Practical advice for anyone considering a career in international criminal law, distilled by David Josse QC: Counsel Magazine (April 2022 issue)
On 8 July 2021, the Bar Council in conjunction with the Criminal Bar Association organised an online event that I chaired titled ‘Opportunities in International Criminal Law: work in and around courts and tribunals’. The three panellists were Peter Haynes QC, Melissa Pack and David Young, all of whom have devoted the last ten years or more to practice in this field at the various courts and tribunals largely in The Hague. The attendance figures for the event were encouraging, as was the feedback, demonstrating that there is real appetite and interest in this area of work at the Bar.
This article, like the seminar, is designed to give some practical advice to anyone considering a career in international criminal law (ICL).
The Bar of England and Wales has done well in terms of getting a share of international work in the 25 years or so since the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as in the various international criminal courts and tribunals that have followed. As David Young explained, in part, this is because of the strong advocacy and adversarial skills that exist in our jurisdiction that stand barristers in good stead when it comes to competing for this type of work. Having English as a first language is a further advantage. Another plus is the relative ease of travelling from the UK to The Hague (particularly compared to North America or Australia).
Foreign languages – not essential but very useful
Having said this, all the contributors were at pains to point out that having an ability to work (although not necessarily advocate) in another language is a very real advantage. Most of the international courts have English and French as their working languages and there is normally simultaneous translation between the two, as well as the language, if different, of the accused person. A good command of French is therefore very useful and other language skills often a very positive plus that can make all the difference in obtaining a job or case at the court in question.
Research the different courts and tribunals
The most obvious and general piece of advice is to spend time studying the websites of the various courts and tribunals. Most of these sites have had considerable resource put into them and, at times, can read a little like a piece of propaganda extolling the virtues of the court in question. However, they contain a lot of interesting and useful information.
List of counsel for defence and victims
In particular, the websites will detail how an individual should apply to get on the list of counsel for the court or tribunal in question. These lists contain the names of the lawyers who are willing, able and interested in representing defendants or victims. All the panellists agree that it is well worth applying to get on such lists. In general, admission depends on years of experience of practice and, resultantly, many members of our Bar are eligible. There is no cost, although it does involve form filling as well as obtaining additional documentation. It can also take time for such applications to work their way through the system.
Admission to the list does not guarantee work. In fact, most of those on the list will never get close to appearing before an international court.
Defence and victims work is paid, in effect, on a piecemeal, case-by-case basis (whether private or under a legal scheme), so in many ways is like self-employment as we understand it at the English Bar.
Office of the Prosecutor
The process of working for the prosecution is completely different, as Melissa Pack, who is presently working for the Office of the Prosecutor (OTP) at the ICC, explained. Lawyers might also want to work in Chambers (ie with the judges) or the Registry (the bureaucracy) – a function in both cases far more significant and powerful than any equivalent role in our own domestic system. Probably because of this and our adversarial system, barristers are more likely to seek work for the prosecution rather than the other organs of the court. These positions are only available on an employed basis – the court or tribunal in question being the employer. Obtaining any such job is extremely difficult, not least because the institutions, for good reason, are duty bound to try and employ lawyers from a wide range of their constituent member countries.
You cannot expect to appear as counsel at an international war crimes trial without enormous luck and a great deal of perseverance. For one thing, there are very few trials each year and counsel inevitably come from all over the world. In addition, defendants often choose lawyers from their own jurisdiction who speak their language.
The seminar dealt with how to get a foot in the door. This, too, is far from easy and, just like coming to the Bar, persistence and determination help enormously. Taking opportunities that come your way, including internships or perhaps working for an NGO are important. There was general agreement that if you can get to work or be in The Hague, this in turn will lead to connections, knowledge and further career opportunities. Also, many lawyers in this work start off as quite junior members of a large team. This can lead on to promotion and in some cases a position as counsel. There are also the opportunities for those adept at drafting and/or with a good knowledge of ICL to work on the written advocacy involved in such cases, something that forms a far more important component of international trials than it does in domestic criminal cases.
Fascinating area of practice
The panel were unanimous in saying that those lucky enough to have played a part as lawyers in war crime or crimes against humanity trials are involved in an area that is truly fascinating and rewarding. This is not just because of the subject matter but also the scale of the cases that recount history along with their often overtly political overtones. Above all else is the opportunity to observe the pursuit of justice while having the pleasure of learning about other legal cultures as part and parcel of the job.
It is also worth stressing that if you are instructed in a case as counsel (and even more so get a job as a prosecutor) then this is almost certainly a full-time commitment meaning that you can do little, if any, domestic work at the same time. As Peter Haynes QC (the past President of the ICCBA) said: ‘If you are interested in [ICL] it is likely to be a path that takes you on a very long journey.’ He went on to say that for him, this amounted to four cases in 22 years.
We should all be inspired by Karim Khan QC, a wonderful ambassador for our Bar who, after a few years of domestic practice, began a career which after approximately 25 years led him to the most important and powerful job in ICL, namely Prosecutor of the ICC. For those interested in his story and by way of further reading the full version of his interview with Monica Feria-Tinta for Counsel magazine can be found here.
The Bar Council seminar, Opportunities in International Criminal Law: work in and around courts and tribunals can be accessed here.
David Josse QC is a Vice-Chair of the Bar Council International Committee and Head of Chambers at 5 St Andrew’s Hill (5SAH). He specialises in extradition, human rights, and international war crimes.
David spent 5 years at the ICTY defending in two lengthy trials. Firstly, representing a leading Bosnian Serb politician charged with genocide and ethnic cleansing and secondly, a General facing a variety of allegations relating to the Srebrenica massacre.