In my last post on establishing a Bar for the ICC, I noted that a committee had been formed to draft a Constitution to be circulated for comments, and that my draft was selected as the working draft. Now I would like further elaborate upon my vision for and concerns of a Constitution for a Bar for Counsel practicing at the ICC; a Bar that should also be open for Counsel practicing before other international tribunals.
I see the establishment of a Bar for ICC Counsel as an evolving process. However, if it is to take root and bear fruit, it must be fully recognized by the ASP as the official Bar for the ICC. But it must also be functional and sustainable. Expectations should be restrained, measured, and pragmatic. I am hoping that we do not get bogged down in analysis-paralysis in trying to create the perfect Bar we all wish to have. That will take years, but our needs are imminent. For now, we just need a good Bar that fulfills our most basic and most pressing needs. As Mick Jagger of the Rolling Stones puts it: You can’t always get what you want. But if you try sometime, you just might find, you get what you need. And we need a Bar.
My years of experience (going now on 13) with the ADC-ICTY inspired my initial draft. I saw no reason to reinvent the wheel, by starting from a theoretical construct, imagining how a Bar or Association at the ICC would function. Why not apply the lessons learned and good practices from the ADC-ICTY. Unquestionably, the ADC-ICTY has had great successes in representing the collective voice of Counsel, and securing institutional recognition and inclusion.
Yes, the ICC is different, but the fundamental aspects of how a Bar dedicated to the ICC, or any tribunal with membership scattered all over the world, are basically the same: financial independence, clear objectives, and recognition by the institution before which its members are appearing.
Whether compulsory membership should be a perquisite is another issue. If the Bar is being established by counsel and not the Registrar, can List Counsel and staff be required to become members. Are List Counsel not members already of the virtual ICC Bar, by qualifying to be on the list after a somewhat rigorous process and having to abide by the ICC code of ethics? I dare say yes! And how can this Bar force a member to pay fees for privilege enjoyed already? I am not convinced that compulsory membership of this or any Bar/Association can be mandated in order to practice before the ICC. But I am also not convinced that without some sort of a Bar/Association List Counsel can improve the legal aid scheme, obtain all the necessary resources and support from the Registrar, and promote their interests before the ASP.
And herein lies the rub. A responsive, effective and inclusive Bar is more likely to attract List Counsel and others to join, thus making membership mandatory irrelevant. In any event, first and foremost is ICC/ASP recognition. Without recognition, the Bar or Association is nothing but a club of members on the outside looking in. Formal recognition by the ASP is essential for financial support and in situ resources (such as office space and technical assistance at the ICC premises), but also to enable List Counsel to have a meaningful voice at the ICC.
A rose by any other name
While a rose by any other name is still a rose, the Bar name should reflect that it is ICC-centric. One possible name is Bar of Independent International Counsel Practicing Before the International Criminal Court (“BIIC-ICC”).
While the Bar should be inclusive for Counsel practicing before other tribunals it is essential to submit to the ASP a Bar Constitution that it will support.
For now, I believe it is necessary that the title of the Bar reflect that it is ICC dedicated. Strategically, it is better to make explicit only what is necessary for the ASP to sign off, while implicitly leaving room to make the Bar inclusive and engaging for Counsel practicing before other international tribunals. Also, I think it is unwise to include the words association or bar association because it leads to confusion as to whether it is a bar or association. For those coming from civil law jurisdictions, it would give the impression that it is an association and not a bar.
The general principles of the Bar should be embodied in the preamble of the Constitution, which, in my opinion and from my experience, must be a distilled document that is flexible and pragmatic, reflecting the general vision and needs of Counsel and staff at the ICC. Some may argue that the Constitution should provide all the details of the Bar’s work. Unnecessary. Such a document would not only be cumbersome to work with but could also turn into a straightjacket; anything not listed becomes prohibited or an issue for debate. Less is more. Much of the detailed day-to-day functioning of the Bar will be regulated by rules and regulations. Since a constitution is difficult to amend, it is best to keep it vibrant but flexible.
