The Immunity of Judge Akay in Turkey: A Test Case for International Judges' Immunity and Independence

This Insight analyzes the immunity of Judge Aydin Sefa Akay, a Turkish citizen and a former judge of the United Nations International Criminal Tribunal for Rwanda, who was a judge at the United Nations Mechanism for International Criminal Tribunals (Mechanism) since July 25, 2016, assigned to the case of Prosecutor v. Ngirabatware, until June 2018.[1] The Mechanism was created to perform residual functions of the now terminated International Criminal Tribunals for Rwanda and the former Yugoslavia.

Background

A few months after the attempted coup d'état in Turkey in July 2016, Judge Akay was arrested by the Turkish authorities for his alleged links to the Gülenist network blamed for the coup.[2]

The United Nations Office of Legal Affairs (OLA) has formally asserted, on behalf of the Secretary-General, that Judge Akay "enjoys diplomatic immunity," based on the Mechanism's Statute and the Convention of Privileges and Immunities of the United Nations of February 13, 1946 (UN Immunities Convention), and has requested his release.[3] At the same time, Counsel for Augustin Ngirabatware, a defendant before the Mechanism, has asked the Mechanism to order the government of Turkey to cease its prosecution of Judge Akay so that he may resume his judicial functions. The government of Turkey failed to respond. Consequently, on January 31, 2017, Judge Theodor Meron, sitting as a pre-review judge in the case,ordered the government of Turkey to cease all legal proceedings against Judge Akay and to ensure his release from detention, so that he can resume his judicial functions in this case.[4]

Nevertheless, the day after the Order was issued, the Turkish Minister of Justice, Bekir Bozdağ, gave a televised interview in which he claimed that Judge Akay did not have diplomatic immunity and stated that he would not be released.[5]

Judge Akay was later found guilty, sentenced to a term of seven years and six months' imprisonment, but was provisionally released, pending his appeal. While prohibited from leaving Turkey, Judge Akayresumed his duties as a judge in the case ofNgirabatware.[6] On June 29, 2018, while the case was still pending, the UN Secretary-General did not reappoint Judge Akay to the Mechanism.  This Insightanalyzes the immunity of the Mechanism's judges.

Functional Immunity of Judges

The Mechanism's Statute, incorporates by reference the UN Immunities Convention with respect to the Mechanism's judges.[7]

The UN Immunities Convention contains privileges and immunities for three categories of persons essential for the work of the UN: (i) representatives of Member States; (ii) UN officials; and (iii) experts on missions for the UN. The Mechanism's judges are considered to fall in the second category—UN officials (other than Secretariat officials).[8]

According to Section 18(a) of the Convention, UN officials are immune from legal process "in respect of words spoken or written and all acts performed by them in their official capacity." This immunity is commonly known as "functional immunity" as it is attached to official acts rather than to the person executing them. It is limited to actions executed in an official capacity and it does not cover actions unrelated to the specified function or those that are committed in a private capacity. Thus, this type of immunity continues to apply after the person ceases to be a UN official. 

Personal Immunity of Judges

Article 29(2) of the Mechanism's Statute states that the president "shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law" and that other judges of the Mechanism "shall enjoy the same privileges and immunities, exemptions and facilities when engaged on the business of the Mechanism."

The first part of Article 29(2) is a replication of the language in Section 19 of the UN Immunities Convention, whereby the Secretary-General and all Assistant Secretaries-General shall be accorded "the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law." A commentary to the UN Immunities Convention clarifies that UN senior officials enjoying diplomatic immunities under Section 19 do not necessarily perform functions for the UN on a full-time basis but may rather be engaged on a "when actually employed" contract and may perform other work outside the UN. It also states, by the same token, that the Mechanism's judges are "officials other than Secretariat officials," who enjoy the diplomatic privileges and immunities of Section 19.[9]

The next step requires delineating the scope of the immunity of these "diplomatic envoys" "in accordance with international law." Article 31 of the Vienna Convention on Diplomatic Relations codifying customary international law states that a diplomatic agent "shall enjoy immunity from the criminal jurisdiction of the receiving State."[10] This is known as "personal immunity" as it is attached to the official rather than to the act. This immunity from criminal proceedings is absolute, not dependent on the nature of the action in question, and exists as long as the person is in office. Personal immunity guarantees that nothing will disturb or interfere with diplomats (or UN senior officials) in discharging their duties.

Some adjustments are required when applying the law in the Vienna Convention to UN officials. For example, the term "sending State" is inapposite when dealing with UN officials—since they are sent by the UN. As for the term "receiving State," Article 38(1) of the Vienna Convention provides that unless the "receiving State" grants additional immunities, a diplomatic agent who is a national of, or permanently resident in, that state does not enjoy personal immunity, but only functional immunity. The question is, therefore, whether the principle in Article 38(1) of the Vienna Convention can or should be transposed in Section 19 of the UN Immunities Convention, or whether the limits of Article 38(1) should be ignored when interpreting the immunities of Section 19 "in accordance with international law." 

