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.
As we will see, the attorney-client privilege is expressly codified in the Rules of Procedure and Evidence at the ad hoc tribunals and the International Criminal Court (“ICC”). A number of attorney-client issues have arisen in the various international tribunals. This post will discuss how the attorney-client privilege has been dealt with by these tribunals. Again, only a select number of cases will be analyzed for guidance, so that lawyers appearing before these tribunals will hopefully have a finer appreciation of the contours of the attorney-client privilege and how it is applied in the international context. After all, the codes of professional conduct of the respective international ad hoc tribunals and the ICC, supersede a lawyer’s domestic code, and thus lawyers practicing before these courts are bound to them.1Code of Professional Conduct for Counsel Appearing before the International Tribunal [for the former Yugoslavia], IT/125 Rev. 3, 22 July 2009 (“ICTY Code of Conduct”), Art. 4 “If there is any inconsistency between this Code and any other codes of practice and ethics governing counsel, the terms of this Code shall prevail in respect of counsel’s conduct before the Tribunal.” International Criminal Tribunal for Rwanda Code of Professional Conduct for Defence Counsel, 14 March 2008 (“ICTR Code of Conduct”), Art. 19: “If there is any inconsistency between this Code and any other code which Counsel is bound to honour, the terms of this Code prevail in respect of Counsel’s conduct before the Tribunal.” Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone, 13 May 2006 (“SCSL Code of Conduct”), Art. 3: “In the event of any inconsistency between this Code and any other codes of practice and ethics governing counsel, the terms of this Code shall prevail in respect of counsel’s conduct before the Special Court.” ICC Code of Professional Conduct for Counsel, ICC-ASP/4/Res.1, 2 December 2005 (“ICC Code of Conduct”), Art. 4: “Where there is any inconsistency between this Code and any other code of ethics or professional responsibility which counsel are bound to honour, the terms of this Code shall prevail in respect of the practice and professional ethics of counsel when practising before the Court.” Code of Professional Conduct for Defence Counsel and Legal Representatives of Victims appearing before the Special Tribunal for Lebanon, STL/CC/2012/03, 14 December 2013 (“STL Code of Conduct”), Art. 4. At the Extraordinary Courts in the Chambers of Cambodia (“ECCC”), International Co-Lawyers must be authorized by the Bar Council of the Kingdom of Cambodia to practice before the ECCC. ECCC Defence Support Section Administrative Regulations, Regulation 2. There is no ECCC-specific code of professional ethics for lawyers. Presumably, that ECCC International Co-Lawyers are bound by the Code of Ethics for Lawyers Licensed with the Bar Association of the Kingdom of Cambodia, as well as their own domestic codes of ethics.
International Criminal Tribunal for the Former Yugoslavia (“ICTY”)
At the ICTY, the attorney-client privilege is reflected in Rule 97 of the Rules of Procedure and Evidence (“RPE”):
All communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless:
(i) the client consents to such disclosure; or
(ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.
Scope of the attorney-client privilege – Brđanin and Talić
At the ICTY, the issue of attorney-client privilege arose in Prosecutor v. Brđanin and Talić. In Brđanin and Talić, the Brđanin Defence cross-examined a witness who was a practicing lawyer from the former Yugoslavia.2Prosecutor v. Brđanin & Talić, IT-99-36-T, Decision on “Motion for Production of Documents – Dzonlić Testimony”, 9 April 2002, para. 1. The witness testified that some of his clients had been dismissed from their employment following certain decisions of the Autonomous Region of Krajina (“ARK”) Crisis Staff.3Id. The witness claimed that he had client documents showing that they had been dismissed from their employment, and that these documents were made available to Office of the Prosecutor (“OTP”) investigators.4Id. The Brđanin Defence requested that the Trial Chamber order the OTP to request the witness to produce all documents showing, on their face, that clients were dismissed from their positions.5Id., paras. 2, 4. The OTP claimed the documents were subject to legal professional privilege.6Id., paras. 1-2.
The Trial Chamber stated that the principle of legal privilege is recognized in both common law and civil law jurisdictions,7Id., para. 6, fn. 5. and defined the lawyer-client privilege as:
a rule of evidence, which provides that confidential communications between legal practitioner and client made for the sole purpose of the client obtaining, or the legal practitioner giving, legal advice or for use in existing or contemplated litigation, cannot be given in evidence nor disclosed by the client or by the legal practitioner, without the consent of the client.8Id., para. 6.
The Trial Chamber specified that the privilege belongs to the client and not the lawyer.9Id. It defined the scope of the privilege as extending only to “confidential communications and documents that come into existence or are generated for the purpose of giving or getting legal advice or in regard to prospective or pending litigation.”10Id., para. 7 (internal citations omitted).