The preamble should be organized from the general to the specific, with the emphasis placed on Counsel’s important role and functions. The focus is on Counsel coming together to establish the Bar. I do not see much profit in having explicit links to specific provisions of the ICC’s legal texts in the Constitution. It is better to have general references to the legal texts, clearly linking how the Bar would advance such principles.
One issue to consider is whether to have the Bar as an equal “pillar” of international justice, as is the case at the STL. This may give the impression that List Counsel are on par with the Judges. While that may be an appropriate aspiration, and one that is perhaps realized at the STL (a specious in my opinion), it is certainly not the case at the ICC. And if we are to get the ASP to support this initiative and to recognize the Bar as its Bar, the preamble must reflect reality.
Another issue is whether to have explicit language regarding the Registry’s support. While some may fear that the Registry may interfere with the Bar’s independence, again, one needs to be realistic. It is essential that the ASP recognizes that the Registrar is endorsing this project. Also, to avoid the issue of conflicts with national bars, the Bar should be subordinate to national bars in that it cannot interfere in their functioning.
Omitting explicit text in the preamble concerning Counsel from other international tribunals does not impact on Counsel from those tribunals who may wish to become members of the Bar, or for the Bar, upon agreement and recognition from another tribunal, to represent Counsel’s interests before other tribunals.
As with any constitution, the objectives need to be clearly stated, though not every detail needs to be explicitly provided. The document should be flexible enough to avoid the need for amendments down the road. The objectives of the Bar should be aspirational, yet rational. Broadly speaking, the Bar should aspire to:
- support the functions, efficiency and independence of Counsel practicing before the ICC;
- uphold professional standards and ethics of Counsel;
- promote and facilitate the proficiency and competence of Counsel relevant to the representation of their clients before the ICC;
- facilitate Counsel in having the necessary support, assistance and information from the Organs of the ICC to enable them to provide effective legal representation to their clients;
- enhance the quality of justice at the ICC required under the provisions of the Rome Statute and other recognized texts;
- assist in resolving legal issues impacting Counsel;
- ensure independent representation of the interests of Counsel and their staff;
- advocate for the enhancement of the rights of clients and Counsel before the ICC;
- promote equality of arms between the parties before the ICC;
- represent the interests of clients, Counsel and the profession before the Assembly of States Parties;
- assist in resolving incidents between Counsel, and between Counsel and the Organs of the ICC; and
- provide any other reasonable and necessary services as a Bar might provide to its members.
Explicit provisions regarding tasks assignable by the Registry and ASP, and representation at other international tribunals should be omitted. Were the ASP or the Registry to assign tasks to the Bar, it would lose its independence. It is implicit that the Bar would interact with various ICC organs including the ASP. Also, when appropriate, and by agreement, it is implicit that the Bar will engage in activities before other tribunals. If explicit language is added, it would be a deal-breaker with the ASP.
The number of List Counsel is large and diverse, coming from different legal traditions and different experiences. The Bar needs to be inclusive in its membership, while at the same time it must function efficiently, and must accommodate the needs of those who are actually practicing at the ICC. Generally, those who have active cases and those who are primarily engaged in international criminal law will tend to serve on committees, which, from my experience, tend to do the bulk of the work. Committee work is frustrating and time-consuming; a thankless task that few are willing to spend the time and energy for the benefit of the many. .
While compulsory membership for List Counsel would be ideal, as I noted, I am not sue it is legally enforceable. Compulsory membership would strengthen the image and authority of the Bar, assuming the Bar is function well. In any event, I am not convinced that the Registry can make membership compulsory – especially if the Bar turns out to be dysfunctional and financially unsustainable.
There should be two tiers of membership: full and associate, in order to provide space for non-List Counsel of certain qualifications. The ICC has set a high standard for Counsel to be placed on the list and only List Counsel should serve on the Executive Board or chair any committees, except for the one committee relevant to the work of Counsel’s staff/assistants: the Counsel Support Staff Committee. While all members should pay an annual fee, we need to be realistic; without a case or the prospect of getting a case, why should a member be made to pay. Waivers can be issued to members on a showing of good cause, but I dare say, if the Bar is not delivering the good, it will have a hard time collecting.
