Helen Brady
Helen Brady, an Australian lawyer with over 32 years’ experience, is the Senior Appeals Counsel and Head of the Appeals and Prosecution Legal Coordination Section in the Office of the Prosecutor (OTP) at the International Criminal Court (ICC). Since 2014, she has led the Prosecution on all appeals and post-appeal proceedings before the Appeals Chamber, advises trial teams and coordinates legal positions in cases and situations, and is a member of the Prosecutor’s senior management team.
Previously, as Senior Appeals Counsel and Appeals Counsel at the International Criminal Tribunal for the former Yugoslavia (ICTY) for 12 years, she appeared for the Prosecution in the appeals of 50 accused persons in war crimes, crimes against humanity and genocide cases at the ICTY and the ICTR and advised on appeals and trials of another 50 accused. She also served as Chef de Cabinet to the President of the Special Tribunal for Lebanon, Judge Antonio Cassese. Formerly, Ms. Brady was a prosecutor at the Office of the Director of Public Prosecutions (NSW) in Sydney and worked in leading law firms in Sydney and San Francisco. As a member of the Australian Government delegation to the negotiations for the ICC, she was one of the negotiators and drafters of the ICC’s Statute and Rules of Procedure and Evidence.
Ms. Brady has taught courses on International Criminal Law in the LL.M. programs at the Australian National University and Sydney University, lectured in several universities around the world, and trained judges and lawyers in international and domestic war crimes courts including the ICC, the ICTY, the ICTR, the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Court of Bosnia and Herzegovina and the Ugandan High Court International Crimes Division. A graduate of ANU (BSc-LLB (Hons)) and Cambridge (LLM (Hons, 1st class), she is the author of more than 25 publications on international criminal law and procedure, including book chapters and journal articles, and has lectured/presented on international criminal justice issues in more than 20 countries. Ms. Brady is admitted to practice law in Australia and California, and also has Polish nationality.
Helen was profiled for ATLAS by Yulia Nuzban. Yulia is a lawyer from Ukraine, who has worked at the ICC on investigation and prosecution of war crimes and crimes against humanity in Kenya, Uganda and Darfur, Sudan. As an Oxford Reporter on International Law in Domestic Order, she has analysed the interpretation and application of public international law in decisions of the Constitutional Court of Ukraine. In the past, she has worked as a lawyer in a law firm (Kyiv, Ukraine) and a legal fellow with the Strategic Litigation Programme of the Helsinki Foundation for Human Rights (Warsaw, Poland). Later, she conducted research into legal and practical challenges of the prosecution of the crime of genocide at the NIOD Institute for War, Holocaust and Genocide Studies (Amsterdam, Netherlands). In 2005-2008, she served as a Youth Network Coordinator and in 2008-2009, as a Board Member for Amnesty International Ukraine. Yulia has lectured and published on public international law, as well as judged international rounds of the ICC Moot Court Competition and the Telders International Law Moot Court Competition.
The views expressed are the authors’ alone and do not necessarily reflect the views of the Office of the Prosecutor or the International Criminal Court.
=====
What drew you to working in international law? And what were your first steps?
When I was growing up, I lived in Australia, Malaysia, the United States (twice, Washington D.C. and San Francisco) and I also spent a lot of time in Portugal, because my father was a diplomat – so this led to my early interest in all things international. When I attended university in Australia in the 1980s there were fewer possibilities to study international law than there are now. At that stage I was mainly interested in subjects which concerned people and their rights like criminal law, evidence, criminology, constitutional law and family law. In conjunction with my Bachelor of Laws (LLB) degree at the Australian National University, I also studied psychology as a double major in my Bachelor of Science degree (BSc), so my initial interests at university were always “people oriented”.
After working for seven years in private law firms and the public sector (at the Office of the Director of Public Prosecutions, NSW (DPP)), I did a Masters of Law (LLM) at Cambridge University in the UK. That’s where my interest in international law, especially international criminal law and international human rights law, really developed. In the previous few years, the war in the former Yugoslavia had been raging, and I had followed the media coverage and taken a keen interest in the newly created ad hoc tribunal, the International Criminal Tribunal for the former Yugoslavia (ICTY). When I got to Cambridge in 1995, I was delighted to see that what was heralded as the world’s first Masters course in International Criminal Law would be taught by (then visiting) Professor John Dugard. I signed up immediately (together with international human rights law, civil liberties law, philosophy of criminal law and international law in modern conflicts). Professor Dugard brought to the first lecture the International Law Commission’s draft Statute for an International Criminal Court (which he and others had prepared), and from that moment, I was “hooked” on the area.
