A constitutional framework for a professional Bar of List Counsel at the ICC

After a year of mulling the various options available for List Counsel in organizing themselves to collectively meet the challenges they face at the ICC, the best option that emerged was the formation of a truly professional Bar.  While an association – as in a trade union – would be simpler and quicker to form, when considering the permanence and intended undertaking of the ICC, only a genuine professional Bar would be capable of having the desired enduring influence. Such a Bar will require ICC recognition: a tall and time-consuming order.  List Counsel must nonetheless soldier on in constituting a Bar.  The starting point is the drafting of a constitution, a collaborative process that is well under way, overseen by the coordinators of the Executive Committee formed last year by the List Counsel interested in establishing an ICC Bar for List Counsel.  Once the Constitution is adopted, the Bar can be registered and commence functioning. So, what of this Bar and how should it be constituted?

As with any constitution, the objectives need to be clearly, though not necessarily minutely stated.  The objectives of the Bar should be aspirational, yet rational.  Broadly speaking, the Bar should aspire to:

  • promote and support the independence of List Counsel
  • uphold the professional standards and ethics of the List Counsel
  • foster the proficiency and competence of the List Counsel
  • assist List Counsel in obtaining necessary support and assistance from the Registry to enable them to protect all the procedural and substantive rights of their clients
  • contribute to the quality of justice at the ICC
  • assist in resolving legal issues impacting the List Counsel
  • champion the rights of List Counsel before the ICC’s organs
  • guarantee symmetry in the proceedings between the ICC Prosecutor and List Counsel in their respective institutional roles
  • exchange the collective views of List Counsel with the Assembly of States Parties and the ICC’s organs
  • represent List Counsels’ interests before the Assembly of States Parties and international institutions
  • assist in resolving incidents and disputes between Counsel
  • oversee incident disputes and hearings between Counsel and Judges
  • network with other Bars and Associations in matters of mutual interest.

Ideally, membership should be compulsory for all List Counsel.  This would strengthen the image and authority of the Bar, though as I have noted in my previous piece, this would require at a minimum the approval of the Registry.  Space should also be made for non-List Counsel of certain qualifications who have expressed shared interest in becoming associate members.   All members should pay an annual fee, though allowances should be made for fees to be waived for some members on a showing of good cause.

The Bar should be composed of:

–    The General Assembly
–    The Executive Committee
–    The Disciplinary Council
–    The Membership Committee
–    The Rules Committee
–    The Training Committee;
–    The Amicus Committee; and
–    Ad hoc Committees or Councils that may be established as needed

The General Assembly must be the supreme body of the Bar, with the Executive Committee reporting to it.  General Assembly meetings must be held annually for the committees to present to the members their annual reports, for future planning to be discussed and approved by the General Assembly and for elections.  Ad hoc Special Assembly meetings should also be permitted subject to specified criteria.

To ensure full and fair participation in elections, electronic voting should be an option along with proxy voting.  The voting process must allow for all members to directly participate to the extent possible, irrespective of their location or time zone.  One fundamental question is how do you include members in forming a quorum on items that arise after the pre General/Special Assembly deadlines, where the practicalities prevent members from voting?  Also, there is the concern that members who are participating electronically are being relegated to a second class status, when amendments and/or nominations are made after their vote is submitted, which, had they the opportunity, might have caused them to vote differently. A possible solution is to permit members to attend by skype or similar internet conferencing, and thus be included in all votes and considered for quorum.  Equally imperfect, is the use of only proxies; there is always the risk (as has been the experience at ADC-ICTY) of not having a quorum.  More ominously, using only proxies tends to disenfranchises many members, and can lead to a host of other unintended consequences. Essentially, these are inherent problems of any global organization without travel resources.  Thus, for the Bar to be truly inclusive, it is important to devise an electoral process that diminishes the possibility that only a small cadre of active members make self-interested decisions for their own benefit.  Suffice it to say, the constitution should sufficiently detail the election process, with implementing rules and regulations to be adopted as needed.

The Executive Committee should be composed of the President/Bâtonnier and nine (9) to fourteen (14) Members, with a board composed of the President/Bâtonnier, two Vice-Presidents, a Treasurer and Secretary.  A smaller Executive Committee is more manageable, though also less inclusive – a consideration meriting debate.  The Members of the Executive Committee should be elected by the General Assembly from a list of nominees.  Members of the Executive Committee should be elected for a term of one year and should be eligible to be re-elected for an additional two consecutive terms.  To ensure equity, consideration should be given to the type of legal representation (Legal Representation for Victims / Defence), geographic representation, gender considerations, and the various domestic legal systems (e.g., Common and Civil law), and the different languages existing before the Court. A minimum of one (1) seat should be reserved to Counsels native to each of the following regions: Eastern European States, Asia-Pacific States, Latin America and Caribbean States, North America States, African States, Western European States and other States.  At least five (5) seats on the Executive Committee should be reserved for women.  Also, strong consideration should be given to reserving a minimum of two (2) seats on the Executive Committee for Counsel engaged in cases before the ICC.

The Executive Committee should be responsible to the General Assembly for the day-to-day operations and management of the Bar, which would include such matters as: preparing the agenda of the General Assembly meetings, submitting the Bar program for approval to the General Assembly, implementing approved programs by the General Assembly, executing decisions of the General Assembly, preparing the annual budget, monitoring matters related to the annual budget, and submitting an annual report of activities and an audited financial report to the General Assembly for its approval.  It is expected that internal directives or procedures will be adopted as necessary for its functions and the day-to-day operations and management of the Bar.

An Executive Director should be employed to assist the Executive Committee. The Executive Director should be responsible for the administration of the Bar and should assist in monitoring the implementation of the strategies and activities undertaken by the Executive Committee.

Since no constitution can include all details for every eventuality, the Constitution should provide for the adoption of rules of procedure and for the appointment of a member to serve as a Parliamentarian.  The main role of the Parlimentarian would be to highlight with the General Assembly any matters that are inconsistent with the letter or spirit of the Constitution or applicable rules and procedures.

Within a week or so a draft constitution with all the necessary details will be circulated.   But for now, this sketch of a constitution for the Bar of List Counsel should suffice as a point of departure for thought and comment.  Next, some more details on the road ahead.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

4 thoughts on “A constitutional framework for a professional Bar of List Counsel at the ICC”

    1. MICHAEL,
      The Constitution contain the necessary points and framework.A draft of basic rules governing the Executive could also be helpful too.

      1. I agree, but we first need to generally come to a consensus on the Constitution. I am firm believer that to the extent possible it is wise to draft governing rules and regulations before adopting the Constitution. From previous experience, I have found that as the implementing regulations are being drafted, issues pop up concerning a statue or constitution that may not have been readily apparent. This allows for tweaking and harmonizing before adoption. Amending a statute or constitution is relatively impossible (as we found out at the ADC-ICTY) because of the required votes needed to amend. Changing a rule or regulation is much easier. As the Bar begins to function, no doubt we will encounter situations requiring nimbleness and flexibility. We can all see this with the RPE and how often rules are amended, due primarily to practice and need.

    2. Thank you Boniface for your kind words. The draft should be circulated in a day or so, though it will be a work in progress. Once we can agree on the general framework of the constitution, and even before it is finalized, it would be prudent to start framing the governing rules and regulations of the various committees, especially the Executive Committee. I would even suggest that a drafting committee be established for the Disciplinary Council.

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