Since its inception in June 2002, the International Criminal Bar has contributed to consolidate the task of the defense on the international law and in particular to strengthen the independence and efficacy of the lawyers before the International Criminal Court.
The Bar Association has given support and assistance to the lawyers and has mainly offered training to defense lawyers so that they are equipped with the necessary tools to exercise their profession within an international scope.
This way, the International Criminal Bar has contributed to reinforce the defense as a pillar of the international criminal tribunals, specifically of the International Criminal Court. This pillar is essential to make sure that trials are fair and equitable. Lawyers are indispensable and you can be proud of your contribution to international justice.
Ladies and gentlemen,
One conviction unites us, and is that without access to justice, an equitable society cannot exist.
One year ago, when the Agenda 2030 of Sustainable Development of the United Nations was adopted, world leaders recognized that justice is a key factor to build equitable, pacific and inclusive societies. This recognition is reflected in the Objective 16 of the Agenda, and aims to promote the rule of law and to guarantee the access to justice to everyone.
I am sure that you agree with me on this: there cannot be equitable and effective access to justice or high quality justice without the participation of independent lawyers.
The basic principles about the function of lawyers adopted by the United Nations on 1990 sustain that lawyers perform a fundamental role for the administration of justice and to safeguard human rights.
Those principles also emphasize that an adequate protection of human rights and the fundamental freedoms requires that all persons must have effective access to juridical services provided by professionals of law that are independent.
In fact, the independence of lawyers, whether they are judges, prosecutors or attorneys is critical to an administration of impartial justice. Independence is vital to the integrity of judicial procedures, including those of the International Criminal Court, and must vehemently be appreciated and safeguarded.
The training of lawyers is also very important. If training is necessary on a national level, it is essential on an international level. In fact, international procedures aren’t identical to those of national systems on whereby lawyers may have acquired great knowledge and experience.
The system of the International Criminal Court is a unique hybrid procedural system that combines elements of the main legal systems in the world. Its interpretation and application raises new and numerous challenges for everybody: judges, parts and participants in the procedures.
Training is, without a doubt, necessary to obtain understanding and plain domain of the system in order to assure a better defense and possible representation of victims and ultimately contribute to the quality of the taught justice. The International Criminal Court is often criticized because of the alleged slowness of its procedures. Taking note of this criticism, we have initiated a number of reforms to improve the efficiency and effectiveness and particularly to accelerate the procedures at the Court. The juridical development of the last months show that the reforms are having good outcome. As some have said, the Court is reaching “its cruising speed”. Defense lawyers as well as legal representatives of the victims along with attorneys also have responsibility to contribute with these efforts to accelerate the procedures and improve the functioning of the institution in general.
Ladies and gentlemen,
As you all know, the International Criminal Court was created to secure the responsibility of the authors of the most severe international crimes when national authorities can’t or won’t do it. As a permanent court with a global mandate, the Court has a central role, while complementary, in the fight against impunity for this type of international crimes. For this, the International Criminal Court has become a symbol of global fight for justice.
The Court is also demonstrating (in its practice) that it can fulfill the objectives for what it was created, despite all the challenges and the inherent difficulties of its mandate. Last year was particularly productive for the Court. Three resolutions were issued condemning seven accused persons.
The first trial involved Mr. Jean-Pierre Bemba, ex-President and Commander-in-chief of the Movement for the Liberation of Congo. Mr. Bemba was found guilty of murder, rape and sacking for war crimes and crimes against humanity committed in the Central African Republic. I would like to highlight that this was the first time the Count found guilty to such an individual with this type and capacity of command by not exercising an appropriate control on his troops. This is also the first judgement of the International Criminal Court for crimes of sexual violence. The Trial Chamber sentences Mr. Bemba to 18 years of prison. The sentence isn’t definitive yet because it’s being revised by the Appeals Chamber.
In August, we had the first admission of culpability before the Court, which accelerated significantly the trial that only lasted three days. Mr. Al Mahdi, former member of one faction of Al Qaeda, was sentenced to nine years of jail for intentional attacks against historical and religious objects. This case sets a unique precedent before the Court in relation to the destruction of cultural propriety as a war crime.
Finally, in October, the Court also innovated with its first conviction for crimes against the administration of justice. The Trial Chamber plead guilty to all five accused of corrupting the witnesses in the Bemba case, including Mr. Bemba. The penalty will be announced soon. The sentence was already appealed.
