open letter to the secretary general re - erlinder

8/9/2019 Open Letter to the Secretary General Re - Erlinder

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Open Letter to the Secretary-General of the United Nations

Submitted On Behalf of:

The National Association of Criminal Defense LawyersThe International Criminal Defense Attorneys Association

The International Criminal Bar

Regarding the Arrest and Detention of Professor Peter Erlinder - Defense Counsel at theInternational Criminal Tribunal for Rwanda

June 7, 2010

By- HandHis Excellency Ban Ki-MoonSecretary-General, United NationsNew York, N.Y.

Dear Mr. Secretary-General,

On May 28 th, 2010 in Kigali, Rwanda, Rwandan authorities arrested and jailedProfessor Peter Erlinder and charged him with speech crimes, allegedly made by him in hiscapacity as a criminal defense attorney, which they contend amounted to genocide denial. This

sad event violates established United Nations principles, runs afoul of a myriad of InternationalHuman rights covenants and perhaps most troubling, undermines the viability of established andfuture international criminal tribunals.

We are writing in the hope that we will have an opportunity, at your earliest opportunity, todiscuss this abhorrent situation and to chart a path towards a resolution . Our sincerest hope isthat Professor Erlinder and all criminal defense attorneys in international criminal tribunalsthroughout the world will be able to continue to carry out their important work without theinterference of governments who disagree with words spoken by the attorneys. In the absence of decisive and bold intervention by the United Nations the work of the international criminaltribunals will come to an abrupt halt as defense attorneys understand that they are at risk of being

imprisoned for doing their job.

Professor Erlinder has been a defense attorney at the International Criminal Tribunal forRwanda (ICTR) since 2003 and is a Professor of Law at William Mitchell College of Law in theUnited States. He still is counsel of record on a pending appeal in the “Military 1” trial in thatcourt. During the course of that trial, in the proud tradition of John Adams, the second presidentof the United States, who was called upon to courageously and successfully defend Britishsoldiers charged with murdering civilians in Boston, Professor Erlinder advocated on behalf of



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his client and promoted positions which are unpopular with the current government in Rwanda.Professor Erlinder is an internationally respected and honorable criminal defense lawyer. Hisdetention, while he was in the performance of his legal responsibilities, is a direct violation of the UN Principles and an affront to the Rule of Law. Government intimidation and interferencewith criminal defense lawyers performing their duties is unacceptable in all its forms and it does

fundament violence to any conception of justice. The arrest, by the Rwandan government, of aninternationally respected criminal defense lawyer, while acting in that role, subverts orderlyreconciliation and undermines the mission of the International Criminal Tribunal of Rwanda,which has been making fundamental contributions to international peace and justice.

The Rwandan Government’s unbelievable suggestion that Professor Erlinder was arrestedfor words he spoke unrelated to his conduct as a criminal defense lawyer in the ICTR isunavailing, simplistic and simply does not comport with the facts nor with the spirit of the law.Recently, a candidate for the office of the President of Rwanda, Victoire Ingabire, was herself arrested by the sitting Rwandan Government for alleged speech crimes. Due to ProfessorErlinder’s efforts to expose the truth in the ICTR, he was asked to participate in the defense of

presidential candidate Ingabire and was thereupon arrested upon his arrival in Rwanda. Acriminal defense lawyer’s task does not end at the door of the courtroom. The positionsarticulated on behalf of an unpopular client often must be re-articulated in public in order to givethe full measure of representation to those charged with the most difficult and serious offenses.

The ability of any of the international criminal tribunals to function occurs only as a result of the availability and participation of skilled and learned defense attorneys who, for littlerecompense and at great personal sacrifice contribute their best efforts to demonstrate that therule of law and the commitment to due process are not merely hollow phrases. There will be nointernational criminal tribunals, no International Criminal Court and no respect for the rule of law if the behavior of criminal defense attorneys, in the performance of their duties asadvocates, are criminalized and imprisoned. The United Nations itself has promulgatedBASIC PRINCIPLES ON THE ROLE OF LAWYERS which was adopted by the Eighth UnitedNations Congress on the Prevention of Crime and the Treatment of Offenders on 7 September1990. Those principles, acknowledged only in their complete violation by the Government of Rwanda, establish:

1. The right of persons accused of a crime to be represented by a lawyer empoweredto effectively protect rights and achieve justice 1;

2. The right of lawyers to perform their professional functions without intimidation,harassment, or improper interference 2;

3. The prohibition against identifying lawyers with their clients’ causes. 3

1 The Basic Principles on the Role of Lawyers U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990); Articles 5, 6, 7, 8.The International Covenant on Civil and Political Rights, Article 14; The Declaration of Human Rights Defenders,Article 9.2 The Basic Principles on the Role of Lawyers, Article 16.3 The Basic Principles on the Role of Lawyers, Article 18.