The Trial Chamber found that the documents sought by the Defence were not covered by legal professional privilege.11Id., para. 8. The documents were received by clients from their former employers, and were thus not “generated by the Witness or the clients (and their respective agents) for the purpose of giving legal advice or for prospective/pending litigation.”12Id.
Rationale for the attorney-client privilege – Popović et al.
In Prosecutor v. Popović et al., the ICTY Appeals Chamber expressly acknowledged that the attorney-client privilege is “vital to the defence of an accused or appellant by allowing for the open communication between attorney and client necessary for effective legal assistance as guaranteed under Article 21(4)(d) of the Statute.”13Prosecutor v. Popović et al., IT-05-88-A, Decision on Prosecution Motion for the Appointment of Independent Counsel to Review Material Potentially Subject to Lawyer-Client Privilege, 16 July 2012, para. 7.
In Popović et al., OTP investigators reviewed seized material and identified what appeared to be material potentially originating from Defence Counsel,14Id., para. 2. and turned over a DVD of this material to the OTP Chief of Operations.15Id. The OTP claimed that it did not inspect the material and deleted it from its hard drives.16Id. The OTP requested the Appeals Chamber to appoint an Independent Counsel for the limited purpose of determining whether any attorney-client privilege applies, to avoid exposing OTP staff to the potentially privileged material.17Id., paras. 4-5.
The Appeals Chamber found that if the OTP took steps to fulfil its disclosure obligations, “a risk would arise that privileged communications would be exposed to the Prosecution to the detriment of the Defendants.”18Id., para. 7. The Appeals Chamber found that this created a conflict for the OTP, “which must meet its disclosure obligations under Rules 66 and 68 of the Rules while currently in possession of the Potentially Privileged Material.”19Id. It also found that:
Despite it being within the ambit of the Appeals Chamber to review the Potentially Privileged Material, there also exists a risk that communications between any of the Defendants and their legal counsel could be revealed to the Appeals Chamber.20Id., para. 8.
In light of these circumstances, the Appeals Chamber considered that the best course of action was to have another judge, not sitting on the Popović et al. bench, review the material to determine whether the lawyer-client privilege attached.21Id., para. 8. The Appeals Chamber requested the President of the Tribunal to designate a Judge to review the potentially privileged material in camera, and ordered the OTP to continue refraining from further inspection of the potentially privileged material.22Id., para. 10.
Who is covered? – Krajišnik
In Prosecutor v. Krajišnik, the accused was self-represented. Krajišnik disagreed with the Registry as to the modalities of his self-representation.23Prosecutor v. Krajišnik, IT-00-39-A, Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007, paras. 2-3. Krajišnik complained that the Registry denied his choices for legal associate and translator/case manager, and that he was not permitted direct contact with his Defence team investigators.24Id., para. 4. The Registry responded that Krajišnik could communicate with investigators at the United Nations (“UN”) Detention Center, but that these communications would not be privileged.25Id., para. 14. The Registry determined that Krajišnik could have privileged access to up to three designated legal associates. The Registry rejected Krajišnik’s choice of legal associate because he was found guilty of professional misconduct by the Tribunal’s Disciplinary Board.26Id., para. 14.
The Appeals Chamber considered how Krajišnik’s choice to represent himself affected the application of his fair trial rights under Article 21 of the ICTY Statute.27Id., para. 31. One of the questions involved was whom a self-represented accused may have privileged communications with.28Id., para. 32. The Chamber found no error with the Registry’s determination that “Krajišnik may have privileged access to up to three designated legal associates (and presumably to team members who visit the accused in the company of these associates), but to no one else.”29Id., para. 33. The Chamber reasoned that privilege stems from the attorney-client relationship, and that where the accused opted to self-represent instead of to have Counsel represent him, the basis for the privilege is removed.30Id. It found that Krajišnik had no entitlement to privileged communications. Since the Registry had no obligation to provide him with privileged access to anyone, Krajišnik had no basis for objecting to the Registry’s willingness to provide him with privileged access to up to three designated legal associates.31Id.
Work Product
As I discussed in the second blog post on domestic jurisprudence, though not necessarily attorney-client communications, documents prepared by Counsel in the course of litigation are protected under the related doctrine of “work product”. This doctrine protects reports, memoranda, and other internal documents from disclosure. The work product doctrine applies equally to OTP documents as to documents prepared by Defence Counsel.
ICTY RPE Rule 70(A) states that:
Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under those Rules.
