The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals

On 16 December 2016, the Association of Defence Counsel Practising before the International Criminal Tribunal for the former Yugoslavia, commonly referred to as the ADC-ICTY, held a second General Assembly Meeting.  The agenda had one item only: amending the ADC-ICTY Constitution to change the name of the ADC-ICTY to better reflect its function – effectively transforming it into an association for defense counsel practicing before international tribunals and courts. And so the ADC-ICTY Constitution was amended.

The ADC-ICTY was established by defense counsel practicing at the International Criminal Tribunal for the former Yugoslavia (ICTY), and it was officially recognized by the Registrar. As I have previously noted (here and here), the ADC-ICTY was established because of the various shortcomings at the ICTY such as the grossly inadequate resources allocated to the Defense, the actual inequality of arms, the negative image imputed to the Defense, the lack of a voice on matters concerning the rights of the accused and the rights of the Defense, and so on. During the ICTY’s early years, defense counsel had no say in the amendment of rules, no say in the setting of policies and practice directives that affected them, and no say in the remuneration schemes adopted by the ICTY Registry. Prior to the ADC-ICTY, the defense offices had limited basic facilities such as telephones and photocopiers, and unlike the prosecution and court staff, defense counsel were subjected to extra security, and had no access to the ICTY building other than the public lobby.1 For a detailed account of the ADC-ICTY history, see Kate Gibson, John RWD Jones QC, Michael G. Karnavas, and Melinda Taylor, Regulation of the International Bar: The Particular Challenges for Defence Counsel at the International Criminal Courts and Tribunals, to be published in Research Handbook on International Courts and Tribunals, (William A. Schabas and Shannonbrooke Murphy eds., Edward Elgar Publishing). See also David Talbot, The ICTY and Defence Counsel: A Troubled Relationship, 37 New England Law Review 975 (2002-2003).

After an extensive collaborative process between defense counsel and organs of the ICTY, the ADC-ICTY came into existence on 20 September 2002, nearly nine years after the ICTY’s establishment.  Most importantly, Rule 44 of the ICTY Rules of Procedure and Evidence (RPE) was amended to make membership in an association of defense counsel compulsory, firmly establishing the ADC-ICTY as the sole professional association dedicated to the ICTY.2 ICTY Press Release, Judges’ Plenary Session Adopt Reforms Concerning Defense Counsel Teams, 19 July 2002.

Over the years, the ADC-ICTY has punched well above its weight

Over the years, the ADC-ICTY has punched well above its weight.  It has been instrumental in ensuring that counsel’s voice is heard on matters ranging from the legal aid policy, to policy directives, to screening applicants to the list of counsel, to amending the RPE, to legacy conferences, etc. It puts out a bi-monthly newsletter with updates on all international(ized) tribunals and courts, relevant publications, current events, and employment opportunities.  The ADC-ICTY has provided amicus briefs on critical legal issues both at the ICTY and elsewhere. It has offered advisory opinions on disciplinary and professional responsibility matters.  Over the years it has also offered countless training seminars on substantive law and skills, helping countless lawyers from all international(ized) tribunals and courts improve their knowledge and skills.  By all accounts and by every measure, the ADC-ICTY is a success story.3 For more on the ADC-ICTY Legacy, see Association of Defence Counsel Practising Before the International Criminal Tribunal for the former Yugoslavia Legacy Conference, The Hague, The Netherlands, 29 November 2013; ADC-ICTY Publications, Manual on International Criminal Defence: ADC-ICTY Developed Practices (2011).

All good things need not come to an end

With the ICTY coming to an end, and with the emergence of the Mechanism for International Criminal Tribunals (MICT), the ADC-ICTY was forced to evolve.  On 24 August 2015, it was officially recognized as the association of counsel for the MICT, which covers both the ICTY and the International Criminal Tribunal for Rwanda.4 The ADC-ICTY was provisionally recognized in December 2012 as the de facto Association for the MICT. See The ADC’s Continuing Relevance: MICT’s Rules Committee Practice Direction, 18 August 2016, available here, for the ADC-ICTY role at the Rules Committee regarding the 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.

At a minimum, the ADC-ICTY needed to amend its constitution to change its name.  But, with the establishment of the Kosovo Tribunal (Kosovo Specialist Chambers & Specialist Prosecutor’s Office) in The Hague, the possibility of other ad hoc tribunals established under the MICT or independent of it, and the lack of associations (collective representation) at other criminal tribunals and courts such as the Special Tribunal for Lebanon and the Extraordinary Chambers in the Courts of Cambodia, it only made sense for the ADC-ICTY to evolve and expand to an association open to all defense counsel and their staff practicing in all international(ized) tribunals and courts.

To reflect this new reality, it was necessary to change the name “ADC-ICTY” to “Association of Defence Counsel Practising Before the International Courts and Tribunals.”  In short, “ADC.” Appropriately, the text of the constitution was amended, adding the formula “Defence Counsel practising before the International Courts and Tribunals” throughout. The amendments will become effective as soon as the new constitution is notarized under Dutch law.

