We write concerning the Draft Regulations of the Registry ("Draft Regulations") of the International Criminal Court ("ICC"), which are currently being finalized and for which comments have been requested. Human Rights Watch appreciates the opportunity to participate in the public consultation on the Draft Regulations and welcomes the Court's effort to promote transparency in the drafting process. The Draft Regulations will benefit from input from all actors with relevant expertise, including staff of the international ad hoc tribunals, the Special Court for Sierra Leone, human rights organizations, detention officials and lawyers' associations. The Registry Regulations are a key tool to ensure the effective and proper operations of the Registry and thus of the Court as a whole. Although the Draft Regulations will be subject to periodic review and amendment, it is very important to ensure that they are as clear and effective as possible at the outset.
The forgoing analysis includes reference to the Rome Statute of the International Criminal Court ("Rome Statute"), the Rules of Procedure and Evidence of the ICC ("RPE"), and the Regulations of the Court ("Court Regulations"). We believe it is crucial to ensure consistency of the Draft Regulations with the other instruments of the Court and make the interaction of these documents easier to understand by participants of the Court. In addition, the comments of Human Rights Watch include reference to the Statutes and the Rules of Procedure and Evidence of the International Criminal Tribunal for Yugoslavia ("ICTY"), the International Criminal Tribunal for Rwanda ("ICTR") and the Special Court for Sierra Leone ("Special Court"), as well as the relevant directives of the said tribunals, as a point of comparison regarding the practice of other tribunals. In this regard, Human Rights Watch believes that the Draft Regulations could also benefit from close consultation with the relevant officials of the international tribunals to learn from their experiences in the application of these instruments.
Please find below the observations of Human Rights Watch on the Draft Regulations, which have been outlined in accordance with the particular Draft Regulation at issue for ease of reference. We have limited our comments to areas of specific interest to us as a human rights organization and where we have expertise based on our experience working with the other ad-hoc tribunals, including the protection of victims and witnesses, victims' participation, legal representation and efficiency of court proceedings.
General Observations Concerning the Draft Regulations
Human Rights Watch welcomes the efforts of the ICC Registry to compile a comprehensive set of regulations governing different aspects of its work in one document. We believe the Draft Regulations represent an improvement to the practice of other international tribunals of having several different texts dealing with separate issues. Comprehensive regulations will assist in facilitating access to the Court by the different participants. To further facilitate access, Human Rights Watch recommends reference in the Draft Regulations to the applicable provisions of the Rome Statute, the Court Regulations, the RPE and any other legal instrument of the Court. This would ensure the Draft Regulations, as well as all other instruments of the Court, are "user-friendly" to participants.
Notwithstanding the above, we note at least one important function of the Registry, outreach and communications, has not been comprehensively addressed in the Draft Regulations. Pursuant to Article 43(1) of the Rome Statute, the Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. As such, the outreach and communications functions of the Court, which are essential to ensure that victims are aware of the mandate and function of the Court, should be addressed by the Registry. We believe that it is crucial to clearly and comprehensively enunciate this function of the Registry to prevent confusion within the different organs of the Court about which body executes particular responsibilities relating to outreach and communications. However, the Draft Regulations have not addressed issues related to the definition of different aspects of external communications, the responsibilities of respective organs, internal procedures related to outreach and communications, timing of communications and outreach work or the role of field offices.1 Based on our experience with other tribunals and particularly the Special Court, we understand that the institutionalization of communications functions, notably through the existence of written policies and procedures, has been instrumental in facilitating the work of the Special Court in this area. We understand that the ICC is currently finalizing its communications strategy. Drawing from that basis, we recommend that the Registry consider including a set of regulations that would adequately address the outstanding issues outlined above.
As a general matter, we note that the Draft Regulations only refer to the responsibilities of the "Registrar" or the "Registry." However, in practice, there are many divisions, units, or sections within the Registry that are involved in implementing its responsibilities. We understand that omitting reference to these bodies in the Draft Regulations will maintain a certain degree of flexibility in designing and modifying the structure of the Registry. However, we are concerned that omitting reference to these bodies might create confusion regarding their respective roles in the execution of the Registrar's mandate. Moreover, in a number of instances, mentioning the specific unit in charge would clarify issues related to access to confidential information. This is crucial to ensure the effective protection of participants. As such, Human Rights Watch recommends that specific reference to these bodies be made within the Draft Regulations wherever applicable.
