THE DILIGENCE THAT IS DUE: ICC Counsel Ethics Training

In the nature of law practice, … conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.

Preamble to the American Bar Association’s Model Rules of Professional Conduct

On 21 September 2023 I gave a presentation on Professional Conduct at the  Hybrid Training for ICC List Counsel, organized by the ICC Counsel Support Section (CSS) and sponsored by the European Commission.  It is always daunting to stand before fellow counsel to try to engage them in a discussion on matters of ethics, professional responsibility, and the disciplinary measures and consequences that result when we fall short of what is expected of us, or when we defend ourselves against allegations of ethical breaches. Also, there is only so much that can be covered in a couple of hours. Ethics training should be conducted on a regular basis. Might it also be prudent for ICC CSS to consider making it mandatory to take a modest number of hours of continuing legal education on ethics per year in order to be in good standing and remain on the List of Counsel? I think so.

With the Code being a skimpy 14 pages of 46 concise articles, anyone on the list could go over it while having a cup of coffee, even before it gets cold. Not to mention, one would think that expressing an interest in getting on the List of Counsel and eventually having a client would motivate one to read the Code, along with the Rome Statute and ICC Rules of Procedure and Evidence. So, rather than do an article-by-article commentary, I highlighted aspects of the code to show how, in no small measure, we are guided by the code in our day-to-day activities in representing a client before the ICC. Much of what I covered also applies to other international(ized) criminal tribunals, and except where the Code might conflict with one’s national code, to representing clients in criminal matters before domestic courts. Here is the gist of my presentation.

We all have different experiences and come from a variety of legal traditions, with varying canons and traditions of professional ethics. What may be permissible in one national jurisdiction may not be permissible in another, and depending on the circumstances, may sometimes be permissible at one of the international(ized) criminal tribunals or the ICC. And so, when practicing before the ICC, counsel routinely find themselves on an ethical tight rope as they endeavor to advocate their client’s case zealously and to the fullest extent, yet not beyond the ethical boundaries that are not always so clear or readily discernable.

We generally know or can easily discern the bright red lines that must never be crossed; the conduct that cannot be condoned, where right from wrong is obvious, where instinctively one knows as a matter of personal ethics and morality what the right action is or how far to push the envelope. The limits. The professional codes of conduct in our respective national jurisdictions and at the ICC and other international(ized) criminal tribunals articulate these bright red lines quite succinctly. Yet, when it comes to more nuanced issues – the sort of problems that even practice and experience cannot readily solve with certainty – these codes often offer only a skeleton of guidance, if that. And therein lies the rub.

Maybe we should be guided by our instincts or feelings: if we think that there is a conflict of interest and it gives us pause, then most likely there is a conflict of interest. If we think that doing something or not doing something may be crossing an ethical red line, then we are probably about to cross an ethical red line. Best to be extra careful. In some instances, this may be an appropriately conservative approach, providing an easy way to address ethical issues. However, there are instances where taking such an overly conservative approach could lead into the equally dangerous ethical (or should I say unethical) waters of ineffective representation.

I am not talking of instances of knowingly and intentionally breaching bright red line ethical rules such as making false representations to the court, or suborning perjury by coaching or cajoling witnesses to give false testimony under oath. There should be no dilemma: zealous representation is not an excuse or license for unethical behavior. I am talking about instances when it would seem that aggressive lawyering is essential in order to ensure that the client’s fair trial rights – or a victim’s rights – are fully protected, a proper record is made, and, if necessary, the court is forced to make an error that is fully preserved on the record so that on appeal the client’s case may potentially be resuscitated. Forcing the judge or chamber to rule, and perchance to err, is a perfectly acceptable legal and ethical tactic.

But what of the instances when something just does not seem right? When you have doubts about what you are about to do? When you hear that voice in the back of your mind whispering: are you sure this is permissible? Is this really ethical?

