|Posted by Moderator on May 30, 2020 at 3:45 PM|
Speaking Points for Video Address to NCBL CLE Program on Representing Defendants before International Tribunals
• Hello and greetings from The Hague, in the Netherlands. I am Chief Charles Achaleke Taku, President of the International Criminal Court Bar Association. It is my great pleasure to be able to address you today as part of this important program on the topic of Representing Defandants before International Criminal Tribunals.
• I will briefly provide an introduction on the ICC Bar Association – its mandate and activities – and then address the following topics: 1) the qualifications for admission to the List of Counsel and the List of Assistants to Counsel at the ICC; 2) Jurisdictional issues under the Rome Statue of the ICC; and 3) Issues relevant to the representation of victims before the ICC.
• The International Criminal Court began operating in 2003, following the adoption of the Rome Statute on 17 July 1998. There are currently 123 States Parties to the Rome Statute, and the Court has ongoing investigations in 11 Situations, as well as several preliminary examinations under consideration.
• The ICC Bar Association, on the other hand was not established until July of 2016, more than thirteen years after the Court opened its doors, following a long-standing goal to establish a much-needed representative association of legal practitioners focused on matters relevant to the work of List Counsel and legal Support Staff before the ICC.
• The ICCBA has been recognised by the Assembly of States Parties – the Court’s governing body – as the main representative of counsel before the Court. The Bar Association is fully independent, and its operations are funded by the dues of its members.
• It serves as a collective voice for Counsel and Support Staff who represent victims, defendants and other actors – such as witnesses – before the ICC, and provides a range of support and services to its membership, as well as serving as a forum for discussion on all matters pertaining to the ICC. To give just a few specific examples of the ICCBA’s activities:
o We have provided a range of trainings on specialised topics related to the practice of international criminal law both in The Hague and internationally.
o We have advocated on behalf of our membership and provided in-depth reports on the reform of the ICC’s under-funded and bureaucratic legal aid system as well as on the complicated issue of the international taxation of counsel and support staff.
o We have issued a Declaration on the Obligations of legal practitioners under the ICC Code of Conduct as relates to harassment and hostile working environments and are currently putting in-place a harassment hotline and complaint mechanism to serve our membership.
o The Bar Association has also formally called upon the Assembly of States Parties to initiate a thorough, effective and independent investigation into serious allegations of improper and potentially illegal activity by former ICC Prosecutor Luis Moreno-Ocampo.
• I welcome and encourage you to visit our website for more information on the ICC Bar Association as well as a wealth of resources on the ICC – www.iccba-abcpi.org - or simply search for us on Google. I also ask you to consider joining the ICCBA as Full, Associate or Affiliate member. The ICCBA is a global-minded organisation, and we would very much welcome an expansion in our North-American ranks.
2) Qualifications for Lists of Counsel and Assistants to Counsel
• Turning to the ICC itself, what are the qualifications for an attorney who wishes to represent a client before the ICC, or to be a member of an ICC legal team?
• Detailed information and applications for seeking admission to the ICC Lists are available on the website of the ICC on the webpages for Victims and for the Defence. Relevant links are also available on the ICC Bar Association’s website.
• Counsel: In order to be admitted to the ICC List of Counsel as a Lead Counsel one must have 10 years of relevant experience. For a co-counsel the requirement is 8 years. The core requirements for admission to the List of Counsel are as follows:
o 1) Established competence in international law or criminal law and procedure;
o 2) The necessary relevant experience – 10 years or 8 years – in criminal proceedings, whether as a judge, prosecutor, advocate, or in another similar capacity.
o 3) One must also be fluent in English or French – the working languages of the Court – and have no convictions for serious criminal or disciplinary offences considered to be incompatible with the nature of the office of counsel before the ICC.
