The ADC’s Continuing Relevance: MICT’s Rules Committee Practice Direction

logo ADC 2004.jpg-for-web-normalThe Association of Defence Counsel Practising Before the International Tribunal for the Former Yugoslavia, commonly referred to as the ADC-ICTY, is the association of defence counsel formally recognized by the ICTY. As part of the completion strategy of both the ICTY and the International Criminal Tribunal for Rwanda (ICTR), the International Residual Mechanism for Criminal Tribunals (MICT) was established for both these courts. Trials, appeals, and post-conviction relief have been under the MICT since 1 July 2012 for the ICTR and 1 July 2013 for the ICTY, as ongoing matters are winding down.

The ADC-ICTY remains the only professional association recognized as the official and exclusive association of any of the past and present international and internationalized courts or tribunals. In October 2002, Rule 44 of the ICTY Rules of Procedure and Evidence (RPE) was amended to make membership in an association of defence counsel compulsory,1ICTY Press Release ‘Judges’ Plenary Session Adopt Reforms Concerning Defense Counsel Teams’ (19 July 2002) http://www.icty.org/sid/8083. firmly establishing the ADC-ICTY as the sole professional association dedicated to the interests of all defence counsel – and by extension their staff – practicing at the ICTY.

The original draft of the MICT RPE did not include this requirement, but after the ADC-ICTY requested an amendment, the final version of the Rules included the requirement of compulsory membership of an association of defence counsel in Rule 42. With the MICT coming into existence, the ADC-ICTY was selected to continue in its capacity as the association for counsel practicing before the MICT. The ADC-ICTY was initially provisionally recognized in December 2012 and has been functioning as the de facto Association for the MICT. This recognition was confirmed on 24 August 2015.2MICT-12-01/25-08-2015/(5-3), Decision Recognizing the ADC-ICTY as an Association of Defence Counsel Practicing at the Mechanism, 24 August 2015. Other budding associations at international or internationalized courts and tribunals would do well to emulate the lessons learned by the ADC-ICTY over the past 14 years.

Now my point for indulging in this post.

The ADC-ICTY has demonstrated, yet again, its bona fides with MICT’s new Practice Direction on Procedure for the Proposal, Consideration, and Publication of amendments to the Rules of Procedure and Evidence of the Mechanism. Unsurprising.

According to the new Practice Direction of 21 July 2016, the Rules Committee “shall consider all proposals for amendments of the Rules forwarded to it by … the Association of Defence Counsel.”3MICT/16 Rev. 1, Practice Direction on Procedure for the Proposal, Consideration, and publication of Amendments to the Rules of Procedure and Evidence, 21 July 2016, para. 3. This puts the ADC-ICTY on equal footing with the President, Judges of the Mechanism, the Prosecutor, and the Registrar. This allows the ADC-ICTY to continue to enjoy a seat at the Rules Committee table.

Having been a member of the ADC-ICTY Rules Committee and having represented the ADC-ICTY on numerous occasions before the ICTY Rules Committee, I can attest to the collegiality and deference extended by all other members of the ICTY Rules Committee. No second class citizenship, no sitting in the back of the bus, no dismissiveness of the collective voice of the Defence expressed by me and my fellow colleagues as representatives of the ADC-ICTY.

But if this is merely a continuation of the status quo, then why the post? Well, an earlier version of the Practice Direction dated 2 May 2016, had reduced ADC-ICTY’s participation: “[the Rules Committee] may consider proposals from the Association of Defence Counsel or other bodies.”4MICT/16, Practice Direction on Procedure for the Proposal, Consideration, and publication of Amendments to the Rules of Procedure and Evidence, 2 May 2016, para. 3. This was a significant departure from earlier practice. For instance, the 24 January 2002 Practice Direction – which pre-dated the establishment of the ADC-ICTY – mandated the ICTY Rules Committee to consider all proposals for the President, the ICTY Judges or “other body.”5IT/143/Rev.2, Practice Direction on Procedure for the Proposal, Consideration, and publication of Amendments to the Rules of Procedure and Evidence, 24 January 2002, para. 1(a). A “Defence Counsel” was included as a member of the ICTY Rules Committee, and thus would be invited to meetings when proposed amendments were discussed.

So what happened? How, or, better yet, why were the MICT Practice Directions amended? Well, the ADC-ICTY Executive Committee intervened; it requested that the status quo remain. Obviously there was little need to persuade the powers that be at MICT of the valuable contributions of the ADC-ICTY over the years, and the continuing need to have a collective voice of defence counsel heard on matters of proposed rule amendments. Kudos to the President of the ADC-ICTY, Branko Lukic, for his excellent stewardship and deft savoir-faire.

An interesting twist worth noting.

Under the MICT Practice Direction, there is the possibility of having accompanying “written commentary or explanation” provided the judges agree in plenary when amendments are discussed and adopted.6MICT/16 Rev. 1, Practice Direction on Procedure for the Proposal, Consideration, and publication of Amendments to the Rules of Procedure and Evidence, 21 July 2016, para. 10. It will be interesting if commentaries or explanations follow amendments. High time.

I have always found it baffling that the 2002 Practice Direction had an express prohibition of any commentary or explanation to amendments.7IT/143/Rev.2, Practice Direction on Procedure for the Proposal, Consideration, and publication of Amendments to the Rules of Procedure and Evidence, 24 January 2002, para 8. In fact this seems to be the norm among international and internationalized courts and tribunals.

With no commentary or explanations as to why a rule was adopted or amended, there is nothing from which the judges or the parties could later discern the purpose of the rule or amendment. Knowing the intended purpose – the spirit – of the rule or amendments is helpful in guiding the application of the rule. It fosters – to the extent the judges are willing to sing off the same hymn sheet – uniformity in the application of the rules where there is no case law interpreting the rules or jurisprudence from another court or tribunal that could give guidance by analogy.

While there is arguable merit in not having all debates on an amendment made public for fear that they might stifle some from speaking up freely (a reason not acceptable for our national legislators, save for sensitive national security interests), there is no excuse for not publishing a commentary on the purpose and intended application of a newly adopted rule or amendment. Obviously there were compelling reasons for adopting the rule or amendment; otherwise there would be no need to tinker with the existing rules. So why not make those reasons known? Why the need for opacity and concealment?

A brief commentary or practice note, all relevant position papers submitted for debate of the rule adoption or amendment, as well as relevant excerpts of the minutes of the Rule Committee meetings in which the rule or amendment was discussed should be made available to the public at large. Essential. The MICT Practice Direction is a good start, hopefully a trendsetter.

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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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