Liliana De Marco: Lawyers - get to know the ICC
On 16 May, 2008, the International Criminal Court's (ICC's) highest-ranking officials - president Philippe Kirsch, registrar Silvana Arbia, and prosecutor Luis Moreno-Ocampo - used the opportunity of a visit by 50 leading International Bar Association (IBA) members to call for a closer dialogue with Bar associations.
May 28, 2008 at 08:03 PM
5 minute read
On 16 May, 2008, the International Criminal Court's (ICC's) highest-ranking officials – president Philippe Kirsch, registrar Silvana Arbia, and prosecutor Luis Moreno-Ocampo – used the opportunity of a visit by 50 leading International Bar Association (IBA) members to call for a closer dialogue with Bar associations.
The call showed recognition that the relationship between the legal profession and the ICC has lost momentum since the days of the drafting of the Rome Statute, by which this permanent court with jurisdiction to investigate and prosecute persons accused of the most serious crimes was established. Among the serious gaps to be addressed are the small numbers of lawyers from around the world who have registered to participate in the Court's cases – just 236 – and, among those, the almost complete lack of participation by women and by lawyers of either sex from large swathes of the globe, including Asia and Latin America.
With its first trial starting in June and the work of defining the role of counsel appearing before the Court nearing completion, the ICC is turning attention to its relations with the wider profession and the need to ensure diversity across it. The procedure applicable before the ICC is a mix of civil and common law tradition, which underlines the need to have lawyers with different backgrounds working together in order to apply the Rome Statute effectively. The Court is also looking at associations of lawyers as partners in ensuring the highest standards of practice at the ICC proceedings.
The challenge to Bar associations and law societies and their active members is therefore to assist in mobilising technical expertise and improving geographical representation and gender balance on the ICC list of counsel. Practising before international tribunals is an exciting opportunity for lawyers. Yet professional investment on this field of practice has been seriously lacking. While the ICC is consolidating a new field of law, bars have the responsibility to assist their constituencies in developing an understanding of its new jurisprudence and by constantly upgrading the standards of legal practice. A close collaboration is therefore of mutual interest.
Today, 105 states have become parties to the statute and three state parties (Uganda, Democratic Republic of the Congo and Central African Republic) have referred situations occurring on their territories to the Court. In addition the United Nations (UN) Security Council, acting under Chapter VII of the UN Charter, has referred a situation on the territory of a non-state party (Darfur, Sudan). The prosecutor of the ICC continues to monitor situations in other countries, including Colombia, Afghanistan and Cote d'Ivoire, a non-state party, which declared its acceptance of jurisdiction over crimes on its territory. Eleven arrest warrants have been unsealed to date and three suspects have been apprehended and brought before the Court in The Hague.
To conduct investigations, gather evidence and arrest individuals the ICC depends on international co-operation. As the Court has no enforcement arm, state parties are bound to fully cooperate with the Court by virtue of the statute they have ratified, but cooperation can also be provided to the Court by non-state parties and international organisations.
According to prosecutor Moreno-Ocampo, the interface between governments and the ICC has proved to be one of the most serious challenges faced by the Court to date. States have the tendency to overlook the fact that the ICC is an independent court, which applies legal standards that are not open to political considerations and timelines. Bar associations and law societies, as key partners in the promotion of the rule of law, could and should be advocating for full co-operation by governments, scrutinising and commenting on a state's rigour – or lack of it – in implementing the legal obligations imposed by the Rome Statute and speaking out when governments compromise the independence of the Court.
As well as providing support to the international Court from domestic arenas, there is much to be done in another direction – to encourage harmonisation and minimise divergences between the work of this new international body and the many national jurisdictions. The Rome Statute and its developing jurisprudence could be a great resource to domestic legislators. As champions of legal reform, Bar associations and law societies must take a role to guide and press governments to ensure consistency between domestic criminal law provisions and international standards – and they could assist in drafting ICC implementing legislation to enable full cooperation with the Court.
In the words of registrar Arbia, a closer dialogue between the ICC and legal profession is of paramount importance to fulfil the ICC's mandate. The IBA is aware of the role that can be played by its member associations and in an effort to promote their participation it is conducting ICC outreach activities for lawyers around the world – in jurisdictions from Malaysia to Mexico.
In November 2007, the IBA Council adopted a resolution in support of the ICC, which called on member Bar associations and law societies to encourage their governments to support and advance the goals of the ICC. The call made by top ICC officials on 16 May underlines and strengthens this message. It is hoped Bar associations and their members will take this opportunity to contribute more closely to the goals of the court.
Liliana De Marco is an International Bar Association programme lawyer for the IBA's ICC monitoring and outreach programme based in The Hague.
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