Navigating the Tension between Effective and Efficient Legal Counseling and Respecting the Formal Rules of the Tribunals: What Compass to Use?

Abstract

This paper focuses on the motivations and the dynamics that lie at the root of infringements by Defence lawyers of the formal rules and regulations of international criminal courts and tribunals (ICs or tribunals). Although not aplenty, there have been a few instances where Defence lawyers have become subject of disciplinary proceedings for failing to heed orders from the Bench, or more generally for not respecting the formal rules of the tribunals. Different tribunals, as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC) have had to deal with cases of professional misconduct.First, this paper outlines briefly the various challenges concerning the work of Defence counsel practising at an international level. Subsequently, it addresses the motivations and the dynamics of why Defence counsel has failed to heed orders from the bench or to respect the formal rules and regulations of the tribunals. Such misconduct has resulted in disciplinary proceedings for a limited number of Defence counsel on charges of contempt of court or offences with regard to the administration of justice. This paper suggests that the present legal framework regulating the conduct of Defence counsel before different ICs leaves them a considerable margin of appreciation, which at times can obfuscate the difference between professional zeal and misconduct. Evidently, addressing professional misconduct at an international level requires a good level of cooperation between the existing disciplinary mechanisms at different tribunals and relevant domestic mechanisms.