On 29 June 2018, the UN Secretary-General reappointed for a new, two-year term of office all of the Judges on the roster of the International Residual Mechanism for Criminal Tribunals (Mechanism) who were seeking reappointment except Judge Aydin Sefa Akay of Turkey. In response to this development, the President of the Mechanism, Judge Theodor Meron, expressed his “deep regret regarding, and respectful disagreement with, the decision not to reappoint my valued and esteemed colleague, Judge Akay, and my grave concerns about the far-reaching consequences this decision will have for our institution and for international criminal justice more generally”.
Judge Akay was among the Judges originally elected to the Mechanism by the UN General Assembly in December 2011 and previously served as a Judge of the International Criminal Tribunal for Rwanda. Like most of the Mechanism’s Judges, and in keeping with the Mechanism’s Statute, Judge Akay has carried out his work for the Mechanism remotely, in his State of nationality, since joining the Mechanism’s judicial roster. While serving in the Mechanism’s Appeals Chamber on the bench of the Augustin Ngirabatware case, Judge Akay was arrested in September 2016 by Turkish authorities and detained thereafter. He was convicted in June 2017 by a Turkish criminal court of first instance in Ankara on a single charge of being a member of a terrorist organization. Judge Akay resumed the conduct of his judicial functions for the Mechanism in June 2017 following his provisional release pending appeal.
The arrest of Judge Akay, his detention and the legal proceedings against him are inconsistent with the assertion of his diplomatic immunity by the United Nations in October 2016, as well as the binding judicial order by the Mechanism to the Government of Turkey issued in January 2017. President Meron formally brought the matter to the attention of the UN Security Council in March 2017 and on other occasions, as well as reporting the matter to the UN General Assembly. At present, the Turkish judgment of first instance against Judge Akay is subject to an on-going appeal as well as potential review proceedings at national and international levels and the verdict has yet to acquire legal finality.
President Meron observed that “the decision not to reappoint Judge Akay is profoundly troubling on multiple levels”. Expressing concern about the impact of this decision on Judge Akay personally, the President also noted that “the situation has raised serious questions as to whether the immunities to which Judges are entitled and the judicial independence that these immunities serve to protect can be effectively guaranteed for institutions such as the Mechanism, where Judges typically work in the countries of their nationality.”
It is understood that the decision not to reappoint Judge Akay was based on information provided by the Government of Turkey to the UN Secretariat that Judge Akay no longer satisfies the qualifications for Judges identified in Article 9 of the Mechanism’s Statute by virtue of his conviction. The President expressed strong disappointment in this regard, stating that “the acquiescence to the position advanced by the Government of Turkey represents a de facto acceptance of a State’s actions undertaken in contravention of the diplomatic immunity asserted by the United Nations, a dangerous precedent to set.”
President Meron further underscored that the potential for political or other inappropriate pressure by a government in these circumstances is unlimited, explaining “there is a great difference between the statutory right of States to nominate their nationals for election and the far more indeterminate and potentially political and arbitrary possibilities of an extra-statutory and still vague procedure that allows States to advocate the removal or non-renewal of their national Judges or even, potentially, Judges of any nationality”. He added: “If States are permitted to take action against a Judge in violation of the applicable international legal framework, judicial independence—a cornerstone principle of the rule of law—and the integrity of our court as such are fundamentally at risk, as is the overall project of international criminal justice.”
UN Secretary-General Refuses to Reappoint Turkish Judge on the MICT
Written by Marko MilanovicYesterday the UN Secretary-General reappointed 23 of the 24 Judges of the International Residual Mechanism for Criminal Tribunals. The one judge not reappointed was Judge Aydin Sefa Akay of Turkey, who is one of hundreds of Turkish judges purged by the Erdogan regime, which accused him of being a member of a terrorist organization. This is not only a manifest act of political cowardice on the part of the Sec-Gen, but is a direct assault on the independence and integrity of the international judiciary. Below is a powerful statement in that regard of MICT President Theodor Meron, who deserves much credit for standing up for his colleague and for basic principles.
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Camillah Agak says
July 4, 2018
The Turkish purge, as I call it, after the failed attempted coup was at most reactionary and unnecessary. Many individuals and civil servants were unfairly targeted by the Government. It is sad, that Judge Aydin Sefa Akay was a victim of circumstance at a time when the entire country was on its knees.
In my opinion, the decision not to reappointed the judge is befuddling to say the least. Especially so after the UN itself condemned his arrest, detention and subsequent conviction. The MICT Statute states that in reappointing a judge the Secretary General does so in consultation with the Security Council and the General Assembly. Was this done? Seems as though it only took a statement of unfitness from Turkey to seal the fate of the judge. The statute also doesn't expressly prohibit an individual charged or convicted of a crime from being elected as a judge. Does the high moral standing automatically 'expire' when one is accused of having committed a crime albeit wrongfully so accused? Given the international uproar, this, I like to think would have been the best opportunity to stick it to the man *President Erdogan.
On the flipside though, how practical would it be to have Judge Aydin Sefa Akay on the bench? The judge is not allowed to leave his country. At the time of his arrest, proceedings on the case he was hearing essentially stopped as he could not leave his home country to attend court. The conviction was for 7½ years and if confirmed by the Court of Appeal, a reappointment would only serve to paralyze functioning of the court, for want of quorum.
The actions of the Turkish government was a sucker punch to the UN and the international community at large. Simply reveals that with the lack of an enforcement mechanism is the bane international law. Enforcement of international law is mostly dependent on cooperation of States without which, organizations such as the United Nations can only condemn atrocities, or maybe impose sanctions and then cut its losses. Its sad!