On October 6, 2010, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) issued a decision concerning the extent of immunity afforded to ICTR defense counsel. Previously, on May 28, 2010, Rwandan authorities arrested defense counsel Peter Erlinder for allegedly violating Rwanda’s genocide denial laws. Erlinder represents defendant Aloys Ntabakuze in the Bagosora et al case currently before the ICTR. Members of the international community protested Erlinder’s arrest, and other ICTR defense lawyers threatened to boycott proceedings before the tribunal. On June 3, 2010, Ntabakuze filed a motion requesting that the Appeals Chamber of the ICTR order the Rwandan government to immediately release Erlinder and stop all proceedings against him. On June 15, 2010, in accordance with advice from the UN Office of Legal Affairs, the ICTR requested the Rwandan government to “formally assert immunity” for Erlinder, and to release him immediately, on the basis of the Convention on the Privileges and Immunities of the UN (CPIUN), to which Rwanda is a party. The High Court of Rwanda released Erlinder for health reasons on June 17, 2010, but ordered that investigations into his case continue.
In its October 6 decision, the Appeals Chamber denied Erlinder full immunity from liability under Rwandan law, thereby permitting the Prosecutor General of Rwanda to continue its investigation. Although the Appeals Chamber’s decision limiting the immunity provided to defense counsel is in accordance with the provisions of the CPIUN and the practices of other international courts, in practice, the decision raises many challenges, particularly concerning possible infringements on the rights of the accused.
Section 22(b) of the CPIUN accords experts performing missions for the UN, including ICTR defense counsel, immunity from legal process “in respect of words spoken or written and acts done by them in the course of the performance of their mission . . . [which] shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations.” ICTR defense attorney Kate Gibson suggests the latter part of the clause can, and perhaps should be interpreted as granting blanket immunity from legal process to ICTR defense counsel in any country that is a signatory to the CPIUN. This broad interpretation is undesirable because of policy considerations, such as the possible exploitation of the limitless protection under blanket immunity. Additionally, the purpose of granting counsel immunity is not to eliminate accountability for possible violations of national laws; rather, its purpose is to ensure the smooth operation of the tribunal. As Section 20 of the CPIUN states, “immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves.”
Because it would not be tailored to serve the purposes of the UN mission, granting full immunity to defense counsel is not appropriate. However, restricting immunity raises challenges as well. In their Statement and Appeal to Rwanda, ICTR defense attorneys noted that Erlinder’s detention and prosecution “seriously compromises [their] missions by undermining [their] independence and by preventing the carrying out of [their] duties” at the ICTR. The Bagasora et al case is currently awaiting a hearing on appeal, for which all documents have been filed, but no date has yet been assigned. Therefore, Erlinder’s arrest did not prevent the other members of the defense team from carrying out their duties. However, in many other situations, the arrest of defense counsel would impede a defense team’s work on a case, especially at the pre-trial or trial stages. The defense counsel’s restricted ability to carry out his or her duties could infringe on the rights of the accused, as described in Articles 19 and 20 of the ICTR Statute, particularly the right to a fair and expeditious trial. Restricting defense counsels’ immunity from legal action could also be problematic if a state’s laws are not consistent with international norms. For instance, if an ICTR defense lawyer is arrested pursuant to a state’s domestic law that infringes on basic human rights, state sovereignty generally precludes the tribunal from compelling the state to release the lawyer.
The Appeals Chamber’s ruling reflects the general practice of international courts to limit defense counsel’s immunity from liability under national laws. Article 30 of the ICTY Statute is nearly identical to Article 29 of the ICTR Statute, both of which provide that immunities afforded to the judges, the Prosecutor, the Registrar, and related staff, of the tribunals are those included in the CPIUN. Additionally, Article 18(b) of the Agreement on the Privileges and Immunities of the International Criminal Court incorporates provisions that are nearly identical to those included in Article VI Section 22(b) of the CPIUN, as discussed above. The case of Erlinder’s arrest presented an international tribunal the first opportunity to clarify the boundaries of defense counsel immunity. Although the Appeals Chamber’s decision reflects conventional international law and practice, restricting the immunity of defense counsel, nevertheless, remains controversial.