Blagojević and Jokić
In Prosecutor v. Blagojević and Jokić, Nikolić entered into a plea agreement in exchange for a more lenient sentence.32Prosecutor v. Blagojević & Jokić, IT-02-60-T, Decision on Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclose its Notes from Plea Discussions with the Accused Nikolic & Request for an Expedited Open Session Hearing, 13 June 2003, p. 2. During plea negotiations between the OTP and Nikolić, the OTP drafted a Statement of Facts and Acceptance of Responsibility (“Statement of Facts”) setting out the facts agreed upon by the OTP and Nikolić.33Id. Pursuant to the plea agreement, Nikolić would testify for the OTP against the other accused.34Id.
After the Trial Chamber accepted the plea agreement, the Blagojević Defence requested the OTP to produce all disclosure material (notes, tapes, recordings and/or draft agreements) resulting from discussions, meetings, and negotiations between Nikolić and OTP representatives.35Prosecutor v. Blagojević & Jokić, IT-02-60-T, Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclosure[sic] its Notes from Plea Discussions with the Accused Nikolic & Request for an Expedited Open Session Hearing, 19 May 2003, para. 4 and Attachment 2 (letter of 7 May 2003 from Michael G. Karnavas, Lead Counsel for Vidoje Blagojević to OTP Senior Trial Attorney, Peter McCloskey). The OTP responded that there were no audio or video recordings from its contacts with Nikolić.36Id., para. 5. The OTP stated that it did take some handwritten notes, but that it viewed the notes as work product under Rule 70(A).37Id., Attachment 1 (letter from Peter McCloskey to Michael G. Karnavas). The Blagojević Defence contended that the OTP’s handwritten notes were not work product material, because they were not internal memoranda composed by the OTP in connection with the investigation or preparation of the case nor minutes of strategy meetings.38Id., para. 14. Rather, the Blagojević Defence submitted that it sought notes the OTP generated during the negotiating/debriefing and drafting sessions it held with Nikolić.39Id. The Blagojević Defence argued that given the OTP’s failure to record its contacts with Nikolić and refusal to transmit its handwritten notes, the Defence and Trial Chamber had no way of determining what transpired during the intensive and protracted negotiations between the OTP and Nikolić.40Id.
The Trial Chamber found that the OTP’s notes taken in preparation of a plea agreement were “privileged, as they are internal documents made by the Prosecution in connection with the preparation of the case” and therefore were work product protected under Rule 70(A).41Prosecutor v. Blagojević & Jokić, IT-02-60-T, Decision on Vidoje Blagojevic’s Expedited Motion to Compel the Prosecution to Disclose its Notes from Plea Discussions with the Accused Nikolic & Request for an Expedited Open Session Hearing, 13 June 2003, p. 6. It reasoned that “it is in the public interest that plea negotiations be protected from disclosure to any third parties, as the confidentiality of any negotiations is an essential element to both their occurrence and their success.”42Id.
As we will see in Prosecutor v. Prlić et al., not only did the ICTY Trial Chamber apply a different standard regarding the Defence, but it even sought guidance to impose disciplinary sanctions.
Prlić et al.
In Prlić et al., the Prlić Defence was provided with certain documents for its use during the proceedings with the understanding that the source of the documents would remain confidential.43Prosecutor v. Prlić et al., IT-04-74-T, Jadranko Prlić’s Motion for Protective Measures of Certain Documents & Additional Classification of Certain Subjects Included in the Motion for Admission of Documentary Evidence, 4 January 2009, para. 1. The Prlić Defence submitted that it had a professional obligation not to reveal those sources, because to do otherwise would undermine the integrity of the Prlić Defence and would send a chilling message to future sources that would have been of assistance.44Id., para. 2.
The Trial Chamber deemed that the Prlić Defence did not provide sufficient information that would justify protective measures and was unable to grant protective measures to these sources.45Prosecutor v. Prlić et al., IT-04-74-T, Decision on Prlić Defence Motion for Admission of Documentary Evidence, 6 March 2009, para. 25. For a complete history of the litigation see Prosecutor v. Prlić et al., Legal Opinion Amicus Curiae Response to the Chamber’s Questions Following the Order Appointing an Amicus Curiae of 25 August 2009, 6 October 2009 summarizing all the filings and decisions. The Trial Chamber found that the Prlić Defence never should have promised anonymity to the sources, and placed the Chamber in a position where it was unable to access the reliability and authenticity of the documents.46Prosecutor v. Prlić et al., IT-04-74-T, Decision on Prlić Defence Motion for Admission of Documentary Evidence, 6 March 2009, para. 25. Eventually, the Prlić Defence disclosed the identity of some of its sources that had been kept secret, and some of them turned out to be witnesses for the Prlić Defence who testified before the Trial Chamber in open session, in the absence of any protective measures.47Prosecutor v. Prlić et al., IT-04-74-T, Order Appointing an Amicus Curiae, 3 July 2009, p. 4. In an oral decision, the Trial Chamber asked the Prlić Defence to explain why the witnesses refused to reveal that they provided certain documents to the Prlić Defence.48Id., p. 3. The Prlić Defence reiterated its position that it could not reveal the source of the documents.49Id., p. 4. The Trial Chamber deemed it necessary to appoint an Amicus Curiae to determine whether the Prlić Defence’s repeated refusal to disclose the source of the documents constituted professional misconduct.50Id., pp. 4-5.
