[I]f we have to find our way over difficult seas and under murky skies without a compass or chronometer, we need not on that account allow the ship to drive at random.
A. Balfour, The Foundations of Belief, Being Notes Introductory to the Study of Theology (Longman, Green & Co., New York, 1902), p. 244.
You need to know what you don’t know, to know what you need to know.
Michael G. Karnavas, Training Aphorism
On 13-14 March 2024, I was privileged to have been invited as a panelist to an ethics symposium held at the International Criminal Court (ICC), organized by the Institute for International Legal and Advocacy Training (IILAT).
Founded in 2013 in The Hague, IILAT’s mission over the years has been “to address the growing need for courtroom advocacy training at international courts and tribunals.” Training, which might I add, is practical, relevant, and qualitatively excellent – and badly needed, considering the importance of adversarial skills required in virtually all international(ized) criminal tribunals and courts (ICTs). As for this symposium, I found it exceptionally useful and insightful.
Professional ethics is not something you take a course on and then assume you know all that is needed to know. The ethical conduct to which we are expected to adhere is an evolving process – just like the rules of procedure and evidence and practice directions. And how better to refresh and review our ethical obligations than to hold a symposium that addresses ethics not in isolation, but in the context of all those involved in turning the wheels of justice at the ICTs.
First, a big shout-out to the Inner Temple, and especially to ICC Judge Joanna Korner. It was Inner Temple that first organized an ethics conference of this kind, in London on 29 June 2023. I had the privilege of being invited as a panelist. By all accounts, it was a resounding success (see here) – so much so, that I recommended that it be replicated at the ICC, but with a more engaging interactive component. And so, thanks to Judge Korner and IILAT’s Director of Training and recently elected ICC Judge Beti Hohler, the Ethics Symposium was organized by IILAT and hosted by the ICC.
Before discussing the symposium, a few words about the London ethics conference, followed by some general views on the importance of joint training, and why I think it should become a regular and continuing staple at the ICC. Not least because it is a permanent court.
Exchanging views with a judge and prosecutor, fielding questions and hearing comments from an audience of impressive and experienced barristers practicing domestically and internationally from both sides of the aisle was a real treat. Just when you think you finally got it, or dead sure that your viewpoint is an immutable orthodoxy, here comes a perspective that impels reassessing, recalibrating, and reversing. Hopefully my views – conveyed from the defence perspective (an abridged version of my two-hour ethics training at the 2023 ICC annual training conference for List Counsel) – would equally affect reflection, maybe even a modicum of better appreciation. While many professional ethics issues can easily be discerned and resolved, many are complex, with the codes of conduct providing some guidance but scant exactitude on where the ethical lines are and what is the ethical conduct required.
Whether in pre-trial or trial or on appeal it takes four to tango at the ICC. Five if you also include the interpreters, without whom the wheels grind to a halt. The judges, prosecutors, defence counsel, victims’ representatives, and interpreters play a distinct role – as they do in any national or international court. Refined criminal procedures – whether in the civil law or common law or hybrid systems – inherently have tension built in them as necessary checks and balances. It is not about equal footing. It is about the functions assigned to and the responsibilities undertaken by the various players in a criminal proceeding played out in a court of law. And while the criminal procedure game, if you will, has rules applicable to all, depending on the role played, there are special rules that must also be followed – scrupulously.
All ICTs have rules of procedure and evidence, setting out, in general, the rules, while also incorporating regulations, practice directions, and instructions – all for the purpose of guiding the process to ensure a semblance of uniformity, predictability, and consistency. But there are also dedicated codes of ethics to guide the respective players. These codes are mainly in the form of broad principles, providing little if any concrete answers to the myriad of questions that are likely to arise during the course of the proceedings.
National codes of conduct may offer some additional guidance, but depending on the legal tradition, these codes may be just as opaque and thematic. Thus, interpreting the ICC code of conduct may come down to who is interpreting it – their legal tradition, and whether, as if often the case, they will interpret the applicable code through the lens of their own code, and in doing so, inject notions not found in nor anticipated by the ICC codes. This is even more pronounced when those deciding on whether a particular action has transgressed an ethical obligation are unfamiliar with the nature of the proceedings at the ICTs, have no experience with hybrid adversarial proceedings (often misapprehended and mischaracterized as common law or “Anglo-Saxon”), and substitute their national or legal tradition notions for those of the applicable code.
