Published: 11 June 2020 Authors: Stefan Talmon and Sandra Werther
On 22 December 2010, the UN Security Council established the International Residual Mechanism for Criminal Tribunal (IRMCT) to perform the remaining functions of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) following the completion of those tribunals’ respective mandates. The IRMCT continues the jurisdiction, rights and obligations, and essential functions of the two Tribunals – including the trial of fugitives who are among the senior leaders suspected of being most responsible for crimes – after the closure of the Tribunals. It has two branches, one branch for the ICTY with its seat in The Hague and one branch for the ICTR with its seat in Arusha. The Mechanism has a roster of 25 independent judges who, as a rule, exercise their functions remotely, away from the seats of the branches of the Mechanism. The judges are elected by the UN General Assembly from a list submitted by the UN Security Council. Judges are elected for a term of four years and are eligible for reappointment by the Secretary-General after consultation with the Presidents of the Security Council and of the General Assembly.
On 20 December 2011, the General Assembly elected Mr. Christoph Flügge, a candidate nominated by Germany, as judge of the IRMCT for a term of four years, with effect from 1 July 2012. Mr. Flügge had previously served as a judge of the ICTY since 18 November 2008. Mr. Flügge was reappointed by the Secretary-General for two further two-year terms from 1 July 2016 until 30 June 2018 and from 1 July 2018 to 30 June 2020. Judge Flügge, however, did not serve his full term of office. On 29 January 2019, the Secretary General reported to the President of the Security Council:
“One of the judges of the Mechanism, Judge Christoph Flügge (Germany), has resigned, with effect from 7 January 2019, owing to personal reasons.”
Judge Flügge explained the reasons for his resignation in an interview with the German weekly Die Zeit, published on 23 January 2019, under the heading “I am deeply worried”. Besides personal reasons, he mentioned his concern for judicial independence and the lack of respect for international criminal justice as reasons that influenced his decision to resign. He said:
“There is one incident that deeply worries me: the violation of judicial independence with the aid of the United Nations. One of my experienced fellow judges, Turk Aydin Sefa Akay, was dismissed just because the Turkish Government wanted him out of the way.
Turkey claimed that the judge was a member of the Gülen movement, which the government in Ankara holds responsible for the attempted coup against President Erdoğan. Judge Akay was arrested in Turkey and accused of membership of a terrorist organization. An app is said to have been found on his mobile phone, which allegedly was also used by Gülen activists. For that, he was held in pre-trial detention for more than a year, although as judge of a UN tribunal he enjoyed immunity. Later, he was sentenced at first instance to seven and a half years in prison, then released, but not allowed to leave the country. The judgment is not final. Last summer, when the United Nations had to decide on the extension of the term of office of all judges, Turkey vetoed Judge Akay. We, the other judges, protested immediately. But the UN Secretary-General did not extend his term of office. Thus, he is out.
I wrote to the head of the United Nations’ legal department but never got an answer. It is unbelievable that Turkey succeeded in having him thrown out based on such flimsy reasoning.
[…] In December [2018], when the vacancy was filled, the UN General Assembly elected the judge nominated by Turkey from a long list of candidates. Thus, Turkey was even rewarded for its political manoeuvre. Apparently, the diplomats at the United Nations who negotiate such things did not understand that they were dealing with an international court, not the Universal Postal Union. The diplomatic world obviously has no idea about the value of an independent judiciary. This is alarming.”
Judge Akay, a Turkish citizen, had been elected to the IRMCT on 20 December 2011 with the third highest number of votes. This election followed his distinguished prior service as a Judge of the ICTR and, earlier, as an Ambassador of Turkey. In June 2016, the UN Secretary-General reappointed him for a further two-year term, commencing on 1 July 2016. On 25 July 2016, the President of the Mechanism appointed Judge Akay to a bench of the IRMCT Appeals Chamber to address a motion for review of judgment and associated applications advanced by Mr. Augustin Ngirabatware. As is common for judges of the IRMCT, Judge Akay carried out his judicial work remotely, working on the case in his home country. Without prior notification to the United Nations or the IRMCT, on or around 21 September 2016, Judge Akay was detained in Turkey in relation to allegations connected to the attempted coup d’état in Turkey in July 2016. As a result of Judge Akay’s detention, the proceedings in the case of Prosecutor v. Augustin Ngirabatware necessarily came to a standstill, with corresponding implications for the fundamental rights of the applicant to the determination of his claims within a reasonable time.
