Judicial Ethics: containing the dubious aroma of uninhibited judicial conduct

The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

Michael Ponsor, Senior Judge on the US District Court for the District of Massachusetts, A Federal Judge Asks: Does the Supreme Court Realize How Bad It Smells? New York Times, 14 July 2023

On 11 November 2023, I had the privilege of being a panelist at the International Association of Conference Interpreters (AIIC) 14^th Legal Symposium organized by the AIIC Netherlands Chapter on Ethics in Law and Interpreting: Lawyers and Interpreters Talk Ethics: Mutal Expectations, Shared Experiences, which I have already written about. With a couple of international judges on the panel – Kosovo Specialist Chamber Judge Guénaël Mettraux and International Criminal Court (ICC) Judge Joanna Korner – the issue of judicial ethics and codes of conduct was bound to come up. And it did.

Kicking off the discussion, Judge Mettraux touched on judicial ethics and fielded a couple of questions. He stressed, appropriately, the importance of judicial comportment and restraint both inside and outside the courtroom. He recounted how the judges at the International Criminal Tribunal for the former Yugoslavia (ICTY) came to the realization that a judicial code of conduct was needed, and ultimately adopted.

I have long maintained that if the judicial process is not fair, the outcome is meaningless. In the broader sense, it is about procedural justice. Ineluctably, this includes judicial behavior. If court decisions and judgments and sentences are to be accepted as the results of substantive and procedural justice having been served, it is incumbent that the public – nationally and internationally – have confidence in the integrity, independence, and impartiality, of the judges. To that end, codes of conduct provide guidance, albeit framed as general principles requiring the exercise of reason, common sense, and informed judgment. Codes of conduct also provide a measure of comfort to litigants and the public by telling them that the system is committed to a level playing field. Continue reading “Judicial Ethics: containing the dubious aroma of uninhibited judicial conduct”

THE MAGIC IN THE BOOTH: a tribute to interpreters

No international(ized) criminal tribunal or court could function without the translators and interpreters. It never ceases to amaze me how incredibly talented and meticulous they are in capturing not just the language but also the intonations – the spirit, if you will, of that which is being conveyed by the speakers. It is a demanding and exhausting job to be sitting in on proceedings doing simultaneous or near simultaneous interpretations with precision, when witnesses as well as the lawyers, on all sides, are prone to meandering inarticulately or even unintelligibly. Were that not challenging enough, when judges misspeak or are caught making faux pas, reflexively many of them tend to blame the interpreters. Yet, despite the challenges they face every day when in the booth interpreting (translators are constantly working under challenging deadlines), the value of the interpreters and translators in making proceedings and trials possible is rarely fully recognized. Nor do many of us who appear in the international(ized) criminal tribunals and courts spend much time socializing with them, or even getting to know them. We either take them for granted (after all they are not “learned” like us), or we are simply too fixated on our own work and self-importance.

AN ASIDE: In Praise of Interpreters and Translators, Book Review of NO SELL DEAD – A Tale of Cambodia

James Jennings, author of NO SELL DEAD, is an accomplished interpreter of extensive experience before the international(ized) criminal tribunals and courts. I had the privilege to work with him when we were both at the Extraordinary Chambers in the Courts of Cambodia (ECCC). For several years, he was the chief interpreter at the ECCC while I was Ieng Sary’s and Meas Muth’s International Co‑Lawyer. Our paths rarely crossed. Well, that’s not accurate. Whether it be a meeting, a minor hearing, or trial proceeding, interpreters were mandatorily present. Jennings or one or more of his colleagues were there, unobtrusively performing their magic. Through the interpreter serving both as code-breaker and conduit, a speaker utters in one language and other language(s) are magically heard. Strange sounds converted into lucid, intelligible, discernable language, enabling discourse, exchanges, and action. But for the interpreters, none of this would be possible. Ditto for the translators who toil in the backroom turning the inaccessible into the accessible for the monoglots or linguistically challenged.

Jennings exemplifies the talent and cultural sophistication interpreters and translators possess. By nature, they are curious, with an affinity for language, literature, and history. Well-traveled, well-read, culturally sensitive, nuance-attentive, detail-observant. Without them where would we be? Imagine holding an international conference without them. Impossible. They make it happen. They are the unsung and often unrecognized heroes. Not just at the international(ized) criminal tribunals and courts, but wherever they find themselves offering their language skills, turning what would otherwise be a cacophony into a symphony. Continue reading “THE MAGIC IN THE BOOTH: a tribute to interpreters “

A CLARION CALL TO THE ICC COUNSEL SUPPORT SECTION: training for counsel and assistants should be practical and skill-developing

You have to know the why in order to know the when,

But if you don’t know the how

Knowing the why and when won’t help you.

