Response to observations on Article 27 of the ICC Statute

In his comment to my 12 December post on the The New RPE 134 Provisions, our colleague Boniface Njiru makes some insightful observations on Article 27 of the ICC Statute.The ICC Statute was a work in progress for many years.  Drafted by committee and based on political compromises, there are some who claim that it reflects what is (or should be) considered customary international law (CIL).  This is an overreach; the jury, as it were, is still out on this.  We saw this played out recently over Bashir: while accepting that he had no immunity at the ICC because of the ICC Statute, CIL continues to allow heads of state personal immunity, with some claiming, rather credibly, that a State would be violating CIL by arresting Bashir and turning him in to the ICC for prosecution (see e.g. http://www.crimesofwar.org/commentary/the-icc-bashir-and-the-immunity-of-heads-of-state/).

One thing is certain since Nuremberg: little or no quarter was to be given to political and military leaders for committing acts recognized as international crimes by the community of mankind.  Thus, it was to be expected that no political leader, sitting or otherwise, would be immune from prosecution before the ICC.  That was the intent of all those who signed on to the Rome Statute, eyes wide open.

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The New RPE 134 Provisions: cowardly capitulation or pragmatic resolution?

ASP_2013Much of the commentary on the Assembly of State Parties (ASP) added provisions to Rules 134 (bis, ter and quater) of the ICC Rules of Procedure and Evidence (RPE), which ease the requirement for an accused to be physically present at trial, has been disdainful. But before we consider potential effects of these new provisions, or lack thereof, let’s first look at the substance.  Does the ICC Statute permit the Rules to be amended so accused – political leaders, no less – can be excused from attending parts of their trials due to “exceptional circumstances” or because of “extraordinary public duties”?  Were the amendments necessary?  Did the ASP exercise sound judgment?  Though the answers to these questions seem to be yes, guarded cynicism is justified.  From time to time, trial chambers will no doubt be tempted by the political siren calls for accommodation and realpolitik.  Implementing these added provisions to Rule 134 will require prudence, finesse and judiciousness. As they saying goes: the proof of the pudding is in the eating.

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The ADC-ICTY Legacy Conference: Lawyers for the damned ruminate and reminisce

On 29 November 2013 the ADC-ICTY held its first and only legacy conference … in The Hague.

KarnavasLegacyConf_29Nov13
Michael Karnavas (c-r) moderates ADC-ICTY Legacy Conference Panel I: Rights of the Accused, with The Right Hon. Lord Iain Bonomy (c-l), Mira Tapušković (r) and Christopher Gosnell (l).

For over a year, significant efforts were made to get funding for a set of ADC-ICTY legacy conferences to be staged in the affected republics of the former Yugoslavia. Requests for financial assistance were sent to countless embassies and academic institutions. Only the U.S. Embassy in Belgrade and the Law Faculty of the Erasmus University of Rotterdam responded; the former offering financial assistance for the publication of a text on the conference, and the latter providing financial assistance to cover the cost of hosting the conference in The Hague. There would be no road show, no Q&A from the folks most impacted by the ICTY, no opportunity for the lawyers of the damned to be heard in situ. Just this one chance. And, not because of any real encouragement and support from the ICTY (not when one considers this institution’s boundless self-indulgent self-promotion, much to the exclusion of the Defence), but despite the lack of it. Continue reading “The ADC-ICTY Legacy Conference: Lawyers for the damned ruminate and reminisce”

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A draft Constitution for the Bar of List Counsel: Let the discussions begin!

As promised, a few days ago I circulated the draft constitution I have been working on for the past month. (Links to Draft English / French)  There was no real need to re-invent the wheel and start from scratch.  I took as a base the ADC-ICTY Constitution.  While not perfect and certainly limited to the ICTY matrix, it has been tried and tested.  Based on my experience both as a member and having served on numerous ADC-ICTY committees, including three years on the Executive Committee, two of which as President, I believe this document provides a solid point of departure.  Last year I forwarded it to the Coordinators of the ALC-ICC, recommending its utility.   Continue reading “A draft Constitution for the Bar of List Counsel: Let the discussions begin!”

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A constitutional framework for a professional Bar of List Counsel at the ICC

After a year of mulling the various options available for List Counsel in organizing themselves to collectively meet the challenges they face at the ICC, the best option that emerged was the formation of a truly professional Bar.  While an association – as in a trade union – would be simpler and quicker to form, when considering the permanence and intended undertaking of the ICC, only a genuine professional Bar would be capable of having the desired enduring influence. Such a Bar will require ICC recognition: a tall and time-consuming order.  List Counsel must nonetheless soldier on in constituting a Bar.  The starting point is the drafting of a constitution, a collaborative process that is well under way, overseen by the coordinators of the Executive Committee formed last year by the List Counsel interested in establishing an ICC Bar for List Counsel.  Once the Constitution is adopted, the Bar can be registered and commence functioning. So, what of this Bar and how should it be constituted?

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Why Establish a Bar of List Counsel of the International Criminal Court?

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. Continue reading “Why Establish a Bar of List Counsel of the International Criminal Court?”

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A Bar for List Counsel is within reach – finally!

Last year during the Tenth Seminar of Counsel of the ICC & Training Program held in The Hague on 17, 18 and 19 October 2012, the List Counsel who attended overwhelmingly voted to establish an association or Bar exclusively for List Counsel.  The International Bar Association (“ICB”), which has been keen over the years to be the Bar for List Counsel, made a bid and lost.   The ICC in the past had made it clear that it would not recognize the ICB as the Bar representing List Counsel.  The ICB is effectively a Bar without boarders.  Its strength seems to also be its weakness – at least so it appears to the Registrar of the ICC.  In any event, the ICB will continue to be a major factor in assisting List Counsel, even if operating from outside the ICC.

After a few hastily organized meetings during last year’s seminar, a group of 15 or so members of List Counsel were selected to serve as an Executive Committee (“EC”).  Two members, Wang You Sando and Raymond M. Brown were selected as coordinators.  Over the past year, Sando and Raymond have been overseeing the drafting of a statute for an association.   Those on the EC have had an opportunity to comment on the draft.  It was hoped that the draft would be finalized and ready to be circulated to List Counsel and to the Registrar during this year’s Seminar of Counsel.  But, even before the seminar, a debate had begun as to what sort of entity List Counsel should form: An association, similar to the ADC-ICTY, or a Bar as in the French Civil Law system. Continue reading “A Bar for List Counsel is within reach – finally!”

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Attending the Eleventh ICC Seminar of Counsel – another letdown!

The ICC held its annual seminar for List Counsel on October 21 and 22, 2013 in The Hague.  Three days of training followed.  This was the eleventh time the ICC hosted this event.

As in the past, the seminar was mostly an update, and for the most part not terribly rewarding.  It was heartening to hear from the new Registrar, Herman von Hebel, that changes are afoot in the Registry.  He brings lots of practical knowledge and experience.  There is already a feeling that he will be more understanding to the needs of List Counsel.  From my brief conversation with him (I have known him since 2001), he seemed genuinely interested in working constructively with List Counsel. Continue reading “Attending the Eleventh ICC Seminar of Counsel – another letdown!”

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