On who may join, any language dealing specifically with other international tribunals should be excluded because again, we are asking the ASP to recognize this Bar as its Bar. Under the very best of circumstances the Bar will not be able to finance itself. Significant financial expenditure is required to organize a bar and get it up and running. It is counterproductive to include language in the Constitution that might be unacceptable to the ASP. This would delay the creation of the Bar and perhaps jeopardize the establishment of a Bar altogether.
The Bar as I see it should be composed of the various committees that are reflected in the draft. The bulk of the work of the Bar is done through the committees and not the General Assembly. The BIIC-ICC as I envisage it should be composed of the following organs:
- General Assembly;
- Executive Board;
- Executive Committee;
- Disciplinary Council;
- Defence Committee;
- Victims Representatives Committee;
- Counsel Support Staff Committee;
- Legal Advisory Committee;
- Membership Committee;
- Training Committee; and
- Amicus Committee.
The General Assembly serves as the supreme body of the Bar, with the Executive Board reporting to it. General Assembly meetings should be held annually for the committees to present to the members their annual reports, for future planning to be discussed and approved by the General Assembly, and for elections. Ad hoc Special Assembly meetings can be permitted subject to specified criteria.
The Executive Board (which could also be named Council) represents a larger group, consisting of 15 Members. Within the Executive Board there is an Executive Committee, consisting of five members: a President, two Vice-Presidents, a Treasurer and Secretary.
Members of the Executive Committee should have no more powers than any of the members of the Executive Board. For practical purposes, the Executive Committee should be allowed to undertake, in a much more efficient manner, the day-to-day affairs of the Bar that do not necessarily require the full attention of the Board. Considering that the Board is comprised of a large number of members, it may be rather difficult to reach a consensus given the geographical locations, time differences, etc.
To ensure equity, consideration should be given to the type of legal representation (Legal Representation for Victims / Defence), geographic representation, the various domestic legal systems (e.g., common and civil law), and the different languages existing before the Court. A minimum of one seat should be reserved to Counsel native to each of the following regions: Eastern European States, Asia-Pacific States, Latin America and Caribbean States, North America States, North African States, Sub-Saharan African States, Western European States and other States. Five seats on the Executive Committee should be reserved for Counsel actively engaged in cases before the ICC, or at least three years prior to an election.
While some may be of the opinion that non-List Counsel should have a reserved space on the Executive Board to represent their interests, this is unnecessary. The Executive Board represents all members, and there is a Counsel Support Staff Committee for assistants and other staff members to voice their concerns. Staff members tend to change jobs more frequently, and are thus unlikely to be able to serve out full terms.
Duties of Executive Board
The Executive Board should be responsible to the General Assembly for the day-to-day operations and management of the Bar, which would include such matters as: preparing the agenda of the General Assembly meetings, submitting the Bar program for approval to the General Assembly, implementing approved programs by the General Assembly, executing decisions of the General Assembly, preparing the annual budget, monitoring matters related to the annual budget, and submitting an annual report of activities and an audited financial report to the General Assembly for its approval. It is expected that internal directives or procedures will be adopted as necessary for its functions and the day-to-day operations and management of the Bar.
Because there will be occasion to have ad hoc committees and even special representatives for the Bar – especially for ASP matters – a general provision allowing for such appointments is necessary. The modalities of how a special representative would interact with the Executive Committee, and in particular the President, should be defined by the Rules and the remit given to any special representative.
The process of creating committees is simple, leaving the power to create such committees with the Executive Board. If the Executive Board can decide to create special ad hoc committees, there is no reason for it to recommend to the General Assembly for the creation of such committees.
While some may be concerned that there is no separate committee for Counsel representing other parties to ICC proceedings, such as states or witnesses, it is not likely that there will be many active Counsel to head such a committee. If there is an interest, such a committee can be established on an ad hoc basis.
The Legal Advisory Committee reflects the Committee’s broader task of commenting on regulations and other legal matters. A Counsel Support Staff Committee was added to represent the interests of consultants, case managers, assistants, translators, interns and other defence staff members.
