The arrest in Rwanda of United States lawyer Professor Peter Erlinder has drawn the wrath of international human rights lawyers at the International Criminal Court review conference in Kampala, Uganda.

by David Rupiny in Kampala

The International Criminal Defence Attorneys Association (ICDAA) has strongly condemned and protested Erlinder’s arrest as “an attack on the right to counsel and the independence of counsel”.

ADAD’s AllisonTurner told reporters at the conference that Erlinder’s arrest is also an attack on the independence of the International Criminal Tribunal for Rwanda (ICTR).

“Professor Erlinder’s arrest is an attack on the freedom of speech and a politically motivated attempt to further frustrate the democratic process in Rwanda,” said Turner.

Erlinder, a professor at William Mitchell College of Law in Minnesota, was arrested on May 28th in Kigali, Rwanda, on charges of genocide negation. He is the defence counsel for Major Aloys Ntabakuze, one of the four accused persons in the Military I trial, and whose ICTR conviction is now before the Appeals Chamber.

Erlinder had gone to Rwanda because he has been retained by Rwandan opposition leader, Victoire Ingabire, the leader of the United Democratic Forces, who has been attempting to register her party and is under house arrest for allegedly denying the 1994 genocide.

Reports suggest Erlinder is being detained at the notorious Kicukiro detention centre in Kigali where he was interrogated for over three hours after which he fell ill, suffering from hypertension.

Allison Turner of ICDAA says they have got reports that Erlinder is in dire straights.

“He is being held in terrible conditions; every time he leaves his little cell he is handcuffed including [during] visits to the wash room,” said Turner at the sidelines of the Kampala ICC conference.

She added: “Professor Erlinder’s health is not good; his US doctors had advised him to undergo a heart procedure in a few months”.

After the Rwanda police announced that it had formally concluded their investigation with sufficient evidence and handed over the matter to the Office of the General Prosecutor, the prosecution commenced additional investigation.

This time round, the prosecution is questioning Erlinder on the charges of “threatening the national security of Rwanda by spreading malicious rumours” and “denying the genocide against the Tutsis and advancing a “genocide ideology”.

Erlinder’s lawyers’ requests for bail have been denied with the prosecution saying they are “premature.”

Kenneth Gallant, law professor at William H. Bowen School of Law at the University of Arkansas, said ICDAA wants the Assembly of State Parties to include in its final acts of the review a statement committing the Court to respect functional immunity for all states to respect this immunity in their domestic jurisdictions.

“There is a need to bar the use of words spoken or written or acts posed in the performance of one’s professional duties as the basis of criminal or civil charges,” said Professor Gallant.

He added that since “functional immunity is recognised in the ICC’s host agreement and the Agreement on the Privileges and Immunities … it must also be recognised by the states on whose territory the crimes occurred”.

Gallant reasoned that this must extend to all independent counsel of the accused or the victims, and their respective team members in order, as he put it, “to guarantee a safe working environment and independence, free from political or other interference”.

He concluded: “Pending universal recognition of functional immunity for defence and victims teams, and in light of Rwanda’s recent arrest of ICTR Defence Counsel Peter Erlinder, the ICB (International Criminal Bar) urges the review conference [should] adopt a resolution calling on member states to bar the use of in-court statements by counsel appearing before the ICC or any international tribunal as the basis for criminal prosecutions.”

Interestingly, the ICTR has not responded to calls for it to invoke the functional immunity of Erlinder.

“This inaction is in marked contrast to the reaction of the ICTR Registrar in November 2006 when ICTR Defence Counsel Callixte Gakwaya was arrested and detained in Rwanda based on an international arrest warrant issued by Rwanda,” said Turner.

Attempts to talk to both the Rwanda delegation and ICTR have not bore fruits so far.

Turner also raised the issue of a DR Congo lawyer, Firmin Yangambi, who also participated in the ICC Counsel Seminar in The Hague in 2009, now on death row handed down by a military court.

“He is not a military lawyer but was arrested and imprisoned in Kinshasa following military proceedings and convicted of an insurrectional plot against the president,” said Turner.

Yangambi’s lawyer has since appealed the judgement and death sentence.