After graduating from Cambridge, I did an eight-month internship in the ICTY’s Office of the Prosecutor (OTP), sponsored by the DPP (NSW). Assigned to the team investigating and prosecuting sexual and gender-based crimes, I helped to draft indictments for rape and other sexual violence crimes, and to collect evidence to support the recently issued indictments against Radovan Karadžić and Ratko Mladić. After that initial ICTY stint, I returned to work in Australia again at the NSW DPP for another four years, but I couldn’t stop thinking about my experience there and tried to stay connected with international criminal law by writing articles and giving talks. And then I became a member of Australia’s delegation to the ICC Rome negotiations, which really cemented my passion for the area.
At some deeper level, I think I’m also drawn to this area because of my mother’s and grandparents’ experience of fleeing the Nazi persecution in Poland in 1940 to live in Shanghai (much of the time under Japanese occupation), before settling in Australia. My grandmother studied law in Lwów, Poland (now Lviv, Ukraine) at the same university as attended by Raphael Lemkin (the person who coined the term genocide and initiated the Genocide Convention). I like to think they knew each other, although it’s more of my own “ICL daydream” since she was a bit younger than him and would have been starting her law studies when he was finishing his. My grandmother worked for a short time as an associate to judges and had wanted to be a judge in juvenile justice, before her work possibilities were cut short by events taking place in Poland. It makes me sad to think that her work and life potential were so marred, and that so many of their family and others who stayed in Poland lost their lives and suffered so much – but at some fundamental level I think this also motivates me in this area of law.
What moments of your career have resonated the most for you?
Each stage of my career has been interesting and helped to develop me as a lawyer. I spent my first four years working in large commercial law firms, in San Francisco and Sydney, doing commercial matters, complex commercial litigation and white-collar criminal defence work. Even though I was not so enthused by commercial law, I did gain useful skills in litigation, drafting, research and analysis, and court work and strategy. For several months, I was the seconded lawyer from my Sydney law firm to a community legal centre where I advised people, represented them in court, assisted them with victims’ compensation applications, apprehended violence orders, family law matters, and bail applications, and defended them in criminal matters in the local courts. I liked working directly with clients on their legal issues, and on so many varied files. It was very different from the large, multi-defendant and more “impersonal” commercial cases I did at my law firm.
That experience inspired me to focus more on criminal law, and I was fortunate to get a job as a prosecution legal officer in the Trials Unit at the Office of the Director of Public Prosecutions (NSW) in Sydney. I found the segue from commercial practice to criminal prosecutions quite straightforward, mainly because the cases were fascinating and much easier to relate to than the dryer commercial cases I had previously worked on. I enjoyed going to Court almost every week as a DPP solicitor in trials before the District and Supreme Courts of NSW and appearing in different courts in arraignments, bail hearings, other defended matters, sentences and all-grounds appeals. I vividly recall my first day at work at the DPP: I noticed a tall stack of yellow files on my desk and asked my supervisor whose they were. He told me they were assigned to me for court the next day! After getting over the initial shock, I grew to love the responsibility that the job entailed. From a personal level, the hardest trials to do were the murder trials, especially when young children were involved. I was the DPP lawyer in two cases, tried almost back-to-back, where young teenagers had been killed by other young people. I spent a lot of time with the victims’ families, and their pain was palpable. Although I knew their sorrow could not be erased, I hoped that somehow the trials and my role in them could ease their pain in some way – at least allowing them to resume their lives. The rape and sexual assault trials were also difficult and unfortunately, it being the mid-1990s, in some cases I witnessed what appeared to be bias towards some complainants by the jury when issuing their verdicts.
When I returned to the DPP after my LLM and the ICTY, I worked directly for Nicholas Cowdery QC, the Director of Public Prosecutions, and the two Deputy Directors, as one of their professional legal assistants. The job involved advising on a different case (or cases) every day or so, and in-depth analysis of the evidence and law in each case to prepare my recommendations. The volume and turnaround of cases, and the high-calibre people with whom I worked, gave me a masterclass on assessing evidence and decision-making.