We have all found ourselves, at one point or another, rationalizing our doubts away about the correctness or legitimacy of our conduct. And when we have done so, can we honestly say that we have objectively analyzed the facts and objectively examined our professional rules and codes of conduct? I dare say, unless we reached out for an objective opinion from an authoritative and unbiased source, we were probably at the cusp of committing an ethical breach. And herein lies the next rub: where do you go for a consultation – and just how reliable or defensible can the advice be?

In many national jurisdictions this may not be a dilemma. The Bar Association – or Bar (as it is called in the civil law traditions) may offer ethics advice and opinions on a confidential basis. You simply pose a hypothetical fact pattern that resembles your predicament. It is about as safe as you can play it. Of course, that may not always be possible; a situation may arise which may not provide you with the luxury of running it by the Bar ethics counsel for an advisory opinion. And then of course, a court or disciplinary body might not agree with the advice you’ve followed, however official and proper the process might be.

Counsel practicing at the international tribunals are generally more handicapped. There is no official Bar at the ICC, though there is a voluntary association: the ICCBA. Query whether following the advice of an ICCBA ethics opinion (assuming one can be given by highly qualified and experienced counsel who fully grasp the ICC jurisprudence and procedural hybridity) would shield defence counsel from disciplinary action. Better than nothing, and certainly advisable to reach out to experienced counsel.  I often field such inquiries from my colleagues.  While a court or disciplinary body may not agree in the end, my advice will be well-grounded and the act of asking will go a long way toward helping to insulate counsel from sanctions.

In any event, my advice is to get an ethics opinion from his or her national Bar, even though the Code has priority over national codes where there may be a conflict (Art. 4). It shows that you are acting with due diligence in trying to be ethical – provided of course you seek advice before acting. But if after the fact you are unsure whether you have acted ethically and are in fear of potential disciplinary exposure, the better practice, again, is to consult experienced counsel for advice. Covering up is more likely to make things worse. What may have started out as an oversight or poor judgment could turn into serious allegations of misconduct.

In thinking of moral conflicts versus ethical obligations, or fidelity to the client versus obedience to the law and the Code, ethically meeting our duty of zealousness through due diligence, counsel must in discrete circumstances engage to some extent in situational or discretionary ethics.

Joseph Fletcher in his seminal and controversial book Situation Ethics reasoned that ethical issues should be determined in their relative context. What may be morally wrong in one context may be entirely right in another. Of course, this method of situational or contextual decision-making involves risks – risks that need to be appreciated because of the consequences resulting from selecting a particular action. The ends may justify the means in achieving what may a socially correct result, but that is hardly a satisfying answer. Defence counsel, in particular, are on the front line in confronting ethical dilemmas that have serious consequences for their clients, themselves, their colleagues, the profession, and even society in general. Situational decision-making may be permissible under certain discrete circumstances but knowing those circumstances and knowing the extent – the parameters – of any given circumstance where situational decision-making may be permissible is not always so clear. Like driving in the fog: you only know you are off the road when you find yourself off the road.

A suspect’s or accused’s fair trial rights require defence counsel’s full and uncompromising efforts to zealously through due diligence meet their duties of independence, loyalty, communication, confidentiality, and lack of conflicts of interest. Ethically. And let’s be brutally honest: defence counsel are expected to do things in their professional capacity, which, if done by prosecutors or judges or even ordinary people in ordinary circumstances, would unquestionably be unethical or immoral. For instance:

• • • Defence counsel are NOT required to pursue the true account of the facts of the case or to promote a dispassionate application of the law to the facts.
    • Defence counsel are expected – required – to aggressively challenge both the facts and law in defending their clients. This may, and often does, require defence counsel to advance beliefs that they may personally find questionable.
    • Defence counsel are not expected – indeed, I would say defence counsel are forbidden – to balance competing interests so that all affected persons, such as the victims and civil parties, get what they rightly deserve. Quite to the contrary, defence counsel are expected to exclusively pursue their client’s interests.
    • Defence counsel are expected to exploit every strategic advantage on their client’s behalf, even when they think – or even “know” – that their client is not morally entitled to the advantage.

