Expert Conference on the Establishment of an ICC Victims and Defence Office
Establishment of committee to draft a constitution for and ICC Bar for List Counsel
On the 23rd and 24th of March 2015, the ICC Registrar held a conference of experts to discuss the establishment of a Victims Office and a Defence Office and the potential establishment of an association or bar for List Counsel. I was privileged to have been invited. Prior to the conference, the Registrar distributed his concept for the reorganization of the current setup with that envisaged by him and the ReVision team he set up for reorganizing the entire Registry. In addition to the Concept Note, there was an agenda which reflected the areas of discussion, and a draft basic outline of the Registrar’s proposals.
While it was noted by the head of the ReVision Project that “all options are on the table”, for all intents and purposes, the status quo – the option desired by many of the defence – is not. And when considering the scope or focus of the questions posed for debate, it seems that the decision to form a Victims Office and a Defence Office, as presented for discussion, is a done deal, a fait accompli, a reality. Nonetheless, the discussions were fruitful.
At the heart of the matter for the defence is the real or perceived “independence” of the defence with the drastic downsizing and consolidation of the Office of Public Counsel for the Defence (OPCD). Frankly, I have never been convinced that the OPCD was ever independent or that it spoke for the Defence. It has over the years provided invaluable services to members who arrive at the ICC and are not acquainted with the law, procedure, regulations and general working of the ICC. It has also been providing assistance by drafting submissions for defence teams. Query whether it was the intention of the OPCD founders for this function to be carried out by the OPCD. But when considering – as I noted during the discussions – that the financial resources made available to the defence during various stages of the proceedings are inadequate (and I would even say insulting), some defence teams had no choice but to reach out to the OPCD for such assistance.
My take is that even if the judges may wish to preserve the OPCD in its current state, the Assembly of States Parties (ASP) is more likely to back the Registrar. After all, the ASP controls the purse strings of the ICC. Judges may be independent on the bench, but with the budget in the hands of the ASP, their independence when it comes to establishing organs such as the OPCD, is circumscribed.
In any event, it appears that the Defence Office will be limiting its assistance to providing information, and hopefully, will grow into a depository of legal information (e.g. data bank of briefs, commentaries on rules, summaries of case law, etc) for defence counsel. But this remains to be seen. The Registrar was urged to properly staff this office with highly qualified professionals.
I suspect we will know more on all of this after the next ASP meeting.
You may recall that last year I circulated a draft constitution for a bar. Since then I recently revised it and again circulated it to a group of lawyers who have also been involved in drafting alternative proposals for an association or bar.
Realizing that this may be our last chance to form a bar or association, some of us got together on the eve of the conference to see whether we could bridge the gaps between the various drafts so we could speak at the conference with a unified voice. The meeting, chaired by the unflappable Ken Gallant bore fruit. We were able to agree to nine core principles.
- The organization we set up will be a Bar.
- The Bar will be for all counsel at the ICC, Defence and Victims.
- Membership is Open to all Counsel, co-Counsel, Legal Assistants, Case Managers, who are members of their national Bars
- Membership is mandatory for List Counsel.
- It is first of all an ICC Bar, but is open to members from the UN criminal courts and tribunals.
- It will have two sections: Defence and Victims (possibility of other sections not excluded).
- The Bar must be represented in every Committee/Working Group dealing with amendments to legal texts, rules and regulations and making of new sets of rules and regulations.
- It provides services to members (e.g., support in day to day dealing with issues on the Court; legal advice if needed by counsel, etc), perhaps maintaining list of counsel; other issues as the Bar grows and moves forward.
- The Bar will finance itself first of all with members fees/dues, but may accept outside funding (such as from the Assembly of States Parties) so long as these principles are not compromised.
At the close of the conference, with the support of the Registrar, list counsel that were present agreed to form a drafting committee. The following were selected to serve on the committee: Michael G. Karnavas, Ken Gallant, David Levy, Geoff Roberts, Raymond Brown, Emmanuel Altit, Luc Walleyn, Jens Dieckmann, Ghislain Mabanga, Paolina Massidda and Xavier-Jean Keita.
Aside from being selected as the Chairman of the Drafting Committee for an ICC Bar Constitution, the committee members selected my draft as the working draft of the Constitution for the ICC Bar.
Once the committee has finalized a draft for circulation, it will be presented to List Counsel for review and comments. Our hope is to have a circulation draft by mid-April 2015 and a final draft to present to the Registrar by the first week in May 2015.
A lot of work lies ahead, especially if the Bar is to be recognized by the ASP as the official Bar for the ICC. In my next post I will discuss some of the major concepts envisioned for an ICC Bar for all List Counsel.