Training Moto, Michael G. Karnavas

Reality Check

Article 7(2) of the ICC Code of Professional Conduct for Counsel (Code) presumes that list counsel possess a high level of knowledge of the applicable law and a high level of skills required for the adopted party-driven, adversarial hybrid procedure, and thus must “participate in training initiatives required to maintain such competence.” This presumption is fanciful. Not all list counsel are sufficiently competent – let alone to a high level – simply because they have managed to get themselves on the list. Counsel cannot “maintain a high level of competence” unless they are already competent to a high level. Query whose responsibility is it to ensure that at least those counsel appearing in proceedings before the ICC have a high level of competence. In no small measure I suggest it is the ICC Registrar, through the Counsel Support Section (CSS), which is responsible for setting the standards for the admission of counsel. Continue reading “A CLARION CALL TO THE ICC COUNSEL SUPPORT SECTION: training for counsel and assistants should be practical and skill-developing”

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. Continue reading “THE DILIGENCE THAT IS DUE: ICC Counsel Ethics Training”

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?

On 29 June 2023, the International Committee of the Inner Temple organized a short training session for aspiring barristers on legal professional ethics before the international criminal tribunals. The Honourable Society of the Inner Temple has been in existence since the 14^th Century. It is one of the four unincorporated, not-for-profit membership associations for barristers and judges in the UK, known as the Inns of Court. Together, they provide high-quality legal education and training for the barrister profession, delivered by senior members of the Bar and other key partners on a pro bono basis, and have the exclusive right to call students to the Bar of England and Wales.

Participating in the seminar were an ICC Judge (Kimberly Prost), an ICC Deputy Prosecutor (Nazhat Khan), and a defence counsel (yours truly). The program was moderated by ICC Judge Joanna Korner CMG KC – who, as an exceptionally experienced Queen’s Counsel, served two stints as a senior trial lawyer before the ICTY prior to becoming a judge of the Crown Court of England and Wales. The event was informative, engaging, and collegially lively. But there was something more to it, something important that is generally absent in most training seminars, especially on ethics: the inclusion of three pillars of criminal proceedings (missing only a representative of victims counsel) on a panel, so they and the audience can hear about each other, from each other, with their different perspectives being aired, considered, debated, appreciated, and/or rejected. Continue reading “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?”

Book Review: JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law

JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law, by Darryl Robinson, Cambridge University Press, 2020, 304 pages, £85.00

Law is an enterprise of reasoning, and thus I believe that we must pay careful attention not only to the legal conclusions reached, but also to the structure of arguments employed. A judgement might employ problematic reasoning and still reach a defensible result. Nonetheless, the reasoning matters, because replication of faulty structure of arguments will eventually produce faulty outcomes. Our reasoning is our “math,” and systemic distortions in our math will eventually throw off our calculations in significant ways. (p. 54)

Some twenty years ago when I found myself at the International Criminal Tribunal for the former Yugoslavia (ICTY), I was rather puzzled. I expected (not sure why) to have judges on the bench who, like myself, had cut their teeth in criminal courts, and who, of course, would also have a deep appreciation of international criminal law (ICL) as well as human rights and humanitarian law. I say this because in some of the legal reasonings I noticed how certain fundamental principles were being loosely interpreted to achieve or explain a pre-ordained decision. Eventually it dawned on me. A judge’s understanding of and experience with criminal law (or lack thereof) prior to donning the crimson robe informed their approach to applying fundamental principles intrinsic to criminal law and ICL. Continue reading “Book Review: JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law”

ICC Judges Yield to the Experts’ Recommendations in Amending the Code of Judicial Ethics: a welcomed but modest tinkering to an otherwise impressionistic code of conduct

From the Experts’ consultation process, this lack of collegiality is said to have manifested itself in a variety of ways: poisonous relations, both judicial and personal, following the elections of the Presidency; public expressions of the lack of respect by a Judge towards other Judges; limited Chamber deliberations; excessive adherence and devotion to a Judge’s own legal system; very late circulation of draft written decisions; infrequent intra-Chamber and Intra-Division communications; existence of cliques, factions or open friction among Judges; lashing of disparaging comments on colleagues on the issuance of decisions; deliberate snubbing of associates; persistent failure to reach unanimity; and non-communication.

Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report, 30 September 2020, para. 463.

In 2005, the ICC Judges adopted what may have been considered back then a groundbreaking Code of Judicial Ethics. Groundbreaking not for its contents, but rather for drafting and adopting a code that was to be “advisory in nature and have the object of assisting judges with respect to ethical and professional issues with which they are confronted” (Art. 11.1). Perhaps because the code was merely seen as advisory, its significance, or better yet, its obligatory nature was unacknowledged – at least by some of the judges.Codes of judicial ethics regulate the judiciary by providing guidance on the judges’ duties, responsibilities, and conduct towards other judges, the parties, witnesses, staff, and the judicial institutions – courts and tribunals. When providing clear and definitive rules governing the judges’ behavior, codes of judicial ethics effectively legislate, whereas when merely providing vague guidance with nebulous and undefined terms, they tend to be susceptible to mailable interpretations, equivocation, inconclusiveness, and ill-compliance. Of course, devising detailed rules for every ethical eventuality a judge is likely to encounter is unrealistic. Judicial canons should be pithy, expressing general principles. Preferably, they should also be accompanied by detailed prescriptive and proscriptive provisions that flush out the canons, and a commentary informing the object and purpose of the canons.