CHAPTER 2 - PROCEEDINGS BEFORE THE COURT
Reg. 41(1) - This regulation deals with the publication of the Court's calendar of proceedings and provides that the dates set on the calendar shall serve as notice to the participants. However, we note that Regulation 41(1) only provides for the calendar to be posted on the website. It is imperative that notification be understood in the broadest sense to facilitate the participation of parties who do not have access to the internet. Therefore, Human Rights Watch recommends the amendment of this regulation to clarify that posting information on the ICC's website does not preclude the Registry's obligation to make reasonable efforts to notify participants of hearings using other means when participants do not have access to the online calendar of proceedings.
Arrangements for live testimony by means of audio or video-link technology
Reg. 51(3) - This provision, which outlines the different possible venues for the conduct of the audio or video-link testimony, should also consider issues of security and protection of persons testifying in determining the most appropriate venue to be used. Witnesses and victims providing testimony to the Court will likely face serious security, psychological and physical challenges. As such, all precautions should be taken to minimize possible further trauma and risks. Accordingly, Human Rights Watch suggests that the provision be rephrased as follows: "[...] the Registrar shall select the venue which is most conducive to the giving of evidence, while promoting the physical and psychological well-being of the person providing testimony, and shall consider in particular the following locations [...]."
Conduct of live testimony by means of audio or video-link technology
Reg. 52(5) - This provision allows that "silent observers from the participants other than those foreseen in rule 88, sub-rule 2" may be present when a witness or a victim will give testimony by means of audio or video-link technology. Rule 88(2) of the RPE indicates that counsel, a legal representative, a psychologist or a family member may be permitted to attend during the testimony of the victim or the witness. Since there is no other reference made to "silent observers" in the Rome Statute, the RPE, the Court Regulations or elsewhere in the Draft Regulations, we would appreciate further clarification regarding the definition of those "silent observers" not included in Rule 88(2). We recommend adding a non-exhaustive list of potential silent observers, which could include, for example, co-counsel or staff of the Victims and Witnesses Unit. This would eliminate confusion regarding the nature of these potential "silent observers."
Videoconference for victims
This provision states that, where required, a videoconference "may" be set up for victims and/or their counsel to enable their participation in the proceedings. Similarly, we note that pursuant to this provision, a direct telephone connection between victims and their counsel "may" be established. This use of discretionary language is problematic. The right of inclusion of victims and/or their counsel at all stages of the proceedings and the facilitation of communication between victims and their counsel should be reflected in the Draft Regulations. Accordingly, Human Rights Watch recommends the amendment of the provision as follows: "Where required, a videoconference shall be offered to victims and/or their counsel to enable them to participate in the proceedings under the conditions set out by the Chamber pursuant to rule 89, sub-rule 1. A direct telephone connection between victims and their counsel shall also be made available." This approach has already been adopted in relation to suspects and accused in Regulations 53 and 54 of the Draft Regulations.
Proposed Additions to the Draft Regulations
We recommend establishing, through an additional regulation, a "courtroom efficiency committee," composed of relevant members of the different organs of the Court. This committee could convene on a weekly or bi-weekly basis to discuss issues pertaining to the efficiency of court proceedings in each case. It should be clear that the committee would not address judicial issues, but instead would encourage coordination between the different sections within the Registry and other organs to address issues relating to its efficient functioning. We note that the Registry of the Special Court has undertaken a similar initiative, establishing a "judicial services coordination committee." This body includes representatives from the various organs of the Court and has examined issues including courtroom usage, the sharing of information about scheduling of witnesses, the advance preparation needed for particular witnesses, and technical matters related to equipment used in the courtroom. We believe the creation of this committee could promote efficiency with respect to the administration of the Court.
CHAPTER 3 - RESPONSIBILITIES OF THE REGISTRAR RELATING TO VICTIMS AND WITNESSES
Section 1 - Assistance to Victims and Witnesses
Human Rights Watch would like to make several preliminary observations regarding this chapter.