Notwithstanding a formal assertion of his diplomatic immunity by the United Nations Legal Counsel in October 2016 and a judicial order issued by the IRMCT in January 2017 to cease all legal proceedings and to release him, Judge Akay was convicted and sentenced by a court in Ankara on 14 June 2017 to seven years and six months in prison for “membership in an armed terror group”. Immediately after the sentence was passed, Judge Akay was provisionally released under judicial supervision pending his appeal. Following his provisional release from detention, Judge Akay resumed his judicial functions.
According to Article 29(2) of the IRMCT Statute, the judges of the Mechanism shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law, when engaged on the business of the Mechanism. Judges are engaged on the business of the Mechanism when they are conducting judicial business or administrative functions. At the time of his arrest, Judge Akay was working on the case of Prosecutor v. Augustin Ngirabatware and therefore actively engaged on the business of the IRMCT. Under international law, diplomatic envoys are inviolable; that is, they are not liable to any form of arrest or detention. They also enjoy immunity from the criminal jurisdiction of the receiving State. Article 29(2) of the IRMCT referred to the content of the privileges and immunities of diplomatic envoys. There was no reference to any restrictions on such privileges and immunities as set out, for example, in Article 38(1) of the Vienna Convention on Diplomatic Relations which provides for restricted immunity of diplomatic envoys who are nationals of the receiving State. Such a restriction would have called into question the general rule of immunity considering the remote model of judging envisaged by the UN Security Council under Article 8(3) of the IRMCT Statute. When prescribing the rule on the privileges and immunities of judges the Security Council was fully aware that the judges would typically be carrying out their judicial work for the Mechanism in their State of nationality. At the time of his arrest, Judge Akay therefore enjoyed personal inviolability and should not have been arrested. The IRMCT Statute and its immunity provisions were binding upon Turkey. In its resolution 1966 (2010), the Security Council, acting under Chapter VII of the Charter, had adopted the Statute and decided that “all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute of the Mechanism”. In addition, Article 28(2) of the IRMCT Statute expressly provided that “States shall comply without undue delay with any […] order issued by a Single Judge or Trial Chamber” in relation to one of the Mechanism’s cases. By rejecting the United Nations’ claim to diplomatic immunity, and by not complying with the order of the President of the IRMCT to release Judge Akay from detention, Turkey violated its obligations under Security Council resolution 1966 (2010). The President of the IRMCT reported Turkey’s non-compliance with its obligations under Article 28 of the IRMCT Statute to the UN Security Council on 9 March 2017, but no formal action was taken on the part of the Security Council.
The situation was further exacerbated by Turkey preventing the reappointment of Judge Akay. When the term of office of the judges on the IRMCT came up for renewal in June 2017, he was the only one who was not reappointed by the Secretary-General in accordance with Article 10(3) of the IRMCT Statute. The Secretary-General explained his decision as follows:
“The Government of Turkey has informed the Secretariat that Judge Aydin Sefa Akay is no longer eligible to be a judge in Turkey and does not possess the qualifications for appointment to the highest judicial office in Turkey under the applicable law. The Government has provided supporting material in this regard. In the light of the information furnished by the Government and a review of the relevant material, it is considered that Judge Akay does not currently meet the qualification requirements for judges of the Mechanism under article 9, paragraph 1, of the statute and, consequently, cannot be considered for reappointment.”
Article 9(1) of the IRMCT Statute requires judges to be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices.” By certifying that Judge Akay no longer possessed the qualifications for appointment to the highest judicial office in Turkey, the Turkish Government was in effect able to remove Judge Akay from the reappointment process. Unlike in case of the resignation of a judge, Turkey was not allowed to nominate another candidate for reappointment by the Secretary-General but had to submit a new candidate for election by the UN General Assembly. On 21 December 2018, Judge Yusuf Aksar (Turkey) was elected by the General Assembly to the judicial roster of the IRMCT with the highest number of votes of all four candidates.
Judge Flügge considered this case to be “outrageous”. Asked whether he was overreacting – one case going against his grain and he was resigning – he replied:
“Each case that violates judicial independence is one too many. Now there is this case, and everyone can refer to it in the future. Everyone can say: You also allowed Turkey to assert itself. This is a fall from grace. It is beyond repair.”
