A draft Constitution for the Bar of List Counsel: Let the discussions begin!

As promised, a few days ago I circulated the draft constitution I have been working on for the past month. (Links to Draft English / French)  There was no real need to re-invent the wheel and start from scratch.  I took as a base the ADC-ICTY Constitution.  While not perfect and certainly limited to the ICTY matrix, it has been tried and tested.  Based on my experience both as a member and having served on numerous ADC-ICTY committees, including three years on the Executive Committee, two of which as President, I believe this document provides a solid point of departure.  Last year I forwarded it to the Coordinators of the ALC-ICC, recommending its utility.  

I also drew from the draft prepared during the last year.  I was not involved in the drafting process, but I did review the draft this past August, passing on my comments.  Though a work in progress, and certainly not sufficiently finalized to present to the Registrar as a representation of the ALC-ICC vision of an Association or Bar, that draft also provided useful concepts and text.  Equally, if not more useful, were insightful comments generated by the reviewers of that draft.  My circulated draft constitution is also a work in progress.  I expect positive and negative reactions, leading to a constructive and robust discussion, culminating in the adoption of a constitution that gives birth to a real professional Bar for List Counsel.  To foster greater awareness and participation, I had the draft translated into French, though as I mentioned  to those on the circulation list, the translation is a tentative one, prepared by some of my current and past, young, bright and indefatigable French interns, who graciously volunteered their time and energy.  Of particular note during the course of  their  efforts, were the  discussions among themselves over  choices of word or phrase.  They struggled mightily in their search for the most accurate word or phrase and in some instances, debated whether a particular phrase in English even when faithfully translated into French made sense, let alone had the same verve.  This experience will be repeated as suggested language changes are offered; hence the need to be vigilant to ensure that what is adopted in one language is readily translated into the other, without any loss in substance, intent or eloquence.

The draft constitution is likely to fall short of the expectations of some.  It is difficult to design an organization, such as a Bar, when its members come from such different legal systems, cultures, experiences.  It is impractical, indeed futile, for lawyers to insist that the Bar for List Counsel should function identical to their domestic Bars (or Bar Associations, as commonly known in some Anglo-Saxon systems).  Let’s face it, we are all biased and limited by what we already know – especially when what we already know seems to work.  The challenge and profit lies in moving beyond this bias, searching for insight and effective solutions.  Ultimately, List Counsel should come to  appreciate and even identify with the Bar.  More importantly, however, the Bar must be able to function within the construct of the ICC as a legitimate organization.

If you can’t get what you want, get what you need!

The draft Constitution provides all the tools for a viable, inclusive Bar for all members of List Counsel.  While the crown jewel of the Bar will be the Disciplinary Counsel, the Executive Committee, and especially the President, will have the necessary latitude to advance the agenda set out by the General Assembly.  Plenty of oversight is foreseen, as the day-to-day affairs of the Bar are entrusted to the Executive Director, thus freeing up the President to deal with matters requiring the use of her good office.

There were lots of challenges in trying to strike the needed balance, particularly on issues related to the size and makeup of the Executive committee.  Some of the solutions selected remain unsatisfying, requiring debate and deliberation, but hopefully not leading to analysis-paralysis, where the pursuit of the perfect becomes the enemy of the good.
To give an example, one issue likely to be contentious, is the arbitrary number 5 (1/3) as the minimum number of women to serve on the Executive Committee.  Absolute equality is not always feasible, even when most desired.  Moreover, too many such gymnastics run the risk of thwarting the will of the electorate.  With a 15 member Executive Committee, it is not possible to legislate into the Constitution a 50% -50% distribution between men and women. One practical solution would be to make the Executive Committee into an even number, such as 16.  This would then require, as the most practical solution, to give the President an overriding vote in the event of a draw.  In my opinion, this would lead the President to having extraordinary powers and authority, beyond being a first among equals.  Some members may be willing to grant the President these powers for the sake of mandating into the Constitution an equal number of women to men.  However, on the whole, I came down on the side of preserving a substantial gender voice, rather than imposing precise numerical parity, with its risk of such unintended consequences.

Ideally, there should be no need to have a quota for women; none exists for the ADC-ICTY.  As a progressive learned group championing human rights, it should be a given that the Bar should strive for equality.  Hopefully, with or without a gender-quota provision, equality in the election of the Executive Committee will be achieved.  To be on the safe side, I thought a 1/3 minimum of women in the Executive Committee should be required.  Some were content with fewer, while others I spoke to were satisfied to have none.  That said, there is nothing in the Constitution to prevent an Executive Committee composed of all women.  In any event, this issue, as others, will get a thorough vetting.

Why not start by picking low hanging fruit!

Last month at the ICC’s List Counsel Seminar, the Coordinators of ALC-ICC proposed the formation of an interim Rules Committee to assist the List Counsel representative to the Advisory Committee on Legal Texts (ACLT).  The proposal met no opposition (at least none that I saw).  Ms. Rosette Bar Haim was then nominated and approved by acclamation (again, to no opposition) as Chair of the Rules Committee.  Volunteers were asked to step up to join Rules Committee.  As issues arise concerning the amendment of the rules by the ACLT, the List Counsel representative, currently Tom Viles, will have recourse to the advice and insight of the Rules Committee to assist him in formulating well-reasoned and balanced answers.

Presumably, the Rules Committee will draft basic rules and guidelines on how it will function.   A process will evolve where, through trial and error, a well-functioning committee will emerge with valuable experience which can then be transferred to the Bar’s Rules Committee.  In the meantime, List Counsel would have already begun to advance their collective interests through the Rules Committee. In which case, why not take this a step or two or three forward by setting up interim Disciplinary Council and Training and Amicus Committees.

An interim Disciplinary Council can, for instance, begin exploring how it would interact with ICC disciplinary organs.  It could draft its guidelines and practice directives.  It could even issue non-binding advisory opinions, thus also acting as a support / resource on issues of professional ethics.  All of this would be useful to the Bar Disciplinary Council, once the Bar is up and running.

Likewise, an interim Training Committee can begin exploring the actual training needs of List Counsel, initiate trainings draft a manual, develop a submissions bank, etc.  Ditto on establishing an interim Amicus Committee; it can develop its practice directives and can even provide the occasional amicus brief.

So, as the draft Constitution is under review, and while discussions with the Registry begin – hopefully post-haste – perhaps the Coordinators and Executive Committee can consider picking some of these low hanging fruit.  Why wait?

Looking forward to your comments on the draft constitution.

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.

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