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Defense

The trials at the Special Court for Sierra Leone must respect the highest standards of international fair trial rights.  The highly charged nature of the trials – particularly for indictees from the CDF who were widely perceived to have played a key role in defending the nation from rebel attacks – underscores the importance of effective safeguards to ensure respect for the rights of the accused.  These rights, as enshrined in the International Covenant on Civil and Political Rights (ICCPR), are included in the SCSL Statute and Rules under Article 17 and Rules 33 to 46, respectively.  Justice must be done and be seen to be done through comprehensive application of these provisions.

By operating in accordance with international fair trial standards, the Special Court also can provide a model that the domestic justice system can look to as it rebuilds and reforms following the end of the civil war.  The Sierra Leone justice system, which was dysfunctional prior to the civil war and all but collapsed during it, has suffered from numerous problems.  Political manipulation and corruption have undermined the impartiality and independence of the courts.  Extended and unlawful detentions have taken place without due process.  Additionally, local courts presided over by traditional leaders or their officials that apply customary law, and are the only form of legal system accessible to an estimated 70 percent of the population, have also been characterized by serious abuses of due process.  These include discriminatory application of the law against women, illegal detentions, and excessively high fines for minor offences.82 

One of the most significant innovations in international justice at the Special Court, and one that can provide a major contribution to ensuring that the rights of the accused are upheld, is the establishment of the Defense Office.83  The Defense Office, particularly the principal defender, provides an important voice regarding issues of common interest to defense with other organs and units of the Special Court and the outside world.  The principal defender has advocated for amendments of the SCSL Rules with the judges and for additional resources for the Defense Office with the Registry.  The principal defender has spoken with accused in instances where conflicts regarding representation exist and communicated with governments and other parties to encourage them to respond to requests for cooperation by defense counsel.84  Additionally, the Defense Office has conducted outreach through meetings and radio interviews, in conjunction with the Outreach Section and independently, to inform the local population about the court and fair trial issues.85 

Currently, all indictees who are in custody are being represented by defense teams paid for by the Defense Office.  Defense teams enter a legal services contract with the principal defender and the Defense Office that requires defense teams to submit an overall case plan that includes a description of the work to be undertaken and a proposal of stages into which the case should be divided.  Subsequently, the teams must submit “stage plans” that describe work to be completed and the anticipated number of hours to be worked during each stage.  The payment for all expenses, including travel, is a set lump sum and the arrangement provides that up to 50 percent of the total amount available for a particular “stage plan” can be released to defense counsel prior to receipts being submitted.86  The release of funds at various junctures helps to ensure that defense counsel have access to some needed funds at appropriate moments.87

We believe that the Defense Office represents a deepening of practical experience drawn from the work of the ad hoc tribunals, all the more so in the case of extremely limited resources.  However, Human Rights Watch is concerned that several aspects related to defense – some of which are discussed in the introduction and relate at least in part to under funding of the court by donors – are undermining the Special Court’s ability to uphold fair trial rights.  These are:

  • inadequate logistical support available to defense teams;
  • lump sum payment structure for defense teams;
  • lack of suitable candidates to serve as investigators and delays in their appointment;
  • insufficient training of defense counsel and investigators; and
  • inconsistent translation.

We believe that these issues could contribute to a perception that rights of the accused are not protected and equality of arms is not adhered to by the Special Court.  We have below outlined our concerns in more detail.

A. Logistical Support

The lack of resources available to defense teams could constrain their ability to mount a vigorous defense.  The trials at the Special Court involve complex issues; they are expected to include testimony of more than one hundred witnesses and last many months, if not more than a year.88  It is essential that defense teams have appropriate facilities to prepare and present their cases.

