On December 4-5 2013, the French Bar Association along with François Roux, the Head of the Defence Office of the Special Tribunal for Lebanon (STL), hosted the First International Meeting of Defence Offices. The discussions provided a forum to exchange ideas concerning various challenges defence counsel face before the international criminal tribunals, especially the “difficulty of ensuring that the defence is recognised as one of the essential pillars of a fair and credible justice system.”
These feel-good congregations are useful for inspiring defence lawyers to bond over common concerns. Occasionally they produce aspirational declarations – emphasis on aspirational. Understandably, Final Declarations were proclaimed at this gathering. From the Final Declarations, two specific matters are worth commenting on: a. the need for a defence section to be an organ of the tribunal (as at the STL); and b. the recent events in the Bemba case, where part of the defence team was arrested for witness tampering. Reticent to intrude, since I did not attend the conference, I’ve decided to weigh in with my thoughts, annoying as they may be.
On the first matter, I have commented on previous occasions. I am in favor of an independent association or Bar that is dedicated to, but not an organ of, the ICC. This is in contrast to the conclusion from this meeting, which views the Defence Office model set up at the STL as the panacea: the fourth pillar of the Tribunal on an equal footing with the Office of the Prosecutor, the Registry and the Presidency.
Whether the trial at the STL itself will be legitimate or fair (and I say it will be neither) the STL Defence Office model is an aberration. Indeed, the STL is an aberration – a precarious experiment, where accused, some of whom are suspected of being dead, will be tried in absentia. Be that as it may, there are inherent systemic problems with the STL model. Let’s examine.
Since the STL will be trying accused who will never appear in court and effectively will have nothing to do with the court, it made some sense to establish a relatively independent institution to pick the lawyers, and to oversee the needs of the defence teams (not to be confused with interfering in the defence of the accused, by prying into their respective theories and second-guessing defence strategies and tactics, as seems to be the ongoing practice – perhaps worth examining at some other point).
How do you legitimize a quasi-legitimate trial procedure (is the STL model of justice by trial in absentia an advancement of ICL or a regression?): bring in qualified defence lawyers. It is not a matter of cooption but of necessity. And who could fault the defence lawyers? As liberty’s champions, exposing the weakness of the process and the inequities of the proceedings is part of their raison d’être.
Thus, having an institutional organ within the STL that is autonomous from the Registrar seems logical. Facially, if not actually, similar models exist, such as the United States Federal Defender offices some of which operate in whole or in part, within the Administrative Offices for the Federal Courts. Also it must be kept in mind that the STL is an ad hoc tribunal, flush with money (it is reputed to have a monthly budget of a whopping 5 million euros) generously donated by countries who, for a host of reasons, are keen to have the inevitable convictions accepted as legitimate. And we are talking of, at best, a two-trial tribunal. So, before rushing to embrace the STL Defence Office model as the way of the future, let us not ignore its odd, limited context.
But aside from the uniqueness of the STL, there are systemic problems with this Defence Office model associated with budgetary autonomy, or the lack thereof. It is fanciful to assume that a Defence Office (whatever the moniker) of a particular ad hoc tribunal will ever have total independence in the use of its budget. Therein lies the rub.
The head of a Defence Office can be declared independent, but if his or her budget is being controlled by or subject to the predilections of other organs, such as the Registrar or the President of the Tribunal, there is no independence. At best, the head can claim to be “autonomous”, and that in name only. Bucking the system for the sake of independence is useless, especially if the head of the Defence Office has ambitions to move up the organizational ladder or switch to other organs, such as the prosecution, curiously considered of higher cache (and professional ladder-climbing) value. No profile of courage is to be found in a head of a Defence Office who does not control the levers of his or her budget.
A stark contrast to the STL model, and one that seems to be the preferred UN model, is the Defence Services Section (DSS) at the ECCC. Initially, it was perceived as an independent organ catering to the needs of the defence. Because of the hybrid nature of the court with mandatory mixed defence teams of national and international lawyers, it was believed that the DSS would provide some rudimentary assistance such as training, researching and drafting submissions on legal issues common to all defence teams, or in extraordinary circumstances, when needed to assist a national lawyer who had yet to have an international co-lawyer assigned to the team. Sensible. After all, the prosecution (and chambers) had legions of international lawyers on the payroll for months if not years in advance. Imagine a national lawyer with no experience in war crimes cases, having to go up against seasoned prosecutors with years of experience from the ICTY, ICTR, SCSL, etc. The DSS was to act as the bridge between the national and international co-lawyers, until the teams were set and operational. Also, it was to represent the defence in administrative matters as well as at plenary sessions when rule amendments would be discussed.
But as time went on, independence was viewed as insolence by the administrative organ, which, as in other international tribunals, brooked little dissention. Unsurprisingly, DSS was transmogrified into the ICTY model of a so-called defence-neutral office, whose seemingly sole mission is to officiously process paperwork. Fair enough, though the ICTY and ECCC have different procedural systems. In any event, it was chimeric to ever think that DSS at the ECCC could be independent (or autonomous as it now claims it is) without controlling its budget. It is also notional to think that at a tribunal such as the ECCC – or any ad hoc tribunal for that matter – the DSS, as an organ of the court, could ever have control over its budget – as if DSS is an appendage of the court, as opposed part and parcel of it, with a budget determined and administered by the Administration (or Registrar). Simple reality intrudes. The best one can expect is an appellate mechanism to rein in the Administration and DSS to ensure that fair trial rights are not sacrificed for the sake of budgetary convenience, bureaucratic inertia or other improper reasons.