A defence counsel’s representation of a client is not an endorsement of that client’s factual or legal claims. Certainly it is not an endorsement of the client’s political, economic, social, or moral views or activities – however benevolent or malevolent they may be. Defence counsel have an obligation to remain detached, as they go about zealously exploiting every considerable opening and pressing every conceivable advantage that may benefit their client. Their obligation is to put the prosecution to its proof in every way and present every legal and factual defence that may benefit their client, short of knowingly presenting false evidence or making false representations to the court. Were defence counsel to abandon this professional detachment, they would be taking on the role of the prosecutor and judge. They would stop serving the interests of their client. Defence counsel might be pursuing the true account of the facts of the case or even promoting a dispassionate application of the law to the facts, but this would be a misguided – indeed unethical – quest best left to others.

While defence counsel are duty-bound to serve and not judge their clients, they should not slavishly adhere to whatever whims of the client or engage in any activity, irrespective of professional and ethical constraints, simply to benefit the client or for the sake of winning the case. Their fidelity to the client is not an unconstrained invitation, a carte blanche, a no holds barred approach to zealous advocacy. There are legal and ethical constraints.

For the most part, when it comes to certain behavior, defence counsel know (or certainly should know) when something is just plain wrong. They know (as all counsel, prosecutors, and judges ought to know) it is wrong because the moral or ethical conduct expected of defence counsel is something that they would have learned as children from their parents, teachers, and playmates. Thus, along with one’s intuitive understanding of right and wrong and national codes of professional conduct, the Code lays out general red line principles that all counsel practicing before the ICC must follow.

Abiding by the general red line principles set out in the Code requires knowledge, experience, discipline, and honesty as a counterbalance to any self-rationalization and self-dilutional thinking. Yet, defence and victims counsel genuinely need help in meeting their responsibilities to their clients and other ethical obligations of the profession. Identifying reasonable answers to the more nuanced issues can be difficult. I am talking about the ones which as to which the codes of conduct lend mere guidance, where no hard and fast rules are readily discernable – the sort of issues that even with caution and deliberation can be devilishly complex with enormous consequences in store.

Counsel is also responsible to and for all members on the team. Under Article 7(4) of the Code, counsel is required to supervise the work of his or her staff to ensure that they comply with the Code. Counsel will be held accountable for any ethical infractions by staff members if not diligent in selecting, training, and supervising. Internal checks and balances and due diligence modalities should be in place, and as with other tasks, should be included in a Best Practices Manual so that the entire team is singing from the same music sheet, if you will.

My experience has informed me that the core of our duties and constraints under our respective codes of conduct can be reduced to two words: due diligence. Thus, it is through the due diligence prism that we should interpret our role and be guided by it in interpreting and applying the Code. Yes, due diligence is one of the enumerated duties listed in the Code (Art. 5), so it goes without saying. But here is the nub: due diligence not a box to tick off among a list of other obligations, but it is the glue, the essence, the hub to which everything we do is connected in representing clients and in ethically pursuing their interests and ensuring that they are afforded the full extent and enjoyment of their fair trial rights. It is the means through which zealous representation is achieved.

The oath set out in Article 5 of the Code mandates that counsel perform their duties “with integrity and diligence, honourably, freely, independently, expeditiously and conscientiously” and “scrupulously respect professional secrecy” and the other duties imposed by the Code. The words integrity, diligence, expeditiously, conscientiously are not defined. Their meaning lies somewhere in the Code among the various articles. Diligence has jurisprudential definition, though it is easier described than defined. Essentially, it is the diligence that is due to the client in order to robustly and zealously represent them. Due diligence is also a duty owed to the court (chambers, judges) and the Registry – especially where the defence and victim representation as court financed.

