On 30 June and 1 July 2016, the International Criminal Court Bar Association (ICCBA) came into being. The ICCBA is the first Bar Association for Counsel and their Assistants practising before the International Criminal Court (ICC). It was launched at the ICC in The Hague, the Netherlands, thanks to the generous support of the ICC Registrar.
For some of us it has been a long journey of persistent hard work. Few believed it could happen. Even fewer rolled up their sleeves to pitch in. As one of the midwives of the ICCBA, I celebrate the birth and respect that the baby has now been handed over to the duly elected leadership. In doing so, however, I take the liberty of also delivering a figurative Finnish baby box of observations, suggestions and warnings.
There is no getting around it; those elected – from the ICCBA President on down – will need to do a lot of heavy lifting. Considerable challenges lie ahead. There is no guarantee that the ICCBA will be accepted by the Assembly of States Parties (ASP). There is no guarantee that other associations will not be created to compete with the ICCBA – as an anti-ICCBA collective of bars and associations1Union Internationale des Avocats, Avocats Barreau Paris, Avocats.Be, Federation des Barreaux D’Europe, Conférence des Barreaux des États Membres de OHADA and the Council of Bars and Law Societies of Europe CCBE seem to be threatening. And there is no guarantee that those elected will actually have the time, energy and tenacity to do the necessary work. No slight intended. Simply acknowledgment of the daunting reality. Time will tell, but time unforgivably waits for no one, and the ICCBA has precious little time to waste.
The ICCBA’s objectives are to protect the general interests of Counsel appearing before the Court, to reinforce the full independence of Counsel, to strengthen equality of arms, and to enhance the quality of justice at the ICC. Can the ICCBA meet these objectives? Perhaps, but not necessarily, and certainly not without a plan and commitment.
The year ahead will be rocky. There are several issues that will need to be resolved, and fast. Euphoric as the Constitutional Congress and General Assembly were, reality quickly intruded as the budget was discussed. Quelle surprise. I calculated the minimum costs for the first year well before I started drafting the constitution several years ago. At a bare minimum, and with only one paid position (a competent Executive Director with experience at a P3 level), the annual cost for running the ICCBA is around 150,000 euro a year. And that is with office space being provided by the ICC, and not counting the costs for any trainings. When considering that very few counsel actually have cases at the ICC, with the prospect of large numbers non-existent, getting members to join and pay hefty annual dues simply for being members of an association, is unrealistic. It is a pity the Registrar was unable to deliver on his representations that he could provide seed assistance by financing a P3 and P2 for the first year. Not for lack of trying, though. The ASP would not countenance such a perceived extravagance for an association of counsel, which in their cynical or ill-informed view, has a principal if not exclusive goal of shaking down the ASP for more money. Nonsense, but perceptions are the truth in the eye of the unreviewable decision maker.
The ICCBA will need to have some quick and tangible deliverables. Sending out updates of photo-op grin & shake meetings will not do.
Without a budget there is no Executive Director to run the day-to-day affairs. So far, the ICCBA has been fortunate to be getting pro bono assistance from Dominic Kennedy, the Head of Office of the Association of Defence Counsel Practising before the ICTY (ADC-ICTY ) (thanks to the generosity of the ADC-ICTY Executive Committee), but for how much longer? Having the staff of the Office of Public Counsel for Defence and the Office of Public Counsel for Victims (OPCs) seconded to the ICCBA cannot work. They are salaried employees of the ICC (as are the heads of the OPCs) and to have them working for an independent association at the expense of the ICC will not sit well with the ASP. Just think of the ramifications: if the OPCs can have their staff work on extraneous matters, the OPCs must be over-staffed; time to downsize. And then comes the audit. Independence aside, the OPCs are under the Registry and are accountable, and thus subject to being audited. That aside, there is the issue of conflict of interests. The ICCBA must remain independent, in every way. It cannot be seen as an appendage of or subservient to the OPCs. The alternative is for members of the Executive Council to roll up their sleeves and do the work. Again, unless some are willing to devote enormous amounts of time and energy, this is unlikely. Some are busy, others are not in The Hague, and from my experience, most will not want to spend their precious time during working hours or at night and weekends to do committee work, let alone grunt work. Hopefully, some will have their paid staff or interns pitch in. That might be a short-term solution – at least for the next 3-4 months.
Getting ASP’s recognition is the next most pressing issue; something that needs to be tackled immediately and well before the next ASP. This will require a strategy for engaging the embassies of the States Parties and relevant NGOs dealing with ICC matters.
