International Criminal Law Review 11 (2011) 869–890 © Koninklijke Brill NV, Leiden, 2011 DOI 10.1163/157181211X603176 brill.nl/icla International Criminal Law Review Defence Counsel Immunity at the Ad Hoc Tribunals Krit Zeegers * Doctoral Researcher, University of Amsterdam Amsterdam, Th e Netherlands Abstract Th e Statutes of the ad hoc Tribunals grant prosecutorial staﬀ functional immunity, which aims to protect them against undue interference by states. Defence counsel, however, is not mentioned. As a result, it is unclear if counsel enjoy any such protection, and if so, what shape or form this may take. While the ad hoc Tribunals’ Statutes are silent on this matter, the arrests of defence counsel in Croatia and Rwanda have forced the ICTY and ICTR to address this omission, which has gener- ated a body of case law that will provide the starting point for this article. Th e diﬀ erent decisions can be classiﬁ ed into three distinct approaches, which will accordingly be scrutinized. Th is article will advocate a principled approach to defence counsel immunity, consisting of functional and personal immunity, as well as a principled approach to the waiver thereof. Th is will both ensure the necessary protection of an eﬀ ective
International Criminal Law Review – Brill
Published: Jan 1, 2011
Keywords: FAIR TRIAL; PERSONAL IMMUNITY; EQUALITY OF ARMS; FUNCTIONAL IMMUNITY; AD HOC TRIBUNALS; DEFENCE COUNSEL
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