Position of the International Criminal Bar in response to the "ReVision" project
The International Criminal Bar (ICB) expresses its deep interest in the "ReVision" project of reorganization of the Registry of the International Criminal Court (ICC) and particularly its reflection on the organization of the Defence before this Court as well as on the relationships between the ICC Registry and Defence lawyers. The "ReVision" project and the document "Basic Outline" address ambitious issues dealing with the Defence that are of the utmost importance for the legitimacy of the International Criminal Court, its operation and the place and the role of the Defence.
The International Criminal Bar welcomes the efforts of the International Criminal Court, in an open way and which always have to be conducted in consultation with international associations of lawyers, to reflect on a substantive and expected evolution of the status of the Defence within the functioning of the Court.
1) The Defence was not valued by the Rome Statute as the 4th and indispensable pillar of the International Criminal Court
The Rome Statute sets out the rights of the persons prosecuted and those of the accused and of the victims. Yet it is silent as to the organization of their legal representation, including at the institutional level. In other words, the International Criminal Court is based on the traditional organs and functions of any judicial system (prosecution, judges and registry), but ignores the Defence. The Defence was not valued by the Rome Statute as the 4th and indispensable pillar of the International Criminal Court.
2) Two initiatives have quickly emerged after the signing of the Rome Statute in order to overcome this obvious lack.
First, the legal profession internationally sought to organize its independent representation. Thus the International Criminal Bar, representing all legal traditions and judicial systems, was established in June 2002 with a particular aim to assist lawyers and counsel representing victims and the accused before the ICC and to facilitate effective communication between organs of the Court and Counsel and Defence Counsel.
On the other hand, the Court has set up its own independent Offices in charge of organizing legal representation for defendants and victims. Thus the Office of Public Counsel for the Defence (OPCD) was established to strengthen equality of arms and to allow a fair trial under the Rome Statute.
Since its creation in 2002 the International Criminal Bar has always supported the International Criminal Court as well as the work of the ad hoc International criminal Tribunals since they strive for peace and conflict resolution through law and repair for victims.
The International Criminal Bar has pursued a simple and ambitious goal: to place lawyers and legal representatives of victims at the heart of the judicial process of the International Criminal Court in compliance with legal and jurisdictional universally recognized standards such as fair trial, equality of arms and respect for the rights of the Defence. This implies in particular a reflection on the funding and resources required for the Defence and the legal representation of victims. The International Criminal Bar has consistently interacted with the ICC on these issues.
If the Defence, as an indisputable and independent pillar of the ICC and of any national legal system, is not recognized institutionally and protected in the Rome Statute, the organization of investigations and prosecutions and Court proceedings conducted by the ICC, in short the functioning of the ICC, must not ignore the Defence and legal representation of victims or neglect their most basic rights under the basic principles of due process. There is no justice and no legitimate and accepted judicial system without a Defence having rights equivalent to those of the Prosecution.
3) The proposals in the document "Basic Outline".
The document entitled "Basic Outline" indicates immediately that « the aim is to optimise the Registry structure and to improve and strengthen the Defence function » (Registry ReVision Project. Basic Outline, p. 1). It adds that « the Defence needs to be more involved in the development of Registry policies and practices that impact on the counsel, defence team members and the accused » (Registry ReVision Project. Basic Outline, p. 1).
This document proposes to create a new " Defence Office " merging the functions of the OPCD (Office of Public Counsel for the Defence) and of the CSS (Counsel Support Section). In other words, the OPCD and CSS will disappear as a consequence of this merger.
This new Defence Office « would be responsible for exercising the Registrar’s duty to promote the rights of the defence and will have the capacity to carry out the full range of defence-related functions, except for the actual representation of suspects and accused, which will continue being carried out by external independent counsel. The new Defence Office would be performing the following functions:
- maintain the list of counsel and rosters of persons assisting counsel;
- appoint counsel and persons assisting counsel;
- administer legal aid;
- maintain effective relations with counsel and counsel’s representative body;
- provide information and legal advice to counsel ;
- provide practical support and assistance to counsel, including in the use of information technology such as eCourt, travel to the Court, planning of (field) missions and investigations, obtaining State cooperation in relation to defence matters, etc; and
- act as a defence focal point for other (Registry) services required. » (Registry ReVision Project. Basic Outline, p. 3)
The document prepared by the ICC Registry supports the creation of an association of defence counsel. It recognizes that the collective interests of counsel will be better served and represented by an independent body: « An independent self-governing association of counsel, representing all counsel practicing before the Court and founded on democratic principles, would be ideally placed to take up that role. The Registrar recognises that such an association of counsel must be in a position to effectively exercise its role, and as such must be recognised by the Court, must receive relevant information and be actively involved in relevant areas of the administration of justice », Registry ReVision Project. Basic Outline, p. 3.