Beneficiaries of protection services and measures
According to Article 68(1) of the Rome Statute, the Court "shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses." The determination of the scope of beneficiaries of protection and support measures and services provided by the Court is clearly at the heart of this section. As outlined below in our more specific remarks, there are a number of differences in the Draft Regulations in terms of the services and protection offered to victims who appear before the Court, witnesses and persons at risk. In this regard, we strongly recommend the development of a policy that adequately addresses the protection of victim participants. The provision of protection services should be evaluated according to the level of security risk a person is subjected to because of his or her involvement with the Court, not according to his or her status as a witness or as a victim participant. Failure to do so may impede the meaningful participation of victim participants. 2
Moreover, we note that there is no definition in this section of "victims who appear before the Court," a phrase that is used throughout this section. The word "appear" could incur numerous interpretations, from the most narrow, meaning physical appearance before the Court for the purpose of testifying, to a broad interpretation, which would include participants who are not required to physically appear before the Court. However, we understand that the legal interpretation of this phrase will have to be decided by the judges of the ICC. At this stage, we simply wish to underscore that nothing in this section should be read in a way that could hinder a broad interpretation of the term "victims who appear before the Court."
Access to confidential information
As we noted above, the absence in the Draft Regulations of reference to specific bodies within the Draft Regulations may lead to confusion about the role of these bodies in the execution of the Registry's mandate. This concern is particularly relevant with respect to the Victims and Witnesses Unit of the Registry. In light of the highly sensitive and confidential information maintained in this unit, Human Rights Watch recommends specific reference of this unit in the Draft Regulations to avoid any misunderstanding regarding the handling of this information within the Registry. Moreover, this unit has been cited in Article 43(6) of the Rome Statute. As such, reference to it in the Draft Regulations would ensure consistency with the Rome Statute.
An important matter omitted from this chapter
There do not appear to be any provisions outlining the measures to ensure the separation of defence and prosecution witnesses, and victims in particular, from each other in the course of their involvement with the Court. This is especially important with respect to appearances during court proceedings. Such measures may be too lengthy to enumerate in the Draft Regulations. However, we recommend the inclusion of a general statement indicating the Registry's commitment to ensure such separation at all stages.
Services to victims and witnesses
Reg. 89(1) - This regulation states that in order to receive services provided by the Registry, such as relocation, accompanying support persons and dependent care, the relevant form must be completed by the appropriate organ, unit or legal representative. It would be helpful to include in this provision the applicable procedure in emergency cases where, for example, relocation is urgently required and there is not enough time to complete the appropriate form.
Reg. 93(1) - According to this sub-regulation, the provision of an incidental allowance for personal expenses "may" be provided to witnesses, victims who appear before the Court and persons as risk, including accompanying support persons. However, pursuant to Regulation 91(2), witnesses, victims who appear before the Court and persons at risk "shall" receive an incidental allowance when they have chosen not to accept full board and accommodation. In the event that this provision was intended to outline additional circumstances (other than those outlined in Regulation 91) whereby witnesses, victims and persons at risk will receive an incidental allowance if they refuse full board and accommodation, this should be clearly stated to avoid confusion. One possible revision is as follows: "An incidental allowance may be provided to witnesses, victims who appear before the Court and persons at risk at any stage of their journey in circumstances other than those outlined in Regulation 91(2). An incidental allowance may also be provided to accompanying support persons who require overnight accommodation at any stage of their journey." Human Rights Watch also recommends including guidelines under which this discretionary power is exercised to ensure transparency in the allocation of the incidental allowance.
Reg. 93(2) - Human Rights Watch welcomes the inclusion of this provision, which states that the Registrar must publish the table of the rate of incidental allowance annually. Clearly outlining the applicable rate of any allowance paid by the Registry promotes transparency regarding the entitlements received by witnesses, victims who appear before the Court and persons at risk, including accompanying support persons. It also discourages questions or speculation regarding the motives of a witness or a victim who appears before the Court.
Reg. 94(1) - This section provides that an attendance allowance will be paid to witnesses as compensation for wages, earnings and time lost as a result of testifying. We note that this regulation excludes victims who appear before the Court. Human Rights Watch acknowledges the limited resources of the Court. However, we are concerned that excluding victims who appear before the Court from this provision will limit accessibility to the Court by victims who cannot afford to leave their home and job for a period of time. We accept that the Court cannot pay an attendance allowance to victims who decide freely and voluntary to come to The Hague to attend the proceedings. However, exception should be made for victims who may be invited by the Court to present their views as participants in The Hague.
