{"id":4866,"date":"2023-10-03T05:24:36","date_gmt":"2023-10-03T03:24:36","guid":{"rendered":"https:\/\/michaelgkarnavas.net\/blog\/?p=4866"},"modified":"2023-10-03T05:25:33","modified_gmt":"2023-10-03T03:25:33","slug":"icc-training-clarion-call","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2023\/10\/03\/icc-training-clarion-call\/","title":{"rendered":"A CLARION CALL TO THE ICC COUNSEL SUPPORT SECTION: training for counsel and assistants should be practical and skill-developing"},"content":{"rendered":"

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You have to know the why in order to know the when,<\/p>
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But if you don\u2019t know the how<\/p>
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Knowing the why and when won\u2019t help you.<\/p>
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Training Moto, Michael G. Karnavas<\/span><\/em><\/p><\/blockquote><\/p>\n

Reality Check <\/em><\/strong><\/p>\n

\"\"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 \u201cparticipate in training initiatives required to maintain such competence.\u201d This presumption is fanciful. Not all list counsel are sufficiently competent \u2013 let alone to a high level \u2013 simply because they have managed to get themselves on the list. Counsel cannot \u201cmaintain a high level of competence<\/em>\u201d 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.<\/p>\n

Realistically, the requirements<\/a> to get on the list are just formal, having little bearing on counsel\u2019s level of competence. Lead counsel must have a minimum of ten years of relevant experience (eight for associate counsel) \u201cas a judge, prosecutor, advocate or in other similar capacity\u201d; professors of law meet this requirement \u201conly where they have intervened in criminal proceedings for a minimum of ten years\u201d in one of those listed capacities. These seemingly level-high criteria do not take into consideration whether counsel has the practical skills (or knowledge of the applicable law) to competently represent an accused at any stages of the proceedings with the due diligence required.\u00a0 Quantitative, not qualitative, doesn’t cut it.<\/p>\n

At the ICC, a global institution founded and funded by the Assembly of States Parties, competence should be the paramount objective in qualifying to be on the list to represent individual suspects, accused, and victims \u2013 all of whom have a right to have their interests be diligently and zealously represented during the ICC proceedings. Since that is not possible given what is truly required to be competent (see my previous post<\/a>), the responsibility must to a large degree rest with the ICC to provide meaningful training. List counsel cannot be faulted if the ICC has set the bar for getting on the list relatively low. Most list counsel can achieve \u201ca high level of competence\u201d provided they are afforded the right training, and, of course, are motivated to invest the requisite time and effort to up their game.<\/p>\n

During my presentation on the ICC Code during the ICC Hybrid Training for Counsel \u2013 summarized in my last post, The Diligence that is Due<\/em><\/a> \u2013 I discussed the requisite skills and knowledge and appreciation essential to zealously represent a client at the ICC through due diligence. Bluntly summarized, because the ICC procedure is a hybrid party-driven system where each party has its own case, where each party is expected to investigate, and where each party has a theory of the case, counsel practicing before the ICC must have the requisite knowledge and skills in strategic thinking, in investigating, in questioning witnesses, in evidentiary principles to make and meet objections, in drafting written submissions, and in making a record. In the words of Monroe Freedman<\/a>, \u201cEffective trial advocacy requires that the attorney\u2019s <\/em>every word, action, and attitude be consistent with the conclusion that his client is innocent.\u201d<\/p>\n

Though my presentation was on ethics, I attempted to show how trial advocacy skills used in adversarial proceedings are indispensable to counsel who wish to comply with their professional and ethical obligations. Not all participants were convinced \u2013 primarily a small number of counsel from civil law traditions with no experience or appreciation of the role of the defence in adversarial proceedings. Most, however, expressed an interest in having interactive trainings where they could become acquainted with and\/or sharpen practical skills. Almost universally, they all expressed to me the uselessness of lectures. A one-hour presentation on cross\u2011examination has little utility for someone who has never done it.<\/p>\n

CSS provides annual training. Some of it has been useful; some not so much. Mostly, however, the trainings by CSS have been orientational, theoretical, and general, more akin to providing annual survey courses with little to no actual benefit to counsel who might otherwise be competent in their national jurisdictions, but are ill(semi)-equipped for the ICC\u2019s hybrid procedure. The brutal truth is that past CSS trainings have been nothing more than introductions to the ICC<\/em> \u2013 an opportunity to listen to lectures from and mingle with those practicing before the ICC, to view the ICC courtrooms and premises, and to take pictures \u2013 as opposed to a training on the tangible skills essential for providing high standards of representation as required under the Rome Statute and the Code, and as rightly expected by CSS, the Chambers, and States Parties.<\/p>\n

ICC jurisprudence can be picked up easily. Anyone on the list of counsel should have a rudimentary knowledge of the Rome Statute and the Rules of Procedure and Evidence. Also, an annual update on the past year\u2019s jurisprudence can easily be summarized in a short presentation. But nothing on skills training. The occasional lecture describing what is a theory of the case or how to cross-examine can hardly be considered training. Certainly, it does not meet the requirements of Article 7(2) if the purpose of CSS\u2019s \u201ctraining initiatives\u201d is to assist counsel in \u201cmaintain[ing] a high level of competence.\u201d For that, intensive interactive training is required \u2013 most especially for those who have not had prior trial experience in any courts, and for those coming from non-adversarial \/ judge-managed proceedings, i.e<\/em>., the Romano-Germanic systems.<\/p>\n