The ICC Code of Judicial Ethics provides no commentary but does merge canonical principles with more fleshed out provisions. Overall, it is a useful Code – at least to career judges and experienced litigators (prosecutors and lawyers) who arrive at the ICC to don the judicial two-toned blue robe. Even for those with prior national experience (who far too often are prisoners of their own legal system), a code that is scant in guidance, inexact in the meaning of terms, and lacking explanatory comments, will be appreciated and applied through their provincially narrow perspective. And it is not just the Code that is interpreted in this fashion – it cuts across all aspects of judges’ interpretation and application of statutory provisions, rules, and regulations. Not to mention their interactions with their colleagues and others. That’s where collegiality comes in. Continue reading “ICC Judges Yield to the Experts’ Recommendations in Amending the Code of Judicial Ethics: a welcomed but modest tinkering to an otherwise impressionistic code of conduct”

POSTSCRIPT — DAVID PERRY QC DOES VOLTE-FACE: wise move or fainthearted retreat?

I understand in the case of Mr. Perry, in relation to the pro-democracy activists, and of course from Beijing’s point of view, this would be a serious PR coup.… Frankly, I think people watching this would regard it as pretty mercenary to be taking up that kind of case.

Dominic Raab, British Foreign Secretary

Raab owes Perry an unreserved apology. His remarks are not only foolish, but also flawed: they smack of grandstanding, rather than reason.… In the best tradition of the English Bar, Perry will be scrupulously fair at trial and he will ensure that there is a just outcome.

Grenville Cross QC, Former Hong Kong Director of Public Prosecutions

As I was posting my piece on David Perry QC accepting the brief to prosecute Hong Kong pro-democracy demonstrators, Perry withdrew from the case. The Hong Kong Government explained that “growing pressure and criticism from the UK community directed at Mr. Perry QC” and “the exemption of the quarantine” were the causes for his withdrawal.

Unfair pressure, crisis of conscience, realization of folly, economic considerations, or ridding of grief? Take your pick. One thing for sure, the claim that Perry’s withdrawal was due to quarantine issues doesn’t pass the smell test. Continue reading “POSTSCRIPT — DAVID PERRY QC DOES VOLTE-FACE: wise move or fainthearted retreat?”

FILM REVIEW: The Trial of the Chicago 7

Abbie Hoffman:

This is a political trial that was already decided for us. Ignoring that reality is just weird to me.

William M. Kunstler:

There are civil trials and there are criminal trials. There is no such thing as a political trial.

In Aaron Sorkin’s The Trial of the Chicago 7, we see legendary civil rights lawyer William M. Kunstler slowly come to the realization that he is in a political trial, requiring a whole different approach to defending the eight (later seven) defendants in one of the most colorful, if not significant, trials in modern American history.

The above exchange in the film between Hoffman and Kunstler comes after opening statements. Kunstler’s epiphany comes well into the trial. Continue reading “FILM REVIEW: The Trial of the Chicago 7”

Attorney-Client Privilege — The Crime-Fraud Exception

Recently there has been a sharp uptick in traffic to an October 2015 post I wrote on the crime-fraud exception to attorney-client privilege (reproduced below). This post was part of a four-part series on attorney client-privilege issues in domestic and international(ized) courts. I can only assume that the renewed interest in this subject is fueled by last week’s FBI execution of a search warrant on the office, home and hotel room of Michael Cohen, lawyer (some say “fixer”) for President Donald Trump. As I write, the issue is playing out in a United States District Court in New York, where Cohen, supported by Mr. Trump’s lawyers, is seeking an injunction to prevent the prosecutor from examining seized materials, based on attorney-client privilege.

Before this litigation is over we are likely to see a very high-profile addition to the canon of law on the crime-fraud exception to attorney-client privilege.

Attorney-Client Privilege — Part IV: The Crime-Fraud Exception

This post follows up on the discussion of the attorney-client privilege and the crime-fraud exception raised in Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my previous post, I presented an overview of the attorney-client privilege (otherwise known as “lawyer-client privilege” or “legal professional privilege”) in the international criminal tribunals. As previously discussed, one of the exceptions to the attorney-client privilege is the crime-fraud exception. This exception applies when communications are made in furtherance of a crime or fraud. In other words, the attorney-client privilege is not a shield to be used by either the attorney or the client to pursue or cover up criminal activity, including acts contributing to the obstruction or perversion of justice. The ICC Pre-Trial and Trial Chamber decisions in Bemba raise several questions concerning the scope of this exception. Before I get into those questions, let’s briefly review the history of the case. Continue reading “Attorney-Client Privilege — The Crime-Fraud Exception”