The Amicus Curiae found that “the sum of the circumstances does not permit us to establish the determining facts indicated that the Defence Counsel acted to ‘willfully and knowingly interfere with the administration of justice’ by failing to identify the sources of the documents requested for admission by way of written motion.”51Prosecutor v. Prlić et al., Legal Opinion Amicus Curiae Response to the Chamber’s Questions Following the Order Appointing an Amicus Curiae of 25 August 2009, 6 October 2009, para. 90. The Amicus Curiae reasoned that “the importance of sources in the context of an investigation, as the latter seeks to collect prosecution evidence against a person being investigated or defence evidence for an accused, is fundamentally the same. The bond of trust that rests on the respect of a commitment of confidentiality and non-disclosure of the identity is essential.”52Id., para. 84. Ultimately, the Trial Chamber dropped its investigation.53Prosecutor v. Prlić et al, IT-04-74-T, Decision Subsequent to Amicus Curiae Report, 3 November 2009.
International Criminal Tribunal for Rwanda (“ICTR”)
(A) At the ICTR, the attorney-client privilege is reflected in Rule 97 of the RPE:
(i) All communications between lawyer and client shall be regarded as privileged, and consequently disclosure cannot be ordered, unless The client consents to such disclosure; or
(ii) The client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.
(B) Nothing in this rule shall be interpreted as permitting the use of confidentiality between Counsel and Client to conceal the participation of Counsel in illegal practices such as fee-splitting with client.
ICTR Rule 97 is identical to the ICTY Rule 97, except for the explicit exception to the privilege in sub-rule (B).
Which communications are covered? – Mugiraneza et al.
In Prosecutor v. Mugiraneza et al., the ICTR Trial Chamber defined when communications are covered by the attorney-client privilege, and which communications are covered. In Mugiraneza et al., the Defence submitted a motion arguing that Defence investigators should be authorized to personally hand over communications from Counsel to the accused, and that the contents of such privileged correspondence should not be inspected by the UN Detention Facility (“UNDF”) Security Officers.54Prosecutor v. Mugiraneza et al., ICTR-99-50-T, Decision on the Defence Urgent Motion for Relief under Rule 54 to Prevent the Commandant of the UNDF from Obstructing the Course of International Criminal Justice, 19 September 2001, para. 2.
The ICTR Trial Chamber acknowledged that “the right to communicate freely and confidentially with Counsel is a fundamental right with respect to the preparation of an accused’s defence and the fairness of the proceedings before the Tribunal, notably pursuant to Articles 19 and 20 of the Statute.”55Id., para. 8. However, it reasoned that Rule 65 of the Rules of Detention56ICTR Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal, 5 June 1998. Rule 65 provides that “each detainee shall be entitled to communicate fully and without restraint with his Defence Counsel, with the assistance of an interpreter where necessary.” does not entitle a detainee to “communicate fully and without restraint with any other person than his Defence Counsel, including, for that matter, with a Defence Investigator.”57Id., para. 10 (italics in original). The Chamber disagreed with the Defence Counsel’s interpretation of “Counsel” as including associates of Counsel, such as investigators.58Id., para. 11.
The Trial Chamber held that in a situation where correspondence or communications from Counsel are delivered by a member of the Defence team, such correspondence or communications should be considered privileged:
only if the correspondence is clearly identified as emanating from Counsel, and secured in such a manner as to prevent persons other than the intended recipient from seeing the contents of the communication or correspondence. 59Id., para. 12.
Security officers may inspect the content of any communication that is not clearly identified as falling under lawyer-client privilege when such communication is brought by members of a Defence team other than Counsel.60Id., para. 13.