Effective counsel are not only knowledgeable about the applicable law and procedure, but also have the skills<\/em> to provide effective representation throughout all of the proceedings. While law schools and specialized LLM programs provide graduates foundational knowledge in understanding how the law operates, virtually none teach the skills needed to provide effective representation before international (and national) tribunals. At best, law graduates may have participated in a short mock trial or appeal exercise \u2013 hardly sufficient for undertaking proceedings in court, especially an international court which prides itself as being at the vanguard of international criminal justice. Simply, unless law graduates have specialized in criminal law and have practiced extensively in their national jurisdiction \u2013 and even that may not be sufficient for obtaining experience and expertise in adversarial skills \u2013 it is unlikely that they will have the acquired skills which are obviously necessary in leading, or assisting in leading, or otherwise assisting in robustly and ethically representing suspects, accused, and victims at the ICC.<\/p>\n

To reiterate from my presentation, the skills I am referring to are skills such as: strategic thinking, organizing and managing a team, brainstorming and developing the theory of the case, legal writing, oral advocacy, cross\u2011examination, conducting investigations, etc. \u2013 skills that are learned and developed through experience. Lead counsel are expected to have advocacy skills required for the ICC\u2019s hybrid adversarial proceedings. If they don\u2019t have them, they should make efforts to gain these skills prior to an appointment, even though they can and should get experienced counsel with such skills to assist them in ICC proceedings in the event they are appointed. There is no getting around it. Since lead counsel are responsible for the conduct of all members of the defence team (see Articles 7(4) and 32 of the Code), if their understanding of adversarial proceedings and the ethical and professional responsibilities is limited or non-existent, they risk providing ineffective assistance to the client as well as finding themselves in avoidable ethical dilemmas and transgressions.<\/p>\n

At the risk of sounding disparagingly unsentimental, the ICC, like any of the other international(ized) criminal tribunals and courts, is not a finishing school for inexperienced lawyers to get in-court experience in representing individuals in criminal proceedings \u2013 individuals whose liberty is on the line. Harsh as this may sound, I am not saying anything that is not discussed in hushed voices and behind backs in the halls of the ICC. Nor am I saying anything that colleagues have not voiced to me in asking for practical, interactive training. From what has been told to me and drawing from my observations of recent (and ongoing) ICC proceedings, some defence teams, despite their best intentions and efforts, are not well versed in advocacy skills and experience \u2013 at least not to the degree they would expect were any of them, especially lead counsel, in the dock charged with crimes similar to those of their clients and facing long-term imprisonment.<\/p>\n

The common refrain from some on the defence (especially those who exemplify the shortcomings mentioned), is that this is a matter of remuneration \u2013 a seemingly logical fallacy, since issues of ineffective assistance of counsel are directly related to a lack of knowledge, skills, and experience. While it is beyond cavil that the ICC legal aid scheme is absurdly low for highly qualified counsel and assistants, this issue is irrelevant once counsel undertakes an assignment (and thus agrees to the fees) and is ethically bound to do his or her utmost in meeting the professional responsibilities to the client.<\/p>\n

Unless there are some fundamental changes (and here I would also include who can be lead counsel irrespective of having gotten over the low bar to be on the list of counsel under the existing criteria), the current state of affairs will persist. The question that begs answering is whether the ICC Registry \/ CSS should care?<\/p>\n

The Chambers seem reluctant to interfere with the accused\u2019s choice of counsel or lead counsel\u2019s approach to forming a team and defending the client. In purely civil law proceedings, this may not matter since the judges are responsible for getting as close to the objective truth as possible to an intimate conviction. Not so in adversarial or hybrid proceedings. Since this is a party-driven system, it is expected that the parties prepare their cases as they see fit. Ineffective legal representation can be chalked up to trial strategy, however obvious it may appear that it is incompetence or indifference that is the cause \u2013 as opposed to a calculated strategy based on careful analysis of the case file and thoughtful strategy and tactics that support the carefully and diligently selected theory of the case.<\/p>\n

Irrespective of the Chambers\u2019 passivity \u2013 theoretically they can cure the ineffectiveness of a defence counsel by questing witnesses, calling witnesses, and introducing evidence under Articles 64(6)(b) and (d) and 69(3) of the Rome Statute<\/a> and Rule 140(2)(c) of the Rules of Procedure and Evidence<\/a>, though my experience tells me otherwise \u2013 does the onus not fall on CSS to ensure that assigned ICC-financed counsel are providing adequately professional representation? And since counsel come from around the globe, with most having little to no international criminal law experience nor the requisite skillset, is it not up to CSS to provide the necessary training? Assuredly the answer to these questions is yes, unless the requirements to qualify for the list are changed to include sufficient proficiency in adversarial skills and a fair appreciation of the ICC substantive and procedural laws.<\/p>\n

Suggestions for ICC Annual Defence Trainings \u00a0<\/em><\/strong><\/p>\n

\"\"To remedy these shortcomings, I wrote to CSS on 30 March 2023, suggesting that the annual CSS training be recalibrated to a three\u2011day event at a minimum, divided into three sections: skills training (two days), ethics (half day), and an update of the court\u2019s major jurisprudence for the year (half day). Specifically, what follows is the essence of my suggestions.<\/p>\n

The skills training should include four components:<\/p>\n