Report on the Expert Conference on the proposed creation of the victims and defense offices convened by the ICC Registrar ICC, The Hague, 23-24 March, 2015
David Lévy, Co-President of the ICB, Paris, March 25th, 2015
This document is my report on the work Ken Gallant, Philippe Currat and I have undertaken in The Hague during the Expert Conference convened by the ICC Registrar on 23-24 March 2015.
1. As you remember, the ICB General Assembly adopted a resolution last January 30th giving a mandate to the Executive Committee (ExCo) to work on the creation of an independent Bar for the ICC. This resolution was specifically stating that :
1) The Bar should ensure the independence and the representation of the Legal Profession and of all Counsel (Defense and Victims Counsel) before the ICC.
2) The Bar is in charge of enforcing ethical rules applicabe to Counsel and of the discipline of Counsel.
3) Counsel practising before the ICC have to be members of the Bar.
4) The Bar is created for the ICC.
5) The draft document creating the Bar is designed to be submitted for adoption to the 14th Session of the Assembly of States Parties to the Rome Statute.
2. Shortly after this General Assembly we started discussing with a number of colleagues who had also been working on the project of creating a Bar or an Association of Counsel for the ICC. Some of you may know these colleagues : Raymond Brown, Michael Karnavas, Geoff Roberts, Jens Dieckmann.
For the last 6 weeks, we’ve been exchanging thoroughly with these colleagues on the basis of 3-4 different drafts.
3. In the meantime, the ICC Registrar, as he had annouced it in Barcelona, convened Counsel, international association of Counsel, NGOs, representatives of some of the organs of the ICC (namely OPCD, OPCV and Division of the Court Services), members of other ad hoc Tribunals (ICTY and STL) to an « Expert Conference on the proposed creation of the victims and defence Offices ». This Conference took place on 23 and 24 March, 2015, at the ICC.
4. Four goals were set for this Conference :
1) In order to show the Registrar that he could not divide us, I wanted to have as many Counsel as possible attending the Conference speak with one united voice about the need to create an independent Bar for the ICC.
2) Reach an agreement with the Colleagues we had been negociating with on a number of fundamental principles for the Bar. Trying to reach an agreement on a single draft statutes would have proven unrealistic at this stage.
3) Reach a consensus among the participants to this Conference on the fundamental principles.
4) Open the way for the creation of the Bar and set the framework for a substantial discussion on a common draft Statute.
We have achieved these four goals.
5. Ken Gallant, Philippe Currat and I have attended the Expert Conference on the creation of Defence and Victims Offices on Monday and Tuesday. Other members of the ICB were also present : Elisabetta Galeazzi for the Unione Camere Penali Italiane (UCPI), Yasushi Higashizawa for the Japanese Federation of Bar Associations (JFBA), Luc Walleyn and Julie Goffin for the Union Internationale des Avocats (UIA). All of them are members of the ICB Council.
6. In order to prepare this Conference Ken Gallant, Philippe Currat and I met on Sunday afternoon (22nd March) and then we had dinner with the following colleagues we had been exchanging with since our Barcelona General Assembly : Jens Dieckmann, Geoff Roberts, Michael Karnavas, Monica Feltz (representing Raymond Brown).
Elisabetta Galeazzi and Yasushi Higashizawa joined us.
Bill Pace (convenor of the Coalition for the ICC) passed by as well as Catherine Mabille (lead Counsel in the Lubanga case).
We had a very good and fruitful discussion in a very serious, yet open-minded way. We all agreed on the following fundamental principles :
1) The organization we set up will be a Bar.
2) The Bar will be for all counsel at the Court, Defence and Victims.
3) Membership is Open to all Counsel, co-Counsel, Legal Assistants, Case Managers, who are members of their national Bars.
4) Membership is mandatory for List Counsel.
5) It is first of all an ICC Bar, and is open to members from the UN criminal courts and tribunals.
6) It will have two sections: Defence and Victims (possibility of other sections not excluded).
