Creating an International Criminal Bar for the International Criminal Court

Kelliher, Steven

The Lawyers Weekly Vol. 21, No. 36, February 1, 2002, page 6

On December 6th and 7th of 2001 approximately 300 lawyers from 60 countries met in Paris for the purpose of taking the first steps toward the formation of an International Criminal Bar. As a criminal defence lawyer I was privileged to attend as the representative of Lawyers Rights Watch Canada.

The need for such a Bar had become apparent from the experience of the ad hoc Tribunals dealing with both Rwanda and Yugoslavia and the conference was the product of the joint effort of the Paris Bar and the International Criminal Defence Attorneys Association.

Being held in the most beautiful city in the world and being jointly hosted by the Bar of Bars, (we were encouraged to attend the exposition of 600 years of the Paris Bar then underway at the City Hall) did much to promote attendance and the obvious enthusiasm of the participants.

The International Criminal Court, was conceived with the finalization of the U.N. Statue in Rome in 1998. It will be brought to life by the ratification of the 60th Nation ” there are 48 to date. The Court will have jurisdiction, complementary to the nation states, over genocide, crimes against humanity and war crimes. The offence of “aggression” is to come within the jurisdiction of the Court at the point at which the member states can agree on a definition. The need for such a Court followed the Nuremberg and Tokyo trials after World War II and has been a work in progress for the United Nations ever since. With the end of the cold war efforts toward the Court intensified.

With the finalization of the Rome Statute work began in the preparation of the Rules of Procedure and Evidence which almost incidentally required the registrar of the Court to consult with independent bodies of counsel or legal associations. This provided the legal basis for the formation of a criminal defence bar and partially as a result of the experience of the ad hoc tribunals in Rwanda and the former Yugoslavia the working group headed by M. Cherif Bassiouni said: “The three main pillars of the criminal justice system are: an independent judiciary, a prosecuting authority which guards public interest and independent and effective defence counsel.”

The Rome Statute had not directly contemplated the existence, let alone the necessity, of a defence bar and it was the Quebec based, International Criminal Defence Attorneys Association which took up the creation of this third pillar in the expectation that as well as ensuring the effective defence of an accused the organization would promote the independence of the legal profession and ultimately the supremacy of the rule of law.

Over the course of the first day we heard from academics, government lawyers, U.N. officials and practitioners: all highly informative and offering unique incites into the origins and future development of the International Criminal Court. But perhaps the most compelling speech was that of M. Jean Degli, an attorney of the Paris Bar and a defence counsel involved in the International Criminal Tribunal for Rwanda. He explained that the prosecutor was as powerful as the judge, and that the prosecutor and the judge had a close relationship and that the judge that approved the indictment could hear the merits of the case. He felt that the prosecutor and defence were not treated equally by the Court and that defence counsel tended to be marginalized. Many defence counsel in attendance felt an instant affinity with M. Degli. The Paris Bar hosted both lunch and a truly memorable dinner of extraordinary food, wine and conversation.

During the following day the assembly was divided into three working groups to consider: training, ethics, and funding. The afternoon plenary session attempted to formulate a common statement for progress on those issues. Of particular note was the support the conference received from both Judges Pillay and Jorda as well as from both Registrars of the ad hoc tribunals for Rwanda and Yugoslavia.

The conference concluded with the unanimous commitment to form a smaller group to outline the next concrete steps toward training, funding and formulating organizational options for the International Defence Bar. There was, of course, a spirited exchange as to which representatives of which countries should constitute this steering committee and perhaps rather than lose the forward momentum in last minute divisiveness there was an astonishing collective expression of confidence that Elise Groulx, a Canadian and the President of the International Defence Attorneys Association would put together a steering committee acceptable to all. It is anticipated that further meetings will be announced within the next few months.

Lawyers’ Rights Watch can be reached at

Steven Kelliher practices law in Victoria B.C. and is a member of Lawyers Rights Watch Canada.