By Thomas Verfuss
After years of discussions, drafting and negotiations among lawyers, the International Criminal Court (ICC) finally has its bar association. The constitution of the International Criminal Court Bar Association (ICCBA) has been adopted, and David Hooper QC of England is the first elected president.
A bar association has been sorely missed at the ICC. The dean of the bar can mediate when there are conflicts between an individual defence lawyer and the court. There was no bar and thus no dean when most of Jean-Pierre Bemba’s defence team was arrested in 2013.
The Office of the Prosecutor (OTP) suspects several members of the defence team of witness tampering. The trial for contempt has taken place; the judges are deliberating about the judgment to be delivered in due course.
The arrest of Bemba’s defence team raised several important issues, like the eavesdropping on their phone calls while they were consulting about their strategy for the final phase of Bemba’s war crimes trial and the closing arguments.
The OTP could get access to strategic information of their adversary at a crucial moment, some observers argue, but at the time there was no dean of the bar to defend their interests.
Apart from the controversial Bemba case, there are housekeeping matters that a bar would have to deal with, like the resources and practical means for defence lawyers to do their work. ICC Registrar Herman von Hebel has welcomed the foundation of the ICCBA as an interlocutor.
The establishment of the ICCBA has taken years as there were obstacles to be overcome. Defence lawyers at the ICC come from lots of different countries with different legal cultures and thus different ideas what the exact role of a bar association should be. There were also different ideas about who should be eligible for membership. The ICCBA is for “independent counsel” before the court.
But their is not only independent defence counsel before the ICC, but also independent counsel for victims. The legal representatives of the victims are often perceived as a “second OTP” because they have the same interest: the conviction of the accused. In spite of being adversaries in the courtroom, it has been decided that victims’ counsels are also welcome in the ICCBA.
To complicate matters further, there is the Office of Public Counsel for the Defence (OPCD) and the Office of Public Counsel for Victims (OPCV). These services are part of the ICC and loosely attached to the Registry; lawyers who work there, are employed by the Court and some wondered if they qualify as “independent counsel”.
Despite this, OPCD and OPCV staff members are welcome as ICCBA members. The question arose if they should also be promoted to leadership positions during the first elections. The head of OPCD, Xavier-Jean Keïta of Mali, has been elected to the Executive Council; the head of OPCD, Paolina Massidda of Italy, hasn’t.
Other faces in the 14-member Executive Council that are familiar to Kenyans, are Karim Khan of Deputy President, William Ruto, defence and Caroline Buisman of the former journalist Joshua Sang defence.
Hooper, the first president of the ICCBA, is experienced in international criminal courts. He has practiced since 1999 in high-profile cases before the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the ICC.
