ICC Judges Yield to the Experts’ Recommendations in Amending the Code of Judicial Ethics: a welcomed but modest tinkering to an otherwise impressionistic code of conduct

From the Experts’ consultation process, this lack of collegiality is said to have manifested itself in a variety of ways: poisonous relations, both judicial and personal, following the elections of the Presidency; public expressions of the lack of respect by a Judge towards other Judges; limited Chamber deliberations; excessive adherence and devotion to a Judge’s own legal system; very late circulation of draft written decisions; infrequent intra-Chamber and Intra-Division communications; existence of cliques, factions or open friction among Judges; lashing of disparaging comments on colleagues on the issuance of decisions; deliberate snubbing of associates; persistent failure to reach unanimity; and non-communication.

Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report, 30 September 2020, para. 463.

In 2005, the ICC Judges adopted what may have been considered back then a groundbreaking Code of Judicial Ethics. Groundbreaking not for its contents, but rather for drafting and adopting a code that was to be “advisory in nature and have the object of assisting judges with respect to ethical and professional issues with which they are confronted” (Art. 11.1). Perhaps because the code was merely seen as advisory, its significance, or better yet, its obligatory nature was unacknowledged  – at least by some of the judges.Codes of judicial ethics regulate the judiciary by providing guidance on the judges’ duties, responsibilities, and conduct towards other judges, the parties, witnesses, staff, and the judicial institutions – courts and tribunals. When providing clear and definitive rules governing the judges’ behavior, codes of judicial ethics effectively legislate, whereas when merely providing vague guidance with nebulous and undefined terms, they tend to be susceptible to mailable interpretations, equivocation, inconclusiveness, and ill-compliance. Of course, devising detailed rules for every ethical eventuality a judge is likely to encounter is unrealistic. Judicial canons should be pithy, expressing general principles. Preferably, they should also be accompanied by detailed prescriptive and proscriptive provisions that flush out the canons, and a commentary informing the object and purpose of the canons.

The ICC Code of Judicial Ethics provides no commentary but does merge canonical principles with more fleshed out provisions. Overall, it is a useful Code – at least to career judges and experienced litigators (prosecutors and lawyers) who arrive at the ICC to don the judicial two-toned blue robe. Even for those with prior national experience (who far too often are prisoners of their own legal system), a code that is scant in guidance, inexact in the meaning of terms, and lacking explanatory comments, will be appreciated and applied through their provincially narrow perspective. And it is not just the Code that is interpreted in this fashion – it cuts across all aspects of judges’ interpretation and application of statutory provisions, rules, and regulations. Not to mention their interactions with their colleagues and others. That’s where collegiality comes in. Continue reading “ICC Judges Yield to the Experts’ Recommendations in Amending the Code of Judicial Ethics: a welcomed but modest tinkering to an otherwise impressionistic code of conduct”

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POSTSCRIPT — DAVID PERRY QC DOES VOLTE-FACE: wise move or fainthearted retreat?

I understand in the case of Mr. Perry, in relation to the pro-democracy activists, and of course from Beijing’s point of view, this would be a serious PR coup.… Frankly, I think people watching this would regard it as pretty mercenary to be taking up that kind of case.

Dominic Raab, British Foreign Secretary

Raab owes Perry an unreserved apology. His remarks are not only foolish, but also flawed: they smack of grandstanding, rather than reason.… In the best tradition of the English Bar, Perry will be scrupulously fair at trial and he will ensure that there is a just outcome.

Grenville Cross QC, Former Hong Kong Director of Public Prosecutions

As I was posting my piece on David Perry QC accepting the brief to prosecute Hong Kong pro-democracy demonstrators, Perry withdrew from the case. The Hong Kong Government explained that “growing pressure and criticism from the UK community directed at Mr. Perry QC” and “the exemption of the quarantine” were the causes for his withdrawal.

Unfair pressure, crisis of conscience, realization of folly, economic considerations, or ridding of grief? Take your pick. One thing for sure, the claim that Perry’s withdrawal was due to quarantine issues doesn’t pass the smell test. Continue reading “POSTSCRIPT — DAVID PERRY QC DOES VOLTE-FACE: wise move or fainthearted retreat?”

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FILM REVIEW: The Trial of the Chicago 7

Abbie Hoffman:


This is a political trial that was already decided for us. Ignoring that reality is just weird to me.

William M. Kunstler:


There are civil trials and there are criminal trials. There is no such thing as a political trial.

In Aaron Sorkin’s The Trial of the Chicago 7, we see legendary civil rights lawyer William M. Kunstler slowly come to the realization that he is in a political trial, requiring a whole different approach to defending the eight (later seven) defendants in one of the most colorful, if not significant, trials in modern American history.

The above exchange in the film between Hoffman and Kunstler comes after opening statements. Kunstler’s epiphany comes well into the trial. Continue reading “FILM REVIEW: The Trial of the Chicago 7”

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Attorney-Client Privilege — The Crime-Fraud Exception

Recently there has been a sharp uptick in traffic to an October 2015 post I wrote on the crime-fraud exception to attorney-client privilege (reproduced below).  This post was part of a four-part series on attorney client-privilege issues in domestic and international(ized) courts.  I can only assume that the renewed interest in this subject is fueled by last week’s FBI execution of a search warrant on the office, home and hotel room of Michael Cohen, lawyer (some say “fixer”) for President Donald Trump.  As I write, the issue is playing out in a United States District Court in New York, where Cohen, supported by Mr. Trump’s lawyers, is seeking an injunction to prevent the prosecutor from examining seized materials, based on attorney-client privilege.

