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Steven Kelliher
“Creating an International Criminal Bar for the International Criminal
Court” The Lawyers Weekly Vol. 21, No. 36, February 1, 2002, page 6.
CREATING AN INTERNATIONAL CRIMINAL BAR FOR THE INTERNATIONAL
CRIMINAL COURT
By Steven Kelliher
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 Irwc@portal.ca
Steven Kelliher practices law in Victoria B.C. and is a
member of Lawyers Rights Watch Canada.
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