Ethics is prevalent in any criminal proceeding. Everything done by anyone in a case before any of the ICTs is under code of conduct scrutiny. Ethical dilemmas are inevitable. When they arise, they have the potential to impact the course of the proceedings – not just the person(s) involved. As such, it behooves all involved – judges, prosecutors, defence counsel, and victims’ representatives – to hold trainings on ethics and professional responsibility together. Let me interject – I have also thought the same when it comes to training on the substantive and procedural law: why not hold symposiums on the rules of procedure and evidence, on how trials are (should be) conducted, on discrete issues such as witness proofing, etc.?
I recall a few years back at an ADC-ICTY annual conference devoting a good part of the day to ethics. In the audience there were a couple of judges, one or two prosecutors, some from the registry, and of course, lots of defence counsel. Aside from the panelists discussing a set of issues, hypotheticals were posed for audience participation. Suffice it to say, the answers were as disparate as the make-up of the audience. The answers, and more importantly the reasoning for the answers, depended largely on the legal tradition and function within the international criminal justice chain. Often the resolution was to agree to disagree. Reaching a consensus on what was ethical and generally permitted under the codes when it came to difficult ethical issues was challenging at best. Put differently, even when acting in good faith and with due regard to the general precepts of the code of conduct, the difference between an ethical breach and compliance can hinge on who is judging the action.
But even before this conference, when serving as on the Training Committee and later as President of ADC-ICTY, we invited judges to our trainings and conferences to get their views – or as I called it views from the bench. Getting this perspective in any sort of trial advocacy training, including ethics, is essential for anyone wishing to excel as an effective advocate. Understanding how those responsible in assessing the evidence and evaluating the trial proceedings is part and parcel of an advocate’s repertoire (demeanor, skill, competence or ineptness, professionalism, uprightness, tend to get factored into the mix, albeit discretely and unperceptively). To think otherwise is to assume that: (a) one’s performance is beyond improvement; (b) judges are cybernetic; and (c) the evaluation of evidence and deliberative process in making findings of facts and conclusions of law happen in a vacuum.
As a young lawyer, I often approached judges after a trial for their advice on how to improve my game. I found these post-mortem chats exceptionally helpful. Not only was I able to see myself through the eyes of the judges, but I always walked away with valuable tips – and invariably ethical advice. Since I was trying cases in front of a jury, I would also seek their opinions and views. Rarely, however, would I approach prosecutors, though over the years there have been a few that I’ve had the privilege to go against, who, unselfishly, helped me along the way. You’d be surprised what practical advice you can pick up over a drink when the guards are down, and inhibitions absent. You need not agree with their take on things, but I have found that there is profit in suspending reflexive judgment, particularly when discussing discrete ethical issues with prosecutors, and just reflecting on their viewpoints. Especially when inapposite to mine. Orthodoxies firmly held should never go unexamined, and when appropriate, recalibrated, even rebuffed.
Here is where it must be noted that the British legal tradition – where barristers serve as both prosecutors and defence counsel – is ideally suited to keep an advocate balanced. When an advocate has to switch back and forth on a regular basis, not only do they view both sides of the coin more objectively and ethically, but it also prevents them from becoming extreme and jaded – as can become the case when only prosecuting or defending. This also means that advocacy training, at all levels, would axiomatically include both sides, often with experienced judges presiding over mock exercises and engaging in discussions involving ethical issues. This makes for a healthy environment, with all sides of the equation understanding and appreciating their respective roles within the context of the roles played by the others.
And now to the IILAT Ethics Symposium.
There were two components to the symposium. The first day, the panelists made presentations and fielded questions for the participants’ approaches to resolving them. The panel discussion was moderated by Judge Korner, who, before coming to the ICC, defended, prosecuted, had been a judge in the UK, and prosecuted at the ICTY. The panelists in the order of appearance were: Kosovo Specialist Chambers (KSC)/ICC Judge Nicolas Guillou, former SCSL Prosecutor and Principal Trial Attorney in the ICC Office of the Prosecutor Brenda J. Hollis, myself as defence counsel, and Victims’ Counsel at the KSC Simon Laws, KC. The extensive domestic and international criminal law experience made for an interesting and rewarding exchange of viewpoints. Mind you, Judge Korner as moderator would also chime in with discerning gold nuggets of advice and provoking musings.