In this moment we have three ongoing trials. They all are in the presentation of evidence phase from the part of the prosecutor. Following with the standard practice of the Court, the next phase will be the presentation of the case from the part of the defense.
The first of them is the trial of Mr. Bosco Ntaganda, alleged leader of an armed rebel group in the Democratic Republic of Congo, who is being accused of war crimes and crimes against humanity, including homicide and rape, among other charges.
The trial against Mr. Gbagbo, ex-President of the Ivory Coast and Mr. Blé Goudé, politic leader allied to Mr. Gbagbo is also in progress. They are both accused of crimes against humanity, rape, prosecution and other inhuman acts, supposedly committed in the context of post-election violence in the Ivory Coast.
Finally, several weeks ago began the trial against Mr. Dominic Ongwen. This is an important milestone since it’s the first trial at the ICC relative to Uganda. The orders of arrest against Joseph Kony and other alleged members of the Army of Resistance of the Lord, including Mr. Ongwen were the first orders of arrest issued from the Court. However, the arrest of the suspects was impossible. Joseph Kony remains a fugitive and the transfer of Mr. Ongwen to The Hague, who surrendered voluntarily, took more than 10 years. He is accused of 70 charges of war crimes against humanity.
The Court is also busy on other fronts.
The prosecution is investigating ten situations with previous authorization of the judges, including the last investigation that was initiated in Georgia. The prosecutor is also conducting preliminary exams in relation to ten countries in four different continents.
After the condemnations, the Court has decided to start to apply for the first time its innovative juridical frame in the reparation to the victims. Currently, four cases related with crimes like forced recruitment of child soldiers, attacks against the civil population and the destruction of cultural goods are being examined.
Ladies and gentlemen,
Lawyers perform a central role at the International Criminal Court and participate in every aspect of its functioning, as lawyers of the suspects, of the accused and as legal representatives of the victims.
Therefore the independence and the quality of our lawyers is of great importance as our legal framework recognizes it. The Rules of Procedure and Evidence, as well as the professional code of conduct for the defense establish standards and minimal qualifications for lawyers as well as a process for their nomination. It must be emphasized that the professional code of conduct was adopted after a rigorous process of consultation with independent representative organisms and juridical associations, in which the International Criminal Bar was involved.
The Court not only attributes the importance to the quality of lawyers but also makes substantial efforts to promote its independence and its training.
For example, the Court holds annually a seminar for lawyers to which all lawyers from the List of the Court are invited. This seminar aims to support the training of lawyers and contributes to maintain them informed of the most recent institutional developments.
It is also important to mention the recent creation of the Association of the International Criminal Court Bar Association (ICCBA). This independent association was created to support the defense and the legal representatives of the victims as well as to represent their interests in the institutional dialogue with the Court. Its creation is a great progress to the strengthening of the independence of lawyers, the strengthening of the principle of equality of arms and the improvement of the quality of justice in the International Criminal Court. The Court appreciates the extensive and constructive participation of the International Criminal Bar in the process that lead to the establishment of the association since it is currently fully operational.
Ladies and gentlemen,
As a judge, I am aware of the challenges that defense lawyers and legal representatives of the victims can confront during international criminal procedures.
During my speech at General Assembly of the United Nations last October, I urged the States to also help defense teams in our procedures when necessary. I am also following closely the current process to review the juridical assistance system. The goal of this revision is both to obtain a financially sustainable solution that at the same time protects the principle of equality of arms. This new scheme must also be much more efficient and accessible with the objective of lighten the administrative charge of the defense teams and of representation of the victims.
Know for sure that as a President of the Court I will always consider the interests of lawyers. However the Court also needs your help.
International criminal justice has a long way and has achieved a lot in these last twenty years. But we cannot give for granted what has taken so much effort to obtain.
We’ve overcome incredible obstacles, but we have to confront everyday new battles and more challenges await us.
The administration of a high quality justice is the key to strengthen the legitimacy of the International Criminal Court. To achieve that is a task that begins in court with the work of lawyers. There are no short routes. It is a work that requires dedication, determination and professionalism.
Lawyers keep moving the fight for impartial and equitable justice, step by step, day after day.
For this and to conclude I would like to congratulate the International Criminal Bar for its energetic support to the work of lawyers and the cause of international criminal justice.
There cannot be an International Criminal Court without fair trials and there also cannot be fair trials without independent and strong lawyers.
I wish you a very productive General Assembly. Thank you very much.
Silvia Fernández de Gurmendi
