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”
Following the discussion on judges, I then moved on to discuss instances bias raised concerning judicial staff. The question is whether Chamber’s staff members are subjected to the same rules as Judges and therefore subject to disqualification. The answer is no, Rule 15(A) ICTY Rules of Procedure and Evidence (RPE) applies only to Judges. Noteworthy, there is no explicit code of conduct for Chambers or Prosecution staff members even though they carry out highly sensitive functions and, in many instances, are, or are presumed to be, agents of the judges and prosecutors whom they serve. Presumably, under their contractual obligations they are to conduct themselves in an ethical manner, though query whether that is enough.
ICTY Case Against Senior Legal Officer Florence Hartmann
In the Hartmann case before the ICTY, in which a Senior Legal Officer allegedly had ex parte communications with the amicus curiae—who was acting on behalf of the Prosecutor—regarding the provision of confidential materials to the Defence.
Next, I discussed a Judge’s ethical obligation to disclose. Judges must disclose facts that may affect (or perceive to affect) their impartiality; facts that could lead a reasonable, informed observer to objectively apprehend bias.
ICTR Prosecutor v. Karemera, Disqualification of Judge Vaz
In the ICTR case Karemera, the Defence requested that Judge Vaz recuse herself because of her alleged cohabitation with Ms. Dior Fall, one of the trial attorneys for the prosecution during the case. Although Judge Vaz ultimately withdrew, the Appeals Chamber noted the improper conduct and held that the Judge should have disclosed the facts of her accommodation prior to the Defence’s objection: Continue reading “Fifth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
III. APPLICATION OF THE Furundžija PRINCIPLE—SITUATIONS OF BIAS
A. Ex parte Communications
ECCC Case 002, Ieng Sary’s motion to Disqualify Judge Silvia Cartwright
I first discussed the issue of ex parte communications on the part of the judge, which in most cases, is to the detriment to the Defence. I chose an example from the ECCC, where the Defence learned that one of the sitting Judges, Judge Silvia Cartwright, was participating in meetings with the International Co-Prosecutor Andrew Cayley and the ECCC Deputy Director of Administration. No one from any of the Defence teams were invited and neither was the head of the ECCC Defence Support Section (DSS). Obviously, these meetings were of concern to the Defence once they were learned about. They certainly amounted to ex parte communications. But as I noted earlier, when in doubt or not in possession of sufficient information showing bias, best to move incrementally. So, after all sorts of efforts to get the participants to these private meetings to come clean, the Defence filed a request for investigation into these ex parte communications. The Trial Chamber declined to investigate, justifying the meetings as necessary for the coordination of the UN component of the ECCC. Having no choice, the Defence appealed, seeking Judge Cartwright’s disqualification on the grounds that the meetings had no express legal basis. Since Prosecutor Cayley would continue to appear before Judge Cartwright, these ex parte communications violated applicable ethics standards.Continue reading “Fourth Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
Havingdiscussed Harhoff in some detail (an entire day can be spent analyzing all the nuances of this matter), I segued into what I referred to as the Sow dilemma: what can and should a judge do when — rightly or wrongly — he or she is confronted with a perceived act of injustice in the making by fellow judges in a case in which he or she is sitting.
Judge Malik Sow, in an unusual and dramatic fashion, effectively accused his brethren in the Special Court for Sierra Leone (SCSL) Charles Taylor case, in which he was an alternate judge, of not properly engaging in serious deliberations in the case. After the summary of the judgement was read, quite unexpectedly, Judge Sow proceeded to criticize the deliberative process in Taylor, casting a shadow of bias on his fellow judges and calling into question the integrity of the SCSL: Continue reading “Third Installment: JUDICIAL ETHICS IN THE INTERNATIONAL TRIBUNALS”
On 24 January 2014, I was invited to lecture on Judicial Ethics at the ADC-ICTY’s Twelfth Defence Symposium for interns and staff at the ICTY. Some 45 interns and other court staff attended. Hardly an academic exercise in theoretical constructs, I tried to keep the presentation lively with vivid examples such as Harhoff’s folly, Sow’s dilemma, Robertson’s hubris. My aim was to present practical applications of the jurisprudence on judicial ethics (and misconduct) to young lawyers—primarily from the defence perspective—though relevant for young, impressionable lawyers working in Chambers and for the Prosecution.
On December 4-5 2013, the French Bar Association along with François Roux, the Head of the Defence Office of the Special Tribunal for Lebanon (STL), hosted the First International Meeting of Defence Offices. The discussions provided a forum to exchange ideas concerning various challenges defence counsel face before the international criminal tribunals, especially the “difficulty of ensuring that the defence is recognised as one of the essential pillars of a fair and credible justice system.”
These feel-good congregations are useful for inspiring defence lawyers to bond over common concerns. Occasionally they produce aspirational declarations – emphasis on aspirational. Understandably, Final Declarations were proclaimed at this gathering. From the Final Declarations, two specific matters are worth commenting on: a. the need for a defence section to be an organ of the tribunal (as at the STL); and b. the recent events in the Bemba case, where part of the defence team was arrested for witness tampering. Reticent to intrude, since I did not attend the conference, I’ve decided to weigh in with my thoughts, annoying as they may be. Continue reading “Reflections on the Final Declaration of the First International Meeting of Defence Offices”
On 29 November 2013 the ADC-ICTY held its first and only legacy conference … in The Hague.
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”