On the second day, with Leonie von Braun joining from the Office of the Prosecutor, the participants analyzed a set of scenarios with ethical issues and dilemmas coming from the perspective of the prosecution, the defence, victims’ representatives, and finally, the judges. Four groups were formed to independently analyze and resolve the ethical issues, followed by a plenary discussion where each group, through a designated rapporteur, reported the group’s approach to and conclusions on the scenario. This allowed for further discussion and parsing of the ethical issues and a deeper understanding of the nuanced perspective that each role contributes to the judicial process.
While I did not entirely agree with all viewpoints of my fellow panelists, given the depth of wisdom that comes with experience – especially from high achievers who cut their teeth in their domestic systems before going international (vitally important in learning the acquired craft of advocacy, inclusive of which is strategic and tactical thinking skills) – I respect those views enough to revaluate my own. This I found happening as we discussed the possible answers to the scenarios in plenary, which, might I add, was fascinating hearing first how the different groups approached and offered options on resolving the ethical dilemmas of each scenario before hearing from the other panelists.
Rather than go on about the symposium, let me leave you with the scenarios. Have a go at them. Better yet, go over them with your co-workers. Have your own symposium workshop. In fact, consider holding regular in-house/in-team training sessions.
Scenarios
- SCENARIO A
You are prosecuting a case in which the Defence are disputing the provenance of a document which is extremely inculpatory of the accused. Your case is that it was seized during the search of premises connected to the accused. You call the investigator to deal with the issue. During his evidence he tells the Court that every document seized was individually recorded and logged before being placed in a box.
From your own knowledge of the search, you are aware that this is untrue, in that:
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- a number of different premises were searched at the same time;
- because of hostile crowds the searches had had to be conducted at great speed;
- no records were made at the time, all documents from different premises were placed into boxes ,the contents of which were only examined at the Evidence Unit at a later date.
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- What ethical issues arise and what steps do you take?
- SCENARIO B
You have been instructed to act for accused (A) charged with Crimes against Humanity. The case is estimated to last 2 years. When you receive the list of Prosecution witnesses you realise that one of the Prosecution witnesses is someone (B) you represented in an earlier trial arising from the same situation but relating to events in a different area. The Prosecution proposes to call (B) to establish that the alleged crimes were committed in the context of an attack against civilian population which was widespread and systematic. In other words, the witness is to testify about the so-called contextual elements.
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- Can you continue to represent the accused A?
- Would your answer be different if both (A) & (B) swore affidavits saying they had no objection to your continuing to act as counsel for (A)?
- SCENARIO C
You have been appointed as a Legal representative of Victims (LRV) in a case. You receive a form from an applicant in which he states that he was forced by the Accused to become a child soldier. His application is accepted by the Registry. During the course of the case, you meet him for the first time and during the course of conversation it becomes apparent he lied on the form about his age at the time of the events which are the subject of the trial.
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- What ethical issues arise and what steps do you take?
- SCENARIO D
You are defending an accused in a complex criminal trial. During a conference with your client, your client asks what the potential consequences of key witnesses to the Prosecution’s case would be if they refused to appear in court or recant their evidence. The witnesses are known to the client and he is able to contact them. Approximately a month later, some of these witnesses begin to recant their testimony or cease communication with the Prosecution. During a conference your client says something which leads you to suspect that he may have taken steps to interfere with them.
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- What ethical issues arise and what steps do you take?
- SCENARIO E
As a Prosecution Trial Lawyer, you have been tasked with aiding the Senior Trial Lawyer in conducting the witness preparation of a key witness who will testify imminently. During the session, you observe that the Senior Trial Lawyer is, in violation of the Trial Chamber’s explicit orders outlined in the witness preparation protocol, coaching the witness regarding their testimony in the case by indirectly suggesting what they should say against the accused. At the conclusion of the session, the Senior Trial Lawyer instructs you to draft a brief note summarising the meeting, but limit it to only two clarifications made by the witness.
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- What ethical issues arise and what steps do you take?
- What if the Witness Protocol requires that the sessions are video-recorded? What if the initial interaction is not captured on the video, because of a technical issue?
- SCENARIO F
As a judge serving on a three-member panel assigned to a trial for crimes against humanity, Defence Counsel has notified the Chamber that their next witness will be the accused, who is from a country known as CrimeVille. In a pre-evidence meeting amongst the judges, one of your fellow judges remarks, “I can’t wait for the accused to give evidence; I know people from CrimeVille well, and they all tend to lie or exaggerate.”
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- What ethical issues arise and what steps do you take?
More on professional ethics and disciplinary proceedings on the horizon.
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