At this point I had one of the main highlights of my career. In early 1998, the Australian government was constituting its delegation for the Rome Conference, the UN negotiations to establish the International Criminal Court (ICC), and I was selected as the New South Wales representative on the Australian government delegation. Those five weeks in Rome were amazing– representing my country in the discussions and participating in drafting the Rome Statute, especially on general principles of criminal law, the trial and the appeal. It was my first experience in international negotiations – and looking back now, I know that at 33 years I was young at the time. But the atmosphere was very positive, and the purpose of the negotiations was so important, that it was really energising. It was exhilarating to walk out of the final plenary session on the last night of the Rome Conference knowing that we had just created the world’s first permanent International Criminal Court. I continued in the Australian government delegation at the ICC Preparatory Commission meetings in 1999-2000 in New York and other places and was very involved in drafting the Rules of Procedure and Evidence and aspects of the Elements Paper. I’m proud of our work in creating the Court’s unique criminal justice system which blends civil law and common law approaches. Like at the Rome Conference, when drafting the Rules, I worked with some great national delegates and civil society members, many of whom I still work with at the Court or in the context of my ICC work and who remain friends today.
Since 2001, I’ve been working exclusively in international criminal law. In that year I joined the OTP at the ICTY as an Appeals Counsel, and after four and a half years, became Senior Appeals Counsel. It’s hard to select only a few highlights from the several dozen appeals that I did in my 12 years at the ICTY. Each one led to important factual and legal findings, and established jurisprudence of importance today for the ICC and other international courts and tribunals. Some of my most memorable ones would be my first appeal in Kunarac where I argued the definition of rape in international law; being counsel in the Kvočkaappeal (Omarska camp case), an important case on torture and sexual violence; my role as lead counsel in Galić, where General Galić’s convictions for ordering the crime of terror for the shelling and sniping campaign against Sarajevo were upheld, and a life sentence imposed; being lead counsel in Strugar appeal concerning General Strugar’s command responsibility for shelling and destroying parts of Dubrovnik; arguing the Prosecution’s position on “joint criminal enterprise through tools” theory in Brđanin (which became one of the pre-eminent modes of liability at the tribunals); and my role as lead counsel in Šljivančanin & Mrkšićappeal, arguing an important international humanitarian law point on the duties of commanders when transferring prisoners of war to another unit. In the early days we also argued genocide appeal cases at the ICTR (in Arusha), which had incredibly tragic narratives. For me, what is important in this work is that the cases can provide victims with some measure of accountability and justice within a legal framework that also ensures due process and fair trials for accused persons.
I was Chef de Cabinet to the President of the Special Tribunal for Lebanon (STL), Judge Antonio Cassese, in the tribunal’s start-up year 2009, and it was interesting to help write the foundational documents for the court such as the Rules of Procedure and Evidence, practice directions, cooperation and sentence enforcement agreements, codes of conduct and the like.
I joined the ICC in 2014 as the Senior Appeals Counsel and Head of the Appeals and Prosecution Coordination Section in the OTP. This job has been a (continuing) highlight of my career. I lead a talented team of lawyers and other staff to conduct all final and interlocutory appeals, appear in appeal and other hearings, and advise on, coordinate, draft and review legal positions, submissions and strategy for trial teams and other sections. I’m also part of the Prosecutor’s senior management team and deputise to the Director of the Prosecutions Division, advising the Prosecutor on all cases and situations (and other issues) in the office.
Of the dozens of appeals I’ve led as Senior Appeals Counsel, the most memorable to date have been the first appeal hearing in Lubanga; the Al-Bashir immunities appeal; the Afghanistan appeal on authorising the investigation; the latest Gaddafiadmissibility appeal; the Ntaganda interlocutory appeal on rape and sexual violence against victims in the same armed force side as the perpetrators; the Ntaganda final appeal upholding his convictions and 30-year sentence; and the recent Gbagbo & BléGoudé appeal hearing (the first partially virtual international criminal appeal hearing). Again, it’s hard to choose highlights since each case is unique. I feel fortunate that through our legal arguments, we can help to positively shape international criminal law. My policy work as Chair of different Working Groups in the office, especially the Case Selection and Prioritisation Policy and the recent Completion of Situations Policy, have also been highlights.
