International courts and lawyers

The justice sector has a curious version of grandmother’s footsteps. Every time your back is turned, another international court is set up. So that when you turn around to look at the courts tiptoeing towards you, one or more international court has joined the game, slowly approaching. Well, I hope one never taps you on the shoulder, since many of them have a criminal jurisdiction involving the most ghastly crimes.

Domestic courts suffer swingeing budget cuts, face rationalisation and merger. But international courts keep growing. There is a clear moral, connected to the globalisation of Western values. There are now around 30 international courts, and over half of them were set up after 1990.

The international courts differ in how they treat lawyers, some with sections for legal representatives, or with systems for consulting lawyers on procedural rules, while others behave as if lawyers come from outer space and have little connection with the court’s work.

On 23-24 March of this year, the International Criminal Court (ICC, established 2002) sponsored an event of interest to lawyers. The ICC Registrar held a conference of experts to discuss the establishment of a Victims Office and a Defence Office, including the potential establishment of an association or bar for list counsel. There is now an ad hoc committee to draft a constitution for an ICC Bar/Association for such counsel.

And here comes the first question: should it be a bar or an association (where a bar is a body with the right to establish standards for mandatory enrolment, insist on educational qualifications for entry, and impose discipline, including exclusion from the list, while an association is more by way of a voluntary club)?

Since the ICC was established, there have been lawyers longing to set up an exclusive bar, in which existing members would decide who can in future join the list. That is human nature. Various national bars opposed an ICC bar from the start, and the International Criminal Bar has so far been a voluntary association.

But now the question has arisen again, including in relation to the name. Following the conference in March, should an organisation for ICC lawyers have the powers of a bar? If not, should the word ‘bar’ appear at all? Or must the word ‘association’ appear alongside ‘bar’? This is an old question – look at both the International Bar Association and the American Bar Association, neither of which are bars as defined in the paragraph above, which is presumably why they have each added the all-important ‘association’.

We could have a rich digression on the relative merits of the word ‘bar’ or ‘association’ when describing a group of lawyers. A number of members of the Council of Bars and Law Societies of Europe - note council, not association - hate the word ‘association’ in relation to bars, since it denotes a commercial and voluntary aspect. Yet others, at least in the English translation of their titles, call themselves bar associations – for instance, and at random, the Hungarian Bar Association and the Croatian Bar Association, even though both are clearly ‘bars’ within the definition given.

For European competition law purposes, the courts have already decided that bars are associations of undertakings. So the use of the word ‘association’ does not appear to be a clear indication of anything.

But back to the ICC and its bar/association problems: whatever it calls itself, the question of its future functions seems settled. Since the ICC itself retains control over important aspects of what an independent bar would otherwise do - such as determining who can practise before the court, and exercising powers of discipline over counsel - it looks as if the wish for an independent bar before the ICC (as opposed to a bar association) will long remain a pipe dream.

You will be pleased to know, though, that human nature finds a way through the most daunting difficulties. And so some of the ICC lawyers are wondering whether, if they cannot set up their own bar, maybe they can expand the influence of their organisation in other ways, for instance by extending membership to lawyers appearing before some of the other new international courts (Cambodian court, Lebanese court, and so on).

This has arisen as a challenging question to be answered when drafting the constitution – should the articles be restricted to the ICC, or should they already now include a wider membership beyond just that one court?

You have probably got the message. As robots march up the high street to take over your work, and as Mr Gove finds ways to cut your remaining income, the globalisation of justice, and in particular criminal justice, beckons as an exciting alternative career.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs