Broadening Horizons

Oliver Doherty, who attended the 2009 annual Salzburg Summer School on international criminal law, commends the course to students and junior practitioners alike.

At the end of the Bar Vocational Course, (soon to become the Bar Professional Training Course) many aspiring barristers, whether or not they have secured pupillages, seek opportunities for volunteering and broadening their horizons, including short university courses which focus on particular areas of practice.


One such course is the Salzburg Law School (“SLS”) on international humanitarian law and human rights. This is an annual two-week course, founded after the establishment of the International Criminal Court (“ICC”) under the Rome Statute, in its inaugural session in 1999. SLS specialises in international criminal law and humanitarian law with a focus on the ad hoc tribunals for Yugoslavia (the International Criminal Tribunal for the former Yugoslavia (“ICTY”)) and Rwanda (the International Criminal Tribunal for Rwanda (“ICTR”)), as well as the ICC. It aims to train future participants in this evolving field. The SLS sees leading practitioners and academics from around the world descending on Salzburg to teach, discuss and inspire the next generation of practitioners in this field. The course, taught in English, is provided by leading academics and practitioners including Professor Dr Otto Triffterer, Professor William Schabas, Mr Christian Wenaweser, Ms Bianca Jagger and Mr Ben Ferencz—whose first day “on his feet” was at The Einsatzgruppen Trial at the Nuremburg Subsequent Proceedings during which 22 defendants were charged with murdering over a million people—as well as other commentators and advocates in international criminal law.

The aim

There is a shared belief amongst those running the SLS in the centrality of international criminal law in world affairs. Whilst accepting the challenges in definition, jurisdiction and enforcement, those teaching on the course all seem to believe in the notion that international criminal legal institutions can, and will be seen in the future to, make the world a safer place. They recognise that this area is shrouded in controversy and much of the syllabus is focused on addressing difficult questions.

The 2009 programme

I attended the 2009 Summer School and the syllabus included: the potential expansion of the jurisdiction of the ICC; attempts to define a crime of “aggression”; the difficult notion of “genocidal intent”; joint criminal enterprise in conflict situations; command responsibility; a possible new international “crime against future generations”; prosecutorial discretion in the ICC; and practicing as an advocate before the international courts.

A crime of “aggression”? A key topic of the 2009 Summer School was the Review Conference of the International Criminal Court Statute, which is due to take place between 31 May and 11 June 2010, in Kampala, Uganda to consider amendments to the ICC’s founding Treaty, the Rome Statute, and in particular a re-assessment of the crimes over which the ICC has jurisdiction under art 5. One of the most anticipated issues at that Review Conference will be the attempt to define “aggression” to the satisfaction of delegates and extending the ICC’s jurisdiction to include it. This lofty aim to expand the jurisdiction of the ICC in this manner can scarcely be more topical in the minds of the British public, given the ongoing Chilcot Enquiry. The results of the Review Conference will be the topic of the 2010 Summer School

The decision to prosecute? A very interesting lecture was delivered by Dr Carstan Stahn on Prosecutorial Discretion at the ICC. He emphasised the slightly clumsy sounding “Complementarity” principle through which the international criminal system is only brought to bear when domestic systems have remained dormant or have failed. He also highlighted safeguards in a system which is criticised for being overly politicised such as the existence of the Pre-Trial Chamber, and the vague but extant requirement for “Gravity” before a prosecution is brought. The current reality of the limited capacity and resources for investigations was noted as was the clear complexity in conducting investigations. Carla del Ponte, former prosecutor at both the ICTY and ICTR has commented that the decision to prosecute at the ICC is “ill defined and complex”.

Crimes against future generations? A very different issue was raised by Bianca Jagger of the “World Future Council”, who addressed the course on the desire to restrain and deal with industrial ecological crime and transgressors in the battle against climate change. Anything which puts the “very survival of humanity” at risk should be prohibited and prosecuted, she said. Her organisation’s aspirations were tested amongst the lawyers who questioned how such crimes would be proved and highlighted obvious problems of causation. Notwithstanding these problems, she expressed the belief that international criminal law can and must do more in the future.  

There were a number of periods of lively discussion amongst delegates on issues such as the decision to issue an arrest warrant on counts of war crimes and crimes against humanity for the President of Sudan, Omar al-Bashir, as well as the clear focus of the ICC’s Office of the Prosecutor on the continent of Africa.

Relevance to practice

The overwhelming feeling after the 2009 course was of the exciting opportunities and challenges ahead in this field of law. Mr Gunael Mettraux, from the International Criminal Law Bureau, spoke to us in his capacity as one of a very small group of practitioners who defend in international criminal cases. He highlighted skills which he said were required in his practice which, it struck me, have relevance to any criminal barrister: the substantial challenges of fact management in large cases; dealing impartially and with professional detachment with hugely emotive issues; the importance of defending those accused of crimes who, by the nature of the offence, instantly become stigmatised; a need to have a firm grip on expert evidence; working in defence “teams”; and, finally, delicate client management (eg urging the client to put his politics aside and to focus on making a legal or evidential defence).

Mettraux commented unfavourably on rules of evidence at the ICTY, where both “YouTube” videos and Wikipedia entries have all been admitted in evidence, as well as on judicial impartiality in the ongoing Karadic case. A German judge in Karadic was asked by journalists if he thought the case was likely to be concluded by 2011. His response was that he thought it unlikely as Karadic would have the right of appeal. Despite this, it was argued that there was an immense professional enrichment from practice in an area at the cross-roads of different legal systems.

Who attends?

The SLS presents an opportunity for personal and professional enrichment for Bar students, pupils and junior practitioners. There are 50 places annually with over 20 nationalities represented. The attendance is diverse and there is an ethos of developing a deeper understanding of each other’s cultures, outlooks and legal jurisdictions.

Cultural surroundings

The SLS is run at the same time as the world famous Salzburg Festival (www.salzburger-festspiele.at). Last year, outside of lectures, all of the delegates enjoyed the sounds of concerts and operas, many of them free outdoor events.

Oliver Doherty is a pupil at 3 Temple Gardens (Chambers of John Coffey QC).

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