Rutaganda
A similar issue was raised in Prosecutor v. Rutaganda, where security officers denied a private investigator access to the detention facilities on several occasions due to the lack of documents of his employment issued by the Tribunal. Deciding on the Defence’s motion to allow visits, the Trial Chamber held that only visits to the detainees by their Defence Counsel and by representatives of the OTP can be rendered without any restriction or supervision.61Prosecutor v. Rutaganda, ICTR-96-3-T, Decision on the Defence Motion Requesting Permission for Its Investigator to Visit the Accused in the Detention Facilities, 11 June 1997, p. 2. The Chamber held that a private investigator can only meet with the accused without any restrictions or measures of supervision if accompanied by the Defence Counsel in person.62Id., p. 3. Thus, attorney-client privilege would only extend to communications with the accused and the investigator if Counsel is present.
Waiver – Nahimana
In Prosecutor v. Nahimana, the Trial Chamber held that the client waived the attorney-client privilege by communicating the content and nature of documents to persons other than his Counsel.63Prosecutor v. Nahimana et al., ICTR-99-52-I, Decision on the Defence Motion for Declaratory Relief from Administrative Measures Imposed on Hassan Ngeze at the UNDF, 9 May 2002, p. 4. The UNDF management intercepted a package addressed to Lead Counsel from the accused, Hassan Ngeze, and proposed to inspect the package in the presence of Counsel.64Id., p. 1. The Defence complained that this action violated the accused’s fair trial right to freely communicate with Counsel and the attorney-client privilege.65Id.
The Registry responded that the package was intercepted upon a belief that the contents might violate the Detention Rules.66Id., p. 2. The Registry further submitted that pursuant to Article 8(2) (b) of the Code of Conduct, the right to lawyer-client privilege is affected where the contents of the communication have been disclosed to a third party.67Id. In this particular instance, Ngeze disclosed the information in a letter addressed to the Registrar. In the letter, the accused stated, “What I assure you is that all these mails 37 letters will be sent to the addresses using Registry cost of course and you will never know.”68Id., p. 4. The Trial Chamber found that through this letter the accused waived the privilege by disclosing the content and the nature of the documents.69Id.
Work Product – Seromba
ICTR Rule 70(A) mirrors ICTY Rule 70(A):
Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under the aforementioned provisions.
In Prosecutor v. Seromba, during an ex parte hearing, the OTP made an oral application for orders of non-disclosure with respect to the names of witnesses and suspects identified in the Supporting Materials to the Indictment and other internal work product.70Prosecutor v. Seromba, ICTR-2001-66-I, Decision on the Prosecutor’s Ex Parte Request for Search, Seizure Arrest and Transfer, 4 July 2001, p. 2. The Trial Chamber found that the annotations to OTP material supporting the Indictment made in preparing the Indictment “should not be disclosed to the public or media or to the suspect, or any of his representatives as they constitute the internal work product of the Office of the Prosecutor and are as such exempted from the disclosure requirements” under the Rule 70.71Id., para. 6. The decision is numbered incorrectly. There are two paragraphs numbered “5”.
Special Court for Sierra Leone (“SCSL”)
At the SCSL, the attorney-client privilege is reflected in Rule 97 of the RPE:
All communications between lawyer and client shall be regarded as privileged, and consequently disclosure cannot be ordered, unless:
(i) The client consents to such disclosure; or
(ii) The client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.
(iii) The client has alleged ineffective assistance of counsel, in which case the privilege is waived as to all communications relevant to the claim of ineffective assistance.
The SCSL provides three explicit exceptions to the attorney-client privilege. Sub-rule (i) indicates that the privilege belongs to the client. Sub-rule (ii) reflects the rule that privilege is waived if the client voluntarily discloses the information. Sub-rule (iii) reflects the common law rule that the lawyer may reveal confidential information when the client asserts that the lawyer breached a duty to the client. For more on this common law rule, see the discussion of Agnew v. Maryland in the second blog post.72In Agnew, the client had made disparaging remarks about his attorney in his book Go Quietly…or else, and revealed confidential communications with his attorney. The Maryland Court of Special Appeals held that Agnew could not assert privilege over the matters which were “essentially revealed to the world”. Agnew v. Maryland, 446 A.2d 425, 445 (Md. 1982).
The crime-fraud exception – Bangura et al.
In Independent Counsel v. Bangura et al., an Independent Counsel was appointed to prosecute Hassan Papa Bangura, Samuel Kargbo, Santigie Borbor Kanu, and Brima Bazzy Kamara for contempt of court.73Prosecutor v. Brima et al., SCSL-04-16-ES, Decision on the Report of Independent Counsel, 24 May 2011. The Independent Counsel sought to subpoena Andrew Daniels, Defence Counsel for Kamara.74Prosecutor v. Bangura et al., SCSL-2011-02-PT, Prosecutor’s Additional Statement of Anticipated Trial Issues and Request for Subpoena, 11 June 2012, para. 1. The Independent Counsel asserted that additional evidence was available from lawyers whom the accused consulted with the intention of carrying out the corrupt scheme, including Mr. Daniels, Ms. Carlton-Hanciles, and Mr. Mansaray.75Id., para. 2. The Independent Counsel alleged that there was a legitimate purpose for Daniel’s testimony because it would contain statements from Kamara that he and others were contemplating having witnesses change their testimony.76Id., para. 8. The Independent Counsel requested that the Trial Chamber “recognize and apply a Crime-Fraud Exception to the Privilege and admit the communications.”77Id., para. 2.
