International Judges Need Thicker Skins

On New Year’s Eve, the Trial Chamber overseeing the Al Hassan case referred Hassan’s lead defence counsel, Melinda Taylor, to the Registry for violating the Code of Professional Conduct for Counsel. That referral will trigger an investigation by a Disciplinary Commissioner into Taylor’s actions.

The Trial Chamber’s referral stems from a tweet that Taylor posted the day before Christmas concerning her client. The tweet reads in full:

A day after rejecting #AlHassan’s request for a custodial visit to see family following the death of his daughter, TCX rejects amicus request of #GITMO lawyers to intervene on #torture issues concerning #AlHassan detention and interrogation in #Mali. Ho ho ho… Merry Xmas. #ICC

In its order, the Trial Chamber justifies referring Taylor for possible discipline on two grounds. The first is that Taylor publicly revealed “the existence and outcome of a confidential decision of the Chamber” — the Custodial Visit Decision. I can’t comment on whether that ground is justified, though Taylor’s explanation for why she is at worst guilty of a good-faith mistake makes sense.

The second ground for the referral, however, is deeply troubling. Here is the relevant paragraph:

The Chamber further recalls the overarching obligations on Counsel pursuant to Article 7(1) of the Code of Conduct to be respectful and courteous in her relations with the Chamber, and Article 24(1), to take all necessary steps to ensure that her actions are not prejudicial to the ongoing proceedings and do not bring the Court into disrepute. Fundamental to these duties is the requirement to respect any decision issued by the Chamber, be it oral or written. To the extent that Counsel disputes or disagrees with any ruling by the Chamber, she may pursue that through the legal recourses available in accordance with the legal framework of the Statute. As set out in Article 7(3) of the Code of Conduct, Counsel must comply with this framework at all times rather than seeking to dispute decisions of the Chamber through other fora. The content of the Tweet directly violates these obligations. Finally, the Chamber finds the Tweet in totality by its content and sarcastic tone to be highly offensive and disrespectful of the Chamber and the Court as a judicial institution.

Methinks the Trial Chamber doth protest too much. To begin with, there is a fundamental difference between disagreeing with a decision and failing to respect it. As Taylor notes in her response, her tweet did not claim that the decisions were in any way invalid or not binding. It did not even fault the Trial Chamber’s reasoning. It simply noted, in a (mildly) sarcastic manner, that the timing of the decisions — Christmas-time — would have made them particularly painful for Hassan.

Moreover, the Trial Chamber cannot seriously believe that defence counsel (or the OTP, for that matter) can only express disagreement with a decision “through the legal recourses available in accordance with the legal framework of the Statute” — ie, by appealing. If that is the rule, Fatou Bensouda’s public response to the Appeals Chamber’s acquittal of Bemba should have immediately led to a disciplinary investigation. The Appeals Chamber, of course, did not refer her — rightfully so. I find Bensouda’s response overheated, unpersuasive, and counterproductive. But she certainly did not act unethically, given that her statement made clear she accepted the validity of the acquittal. As long as a lawyer does not challenge the validity of a decision and does not engage in ad hominem attacks on the judges who issued it — such as accusing one of the judges of corruption — there is nothing improper about her criticizing a decision in one of her cases. To paraphrase the US Supreme Court, lawyers do not check their right to freedom of speech at the ICC door.

Finally, as to Taylor’s “sarcastic tone” being “highly offensive and disrespectful” — give me a break. Was the tweet sarcastic? Yes. Was it “highly offensive and disrespectful”? Only if you are a delicate snowflake used to unquestioned deference from those around you. These are very senior judges sitting on an high-profile international court. They can stand — or at least should be able to stand — disagreement with their decisions, even when offered sarcastically. And let’s be clear: the criticism in Taylor’s tweet was incredibly mild. The judges should peruse some of my blogging while I was one of Karadzic’s formally-appointed legal associates at the ICTY. I never questioned the validity of the various decisions that went against us or engaged in ad hominem attacks, but I routinely criticised the substance of those decisions in terms that, given the Taylor referral decision, would apparently have caused the Trial Chamber to spontaneously combust.

In fact, the ICTY threatened me a few times with contempt for my blogging — precisely on the ground that I was calling the Tribunal into disrespect. I remember rather fondly a long conversation in the ICTY canteen with the Registry official who was always tasked with passing along the contempt threats to me. I explained to him calmly (for me) and patiently (for me) that I had the right to criticise decisions in the Karadzic case that stayed within the boundaries I sketched above, that I had no intention of changing my writing style, and that I would be happy to defend myself against contempt charges if the Tribunal cared to actually file them. It never did so, to its credit.

Taylor has asked the Trial Chamber to reconsider its decision. I hope it will.