If the ICC is the future, as opposed to more ad hoc tribunals a la the STL, it is safe to say that the Assembly of State Parties (ASP) is not going to tolerate, let alone create, an independent organ within the ICC dedicated to List Counsel, with the authority to control – as it sees fit – its own budget. And anyone who has been a public defender knows that when there is a budget crunch, the first place to look for savings is in cutting the funds and resources to the defence (or List Counsel, as will be the case with the ICC). So, bluntly speaking, the conclusion that future DSS should be afforded “the resources necessary for its independence, in particular financial independence” is laudable though delusional.
Now onto the second matter. It was concluded that “the Head [of a DSS] must be consulted before any decision is taken in respect of proceedings against a lawyer.” This of course came at the heels of the arrests of Jean-Pierre Bemba Gombo’s lead counsel, Aimé Kilolo Musamba, case manager Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, a member of the DRC Parliament and Deputy Secretary General of the Mouvement pour la Libération du Congo, and Narcisse Arido, a defence witness. The arrests – at least of the lead counsel and case manager – were sordid; raw heavy-handedness, regardless of the ultimate merits of the charges. Simple summonses would have sufficed. More on this in a bit.
The “Profession” – as the participants of this gathering referred to themselves – “expressed its dismay at the arrest of a lawyer before the International Criminal Court without that lawyer having available to them the guarantees and support that a structurally independent organ such as a Bâtonnier would have provided.” This seems a bit enigmatic. Recognizing that defence lawyers, particularly aggressive ones, can be open-season for overzealous and unprincipled prosecutors (and yes, they exist), what a defence lawyer accused of committing a crime most needs upon being summoned or arrested is legal representation – a qualified lawyer dedicated to him or her. The existing legal regime adopted by the ICC provides such guarantees. Whether it is adhered to in letter and spirit is a different conversation.
The Bâtonnier of a Bar (such as the one I have called for ICC List Counsel) can be useful in bringing pressure to bear in matters such as procedural irregularities, unfair treatment or ensuring the prompt appointment of legal representation, etc. However, it is doubtful to what extent the Bâtonnier of the Bar – whether associated with or as an organ of the ICC – can inject himself or herself into a criminal proceeding, when an arrest warrant has been issued by a neutral judge.
The ICC has the necessary modalities in place for the execution of arrest warrants. Should there be a distinction made when arrests warrants for crimes listed in the ICC Statute are issued against list counsel as opposed to other accused (or witnesses)? I think not. Proportionality does however come into play. When there is no risk of harm, flight or non-cooperation, unless there is a credible compelling reason, a simple summons should suffice. And the litmus test should be whether similar action would take place if the accused was a member of the ICC Office of Prosecution (OCP). In other words, would an arrest warrant be executed without any warning if the same charges were lodged against a prosecutor or a staff member of the OCP? Perhaps an improbable hypothetical.
Prosecuting organs at the international tribunals are less likely to (or, I should say, virtually never) go after their own. At least this is rather obvious when it comes to ethical breaches, where prosecuting organs indulge in situational ethics to justify even the most egregious of transgressions. And if there is ever an acknowledged ethical breach, the offending prosecutor is insulated. It goes against the office itself, as if the OCP, as a matter of policy and practice, instructed its prosecutors to engage in the questioned unethical behavior. In any event, there is a credible litmus test worth considering.
But let’s return to the specifics of the Bemba case. The charges are serious. They are not mere allegations of ethical breaches, but of crimes: knowingly presenting false or forged evidence (Art. 70(1)(b)), and influencing a witness to provide false testimony (Art. 70(1)(c)). The arrest warrants were issued by Judge Cuno Tarfusser, presumably based on sufficient cause.
Needless to say, any lawyer worth his ethical salt would know that witness and evidence tampering is unethical. Hard to imagine a code of ethics* that does not prohibit such conduct. At the ICC, as in many national jurisdictions, it is also a serious crime, punishable with imprisonment. When crimes are alleged against lawyers, normally there is a criminal proceeding, followed by disciplinary proceedings. As such, it seems sound that the prosecution would move on the criminal charges, while the Bar to which the lawyer belongs (and in this instance the ICC Registrar as well, since it certifies who will be on the List of Counsel), would move on the breach of ethics.
So, as repugnant as the OCP’s conduct may have been in making the dramatic and unnecessary arrests of the lead counsel and case manager, there is nothing so outrageous or out of the ordinary (at least based on what is currently known) to warrant the Bâtonnier standing to intervene on the criminal matter. Suffice it to say, what may be the practice at the national level does not automatically apply at the ICC or other tribunals. They are sui generis. And while some conduct may be condoned in a national jurisdiction, any list member of any of the international criminal tribunals, including the ICC, must – as a right to practice – abide by the code of professional conduct adopted by the particular tribunal.
In any event, we should all be grateful for this gathering and its Final Declaration for provoking thought and highlighting the challenges defence lawyers face – and why List Counsel at the ICC should get their act together and organize a Bar. And forget about a Bar as an institutional organ; pie in the sky and probably not what the accused or defence lawyers really want or need.
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* See Code de déontologie de l’avocat, Ordre Des Barreaux Francophones et Germanophone de Belgique; Code of Professional Conduct for Counsel Appearing before the ICTY; ICC Code of Professional Conduct for Counsel; ICTR Code of Professional Conduct for Defence Counsel; Code of Conduct of the Bar Standards Board of Barristers Called to the Bar in England and Wales; American Bar Association, Rules 3.3, and 8.1.