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It is clear that the Rwandan Government has violated each of these principles by arresting andcharging Professor Erlinder under these circumstances.

Members to the principal and subsidiary organs of the United Nations and to conferences

convened by the United Nations enjoy certain privileges pursuant to the CONVENTION ONTHE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS, adopted by the GeneralAssembly of the United Nations on 13 February, 1946. That document establishes that suchindividuals must receive the following privileges and immunities in order to conduct theirduties:

Immunity from personal arrest or detention and from seizure of their personalbaggage, and, in respect of words spoken or written and all acts done by themin their capacity as representatives, immunity from legal process of everykind [emphasis added]

Further Article 12 of the Convention holds that such individuals shall have,complete freedom of speech and independence in the discharge of their duties, theimmunity from legal process in respect of words spoken or written and all actsdone by them in discharging their duties shall continue to be accorded,notwithstanding that the persons concerned are no longer the representativesof Members. [emphasis added]

The argument will be made that defense counsel at the international criminaltribunals are not covered by the privilege and immunities which are enjoyed by othersinvolved in UN activities. But if prosecutors and the minor administrators and merefunctionaries and Registrars of the court are covered what does this say about the UnitedNation’s stated dedication to equality of arms amongst the pillars of the court. Moreover,other defense counsel may well refuse to participate in the work of international criminaltribunals and the work of those tribunals may grind to a halt as result of what has beendemonstrated in the matter of Professor Erlinder. The United Nations must initiate aprompt intervention to insist that the privileges and immunities afforded to clerks also beafforded to defense counsel.

The Agreement between the United Nations and the United Republic of Tanzaniaconcerning the Headquarters for the International Tribunal for Rwanda ( HeadquartersAgreement) affords immunity to defense counsel within the republic of Tanzania when it statesthat defense counsel shall have:

(c) Immunity from criminal, civil and administrative jurisdiction in respect of words spoke or written and acts performed by him or her in his or her officialcapacity as counsel. Such immunity shall continue to be accorded to him orher after termination of his or her functions as a counsel of a suspect oraccused. [emphasis added]



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Does it make any sense that such immunity is shed when defense counsel is in thecountry about which the international criminal tribunal is concerned?

Your Excellency we ask you to promptly intervene because equity demands it, weask because justice requires it, we ask because your prompt intervention will demonstrate

the United Nations’ commitment to international rule of law.

We are available to discuss these issues with you at your earliest convenience.

Respectfully Submitted,

Daniel N. Arshack and Jean FlammeIndividually, as Criminal Defense Counsel, and on behalf of the noted organizations.

KINDLY CONTACT: Daniel N. Arshack for scheduling purposes

Telephone 212 -582-6500

Email : [email protected]

Address: Daniel N. ArshackArshack, Hajek and Lehrman1790 Broadway Suite 710New York New York 10019

The National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization advancing themission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing.

A professional bar association founded in 1958, NACDL’s 10,000-plus direct members in 28 countries — and 90state, provincial and local affiliate organizations with another 35,000 members — include private criminal defenselawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairnesswithin the criminal justice system around the world. The NACDL has received consultative status with the UN

Economic and Social Council (ECOSOC).

The International Criminal Defense Attorneys Association (ICDAA), formed in 1997 is an international non-governmental organization dedicated to strengthening fair trial rights and an independent legal profession in theemerging international criminal justice system. The Association also works to improve access to justice for thecitizens of transitional and post-conflict countries, most notably by testing the legality of long-term detentions. The

ICDAA has received consultative status with the UN Economic and Social Council (ECOSOC).

The International Criminal Bar, established in 2002, is a representative body of counsel and legal associationsestablished to act as the counsel association for the International Criminal Court. Anticipated in rules 20 and 21of the ICC Rules of Procedure and Evidence (RPE), the ICB is both representative of the world’s legal systems and geographic areas, and democratic in its structure and operation. It works to protect the right to a fair trial and theindependence of Counsel appearing before the Court.

open letter to the secretary general re - erlinder

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