Non re-appointment of Judge Akay – Is International Judicial Independence under threat?

The challenges to independence of international judiciary has again come to the fore-front with the non-reinstatement of Judge Aydin Akay Sefa for a new term by the UN to the United Nations Mechanism for International Criminal Tribunals (“UNMICT”).

Post-coup d’état in Turkey (2016), Judge Akay was arrested by the Turkish government and later convicted for his alleged connections to the Gulenist movement which was held responsible for the coup. This happened while Judge Akay still presided over the UNMICT Appeals Chamber. The UN Office of Legal affairs asserted that Judge Akay enjoyed diplomatic immunity. Judge Akay was convicted and sentenced to seven years imprisonment. While the appeal to this judgment was pending, Judge Akay was not re-appointed for a fresh term at the UNMICT. The incident sparked a fresh discourse on diplomatic immunity available to the judges of international tribunals. Judge Theodore Meron ordered[DD1] [r2]  the Turkish government to “cease all proceedings against Judge Akay” and to release him from detention [DD3] [r4] . Despite the order, the Turkish ministry maintained that Judge Akay did not possess diplomatic immunity.

This post aims to analyze diplomatic immunity of judges of international tribunals and its connection to judicial impartiality in light of Judge Akay’s conviction and subsequent non-reappointment.

Diplomatic immunity has emerged as customary international norm ever since the adoption of the Vienna Convention on Diplomatic Relations (“VCDR”). VCDR grants immunity from arrest detention and from criminal jurisdiction to diplomatic agents. The Convention of Privileges and Immunities of the United Nations (“The New York  Convention”) elucidates the importance of these immunities as a tool to safeguard the members to perform their functions independently.

While interpreting the New York Convention, the ICJ in the Mazilu case held that a UN official protected under the convention is accorded immunity from his State of nationality and/or State of residence on account of him being an international official. The ICJ in the case of Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights clarified the status of UN officials in the New York Convention and held that in cases where immunity of  a UN agent is brought before the domestic Court, the UN Secretary-General must notify the State of the existence of diplomatic immunity and this will be given  utmost preference unless there exists compelling reasons to defy it

Further, Judge Meron in the hearing of  Ngirabatware case clarified that if a judge is replaced on the basis of a State’s political action, the judges will become cautious while delivering judgements adversely affecting the independence of  judiciary.

Article 19 of the UNMICT asserts that an independent and impartial judiciary is indispensable for the right to fair trial. This is reflected even in other human rights instruments. It is also specifically recognized in other regional texts, such as  the Resolution on the Respect and Strengthening of the Independence of the Judiciary, and the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region.

The UNMICT Statue incorporates the New York Convention. The Convention accords privileges to three categories of officials: UN officials, experts on missions for the UN, and member States representatives. These officers are granted functional immunity i.e., the actions of the judges in their official capacity are accorded immunity. Judges of the UNMICT are accorded the status of UN officials. Under the UNMICT statute, any judge “engaged in the business of the tribunal” enjoys the same immunities as a diplomatic envoy under international law. This principle mirrors section 19 of the UN Convention as well.

For interpreting “diplomatic envoy”, reference ought to be made to the VCDR. Article 31 of VCDR states that a diplomatic agent “shall enjoy immunity from the criminal jurisdiction of the receiving State”. Thus, article 31 provides for “personal immunity” to diplomatic envoys and thus, by reference, the judges of the UNMICT ought to be accorded personal immunity during their tenure.

The judges of the UNMICT should be accorded both functional and personal immunity. Moreover, Turkey acceded to the UN Convention without making any reservations regarding the personal immunity guaranteed under the Convention. Additionally, Turkey was a member of the Security Council (“SC”), when the UNMICT statute was adopted and voted in favor of the adoption. The SC resolution also mandated that all States fully co-operate with UNMICT and its Statute.

Moreover, implementation of independence of judiciary is arduous in a global forum. It has often been argued that the success of international judiciary will always be doubtful due to the lack of a unified global government, to enforce the mandates of the court. To elucidate, Judge Akay had diplomatic immunity and the UNSC notified Turkey of his immunity and sought his release. Judge Meron also ordered Turkey to release Judge Akay. However, Turkey did not follow the directive order and subsequently convicted him.

The only redressal that UNMICT and the UNSC can resort to is to issue public declarations and to urge the international community to put pressure on Turkey to comply with the UNMICT mandate. This will lead to practical difficulties and a certain loss of legitimacy of international judicial institutions.

Another criticism that most international frameworks face is the influence of western hegemonies in the appointment and reappointment procedure of the judiciary. Diplomats who are political actors of a State, nominate and then vote in the election of these judges. This gives the appointment and reappointment of judges a political tinge. As per the UNMICT statute, reappointment is done by the Secretary-General in consultation with the SC and the General Assembly. Judge Akay was not reappointed and the Secretary General did not offer any reasons for the non-reappointment showcasing the lack of transparency in the proceedings.

To establish judicial independence in the international realm, steps need to be taken to reduce extraneous State political influences. One solution is to have a collegium of international judges that includes presidents and vice presidents of all international tribunals. They should be accorded equal voting rights while electing judges of a particular tribunal and the vote should be on the basis of the nominations made by member States. Further, the reappointment is done solely by the collegium, irrespective of the member States’ political agendas. This will reduce political influence in the election process.

However, the nationalities of judges in the international tribunals can often overlap, possibly excluding certain member States in the collegium. In such a scenario, the modalities of the proposed model can be refined to include the Minimum Voting Requirement (“MVR”) which was devised to ensure adequate representation. MVR was most recently used for the election of judges at the ICC where the States have to mandatorily vote for a stipulated number of candidates of a particular gender or region.

Independence bestows on the judge the freedom to decide a case fairly and impartially––[j]Judges must not only do justice but must also let it be seen that justice is being done”. The threat to judicial independence can only be tackled by bringing policy changes in the appointment proceedings of judges in the tribunals.


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