In my last post on establishing a Bar for the ICC, I noted that a committee had been formed to draft a Constitution to be circulated for comments, and that my draft was selected as the working draft. Now I would like further elaborate upon my vision for and concerns of a Constitution for a Bar for Counsel practicing at the ICC; a Bar that should also be open for Counsel practicing before other international tribunals. Continue reading “Sketches of a Bar for the ICC Counsel”
On 28 March 2015, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) invited me to present a full day of Advocacy Training. The event was held from 9am to 7pm at the ICTY in The Hague, The Netherlands. The aim of the training day was to help guide legal professionals through the process of preparing a case and to provide tips and approaches for direct and cross-examination. I also re-examined the core principles of evidence and objections that were covered in the Defence Symposium on 12 March 2015. Continue reading “ADC-ICTY Advocacy Training: Case Preparation, Direct and Cross-Examination”
Expert Conference on the Establishment of an ICC Victims and Defence Office
Establishment of committee to draft a constitution for and ICC Bar for List Counsel
On the 23rd and 24th of March 2015, the ICC Registrar held a conference of experts to discuss the establishment of a Victims Office and a Defence Office and the potential establishment of an association or bar for List Counsel. I was privileged to have been invited. Prior to the conference, the Registrar distributed his concept for the reorganization of the current setup with that envisaged by him and the ReVision team he set up for reorganizing the entire Registry. In addition to the Concept Note, there was an agenda which reflected the areas of discussion, and a draft basic outline of the Registrar’s proposals. Continue reading “Establishment of a Victims and Defence Office at the ICC”
You need to know the WHY in order to know the WHEN;
but if you do not know the HOW,
knowing the WHY and WHEN will be of no help.
On Thursday 12 March 2015, I conducted a Defence Symposium as part of the Advocacy Training at the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (“ADC-ICTY”). The topic was “Evidence and Objections”. The two-hour Symposium covered general principles and types of evidence, and how, why and when to make objections. The objective was to familiarize young lawyers, especially those coming from a civil law system, with the general evidentiary principles one is likely to encounter during a trial at one of the international criminal tribunals.
I began by highlighting two critical obligations of Counsel: due diligence and making the record. These obligations to the client cannot be stressed enough. Counsel must satisfy the duty of due diligence to ensure the client’s fair trial rights are protected. One element of being due diligent is to make timely and specific objections that preserve the errors for appeal, i.e. making the record. Since on appeal we are bound by the four corners of the record, failure to preserve errors in the record at the time when the errors were made can be fatal to a possible appeal. God may know but the record must show. Continue reading “Evidence and Objections: ADC-ICTY Defence Symposium”
In 2002 Defence Counsel at the International Criminal Tribunal for the Former Yugoslavia (ICTY) formed the Association of Defence Counsel Practicing Before the ICTY (ADC-ICTY) to assist in promoting the fairness of the proceedings and to protect the interests of Defence Counsel. Eleven years later and after countless accomplishments, the ADC-ICTY held its Legacy Conference on 29 November 2013. And now the ADC-ICTY has published the Legacy Conference Proceedings, making it available online. Privileged to moderate the panel on the Rights of the Accused, I followed up with a short article, The Rights of the Accused, intending to capture the essence of the fair trial rights Defence Counsel endeavor to ensure for all suspects and accused appearing before international criminal tribunals.
In my last post, I addressed the applicability of JCE III, arguing that as a product of judicial creation, JCE III does not exist in customary international law and should not be applied. This post is a follow up in light of the 30 January 2015 ICTY Appeals Chamber Judgement in the Srebrenica case, Prosecutor v. Popović et al., affirming the convictions for genocide.
One of the Popović Accused, Miletić, had argued that the Trial Chamber erred in law in holding that JCE III existed in customary international law at the time of the events. He emphasized that the Extraordinary Chambers in the Courts of Cambodia’s (“ECCC”) rejection of JCE III shows that it is not generally accepted and that its application is contrary to the nullum crimen sine lege principle.