SCSL Rule 45 provides that the “Defence Office shall fulfill its functions by providing, inter alia:…(iii) adequate facilities for counsel in the preparation of the defence.”  The Special Court’s Directive on the Assignment of Counsel further states that under Article 26 such facilities are to be provided by the Defense Office, and that failure of defense teams to utilize these facilities may result in a rejection of a claim for payment of outside resources in the preparation of the defense.89

The facilities provided by the Defense Office for defense teams have suffered from a lack of resources, which have hampered case preparation.  For example, as of March 2004, nine defense teams, including more than twenty defense attorneys, were provided with only three rooms in one “container”90 in which to work.  The Defense Office includes two additional rooms, but they are designated for duty counsel and U.N. personnel.91  This set-up limits the ability of defense teams to conduct confidential meetings.  While the Special Court will try nine defendants in three groups, the CDF, the RUF, and the AFRC cases, in addition to a possible trial of Charles Taylor, some defense strategies will undoubtedly involve implicating other defendants they are tried with, making the three room work space arrangement particularly problematic.  In recent months, the situation has improved, with increased space made available for defense teams.  As of this writing, an additional container was under construction in which defense teams will have access to half the container, including at least three offices (or as many as six if these rooms are split to increase their number).92 

Storage and access to fax and photocopiers remains an ongoing problem.  Each team is provided with one medium-sized filing cabinet to store all documents for their case and no shelving to store materials.93  Although a template for the legal services contract defense teams enter into with the principal defender and the Defense Office provides that defense counsel will be given “access to fax machines, photocopy machine, ink for printer, for the exclusive benefit of the Defence Teams,” defense counsel in fact share use of one photocopier with other units of the court and there is no access to a fax machine.94  Defense counsel are provided with three computers per room to share among each other and, for a period of time around March 2004, there was no Internet access during business hours.  Additionally, all defense teams are provided with only one vehicle to share among each other.95 

This is contrasted with resources available to the OTP.  Human Rights Watch was told, for example, that OTP office space consists of five containers, each OTP staff member has access to a computer, and storage includes filing cabinets, along with a separate location for storing evidence.96  During crucial stages of investigations, OTP staff had availability to vehicles, although at the beginning of 2004, due to budgetary restrictions, this was considerably cut back as well.  One Special Court staff member argued that because the Defense Office is located within the Registry, it “does not have the same voice as [the] OTP in requesting [the] budget” and explained that “maybe the [Defense Office] is not considered as seriously as the OTP because [the] standard of proof is different.”97  One defense counsel suggested that there has been “no real consideration of [defense]; OTP got all the money, defence was an afterthought.”98

Human Rights Watch recommends that the Registry immediately take additional action to ensure such adequate facilities, including by ensuring that defense teams are provided with adequate space to store documents and access to fax, photocopy, Internet, and computers.  Human Rights Watch urges that the registrar recommend additional funding as necessary to ensure that adequate resources are made available for defense teams.  Human Rights Watch further urges the Management Committee to support these allocations, and for governments or the United Nations to fund the provision of such resources.

B. Lump Sum Payment

The existing payment structure for defense counsel could create an incentive for counsel to work less even when case preparation and presentation require additional work.  In an effort to keep costs low and to avoid problems such as overpayment of defense counsel and fee splitting, the Special Court Defense Office will pay each defense team a lump sum for compensation and all expenses for the duration of representation of each accused.  This includes travel of international defense counsel between Freetown and their country of residence.99  The contract provides proposed hourly rates for members of the defense team, such as legal assistants and counsel, but there is a cap on the total amount of funds available to the team irrespective of these rates.100  Duty counsel, who represent the accused in the period between arrest and the assignment of permanent counsel and provide general legal research throughout the proceedings, are employed and paid directly by the Registry, as are team investigators.

The legal services contract stipulates that contracting counsel may request payment beyond the lump sum amount at the end of the trial for “Special Considerations” that may include “payments for additional professional fees arising out of the continuation of the trial of the Accused” past a pre-determined date or “the provision of services of an exceptional nature,” which are not defined.101  According to Special Court staff, “if [counsel] can demonstrate that [proceedings are] going on longer, [counsel] can get additional funds.102  However, the payment arrangement apparently establishes a cap on compensation regardless of the complexity of the case, the number of witnesses involved, and the number of hours counsel will appear in court unless the trial continues longer than the allotted period or services of an “exceptional nature” are provided.  Moreover, while it is conceivable that services of an “exceptional nature” could be interpreted broadly by the Defense Office to enable allocating additional funds to defense teams where the amount of necessary work to mount a vigorous defense exceeds the lump sum cap on compensation, the extent of resources available for this purpose remains unclear.103 