• Legal Assistants: In the event you do not have sufficient experience to be admitted to the ICC List of Counsel, you may be able to apply to the ICC List of Assistants to Counsel, which is primarily aimed at two categories of individuals:
o 1) Those who may serve in the capacity of a ‘junior counsel’ in the event they have at least 5 years of relevant experience in criminal proceedings.
o 2) Those who have relevant expertise in international law or criminal law – such as professors and other academic experts.
• Case Managers: Lastly, for those who are earlier in their careers, you may apply to be a Case Manager on an ICC Victims or Defence Team. There is no formal application or qualifications for the position of Case Manager, though most Case Managers at the ICC are law school graduates. Case Managers serve a vital role in organising the usually very extensive case files at the ICC, assist counsel in the presentation of the case in the ICC’s electronic courtroom, handle logistical and administrative matters for the team, and often times also assist on legal issues including witness interviews, legal research and the drafting of filings.
3) Jurisdictional & Admissibility Issues under the Rome Statute
• The ICC is a treaty based organisation with 123 States Parties to date that have acceded to or ratified the Rome Statute, the international agreement that established the ICC. Because the ICC is a treaty based organisation, and pursuant to Article 12 of the Rome Statute, the ICC’s primary bases of jurisdiction arise from States that are members of the Court – namely territorial jurisdiction where a crime within the jurisdiction of the Court has allegedly been committed on the territory of a state party – or personal jurisdiction where the accused person is a national of a State Party.
o It should be noted that pursuant to a recent decision of Pre-Trial Chamber I of the Court concerning the situation of the Rohingya people of Myanmar, the ICC may exercise jurisdiction over conduct that occurred in a non-state party where that conduct is part of an alleged crime that took part in a State Party. The Chamber was specifically considering the alleged deportation of the Rohingya people from Myanmar – a non-State party – to Bangladesh – a State Party.
• The ICC may also exercise jurisdiction over alleged Rome Statute crimes where the UN Security Council has referred a Situation of apparent ICC crimes to the ICC Prosecutor, even where the State where the crimes were allegedly committed is not a State Party. This has occurred twice with UN Security Council resolutions referring the Situation in Darfur Sudan (2005) and in Libya (2011) to the ICC.
• Lastly, the ICC may exercise territorial and personal jurisdiction with respect to a State not party to the Rome Statute where the State has lodged a declaration with the Court accepting the jurisdiction of the Court. This was the case with the Situation in the Ivory Coast.
• Temporal jurisdiction: Pursuant to Article 11 of the Rome Statute, the Court only has jurisdiction with respect to Rome Statute crimes that were committed after entry into force of the Rome Statute on 1 July 2002. However, if a State becomes party to the Rome Statute at some point after its entry into force, the Court only has jurisdiction with respect to crimes committed after the State became a Party, unless the State files the previously mentioned Declaration granting the ICC jurisdiction.
• Exercise of Jurisdiction:
o Apart from the previously mentioned UN Security Council referral mechanism, the Court may exercise jurisdiction over alleged Rome Statute crimes where a State Party refers a Situation in another State Party – or itself – to the ICC Prosecutor, or, when no such referral is forthcoming, when the Prosecutor user her propio motu authority to seek the Pre-Trial Chamber’s authorisation to open an investigation in a State Party.
o State Party ‘Self-Referral’: Uganda, CAR (twice); DRC; Mali
o Propio Motu: Ivory Coast; Kenya, Georgia; Burundi
o Fundamental operating principle – complementarity. The Court shall only act where a State with jurisdiction over the alleged crimes in question is unwilling or unable to genuinely investigate or prosecute.
Case of Abdallah Al-Senussi (Gaddafi’s former Intelligence chief) – Libya Situation – only case to date in which the Court has ruled, upheld on Appeal, that a case was inadmissible based on genuine national criminal proceedings that covered the ‘same case’ as the factual allegations in the ICC proceedings.