Extraordinary allowance for lost earnings
Reg. 95(1) - This provision, which outlines the Registrar's discretion to provide an extraordinary allowance for lost earnings to witnesses, does not indicate any criteria for consideration by the Registrar in making a determination. To avoid any insinuation of arbitrariness, Human Rights Watch recommends the inclusion of a list of factors that the Registrar will consider in assessing eligibility for extraordinary losses. It would be helpful to consult with officials of the ICTY regarding their experience in the application of Article 8 of the ICTY Directive on Allowances for Witnesses and Expert Witness. This Directive addresses the criteria to be considered for allocation of compensation for extraordinary losses to witnesses. Additionally, to further encourage transparency, Human Rights Watch recommends the amendment of this provision to require the full disclosure of the payment of any extraordinary allowances (and supporting receipts) to the participants.
Healthcare and well-being
Reg. 98(2) - We welcome this regulation, which highlights the development of local support networks to address the health and well-being concerns of victims who appear before the Court, witnesses and persons at risk. However, it should be revised to take into account the reality that some local communities may lack the resources to adequately address these concerns. Further, in some situations, the local civil society networks might not be well-established. Accordingly, this provision should be amended to state that where it is not feasible for local networks to address the health and well-being of the said persons, the Registry will endeavor to provide the necessary services.
Accompanying support persons
Reg. 100(2)(g) - This sub-regulation highlights the need to consider whether a witness, victim or person at risk is a "victim of sexual assault" in assessing eligibility to bring an accompanying support person to the Court. We recommend the amendment of this provision to replace "victim of sexual assault" with "victim of sexual or gender violence," which is the language employed in Article 68 of the Rome Statute. Employing the language of the Rome Statute, in addition to ensuring consistency, would allow the Registry to consider a broader group of victims, namely victims of sexual assault as well as victims of gender violence, in assessing eligibility to bring a support person to the Court
Reg. 101(2) - This provision states that the procedures and measures used to ensure the safety of witnesses, victims appearing before the Court and persons at risk, including support persons, "shall be confidential." These confidential "procedures and measures" could include, for example, the location of safe houses for witnesses, relocation strategies, and updated security information about persons under the protection of the Court. However, it is unclear who has access to such information. Here again, we note that clear reference to the relevant units or organs of the Court who are authorized to have access to this information could contribute to establishing a secure environment. This could in turn help prevent the inadvertent disclosure of this extremely sensitive information. Absent a clear specification of the relevant unit in the Registry, we recommend referring to Regulation 97(2) of the Draft Regulations in this provision, which creates a secure electronic database for all confidential information that can only be accessed by certain staff members of the Registry. It may also be necessary to include reference to other relevant bodies of the Court that require this information, such as the Office of the Prosecutor. This would ensure the careful handling of information regarding the safety procedures and measures that are used to protect victims and witnesses.
We also recommend revising this provision to more precisely indicate the type of information that is considered confidential. This would preserve the Registry's discretion to disclose general information about security measures, when necessary, to persons outside of the Registry, without disclosing the precise details of these measures that would put individuals at risk. For example, when appropriate, the Registry could confirm that the Court has set up safe houses, without disclosing their location. This would therefore allow the Registry to discuss particular cases with, for example, NGO officials providing assistance to victims or potential witnesses in determining the risks associated with their involvement with the Court. As such, one possible amendment is as follows: "The operational details of the procedures and measures used shall be kept confidential."
Regulation 103 provides an overview of protection measures that are available to conceal the identity of witnesses, victims who appear before the Court and persons at risk. The measures outlined in this provision are almost identical to those outlined in Rule 87 of the RPE. However, there are certain protective measures outlined in Rule 87 that have not been included in this provision. We recommend including all measures listed in Rule 87(3) in this regulation. For example, reference should also be made in this section to the expunging of the name of the victim, witness or other person at risk or any other information that could lead to his or her identification pursuant to Rule 87(3)(a). Further, we recommend the revision of this provision to clarify that these measures are only available upon the order of a Chamber pursuant to Rule 87(1) of the RPE. This would eliminate confusion regarding the powers of the Registry with respect to this sensitive matter.
Reg. 105(4) - This provision states that entry into the protection programme shall be subject to the approval of the Registrar. However, there is no procedure outlined in the event the Registry denies an application. We therefore recommend the inclusion of an appeals procedure in this regulation, in case of refusal by the Registrar.