The limited opportunity for receiving additional compensation for work that is necessary to mount an adequate defense if the cap on compensation has been reached could undermine quality representation.  For example, Human Rights Watch was told that some international defense counsel have left matters involving international law to local counsel who do not have experience with these issues rather than make additional trips to Freetown.104  Human Rights Watch was also told that defense teams have allowed interns to conduct meetings with clients without supervision in some instances.105

The need to keep costs low and to avoid overpayment of defense counsel can not be accomplished at the expense of the defendant’s right to a fair trial.  Human Rights Watch recommends that the principal defender and the Defense Office amend legal services contracts to allow defense teams to petition for compensation beyond the lump sum cap if the team can demonstrate a serious need for hours of work and other expenses to prepare and present the case that exceed the cap.  Human Rights Watch further recommends deletion of the requirement of “exceptional circumstances” to obtain additional funds.  We urge the Registry to recommend making additional funds available to the Defense Office for this purpose, for the Management Committee to support this provision, and the United Nations and donor countries to fund it.

C. Appointment of Investigators

The lack of suitable candidates to serve as defense investigators and delays in their appointment raise serious concerns, as investigators are key to preparing a defense.  Defense teams are given the services of one full-time investigator from Sierra Leone who is drawn from members of the Sierra Leonean police.106  This is different from the Investigations Unit of the OTP, which includes both international and national investigators. 

There have been significant delays in the appointment of investigators to defense teams by the Defense Office.107  In some cases, investigators were only appointed in November 2003, despite efforts to secure an investigator since April of that year, and as of this writing, some defense teams still lacked investigators.108  If defense teams can make a showing that the failure or delay in the appointment of investigators has prejudiced the accused’s preparation of a defense, the accused should receive additional time to do so.

One of the challenges that has arisen in making appointments is that some accused do not want investigators assigned to their teams who have worked in the Sierra Leone police.109  In light of the affiliations of the accused, the connection of the Sierra Leone police to the government, and the history of warring factions targeting Sierra Leone police during the conflict,110 this is an understandable position.  At the same time, there is a need for investigators to have law enforcement or other relevant experience, particularly due to the interaction that investigators will have with witnesses and victims.  Balancing these issues, the Defense Office has permitted some exceptions to the requirement that investigators have law enforcement experience by hiring investigators selected independently by the accused on short-term contracts, on the condition of extensive supervision.111

Considering the difficulties in identifying suitable local candidates, Human Rights Watch believes that it is essential that the Defense Office be permitted to hire one international investigator for each defense team.  We believe that a separate international investigator is needed for each accused’s defense team so that confidentiality in preparation of a defense by each accused is maintained.  Human Rights Watch urges the Registry to recommend that the budget provide for the Defense Office to appoint one international investigator for each accused’s defense team, for the Management Committee to support this allocation, and for the United Nations and donor countries to fund it.  We further urge the Defense Office to take action to immediately address any outstanding requests for local investigators, and to develop procedures to expedite processing of future requests.

An additional concern is that appointments of investigators were expected to last six months during the second year of operations and three months during the trial.112  This is insufficient considering that many of the names of witnesses are not disclosed until six weeks before being called to testify during trial and that the OTP has had access to investigations throughout its operations over the past two years and during trial.  We are aware that it is now understood that some budgetary allocations for the Defense Office can be re-allocated as necessary to extend contracts of investigators.113  Human Rights Watch urges the Defense Office to make such extensions as necessary, and for additional funding to be made available for this purpose.  

D. Training

As the experience of the ad hoc tribunals has demonstrated, investigating, prosecuting, and defending cases involving serious crimes present significant challenges due to the  complex issues involved, the evolving nature of international criminal law and trial practice, the need for appropriate treatment of witnesses and victims, and the emotionally charged nature of the proceedings.  At the Special Court, the required structure of defense teams paid for by the court, in which some members may not have any experience in international criminal law, creates additional challenges.114  Under these circumstances, training for defense counsel and investigators is vital to ensuring quality representation.

As of March 2004 defense counsel had received only one training, which was provided by the United Kingdom Bar Committee, although the Defense Office is reportedly in the process of trying to set up an additional training for defense counsel.115  We recommend that the Defense Office hold trainings regularly for defense counsel on issues including substantive international law and treatment of witnesses and victims.  These trainings should be mandatory for all defense counsel, including international counsel that are in Sierra Leone when trainings occur.