4) The Registry’s "ReVision" project and the "Basic Outline" do not meet the legitimate aspirations of an independent representation of defence counsel
The International Criminal Bar has analysed the Registry’s "ReVision" project and the document entitled "Basic Outline" as well as the consequences that the proposals they contain may have on the work of the Defence. The ICB also considered the points discussed during the meeting organized by the International Criminal Court on September 16, 2014, in The Hague.
The International Criminal Bar conducted its analysis by constantly bearing in mind the fundamental principle to which every lawyer and every counsel is attached, regardless of the legal and judicial system in which it practices: its independence and the one of the representative bodies of the legal profession. Independence of Counsel makes sense in compliance with legal and jurisdictional universally recognized standards such as fair trial, equality of arms and respect for the rights of the defence. Finally, the Defence should have recognition and institutional position equal to that of the Office of the Prosecutor (OTP).
The following part intends to discuss specifically two points: first, the creation of a single Defence organ or body within the Registry of the International Criminal Court resulting from the merger of the CSS and the OPCD (4.1); secondly, the creation of an independent body as an association of defense counsel representing them (4.2).
4.1. The creation of a Defence Office within the Registry of the International Criminal Court resulting from the merger of the OPCD and CSS
4.1.1. The OPCD was created in 2006. This body is responsible for providing legal assistance to defence teams in their legal work on substantive and procedural matters in which they appear before the ICC. As part of this mission, the OPCD is independent. However, aspects of its administration fall within the ambit of the Registry.
The CSS falls within the Registry and assists the defence teams solely on administrative issues, without ever being able to intervene on legal and procedural aspects of cases handled by defence counsel.
4.1.2. The creation of a "Defence Office" as a unique body in charge of defence issues conflicts again and again with the fundamental question of the independence of counsel which each international criminal court had to face without always finding any satisfactory answer.
One should cease to persist in the denial of the independence of defence counsel by creating a body, the "Defence Office", led by the Registry, that is to say by an integrated administrative body to Court. Its position will never allow the "Defence Office" to be and to appear as an independent body.
The paradox is that the ICC can not refer in its case law to universally recognized standards of justice and at the same time deny the existence of such standards in legal and judicial systems of each State as regards the independent organization of the legal profession and the representation of Defence counsel.
The International Criminal Bar is bound to state, once again, that an integrated administrative body to a Court such as the International Criminal Court can not have knowledge of the elements relating to "planning of (field) missions and investigations" of defence teams. This involves obviously the protection of confidentiality / professional secrecy and the respect for the rights of defence.
The function of the Registry through the "Defence Office" is not to "provide information and legal advice to counsel". This raises, for example, a simple and obvious question: what will be the responsibility of the Registry and of the "Defence Office" in case of legal error and misinterpretation of the texts or, more simply, if erroneous legal advice is given?
In addition, it should not be forgotten that the Office of the Prosecutor is independent and under the authority of one person: the Prosecutor. If we want the fundamental principles recalled above to be implemented, why create within the ICC a structure to assist Defence counsel and put it under the control of the Registry? Why not immediately recognize its full independence according to the status the Defence enjoys in any State?
It is a laudable goal to want to make the ICC most effective and the ICC Registry most efficient in the performance of its tasks. Yet these goals appear to be in contradiction with the proposed reforms deeply affecting the Defence. Indeed, one can not want an effective and independent defence by removing existing structures in order to replace them with a single Defence Office embedded structurally, functionally and institutionally within the ICC, that is to say, actually in the Registry of this Court.
4.1.3. Should the ICC, contrary to the universally recognized standards of the organization of the legal profession and against the advice of international associations of lawyers as well as Bar associations , consider the creation of a Defence Office within its Registry, the Court could usefully take the model of the Defence Office of the Special Tribunal for Lebanon . It is an independent body, which is intended to be the counterpart of the Office of the Prosecutor and to provide the defence teams with legal and technical assistance in order to enable them to establish an effective balance with the Prosecution, and to guarantee equality of arms. Its function is to protect the interests of the Defence from an objective point of view.
However, and according to its original position, the International Criminal Bar prefers primarily to retain the proposed establishment of an independent association of defence counsel.
4.2. On the willingness of the project "ReVision" to consider the establishment of an independent body as an association of defence counsel and representing counsel.
4.2.1. The International Criminal Bar has consistently called for the creation of an independent association of Defence counsel that meets national and international standards universally recognized and protected in all States abiding by the Rule of Law. It is essential that the proposal contained in the draft "ReVision" and the document "Basic Outline" comes to reality.
