The Registry of the International Criminal Court (ICC or Court) is proposing several amendments to the Regulations of the Registry, a set of rules that govern how the Registry functions and how individuals may interact with that organ of the Court. Many issues arise from the additions proposed by the Registry. I will focus on two of the proposed Regulations. One has to do with the confidentiality of documents under a proposed amendment of Regulation 14. The second is a proposed supervision scheme under a new Regulation 119bis. I will set out some thoughts on these two proposals to show how their adoption may go counter to the best interests of the Court and the administration of international criminal justice.
Regulation 14 of the Regulations of the Registry currently sets out three levels of confidentiality for documents: public, confidential and under seal. The first is self-explanatory; the document is to be accessible to the public. A confidential document is one that is accessible to those participating in the proceedings but not to the public. A document under seal is excluded form the public and only available to some of those participating in the case. The new level, to be called “Secret”, is of questionable value as it appears to be redundant. Additionally, the name alone creates suspicion around its intended function.
The text of the Regulation as amended would be (proposed amendments are in red):
Chapter 2: Proceedings before the Court
Section 1: Provisions related to all stages of the proceedings
Subsection 1: General provisions
Regulation 14 Levels of confidentiality
Documents, material, orders and decisions may be classified as follows:
(a) Public: available to the public;
(b) Confidential: not to be disclosed to the public; or
(c) Under seal: confidential; accessible and known only to a limited number of persons. Each organ and/or participant shall compile and maintain a list of persons who have had access to each document, material, order or decision under seal.
(d) Secret: accessible and known to a very limited amount of persons. Each organ and/or participant shall compile and maintain a list of persons who have had access to each document, material, order or decision classified as secret. With this classification the distribution is limited, downloading, forwarding and printing prevented. Only one person in the Registry can print on request.
As is readily observable, there is only a slight difference in the text between “Under seal” and “Secret”. The “Secret” heading does not have the word “confidential” at the start and reference to “under seal” is replaced with “classified as secret”. The only substantive difference is that methods of reproduction of a “Secret” document are prohibited and only “one” person at the Registry can make copies.
My first concern with this “new” level of confidentiality is that it appears to be mostly redundant. In both “under seal” and “secret” access to the document is limited to those that have need of it. It would not mean very much at all if a document “under seal” were readily given to those that were not specifically authorized to have it. There must be a reason for the circulation of a document to be limited. Such a statement should be uncontroversial as the proceedings of the ICC are to be public to the greatest extent possible. The distinction between the old category of “limited” and the new category of “very limited” is therefore illusory. In either case only those who have a legitimate reason to access the document will be given said access once it is placed under seal.
There is a second issue with the proposed modification. While it is entirely legitimate for an international criminal tribunal to maintain control over the circulation of confidential documents, the new procedure of prohibiting download, forwarding or printing appears to be quite excessive. There are legitimate reasons a person might want to forward, print or download a confidential document. Maybe there is a tight schedule and/or conditions requiring that the work be completed in another location. There are a myriad of other possible reasons. Limiting access in this way (which prevents, among other things, copy and paste for the purposes for drafting a motion), and the ability to print to one person from the Registry is extreme. It essentially gives one member of the Registry staff sole power to grant or deny access to a confidential document that the person requesting the document has a right to access. Such access may be impaired by the availability of the designated Registry staff person, thereby inhibiting the work of the Court. This is not to imply access would intentionally be withheld, only that the designated person being unreachable in a particular instance will prevent access. Registry officials are already aware of who has access to confidential material and the parties are already required to keep a log of who has seen the confidential document. The goal of limiting access and keeping track of that access is already achieved by the status of “under seal”. Furthermore, this regulation makes no exceptions on modes of granting access should the need arise. This means that any dispute will find its way either to the Presidency or to the Chamber hearing a particular case, depending on how the issue is framed. The better choice would be to leave the regulation substantively as it is and to keep precise records on who has access to confidential material.
The third issue is purely terminological. The proposal is for a level of confidentiality called “Secret”. Proceedings at the ICC are by definition not “secret”. The right to a fair open and transparent justice system is enshrined in numerous international human rights instruments. Secrecy is the absolute antithesis of an open and functioning judiciary and criminal justice system. As I explained above, I do not believe that the addition of another level of confidentiality is necessary. Calling it “Secret” gives the impression that the Registry (or the Court in general) is trying to hide information from the public. This impression alone is something that should be avoided.
For these reasons I would recommend that the Registry not adopt the proposed amendment to Regulation 14.
The proposed amendments to the Regulations of the Registry also contain a new Regulation 119bis directed at the monitoring and regulation of counsel that appear before the ICC. As with the proposed addition to Regulation 14, this new provision is redundant of already existing procedures at the Court. The very nature of the provision, and the regime it would create, also raises some important questions not clarified by the text of the proposed Regulation. As it currently stands, the proposal reads,
Chapter 4 Counsel Issues and legal assistance
Section 1: General provisions
Regulation 119 bis Monitoring of performance by counsel
1. The Registrar shall establish, after consultation in accordance with regulations 120 and 121, a mechanism to monitor the quality of performance by counsel. Such mechanism shall be respectful of the independence of counsel.