Human Rights Watch was told that investigators appointed to defense teams have received no training, although the Defense Office is reportedly working to organize one training.116  Particularly due to the sensitive nature of many of the crimes alleged, including gender based crimes and crimes against children, investigators should receive training in conducting investigations on these types of crimes.  While we recognize that many investigations by defense teams are complete or in advanced stages, Human Rights Watch recommends that the Defense Office organize regular training for investigators working on behalf of defense teams.  We believe that this will help to enhance any future investigations, particularly for the AFRC trial that has yet to commence as of this writing, and additional investigations that may be needed during the RUF and CDF trials.

E. Translation

Adequate translation is an important aspect of ensuring the rights of the accused.117  While Special Court proceedings are conducted in English, translation into local languages, Krio and Mende among others, is made available.118  Initially, translation was provided in the form of continuous translation, whereby a person states several sentences and then the translator provides translation into a different language.  Prior to commencement of trials, translators were trained in simultaneous translation, whereby translation is provided – at the same time a person is speaking – into different languages to people wearing headphones.  Simultaneous translation is now utilized to provide translation during trial.119

Special Court staff characterized the quality of continuous translation during pre-trial proceedings as “iffy,” “poor,” “inconsistent,” and a “big problem,” although it reportedly improved over time.120  Since the start of trials, the quality of simultaneous translation has been described by some sources as quite good, while other sources report that it is “variable” and “not verbatim.”121  To ensure accurate translation, Human Rights Watch recommends that translators undergo ongoing intensive training in simultaneous translation.  It was suggested that an aspect of the poor quality of translations prior to the switch to simultaneous translation was the failure to utilize a standard lexicon for Krio and English, resulting in Krio being incorrectly translated into English, often through mistranslation of Krio words that are also English words, but have a different meaning.122  Efforts to address this issue would be an added component of training.



[82] For a more detailed discussion of problems with the Sierra Leone justice system, see Human Rights Watch, “The Jury is Still Out.”

[83] This office was created in part as a result of difficulties in handling defense issues at the ad hoc tribunals, including criticisms of overpayment of defense counsel and fee splitting between accused and defense counsel.  Human Rights Watch interview with defense counsel, Freetown, March 4, 2004; Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004.  Under Rule 45 of the Special Court Rules of Procedure and Evidence, a Defense Office is established within the Registry “for the purpose of ensuring the rights of suspects and accused,” and is headed by a principal defender.  The Defense Office performs a variety of functions, including providing initial legal advice by duty counsel, legal assistance if the accused does not have sufficient means to pay for it or as the interest of justice may so require, and adequate facilities for counsel in the preparation of the defense pursuant to Rule 45.  There are three people who serve as duty counsel at the Special Court.  In providing initial legal advice, duty counsel employed by the Defense Office are assigned to represent detainees from the time they are arrested, making sure that detainees understand their legal rights, until counsel is chosen by the detainee.  Once detainees have counsel, duty counsel continue to provide assistance to defense teams through general legal research and by taking positions on behalf of all detainees, such as on conditions of detention.  Human Rights Watch interview with two Special Court staff members, Freetown, March 3 and 4, 2004.

[84] Human Rights Watch interview with defense counsel, Freetown, March 4, 2004; Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004.

[85] Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004.

[86] Human Rights Watch interview with Special Court staff, Freetown, March 4, 2004; Legal Service Contract, Section 4.

[87] This also reflects an improvement over the ICTR, where delays for payment have existed.

[88]  “Sierra Leone war crimes prosecutors gather witnesses ahead of trials,” Agence France-Presse,May 5, 2004; Human Rights Watch interview with Special Court staff, Freetown, March 4, 2004.

[89] Article 26 of the SCSL Rules states: “(A) Assigned Counsel and members of the Defence Team who do not have professional facilities close to the seat of the Special Court shall be provided with reasonable facilities and equipment such as access to photocopiers, computer equipment, various types of office equipment, and telephone lines… (D) Assigned Counsel shall make all reasonable efforts to use the personnel and facilities of the Defense Office in the preparation of a Suspect or Accused’s case.  (E) The Principal defender may refuse to approve a claim for remuneration or portion thereof where Assigned Counsel fails to make such reasonable efforts to use the personnel and facilities of the Defense Office….”

