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Functional Immunity for Defence Counsel

On 6 October 2010 the ICTR Appeals Chamber  released its decision on the request of Aloys Ntabakuze regarding the arrest of his lead counsel, Peter Erlinder. Erlinder was arrested on 28 May 2010 in Kigali, Rwanda, on charges of ‘genocide denial’. At the time of arrest Erlinder was in Rwanda on reasons unrelated to his work as Counsel at the ICTR.

On the 15th of June the Registrar, having been advised by the UN Legal Affairs Office, sent a note verbale to the Rwandan Ministry of Foreign Affairs and Cooperation, asserting that Erlinder benefited from immunity and requesting his immediate release. The copy of the charges against Erlinder requested by the Registrar on 9 June 2010 on the instruction of the Appeals Chamber never reached the ICTR; on 15 July the Registrar submitted that he had been advised by the Rwandan government that there had been no formal charges against Erlinder, who was detained as a suspect pending the completion of investigations, and subsequently released on bail on health grounds.

Ntabakuze requested that the Appeals Chamber order the Registrar to take immediate action to secure Erlinder’s release and to stop all proceedings against him. In his view, the charges constituted ‘intimidation and serious interference with a legal process’ directly impacting his right to a fair and expeditious trial. The OTP submitted among others that Ntabakuze’s motion had to be dismissed entirely because ‘the right to a fair and expeditious trial was not impeded at present since all submissions on appeal had been filed and there was no date re the appeal hearing’.

Having first noted that it ‘will not lightly intervene in the domestic jurisdiction of a state’, the Chamber went on to say that ‘as the Chamber seized of Ntabakuze’s appeal, however, it has the duty to ensure the fairness of the proceedings in this case’ (par. 18). Accordingly, the Chamber decided to only consider whether Rwanda’s exercise of its domestic jurisdiction in Erlinder’s case threatened the fairness of the proceedings in the Ntabakuze case.

The Appeals Chamber noted pointedly that, ‘The 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’ (par. 19). In interpreting the immunities under the Memorandum of Understanding between the Tribunal and the government of Rwanda the Chamber stated that, ‘the right of equality of arms would be meaningless as the Defence would have no guarantee of access to potential witnesses and evidence to allow them to prepare their case’ (par. 22). Applying the reasoning of the International Court of Justice in the Mazilu case the Appeals Chamber concluded that Defence Counsel are to be considered experts on mission within the meaning of Section 22 of the UN Convention on Privileges and Immunities. According to the Chamber ‘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’ (par. 23).

The Appeals Chamber found that Defence Counsel benefit from immunity from personal arrest or detention while performing their duties assigned by the Tribunal and also with respect to words spoken or written and acts done by them in the course of the performance of their duties as Defence counsel before the Tribunal (par. 26).

Although the vast majority of the material submitted by Rwanda as forming the basis for the investigation of Erlinder consisted of articles written in Erlinder’s private or academic capacity, in respect of which, therefore, Erlinder does not benefit from immunity from legal process (par. 28); there was one document – a Hirondelle News article – reporting on the closing arguments Erlinder made on behalf of Ntabakuze in the Bagosora et al case (par. 29). The Appeals Chamber found that proceeding against Erlinder on the basis of submissions he made in the course of Ntabakuze’s closing arguments before the Tribunal violated his functional immunity and interfered with the proper functioning of the Tribunal (par. 29).

Having recalled Rwanda’s intention to respect Erlinder’s functional immunity and emphasized the need for that (par 30), the Appeals Chamber requested 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 (par. 31).

Eventually, this decision should ensure that no such cases will arise in the future. Obviously, functional immunity would continue even after the Tribunal closes its doors!

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