As reflected in the Preamble, aside from the MICT, all other tribunals and courts will need to recognize the ADC as the association for defense counsel and their staff practicing before them. But even if not officially recognized, the ADC can provide valuable services such as those the ADC-ICTY provided to its members.  It can, for instance, organize trainings, offer advisory opinions on disciplinary and professional responsibility matters, and draft concept papers for proposed rule amendments.

Is there room for the ADC at the ICC? 

Yes. Despite the recent establishment of the International Criminal Court Bar Association (ICCBA), nothing prevents the ADC from venturing to the International Criminal Court (ICC).  While Rule 20(3) of the ICC RPE notes that the Assembly of States Parties (ASP) may facilitate an establishment of an association,5 Rule 20(3) of the ICC Rules of Procedure and Evidence provides: “For purposes such as the management of legal assistance in accordance with rule 21 and the development of a Code of Professional Conduct in accordance with rule 8, the Registrar shall consult, as appropriate, with any independent representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties.” (Emphasis added.) there appear to be no restrictions placed on the Registrar (or self-imposed by the ASP) limiting the number of associations which can be recognized to only one.  This may change should the ICCBA convince the ASP that only it should be recognized, but the likelihood of that occurring is rather slim.

As the ICCBA was being established, an anti-ICCBA collective of bars and associations (Union Internationale des Avocats, Avocats Barreau Paris, Avocats.Be, Federation des Barreaux D’Europe, Conférence des Barreaux des États Membres de OHADA, and the Council of Bars and Law Societies of Europe CCBE) lodged complaints with the ICC President and Registrar and requested significant changes to the proposed ICCBA Constitution6Letter from Union Internationale des Avocats, Avocats Barreau Paris, Avocats.Be, Federation des Barreaux D’Europe, Conférence des Barreaux des États Membres de OHADA and the Council of Bars and Law Societies of Europe CCBE, 17 June 2016, available here. (which effectively passed with few changes). While their arguments lacked merit, their efforts to de-rail the ICCBA brought to the forefront the fact that the ICC Registrar cannot designate a sole association for those practicing at the ICC as the official association, nor can it give preference to the ICCBA should there be an interest by those practicing before the ICC to also join another association to look after their interests before the ICC, including the ADC. This is the ICCBA’s Achilles’ heel, which is why I issued a call for the ICCBA’s newly elected officials to move with all deliberate speed on a number of matters in order for the ICCBA to establish its bona fides and hopefully gain expeditiously the ASP recognition it so covets.

Be that as it may, there is significant room for constructive engagement and suitable coexistence at the ICC for both the ADC and the ICCBA. Were the ADC to seek recognition from the ICC Registrar (a plausible scenario), some sort of an accommodation could be reached to avoid cutthroat strategies and tactics associated with empire-building and petty turf wars.  But even if the ADC opted not to seek official recognition (the more prudent approach at this time), it can and should be a player at the ICC by weighing in on issues related to the defense bar. This will require coordination and cooperation between the two associations.

Given the ADC-ICTY’s proven abilities and considering the goodwill it has shown to the ICCBA (as when it provided invaluable help in setting up the ICCBA), I have no doubt that the ADC can be a major force for the defense bar at the ICC, as it unquestionably will be for defense counsel practicing at other international(ized) tribunals and courts.

If you are a defense counsel or working for the defense in any capacity (case manager, legal consultant, investigator) or if you are interested in matters generally related to the fair trial rights of accused, and you are not a member of the ADC(-ICTY), you should seriously consider joining.  Here is the website: www.adc-icty.org.

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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.

3 thoughts on “The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals”

  1. Dear Mr. Karnavas:

    Thank you for the post. I guess I support your point. Maybe a tad bit more about why they need to be admitted to the ICC? It may be a left field thought, again this is probably due to the lack of depth in the association or inter-related between the ICC and other pertinent courts.

    Thanks,

    West,

    1. The ADC has the potential to evolve into an international defense bar association, much like the National Association of Criminal Defense Lawyers (NACDL) is in the United States. I am not suggesting that it should seek formal recognition at the ICC, but I do think it can compliment, and in no small measure provide essential services to the defense bar at the ICC – as it can and does with other international courts and tribunals. What is undeniable is the fact that ADC-ICTY has vast experience and a significant track record of successes. Now that the ICTY is coming to an end, ADC can spread its wings beyond the MICT. Which is also why I encourage you and other Cambodian lawyers whether practicing at the ECCC or at the national courts to join ADC.

  2. As far back as November 2013 you advocated on your blog that ICC ‘List Counsel must form their own Bar’ and ‘Only a Bar of List Counsel, by List Counsel and for List Counsel, can legitimately and passionately advocate for the needs of List Counsel’ (http://michaelgkarnavas.net/blog/2013/11/11/why-establish-a-bar-of-list-counsel-of-the-international-criminal-court/)

    After this you were chair of committee drafting the Constitution for a Bar at the ICC and then you ran for president of the ICCBA and didn’t succeed.

    It seems a contradiction to me that now you suggest that there could be more than one association at the ICC. Why be involved in establishing the ICCBA if this existing association could do it?

    I wonder whether your view would be the same if you had been elected as ICCBA president?

    Chima ayokunle

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