2. The Registrar, as appropriate, may make recommendations if it appears that the counsel does not show due regards to ethic in his dealings with the persons referred to in regulation 124.
The first part of the proposed regulation requires consultation with what are essentially bar associations to determine the content of the monitoring mechanism, which presumably includes standards of conduct. The second part refers to the relationship between counsel and assistants to counsel.
Behind this proposed regulation appears to be a desire to guarantee quality representation by counsel appointed to represent a participant before the ICC. As a starting point it must be noted that this regulation would apply only to defense counsel and victims’ counsel. Attorneys representing the Office of the Prosecutor are not subject to this Registry regulation. The result of this amendment would be the creation of a mechanism to monitor the performance of defense and victims’ counsel. At least as far as defense counsel is concerned this would be functionally redundant.
The Code of Professional Conduct for Counsel already creates a review board to adjudicate complaints of ineffective assistance of counsel and other related allegations of inadequate representation by counsel appointed at the ICC. This is a passive system that is triggered by a complaint. The one proposed by the Registry that would involve active monitoring. However, active monitoring is not necessary for defense counsel and therefore any mechanism to review defense counsel would be redundant. Accused before the ICC have numerous opportunities to complain about the quality of their legal counsel. When the accused are in court they can bring any complaint directly to the attention of the judges. At other times when they are at the detention unit (or free on release), they can request access to Registry officials and the ability to file a complaint pursuant to the Code of Professional Conduct. The only person who is in a position to complain or applaud the quality of defense counsel is the accused and he or she has every opportunity to do so without an active monitoring system by the Registry.
The proposed regulation provides that the standards to be adopted by the Registry should be drafted in consultation with legal associations such as bar associations. This is exactly the kind of consultations (held by the Registry) conducted during the drafting of the Code of Professional Conduct for Counsel. Any guidelines are therefore likely to be substantively the same as those in the Code. Additionally, the Disciplinary Board hears complaints for the violation of the Code, which can be made by the Registry. The Board in turn is vested with the authority to, inter alia, “disbar” counsel from practice before the ICC. The Registry in running its own parallel mechanism would be duplicating the work of the Board if it were to enforce any kind of sanction.
Furthermore, in order to completely monitor the quality of counsel, the Registry would need to monitor communications between counsel and the accused. Any such monitoring would be a gross violation of the attorney/client privilege. And if there were such monitoring, what would be the Registry response to perceived inadequacies? Recommendations on how to conduct the case would infringe upon the independence of counsel and moving for dismissal/”disbarment” of the attorney would infringe on the right of the accused to choose counsel. Simply put, there is no need for an active monitoring mechanism of defense counsel and any such mechanism would necessarily interfere with the independence of counsel.
The picture is slightly different when it comes to counsel for victims authorized to participate in the proceedings. Many victims are not present at the seat of the tribunal and have very little (if any) direct contact with victims’ counsel. Many also live in places where there is little access to information about what is happening at the court and there are few methods to communicate directly with counsel or the court. These victims are therefore not in a position to file a complaint pursuant to the Code of Professional Conduct for Counsel should there be concerns about an attorney’s professional services or conduct. In this kind of case, the Registry could act as a proxy to safeguard the rights of distant victims by bringing allegations to the attention of the Board. Limiting the proposed regulation to counsel for victims who are far removed from the actual proceedings would vitiate many of the potential problems with any potential monitoring mechanism.
I would therefore recommend that if the proposed Regulation 119bis were adopted, that it be limited to counsel for victims who do not have the means to directly interact with the Court or personally monitor the conduct of counsel.
By putting out the call for public comment on its proposed amendments, the Registry has taken an important step toward transparency and accountability. A meeting between experts and the Registry will be held after the close of public comments to further discuss the proposed amendments. Who the Registry invites to participate, and how many of the public comments are discussed will test the extent to which the Registry is dedicated to this public process. As I have tried to set out above, some of the proposed amendments have the potential to seriously undermine the transparency and fairness of the workings of the ICC. There is no reason to believe that these amendments were designed with mal-intent. However, if they are adopted in their present form there is an unnecessary possibility of abuse. In my opinion, Regulation 14 should be left in its present form and the proposed Regulation 119 bis, if adopted, should be limited only to victims’ counsel.
 Prosecutor v. Gaddafi & Al-Senussi, Case No. ICC-01/11-01/11, Order in relation to Reclassification of Documents, ¶ 7 (26 March 2012).
 This is the reference to Regulation 120.
 See the preamble of this second document.
 See, Articles 34, 36 – 42 of the Code.
 Ibid. at Article 42.