It would be useful to have the Registrar be part of this out-reach/public relations process, but now that there has been this pushback from the anti-ICCBA collective bars and associations, and the fact that the ICCBA is not, and cannot be, the exclusive professional association for ICC List Counsel, will the Registrar be willing to risk any political capital? Don’t count on it. It is hard to blame him. The ICC is a Byzantine leviathan, replete with Machiavellian intrigue, turf wars and empire-building. Going out on a limb for a powerless constituency is neither easy nor enticing. In any event, the ICCBA needs a multidimensional strategy between now and November when the next ASP is to be held. Waging a disciplined, targeted and creative public relations campaign should be considered. This can be done on a shoe-string budget, but it may prove more labor-intensive than presumed.
Dealing with the OPCs is another issue that will need to be tackled. This will be tricky, now that both heads of the OPCs are elected officials of the ICCBA.
For starters, during the next General Assembly, the issue of staff employees of the ICC being elected officials of the ICCBA will need to be re-visited. There is an inherent conflict of interest. These ICC staff members are not independent counsel – even if they claim to be working for an independent section of the Registry. As such, they can be members of the ICCBA, but they should be disqualified from being elected to any committee or being appointed to serve in any capacity on behalf of the ICCBA. This battle which was narrowly lost due to an over-reaching amendment is on the horizon. Preferably it can be resolved without the acrimony or gloating witnessed during the Constitutional Congress. Doubtful.
But that is not all. Many victims counsel resent the current structure / approach of the OPCV, whereby victims counsel – who are counsel of choice of the victims – are relegated to a secondary status, with OPCV in-house counsel taking over and running roughshod over them. So they feel. This is an inescapably volatile issue. A creative solution is needed, but thus far there is little appetite for constructive engagement. Also, the Registrar will need to weigh-in, but will he? It suits the Registrar to have in-house counsel take over as counsel for victims; it is cost-effective. But is it right? Should victims have the right to select their legal representatives? Should costs trump the rights of the victims, especially since the ICC was structured in a way to give victims maximum voice and participation? Is there an acceptable middle way? The Executive Committee could set up a blue-ribbon commission to address this issue. Alternatively, the Victims Committee could take on this issue, though would that yield an optimum result? I think not; too subjective. And in any event, there will still be a need to deal with the Registrar. The better approach may be to have a blue ribbon commission with insiders as well as representatives of civil-society NGOs deal with this issue and prepare a report with viable options to be discussed with the Registrar.
Then there is the OPCD. While it is indispensable to have an independent office for the defence, there are many defence counsel questioning the wisdom and necessity of having ICC paid staff from the OPCD appointed to cases (even if temporarily), appear as duty counsel or even have a right of audience. This is a legitimate issue. There are plenty of qualified List Counsel in and around The Hague to step into the breach when duty counsel is needed. There are also plenty of List Counsel who are in situ or readily available to travel and be in situ if and when the need arises. So why is it necessary for counsel at OPCD to be appointed or make appearances in court? There is no compelling reason, at least not at this stage of the ICC’s existence. Even if an appointed or selected counsel is clueless as to what happens at an initial appearance (something that can easily be rectified), these hearings are so pro forma that if counsel needs a babysitter to get him or her through the hearing, then perhaps such counsel are unqualified to represent anyone before any proceeding at the ICC.
Take away the right of appointment or right of audience from the OPCD and it becomes what was really intended in the first place: a place of reference, a depository of institutional memory, an information center. Granted, some counsel use the OPCD to do their legal research and drafting. Useful as this may be, no self-respecting defense counsel would rely on such services to have his or her submissions being drafted, particularly where there is no oversight or quality control (this is not meant as a criticism of their work) and where confidential material could be exposed. If the OPCD in-house ICC paid counsel are not taking appointments or appearing in court, and if their research and drafting is circumscribed to deal with global legal issues that affect defence counsel and their clients in general (as I believe should be the case), this could, debatably, result in the down-sizing of OPCD, and the downgrading of positions or loss of employment. Perhaps, but is this a good enough reason to continue having OPCD staff being appointed to carry out functions that are meant for and expected of List Counsel? These issues mirror the issues raised during ReVision.