7) The Bar must be represented in every Committee/Working Group dealing with amendments to legal texts, rules and regulations and making of new sets of rulesand regulations.
8) It provides services to members (e.g., support in day to day dealing with issues on the Court; legal advice if needed by counsel, etc), perhaps maintaining list of counsel; other issues as the Bar grows and moves forward.
9) The Bar will finance itself first of all with members fees/dues, but may accept outside funding (such as from the Assembly of States Parties) so long as these principles are not compromised.
We also agreed on the fact that we needed some clarification from the Registrar about the content and the consequences of his projects.
7. The 1st day of the Conference was very interesting and we have concluded it the best possible way.
7.1. About Defence issus and the project of creating a new Defence Office after merging the Office of Public Counsel for the Defence (OPCD) and Cousel SupportSection (CSS)
Although a number of participants seemed to agree on this idea and proposed concrete ideas as to the services a new Defense Office should provide to Counsel, we also heard some strong voices against the project itself and the whole process (Xavier-Jean Keïta of course, Didier Preira, former ICC deputy Registrar, and significantly David Hooper and Karim Khan).
7.2. On this 1st day we briefly touched upon the subject of the creation of an independent Bar. Some wouldn’t dare to use the word « Bar » and instead spoke of an « Association of Counsel ». At that point we could feel the beginning of a consensus on the creation of the Bar.
7.3. On Monday we also achieved to get the very important and significant support of the American Bar Association (ABA).
Ken, Philippe, Yasushi and I had a 30+ minutes meeting with Michael Greco, former ABA President and representing ABA at the Conference, and Kip Hale (International Criminal Justice Consortium) who’s working with him.
Michael Greco told us that he supports the idea of an independent Bar for the ICC and that he’ll be happy to be consulted when we have a common draft.
Finally, a brief discussion with Bill Pace showed that he seemed happy to know that we were reaching an agreement between Counsel for the creation of the Bar.
8. The 2nd day of the Conference focused to the following question : « How to ensure the prompt establishment of an independent association of Counsel and how this association can strengthen the institutional representation of the collective interests of Counsel at the Court ? »
We had robust and very rich discussions.
We managed to be united in our expression of a need of a Bar for the ICC.
We reached a broad consensus on the 9 fundamental principles (see above). However, we didn’t go too far on the issues dealing with the disciplinary power of the Bar. It is a very sensitive question and we have to consider the fact that the ICC judges will certainely not accept to let go this function vested in their hands.
We managed to have the Registrar supporting the principles and the idea of the Bar.
We set up a working committee in charge of drafting a common draft Statute on the basis of the various drafts that are on the table. This working committee is comprised of 10 persons :
- Geoff Roberts (Counsel, IBA member)
- Raymond Brown (Counsel)
- Ken Gallant (Counsel, representing ICB)
- Michael Karnavas (Counsel), convenor of the working group
- Jens Dieckmann (Counsel with experience of Defence and Victims issues)
- Emmanuel Altit (Defence Counsel)
- Luc Walleyn (Victims Counsel)
- Ghislain Mabanga (Witness Counsel)
- Xavier-Jean Keïta (OPCD)
- Paolina Massidda (OPCV)
This working committee has decided to work speedily and to be done with its mission by May. The working committee shall work as follows :
- It will circulate among its members the 3-4 drafts that are on the table.
- It will send its common draft for review and comments to ICC list Counsel and to international associations of lawyers.
- It will reconvene in order to take in account the comments.
- It will draft a final document that will be sent to the Registrar and circulated to the legal profession.
9. In conclusion, I strongly believe that, with respect to the mandate given by the ICB General Assembly in Barcelona last January 30, we did a very good job during the conference and made important steps forward in the view of creating – soon – an independent Bar for the ICC.
We have to keep on working on the creation of this Bar and supporting Ken Gallant in his task of negociating on our behalf and for the benefit of Counsel with the members of the working committee.
David Lévy Co-President