The Lawyer’s Independence — Part II

    The Lawyer’s Independence: A Universal Principle of Disparate Meanings

    Part II – A Critical Analysis of International Legal Ethics

    This post follows up on my discussion of the ethical principle of a lawyer’s independence. Though virtually all national and international codes of conduct codify the lawyer’s independence, a lawyer’s understanding of this principle and the ethical duties deriving therefrom differs depending on his or her legal tradition.

    IndependentDefIn my first post, I attempted to clarify what it means to be “independent” in the national context by discussing the lawyer’s role in the civil and common law systems and how the principle of independence is interpreted in various domestic legal systems. This post will focus on the ethical principle of a lawyer’s independence in the context of international and internationalized criminal tribunals based on the various applicable and aspirational codes of conduct.

    Lawyers (hereinafter “Counsel” as generally referred to at international tribunals and courts) from different legal traditions have different experiences and are beholden to their own canons and traditions of professional ethics. What may be permissible in one national jurisdiction may not be permissible in another, and depending on the circumstance, may or may not be permissible at one of the ad hoc international or internationalized criminal tribunals, or the International Criminal Court (“ICC”). And herein lies the conundrum: with which code of conduct and with which interpretation of any of the ethical principles must Counsel abide when practicing at any of the international or internationalized tribunals? Is it as simple as saying that Counsel must abide by the code of conduct of the tribunal or court before which he or she is appearing? What if there is a conflict or a notable difference between Counsel’s national code and the court’s code? This fundamental ethical issue, which Counsel will invariably encounter in representing accused or victims before these courts and tribunals, will be the topic of another post. I merely raise this point now to highlight just how not so simple or straightforward it really is in practice to straddle codes of conduct with diverging meanings of ethical principles that textually and with an unadorned reading seem identical. Continue reading “The Lawyer’s Independence — Part II”

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    Judgement by essay at the Extraordinary Chambers in the Courts of Cambodia results in public apology

      On 2 December 2015, the Public Affairs Section (PAS) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) published its November Court Report. The PAS saw fit to include in the Court Report an essay titled “Exploring Transgenerational Justice at the ECCC”, which was published without attribution. In the essay, which discussed PAS interviews of high school students and senior citizens about their perspectives on trauma and justice, the author reached some astonishing conclusions about crimes purportedly committed from 1975 to 1979 (the period in which the Khmer Rouge governed Cambodia). In the author’s view, “some of the most gruesome crimes against humanity were perpetrated [in the years between 1975 and 1979]” and, “[d]espite having only second-hand information about the genocide perpetrated in their nation, [students] envision a peaceful Cambodia similar to the pre-1975 Cambodian society.”1ECCC Court Report, November 2015, Issue 91, p. 2 (emphasis added). Continue reading “Judgement by essay at the Extraordinary Chambers in the Courts of Cambodia results in public apology”

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      The Lawyer’s Independence: A Universal Principle of Disparate Meanings – Part I

        Part I – A Critical Analysis of Domestic Legal Ethics

        Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.1Basic Principles on the Role of Lawyers, Art. 14, Adopted by the Eighth United Nations Congress on the Prevention of Crimes and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.  

        CodeConductTilesThe lawyer’s independence is a principle universally recognized as one of the cornerstones of the legal profession the world over. As can be seen from the above quote, lawyers must be independent and, at all times, act freely if they are to carry out their professional functions, which include, inter alia, advocating for the advancement of human rights, protecting the rights of their clients, and fostering the administration of justice. Virtually all national and international codes of professional conduct codify the lawyer’s independence. However, a lawyer’s understanding of the principle of “independence” and the ethical duties deriving therefrom, differs depending on his or her legal tradition. Continue reading “The Lawyer’s Independence: A Universal Principle of Disparate Meanings – Part I”

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        Attorney-Client Privilege – Part VI: So Just How Immunized Am I Before the International Tribunals?

          This is the final post on my discussion of the attorney-client privilege and the crime-fraud exception raised in Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my first post, I set out the factual context of the case. In the second and third posts, I discussed the attorney-client privilege in national tribunals and international tribunals. In the fourth post, I gave an overview of the crime-fraud exception and a legal analysis of the issues arising from the Pre-Trial Chamber1Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for Judicial Order to Obtain Evidence for Investigation under Article 70”, 29 July 2013. and Trial Chamber2Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters”, 21 July 2015. decisions relating to the ICC Office of the Prosecutor’s (“OTP”) request for a judicial order to obtain evidence. In my fifth post, I discussed the application of other types of evidentiary privileges at the international criminal tribunals. In this final post I will discuss the privileges and immunities accorded to those working at the international criminal tribunals, focusing primarily on the immunities afforded to Counsel. Continue reading “Attorney-Client Privilege – Part VI: So Just How Immunized Am I Before the International Tribunals?”

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          Attorney-Client Privilege – Part V: Other Privileges in International Criminal Tribunals

            This is the fifth post in my series on the issue of attorney-client privilege in a contempt case in Prosecutor v. Bemba et al. (“Bemba”) at the International Criminal Court (“ICC”). In my first post, I set out the factual background to the case. In the second and third posts, I discussed the attorney-client privilege in national tribunals and international tribunals. Wrapping up my discussion of Bemba, in the fourth post, I gave an overview of the crime-fraud exception and an analysis of the legal issues arising from the Pre-Trial Chamber1Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for Judicial Order to Obtain Evidence for Investigation under Article 70”, 29 July 2013. and Trial Chamber2Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters”, 21 July 2015. decisions relating to the ICC Office of the Prosecutor’s (“OTP”) request for a judicial order to obtain evidence.

