A Call for an Independent Representative Body for KSC Counsel: thoughts and suggestions – Part 1

A prince should always seek advice, but only when he wishes and not when others wish. He must discourage everyone from offering advice unless he asks for it. However, he should inquire constantly, and listen patiently about those things of which he inquired…

Niccolò Machiavelli, The Prince

To paraphrase the Virginia Slims marketing slogan, we’ve come a long way, baby.

For some time, the Kosovo Specialist Chambers’ (KSC) Registrar (assuredly with the blessings of the President) has reached out, repeatedly, to Counsel on the List to represent to suspects, accused, and/or a group of victims before the KSC, encouraging them to establish an association. This is consistent with the intent of the KSC Statute, even though Article 19(4) makes references to an “independent representative body of Specialist Counsel,” with Article 34(7) defining “Specialist Counsel” as Defence Counsel, as distinct from Counsel representing a group of victims, which under Article 34(6) are labeled as Victim’s Counsel. Obviously, the KSC Statute (and the spirit of the drafters) envisages one association for all Counsel (see generally Part 2 of my series on the KSC), as clearly reflected in the Registrar’s letter of 29 May 2018 calling for the establishment of an “Independent Representative Body” by “Counsel”. To suggest otherwise would be to assume that the drafter intended to disenfranchise Victim’s Counsel from providing their input on matters that, among others thing, directly impact their clients, despite Article 22(5) which provides that victims’ groups are assisted and represented by a Victims’ Counsel as provided by the Registry’s Victims’ Participation Office. Moreover, it would not make sense to have two associations, and as briefly noted below and more expansively in the next post, one association, properly structured, can accommodate all Counsel, including in matters when Specialist Counsel’s and Victims’ Counsel’s interests diverge.

In any event, the push by the Registrar for Counsel is a far cry from what the founders of the Association of Defence Counsel Practising before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY), now renamed ADC-ICT (Association of Defence Counsel Practising before the International Courts and Tribunals) had to go through to convince the ICTY Registrar of the value in having an association for Counsel. It would take nearly a decade of persistent efforts by some International Criminal Court (ICC) List Counsel to convince the ICC Registrar to support and recognize the formation of a professional association for List Counsel – ultimately established in 2016 as the International Criminal Court Bar Association (ICCBA).

Then along comes the KSC. Even before the Registrar solicited interested counsel to get on the Lists of Counsel (the List of Specialist Counsel and the List of Victims’ Counsel), the drafters of the Statute incorporated language in certain provisions for consultation with a Specialist Counsel association of sorts. Hence the KSC Registrar’s appreciative cheerleading for Counsel to organize and unite.

Realistically, the KSC can manage just fine without an association; it is not as if the Registrar needs Counsel to be organized or that policy decisions could not be made, or regulations and directives could not be drafted without input from an independent representative body of Counsel. Effectively, the KSC has all of the attributes of a bar, notably, certification and discipline. The KSC dictates the criteria for qualifying to be on the Lists of Defence and Victims’ Counsel. It also has its own disciplinary regime (albeit still in the drafting state). The KSC can draft policies and directives that relate to Counsel with or without out input. In other words, lest there be any illusions, being on the List and accepting an assignment or an appointment is a take it or leave it proposition. Nothing extraordinary; a license to practice at a domestic jurisdiction also comes with regulations and restrictions. Considering this reality, however, it is remarkable that Counsel are given a seat at the table (albeit for limited purposes) without having to supplicate. Finally, an international(ized) criminal tribunal that does not take an us against them attitude and recognizes the indispensable role Counsel play in legitimizing the work and outcome of these judicial institutions.

By now you may be wondering what’s with the Machiavelli quote? Well, Machiavelli in The Prince advises leaders to avoid unsolicited advice. The irony, of course, is that Machiavelli violates his own rule by offering unsolicited advice by way of The Prince, written to curry favor and undoubtedly secure a position from the then-Prince in power. To be clear, I have neither the need to curry favor nor the inclination to get involved in association politics should one be established at the KSC, but having been involved in the formation of both the ADC-ICT and ICCBA and for whatever it is worth, here is some unsolicited advice to the working-group currently engaged in facilitating the process of forming something – yet to be determined. In this post (Part 1) I will share some thoughts with the working-group and Counsel on what the association encompasses and why it is necessary. In the next post (Part 2), I will deal with the structure of the association and its Constitution or Statute (however denominated).