Restriction for witnesses to visit the detention center
This provision states that witnesses traveling to the Court for the purpose of testimony will not be granted permission to visit accused persons before they have completed their testimony. In light of the possible need for exceptions to this rule (expert witnesses testifying for the defense, for example), Human Rights Watch considers that this matter would be better addressed by a Court decision. As such, since this is more appropriately a matter of judicial discretion, we recommend the deletion of this regulation from the Draft Regulations. Instead, we recommend including this provision in the Court Regulations.
Section 2 - Victims Participation and Reparations
The comments of Human Rights Watch in this section reflect the understanding that the objective of these regulations should be to ensure the secure and effective participation of victims in proceedings.
Standard application forms
Reg. 113(1) - We welcome this regulation, which states that standard forms for participation and reparations "will, to the extent possible, be made available in the language(s) spoken by the victims." The possibility of communicating with the Court in a language that one understands and speaks is central to enabling the effective involvement of victims with the Court. In this regard, we also recommend indicating in this provision that the explanatory manual accompanying the forms should be made available in local languages.
Receipt of applications
Reg. 115(1) - This provision indicates that applications may be submitted "at the seat of the Court or at a field office of the Court." Field or liaison offices, as well as the presence in these offices of staff dedicated to the implementation of victims' rights under the Rome Statute, are of crucial importance to ensure effective participation of victims in the proceedings. However, there is no method of submission outlined in the Draft Regulations addressing the situation where a field office is not available. Further, there is no procedure outlined for submission of an application where a victim, and/or a local NGO acting on his or her behalf, cannot access a field office and is otherwise precluded from submitting an application to the seat of the Court. This may be because of, for example, the absence of a reliable postal system or safety considerations. As such, to maximize access to the Court, Human Rights Watch recommends the expansion of this provision to address the situation where such impediments may exist. In this regard, we recommend the inclusion of an additional provision indicating that the Court will endeavor to enter into partnership arrangements with, but not limited to, embassies, inter-governmental organizations and international NGOs which could relay applications for participation.
Reg.115(2) - This provision states that when an application is submitted by an unrepresented victim in a language other than one of the working languages of the Court, the Registry must either contact the victim requesting a translation, or request the interpretation and translation service within the Registry to assist or to translate the application. However, it is unclear whether the victim is responsible for the costs of translation, or whether such costs are borne by the Registry. In order to maintain flexibility regarding payment, it may be helpful to indicate that the Registry will assist the victim with payment if he or she is unable to assume the costs of translation. This provision should also make reference to the criteria used to evaluate the ability to fund such translation.
Legal assistance paid by the Court
Reg. 123(2) - This provision outlines the criteria used by the Registrar in determining whether to grant legal assistance to victims. Among other factors, the Registrar must consider "the possibility of asking the Office of Public Counsel for Victims to act and the availability of pro bono legal advice and assistance." First, it is unclear why this provision refers to "the possibility of asking the Office of Public Counsel for Victims to act." The possibility of asking this Office to act does not provide insight into the available resources of the person making an application for assistance. However, we agree that any assistance that is provided by this Office should be considered by the Registry in making a determination. As such, we would suggest the amendment of this provision to take into account "the availability of assistance by the Office of the Public Counsel for Victims," as outlined with respect to pro bono assistance. We think that this would result in a more accurate assessment of the resources that are available to a victim.
Second, with respect to the availability pro bono assistance, we agree that this is a relevant factor for consideration. However, it might not be feasible to expect private lawyers to remain available for the entire duration of lengthy and complex procedures. Moreover, even if such assistance is available, it would be important for the Court to at least cover the incidental expenses incurred by taking up victims' representation. This could include, for example, the travel expenses incurred by pro bono counsel in order to consult with his or her client(s) and/or participate in proceedings before the Court.
Subsection 5 - Office of Public Counsel for Victims
Upon review of the provisions relating to the Office of Public Counsel for Victims, there is no indication regarding the circumstances or the applicable procedure under which the Office of Public Counsel for Victims can act. For example, it is unclear whether a victim can make a request for assistance that is reviewed and decided by the Office of Public Counsel for Victims, or whether the Court makes a determination based on a victim's application and subsequently orders the Office of Public Counsel for Victims to act. Human Rights Watch strongly recommends the inclusion of criteria regarding when the Office of Public Counsel for Victims takes action in a case, and the procedure for doing so to ensure transparency.
