For several years there have been talks and initiatives by members of the ICC List Counsel to establish a Bar or an Association. Indeed, in the last couple of years we have seen a growing interest, if not impatience, for a Bar or Association.
Last year I circulated a draft Constitution for an ICC Bar for List Counsel (click language choice to see draft in English or French) based in part on an earlier initiative and inspired by the ADC-ICTY model. I also circulated a modest commentary. But as in the past, the momentum and enthusiasm waned with the passage of time.
Then, out of the blue, the ICC Registrar, Herman von Hebel, sent an outline of proposals to be discussed during a meeting with List Counsel held on 16 September, wherein he expressed an interest in the establishment of an Association by, for and of List Counsel, that would be officially recognized by the ICC. Just what many of us have been advocating since as far back as 2007.
Changes are afoot at the ICC. The Registrar has a mandate to reorganize and streamline the entire ICC Registry. The process began months ago. It is called Registry ReVision Project. This was all spelled out during the meeting which was targeted towards Defence Counsel and chaired by none other than the Registrar. A similar meeting is expected for Victims Counsel.
Though there was a mix-up in the notice and invitations to the meeting (something promised to be rectified in the future), what was heartening was the fact that the Registrar was present. He spoke, but he also listened and responded to questions and concerns. This alone was unprecedented. I do not recall ever being invited to or hearing of a meeting where List Counsel were invited to a meeting by any of the previous registrars. Let’s face it, List Counsel have not been fully appreciated in the past; a common phenomenon at the international tribunals. We are often seen as troublemakers who overly complicate the process, consume unnecessary resources and delay proceedings. Of course this was only one meeting, but my take is that there is sufficient good will and appreciation to look forward. Rather than trying to fix blame, I am all for finding a solution.
Not all in the room were pleased with the message, but as I remarked during the meeting “the train has left the station, so best to jump on board and seize the moment; the offer may not be around for long.”
By all accounts it is a done deal that CSS, OPCD and OPCD will be phased out, with some of their functions absorbed by newly created offices for Defence and Victims that will be responsible for both administrative and legal support. Some of the benefits List Counsel have come to count on and perhaps even expect from OPCD and OPCV will likely be phased out. Merits aside on the wisdom of this restructuring, and there are good arguments to resist any change in the status quo, the decision seems to have been made. As such, the purpose for and need of a Bar or Association is even greater.
There are some who believe that the best way forward is to hold off and insist on creating a fourth pillar within the ICC, dedicated exclusively to List Counsel and independent from the Registry – as at the STL. This would require an amendment to the Rome Statue. The possibility of this happening any time soon is beyond remote. In my opinion, it is unwise to pursue this mere possibility at the expense of the real and immediate opportunity to establish an independent association right now. Why make the unattainable perfect the enemy of the attainable good?
There is this slim window of opportunity right now for establishing an independent association that can and will empower List Counsel as a whole, and individually. With imagination and creativity, an association can provide the necessary training that has been missing over the years. It can provide more notice to and input from members on virtually every issue and policy effecting List Counsel. As association can provide a direct link between the collective membership and the Registrar. It can provide amicus support, develop a motions bank, establish an orientation program, develop a practice manual, and publish a newsletter on what is actually happening at the ICC, with updates on current issues and decisions. It can also provide advisory ethics opinions. To name but a few of the benefits of an association of List Counsel.
And if this is not enough, the Registrar is prepared to seek funding for the association, recognizing that the costs for establishing and running such as association are at the moment virtually prohibitive. Another obstacle, and a big one at that, removed.
I look forward to moving ahead. The Registrar has a copy of the draft constitution (English and French). I have been assured that it will be reviewed. And so I invite all List Counsel to do the same; your comments and suggestions are valued. The draft constitution is not perfect, but it does have the promise of serving as a point of departure toward an independent association for the benefit of all List Counsel. Carpe diem!
To be continued.