12.     With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill. To move the case forward, as suggested by the Prosecution,[1] by the substitution of a judge as a first reaction in response to the current situation is nothing short of violating a core principle that is fundamental to the administration of justice: an independent judiciary.

13.     I have long maintained that upholding the integrity of our judicial system entails not exercising the powers conferred upon me as President arbitrarily and eschewing improper influences when determining the composition of judicial benches.[2] It is […] evident […] that reassignment of Judge Akay onto another case is simply an unfair and myopic solution since it would similarly halt proceedings in that case. While pragmatic, this solution will undoubtedly impinge on the fundamental principle of judicial independence as it would allow interference by a national authority in the conduct of a case and the exercise of judicial functions. As such, it will have a chilling effect on the administration of justice. Moreover, the inherent authority of the Mechanism cannot be interpreted, as the Prosecution suggests, [3] to include taking substantive decisions on the merits of a case in the absence of the consideration by all of the members of the bench. Judge Akay’s views on this case matter to our solemn deliberations, and, in the present circumstances, decisions on the merits of this case cannot be taken even should they hold the support of a majority of the remaining judges. Moreover, it cannot be said that the integrity of the judicial system would be upheld if a replacement of a judge is viewed as a measure of first rather than last resort, especially where the avenues for the Government of the Republic of Turkey to implement the United Nations Secretary-General’s assertion of immunity have neither been fully explored nor exhausted, including the execution of this request made by Ngirabatware. In this regard, I note that Judge Akay’s release is also being sought pursuant to domestic legal proceedings in Turkey. An application before the European Court of Human Rights has also been filed.[4]

[…]

15.     This is not to say that judges can never be reassigned or replaced. But a judge has been arrested, immunity has been asserted, it has not been waived, and Judge Akay’s continued presence on the bench has the full support of the person who is seeking relief. Judge Akay is an essential member of this bench. In the absence of extraordinary circumstances, his continued presence on the bench is essential to the preservation of judicial independence. To say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right.

18. […] While the public interest of protecting the integrity of proceedings through the effective prosecution of offences against the administration of justice cannot be underestimated, it cannot be allowed to undermine the Accused’s rights guaranteed by the principle of legality, which requires sufficient precision and clarity in prescribing modes of criminal liability.[1]

[…]

21. […] [I]n the absence of clear evidence that the doctrine of joint criminal enterprise applies to contempt in customary international law or as a general principle of international law, [the Single Judge] was not satisfied that the Mechanism has jurisdiction over this form of liability for crimes committed in violation of Rule 90 of the Rules.[2] […] [T]he Prosecution’s submissions […] fail to demonstrate the existence of a general principle of law common to all major legal systems or otherwise show error in the Single Judge’s finding.[3]