            One issue that arose in Bemba was whether privileged attorney-client communications could be used as admissible evidence. To elaborate on this question, it is useful to look at the application of other types of evidentiary privileges at the international criminal tribunals.

            This blog post is just a sampling of other types of privileges at the international criminal tribunals. It does not list all types of possible privileges, but only gives some illustrative examples of how other privileges apply. Continue reading “Attorney-Client Privilege – Part V: Other Privileges in International Criminal Tribunals”

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            Recent Events: Geneva meeting on Defence Offices at the International Criminal Courts; Skopje evidence training

               

              Geneva meeting: Defence Offices at the International Criminal Courts

              On 22 and 23 October 2015, Michael G. Karnavas participated in the Third International Meeting of Defence Offices at the International Criminal Courts in Geneva, Switzerland.

              During a Round Table session on the Overview of the issues faced by the defence before the international criminal courts, Karnavas addressed the lack of meaningful right to counsel in seeking post-conviction relief at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) which have phased into the Mechanism for International Tribunals (MICT). According to the MICT Registry, it will only grant legal aid for post-conviction issues in exceptional circumstances and only after a judicial order. Former Accused and convicted persons may engage pro bono Counsel to represent them before the MICT. The absence of an entitlement to legal assistance does not prevent the MICT from assisting convicted persons in obtaining Counsel to assist with post-conviction matters and the Registry is therefore currently establishing a list of pro bono Counsel. As Karnavas bluntly explained: If Defence Counsel want to work for free, MICT will let them, although MICT will not even promise to appoint that Counsel if there is an issue that warrants appointment.  Ludicrous. Continue reading “Recent Events: Geneva meeting on Defence Offices at the International Criminal Courts; Skopje evidence training”

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

                image3This post follows up on the discussion of the attorney-client privilege and the crime-fraud exception raised in Prosecutor 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 — Part IV: The Crime-Fraud Exception”

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                Attorney-Client Privilege – Part III: International Tribunals

                  The third post in this blog series discussing questions of attorney-client privilege raised in Prosecutor v. Bemba Gombo et al. (“Bemba”) will explore the contours of the attorney-client privilege used in international criminal tribunals. As discussed in my previous post, the attorney-client privilege is the oldest privilege for confidential communications firmly established in domestic legal systems. Its rationale is founded upon fundamental fair trial rights, primarily the freedom from self-incrimination and the right to communicate freely with Counsel. This privilege – which is not absolute – does not cover all communications between the lawyer and client. Continue reading “Attorney-Client Privilege – Part III: International Tribunals”

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                  Attorney-Client Privilege – Part II: Foundation in National Systems

                    In my previous post, I explained why I filed a request for leave to file an amicus brief in Prosecutor v. Bemba Gombo et al. (“Bemba”) at the ICC, and provided the factual context of the case relevant to the issue of attorney-client privilege communications. In Bemba, the Trial Chamber ordered several communications between Counsel, the client, the case-manager, and others to be transmitted to the Office of the Prosecutor (“OTP”) and other parties.1Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-947, Decision Providing Materials in Two Independent Counsel Reports and Related Matters, 15 May 2015, paras. 22, 32, 33, 35-37. Thus, several issues surfaced. What is the scope of the attorney-client privilege? What types of communications does it cover? Who does it cover? As this privilege has its foundations in national systems, before addressing the overarching issue of attorney-client privilege before international tribunals and specifically the ICC, a brief discussion of its basic principles in national jurisprudence may be helpful. This post will provide a historical background of the attorney-client privilege, its parameters, and its exceptions in national jurisdictions. The intent is to provide the basic principles with some illustrative examples, as opposed to an extensive exegesis with an exhaustive list of relevant jurisprudence. Continue reading “Attorney-Client Privilege – Part II: Foundation in National Systems”

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                    Attorney-Client Privilege and the Crime-Fraud Exception — Part I

                      Recently I filed a request for leave to file an amicus brief in the Bemba Gombo et al. case at the ICC. Decisions by the ICC Pre-Trial Chamber1Situation in the Central African Republic, ICC-01/05-52-Red2, Decision on the Prosecutor’s “Request for judicial order to obtain evidence for investigation under Article 70”, 29 July 2013. (“Bemba 29 July 2013 Decision” and Trial Chamber2Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-947, Decision Providing Materials in Two Independent Counsel Reports and Related Matters, 15 May 2015 (“Bemba 15 May 2015 Decision”); Prosecutor v. Bemba Gombo et al., ICC-01/05-01/13-1096, Decision on Defence Request for Leave to Appeal the “Decision Providing Materials in Two Independent Counsel Reports and Related Matters, 21 July 2015 (“Bemba 21 July 2015 Decision”.) have raised the issues of when the attorney-client privilege can be lifted and the use of communications between an attorney and a client. As these issues affect all List Counsel at the ICC, and perhaps beyond, this is precisely the type of matter in which a Bar Association for List Counsel (“ICCBA”) may seek to intervene. There being no association to take on the matter, and with the working group drafting the constitution for the ICCBA having no mandate to seek leave to file an amicus brief, I decided to step up to a request made by one of the defence counsel. Continue reading “Attorney-Client Privilege and the Crime-Fraud Exception — Part I”

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