Functional Immunity for Defense Counsel and Defense Staff

Abstract

Our analysis distinguishes between the legal framework and jurisprudence currently governing the scope of immunity for Defence counsel and their teams representing alleged 175 perpetrators of serious international crimes before different ICs (the is) and the optimal scope of such immunity (the ought). First we briefly introduce the concept of functional immunity in international law and its applicability to Defence counsel and staff. Subsequently, we analyse the relevant legal provisions in the Statutes and the case law of various ICs outlining the scope of this immunity. Finally, we assess whether Defence counsel and their teams enjoy the required protection against criminal prosecution before domestic courts so as to enable them to properly discharge their duties, or whether more clarity and additional substantive and procedural protections are necessary in order to ensure the fair administration of international criminal justice. This chapter was first published in Defense Perspectives on International Criminal Justice. © Cambridge University Press.