4) Representation of Victims at the ICC
• The Rome Statute of the ICC permits persons as well as qualified organisations that have suffered harm arising from the allegations in the case to participate as victims in proceedings before the ICC. This is different than the situation in most common law systems, or in the ad hoc Tribunals – the Yugoslavia Tribunal and the Rwanda Tribunal – as well as the Special Court for Sierra Leone, where victims could only participate in proceedings as witnesses.
• At the ICC persons who are granted victims status are represented by counsel referred to as “Legal Representatives of Victims” under the Rome Statute System. The same qualifications as for Defence Counsel, as previously discussed, apply to LRVs
• The practice and case law of the Court governing the representation of victims and their participation in proceedings is very much still in development, and different Chambers of the Court have taken different approaches on this important issue.
• From the perspective of a counsel who may wish to represent victims before the ICC, there are several key points to keep in mind regarding appointment of counsel:
o 1) While, under Rule 90(1) victims have the right to choose his or her own LRV, this is qualified by Rule 90(2), which provides that if there is more than one victim, which will presumably always be the case in ICC proceedings, then the victims must either choose a joint representative themselves, or, if the victims are unable to reach a decision, a Common LRV will be appointed by the Court to represent the victims.
o 2) Connected to the issue of the Common LRV is the fact that the Court has not established a right to legal aid for victims who choose their own LRV or Common LRV, and indeed in once case – Prosecutor v. Ongwen, the Chamber has found that there is no such right to legal aid, though the Registry of the Court may, at its discretion grant such aid. This is important as the vast majority of victims will not be able to fund the costs of their representation in view of the lengthy and high-cost nature of ICC proceedings.
o 3) Further, Chambers of the Court in recent years have been inclined to appoint the Court-funded but independent Office of Public Counsel for Victims (OPCV) as the Common LRV in cases on grounds of efficiency and cost-effectiveness. The OPCV also has a mandate to assist independent LRVs in carrying out their duties. The issue of the imposition of the OPCV as the Common LRV is one that has caused great controversy at the Court, and is something that the ICC Bar Association is discussing with Court officials.
• If you are appointed as an LRV, some critical issues to consider in carrying out your mandate include:
o Developing your case strategy:
Consider the views and concerns of your clients – different clients within your larger pool of clients may want different things – simply to have the status of victim and participant; others may wish to give their ‘views and concerns’ in Court as permitted under the Rome Statute; others, though likely a smaller number, may primarily be interested in reparations in the event of a conviction at the end of the case.
Reparations: Collect the relevant information so that you can, for each client, demonstrate and substantiate the harm he or she suffered.
• Consider the approach of other parties – your clients may not agree with the manner in which the Prosecution has charged the case. This was the case in the Lubanga trial, where the Prosecution did not seek to formally include charges related to sexual violence, only allegations regarding the recruitment and use of child soldiers.
• Be able to fill gaps in or correct the OTP narrative in support of your client’s interests and instructions during questioning of witnesses and calling your own witnesses.
Sentencing of convicted person: be able to identify aggravating factors.
o Communications strategy
Be a bridge in a two-way communication:- victims to Court, and Court to victims. This means ensuring your clients interests, views and concerns are represented to the ICC both insider and outside court proceedings, and that you properly communicate information on the proceedings to your clients.
Communicate according to your clients’ needs and wishes to the extent possible. This will be different for different cases and clients within the same case :- how often to meet in person and how big will the meetings be; how much they want to be updated on the case; which member of the team will meet them (counsel; well-trained locally based assistants, etc.).
o Media strategy:
Think about how you want to communicate with the local and international media. ICC cases are high profile, and you want to ensure your clients’ narratives are properly represented in the media.
o Building your team:
Have at least on person – whether a counsel, legal assistant or even case manager, who has previous ICC experience. The Court is a world unto itself – both on law, procedure and administratively.
Take into account the languages of your clients and in the region.
Take into account issues of ethnicity and gender, the latter may be of particular importance in cases involving sexual violence allegations.
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