[90] Offices in the Special Court, regardless of the unit, tend to consist of rooms within what are essentially pre-fabricated temporary structures roughly the size of two mobile home trailers that are referred to as “containers.”

[91] Human Rights Watch interviews with two defense counsel, Freetown, March 4 and 5, 2004; Legal Service Contract, Annex Two, on file with Human Rights Watch.

[92] Human Rights Watch telephone interviews with defense counsel, Freetown, May 17 and July 30, 2004.

[93] Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004; Human Rights Watch telephone interview with defense counsel, Freetown, July 30, 2004; Human Rights Watch interview with defense counsel, Freetown, March 4, 2004; see also Legal Service Contract, Annex Two.

[94] Human Rights Watch interviews with three defense counsel, Freetown, March 4 and 5, 2004; Human Rights Watch telephone interview, defense counsel, Freetown, July 30, 2004; Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004. See also Legal Service Contract, Annex Two.

[95] Human Rights Watch interview with defense counsel, Freetown, March 4, 2004; Human Rights Watch telephone interview with defense counsel, Freetown, July 30, 2004; Legal Service Contract, Annex Two.

[96] Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004.

[97] Human Rights Watch telephone interview with Special Court staff, Freetown, March 4, 2004.

[98] Human Rights Watch interview with two defense counsel, Freetown, March 5, 2004.

[99] Human Rights Watch interview with Special Court staff, Freetown, March 3, 2004; Human Rights Watch interview with defense counsel, Freetown, March 4, 2004.

[100] Legal Service Contract, Annex One, on file with Human Rights Watch (“These rates are only indicative.  It is the responsibility of the Contracting Counsel to ensure that the allocation of work between members of the Defence Team is efficient and that rates paid and allocation of work to members of the Defence Team ensures compliance with the maximum amount for payments under each Stage Plan.”)

[101] Human Rights Watch interview with Special Court staff, Freetown, March 3, 2004; Legal Service Contract, Section 4.

[102] Human Rights Watch interview with Special Court staff, Freetown, March 3, 2004.

[103] Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004.

[104] Ibid.

[105] Ibid.

[106] Ibid.

[107] Human Rights Watch interviews with defense counsel, Freetown, March 4 and 5, 2004.

[108] Defense teams can, in theory, hire investigators outside of this process, but doing so requires that they pay the investigator out of their lump sum compensation.  Human Rights Watch telephone interview with defense counsel, Freetown, July 30, 2004; Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004.

[109] Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004.

[110] See Human Rights Watch, “Getting Away with Murder, Mutilation and Rape.”

[111] Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004.

[112] Ibid.

[113] Ibid.

[114] Each defense team paid for by the Defense Office is required to include persons with sufficient experience in international criminal law, criminal trial law, including on serious crimes, and Sierra Leonean criminal law.  See Legal Service Contract, Annex Two, on file with Human Rights Watch, para. 21.  This requirement may contribute to ensuring quality representation, due to the requirement that at least one person on each team has criminal trial experience, although it may also mean that not all defense counsel have experience defending cases involving crimes under international law.  As noted in the legacy section below, this arrangement also contributes to the Special Court leaving a lasting impact in Sierra Leone. 

[115] Human Rights Watch interview with defense counsel, Freetown, March 4, 2004; Human Rights Watch interview with Special Court staff, Freetown, March 4, 2004; Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004.

[116] Human Rights Watch telephone interview with Special Court staff, Freetown, July 30, 2004; Human Rights Watch interview with Special Court staff, Freetown, March 4, 2004; Human Rights Watch interview with defense counsel, Freetown, March 5, 2004.

[117] ICCPR, Art. 14(3)(f); see also SCSL Statute, Art. 17(4)(f).

[118] Human Rights Watch interview with Special Court staff, Freetown, March 4, 2004.

[119] Human Rights Watch telephone interview with defense counsel, Freetown, July 30, 2004; Human Rights Watch telephone interview with Special Court staff, July 29, 2004.

[120] Human Rights Watch interviews with four Special Court staff members, Freetown, March 2 and 4, 2004.

[121] Human Rights Watch telephone interview with defense counsel, Freetown, July 30, 2004; Human Rights Watch telephone interview with Special Court staff, July 30, 2004.

[122] Human Rights Watch interview with Special Court staff, Freetown, March 4, 2004.


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