The Defence opposed the request, submitting that all conversations between Kamara and Daniels and/or Carlton-Hanciles were protected by the lawyer-client privilege.78Independent Counsel v. Bangura et al., SCSL-2011-02-T, Decision on Prosecution Request for Subpoenas, 28 June 2012, pp. 2-3. The Independent Counsel did not seek to indict Carlton-Hanciles, suggested that she was involved. Prosecutor v. Bangura et al., SCSL-2011-02-PT, Prosecutor’s Additional Statement of Anticipated Trial Issues and Request for Subpoena, 11 June 2012, para. 2. The Defence contended that she was also covered by attorney-client privilege as the Public Defender. During oral hearings, the Independent Counsel recognized that there was no explicit crime-fraud exception to the privilege under Rule 97 of the RPE, nor was there jurisprudence from other international tribunals.79Id., p. 3. However, he argued that a crime-fraud exception is recognized in the SCSL Code of Conduct, and in the United States and United Kingdom.80Id., p. 3.
The Single Judge found that there was “no precedent in the International Criminal Tribunals on the principle of whether lawyer-client privileged[sic] is lost, if the communications between the client and the lawyer is a communication in furtherance of a crime or fraud.”81Id., para. 5. The Single Judge considered that the court was entitled to look to the laws in civil and common law jurisdictions, as well as others.82Id. However, the parties submitted only common law jurisprudence before the Judge.83Id.
The Single Judge accepted that “legal professional privilege is a fundamental human right, long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law and an intention to override such rights must be expressly stated or appear by necessary implication.”84Id., para. 9. The Single Judge found that “the three exceptions provided in the Rule [97] allow the client to effect disclosure; there is no specific provision that a lawyer may make a disclosure of the communication between him/her and the client.”.85Id., para. 6. However, the Single Judge found that crime-fraud exception to privilege exists as a general principle of law.86Id., paras. 5, 14. After reviewing O’Rourke v. Derbyshire, among other common law cases, the Single Judge considered that there was a well-recognized common law exception to the attorney-client privilege.87Id., para. 13. The Single Judge reasoned that:
[t]o hold that the communications between a lawyer and client are absolute and brook no exceptions in the international tribunals when national tribunals steadfastly recognize an exception would be, to adopt the words of House of Lords in R. v. Cox and Railton, ‘to reduce to absurdity any principle or rule in which it is involved.’88Id., para. 14.
The Single Judge subpoenaed attorney Daniels, but did not actually apply the crime-fraud exception to privilege. Rather, she found that no attorney-client relationship existed between Daniels and Kamara.89Id., para. 18. Kamara had made a phone call to Daniels inquiring with the intention of seeking advice at some time in the future on the Review of the provisions of the Special Court.90Id. The Single Judge considered that this preliminary inquiry did not establish an attorney-client relationship, thus the communications were not privileged.91Id. The Single Judge found that the attorney-client privilege does not exist until the relationship is firmly established, “usually when the parties have agreed on the representation of the client by the lawyer. The relationship cannot exist unilaterally.”92Id., para. 17.
Work Product – Taylor
SCSL RPE Rule 70 mirrors the provisions applied at the ICTY and ICTR:
(A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under the aforementioned provisions.
In Prosecutor v. Taylor, the Trial Chamber issued a direction to the SCSL Registrar to appoint an Independent Counsel to investigate the complaints of OTP witnesses who had given evidence at trial.93Prosecutor v. Taylor, SCSL-03-1-T, Decision on Public with Confidential Annexes A and B Urgent Prosecution Motion for an Investigation into Contempt of the Special Court of Sierra Leone and on Prosecution Supplementary Requests, 17 March 2010, para. 2. The Independent Counsel crafted a report, which dealt with his investigation of Taylor, his findings and the manner in which he put the case against Taylor. The Defence requested that the Trial Chamber lift the confidentiality of the document. The Independent Counsel “declined to provide the report in its entirety because (he) felt it included ‘work product’ and a confidential report to the Court.”94Prosecutor v. Taylor, SCSL-12-02-PT, Decision on Defence Application to Make Public the Confidential – Under Seal Submission of Confidential Report of the Independent Counsel, 10 January 2013, p. 2. The Single Judge considered that Rule 70(A), but found that it was “not appropriate, without full argument, to rule if the Report of 12 April 2011 is ‘work product’ which is not subject to disclosure or notification.”95Id., p. 3. The Single Judge found that the Independent Counsel’s report contained some statements and opinion that would be confidential, and a recorded interview with the accused and other references to him.96Id. The Single Judge ordered the Manager of the Court Management Section to transmit to the Defence redacted portions of the report.97Id., p. 3.
