Immunities

Notion(s) Filing Case
Decision on Arrest of Counsel - 06.10.2010 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

18. The Appeals Chamber emphasizes that it will not lightly intervene in the domestic jurisdiction of a state. As the Chamber seized of Ntabakuze’s appeal, however, it has the duty to ensure the fairness of the proceedings in this case. To this end, it has competence under Article 28 of the Statute of the Tribunal (“Statute”) and Rules 54 and 107 of the Rules to issue any related order. Accordingly, the Appeals Chamber will only consider whether Rwanda’s exercise of its domestic jurisdiction in Erlinder’s case threatens the fairness of the proceedings in this case. […]

19. […] The Appeals Chamber considers that Defence Counsel fall within the category of persons required at the seat or meeting place of the Tribunal and as such must be accorded such treatment as is necessary for the proper functioning of the Tribunal. The proper functioning of the Tribunal requires that Defense 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, Defense Counsel cannot be reasonably expected to adequately represent their clients.

20. Additionally, 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 of 3 June 1999 (“Memorandum of Understanding”),[1] which governs the privileges and immunities of the Tribunal’s operations in Rwanda, should also be taken into account. Of particular relevance to the present situation, the Memorandum of Understanding provides that the government of Rwanda shall extend:

To other persons assigned to the Office whose names shall be communicated to the Government of Rwanda for that purpose, the privileges and immunities accorded to experts on mission for the United Nations, in accordance with Article VI of the Convention.[2]

With respect to whether Defense Counsel fall within the meaning of “other persons assigned to the Office”, the Appeals Chamber notes that while Defense Counsel are not employees of the Tribunal they are assigned or appointed by the Tribunal to their positions as Defense Counsel. Furthermore, the procedures associated with Defense Counsel going on mission to Rwanda indicate that the Tribunal considers Defense Counsel to be acting in official capacity and on assignment in association with the Tribunal. For instance, Defense Counsel may request logistical support from the Tribunal while performing their missions in Rwanda.

21. The Appeals Chamber further notes that the Memorandum of Understanding sets out the rights and facilities granted to the Tribunal by the Government of Rwanda on its territory. These rights and facilities include various access rights such as the “right to question victims and witnesses, to gather evidence and all useful information and to conduct investigations in the field”.[3] The Appeals Chamber considers that, as the rights of access to undertake investigations are fundamental to the preparation of the Defence case, in concluding the Memorandum of Understanding it was contemplated that it applied to Defence Counsel as well as officials of the Tribunal. Indeed, if the Memorandum of Understanding did not extend to Defence Counsel, 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.

22. In light of the procedural practice of the Tribunal as well as the purpose of the Memorandum of Understanding, the Appeals Chamber finds that Defence Counsel fall within the meaning of “other persons assigned to the Office” and therefore are to be accorded the privileges and immunities due to experts performing missions for the United Nations pursuant to Article VI of the Convention.[4]

23. This is further supported by the interpretation of the International Court of Justice as to who can be considered an expert according to Section 22 of the Convention:

The purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an official of the Organization, and to guarantee them ‘such privileges and immunities as are necessary for the independent exercise of their functions’. The experts thus appointed or elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission.[5]

Applying this reasoning to Defence Counsel on mission, the Appeals Chamber concludes that they are to be considered experts on mission within the meaning of the Convention. 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.

24. The Appeals Chamber also notes that the response of the Prosecutor General of Rwanda to the Registrar’s invocation of the Memorandum of Understanding as affording to persons carrying out functions on behalf of the Tribunal, such as Defence Counsel, the immunities provided for in Article VI of the Convention[6] reflects support for the application of the relevant provisions of the Memorandum of Understanding to Defence Counsel of the Tribunal operating in Rwanda: “[…] I wish to state on record, that [Erlinder’s] arrest is not at all related to his assignments at the ICTR and that we remain in full compliance with the provisions of the memorandum of understanding [g]overn[]ing our cooperation”.[7]

25. Article VI of the Convention provides that experts performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions. In particular, Section 22 of Article VI of the Convention, invoked in the Registrar’s note verbale of 15 June 2010,[8] provides that:

Experts (other than officials coming within the scope of Article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded:

(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; […]

26. Accordingly, 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, in order to allow for the proper functioning of the Tribunal in accordance with Article 29 of the Statute. […]

27. The Appeals Chamber recalls that, at the time of his arrest, Erlinder was not in Rwanda in his capacity as Ntabakuze’s Defence Counsel. He was therefore not immune from personal arrest or detention as provided for under Section 22(a) of Article VI of the Convention. Nonetheless, Erlinder benefits from immunity from legal process in respect of words spoken or written and acts done by him in the course of his representation of Ntabakuze before the Tribunal.