The Registrar’s concept for restructuring the OPCs into a Defence Office and Victims Office was not entirely without merit. In fact, for defence counsel it made some sense, at least the part of having the Defence Office handle administrative matters, as opposed to the current set up where everything is handled by the over-worked and under-staffed CSS. In any event, defence counsel have every right to call into question the continuing practice of having OPCD in-house counsel being appointed to cases or appearing as duty counsel; not only are they salaried ICC staff, but they are also taking away what few opportunities there may be for List Counsel to be assigned to such appointments.
Tackling this issue will be tough, assuming the Executive Council has the intestinal fortitude to do so. It may be tempting to kick this can down the road, set it aside for the future. But having waited over a decade for the formation of the ICCBA to deal with these sort of pesky trade union / bread and butter issues, can this first Executive Council seriously brush this issue aside for the indefinite future because it is demanding, inconvenient or messy? A creative solution is achievable, but it will not come without contentious discussions and an abundance of good will from all sides.
Here are some suggestions: There are a host of matters where the ICCBA and OPCs have mutual interests, such as training, developing best practice manuals, tracking and disseminating the latest jurisprudence, updating List Counsel through a newsletter, in which, among other things employment or internship opportunities could be posted, drafting position papers on proposed amendments to rules or directives, etc. Frankly, it is supremely ironic that the OPCs for all their touting about looking after the interests of their respective constituents, have not actively pursued any of these obvious tasks. In any event, even the Registrar agrees that these are necessary activities in strengthening the capacity of List Counsel, so it would be insincere for him to suggest that the OPCs, given their current mandate, could not undertake such activities in a coordinated and supportive role with the ICCBA. These are deliverables that yield tangibles that undermine arguments for the dismantling the OPCD or diminishing its human resources. The Registrar undoubtedly has fixed views, but if the ICCBA can find an acceptable compromise with the OPCD, then the Registrar will need to deal with this reality. It certainly would be much more difficult for the Registrar to impose unwelcome solutions at the expense of reasonable and acceptable alternatives.
The restructuring of legal aid is another pressing issue that cannot wait. This will require constructive and persistent engagement with the Registrar. As unique as the ICC believes itself to be, lessons can be learned from the legal aid policies of the other international tribunals. Counsel’s needs in properly representing clients are well known to those of us who have defended these sorts of cases elsewhere. Yes, there are some differences when it comes to gathering evidence and even presenting it at trial (though at the ICC this also depends on the serendipitous nature of the bench), but for all intents and purposes, qualified counsel are readily available to seek guidance from and exchange experiences. Aside from engaging the Registrar, the ICCBA should, again, set up a blue ribbon commission to examine the legal aid policy. Rather than going to the Registrar on bended knee with cup in hand, the ICCBA should have a detailed draft legal policy that is based on institutional knowledge and experience on handling hearings and cases, along with a comparative study of the legal aid policies of other tribunals, even those that are or may soon be defunct, such as the ICTR, SCSL, and the ICTY. Leaving it up to the Registrar to come up with a new legal aid policy – assuming that is in the offing – places the ICCBA in a position where it is actually negotiating against itself. But for starters, the ICCBA needs to send a clarion call to the Registrar, that within the next two months, and certainly before the next ASP, it will propose a legal aid policy to be discussed and negotiated with the Registrar. And as part of this process, the ICCBA should also inform the Registrar that in drafting the budget for the defence, it would be useful for the Registrar to engage the ICCBA in the process. Consultations must occur before the Registrar fixes a figure, not after the fact. Such consultations would demonstrate the Registrar’s earnestness in dealing with the ICCBA.
There are other matters that will need to be tackled this first year. I have already alluded to them in discussing the OPCs. Training, best practice manuals, e-courses, a newsletter, quarterly updates on the latest jurisprudence, motions bank, ethics hot-line and strike force to assist List Counsel and their staff, and more.
This is not an unrealistic list for the ICCBA’s first year. It is doable. However, it will take meticulous planning and hard work. Provided those who were elected to serve on the various committees pull their weight, and provided there is leadership and coordination from the front, there is a good chance the ICCBA will punch above its weight, and just may get the ASP recognition it covets. This requires real, tangible and useful deliverables. However, if the sum total of the ICCBA’s targeted goal for the first year is to just achieve ASP recognition (which will not happen without concrete deliverables) it is doomed to fail.
My parting advice to the elected officials of the ICCBA is to get cracking. But rather than go in every direction helter-skelter, spend the next days and weeks mapping out a detailed comprehensive plan for the year – for all committees. Planning, focus and elbow grease are the essential elements to success of the ICCBA. The baby has been birthed. It is now time to protect, nurture and raise it to be a vital, valuable citizen of the ICC community.
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