Before this litigation is over we are likely to see a very high-profile addition to the canon of law on the crime-fraud exception to attorney-client privilege.


Attorney-Client Privilege — Part IV: The Crime-Fraud Exception

This post follows up on the discussion of the attorney-client privilege and the crime-fraud exception raised in image3Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my previous post, I presented an overview of the attorney-client privilege (otherwise known as “lawyer-client privilege” or “legal professional privilege”) in the international criminal tribunals. As previously discussed, one of the exceptions to the attorney-client privilege is the crime-fraud exception. This exception applies when communications are made in furtherance of a crime or fraud. In other words, the attorney-client privilege is not a shield to be used by either the attorney or the client to pursue or cover up criminal activity, including acts contributing to the obstruction or perversion of justice. The ICC Pre-Trial and Trial Chamber decisions in Bemba raise several questions concerning the scope of this exception. Before I get into those questions, let’s briefly review the history of the case. Continue reading “Attorney-Client Privilege — The Crime-Fraud Exception”

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A Guantanamo judge’s crisis of conscience: epiphanous or extravagant?   

I’ll tell you, it was a sleepless night. The — I laid out kind of what I thought my options were yesterday. I thought about them again last night. I thought about them overnight. I wrote and rewrote what I was going to do. I went to the gym. I thought maybe the treadmill would either calm me down — which it has, of course. Give me more — more reflection. It did. And I went back and looked again, and looked again. (p.12367)



Probably rose-colored glasses. Thought about that last night, too. I took a moment to clean them; they’re not as rose-colored today. And it’s been pretty shaken, and it might be time for me to retire, frankly. That decision I’ll be making over the next week or two I think it might be here, because I’ve never seen anything like it. I’ll just ponder it as we go forward. (p.12374)


Judge Vance Spath in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, R.M.C. 803 session, 16 February 2018.

Air Force Colonel Vance Spath

Air Force Colonel Vance Spath, the presiding judge in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, the Guantanamo USS Cole war crimes trial, has had his faith in the law and what lawyers do shaken so profoundly that he is contemplating resigning from active military duty. Epiphany, moment of clarity, or chicanery disguised as faint claims of a tortured judicial soul?

For many of us following how the U.S. government has opted to prosecute “unlawful combatants” in its war on terror, our confidence in due process, fair trial rights, and the rule of law was shaken when the U.S. government established the pseudo-judicial institution in Guantanamo that masquerades as a war crimes court. Continue reading “A Guantanamo judge’s crisis of conscience: epiphanous or extravagant?   “

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ETHICALLY CONSTRAINED DEFENSE COUNSEL MUST WITHDRAW

Leaving the client without a lawyer to protect his rights could even be worse. I don’t know if I’ve done the right thing, but I don’t think I really had a choice.


US Navy Lieutenant Alaric Piette 

In an earlier post I nominated Marine Brigadier General John Baker, Chief Defense Counsel of the Military Commissions Defense Organization at Guantanamo Bay, for the 2017 Defense Lawyer Profile of Courage. Brig. Gen. Baker risked his military career, his future, his retirement benefits and much more by doing the right thing when lesser defense counsel in his place would have caved in or have deluded themselves into believing that going along to get along was ethically the right thing to do.

Brig. Gen. Baker gave no quarter: he discharged three civilian members of Abd al-Rahim al-Nashiri’s defense team (Richard Kammen, Rosa Eliades and Mary Spears), who were no longer able to ethically represent their client because communications with their client were secretly being monitored by the US government. This left al-Nashiri with just a single military lawyer, former US Navy SEAL, Lieutenant Alaric Piette. By his own admissions Lt. Piette is not learned – qualified by specialized training and experience to defend Guantanamo accused in cases where the US government is seeking the death penalty. Continue reading “ETHICALLY CONSTRAINED DEFENSE COUNSEL MUST WITHDRAW”

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WITHDRAWING FROM A CASE: Comment and Response

I greatly appreciate those who take time to comment on my blog posts.  Sometimes praise. Other times critical.  Often expanding the conversation.  Always welcome. When appropriate, I will make a brief reply directly in the comment function.  However, whether due to the subject matter or length of the reply, I will occasionally reply in a free-standing post.  Today’s post is such an occasion, as I respond to a lengthy comment from Mr. Bryan Miller to my post WITHDRAWING FROM A CASE: Abandoning ship or doing what is in the client’s best interest.


Dear Bryan,

Thank you for your recent comment to my post WITHDRAWING FROM A CASE:  Abandoning ship or doing what is in the client’s best interest. First, let me say that it is good to hear from you and see that you are doing well in your diverse private practice.  Though I was sorry to see that you didn’t include in your professional bio your time working for me in The Hague as an extern on the Ieng Sary case at the Extraordinary Chambers in the Courts of Cambodia.  In any event, many of your comments and questions are obviously beyond the scope of the post, though interesting nonetheless. I address them seriatim: Continue reading “WITHDRAWING FROM A CASE: Comment and Response”

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