[…]

30.    The Appeals Chamber recalls Rwanda’s intention to respect Erlinder’s functional immunity,[9] and stresses the need to respect it. Ntabakuze’s right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal.

[1] United Nations Treaty Series vol. 2066, p. 5.

[2] Memorandum of Understanding, para. 2, referring to Convention on the Privileges and Immunities of the United Nations, adopted by General Assembly Resolution A/RES/22(I)A, 13 February 1946 (“Convention”).

[3] Memorandum of Understanding, para. 3(vi). Other rights provided for include the freedom of movement in Rwanda, right of access to prisons, the right to access all documents the consultation of which may be necessary for the smooth functioning of the Office, the right to make direct contact with national and local authorities, including the armed forces, individuals, intergovernmental and non-governmental organisations, private institutions and the media. Memorandum of Understanding, para. 3(ii)-(v), (vii).

[4] Convention on the Privileges and Immunities of the United Nations, adopted by General Assembly Resolution A/RES/22(I)A, 13 February 1946.

[5] Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, para. 47.

[6] Registrar’s Submissions of 11 June 2010 [Registrar’s Submissions Under Rule 33 (B) of the Rules of Procedure and Evidence in Respect of the Appeals Chamber Order to the Registrar Dated 9 June 2010, dated 10 June 2010, filed 11 June 2010], Annex 1: Note Verbale from the Registrar to the Minister of Foreign Affairs and Cooperation dated 31 May 2010 (“The ICTR attaches the utmost importance to the respect of the immunity which Defence Counsel assigned to cases before [the] ICTR enjoy, when they carry out the mandate vested on them by [the] ICTR. [… The] ICTR wishes to recall the 3 June 1999 Memorandum of Understanding (MOU) Between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to The Office in Rwanda of the International Criminal Tribunal for Rwanda. Pursuant to the said MOU, Rwanda will extend to persons carrying out functions on behalf of [the] ICTR, including experts on mission, the same privileges and immunities, as provided for in Articles VI and VII of the General UN Convention on the Privileges and Immunities to which the Republic of Rwanda is a party.”). See also Registrar’s Submissions of 15 June 2010 [Further Registrar’s Submissions Under Rule 33 (B) of the Rules of Procedure and Evidence in Respect of the Appeals Chamber Order to the Registrar Dated 9 June 2010, 15 June 2010], Annex: Note Verbale from the Registrar to the Minister of Foreign Affairs and Cooperation dated 15 June 2010.

[7] Registrar’s Submissions of 11 June 2010, Annex 2: Correspondence from Mr. Martin Ngoga, Prosecutor General of Rwanda, to the Registrar of the Tribunal dated 2 June 2010. See also Registrar’s Submissions of 15 July 2010, para. 9 (“The Rwandan Prosecutor General also stressed that Mr. Erlanger’s arrest was not based on his work before this Tribunal and clarified that he would respect any conflicting judicial finding of the ICTR. In this respect, he indicated to the President of the ICTR that he stands ready to remove any disclosed documents that might be deemed to be linked to the ICTR business.”).

[8] Registrar’s Submissions of 15 June 2010, Annex: Note Verbale from the Registrar to the Minister of Foreign Affairs and Cooperation dated 15 June 2010.

[9] Registrar’s Submissions of 15 July 2010, para. 9. 

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ICTR Statute Article 29 ICTY Statute Article 30 ICTR Rule Rule 54
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Other instruments Convention on the Privileges and Immunities of the United Nations. Memorandum of Understanding Between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to the Office of Rwanda of the ICTR of 3 June 1999.