This association of Defence counsel should be constituted freely and independently. It must be officially recognized by the International Criminal Court and function independently by organs it has elected itself.
4.2.2. The defense of the interests of Defence counsel, operated by an outside institution to the Court and independent yet bearing in mind the stakes in its operation, is consistent with the universally recognized model of Bar Associations and Law Societies and the role and status of counsel and lawyers in a democratic society and a fair and balanced judicial system.
In its decision Mor v. France of 15 December 2011 (Appl. nr. 28198/09) the European Court of Human Rights upheld that « the specific status of lawyers make them occupy a central position in the administration of justice; their capacity as intermediaries between the public and the courts allows to qualify them as auxiliaries of justice (officers of the court), and it is also for this reason that they play a key role in ensuring public confidence in the action of the Courts, whose mission is fundamental in a democracy and the Rule of Law ». Because « to believe in the administration of justice, the public must also have confidence in the ability of lawyers to effectively represent the litigant. »
This approach can be complemented by the reference to PUKE judgment of the Court of Justice of the European Union on 6 September 2012 which reminded that « the lawyer’s role as collaborating in the administration of justice and as being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs » (C-422/11 P et C-423/11 P).
To exercise its social and technical role, the lawyer must maintain its independence and should never act under duress or complacency. Independence is not a reward; it is a responsibility (i.e. duty).
4.2.3. From an institutional and organizational point of view, the legal profession has been able to develop its ethical rules by imposing on the public bodies the respect of its independence inherent to the liberal nature of this profession. Therefore, such concepts as self-regulation (free determination by the profession of its professional rules) and the ability to organize and manage itself should be considered as a corollary to the core value of independence.
The United Nations Basic Principles on the Role of Lawyers provide that « Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference » (principle 24).
Lawyers shall have the right to join and form autonomous and independent bodies from State authorities and from the public. There is no independent counsel without an independent Bar Association as there is no independent Bar Association without independent counsel.
These bodies must ensure the representation of their members before the public authorities and the defence of the profession with regard to any restrictions or unwarranted interference. These bodies must effectively master the access to the profession and its output. They must ensure counsel’s compliance with ethics and the punishment of all breaches of ethical rules: not only do they have the power of enacting ethical rules, they are also responsible for its implementation in exercising their disciplinary powers.
The professional structures involving lawyers help protect them against external attacks, not from corporatist point of view, but in the interest of the democratic functioning of the society and their clients.
In this respect, the Recommendation of the Committee of Ministers of the Council of Europe on « freedom of exercise of the legal profession » (Rec. (2000 21)) adopted on October 25th, 2000, emphasizes the role of representative organizations of the legal profession as to the « defense of the role of lawyers in society and to maintain their honor, dignity and integrity » and to « promote the highest possible standards of competence of lawyers and maintain respect by lawyers for the standards of conduct and discipline. »
The International Criminal Bar supports any initiative aiming at establishing and ensuring structural and functional independence of a representative body of Defence counsel within the judicial system of the International Criminal Court, but which will be placed outside of the administration of that jurisdiction. The International Criminal Bar is ready to think and work in this direction with all stakeholders in a constructive and a respectful dialogue of the international and national standards previously recalled.
In any event, it appears that two types of organization can be seriously discussed to meet the need of the organization and the legitimate representation of Defence before the International Criminal Court:
- Either we immediately create an independent association of counsel on the model known and shared by Bar Associations and Law Societies; hence it would be a true Bar Association before the international courts.
It is obvious that this solution implies accepting that the voice of the Defence is institutionally heard and received within the ICC and does not remain external to it or not ignored in practice.
- Or we take up, going even further in the means that it must be given and the independence that it should be guaranteed, the model of the Defence Office set up for the Special Tribunal for Lebanon.
In other words, we could consider, on a temporary or transitional basis, that is to say waiting for the rapid establishment of an Association of Independent Counsel modelled on the Bar Associations and the Law Societies, creating an Defence Office only if it is based upon the model of the Defence Office of the Special Tribunal for Lebanon.
In both cases, the key word that governs the reflection and will be the foundation of the reality of how the structure dedicated to the representation and promotion of the interests of the Defence before the ICC is that of independence.
The ICB is also aware that two other options could be explored, but have less interest in view of possible progress in terms of independence and institutional representation of defence counsel: first, expanding the function and powers of the OPCD; on the other hand, maintaining the status quo.
The reflection to be conducted should be inclusive and take place in the context of the wider consultation. The International Criminal Court knows this type of exercise that will participate eventually to its strengthening and to its sustainability.