The OLA consistently takes the position that UN senior officials are not excluded from the scope of Section 19 of the UN Immunities Convention in their state of nationality. However, a study on privileges and immunities for the Preparatory Commission of the UN in 1945 interpreted Article 105 of the Charter to mean generally that "no official can have, in the country of which he is a national, immunity from being sued in respect of his non-official acts and from criminal prosecution."[11] The legal basis for this statement is not clear and the position seems to have been abandoned since then. More recently, a 1985 study by the Secretariat revealed that "[a] number of States [e.g.,the United States] have taken the position that international law as codified in the 1961 Vienna Convention on Diplomatic Relations does not [oblige them, under Section 19 of the UN Immunities Convention, to accord such privileges and immunities to their own nationals residing in their own countries], whereas the United Nations and the specialized agencies have taken the position that section 19 of the [UN Immunities Convention] allows of no discrimination based on nationality."[12]

Waiving immunity 

The Secretary-General has the right and the duty to waive the immunity of any official in any case where, in his or her opinion, the immunity (whether functional or personal) would impede the course of justice and can be waived without prejudice to the interests of the UN.[13] This is logical, considering that the immunities are granted to officials in the interests of the UN and not for the personal benefit of the individuals. The International Court of Justice (ICJ), in advising on whether a special rapporteur has (functional) immunity as an expert on mission for the UN, emphasized that the Secretary-General has a "pivotal role to play"[14] in determining whether the person enjoys immunity, adding that:

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 reasonsand is thus to be given the greatest weight by national courts.[15] (emphasis added)

While the ICJ left the door open for national courts to set aside the position of the Secretary-General regarding the existence of immunity "for the most compelling reasons," the advisory opinion only dealt with the functional immunity of experts on mission, rather than the personal immunity of UN senior officials. Be that as it may, an examination of the practice of the Secretary-General shows that in cases where the act performed by senior officials was not done in their capacity as officials of the UN, their immunity was waived.[16]

Judge Akay's Immunity

First, while he was a Mechanism judge assigned to a case, Judge Akay enjoyed both functional immunity and, while engaged on the business of the Mechanism, personal immunity. Considering that the OLA has asserted, on behalf of the Secretary-General, that Judge Akay enjoyed "diplomatic immunity," and considering the allegations made against Judge Akay in Turkey, it seems safe to say that functional immunity is not at issue.  

Second, with regard to Judge Akay's Turkish nationality, it is important to note that Turkey acceded to the UN Immunities Convention in 1950 and that while its instrument of accession contained several reservations regarding its own citizens, none were made with regard to the personal immunity accorded in Section 19 to UN senior officials.[17] If one follows the position of the UN, Judge Akay should have enjoyed personal immunity in Turkey while he was engaged on the business of the Mechanism. 

Moreover, the Mechanism was established by Security Council's Resolution 1966 (2010). In the resolution, acting under Chapter VII of the UN Charter, the Security Council adopted the Mechanism's Statute (including the above-mentioned Article 29) and decided that "all States shall cooperate fully with the Mechanism in accordance with the present resolution and the Statute of the Mechanism."[18] Incidentally, Turkey was a member of the Security Council when Resolution 1966 was adopted and voted in favour of its adoption.[19] It could be argued that, even if Turkey believes that it has no obligation under Section 19 of the UN Immunities Convention to grant UN senior officials personal immunity in cases where they have Turkish nationality, it is still bound by Resolution 1966 and that cooperation with the Mechanism requires recognition of Judge Akay's personal immunity while he was engaged in the business of the Mechanism. 

Third, according to Article 29(4) of the Mechanism's Statute, defence counsels enjoy certain immunities that are granted according to the UN Immunities Convention to "experts on mission," including personal immunity from arrest or detention. The ICJ has opined that this immunity may also be invoked against the state of nationality or residence of an expert on mission. Therefore, construing Article 29(2) of the Mechanism's Statute as not providing judges with personal immunity in their state of nationality would put them in an absurd disadvantage in comparison to the immunity granted to defence counsels.[20]

Final Remarks

The UN Immunities Convention offers two avenues for settling disputes between the UN and a state regarding a Mechanism's judge immunity.[21]   In the case of Judge Akay, since Judge Meron, as President of the Mechanism, reported Turkey's failure to comply with the Order to the Security Council,[22] the latter could have requested an advisory opinion to the ICJ on this matter. However, as far as Judge Akay's personal immunity is concerned, the potential violation of his immunity ceased when the UN Secretary-General decided not to reappoint him. A decision that was criticized by Judge Meron considering its "far-reaching consequences this decision will have for our institution and for international criminal justice more general."[23]

About the Author:Ady Niv worked for the Chambers at the Mechanism for International Criminal Tribunals and previously for the United Nations' International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda. The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Tribunal or the United Nations in general.