Can justice be achieved at the ICC without due process of law? Can due process of law be achieved at the ICC without List Counsel? Can List Counsel meaningfully fulfil their duties and obligations to their clients if there is inequality of arms or asymmetry between them and the Prosecution? Can the internationally recognized standards and human rights principles be seriously advocated by List Counsel if they are without a collective voice that champions their needs so they can, in turn, champion the needs of their clients?
No reason to tax the mind pondering these questions. Article 67 of the ICC Statute, and Rule 20 of the Rules of Procedure and Evidence require the Registrar to promote a robust defence for all accused based on internationally recognized fair trial rights. Correspondingly, Article 68 of the ICC Statute and Rules 90, 91, 92 and 93 of the Rules of Procedure and Evidence provides for robust victim participation in court proceedings in person or through their legal representatives.
So, if the Rome Statute and the Rules of Procedure and Evidence make clear the functions and responsibilities of List Counsel, and if the Registry is required to assist List Counsel by way of resources and support in achieving their functions and responsibilities, why the imperative for a Bar for List Counsel?
In theory, the Registry can claim that effectively it provides all the necessary and reasonable functions of a Bar: it controls admittance to the List of Counsel, has set in place a disciplinary code of conduct for those on the List of Counsel, and is, in part, empowered to sanction, suspend or expel those on the List of Counsel. As untenable as this claim may seem to some of us, it is not entirely without merit. Which is all the more reason why List Counsel must form its own Bar. The Registry, being part of the ICC institution, cannot be expected to consistently advocate for the rights and needs of List Counsel. The Registry views List Counsel as a monolithic group that is unrelated to, but to be suffered by, la famiglia ICC.
Only a Bar of List Counsel, by List Counsel and for List Counsel, can legitimately and passionately advocate for the needs of List Counsel, whose sole responsibility before the ICC is to represent their clients effectively, zealously and unreservedly. With political agenda, consequentialist-driven decisions and the convenient application of situational ethics in the name of pragmatism being the hallmarks of international criminal justice, counsel at the various international tribunals have had to organize from within in order to be relevant. If anything, the past 20 years have shown that where counsel acted alone or without an association or bar formed from within the international criminal tribunals, the registries in those tribunals were less than accommodating, and certainly less consistent in providing adequate resources and support. Policies were being drafted (or claimed to be in existence) often by recent law school graduates filled with good intentions, but with no practical experience. While consulting counsel seemed anathema to the in-house decision-makers, turning to the prosecution for observations and advice seemed natural, if not indispensable. This sad reality gave birth to what is now widely recognized by List Counsel: the importance of self-organizing through an association or bar dedicated to appreciating and meeting the institutional challenges posed to counsel, whether they be in the courtroom or with the Registry.
But one need not look to the experiences of the various international tribunals to learn these lessons. Every year at the seminar hosted by the ICC Registrar for List Counsel, a constant refrain is heard about the challenges counsel experience. Every year there is collective lament of how bad things are, of how things will get worse, and how powerless the collective is because of its discordant state. And every year there is the all-too-predictable mantra: if List Counsel were represented by a Bar, then perhaps some of these recurring issues could be addressed with speed, assurance and the authority of a unified voice.
For years List Counsel have been divided on the question of who should be their representative at the ICC. Up until last year, this was a refrain which yielded much discontent, yet little action. The time has come to move forward with all deliberate speed. It is past time to for a Bar of List Counsel, by List Counsel, for List Counsel. Next, how should the Bar of List Counsel be constituted?