Musing on the ICCBA Draft Constitution

editingAs I noted in a prior post, I was selected to chair the Committee for drafting a Constitution for a Bar/Association at the ICC. The latest draft of the Constitution (English / French) has just been sent around to List Counsel  with a commentary (English / French) to assist in understanding the efforts and aims of the Committee, and to further guide deliberations and contributions on this draft. Comments are being solicited to ensure that the Constitution is representative of List Counsel’s collective views. As I have done before, I would like to present my vision on the draft Constitution.

It is rather clear that a “BAR” cannot be established at the ICC at this stage. Mandatory membership is not possible. A real disciplinary regime outside of the one provided by the ICC and the national Bars of List Counsel is not possible. And with the ICC Registrar controlling the qualifications and fitness for one to be admitted to the List of Counsel, it is fanciful to claim that a Bar can be established without these attributes.

But is a Bar really needed? I think not, at least at this moment. What is desired is to have a trade-union type of an association that will cater first and foremost to the needs of List Counsel.

Thus, I am all for tempering our expectations by presenting to the Registrar a Constitution for an Association with voluntary membership and without a disciplinary regime. It is better to be realistic and stay focused on what is most important, while providing for flexibility and space to grow beyond our immediate needs.

Yes, we should permit this Association to assist Counsel from other tribunals. But this should not be the focal point at this stage, nor should it be expressly stated as part of the Association’s raison d’être. Why? Because if the Association is to be a player at the ICC, it must be recognized by the ICC as the official association that represents the interests of List Counsel. The ASP is not obligated to establish an association. Rule 20(3) does not read that the ASP shall establish an association, but that it may facilitate the establishment of an association. Simply put, we need the blessings of the ASP. In any event, there is nothing in the Constitution which would prohibit offering assistance to Counsel at other tribunals, if requested.

Since the ICC has set a high standard for Counsel to become List Counsel, I firmly believe that only List Counsel should be Full members, qualified to serve on the Executive Council or be members of any Committees, except for the Committee relevant to the work of support staff.   If this Association is to be taken seriously, and if List Counsel are setting up this Association, then there is a need to distinguish between those who have earned the right to be List Counsel from those who are not qualified to be List Counsel. The functions and responsibilities of List Counsel assigned to represent a client are vastly more significant than that of the Case Manager or Legal Assistant.   Though some Legal Assistants may have more experience before the ICC than some List Counsel, this is irrelevant. List Counsel must have at least 10 years experience, while Legal Assistants only need a minimum of 5 years. Also, there are in fact a lot of individuals who do not have five years of post-qualification experience who are assigned as support staff. They are, of course, exceptions, but it then becomes difficult to differentiate between the different levels of support staff. One also needs to keep in mind that few staff members and virtually no interns stay with a case from start to finish.

Members will need to pay an annual fee, but it should be minimum and allowances should be made for fees to be waived for some members on a showing of good cause. I have mixed feelings as to whether List Counsel who are currently on cases should pay an increased monthly fee, as was the case at ADC-ICTY. Yes, it would bring in extra revenue, but let’s face it, there will never be enough active List Counsel to make a real difference. We are better off searching for other ways to keep the Association financially sustainable.

The Association would do well to have committees to represent the Defence and Victims Representatives’ respective interests as opposed to creating two semi-autonomous sections with their own separate committees. This would lead to having two mini-associations within one association, working against each other. It is hard to suppress the natural urges of building fiefdoms and empires, so it is best to keep the Association modest and nimble.

Take my thoughts with a grain of salt, as the say. I only speak for myself, and like others, I have a very clear vision how the Association should be set up and what its focus and functions should be. My vision has been shaped by 11 years of active engagement with the ADC-ICTY. The ICC is of course different, and there are many experienced Counsel who share a different vision. And that is where List Counsel come in, because it is the collective vision that will ultimately shape the contours of the Association, if one is to be created. Our long journey in establishing an Association of, by and for List Counsel is nearing its end. But we will never reach the promised land without List Counsel’s voice and participation.

Let the comments begin!comments2

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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.

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