Defence counsel immunity at the ICTR: there in theory but harmless in practice?

As you may recall, Peter Erlinder, a defense counsel at the ICTR, made the headlines a few months back (in June) for having been arrested in Rwanda, along with Kagame political opponent Victoire Ingabire, on charges of genocide denial under Rwandan law. The detention did not go well, to say the least, Erlinder having alledgedly tried to commit suicide, and he was released some time later, with charges still pending. At the time, this sparked some interesting debates on the nature of laws prohibiting denial of genocide, and the political use of the such laws in Rwanda (including on this blog).

One key legal question that remained to be answered was the existence and extent of any immunity afforded to Erlinder as a defence counsel, given that, at the time it wasn't entirely clear if the statements that were considered for the charges were made in the course of his work at the tribunal or not. Some weeks ago, on the 6th of October, the Appeals Chamber of the ICTR issued his decision on the immunity of Peter Erlinder, the defense counsel for one of the accused. I didn't have time back then to comment on it, but still wanted to say a few words.

As to the existence of an immunity:

26. [...] 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.

This decision is based on an interpretation on the MOU between Rwanda and the ICTR, and an application of the Convention on the Privileges and Immunitities of the United Nations. In light of the latter document, Defense Counsel are to be considered experts and

23. [...] 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. 

This recognition that Defense lawyers should benefit of some form of immunity is welcome, as it would be incompatible with principles that they not benefit from equivalent protection as the Prosecutor.

Where the decision is more problematic is on the extent of the immunity. Indeed, they adopt a narrow reading of the immunity. Basically, the Court finds that because Erlinder is being essentially charged with statements done as an academic or a commentator (except for one of them), and not done directly in the context of the representation of his clients, he was not covered by the immunity. There is some logic to the statement... but it is extremely short-sighted in light of the rationale behind the immunity in the first place. Indeed, The ICTR holds that

30. [...] 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.

But how can Erlinder adequately prepare for the defense of his client if he is in jail, whatever the charges? Or if he cannot set foot in Rwanda for fear of being arrested? This completely defeats the purpose of immunity.

This result is due to the in fact suprisingly unsophisticated discussion on the concept of functional immunity in the decision, especially by not taking into account the temporal dimension. On this point, one can refer to the ICJ Arrest warrant case, where it went into some detail on the scope of official immunities. It found, among other things, that (§61):

after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the iinmunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his oir her period of office, as well as in respect of acts committed during that period of office in a private capacity.

I know this judgment was strongly criticised in relation to the extent of immunities applying to crimes that fall under the jus cogens category, but for the purposes of our situation it seems to be a perfectly sensible solution. The immunity stands during the time a person is in "function", both for personal and professional activities, in order to allow the good exercise of the function. Once the function seizes, the immunity from prosecution falls in relation to private acts, but remains in place for acts done in an official capacity. This would mean that Erlinder would be immune from prosecution altogether now, but could face charges for his "private" comments later, while still being protected for statements made in the course of his defense, thus continuing to protect the current functioning of the Tribunal, "which requires that Defence Counsel be free to advance arguments in their client's case without fear of prosecution" (§29 of the decision).
It should be point out, as did the ICJ in the Arrest Warrant case (§60) that immunity does not mean impunity. It is mostly a temporary obstacle to prosecution, but does not remove individual responsibility once it is lifted.

It is intellectually puzzling that the Tribunal, having so clearly recognised the necessity for functional immunity, so dramatically fails to recognise the logical practical requirements to give it full effect. As a result, the Appeals Chamber has  proposed a wobbly, and I believe ultimately inefficient system of protection for defense counsel in international tribunals and at the end of day of protection of fair trial rights. This is not the first time, and therefore unsurprsing, but disappointing nonetheless.