International expertise

In the latest instalment of a continuing series, we offer advice on the issues which face solicitor-advocates

Solicitors were rather slow to avail themselves of the opportunity to appear as advocates before the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR).

With the introduction of the International Criminal Court, an opportunity has arisen for solicitor-advocates to undertake international criminal work of the most challenging nature.

The court is likely to begin its operation next year and the process of appointing the judges has already begun.

Solicitor-advocates are well placed to provide an important service to clients facing the most serious of criminal charges.

The fact that most solicitor-advocates will have expertise in the case management of substantial cases, coupled with their ability to undertake advocacy at the highest level, makes them singularly well qualified to undertake cases of this nature.

These cases are always huge projects needing careful handling and solicitors have, over the years, developed great skill and expertise in the management of this sort of case.

It is unclear how the jurisprudence will develop at the International Criminal Court but it is likely to draw from the experience of the ad hoc tribunals at the ICTY and ICTR.

Therefore, it follows that the system is likely to be a mixture of common law and civil law.

Q How do I qualify to appear before the International Criminal Court?

A Rule 22 of the Rules of Procedure in Evidence 1995 provides 'a counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings.

The counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the court.

The counsel for the defence may be assisted by other persons including professors of law, with relevant expertise.'

It is clear that established competence in international criminal law is not a prerequisite, as the rule provides in the alternative that established competence in criminal law and procedure is sufficient.

Many solicitor-advocates will have undertaken criminal cases that have an international element to them.

Frequently, in fraud cases and drugs importations, for example, advocates have to advise on the admissibility of evidence obtained from abroad and also arrange for enquires to be made of witnesses who are resident abroad.

This, in itself, can comprise the necessary relevant experience and, increasingly, cases undertaken in this country do have an international perspective.

The actual procedure for applying to be included in the list of defence advocates has not yet been formalised.

Q Is it too late to qualify to appear before the ICTY or ICTR?

A No, both are still undertaking new work and it is still possible to be included on the list of advocates qualified to appear before both ad hoc tribunals.

Q How do I qualify to appear at the ICTY?

A Rule 44 of the ICTY rules states: 'Subject to any determination by a chamber pursuant to rule 46 or 77, a counsel shall be considered qualified to represent a suspect or accused if the counsel satisfies the registrar that the counsel is admitted to the practise of law in a state, or as a university professor of law, speaks one of the two working languages of the tribunal and is a member of an association of counsel practising at the tribunal recognised by the registrar'.

English is one of the working languages.

In September of this year, the Association of Defence Counsel practising before the ICTY was formed.

For further information on this association see the Web site: www.adcicty.com.

The Web site provides information about the association together with details of how to qualify to be placed on the list of counsel and the membership application form.

The rules for the ICTR are similar and can be found on the ICTR Web site at: www.ictr.org

Q Is there a similar association for the International Criminal Court?

A In June 2002, more than 350 delegates from 48 states from all over the world attended a conference held in Montreal.

The conference unanimously adopted a final resolution creating the International Criminal Bar as the 'third pillar' of the International Criminal Court, to be equal in stature to the judges and the prosecutor.

The 10th preparatory commission of the International Criminal Court held by the United Nations acknowledged the creation of the International Criminal Bar.

At a meeting in Paris on 23 and 24 November 2002, the steering committee of the International Criminal Bar agreed on a draft constitution which will be submitted to the first general assembly of the International Criminal Bar.

This is likely to be held in Berlin at the end of February or early in March 2003.

The creation of the International Criminal Bar was made possible to a large extent by the efforts of Elise Groulx, the President of the International Criminal Defence Attorneys Association (ICDAA).

The ICDAA is a lobbying group that has been active in promoting the rights of the defence bar at the ad hoc tribunals and before the International Criminal court.

For further information, visit the ICDAA Web site at: www.hri.ca/ partners/aiad-icdaa.com

Q How do I become a member of the International Criminal Bar?

A Membership of the International Criminal Bar can be either individual or collective.

Any person qualified to appear before the International Criminal Court is entitled to apply for individual membership.

Collective membership is available for bars, law societies and independent associations of defence counsel, including the Solicitors Association of Higher Court Advocates (SAHCA).

The question of an application for membership will be before the SAHCA committee in January 2003.

These are exciting times, and solicitor-advocates are urged to seize the opportunity to appear before international criminal courts and tribunals.

In particular, solicitor-advocates are urged to become members of the International Criminal Bar so that their expertise can be utilised to promote the rights of defendants charged with the gravest crimes.

This column is prepared by committee members of the Solicitors' Association of Higher Court Advocates.

For details of SAHCA or for a membership application form, contact Sandra Dawson, tel: 020 7837 0069.

E-mail your advocacy questions to: sandra@admin4u.org.uk