International Criminal Court
At the ICC, the Article 69(5) of the Rome Statute states that “[t]he Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence.” Rule 73 mirrors the attorney-client privilege rule applied at the ICTY and other tribunals.98ICTY Rule 97; ICTR Rule 97; SCSL Rule 97. ICC RPE Rule 73(1) provides that:
[C]ommunications made in the context of the professional relationship between a person and his or her legal counsel shall be regarded as privileged, and consequently not subject to disclosure, unless:
(a) The person consents in writing to such disclosure; or
(b) The person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.
According to the ICC Code of Professional Conduct, Counsel may only reveal the confidential information to Co-Counsel, assistants and other staff working on the particular case to which the information relates and solely to enable the exercise of his or her functions in relation to that case.99ICC Code of Conduct, Art. 8(3).
Work Product
At the ICC RPE Rule 81(1) adopts similar language to the work product provisions at the ICTY and ICTR. Rule 81(1) provides that “[r]eports, memoranda or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case are not subject to disclosure.”
Bemba et al.
As described in the first post of this blog series, in Bemba, several members of the Defence teams were accused of offenses against the administration of justice under Article 70 of the Rome Statute,100Article 70 of the Rome Statute governs offences against the administration of justice, which includes (a) giving false testimony when under an obligation to tell the truth; (b) presenting evidence that the party knows is false or forged; (c) corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence; (d) impending, intimidating, or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; (e) retaliating against an official of the Court on account of duties performed by that official or another official; and (f) soliciting or accepting a bribe as an official of the Court in connection with his or her official duties. for presenting evidence known to be false, as well as corrupting witnesses. The entire procedural history is set out in the first post; the following is a general overview.
The OTP argued that the accused were in constant communication with financiers of a scheme to bribe witnesses and were using Counsel Kilolo’s status as Counsel to circumvent monitoring from the Registry.101Situation in the Central African Republic, ICC-01/05-44-Red, Public redacted version of “Prosecution Request for Judicial Assistance to Obtain Evidence for Investigation under Article 70”, 12 February 2014 (original submitted 3 May 2013).) Accordingly, the OTP sought judicial authorization to collect intercepts from the Belgian and Dutch authorities.((Situation in the Central African Republic, ICC-01-05-51-Conf-Exp, Request for Judicial Order to Obtain Evidence for Investigation under Article 70, 19 July 2013. This request is confidential and ex parte. It is cited in Situation 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, p. 3.
On 29 July 2013, Judge Tarfusser found that the OTP had sufficient evidence showing that the communications may have been instrumental in the alleged scheme, and thus fell into a crime-fraud exception to privilege.102Situation 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, paras. 3-5. He defined the crime-fraud exception as that set out in the Special Tribunal for Lebanon Rules of Procedure and Evidence, Rule 163(iii): “the client intended to perpetrate a crime and the communications were in furtherance of that crime.”103Id., para. 4. Judge Tarfusser then appointed an Independent Counsel to identify portions of communications which might be relevant for the limited purpose of the OTP’s investigation, and to deliver them to the OTP.104Id., paras. 6-7.
On 15 May 2015, the Trial Chamber assessed two reports by the Independent Counsel filed in September 2014 and March 2015.105Prosecutor 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. The Trial Chamber considered that it had the discretion to decide on the scope of materials covered by the crime-fraud exception.106Id., para. 15. When assessing the selected materials’ relevance, the Trial Chamber considered “relevance to the case generally.”107Id., para. 17. The Trial Chamber found several communications to be relevant and non-privileged and ordered these communications to be provided to the other parties.108Id., paras. 22, 23, 32, 33, 35-37.
The Trial Chamber denied the Bemba Defence’s request for leave to appeal the decision, stating that even if it erred in defining the crime-fraud exception, this would not necessarily make the communications inadmissible.109Prosecutor 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, para. 9. In a footnote, the Trial Chamber referred to Article 69(7) of the Rome Statute and stated that “the Chamber is required to declare evidence obtained in violation of the Statute inadmissible only if the further criteria under sub-rules (a) or (b) are met.”110Id., fn. 13; Sub-rules (a) and (b) provide: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.