Independence of the members of the Office
Reg.125 (1) - This provision states that "the members of the Office of Public Counsel for victims shall not receive any instructions from the Registrar in relation to the conduct of the representation of a person entitled to legal assistance under the Statute and the Rules." This provision therefore leaves open the possibility that the Office of Public Counsel for victims could receive instructions from the Registry regarding other matters outside of representation. By contrast, Regulation 81(2) of the Court Regulations states that "the Office of Public Counsel for victims shall fall within the remit of the Registry solely for administrative purposes [...]." By clearly indicating the limited circumstances under which the Registry can instruct the Office of Public Counsel for victims, this provision of the Court Regulations safeguards the independence of this Office in all other matters. This independence is crucial to establish the credibility of legal assistance provided by this Office to victims, who are a party to the proceedings. As such, we recommend the revision of this provision to indicate that the Office of Public Counsel for Victims shall fall under the ambit of the Registry "solely for administration purposes." This would ensure consistency with Regulation 81(2) of the Court Regulations and avoid confusion regarding independence.
Functions of the Office
Reg. 126(1)(d) - This provision states that the Office of the Public Counsel for Victims shall provide support and assistance to legal representatives of victims. This provision also states that this Office may act as duty counsel when requested to do so by the Court. In this regard, it would be helpful to clarify the distinction between the notions of "legal representative" and "duty counsel" in the Draft Regulations to avoid confusion amongst victims. Drawing on regulations 73(1) and 75(2) of the Court Regulations, as well as Regulations 224(5) and 229(3) of the Draft Regulations, it appears that the appointment of duty counsel is considered more of an "interim" measure until proper legal representation can be established. However, this may not be apparent to unrepresented victims.
CHAPTER 4 - COUNSEL ISSUES AND LEGAL ASSISTANCE
Section 2 - Provisions Relating to Legal Teams
We appreciate the principled stand of the Registry in addressing the issue of legal representation in a manner that reflects its concern to ensure the equality of legal representation for defence and victims. However, it may be necessary to adopt a more flexible approach with respect to the qualifications of assistants to counsel and investigators that are eligible to provide assistance to victims. Failure to do so could result in disqualifying local professionals or NGOs who may be well-placed to address victims' expectations and needs but do not meet these standards. This is addressed in more detail below.
Another general observation concerns the issue of "equal access and geographical distribution" to opportunities. The reference in Regulation 149 of the Draft Regulations to the Registrar's obligation to take all necessary steps to encourage geographical and gender distribution of training opportunities for legal representatives wishing to appear before the ICC is commended. Human Rights Watch strongly recommends that similar references be made in Regulations 132, 133 and 135 of the Draft Regulations dealing with the list of counsel, assistants to counsel and professional investigators, respectively, to encourage geographic and gender diversity amongst these important actors in the ICC.
Duties of the Registrar in relation to the defence
Reg. 129(1) - This provision outlines the duty of the Registrar to give full effect to the rights of the defence "and in pursuance to the provisions of rule 20." Rule 20 of the RPE states the responsibilities of the Registrar with respect to the defence. In this regulation, it is unclear what is meant by the phrase "in pursuance to the provisions of rule 20." We note that none of the responsibilities of the Registrar listed in Rule 20 of the RPE are mentioned in this regulation. In the event this provision was intended to supplement the responsibilities of the Registrar with respect to the rights of the defence that have already been articulated in Rule 20 of the RPE, it is recommended that this should be clearly stated in this regulation. Alternatively, as this partial list of the Registrar's duties can lead to confusion regarding the responsibilities of the Registrar with respect to the defence, it may be helpful to list all of the duties of the Registrar in this Regulation, including those already articulated in Rule 20.
Appointment and qualifications of professional investigators
Reg. 134 (1) - This provision states that "a professional investigator shall have established competence in international or criminal law and procedure, as well as not less than ten years of relevant experience in investigative work in criminal proceedings at (sic) national or international level." As noted above, we recommend adopting a more flexible approach regarding investigators that provide assistance to victims. However, we are also mindful of the need to maintain, to the greatest extent possible, high standards with respect to the assistance provided to victims by investigators during proceedings. As such, one possible addition to the provision is as follows: "The requirements outlined in this provision may only be waived by the Registrar with respect to victims where there are insurmountable obstacles to their fulfillment."
