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 — Part IV: The Crime-Fraud Exception”
Category: ICC
Attorney-Client Privilege – Part III: International Tribunals
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. Continue reading “Attorney-Client Privilege – Part III: International Tribunals”
Attorney-Client Privilege – Part II: Foundation in National Systems
In my previous post, I explained why I filed a request for leave to file an amicus brief in Prosecutor v. Bemba Gombo et al. (“Bemba”) at the ICC, and provided the factual context of the case relevant to the issue of attorney-client privilege communications. In Bemba, the Trial Chamber ordered several communications between Counsel, the client, the case-manager, and others to be transmitted to the Office of the Prosecutor (“OTP”) and other parties.((Prosecutor 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, paras. 22, 32, 33, 35-37.)) Thus, several issues surfaced. What is the scope of the attorney-client privilege? What types of communications does it cover? Who does it cover? As this privilege has its foundations in national systems, before addressing the overarching issue of attorney-client privilege before international tribunals and specifically the ICC, a brief discussion of its basic principles in national jurisprudence may be helpful. This post will provide a historical background of the attorney-client privilege, its parameters, and its exceptions in national jurisdictions. The intent is to provide the basic principles with some illustrative examples, as opposed to an extensive exegesis with an exhaustive list of relevant jurisprudence. Continue reading “Attorney-Client Privilege – Part II: Foundation in National Systems”
Attorney-Client Privilege and the Crime-Fraud Exception — Part I
Recently I filed a request for leave to file an amicus brief in the Bemba Gombo et al. case at the ICC. Decisions by the ICC Pre-Trial Chamber((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. (“Bemba 29 July 2013 Decision”)) and Trial Chamber((Prosecutor 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 (“Bemba 15 May 2015 Decision”); Prosecutor 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 (“Bemba 21 July 2015 Decision”.) )) have raised the issues of when the attorney-client privilege can be lifted and the use of communications between an attorney and a client. As these issues affect all List Counsel at the ICC, and perhaps beyond, this is precisely the type of matter in which a Bar Association for List Counsel (“ICCBA”) may seek to intervene. There being no association to take on the matter, and with the working group drafting the constitution for the ICCBA having no mandate to seek leave to file an amicus brief, I decided to step up to a request made by one of the defence counsel. Continue reading “Attorney-Client Privilege and the Crime-Fraud Exception — Part I”
Hybrid Courts: a marriage of inconvenience
Last December I had the privilege of being invited to participate at a conference hosted by the International Research and Documentation Centre War Crimes Trials, in Marburg, Germany. The conference, titled The Defence in International Criminal Courts, was by far the best conference I have ever attended, focusing on defence issues from Nuremberg and onwards. The presentations and discussions were excellent. Here is an excerpt of my presentation. The full version is scheduled for publication.
Hybrid Courts: a marriage of inconvenience
Michael G. Karnavas
Imagine being on the football pitch. The stakes are high – it’s a championship game. You and your teammates have been preparing for this game, sharpening your skills, studying your opponent, developing your game plan, mastering the intricacies of the rules, doing everything possible to take advantage of every opportunity that may present itself and every weakness that your opponent may have. All is riding on this game, so you have thought of everything. You are ready. You are ready to control the ball, control your opponent, control the slightest openings. Ready to control it all. All except the referee. That’s the wildcard. The unknown, the unpredictable, the uncontrollable. The luck of the draw. If the referee knows the rules and applies the rules as they are intended, then you have only yourself to blame if the game is lost. But what if the referee does not follow the rules or applies them unevenly, or interprets them in a manner that is not in keeping with the spirit and tradition of the game? What if the referee decides to also play with the ball, handle it a bit, kick it around, pass it to your opponents, or, worse yet, lay in wait near your goalpost for the opportune moment to tap the ball into your net (even if it takes using his hands) and, having done so, smugly signals the goal? Continue reading “Hybrid Courts: a marriage of inconvenience”
Upcoming Seminar concerning ICC List Counsel – 16-17 July 2015
On 16-17 July 2015, Dr Fabián O. Raimondo, Assistant Professor of Public International Law, Maastricht University, is hosting a Seminar directed exclusively to ICC List Counsel. The program is topical, relevant and practical.
Moreover, the Registrar will not only present his proposal for restructuring the Registry under the ReVision project, but will also engage the participants in what promises to be a lively discussion on many of the issues related to his vision and expectations on restructuring two of the most critical sections deemed by many List Counsel as essential in their representation of their clients: the OPCD and OPCV. See my prior post on Establishment of a Victims and Defence Office at the ICC. Continue reading “Upcoming Seminar concerning ICC List Counsel – 16-17 July 2015”
Musing on the ICCBA Draft Constitution
As I noted in a prior post, I was selected to chair the Committee for drafting a Constitution for a Bar/Association at the ICC. The latest draft of the Constitution (English / French) has just been sent around to List Counsel with a commentary (English / French) to assist in understanding the efforts and aims of the Committee, and to further guide deliberations and contributions on this draft. Comments are being solicited to ensure that the Constitution is representative of List Counsel’s collective views. As I have done before, I would like to present my vision on the draft Constitution. Continue reading “Musing on the ICCBA Draft Constitution”
Sketches of a Bar for the ICC Counsel
In my last post on establishing a Bar for the ICC, I noted that a committee had been formed to draft a Constitution to be circulated for comments, and that my draft was selected as the working draft. Now I would like further elaborate upon my vision for and concerns of a Constitution for a Bar for Counsel practicing at the ICC; a Bar that should also be open for Counsel practicing before other international tribunals. Continue reading “Sketches of a Bar for the ICC Counsel”
Establishment of a Victims and Defence Office at the ICC
Expert Conference on the Establishment of an ICC Victims and Defence Office
&
Establishment of committee to draft a constitution for and ICC Bar for List Counsel
On the 23rd and 24th of March 2015, the ICC Registrar held a conference of experts to discuss the establishment of a Victims Office and a Defence Office and the potential establishment of an association or bar for List Counsel. I was privileged to have been invited. Prior to the conference, the Registrar distributed his concept for the reorganization of the current setup with that envisaged by him and the ReVision team he set up for reorganizing the entire Registry. In addition to the Concept Note, there was an agenda which reflected the areas of discussion, and a draft basic outline of the Registrar’s proposals. Continue reading “Establishment of a Victims and Defence Office at the ICC”
ICC Registrar supports establishment of an Association for List Counsel
For several years there have been talks and initiatives by members of the ICC List Counsel to establish a Bar or an Association. Indeed, in the last couple of years we have seen a growing interest, if not impatience, for a Bar or Association.
Last year I circulated a draft Constitution for an ICC Bar for List Counsel (click language choice to see draft in English or French) based in part on an earlier initiative and inspired by the ADC-ICTY model. I also circulated a modest commentary. But as in the past, the momentum and enthusiasm waned with the passage of time.
Then, out of the blue, the ICC Registrar, Herman von Hebel, sent an outline of proposals to be discussed during a meeting with List Counsel held on 16 September, wherein he expressed an interest in the establishment of an Association by, for and of List Counsel, that would be officially recognized by the ICC. Just what many of us have been advocating since as far back as 2007.
So the biggest hurdle – that of convincing the Registrar to recognize a Bar or Association for ICC List Counsel – has been removed. Time to move forward, and move swiftly. And here is why. Continue reading “ICC Registrar supports establishment of an Association for List Counsel”