ADC and ICCBA: not a zero-sum game

Whenever you think you are facing a contradiction, check your premises. You will find that one of them is wrong.


Ayn Rand 

We must all hang together, or most assuredly we shall all hang separately.


Benjamin Franklin

Commenting on my most recent post “The ADC-ICTY Evolves into an Association of Defense Counsel Practicing before International Courts and Tribunals,” Chima Ayokunle wrote:

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?

Grateful to Mr. Chima Ayokunle for his musings.  My response:

For the record

There is NO contradiction between my recent blog and the position I staked out in 2013 or as far back as 2007 when as President of the ADC-ICTY I was pushing for the establishment of an association of, for, and by List Counsel at the ICC. And YES, my position would be the same had I been elected ICCBA President.  Do keep in mind that throughout this period I was and continue to be a member of the ADC-ICTY, and the proposal to amend the ADC-ICTY Constitution is something that pre-dates the ICCBA’s establishment.

I am not proposing that the ADC supplant or compete with the ICCBA or any other association established for any other international(ized) court or tribunal.  It is a fact however that many List Counsel are members of the ADC. Notably, you have members of the ICCBA Executive Council and other ICCBA committees that are on the ADC Executive Committee and other ADC committees.  No one claims this to be a contradiction (or a conflict of interest), so why should anything that I am suggesting be considered a contradiction – or an about-face of my previously stated positions.

There are List Counsel who, for whatever reason, are members of the ADC but not the ICCBA.  Some have vast experience in many of the international(ized) courts and tribunals.  Many have assisted in authoring amicus briefs for various courts.  A significant number of counsel and their staff who practice before the ICC routinely attend ADC trainings.  Many have been members of the ADC Disciplinary Council and have authored advisory opinions.  Many have served on the ADC Rules Committee and have authored position papers and participated in discussions when proposals are discussed.  And many have over the years been involved in legal aid issues.

This vast experience has been acquired over the years and through practice.  Some of these folks are handling cases at the ICC – so they are no strangers to what is happening in that judicial institution.  And if you happen to get the ADC newsletter, you would have noticed over the years that it not only covers the ICTY but also has updates on all major happenings at the other tribunals, including the ICC.

There is nothing to prevent a critical mass of ICC List Counsel from joining the ADC and for the ADC to seek a seat at the ICC table.  Others can do the same under a different concept.  This is a reality, and one that I warned against.  I have also noted that it would not be prudent for ADC seek formal recognition from the Registrar and ASP as an association for defense counsel practicing before the ICC.

Lest you misunderstood my post and to be exceedingly clear, I am not suggesting that the ADC go head-to-head with the ICCBA, and to my knowledge, the ADC formally seeking ICC recognition as an association is neither being coveted nor foreseen.  No need for anticipatory anxiety.

The ADC has run its course with the ICTY; it was time to re-invent itself or perish.  It chose the former. Considering its accomplishments, its capabilities, and its generosity in promoting the interests of international criminal defense counsel, it would be foolish for List Counsel who are members of the ICCBA to feel threatened by the ADC.  If anything, ADC should be embraced by the ICCBA.  They should pool their resources and efforts, cooperate on matters that relate to defense counsel in general, and conduct joint trainings.  The ICCBA should call upon the ADC to weigh in on critical legal issues, to be a second source – or a second opinion – on matters related to discipline and professional responsibility, and to share their experiences and knowledge on legal aid matters.

If you look at my response to the previous comment, I note that the ADC can be much like the National Association of Criminal Defense Lawyers (NACDL) in the United States.  Almost every state in the US has a criminal defense association.  They are dedicated primarily, if not exclusively, to matters that affect their members in their own courts.  They are best poised to deal with troubling legislation before their local assemblies or state legislators.  They know the local practice and challenges, and they invariably know how to solve problems, train their members, provide ethics advice, etc.  Nonetheless, the NACDL, which is a nation-wide criminal defense association, not only co-exists with these state criminal defense associations but has proved to be an invaluable asset, resource, and powerful friend, ever-ready and able to weigh in on state and local issues that impact their criminal defense brothers and sisters.  Oh, and many NACDL members are also members of their state defense bar association, the criminal defense sections of their City or County bar associations, and the American Bar Association. Each of these organizations provide complementary value to the membership. Constructive co-existence.

I am not serving in any capacity at the ADC, but were my thoughts solicited, I would suggest that the ADC form an ad hoc committee for each of the international(ized) courts and tribunals, to assist the defense bar practicing in those institutions.  Indeed, the current ADC membership can form those committees with its members who are practicing at such places as the ECCC, STL, the ICC, and most likely the yet to be up and running Kosovo Tribunal.  These boutique ad hoc committees can not only help ADC remain up-to-date with the comings and goings of these courts and tribunals, but also would enable the ADC to be better placed to weigh in on critical issues when appropriate and when requested. In the case of the ICC, it can do so in a coordinated fashion, at least with the ICCBA Defence Section.  Keep in mind, not only is there much cross-pollination of counsel and staff among these various tribunals, but bad decisions in one can taint beyond those hallowed halls (think Tadić), while a good decision can influence broadly.

My position has not shifted. No sour grapes.  I firmly believe that the ADC in its new form will be a source and a force to be reckoned with, and one that can be of assistance to not only those who are practicing at the MICT or the ICC, but those practicing in any of the international(ized) courts and tribunals. As for my position on the ICCBA, you may wish to read: Defence Counsel Ethics, the ICC Code of Conduct and Establishing a Bar Association for ICC List Counsel, 16(6) International Criminal Law Review 1048 (2016).

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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 “ADC and ICCBA: not a zero-sum game”

  1. Thank you Michael for your explanation, still not convinced but I grateful for response.

    Chima

    1. Considering the enormous amount of personal time I have devoted to both associations, I feel no need to convince anyone of my intentions. My advice is to get involved and spend your free time working for the good of others. And if you do, you will see just how hard it is to please everyone or not have your intentions or your integrity questioned.

      Thanks for your comment; I am sure others were thinking what you expressed.

  2. Michael:

    Good forum for exchanging thoughts, thus I picked up a lot of insights. The debate/position is absolutely worth reading. Thx

    Thanks,

    West,

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