What are some of the challenges that you've had, and how have you tackled them?
Challenges, yes, there have been a few. On a general level, there is the challenge of managing a very busy litigation practice in a complex and ever-developing area of law where the stakes for each case are very high for all concerned – the Prosecution, the Defence and the accused, and the victims (and sometimes, for States and other organisations).
I work with an excellent team of people, and believe that our best work comes from interaction, discussion, exchanging ideas and teamwork. In managing a number of people, and several complex pieces of litigation occurring simultaneously, I find it important to use “responsible delegation” –which means entrusting staff members to work on cases and projects as independently as possible, thereby increasing their own skills and sense of responsibility, while also directing positions and ensuring “quality control” for our written submissions and oral arguments in court. I’m not especially “hierarchically minded” and find it important to hear views from everyone involved in a matter before deciding on how to advise the Prosecutor or a trial lawyer or other colleague, or how to run an argument or a case. For appeals, it can also be challenging because we handle appeals from all trial and pre-trial preliminary and interlocutory decisions as well as all final trial judgments and sentences – which means that even though we were not “on the trial,” for each appeal case we need to get up to speed with a voluminous trial record with complex facts, and multiple different procedural and legal issues – often while juggling several different cases at once.
In terms of gender challenges, when I was a young lawyer in legal practice and in my first years at the ad hoc tribunals, at times I found it hard to be as assertive and confident in meetings and in the courtroom as I saw my male colleagues seemed able to be. But as I progressed, this became less of an issue as I grew in confidence, something also helped by others showing their confidence in me. I think that women need not try to emulate what may be described as a “masculine” style but instead should focus on their own strengths and “be themselves”. In other words, be as real and authentic as possible.
I must say, though, I still find it weird to attend meetings, discussions or panels where only a small number of women are present – this definitely needs to change in the international setting. Having been in numerous challenging discussions over the years, I suppose my “inner mantra” is to provide my best, most honest and authentic legal opinion, while remembering to listen to others and to treat them respectfully. And to never forget a healthy sense of humour – that’s really important for me.
Most of my cases at the DPP, the ICTY and the ICC, have involved very sad victim narratives, which can be challenging. I recall working at the DPP on some truly awful cases of child abuse, elder abuse and sexual violence. Likewise at the ad hoc tribunals and the ICC, the victims of our cases have most often endured horrendous pain and suffering. I’ve found that the best way to deal with this aspect of our work is to remember that by working as independently, objectively, impartially, and as best as we can, we can be of most help to the victims and other affected persons. And critically, it also means paying full attention to the fair trial and due process rights of accused persons.
I also recall many challenging discussions when drafting the ICC Statute, Rules of Procedure and Elements of Crimes, which often went very late into the night. As this was more than 20 years ago, fortunately I had youth on my side, because those negotiations required not just legal agility to follow the different proposals and to participate in the discussions, but also stamina and fortitude. I truly think that many articles and rules would never have been finally agreed to and adopted had it not been for the law of attrition – usually at its peak late in the night!
On a more surreal note, I remember as a DPP lawyer going on a “view” of a crime scene to an “adult entertainment club” (as they were euphemistically called) before a trial for rape and sexual assault by a client against some dancers at the club. The older male Crown Prosecutor with whom I went spent most of the time we were there apologising and saying to me that I “really shouldn’t have to see these things” – at one point he seemed so concerned, I thought he was going to cover my eyes or send me out of the venue.
The past year was particularly challenging for the OTP and the Court, dealing with the Covid-19 pandemic and, later in 2020, the US sanctions against the Prosecutor and another staff member. Because of the pandemic, virtually overnight we went from being an integrated group of people who spent our working hours together, to finding new ways to work as a team of dispersed individuals working from home – and this during an especially busy year. We even argued two full final appeal hearings remotely from our homes last year; it was challenging to manage all the lawyers involved in the virtual hearings and to present our coordinated oral arguments before the Appeals Chamber from our different locations. I think from all this we learned a lot about our own abilities, versatility and resilience. The US sanctions were stressful for the office, but we pulled through this difficult time as a team behind the former Prosecutor, Fatou Bensouda.