Reg. 134 (2) - This provision outlines the procedure for the appointment of a professional investigator by the Registrar at the request of counsel or an accused choosing to represent him or herself when the legal costs are paid by the Court. However, the appropriate procedure for the appointment of professional investigators when legal costs are not borne by the Court is unclear. In the event that counsel and an accused representing him or herself can appoint a professional investigator when costs are not paid by the Court, it would be helpful to state this explicitly to avoid confusion. We note that this procedure was outlined with respect to the appointment of assistants in Regulation 137, and recommend a similar approach in this provision.
Assistants to counsel
Reg. 135(2) - This provision states that other persons assisting counsel must have either five years of relevant experience in either criminal proceedings or international criminal law and procedure. As noted above, Human Rights Watch recommends that greater flexibility be used with respect to victims in assessing the qualifications of other persons that possess relevant and necessary expertise to assist counsel outside of the courtroom, but lack the requisite years of experience or familiarity with the legal technicalities of criminal proceedings. Such flexibility would allow the participation of, for example, representatives of NGOs who are well positioned to provide crucial assistance in dealing with victims. Therefore, we recommend a similar amendment to this provision that would allow the Registry to maintain the discretion to waive these requirements under certain limited circumstances, as outlined above in relation to Regulation 134(1) of the Draft Regulations.
Assistance by the Registry
Reg. 138(1) - The regulation states that the Registry only has an obligation to provide the list of counsel to those persons "entitled to legal assistance." However, we believe that the Registry has the duty to provide the list of counsel, investigators and assistants to those persons seeking legal assistance, as well as those entitled to legal assistance. As such, we recommend that reference to persons seeking legal assistance be added to this provision.
Procedure for applications for legal assistance paid by the Court
Reg. 141(1) - This provision states that "as soon as the Registry contacts a person entitled to legal assistance under the Statue and the Rules in order to assist him or her in accordance with regulation 138, it shall provide him with the relevant form(s) in order to submit an application for legal assistance paid by the Court" (emphasis added). First, it appears that the purpose of submitting an application under this provision is to determine entitlement to legal assistance. As such, the use of the term "a person entitled to legal assistance" at this stage is misleading, since the evaluation of entitlement to legal assistance has not yet occurred. We recommend revising this provision to refer to "a person seeking legal assistance."
Further, based on the current construction of this provision, it appears that the only way to obtain an application for legal assistance is if the Registry initiates contact. However, a person in need of legal assistance should be permitted to contact the Registry on his or her own initiative. This approach would indeed be consistent with Article 7(A) of the ICTY Directive on Assignment of Defence Counsel ("ICTY Defence Counsel Directive"), Article 5 of the Directive on the Assignment of Counsel of the Special Court for Sierra Leone ("SCSL Counsel Directive") and Article 5 of the ICTR Directive on the Assignment of Defence Counsel ("ICTR Defence Counsel Directive"). In particular, each of these Directives refers to the right of the accused to make a request for the assignment of counsel. We recommend the revision of this provision accordingly.
Proof of Indigence
This provision outlines the procedure for applying for legal assistance in cases of indigence. However, there is no definition of indigence or partial indigence or any equivalent concept in this provision or elsewhere in the Draft Regulations, the Court Regulations, or the RPE.
The issue of legal assistance is mentioned in Article 55(2)(c) of the Rome Statute. This provision states that during an investigation, a person has the right "to have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it." This right to legal assistance without payment because of insufficient means is also referred to in Article 67(1)(d) of the Rome Statute, which outlines the rights of the accused. These provisions of the Rome Statute are very similar to Articles 18 and 21 of the Statute of the ICTY, Article 17(4) of the Statute of the Special Court and Articles 17(3) and 20(4) of the Statute of the ICTR.
However, the ICTY, the Special Court and the ICTR also have specific directives that more comprehensively address the issue of indigence, among other issues related to defence counsel. For example, Article 6(A) of the ICTY Defence Counsel Directive reiterates the entitlement of a suspect or accused that lacks the means to remunerate counsel to the assignment of counsel paid for by the Tribunal. Subsections (B) and (C) of Article 6 also clearly define what is meant by a person who lacks the means to fully or partially remunerate counsel. Similar statements can be found in Article 4 of the SCSL Directive and Article 4 of the ICTR Defence Counsel Directive.
Accordingly, as established by the practice of other tribunals, Human Rights Watch recommends the inclusion of a definition of indigence and partial indigence in the Draft Regulations. Such transparency is essential to ensure that a person applying for legal assistance has a clear understanding of the standard being used for the assessment of his or her application.
