Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Legal Representation
Invalidation of Legal Counsel
In the last two years, an issue has emerged in
the Court’s jurisprudence across a number of
different cases pertaining to former Prosecution
lawyers joining different Defence teams
relatively soon after ceasing to hold office within
the Office of the Prosecutor. The Prosecution has
twice requested the Chamber to invalidate the
appointment of these counsels on the grounds
of a conflict of interest, in the Bemba and Banda
& Jerbo cases. The Chamber also carried out an
assessment of the possible invalidation of the
appointment of counsel previously employed by
the Office of the Prosecutor on its own initiative
in the case of Muthaura, Kenyatta and Ali.
Although Chambers have been sensitive to the
concerns expressed by the Prosecution, they have
consistently held, however, that there were not
enough reasons to invalidate their appointment.
Two of the matters are currently pending before
the Appeals Chamber.
Conduct by legal counsel before the ICC is
governed by the Code of Professional Conduct
for Counsel. 1955 In particular, Articles 12 1956 and
16 1957 provide that counsel may not assume
duties where there is a conflict of interest. By
virtue of Article 1, the Code of Conduct applies
to all ‘defence counsel, counsel acting for States,
amici curiae and counsel or legal representatives
of victims and witnesses practising at the ICC’. As
such, Prosecution counsel is excluded from the
applicability of the Code of Conduct; however,
from the moment they join a Defence team the
Code of Conduct does apply to them. Although
pursuant to the Code of Conduct it is counsel’s
primary responsibility to ensure no conflict of
interest arises due to his/her appointment to a
particular team, in case of a dispute Chambers
have the power under Article 64(2) 1958 of the
Rome Statute to resolve matters that may cause
unfairness to the proceedings.
1955 The Code of Professional Conduct was adopted
by consensus by the Assembly of States Parties in
December 2005. ICC-ASP/4/Res.1, Annex, 2 December
2005, available at , last visited on 14 October
2011.
1956 Article 12(b) of the Code of Conduct provides that
‘Counsel shall not represent a client in a case: (b) in
which counsel was involved or was privy to confidential
information as a staff member of the Court relating to
the case in which counsel seeks to appear. The lifting of
this impediment may, however, at counsel’s request, be
ordered by the Court if deemed justified in the interests
of justice. Counsel shall still be bound by the duties
of confidentiality stemming from his or her former
position as a staff member of the Court.’
1957 Article 16 of the Code of Conduct deals with a potential
conflict of interest in the appointment of counsel and
provides that ‘where a conflict of interest arises, counsel
shall at once inform all potentially affected clients of
the existence of the conflict and either: (a) withdraw
from the representation of one or more clients with the
prior consent of the Chamber; or (b) seek the full and
informed consent in writing of all potentially affected
clients to continue representation.’
1958 Article 64(2) provides that ‘the Trial Chamber shall
ensure that a trial is fair and expeditious and is
conducted with full respect for the rights of the accused
and due regard for the protection of victims and
witnesses’.
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