The International Criminal Court Programme of the International Bar Association (IBA)

FRANCIS SINSAI

The IBA’s history

Inspired by the vision of the United Nations and with the aim of supporting the establishment of law and administration of justice worldwide, representatives of 34 national bar associations gathered in New York on 17 February 1947 to create The International Bar Association (IBA). Over the years, the IBA has become the world’s leading organisation of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. It has a membership of more than 50,000 individual lawyers and over 200 bar associations and law societies spanning all continents. The IBA’s Human Rights Institute commenced the IBA International Criminal Court (ICC) Programme in 2005. Its office is located in The Hague Academy Building within the Peace Palace complex, in The Hague – the world’s leading hub of international law and justice.

IBA’s ICC Programme: Mandate

The Court is currently dealing with 18 cases in eight situations. In nine of the cases, judicial activities are ongoing at the Pre-Trial, Trial and Appeals stages of the proceedings. In addition to pending cases and situations, the Office of the Prosecutor (OTP) is said to be monitoring other situations in preliminary examination, including in Afghanistan, Colombia, Georgia, Guinea, Honduras, the Republic of Korea, Nigeria and the Union of the Comoros.[1]

The IBA’s Programme on the International Criminal Court (ICC) monitors fair trial issues at the ICC and encourages the legal community to engage with the work of the Court. The IBA’s monitoring work includes thematic legal analysis of the ICC’s pre-trial, trial and appeal proceedings, and ad hoc evaluations of legal, administrative and institutional issues which could potentially affect the rights of accused persons, the impartiality of proceedings and the development of international justice. The IBA’s ICC monitoring programme is part of a wider community of leading international non-governmental organisations (NGOs) working towards a fair, independent and just International Criminal Court. These NGOs focus on various aspects of the Court’s work, such as gender justice, victims’ rights, outreach and the cooperation of States Parties to the Rome Statute (the ICC’s founding document) with the Court itself.

What makes the IBA’s ICC Programme quite unique is its main focus on the fair trial rights of accused persons. Through systematic monitoring and advocacy, the IBA aims to ensure that the rights of accused persons to a fair trial feature in the minds of legal decision makers and policy makers alike.
In general, the IBA ICC team consists of one programme manager, who is responsible for overseeing the programme and who represents the IBA, and one programme lawyer, assisting the programme manager. The team also contains a number of interns assisting the office work at any given time. Throughout the year, the programme offers legal internship positions for spring, summer and fall intakes. On average, four interns are offered the opportunity to undertake an internship with the IBA ICC programme per intake. Durations vary, although the IBA prefers a minimum term of four months. Interns undertake a myriad of activities ranging from organising events, to legal research and drafting, attending court hearings and organising database information.

The IBA publishes many different types of documents (both in print and in e-version) as part of its responsibility to “get the message out” about the ICC’s work, i.e. challenges the ICC faces, acknowledging its achievements, and making recommendations about how the ICC might better serve the justice needs of an international community in a budding field of accountability of those most responsible for the commission of crimes which shock the conscience of humanity.

The IBA regularly publishes a ‘fair trial watch’ digest, which provides critical information about developments in the ICC’s caseload with fair trial rights implications. It takes a case-by-case approach in examining the major fair trial rights decisions, orders and judgments being issued by the Court. Issues these digests typically look at concern, for example, the right to be tried without undue delay; to have adequate time and facilities for the preparation of one’s defence; to communicate with counsel of one’s own choosing; and to be tried in one’s own presence; to legal aid in cases of indigence; to examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her; and, of course, the right to the presumption of innocence. Other issues include the right to a public hearing before a fair, independent and impartial Court.

Additionally, the IBA writes legal commentary on salient issues before the Court, which are published on its website, and it publishes (at least bi-annua) thematic reports with detailed analysis of pertinent issues. These latter publications also reflect consultations with States Parties representatives, defence counsel, judges, prosecutors, and Registry staff, legal academics, and civil society partners. From time to time, the Programme also issues Press Releases on hot issues affecting the Court, such as the illegal detention of ICC defence lawyers by the Libyan authorities.In this way, the Programme acts as the interface between the Court and the global legal community.

Although the main focus of the Programme’s monitoring work is fair trial rights of accused persons, the IBA will research and comment upon other major issues facing the Court as appropriate. For example, the Programme’s most recent thematic report followed, reported on, analysed and provided recommendations upon the issue of witnesses of atrocities appearing before the ICC from a multidimensional perspective (ranging from cooperation issues, to issues of witness interference and bribery, to the quality of prosecution investigations in searching for credible witnesses to testify before the court, and how the court in its turn provides adequate security to those individuals in recognition of the often highly risky testimonies they have provided). Eighteen reports have been issued since the start of the Programme addressing a range of issues being considered by the Court, including equality of arms, the legal aid system, the efficiency and effectiveness of proceedings, fairness and counsel matters.

The field of international criminal justice has grown exponentially over the past 20 years. Until the creation of the ad hoc tribunals for the former Yugoslavia and Rwanda in the mid-1990s, international criminal justice had been mostly dormant for fifty years. However, the creation of the ad hoc tribunals, followed by the wave of hybrid tribunals for Sierra Leone, Cambodia and Lebanon created impetus for the establishment of a permanent judicial body that would have essentially global jurisdiction over international crimes, i.e. the International Criminal Court. This Court is still very much in its infancy but it is here to stay. For all of those working inside the Court itself, as well as the States supporting it, and the civil society actors, academics and others working around it, the ICC presents an opportunity to be part of a global movement to render those who commit the most heinous crimes accountable for their actions – regardless of their civil, political or military status.