Why it makes good sense to organize and unite

To my knowledge, there are nearly 100 Counsel on the List. With support staff and future admissions, the number could grow to 300 plus. Having an association by and for Counsel and their team members / assistants (case managers, legal consultants, investigators, interns) to protect and foster their interests has proved to be essential at the international(ized) criminal tribunals and courts.

Presumably, the working-group is looking at the experiences of other associations, namely the ADC-ICT and ICCBA. The ADC-ICT has been the trendsetter offering many lessons learned, whereas the ICCBA, which has yet to punch anywhere near its weight, offers the most accommodating structure for an association tailored to the KSC (more on this in Part 2).

What should the Independent Representative Body be and what will it do?

The most pressing issue to resolve is the purpose of the Independent Representative Body – what is it expected to be: a bar (association), a trade union, a club, or a professional association that effectively encompasses a bit of everything?

Much depends on the functions of this body constrained by the KSC’s regime. The body, which I will refer to for the sake of convenience as an “association,” can only take on functions and competences not exclusively reserved for the KSC or any of its organs. Expectations must be realistic. The primary goal should be for the association to be recognized by the KSC as the official association of Counsel. Without such recognition it will lack legitimacy. Without legitimacy, it will lack efficacy.

Any restrictions imposed on the association by the KSC’s regime would not necessarily interfere with its independence. Official recognition and independence – both of which are indispensable – are not mutually exclusive. Based on the KSC’s founding documents and rules of procedure and evidence, I do not see any impediments for an association being empowered to make meaningful contributions for and from its members and in shaping the rules and regulations, quality of training, input on vital legal questions as amici curiae, and so on. But, the association must be recognized by the KSC.

Before qualifying the association as a bar, trade union, club, or professional association, consideration should be given to its functions – ultimately to be decided by the founding members. Here are but a few suggestions.

Participating in legal aid policy matters. Counsel depend on the Registry for their assignment and for the resources to represent the client, unless the client is affluent and can pay for Counsel’s services. By deciding on the budget for Counsel, the Registry effectively decides the composition, size, and quality of the team. Qualified Counsel and assistants (legal consultants, analysts, investigators, and case managers) do not come cheap. If there are insufficient funds to ensure a full complement of a qualified team, not only is there a lack of equality of arms, but also a lack of effective legal services.

Considering that complaints concerning assignment or payments are made to and reviewed by the Registry, it may be overly optimistic to expect unbiased and independent advice from the very same organ that has a vested interest (and budgetary constraints) in upholding what it believes are reasonable fees and resources. Experience of other international(ized) criminal tribunals and courts has shown that many who are entrusted with making decisions within the Registrar’s office have no actual experience in representing a client or working on a complex and challenging defense case. If they have no frame of reference concerning what it takes to mount a defense – investigate, draft nuanced submissions, prepare for a trial, properly try a case, and the painstaking preparation that goes into conducting an exacting examination of a witness to make a proper trial record to preserve all substantive and procedural errors for appeal, – then how can they best represent or assist Counsel in ensuring that adequate facilities are being provided to match those of the prosecution?

It matters not how learned or clever or meticulous Counsel may be, if they do not have the requisite resources to hire the right staff, Counsel are at risk of not meeting their due diligence obligations, which in turn could result in Counsel being in dereliction of their duty to act with integrity, expeditiously and conscientiously. An association with competent and experienced Counsel can offer much in articulating their needs and in crafting a legal aid policy that is responsive and equitable.

Providing input on amendments to rules and directives. The voice of Counsel as a meaningful contributor to any changes of the ICC’s rules and directives has been circumscribed. One person acting for all Counsel cannot credibly meet the challenges posed when amendments are being proposed, such as drafting coherent policy papers regarding the amendments. A KSC-dedicated association with resources and engaging Counsel could meaningfully contribute to proposed amendments of the KSC rules and directives.

Providing training. An association can and should complement whatever institutional support is available to Counsel and their assistants concerning training. An association can create a Training Committee tasked with identifying and organizing relevant courses and trainings so that Counsel who are not on a case or are far removed from The Hague can receive basic training. It can establish an orientation program for newly assigned Counsel. It can also help create a practice manual, data bank of material ranging from substantive legal issues to submissions, periodic updates and analyses of important decisions, etc.

Influencing the development of substantive and procedural issues of first impression. An association can and should intervene as a voice of Counsel on issues that have implication on Counsel’s practice before the KSC. When an important legal issue arises, the association can coordinate efforts and seek leave in filing amici curiae briefs on such issues.