But what is the diligence that is due? Essentially it means doing everything required to ensure that all fair trial rights of the client or rights of the victims are fully afforded. Due diligence is grounded in the accused’s fair trial rights – namely, those listed in Article 67 of the Rome Statute and Article 14 of the ICCPR:

1. 1. 1. 1. Right to a fair trial.
         2. Right to be presumed innocent.
         3. Right to an independent and impartial tribunal.
         4. Right to a public hearing.
         5. Right to be tried within a reasonable time.
         6. Right to be informed of the charges.
         7. Right to adequate time and facilities (equality of arms).
         8. Right to defend oneself or be defended by competent counsel.
         9. Right to confront witnesses.
         10. Right to present witnesses.
         11. Right to understand the proceedings in one’s own language.
         12. Right against self-incrimination.
         13. Right to appeal.

If diligence is the means by which zealousness is achieved in representing the client and protecting his/her fair trial rights, how does counsel satisfy this duty?

We are all prisoners of our own legal tradition. It is only natural to view, interpret, and apply the court’s applicable framework and our professional responsibilities of zealousness and due diligence within the context and peculiarities of our own legal systems. Yet, the ICC has adopted sui generis hybrid proceedings with procedural modalities from both common and civil law systems, granting judges uncommonly broad authority to manage the proceedings and the presentation of evidence (see Article 64(6)(b) and (d) of the Rome Statute). As such counsel’s ethical duties and professional responsibilities must be understood within this wider context.

While neither purely adversarial nor purely inquisitorial, the ICC procedure is party-driven. Each party is responsible for its own case, investigating and gathering its own evidence, and presenting its case at trial. There is no “impartial” investigative judge – as there is in some civil law jurisdictions – whose explicit obligation is to conduct the investigation in pursuit of the truth: to search for and gather all the evidence – incriminating (inculpatory) and exonerating (exculpatory) – and to examine the witnesses objectively and impartially. Similarly, there is no common dossier (case file), unlike in some civil law jurisdictions.

Thus, given that counsel at the ICC operate in a hybrid adversarial/party driven system their duties and functions are informed and appreciated within the hybridity context of the statue, rules, regulations, practice directions, and jurisprudence. Knowing how a case is prepared and tried, having the type of skills required, and having more than a passing understating of substantive law and a familiarity with the Rules of Procedure and Evidence is indispensable.

The functions of common law and civil law defence counsel are remarkably different in their domestic practices. They both share in a sense the same obligations to their clients, although those obligations may be interpreted differently. Also, their approaches to defending a client are significantly different – and this holds true even amongst the various domestic procedures within either system. Tasks or skills that may seem essential in one procedure may have no bearing in another – or may even be prohibited. All of this comes into play, to some degree, when practicing at one of the international courts, depending on the adopted procedure.

Bluntly, adversarial skills and experience are required to ethically and effectively represent suspects, accused, and victims at the ICC. Indeed, given the hybridity nature of the ICC and the fact that judges are coming from both civil law/judged-managed systems and common law/party-driven systems, counsel must be conversant in both legal traditions, especially given that judge also tend to interpret the statute and rules through the prism of their own legal tradition and experience. The adversarial skills I am talking about include everything from client interviewing to investigations, to motion practice, to direct and cross-examination, to making and meeting evidentiary objections, to making the record for appeal, to closing arguments, to brief writing and appellate advocacy.

So, what sort of skills does it take to be diligent – and competent (see Articles 7(2), 9(3), and 13(2)(b) and (c) of the Code – throughout the proceedings in protecting the clients fair trial rights under the ICC’s hybrid procedure? Here is a basic list discussed during my presentation:

1. 1. 1. Strategic thinking
      2. Brainstorming and developing a theory of the case, strategies, and tactics
      3. Communicating with and advising the client in order to take informed instructions
      4. Selecting and working with investigators
      5. Investigating, gathering, and handling evidence
      6. Interviewing witnesses
      7. Assessing the need for and working with expert witnesses
      8. Preparing for opposing experts
      9. Preparing (proofing) witnesses
      10. Motion practice
      11. Making and meeting objections in court
      12. Examining witnesses
      13. Appellate skills

Within this context I also covered other aspects of the Code such as independence (Article 6), good faith and loyalty (Article 14), communications (Article 15), confidentiality (Article 8), the crime-fraud exception to the counsel-client privilege, conflicts of interests (Articles 12 and 16), relations with other represented persons (Article 28), interference with the administration of justice (Articles 23, 24, 25 and 29, and 70 of the Rome Statute), duties owed to the Registrar/CSS such as the efficient and justified use of court finances (Article 22), and treatment of staff and others (Article 7(1)).

