\n<meta property=\"og:image\" content=\"http:\/\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2017\/02\/Jail.jpg\" \/>\n<meta name=\"author\" content=\"Michael G. 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