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Guest Post on ICC Appeals Chamber Decision regarding “Decision on the admissibility of the case under article 19 of the Statute, of 10 March 2009″ in the Case The Prosecutor v. Joseph Kony et al.

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ICC: Appeals Chamber delivered its “Judgement on the Appeal of the Defence against the ‘Decision on the Admissibility of the Case under Article 19 of the Statute, of 10 March 2009″ in The Prosecutor v. Joseph Kony et al. – ICC 02/04-01/05 – on 16th  September 2009

By Jens Dieckmann, Attorney at Law. Assigned Counsel for the Defence in the admissibility proceeding under Article 19 of the Rome Statute in the Case of The Prosecutor v. Joseph Kony et al. – ICC 02/04-01/05

On 16th September 2009, the ICC Appeals Chamber delivered its judgement in the case of The Prosecutor v. Joseph Kony et al. – “Judgement on the appeal of the Defence against the ‘Decision on the admissibility of the case under Article 19 of the Statute’ of 10 March 2009.”  Although the appeal was dismissed, several notable issues arise regarding the situation of the defence at the ICC.

On 21st October 2008, the Pre Trial Chamber II assigned Mr. Jens Dieckmann as Counsel for the Defence in order to “represent those persons” under the arrest warrant in the admissibility proceedings under Article 19 of the Rome Statute, as initiated by the Pre Trial Chamber. On 28th October 2008 Counsel requested that the Presidency review the decision of the Registrar relating to his appointment, as Counsel had identified several potentially serious conflicts arising in respect of the ICC Code of Conduct, in particular, that he was assigned to represent four defendants simultaneously without having any contact with them.  On 11th November 2008 the Presidency dismissed the request without giving any reasons, announcing that these would be delivered later.  The reasons were delivered on 10th March 2009. The Presidency held that it did not have jurisdiction over this matter. Nevertheless, it should be noted that the Presidency underlined in their reasons that, since there is no Bar at the ICC as in national jurisdictions, there is a institutional gap at the ICC concerning advice on matters of professional ethics. In paragraph thirty-three of the Reasons of the Presidency from 10th March 2009, the Presidency therefore noted the following:

“As to the argument of the applicant that the texts of the Court do not provide for any mechanism pertaining to the Court for counsel to seek advice or a ruling on matters of professional ethics, the Presidency notes that, in contrast to counsel acting at the national level who have the ability to consult their national bar associations or other relevant bodies on matters of professional ethics, no similar system is provided for at the Court. Noting the terms of Rules 16 and 20, the Registrar is requested to explore institutional mechanisms whereby counsel may seek advice on questions of professional ethics and update the Presidency thereon.”

Counsel expresses his highest appreciation for this request which was directed to the Registrar. The Presidency evidently realized and acknowledged the conflict in which counsel found himself throughout the instant proceedings, arising from the wording of his assignment in the Chamber’s Decision of 21st October 2008 and the professional ethics of defence counsel.

This is a very important statement from the Presidency recognising that the absence of a Bar Association at the ICC  may lead to problems in the very functioning of the court. The Presidency’s request to the Registry could be the first step in the creation of a professional body for Counsel at the ICC.

Furthermore, in its Judgement the Appeals Chamber gave substantial clarification on several defence-related issues:

- On appeal, Counsel for the Defence is entitled to rely solely on procedural errors as the basis for impugning the Pre Trial Chamber’s decision. The fact that Counsel did not attack the findings in the instant case on the merits (i.e. admissibility) does not render the appeal inadmissible (para 47 of the Judgement).

- In paras 52-62, the Appeals Chamber gave detailed clarification relating to the different types of Counsel at the ICC and the scope of their respective mandates. In response to Counsel’s major concern that his assignment to all four defendants created a potential violation of his obligations under the ICC Code of Conduct, the Appeals Chamber clearly states that the relevant mandate was only for  “counsel to attend and to represent the interests of the defence”: as such, counsel does not act for or as an agent of the defendants and “[t]he provisions of the Code of Conduct regarding representation are therefore not directly applicable to such counsel.” (para 56).  This finding is of paramount importance in light of the increasing use by the ICC Chambers of “Counsel assigned as ad hoc counsel in the interest of the defence”. This begs the question: if the ICC Code of Conduct is not directly applicable, which rules govern the practice of  “ad hoc counsel”?

- The Appeals Chamber found that the Pre-Trial Chamber was not obliged to appoint counsel to represent the four suspects in the admissibility proceedings.  Rather, it was within Chamber’s discretion to do so (para 63-68).

- The Appeals Chamber also clarified the extent of its power to review the discretion of first instance chambers by analysing ICTY, ICTR, SCSL and national jurisprudence from common law countries (paras 78-87). In applying this jurisprudence, the Appeals Chamber identified a three-step-test (para 80): “They [i.e. the international and national jurisprudence] identify the conditions justifying appellate interference to be: (i) where the excercise of discretion is based on an erroneous interpretation of the law; (ii) where it is exercised on patently incorrect conclusion of fact; or (iii) where the decision is so unfair and unreasonable as to constitute an abuse of discretion.”

By delivering this Judgement, the Appeals Chamber has assumed the role of clarifying the scope of counsel’s mandate and the impact of the ICC Code of Conduct on the practice of ad hoc counsel. If an institutional mechanism had existed, whereby counsel may seek advice or a ruling on matters of professional ethics, counsel in the instant case would have had an opportunity to get advice on the questions of professional ethics raised since his appointment on 21st October 2008. Counsel would then have been in a position to provide timely observations on the issue of admissibility. As such, it is evident that the lack of an appropriate institutional mechanism limited the effectiveness of the defence to act in these proceedings. Indeed, the admissibility decision on 10th March 2009 was reached without having taken the defence position on the merits into account. It remains to be seen whether the Registrar will explore the requested mechanism as soon as possible, in order to prevent the need for further clarification by the Appeals Chamber.

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