Suffice it to say, it does not matter how learned or skilled or meticulous you may be, if you do not have the requisite resources to hire the right staff to assist you, it is ridiculous to assume that you can meet your due diligence obligations. If you are incapable of doing so because the resources afforded by CSS are inadequate to have the right staff or to investigate or to file all relevant submissions, or if the chamber does not give you sufficient time to prepare your case or confront the prosecution’s witnesses or present your own witnesses and evidence, you cannot meet your obligations with integrity, you cannot act expeditiously, and you certainly cannot represent your client conscientiously.  It is your duty and ethical obligation to push back in these areas and, as ever, make a record in every way possible.

Recapping

Zealous advocacy through due diligence demands active, prepared, skillful, ethical defence counsel. Counsel’s duties are to further the interests of their clients fair trial rights by all lawful means, even when those interests are in conflict with the interests and goals of the international community, donors, civil society, states parties, and even the very essence of the international(ized) criminal tribunals and courts – their raison d’être: fostering peace and reconciliation, establishing a historical record, providing a forum for victims of crimes, providing a sense of closure for victims, and fostering the rule of law and respect for human rights. In the words of legendary ethics professor Monroe H. Freedman, “Effective trial advocacy requires that the attorney’s every word, action, and attitude be consistent with the conclusion that his client is innocent.”

In uncompromisingly representing their clients within these limits, defence counsel must not divert their attention to or be distracted by issues that interfere with their exclusive remit: to defend their clients. If in zealously representing one’s clients a guilty person goes free or a victim does not receive satisfaction from the court’s judgement, so be it. Fault for any injustices unanswered, historical records left incomplete, or reconciliation being eluded as a result of defence counsel’s zealous advocacy must, as it should, rest with the prosecution or, perhaps, the judges. Loyalty, confidentiality, due diligence, competence, and communication should never be compromised – especially for ancillary and morally higher goals that the ICC may have as part of its raison d’être. To do otherwise risks turning defence counsel into a parody, a mere cog in the prosecution’s wheel.

Defence counsel have specific ethical duties of independence, loyalty, communication, confidentiality, and lack of conflicts of interest, along with other duties, such as those owed to opposing counsel, and others participating in the proceedings. But we are also ethically bound to never misrepresent facts and never mislead the court. Defence counsel, as with prosecutors and victims’ counsel, have an abiding duty not to misrepresent the facts or the law to the court, and should not engage in activity that is prohibited by the applicable code of conduct or law. There are red lines and limits in zealously representing clients that should never be transgressed.

These red lines and limits, however, are not so readily pronounced, which is why you need to be vigilant and diligent. When unsure of what behavior or action to take, the best option is to consult someone. That said, we should not shy away because of timidity or fear of breaching the Code to the point where we are being less than zealous in representing our client’s interests. In other words, you do not take one or two or three steps backwards for your own safety. Were you to do that, not only would you be less than zealous through diligence, but you would also be providing ineffective assistance.  In short, your paralysis in the face of fear of an ethical breach would itself create an ethical violation.

If we are to represent our clients to the highest standard – representing them the way that we would expect to be represented, were we in their shoes – we must then abide by the ICC Code of Conduct for Counsel. Despite the Code’s lack of precision, offering thematic and prescriptive and aspirational guidance that is open to interpretation, it does shows us the way. But as with all codes, it does not and cannot do the work for us.

