On Friday 10 November 2017, The Fifth International Meetings of the Defence adopted the so-called Common Code of Professional Conduct for all Counsel appearing before the International Criminal Tribunals (Common Code). Aside from being a non-binding document (I hesitate to call it a code since it is nothing of the kind), it is flawed and hubristic. Indeed, it may be that everything you need to know about the arrogance of the document and its creators can be divined from the declaration that it is to be “referred to as the 2017 Nuremberg Code.”
The ADC – the first and without a doubt the most accomplished association of its kind – was not involved in the drafting of the Common Code. The ADC sent its members a copy of the “Proposed Code,” informing them that it received the draft relatively late in the process. After the ADC Executive Committee and Disciplinary Council made an initial assessment of the Proposed Code, and without circulating it to the ADC membership (for reasons that become obvious from the available correspondence and discussed below), it decided that the ADC could not sign the Proposed Code as presented. Continue reading “The Common Code of Professional Conduct: flawed and hubristic – Part I”
On 20 September 2016 a press release was issued by the United Nations Mechanism for International Criminal Tribunals (“MICT”), also referred to as “the Mechanism”, describing a presentation given by MICT President Judge Theodor Meron at The Hague Institute for Global Justice. The press release described President Meron’s view that the MICT presented itself as a new model for international justice. Under this model, courts could be more streamlined and cost-effective by having a roster of judges on call who would step into the breach only when needed, as opposed to being in situ, collecting a full-time salary with benefits. This model is likely the brave new world and is being advocated by some who are looking for alternatives or complements to the International Criminal Court (“ICC”). Continue reading “The MICT model: panacea or chimera?”
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.1Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997).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.
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).
“‘Conflict of interests’ is a term that is often used and seldom defined.” 1Cuyler v. Sullivan, 446 U.S. 335, 356 (1980) (United States Supreme Court Justice Thurgood Marshall, dissenting).
On 16 April 2014 I was invited by the Association of Defence Counsel practicing before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) to conduct training for its members and others on ethics. The topic chosen was Conflicts of Interest. The lecture lasted 2 hours. A modest PowerPoint presentation was used to guide the lecture which was based on handout material made available after the lecture. Certificates were also issued to the participants for those who wished to claim 2 hours of CLE on ethics with their national / state bar.
The lecture focused on the lawyer’s core responsibilities to the client in both national and international jurisdictions: competence, diligence, communication, confidentiality, loyalty, honesty, and independence. Principles that are universal.
This is the eighth, and final installment, in a series of posts drawn from a 24 January 2014 lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. The complete document is available on my website.
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H. The Obligations of Defence Counsel in exercising due diligence
Lastly, I discussed obligations that also lie with Defence counsel. Indeed, Defence counsel have to be diligent to raise disqualifications early in the proceedings and to the right authority. I put the accent on how important is to make the record. I used the Čelebići case as an example in which the issue was whether a Judge was fit to be a Judge.
ICTY Prosecutor v. Delalić et al. (Čelebići), The Case of the sleeping Judge, and the Defence’s failure to raise
In Čelebići, Judge Karibi-Whyte was sleeping during substantial portions the trial proceedings. Defence counsel for Landžo did not formally raise this issue before the Trial Chamber but filed this issue as a ground of appeal. Counsel for Landžo explained the failure to raise this issue during trial proceedings stating that she had approached “this sensitive issue in the most diplomatic way possible.” Indeed, Counsel for Landžo had first raised the issue with the Registrar and President of the ICTY Judge Cassese rather than in court: Continue reading “Eighth and Final Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”