The written decision under Article 74 of the Statute shall be delivered within 10 months from the date the closing statements end.
ICC Chambers Practice Manual, Seventh Edition (2023), para. 88.
On 6 December 2023, Trial Chamber X of the International Criminal Court (ICC) issued an order scheduling the pronouncement of its trial judgment in the Al Hassan case for 14:00 on Thursday, 18 January 2024 — over a month ago. Closing arguments had ended on 25 May 2023. With plenty of recesses during the trial proceedings, 10 months to render a decision (as required by the Chambers Practice Manual) is more than reasonable – assuming the Chamber is organized and efficient. Not being rocket science, and with plenty of best practices developed over the decades since the first ad hoc and successive international(ized) criminal tribunals and courts (ICTs) were established, drafting a judgment within this period should be no challenge. Continue reading “THE DELAY IN PRONOUNCING THE AL-HASSAN TRIAL JUDGMENT – Inquiring minds want to know more!!!”
There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.
US Supreme Court Justice Hugo Black
A fair trial is one in which the rules of evidence are honored, the accused has competent counsel, and the judge enforces the proper courtroom procedures – a trial in which every assumption can be challenged.
There is much to be said about money buying a good defence. By this I mean a suspect or accused being able to have highly qualified and experienced counsel, to have a defence team that is both ideally suited and diligent, and to have sufficient resources to hire discrete investigators and experts essential in challenging every assumption.
Money does not necessarily guarantee quality, no more than being on the List of Counsel guarantees that counsel has the relevant experience and competence to lead a case before the ICC. But money does generally help when not dependent on legal aid for the quality of lead counsel and the resources in mounting a defence. Don’t get me wrong, there are plenty of top shelf advocates on the ICC List of Counsel. Truth be told, however, the vast majority of suspects and accused are not sophisticated enough to distinguish the excellent from the good, the mediocre, or the inadequate. Generally, they will rely on others (rumors abound on who some of them are and of their methods) to help them out in picking a name off the list of 600-700 names. But this is an issue for another time. Here I want to focus on the draft Legal Aid Policy that the Assembly of State Parties will consider, and most likely adopt – though I would not be surprised if it balks at the modest remuneration increases being offered. Continue reading “REASONABLE DOUBT FOR A REASONABLE PRICE: Just how reasonable is the ICC’s draft Legal Aid Policy? “
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.
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”
There is a great evil that has taken root in my world and has begun spreading its chaos throughout the many verses. I have spent years searching for the one who might be able to match this great evil with an even greater good and bring back balance. All these years of searching have brought me here, to this universe. To you.
You saw her potential, so you pushed her beyond her limit. Though the overloaded mind usually dies, instead her mind was fractured. Now her mind experiences every world, every possibility, at the same exact time, commanding the infinite knowledge and power of the multiverse. Now she’s seen too much, lost any sense of morality, any belief in objective truth.
I’ve seen thousands of Evelyns, but never an Evelyn like you. You have so many goals you never finished, dreams you never followed. You’re living your worst you.
Bold or brash, expansive or unfeasible, imaginative or chimerical.
In his two-page preface to the 39-page Draft Policy on Complementarity and Cooperation, International Criminal Court (ICC) Prosecutor Karim A. A. Khan KC explains his “novel and imaginative ways to partner with national authorities, civil society and all actors to bring new life” in realizing the Rome Statute’s goals. Having made this promise in his swearing in speech in June 2021, Prosecutor Khan sets out to make good on his word. In response to a claimed new reality and changed landscape where domestic authorities are asserting themselves in prosecuting core international crimes in domestic courts, he purports to offer a renewed approach where the:
efflorescence of joint efforts of domestic authorities to exchange information and complement evidence collection activities … can be achieved through a proactive and dynamic approach by all actors involved, with the [Office of the Prosecution (OTP)] focused simultaneously on delivering on its core investigative mandate while significantly increasing its ability to interface with, and support, efforts of other criminal jurisdictions and accountability actors.
49. In compliance with the duty to establish the truth under article 54(1)(a) of the Statute, the Office shall investigate incriminating and exonerating circumstances equally in all steps involved in the planning and conduct of investigative and prosecutorial activities. In particular, Members of the Office shall:
(a) conduct investigations with the goal of establishing the truth, and in the interests of justice;
(b) consider all relevant circumstances when assessing evidence, irrespective of whether they are to the advantage or the disadvantage of the prosecution;
(c) ensure that all necessary and reasonable enquiries are made and the results disclosed in accordance with the requirements of a fair trial, whether they point to the guilt or the innocence of the suspect.
50. Staff members shall report to the Prosecutor concerns which, if substantiated, would tend to render a previous conviction made by the Court unsafe, bring the administration of justice into disrepute or constitute a miscarriage of justice.
It should be an article of faith that before the International Criminal Court’s Office of the Prosecutor (ICC OTP) seeks an arrest warrant on a person, it has reliable, authentic, and relevant evidence to achieve a conviction. Put differently, the prosecution must not only have evidence to overcome the low hurdle of sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged for confirmation, but evidence that would: (a) overcome any challenges raised in a motion for a directed verdict (judgment of acquittal) at the end of the prosecution’s case-in-chief; and (b) secure a conviction at the end of trial, having met its burden of proof beyond a reasonable doubt.
The Chamber notes that Palestine acceded to the Statute in accordance with the procedure defined in article 125(3) of the Statute. On 2 January 2015, Palestine submitted its instrument of accession to the Statute, and became a State Party to the ICC on 1 April 2015, following the entry into force of the Statute in its territory.1
Situation in the State of Palestine, ICC-01/18-143 05-02-2021, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, 5 February 2021.[↩]
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
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”
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”
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 14th 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?”
With an opening gambit that potential Russian accused charged with atrocity crimes witnessed daily on the news and social media cannot get a fair trial because they’ve been already tried, judged, and convicted in the court of public opinion (as if this is not the norm for all suspects and accused before international and even national criminal tribunals), I was asked by a colleague my views. Read on.