Dealing with Professional Misconduct by Defense Counsel during International Criminal Proceedings

Abstract

This chapter focuses on the motivations and the criminal process’ dynamics that might lie at the root of infringements by Defense lawyers of the formal procedural rules and regulations of international criminal courts and tribunals (ICs or tribunals). First, the chapter outlines briefly the professional challenges and the role of Defence counsel in international criminal proceedings. Subsequently, it deals with the question of what constitutes Defence counsel professional misconduct in the form of contempt of court and offences against the administration of justice. Counsel misconduct includes behavior that is offensive or abusive, obstructs the proceedings, or is otherwise contrary to the interests of justice. Misconduct could also encompass failure to meet the standards of professional competence, due to a lack of sufficient understanding of the substantive and procedural framework applicable before a tribunal or negligence in carrying out core duties. After addressing why counsel may fail to heed orders from the bench or more generally to comply with formal rules of international criminal tribunals, it is argued that existing international mechanisms and procedures need to coordinate better with domestic ones. While the existing legal framework within which Defence counsels practice allows them certain leeway in deciding how to best further the interests of the client, every counsel needs to be aware that certain actions might trigger disciplinary proceedings and must be avoided.