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

Judiciary – Key Decisions Legal Representation
Yillah can be considered ‘defence counsel […] practising
at the […] Court’ for the purposes of the Code of
Conduct and that as such, he was subject to that Code.
However, the Chamber also noted that, pursuant
to Article 16(1) of the Code of Conduct, the primary
responsibility for avoiding or addressing a conflict
of interest lies with individual counsel, although in
case of a dispute the Chamber has the responsibility
of resolving the matter in order to facilitate the fair
conduct of proceedings. 1981
Article 12(1)(b) of the Code of Conduct states that
appointment of counsel shall be barred if counsel was
(i) involved or (ii) privy to confidential information as
a staff member of the Court relating to the case in
which counsel seeks to appear. The Chamber noted
that the first alternative provided herein does not
apply to the current instance, as the Prosecution
acknowledged Yillah was not involved in the Banda
& Jerbo case during his employment with the OTP. 1982
The Chamber then examined the second issue, holding
that substantial confidential information was not
necessary to satisfy this requirement and that the
appropriate test was whether Yillah has knowledge
of more than de minimis confidential information of
relevance to the case which a member of the defence
team should not possess. The Chamber noted that
the Prosecution’s claims regarding Yillah’s access to
confidential information were general and not based
on any specific evidence or supporting material.
Although Yillah’s employment with the OTP may have
given him an insight into the functioning of that office,
the Prosecution had done nothing more than suggest
he had any knowledge or confidential information
relating to this specific case. 1983 In the absence of any
reason to doubt Yillah’s integrity, the Chamber was
entitled to rely on his clear assertions. Therefore, the
Chamber concluded that there were no persuasive
indications that a conflict of interest existed in the
present case or that Yillah’s appointment would be
prejudicial to the proceedings. The Prosecution’s
motion to invalidate his appointment was therefore
denied.
On 6 July, the Prosecution filed for leave to appeal this
decision on the following two grounds: 1984
n
n
whether, as a matter of law, prosecution lawyers
may join a defence team for a case which was
open at the time that person worked for the OTP,
or whether they should be barred from taking up
employment with the defence for a period of time
no less than a year (given that the Prosecution
argued all former prosecution lawyers have a
conflict of interest per se); and
whether the Chamber had properly considered
and weighed the prosecution’s claim that Yillah
was privy to confidential prosecution information
against Yillah’s assertion that he was unaware of
any confidential information relating to the Banda
& Jerbo case.
The defence responded on 8 July 2011, opposing leave
to appeal and arguing that the Prosecution application
did not satisfy the standard for an appealable issue
under Article 82(1)(d). 1985 On 13 July 2011, the
Chamber granted the Prosecution leave to appeal
only the first issue, which it considered to satisfy the
requirements for an ‘appealable issue’ under Article
82(1)(d). 1986 As regards the Prosecution’s second
proposed ground of appeal, the Chamber held that
the Prosecution’s disagreement with the Chamber’s
conclusion on this matter did not give rise to an
appealable issue under Article 82(1)(d), as the Appeals
Chamber had previously held that an appealable issue
is not merely one over which there is disagreement or
conflicting opinions. The Prosecution was therefore
granted leave to appeal the first issue, but not the
second. At the time of writing, no decision has yet been
issued on this appeal.
1981 ICC-02/05-03/09-168, paras 11-12.
1982 ICC-02/05-03/09-168, para 14.
1983 ICC-02/05-03/09-168, para 21.
1984 ICC-02/05-03/09-173.
1985 ICC-02/05-03/09-175.
1986 ICC-02/05-03/09-179.
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