Prosecutor v. Gicheru and Bett
On 10 March 2015, the Single Judge, Judge Trendafilova, issued an arrest warrant for Paul Gicheru and Phillip Kipkoech Bett in the context of the investigation in Situation in the Republic of Kenya.111Prosecutor v. Gicheru & Bett, ICC-01/09-01/15, Decision on “Prosecution’s Application under Article 58(1) of the Rome Statute”, 10 March 2015. The OTP alleged that there were reasonable grounds to believe that a criminal scheme designed to systematically approach and corruptly influence OTP witnesses through bribery and other methods of inducements in exchange for their withdrawal as OTP witnesses and/or recantation of their prior statements to the OTP.112Id., para. 11. The Trial Chamber, finding that there were reasonable grounds to believe that offences against the administration of justice were committed, issued an arrest warrant for Gicheru and Bett, and ordered:
the seizure of any relevant evidence, such as cell phones, computers or PDAs, diaries, address books, notes or records of meetings or conversations, financial or banking records and/or cash which are, on reasonable grounds, believed to be used in, connected with, or to provide evidence of, the offences for which these warrants of arrest are issued.113Id., pp. 18-19.
Gicheru is a Kenyan lawyer, but is not yet clear as to the details of his status in relation to Bett or the witnesses.114Id., p. 14. Client communications may become relevant to the OTP’s prosecution, and thus, the issue of the crime fraud-exception to the attorney-client privilege may very well arise in this case.
Conclusion
As can be seen from this post and my previous post on national jurisprudence, the attorney-client privilege is not absolute. A crime-fraud exception exists at various international tribunals, codified in the Rules of Procedure and Evidence, and recognized in jurisprudence. The cases discussed above are illustrative, and instructive on how the attorney-client privilege may be applied in future cases.
Brđanin and Talić set out the scope of the attorney-client privilege as a rule of evidence, protecting from disclosure confidential attorney-client communications made for the purpose of giving or getting legal advice and documents prepared regard to prospective or pending litigation. Krajišnik gave guidance on who is covered by the attorney-client privilege, noting that the attorney-client privilege may extend to the Counsel’s Defence team. Mugarinza et al. and Rutaganda helped define which communications are covered. For instance, communications between the client and other associates of the Counsel, such as investigators, are not covered by privilege unless the Counsel is present. Nahimana is instructive on waiver, holding that the privilege is waived when the client voluntary discloses the communications to a third party. Lastly, Bangura et al. recognized the crime-fraud exception despite there being no specific exception in the SCSL Rules, holding that the attorney-client privilege “is not absolute and that discovery and disclosure can lie when the communication was in furtherance of a crime or fraud.”
Notably, the limited existing jurisprudence does not address all questions with respect to the scope of the crime-fraud exception. The questions raised by the Bemba decisions are important for all List Counsel and will surely arise in future cases. List Counsel must know the parameters of the attorney-client privilege and its exceptions in order to adequately advise their clients.
The decisions in Bemba raise several issues. When does the crime-fraud exception apply? What types of communications does it include? What does “in furtherance of crime” mean? If communications in question contain a mix of privileged and non-privileged communications, where is the line to be drawn?
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Footnotes
Another post attractive to read, Michael; as usual. I just have a comment about the place of the crime-fraud exception at the ICC. At this point I actually am not sure whether the ICC has the power to apply the crime-fraud exception, as the exception isn’t laid down in the Court’s regulatory instruments. The decision by Judge Tarfusser’s that you referred to in footnote 102 doesn’t point out the legal source of the exception; it merely refers to its ‘broad acceptance ay the national and international level’, its stipulation in the RPE of the STL, and SCSL’s decision where it is contended that the exception is generally recognised in common-law jurisdiction. In my view, that’s not evidence of the existence of a customary rule of international law or a general principle of law to that effect.
I’m not saying that the crime-fraud exception isn’t part (or it shouldn’t be part) of the Court’s applicable law; I’m saying that, in that decision, (i) the Court failed to prove that the crime-fraud exception can be applied pursuant to the sources of law listed in Article 21 of the Statute; and (ii) that an exception to a fundamental right such as the right to privileged communication shouldn’t be subject to exceptions made on the basis of ‘norms’ pulled like a rabbit out of a hat.
Comments?
Best,
Fabián
Thanks Fabian!
Very good observation. The next post in on the crime – fraud exception and I will revisit Judge Tarfusser’s analysis. However you look at it, difficult to argue the non – applicability of the crime – fraud exception.
The exception is necessary, among other things, to preserve the good name and honour of our profession. I wonder why it wasn’t included in the Court’s regulatory instruments.
I look forward to reading the next post.
good post thank you