Do you have any advice for people, particularly women, hoping to work in international law?
I would say a few things. Firstly, if you want to work in a legal capacity in one of the international criminal courts and tribunals (or the newer justice accountability mechanisms), I advise that you preferably get at least five or six years of national experience - whether as a prosecutor, a defence counsel, a victims’ counsel, a judge’s associate, a junior judge or in litigation more broadly. It’s also important to get admitted as a lawyer in a national bar. I began to specialise in international criminal law practice from my mid-30s, but my previous base of domestic legal experience has been vital. Given that international criminal law largely concerns investigating and preparing cases for court and procedural matters, this will give you good grounding in legal practice and professional ethics. It’s important to know how things happen in your own system before working on procedural and evidentiary issues in an international one. And later in your career you’ll be less likely to regret not knowing what it was ever like to work in a domestic environment.
Even if you first start working as an intern or junior lawyer in the international arena, don’t be afraid to leave to get experience elsewhere (for example, in a national context or another international setting), before returning to international criminal practice. And whether you plan to be a prosecutor or a defence counsel, I would advise that you get at least some experience “on the other side” as this will make you a more rounded lawyer and help guard against an “us versus them” mentality.
If you are a young lawyer and keen on international law – and of course there are many different branches, international criminal law being just one – a good start is to become an intern, a visiting professional or a short-term secondee. You’ll get a feel for the work and meet people who can advise and help you in the field. Most internships and visiting professional positions in this field are still not paid, which can be problematic for those without the financial means to support themselves during an internship, but at the ICC, eligible applicants from certain developing countries can receive a monthly stipend and travel expenses through the Trust Fund for the Development of Interns and Visiting Professionals. Otherwise, it may be possible to approach your university or another institution for sponsorship. Further studies, for example in international criminal law, international humanitarian law, human rights and the like, writing papers and articles, or teaching and giving lectures will also open up opportunities.
Be careful not to stay in positions which don’t match your skills and experience for too long. After a while it’s important to seek professional opportunities commensurate with your abilities and level. I say this especially to women who sometimes do not do justice to their own skills and abilities: some stay as interns or in lower-level positions for too long. Be confident and believe in yourself: go out there and apply for jobs you are interested in, and seek work in which you can be truly appreciated for and shine in.
For women in particular, I also advise never to feel like you need to be “invited” into a meeting or discussion, to speak up or to apply for a job. If you want to speak in a meeting or join an email discussion but feel a bit shy or find that men are dominating the space, take the initiative and speak up. And support others in their views when you share them, especially when espoused by other women or men who may seem less assertive. And again, always be yourself, find your own inner strength and voice, and be real.
If you’re interested in court work or public speaking, it can help to develop advocacy or presentation skills. For women, this doesn’t mean adopting the identical style as your male colleagues, but rather, developing your own style and making it as effective as possible. You could participate in or judge mock trials, do trainings, give speeches and talks, or teach. I’ve learned a lot about advocacy techniques, both oral and written, from several excellent advocates with whom I’ve worked or trained with over the years. Always be humble and look for ways to learn and improve.
It’s also important that women support and mentor other women. In all my workplaces, I’ve been lucky to have a great group of women as both colleagues and friends. Working in this area can be stressful given the nature of our work and its volume and intensity – and for me it’s really important to both support women and have their support. Especially in meetings which might be dominated by men, it’s important to hear women speak out and for others to support their positions.
Mentoring more junior colleagues is also important. In 2019, I set up and chaired a working group in the ICC OTP for a mentoring program in which more senior women and men in the Prosecution Division mentor more junior female staff members. Many participants said they found the program and the coaching sessions useful. In addition to coaching on work and career development issues, the program helped break down some barriers between the different staff levels. We hope to revitalise the program, especially once a more usual work-from-the-office routine begins again. And mentoring needn’t always be part of a formal program – informal one-on-one chats between more senior and junior staff are also helpful. It’s all about investing time in staff and listening to them; invariably, the colleague will already know what to do and it’s a matter of helping to steer them in the right direction and emboldening them with confidence in their own ideas.
Finally, always remember your sense of humour – it will work every time (except in court, in general I recommend that you do not try it there.)