Counsel Misconduct before the International Criminal Court: Professional Responsibility in International Criminal Defence

373 Pages·2012·1.907 MB·English

by  Till Gut

COUNSEL MISCONDUCT BEFORE THE
INTERNATIONAL CRIMINAL COURT
This is the first comprehensive study of the law governing professional miscon-
duct by defence lawyers before the International Criminal Court. The ICC’s regu-
latory regime was introduced in response to instances of misconduct experienced
by other international and domestic criminal courts. The book first turns to how
the ICC’s forerunners – the International Criminal Tribunals for the former
Yugoslavia and Rwanda and the Special Court for Sierra Leone – coped with mis-
conduct, often resulting in controversy. The book also looks at the approaches
that have evolved in Germany and the United States, reflecting the different role
of defence lawyers in the civil and common law criminal justice traditions.
The book offers a unique insight into the professional responsibilities of
defence lawyers within the various international and national regimes. Offering
practical guidance on disciplinary systems and other sanctioning mechanisms, it
also explores the inherent tension at the heart of the defence lawyer’s role: to
ensure the human right to a fair trial we want them to be zealous advocates for
their clients; at the same time we ask them to commit themselves as officers of the
court.
Studies in International and Comparative Criminal Law: Volume 11
Studies in International and Comparative Criminal Law
General Editor: Michael Bohlander
Criminal law had long been regarded as the preserve of national legal systems, and
comparative research in criminal law for a long time had something of an aca-
demic ivory tower quality. However, in the past 15 years it has been transformed
into an increasingly, and moreover practically, relevant subject of study for inter-
national and comparative lawyers. This can be attributed to numerous factors,
such as the establishment of ad hoc international criminal tribunals and the
International Criminal Court, as well as to developments within the EU, the UN
and other international organisations. There is a myriad of initiatives related to
tackling terrorism, money laundering, organised crime, people trafficking and the
drugs trade, and the international ‘war’ on terror. Criminal law is being used to
address global or regional problems, often across the borders of fundamentally
different legal systems, only one of which is the traditional divide between com-
mon and civil law approaches. It is therefore no longer solely a matter for domes-
tic lawyers. The need exists for a global approach which encompasses comparative
and international law.
Responding to this development this new series will include books on a wide
range of topics, including studies of international law, EU law, the work of specific
international tribunals, and comparative studies of national systems of criminal
law. Given that the different systems to a large extent operate based on the
idiosyncracies of the peoples and states that have created them, the series will also
welcome pertinent historical, criminological and socio-legal research into these
issues.
Editorial Committee:
Mohammed Ayat (Rabat, Morocco)
Robert Cryer (Birmingham)
Caroline Fournet (Groningen)
Alex Obote-Odora (ICTR, Arusha)
Dawn Rothe (Old Dominion University, VA)
Silvia Tellenbach (Freiburg)
Helen Xanthaki (IALS, London)
Liling Yue (Beijing)
Volume 1: The German Criminal Code: A Modern English Translation
Michael Bohlander
Volume 2: Principles of German Criminal Law
Michael Bohlander
Volume 3: Crime, Procedure and Evidence in a Comparative and International
Context: Essays in Honour of Professor Mirjan Damaska
Edited by John Jackson, Maximo Langer and Peter Tillers
Volume 4: The Criminal Responsibility of Senior Political and Military Leaders as
Principals to International Crimes
Hector Olasolo
Volume 5: Transnational Organised Crime in International Law
Tom Obokata
Volume 6: Sentencing in International Criminal Law: The Approach of the Two
ad hoc Tribunals and Future Perspectives for the International Criminal Court
Silvia D’Ascoli
Volume 7: OLAF at the Crossroads
Constantin Stefanou, Simone White and Helen Xanthaki
Volume 8: Principles of German Criminal Procedure
Michael Bohlander
Volume 9: Hybrid and Internationalised Criminal Tribunals
Sarah Williams
Volume 10: The Defendant in International Criminal Proceedings: Between Law
and Historiography
Björn Elberling

Counsel Misconduct before the
International Criminal Court
Professional Responsibility in International
Criminal Defence
Till Gut
OXFORD AND PORTLAND, OREGON
2012
Published in the United Kingdom by Hart Publishing Ltd
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© Till Gut 2012
Till Gut has asserted his right under the Copyright, Designs and Patents Act 1988,
to be identified as the author of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
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addressed to Hart Publishing Ltd at the address above.
British Library Cataloguing in Publication Data
Data Available
ISBN: 978-1-84946-317-1
Typeset by Hope Services, Abingdon
Printed and bound in Great Britain by
MPG Books Group Ltd
For my queen, Regina

PREFACE
Membership in the Bar is a privilege burdened with conditions.
Justice Benjamin N Cardozo, In re Rouss, 221 N.Y. 81, 116 N.E. 782 (Court of Appeals
of New York, 1917).
That government hires lawyers to prosecute and defendants who have the money hire
lawyers to defend are the strongest indications of the wide-spread belief that lawyers in
criminal courts are necessities, not luxuries. The right of one charged with crime to
counsel may not be deemed fundamental and essential to fair trials in some countries,
but it is in ours.
Justice Hugo L Black, Gideon v Wainwright, 372 U.S. 335 (Supreme Court of the United
States, 1963).
[A] jury trial is a fight and not an afternoon tea.
Justice William R Riddell, Dale v Toronto R.W. Co., 34 Ont. L.R. 104 (Supreme Court of
Ontario, 1915).
These three quotes may be no more than a rather random and moreover quite
one-sided selection from three jurisdictions, out of the many more in existence.
As is plain to see from the citations, the first two are from the United States of
America, and the third hails from the province of Ontario in Canada. They thus
represent merely one dominating legal tradition – the Anglo-Saxon common law
tradition. It is readily conceded that this leaves out all the other eminent legal
systems of the world. But the common law is very distinctive in that it has pro-
duced a wealth of jurisprudence and case law that is notable and important for
international trials, and it knows how to put into words the essential beliefs
underlying the system. Among this is a trial culture that expressly recognises the
right to defence and equality of arms as core values of the law.
The idea behind this transcends the common law, though. Of course, other
legal systems emphasise their commitment to the idea of a fair trial and the right
to counsel quintessentially to the same effect. Likewise do the international courts.
One feature setting apart the common law courts of this world from others,
though, is the way that judicial rulings are associated with their makers. It illus-
trates fittingly how persons and their respective individualities create and shape
the law. More specifically, it can be grasped how they are one out of different
actors in the administration of justice. Each of these actors is a human person who
exercises a role, and as such they represent different tasks and interests. Defence
lawyers serve very specific interests, among them are chiefly those of criminal
suspects and accused. The famous quote by Justice Black in Gideon v Wainwright
ix