Defence and Victim Representatives do have opposing interests. Hence my recommendation for two nimble committees. Some may be of the opinion that the Bar can work only if both groups feel that their voices will be heard directly at the ICC/Registry and ASP. I strongly disagree.
I do not believe that there should be a formal division of List Counsel into semi-autonomous Sections (with their own committees and sub-committees) because not only will it overcomplicate the function of this modestly resourced Bar, but it may also be a dividing factor.
First and foremost, 90% of all issues are shared by both Defence Counsel and Counsel representing Victims. Let’s not also forget that many Counsel are listed to represent both Victims and Accused. To add two super-organs with their respective committees will only lead to having two bars within the Bar. And in which case we might as well have two separate associations.
Experience shows that very few members on the Committees will normally be responsive. And as I see it, the issues are not so divisive as to require two competing semi-autonomous sections within the Bar.
The more streamlined and more efficient the Bar can function, the more responsive it can be. Rules and procedures can be drafted to allow Committees to organize themselves and carry out the tasks as being suggested. For those who look to the American Bar Association as a model, it bears highlighting that it has been around for over a hundred years, it is flush with money, it has a large staff and it is not dedicated to any one tribunal, and membership is certainly not compulsory.
Concerning the Amicus Committee, a provision is necessary to enable submissions to the Executive Board to be passed on to the Amicus Committee for consideration. It allows for the possibility for the Bar to submit Amicus Briefs for Counsel appearing before other tribunals, or for other reasons. But it also permits the Amicus Committee to opt out if it believes that an amicus is not in the interest of the Bar. In which case, the Executive Board can opt to draft the amicus brief.
Elections and Resolutions
The articles on elections should be simple. Associate members should be able to vote for the Counsel Support Staff Committee. The quorum for elections should be 1/5.
To ensure full and fair participation in elections, the voting process must allow for all members to directly participate to the extent possible, irrespective of their location or time zone. For the Bar to be truly inclusive, it is important to devise an electoral process that diminishes the possibility that only a small cadre of active members make self-interested decisions for their own benefit. Suffice it to say, the Constitution should sufficiently detail the election process, rules and regulations to be adopted as needed.
There is no need for a special election committee. Normally, all of the work is usually done on the particular day of the election. The Election Chair will monitor the election: ensuring that a quorum exists, and that the voting is conducted in the manner provided in the Constitution. Rules and procedures can be developed which go into detail and establish protocols to provide full transparency. In any event, the Executive Director will be the one to organize all the events of the General Assembly. Part of that organizational task is to make sure that all members are informed of the meetings, those who are running on the ballots, issues to be discussed and voted upon, etc.
While there may be some merit to staggering the terms for elected positions, this would overcomplicate the electoral process. Shorter terms are preferred; the purpose is to ensure that there is as much inclusivity as possible. From past experience, serving on the executive or a very active committee can be extremely time-consuming and exhausting if actively engaged. Therefore, a term of two or three years may be counterproductive. After the first full year, the member may be unable to fully carry out his or her functions due to fatigue and other commitments. The recommendation is to allow for a term of one year, plus an additional two consecutive terms, with the member being eligible to run again after sitting out one election. This will undoubtedly be debated by Counsel.
Similarly, there is no need to have separate voting procedures for Defence and Victims sections. Many of the members are on both lists, and trying to make a determination of who can vote for who would complicate the electoral process.
Since no constitution can include all details for every eventuality, the Bar Constitution should provide for the adoption of rules of procedure and for the appointment of a member to serve as a Parliamentarian. The main role of the Parliamentarian would be to highlight with the General Assembly any matters that are inconsistent with the letter or spirit of the Constitution or applicable rules and procedures.
These are my thoughts on how the Bar for the ICC should be structured. It needs to be functional and responsive to the need of its members. As I noted I strongly oppose having a Bar divided by sections. Indeed I think having two independent associations would be preferable to a dysfunctional bar of our own making.
In any event, it now appears that the promise of a quick draft constitution for distribution is not on the horizon. Let’s hope that this opportunity is not missed. Perhaps our last chance.