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The International Criminal Bar: Where CBA members fit in

The International Criminal Bar: Where CBA members fit in
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By Roxanne P. Helme

I have been an individual member of the International Criminal Bar (ICB) since its inception in 2002. The Canadian Bar Association has also been a collective member of the ICB since the beginning. I was first elected to the ICB governing council in 2007, as a representative of list counsel approved by the International Criminal Court. In December of 2012, I was again elected to the governing council for a four year term, this time as the Canadian Bar Association’s representative. My hope is that after reading this brief article, CBA members will decide that they also want to become individual members of the ICB and that we may soon meet at a conference or meeting somewhere, anywhere, in the world.

In 1998, 120 Nation States (not the United Nations) adopted a statute in Rome, establishing the International Criminal Court (ICC). For the first time in the history of humankind, Nation States had decided to accept the jurisdiction of a permanent international criminal court for the prosecution of the perpetrators of the most serious crimes against humanity committed in their territories or by their nationals. The mission of the ICC is to put an end to impunity for the perpetrators of the most heinous crimes against humanity and thereby contribute to the prevention of such crimes. The ICC does not replace national criminal justice systems but rather steps in only if the state concerned does not, cannot or is unwilling to genuinely prosecute the perpetrators. The ICC completed its first case in the summer of 2012. Thomas Lubanga Dyilo, the former leader and founder of the Union of Congolese Patriots militia in the Democratic Republic of Congo, was convicted of enlistment, conscription and use of children under 15 to participate actively in hostilities in the context of an armed conflict not of an international nature and sentenced to 14 years imprisonment.  He has appealed his conviction. The prosecution has also appealed, seeking a higher sentence. In December of 2012, Mathieu Ngudjolo Chui, alleged leader of the Lendu militia of Bendu-Ezekere (DRC) was acquitted of charges of willful killing, murder, directing attack on civilian population not engaged in hostilities, destruction of property, pillaging, using children under the 15 to actively participate in hostilities, sexual slavery and rape. The case of Germain Katanga, the alleged leader of the Force de Resistance Patriotique en Ituri (DRC) militia who stands charged of willful killing, murder, directing attack on civilian population not engaged in hostilities, destruction of property, pillaging, using children under the 15 to actively participate in hostilities, sexual slavery and rape remains under reserve.

I have spoken to numerous criminal lawyers who have conducted cases at the international criminal tribunals of the former Yugoslavia and Rwanda.  I have gained an insight into some of the realities of the practice of criminal law in many of the world’s jurisdictions.  It has been an enlightening and inspiring experience from the beginning.

As we well know, a Bar is a self-governing entity which represents counsel in a court or court system. A Bar protects the rights of lawyers and the rights of their clients to fair treatment within the system. Bars have powers, to a greater or lesser degree, to control matters such as admission to practice, ethical standards, discipline of counsel and other matters relating to the practice of law in a given system. Among national court systems, especially in democracies, the institution of a Bar is nearly universal.  That notwithstanding, for various reasons, international courts and tribunals generally do not have Bars. 

If one reviews the Rome Statute, one will notice that while Article 42 establishes “The Office of the Prosecutor”, there is no mention of the defence for accused persons coming before the Court. When Elise Groulx, then a Montreal criminal defence lawyer, noticed this shortcoming, she decided to do something about it. Ms. Groulx arranged for a meeting of an international group of interested criminal defence lawyers, many of them Canadian, in Montreal in June of 2001. In November, 2002, at the Palais de Justice in Paris, the first constitution of the International Criminal Bar was put in place and the ICB was officially born. The mission of the ICB is to become the officially recognized Bar of the ICC and since its inception and notwithstanding numerous inherent barriers (including large geographic distances and language diversity), the ICB has been working doggedly towards this goal.

The ICB is currently made up of individual and collective members from around the globe; criminal lawyers who speak many languages, who practice criminal law in many different systems and circumstances and many of whom face adversity in their work on a daily basis. While some of our members, like me, merely need to get on a plane to attend an ICB meeting, I am continually impressed by the fact that many other international colleagues who attend our ICB functions have had to first overcome onerous bureaucratic and financial hurdles to be in attendance.

I believe that the strength of the ICB is in its membership. I urge any CBA member who wants to be counted as one who stands up for international criminal justice, irrespective of whether they would ever be interested in taking an ICC brief, to join the ICB and think about attending a meeting to discuss current issues facing the ICC with other likeminded lawyers. Since I joined the ICB in 2002, I have had the benefit of attending ICB meetings in France, Spain, Holland, New York and Romania. I was sorry to have missed a meeting in Japan and an upcoming meeting is scheduled to be held in North Africa. I have met and ultimately become friends with criminal lawyers from Singapore, Egypt, Europe, Costa Rica, Romania, Canada, Japan, the United States, the Philippines and Africa. I have spoken to numerous criminal lawyers who have conducted cases at the international criminal tribunals of the former Yugoslavia and Rwanda.  I have gained an insight into some of the realities of the practice of criminal law in many of the world’s jurisdictions.  It has been an enlightening and inspiring experience from the beginning. I highly recommend membership in the ICB to you all. Visit http://www.bpi-icb.com/ to join us.

Roxanne P. Helme is the CBA Representative for the ICB Council.

 

Voir Dire, June 2013 - CBA National Criminal Law Section Newsletter

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