Defence counsel are ethically bound to zealously represent their clients. So what exactly does it mean to ‘zealously represent’ a client before any of the international criminal courts or tribunals? How unproblematic is it for defence counsel to meet their ethical duties? Would an International Criminal Court (icc) Bar or professional association for icc List Counsel and their assistants be of any significance to that end? This contribution concludes that the only way forward out of the prevailing and persistent morass List Counsel currently find themselves in at the icc, is through the establishment of a Bar Association for List Counsel and their assistants.
Suppose that procedural settings of national jurisdictions do not work for international criminal proceedings, that victims’ justice is delayed, and tribunals’ resources are drained on account of the burdensome defence. And suppose that accused may not need the same procedural rights and safeguards in international criminal proceedings as in national proceedings. Might it be time for a new and ‘better’ approach considering the unique demands of trying international crimes? From the defence perspective, these suppositions presume a preference for international criminal proceedings that yield quick, nimble, and cheap desired convictions – risking legitimacy essential to these judicial institutions. Might there be other institutional or systemic reasons – independent of whatever burdens caused by the defence – that warrant resolving? Might it be that the defence is sufficiently handicapped as is, militating against adopting procedural modalities that further erode a suspect’s or accused’s enjoyment of fair trial rights?
The Rules of Procedure and Evidence of the Kosovo Specialist Chambers incorporates procedural rules from Kosovo’s domestic legal system, innovative and useful modalities, procedural rules, practice directives, and lessons learned from the other international(ised) criminal tribunals. Based on a presentation given on 22 June 2018 at Leiden University’s Grotius Centre Supranational Criminal Law Lecture Series — The Kosovo Specialist Chambers: Comparative Legal Perspectives — this article provides a defence perspective on some of the modalities found in the Rules of Procedure and Evidence. In the author’s opinion, some of the provisions on disclosure provide greater protections of fair trial rights for suspects and accused during the confirmation and pre-trial stages than the rules of other international(ised) criminal tribunals, while also maintaining the schizophrenic features found in these international(ised) jurisdictions — placing the burden of proof on the prosecution while granting the trial judges discretionary authority to engage in truth-seeking activities.
This chapter considers whether the ad hoc nature of icc trial proceedings risks undermining the icc’s credibility. The Rome Statute and the icc Rules of Procedure and Evidence have sufficient constructive ambiguity as to how trials should be conducted such that, depending on the serendipitous composition of the Trial Chamber, trials can be shaped in a more ‘adversarial’ or more ‘inquisitorial’ fashion. This malleability, which may have been the result of a diplomatic compromise, has resulted in ad hoc trial proceedings at the icc; no two trials are conducted in the same manner. Since the hallmarks of any good court are uniformity, predictability, and reliability in its proceedings, does this feature, which is unique to the icc, risk undermining the legitimacy of the icc’s judgments and, inexorably, the icc itself?