Unfortunately, the Popović Appeals Judgement missed an exquisite opportunity to rectify the long-perpetuated error of law first made by the Tadić Appeals Chamber, which found that JCE existed in customary international law. Rather than engage in a constructive analysis, the Popović Appeals Chamber merely referred to its previous jurisprudence and found that Miletić failed to demonstrate any cogent reason to depart from it. This has been the problem from the outset. No ICTY Chamber has been willing to thoroughly analyze the state of customary international law; instead they choose to refer back to prior Judgements as if these Judgements themselves are evidence of JCE’s customary status. Continue reading “POPOVIĆ APPEAL CHAMBER REFUSES TO REVIEW JCE III APPLICABILITY”
After countless challenges and criticism from a wide-range of legal traditions regarding the extended form of joint criminal enterprise (“JCE III”), the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) held that JCE III does not exist in customary international law. The ECCC Trial Chamber, in its Decision on the Applicability of JCE, examined additional case law relied upon for JCE III support, and upheld and affirmed the Pre-Trial Chamber’s conclusion. Continue reading “The fiction of JCE III in customary international law”
For several years there have been talks and initiatives by members of the ICC List Counsel to establish a Bar or an Association. Indeed, in the last couple of years we have seen a growing interest, if not impatience, for a Bar or Association.
Last year I circulated a draft Constitution for an ICC Bar for List Counsel (click language choice to see draft in English or French) based in part on an earlier initiative and inspired by the ADC-ICTY model. I also circulated a modest commentary. But as in the past, the momentum and enthusiasm waned with the passage of time.
Then, out of the blue, the ICC Registrar, Herman von Hebel, sent an outline of proposals to be discussed during a meeting with List Counsel held on 16 September, wherein he expressed an interest in the establishment of an Association by, for and of List Counsel, that would be officially recognized by the ICC. Just what many of us have been advocating since as far back as 2007.
So the biggest hurdle – that of convincing the Registrar to recognize a Bar or Association for ICC List Counsel – has been removed. Time to move forward, and move swiftly. And here is why. Continue reading “ICC Registrar supports establishment of an Association for List Counsel”
How to Make the Record
Having elaborated on the importance of perfecting the record, and having the standards of appellate review in mind, I began to discuss in detail how to perfect the record. Counsel needs to see clearly how the case may unfold in each step of the proceedings, from the pre-trial stage to appeal stage. Cases are organic. Everything that is done at the pre-trial and trial stages may eventually be relevant on appeal. Even at the pre-trial stage, Counsel should be able to see far ahead what sorts of challenges he or she may raise at each stage, reopen at a later stage and bring on appeal. Conversely, on appeal Counsel is limited to whatever is already in the record unless there is a mechanism to adduce additional evidence such as Rule 115 of the ICTY Rules of Procedure and Evidence (ICTY RPE). Counsel ought to be aware of all options and mechanisms at each stage. This means being diligent in investigating the case, skilfully challenging all legal and factual issues through written submissions that fully preserve all errors, making and meeting oral objections during the proceedings, and putting on a case (which can be done strictly through confronting the prosecution case) that has a consistent, plausible, and well-developed theory. Continue reading “The Diligence That Is Due – Part II: How to Make the Record”
While we do not believe the trial judge testified untruthfully, we recognize that the written word in the record is ‘black and white’ evidence of what did or did not occur, whereas an individual’s recollection of those same events blur into gray. This case demonstrates the validity of an old legal truism: God may know but the record must show.
Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997) (emphasis added).
On 18 June 2014, I delivered the third installment of a lecture series on ethics to members of the Association of Defence Counsel Practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) and others. The previous lectures were on Judicial Ethics in the International Tribunals and Conflicts of Interest. This lecture focused on due diligence and the imperative of perfecting the record by properly preserving all potential errors for appellate review. The lecture lasted 2 hours. Certificates were issued to the participants for those who wished to claim 2 hours of CLE credits on ethics with their national / state bar. Continue reading “The Diligence That Is Due: Making the Record & Perfecting Grounds for Appeal”