Theory, information, and advice from ethics trainings such as my two-hour lecture are useless unless we are prepared to act through practice. For that reason, in discussing our ethical duties and professional responsibilities, I covered the essential adversarial modalities and the requisite skill set in representing our clients, weaving theory with practice, laced with hypotheticals and provocative questions. A start, but hardly sufficient for most counsel on the ICC List of Counsel anxiously hoping for an appointment.

Intensive trial advocacy training by highly knowledgeable trainers with substantial trial experience is sorely needed at the ICC. It ought to be offered on a regular basis to all staff members, not just counsel with a certain level of experience. I have repeatedly suggested this to CSS, and in fact back on 30 March 2023, I wrote a rather detailed memorandum to CSS outlining the need for it to organize practical and interactive training on a regular basis. This is something that cannot be outsourced to an NGO or to an association or be left to the generous efforts of outsiders such as the Inner Temple who recently put on a high-quality short trial advocacy training for a few selected counsel – not all of whom were on ICC cases.

Stay tuned for the next post. It will cover in more detail the sort of training the ICC Registry/CSS should offer. In the meantime, for those who might want a bit more on ethics and trial advocacy, below are links to some of my previous posts and articles.

POSTSCRIPT

Over the course of the last 10 years, I have had the privilege and honor to have my hard-working and talented colleague and friend Noah Al-Malt at my side, assisting me not just in the various cases I have been involved with but also in researching, drafting, and in helping me in preparing for my trainings, lectures, and posts. Preparing for this year’s ICC hybrid conference was no different. I am grateful.

LINKS TO PRIOR POSTS ON VARIOUS ETHICAL & TRIAL ADVOCACY TOPICS

Ethics in general

• DISCOURSE AT THE INNER TEMPLE ON NAVIGATING THE CODES OF CONDUCT STRAIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS: a format that is missing, overlooked, or (un)intentionally rebuffed?
• FILM REVIEW: The Trial of the Chicago 7

Due diligence

• The Diligence That Is Due – Part II: How to Make the Record
• The Diligence That Is Due: Making the Record & Perfecting Grounds for Appeal

Independence

• The Lawyer’s Independence — Part II
• The Lawyer’s Independence: A Universal Principle of Disparate Meanings – Part I

Confidentiality / attorney-client privilege

• Attorney-Client Privilege and the Crime-Fraud Exception — Part I
• Attorney-Client Privilege – Part II: Foundation in National Systems
• Attorney-Client Privilege – Part III: International Tribunals
• Attorney-Client Privilege — Part IV: The Crime-Fraud Exception
• Attorney-Client Privilege – Part V: Other Privileges in International Criminal Tribunals
• Attorney-Client Privilege – Part VI: So Just How Immunized Am I Before the International Tribunals?

Conflicts of interests

• ADC-ICTY LECTURE ON CONFLICTS OF INTEREST

Duties to the client

• British QC Agrees To Prosecute Hong Kong Pro-Democracy Activists: Should it matter? 
• POSTSCRIPT — DAVID PERRY QC DOES VOLTE-FACE: wise move or fainthearted retreat?
• ETHICALLY CONSTRAINED DEFENSE COUNSEL MUST WITHDRAW
• WITHDRAWING FROM A CASE: Abandoning ship or doing what is in the client’s best interest
• WITHDRAWING FROM A CASE: Comment and Response
• Representing Multiple Witnesses: a risky gambit
• ARGUING YOUR CLIENT’S GUILT OVER HIS OBJECTIONS AS A SENTENCE-MITIGATION STRATEGY: An ethically impermissible objective

Presenting false evidence and witness tampering

• Witness tampering convictions at the ICC: repercussions under Article 70
• Response to comments on ethics enforcement inequality: the Superman vs. Batman dichotomy

Hybrid procedure

• Hybrid Courts: a marriage of inconvenience
• Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof
• Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo
• Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law
• Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law
• Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof — Part IV

About Author

Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including pre-trial, trial, and appellate advocacy.

See author's posts

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including pre-trial, trial, and appellate advocacy. View all posts by Michael G. Karnavas