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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Introducing Aparimita Pratap

It is our great pleasure to introduce our new IntLawGrrls contributor Aparimita Pratap!

Aparimita is a final year student at the West Bengal National University of Juridical Sciences Kolkata. Through her work with human rights activists and lawyers, she has developed a keen interest in human rights law and policy. She also closely follows and has conducted research on issues relating to international criminal law, public international law, refugee law, migration law and humanitarian law. She has previously worked with Centre of Policy Research where she got insight into issues faced by indigenous tribes with respect to their land, and at chambers of Jawahar Raja where she worked extensively on queer issues, sexual harassment, domestic violence, trafficking and labour law. She has also previously written on issues on the overlap of human trafficking and international criminal law. Through moot courts, research projects and everyday reading, Aparimita has nurtured an avid interest in rights-based approaches to law and legal theory.  

Heartfelt welcome!

Introducing Varsha Maria Koshy

It is our great pleasure to introduce our new IntLawGrrls contributor Varsha Maria Koshy!

Varsha is a final year student at the West Bengal National University of Juridical Sciences, Kolkata. She takes keen interest on various aspects of international criminal and humanitarian law and has written on various issues on the same.  She has previously interned with the Human Rights Commission and the Centre of Policy research which broadened her exposure on various socio-legal issues.

Heartfelt welcome!

Go On! Blasphemy Law Conference

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Go On! makes note of interesting conferences, lectures, and similar events.

The Benjamin N. Cardozo School of Law presents the “Claiming Truth: Heresy and Blasphemy in Religion, Law and Literature Colloquium“.

Today, dozens of states across the globe still have anti-blasphemy laws on the books, and a good number continue to enforce those laws. Please join the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR) to further explore the motivations behind these laws, their consequences, and the challenges faced by those working to abolish them. The colloquium will convene three expert panels to further discuss these issues, and will feature a keynote address by Professor Deborah Lipstadt. Click here to register and for more details.

Write On! Tripathi Foundation Conference

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This installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers to the Prof. H. N. Tripathi Foundation as follows:

► The Prof. H. N. Tripathi Foundation is holding a conference on “Emerging Trends in Environmental Law & Policy in India” in Varanasi, India on March 30, 2019. It is accepting papers on a range of environmental law topics. Abstracts must be submitted by March 10, 2019 to hntripathi17@gmail.com. 

For more details, click here.

Can we technologize the fight against sexual violence?

This post asks some critical questions about how the struggle against sexual violence in conflict links up with a major trend in humanitarian aid: namely, the turn towards technology and innovation as a strategy to improve the humanitarian sector and to more effectively address humanitarian issues.

What are the potential challenges that might arise with respect to the use of technology for combating sexual violence?  

While I urge cautious optimism with respect to the potential role and relevance of technology to deal with sexual violence as a major human rights issue, there are significant caveats. The use of technology should not be seen as an end in itself. Despite good intentions, technology does not always work as intended. Inadequate problem definitions mean that technological solutions may fail to respond to the real-life problems they have been deployed to deal with. One common reason for faulty problem definitions is that affected populations are often absent from innovation processes: they are not properly consulted or invited to participate in any meaningful way.  The international community must be alert to serious ethical and legal issues that might arise from technological innovations within the aid sector: technology can produce new digital harms, whether through introducing risks, (in)visibilizing the suffering of certain groups, or generating undesirable consequences.

 It has been noted that certain ‘buzzword’ issues in the aid sector – such as sexual violence in war, or innovation – go from being unrecognized, ignored or forgotten to become an industry that appropriates funding at the expense of attention and resources to other humanitarian needs and problems, including addressing root causes. For example, there has been concern that sexual violence ‘crowds out’ alternative framings with respect to women’s insecurity or that criminalization of sexual violence provides overly simplistic messages. 

 The technology optimism and sometimes utopianism permeating the aid sector is articulated in the routine proclamations of digital humanitarian goods as ‘game changers’ or ‘revolutions in humanitarian affairs’. The use of cell-phones, social media platforms, satellites, drones, 3D printers, digital cash and biometric technology has changed how things are done, the speed and cost of doing things, as well as where things can be done from and by whom.  The advantage of these technologies is that they generate massive amounts of data in a field traditionally afflicted by a lack of timely and accurate information. However, this is also where challenges arise: Digitization – the collection, conversion, storage, and sharing of data, and the use of digital technologies to collect and manage information about beneficiaries – increasingly shapes understandings of needs and responses to human suffering, such as sexual violence.

Critics have noted that technology and innovation are presented as the solutions to complex structural problems – and the framing of humanitarian problems accordingly shifts to problematizations being amenable to technological innovation and intervention. At the same time, the optics of being seen to engage in humanitarian activities has acquired its own commercial logic by creating a marketable moral economy of good intentions, which means that for-profit motifs play an increasingly important role in the identification, visiblization and mitigation of human suffering.

Each of these developments warrants careful critical scrutiny – the merger of the two agendas even more so.  

I suggest that in particular, the kind of gendered digital bodies that arises when the struggle against sexual violence is technologized needs attention: Discussions around gender and technology deployments in emergencies have often focused on the gendered (frequently used in this context as a synonym for ‘women’) nature of digital shadows and digital illiteracy. In recent years, there has been an increasing focus on digital risk and digital harms. Importantly, the use of digital technologies creates corresponding ‘digital bodies’ – images, information, biometrics, and other data stored in digital space – that represent the physical bodies of populations affected by conflict and natural hazards, but over which these populations have little say or control. Understanding this double risk – for the physical gendered body as well as the digital gendered body, and the interplay between the two – is crucial for properly gauging the role and relevance of technology in grappling with sexual violence. The point is not that digital and physical bodies are ‘the same’, but that compromising or neglecting the security of digital bodies may be as consequential in compromising the security and well-being of physical bodies.   

To that end, we must continuously reassess our critical questions and strategies. Here are some of the issues we should think about:

  • How does historical and political context shape technology use, and how can the urgency of ending sexual violence legitimate intrusive technological interventions? What are the (acceptable) trade-offs?
  • What does it mean that the struggle against sexual violence is being increasingly quantified and remotely controlled – and based on criminal law sanctions? Do these approaches alone and in combination address the power differences that make sexual violence possible?
  •  How do we produce knowledge about sexual violence? What is the relationship between gender and algorithmic justice? Can technology reshape the application of international legal protection as it applies to gender crimes – and rights? 
  • What happens when sexual violence is reframed from a structural injustice problem to an innovation challenge? What are the risks of technological experimentation?

For more, see  Sandvik, Kristin Bergtora (2019) Technologizing the Fight against Sexual Violence: A Critical Scoping, PRIO Paper. Oslo: PRIO.

On the Job! Women Enabled International (temporary position)

On the Job! compiles interesting vacancy notices, as follows:

Women Enabled International (WEI) is now accepting applications for a U.N. Advocacy Consultant to provide parental leave coverage for WEI’s U.N. Advocacy Director from May 1, 2019 to mid-December 2019. This is a part-time, temporary consulting position for 20 to 30 hours per week. Duties include implementing legal advocacy strategies to strengthen international standards on the rights of women and girls with disabilities.

Applications will be reviewed on a rolling basis and should be received no later than by March 15, 2019. Click here for more details.