For Judge Flügge, the case of Judge Akay weakened the international criminal courts. But this was not the only incident undermining the respect for international criminal justice. Judge Flügge also criticised the United States’ attitude towards the International Criminal Court. He stated:
“John Bolton, the national security adviser of the U.S. President, gave a speech last September in which he wished that the International Criminal Court would die. If these judges were ever to interfere in U.S. affairs or investigate U.S. citizens, the U.S. Government would do everything to prevent these judges from entering the United States – and prosecute them, if necessary. The statement of the U.S. national security adviser was made against the background of preliminary investigations against U.S. soldiers being planned in the Hague. They were accused of torturing people in Afghanistan. The U.S. threat against international judges clearly characterises the changed political climate. This is unbelievable. I had never heard such a threat before.”
Judge Flügge was referring to a major announcement on U.S. policy toward the International Criminal Court (ICC) by national security adviser John Bolton at the Federalist Society on 10 September 2018. In the speech, John Bolton had stated, inter alia:
“In November of 2017, the ICC prosecutor requested authorisation to investigate alleged war crimes committed by U.S. service members and intelligence professionals during the war in Afghanistan – an investigation neither Afghanistan nor any other state party to the Rome Statute requested. Any day now, the ICC may announce the start of a formal investigation against these American patriots, who voluntarily went into harm’s way to protect our nation, our homes, and our families in the wake of the 9/11 attacks.
The ICC prosecutor has requested to investigate these Americans for alleged detainee abuse, and perhaps more – an utterly unfounded, unjustifiable investigation.
Today, on the eve of September 11th, I want to deliver a clear and unambiguous message on behalf of the president of the United States. The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.
We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC.
We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us. […].
If the court comes after us, Israel or other US allies, we will not sit quietly. We will take the following steps, among others, in accordance with the American Servicemembers’ Protection Act and our other legal authorities: […]
– We will respond against the ICC and its personnel to the extent permitted by US law. We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the US financial system, and we will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans. […].”
The United States has a long history of opposition to the ICC. While initially supportive of the idea of an independent international criminal court, on 6 May 2002 the U.S. Government informed the UN Secretary-General, as depository of the treaty, that the United States did not intend to become a party to the Rome Statute of the ICC. The United States considered the ICC Statute “flawed” and objected to the Court “both in principle and philosophy”. Under the presidency of Donald Trump U.S. opposition has turned into outright hostility to the Court.
Judge Flügge also criticised States for not cooperating with the ICC. Referring to the case of Sudanese President Omar Al Bashir, he stated:
“At least 200 times, Al Bashir visited Sates that could have arrested him but failed to do so. This is evidence of the erosion of the law.”
The ICC had issued two warrants for the arrest of Omar Al Bashir for genocide, crimes against humanity and war crimes in the Darfur region of Sudan. On 31 March 2005, the UN Security Council, acting under Chapter VII of the Charter, decided to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the ICC and urged all States “to cooperate fully” with the Court. In addition, the parties to the Rome Statue of the ICC are under a treaty obligation to cooperate fully with the Court and to comply with requests for arrest and surrender of persons for whom a warrant of arrest has been issued by the Court. Al Bashir, nevertheless, was able to travel freely to numerous States without being arrested and surrendered to the ICC. It was not only non-parties to the ICC Statute like China, Saudi Arabia and Ethiopia that failed to arrest him. States Parties to the Statute like South Africa, Uganda and Jordan also did not meet their obligation to comply with ICC’s orders.
These three incidents deeply worried Judge Flügge and ultimately motivated his decision to resign from the IRMCT. These incidents should be a wake-up call for States such as Germany which are strong supporters of international criminal justice. When on 13 March 2019 Federal Foreign Minister Maas awarded the Commander’s Cross of the Order of Merit of the Federal Republic of Germany to Judge Flügge for his services to international criminal justice, he said:
“Your long-standing commitment to the rule of law has earned you worldwide respect. […] And even now, after retiring, you have told us loud and clear how vulnerable the criminal courts still are. How important it remains to protect them from political influence and to lend them continued support.”
So, it seems the call has been heard, but it must also be acted upon.
Category: International criminal law