Assisting in matters of ethics and professional responsibility. A professional association that has resources and fully appreciates the KSC’s substantive law, procedural nuances, applicable code and disciplinary regime, in addition to the insight into the nuances of Counsel’s national/domestic jurisdiction can be highly useful.

KSC Counsel, whether they represent suspects, accused, or victim(s), genuinely need help in meeting their responsibilities to their clients, and their ethical obligations require them to identify reasonable answers to nuanced issues. National and international codes of conduct lend mere guidance as opposed to hard and fast rules that are readily discernible. The complexity in resolving these sort of ethical issues is magnified when impromptu decisions are required, such as when in the field investigating, interviewing witnesses, coming across or being handed evidence, proofing witnesses (when allowed), etc. And with each decision or action there is a consequence or reaction; harmless indiscretions can easily morph into serious ethical violations.

While the association cannot supersede the KSC’s disciplinary regime, it can and should take on a role in disciplinary matters, such as a resource provider for non-binding ethics opinions. Even though there is no guarantee that the KSC will agree with the advice provided, at a minimum, seeking such advice will show diligence and caution.

Should Counsel opt for another association to represent their interests? 

As I discussed in an earlier post, the ADC-ICTY amended its Constitution, transforming it into an Association of Defence Counsel Practising before the International Courts and Tribunals. I was then of the opinion that the ADC-ICT could play a role in catering to the needs of Defence Counsel at the KSC. Upon reflection, this does not seem to be a viable option for two reasons. First, the ADC-ICT could not accommodate the needs of Victims’ Counsel; unlike the ICCBA, ADC-ICT does not have a dedicated section to meet the particular needs of Victims’ Counsel. Second, and perhaps more importantly, Article 19(4) of the KSC Statute specifically refers to an “independent representative body.” As framed, it does not appear to envisage Counsel to be outsourcing the prerogatives afforded to them by the KSC Statute to an outside body that for all intents and purposes is dedicated to the United Nations International Residual Mechanism for Criminal Tribunals. From a practical point of view, the ADC-ICT executive and committee members who are not on the KSC List of Counsel are unlikely to be familiar with or even interested in the ongoing matters of the KSC. Lastly, it is improbable that Counsel would agree to have their interests represented by a body they have not established.

Should the association be mandatory or voluntary?

Ideally, membership should be compulsory for all Counsel. Realistically, the KSC would have to approve it, and even then, it seems questionable to compel Counsel to join an association and to pay annual or monthly fees. What if the association fails to provide the requisite services, or its elected officers are not responsive to the needs of the members? Counsel should not have to pay to play, especially considering that the Registrar is already obligated to provide certain essential services and resources, such as working space for Counsel, computers and trial management tools, etc. I would also throw in training.

That said, to paraphrase a memorable line from the film Field of Dreams: If you establish it & provide relevant and constructive services, they will join.

Counsel are likely to join an association, participate in it and remain members to it, if, once established, the association proves itself to be effective, responsive, and inclusive. For instance, as an illustration of what can be achieved within months of establishing an “independent representative body,” here is a list I proposed for the ICCBA’s first year – all of which was feasible. Granted, the ICC is different from the KSC, however, most of the proposed goals on the list are equally relevant and worth considering should an association be established (for more see my post The ICCBA is born. Huzzah! Now for the steep climb ahead):

  • Negotiating with the Registry for office space and equipment in the ICC building.
  • Organizing discussions with the Registrar to discuss all policies and directives relevant to members.
  • Organizing the procedures as to how the ICCBA will function, including rules of procedure.
  • Developing a fundraising strategy, followed by active campaigning for funds to make the ICCBA as accessible and fair as possible, and to keep membership fees low.
  • Securing accounting and auditing services.
  • Developing an outreach program with achievable milestones and goals.
  • Liaising with ICCBA members’ national bars.
  • Drafting best practices manuals to ensure that ICCBA members are fully aware of what is expected of them in meeting their ethical and professional responsibilities.
  • Creating an orientation e-course and other training courses so that members who are not in a case or are far removed from The Hague can receive basic training.
  • Creating a monthly newsletter.
  • Creating an email distribution list that informs ICCBA members of all important legal and procedural decisions.
  • Establishing a motions bank to be used as a tool for research and submission drafting.
  • Identifying and organizing relevant trainings – either through CSS or on its own.
  • Identifying a strategy for engaging with the ASP to secure unqualified recognition and acceptance by the ASP of the ICCBA as the exclusive association for List Counsel and Assistants at the ICC.

Next – Structuring KSC Counsel’s Independent Representative Body: a template

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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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