In addition to the absence of a definition of indigence and partial indigence, there is no reference to the criteria for assessing a person's request for legal assistance in the Draft Regulations. Moreover, there is no mention of the appeal rights of a person when denied legal assistance in this regulation in the Draft Regulations. Instead, these issues have been addressed in Regulation 84 and 85, respectively, of the Court Regulations. By contrast, the ICTY Defence Counsel Directive, the SCSL Counsel Directive and the ICTR Defence Counsel Directive all contain reference to the criteria for assessment and a person's appeal rights within the section addressing the procedure for the assignment of counsel.
Therefore, Human Rights Watch recommends the amendment of this regulation to clearly articulate that to the criteria for assessment of indigence and the appeal rights are found in Regulations 84 and 85 of the Court Regulations. As outlined at the beginning of this paper, it is very important that the practical rules and regulations of the Court are as accessible and user-friendly as possible and, where feasible, contained in one document. In this regard, we also recommend that upon future review of the Court Regulations by the Legal Advisory Committee, consideration be given to transferring these provisions of the Court Regulations into the Registry Regulations to avoid confusion.
Fees paid to counsel and team
Reg. 144(1) - This provision, which refers to a fixed fee scheme consisting of a maximum allotment of funds for each stage of the proceeding, may be problematic. We understand the need to keep costs low and to avoid overpayment of counsel. However, this should not be accomplished at the expense of effective and quality legal representation. Therefore, we recommend the amendment of this regulation to allow legal teams to petition for additional compensation if they can demonstrate a serious need for additional hours of work or expenses that exceed the maximum allocation.
Section 5 - Office of Public Counsel for the Defence
As with the Office of Public Counsel for Victims, this section does not address the circumstances under which the Office of Public Counsel for the Defence may act, nor does it outline the procedure for involving the Office of Public Counsel for the Defence in a case. Human Rights Watch strongly recommends that criteria are established regarding when the Office of Public Counsel for the Defence takes action, and the procedure for doing so, to ensure transparency.
Independence of the members of the Office
Reg. 151(1) - This provision states that the Office of Public Counsel for Defense shall not receive any instructions from the Registrar in relation to the conduct of representation of a person entitled to legal assistance. By contrast, Regulation 77(2) of the Court Regulations states that the Office of Public Counsel for the Defence shall fall under the ambit of the Registry "solely for administration purposes." As noted above with respect to the Office of Public Counsel for Victims, Human Rights Watch strongly recommends the revision of this provision to clearly state that the Registry may only exercise its authority over administrative issues. Maintaining the independence of this Office from the Registry is essential to ensure the credibility of the assistance provided by this Office to the Defence. This would ensure consistency with the Court Regulations and would avoid confusion regarding the independence of the Office of the Public Counsel for defence.
Important Issues Omitted from the Draft Regulations
There are a number of crucial issues relating to counsel that have either been inadequately addressed or omitted entirely in the Draft Regulations. This is particularly relevant with respect to a suspect and/or an accused, as these deficiencies may adversely affect the fairness of the trial. An effort has been made to highlight those serious issues that require immediate attention. However, Human Rights Watch strongly recommends the revision of the Draft Regulations in light of the ICTY Defence Counsel Directive, the SCSL Counsel Directive and the ICTR Defence Counsel Directive. We also encourage consultations with representatives of the aforementioned tribunals to ensure that all issues relating to counsel have been adequately addressed.
Status of Counsel
With respect to the status of assigned counsel, there is no comprehensive list of criteria in the Draft Regulations or elsewhere that must be met in order to be considered on the list of counsel eligible to appear before the Court. It should be noted that there is some reference to the necessary qualifications of defence counsel in Rule 22(1) of the RPE and Regulation 67 of the Court Regulations. In particular, Rule 22(1) states that defence counsel must have established competence in international or criminal law and procedure and have the necessary relevant experience in criminal proceedings. Further, counsel for the defence must have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Regulation 67 of the Court Regulations states that counsel for the defence must have 10 years of experience, and should not have been convicted of a serious criminal or disciplinary offence considered incompatible with the nature of the office of counsel before the Court.
However, it appears that these qualifications are not exhaustive. Pursuant to Regulation 69(2)(b) of the Court Regulations, a person seeking to be included in the list of counsel is required to submit a certificate issued by each Bar association the person is registered with and the right to practice. As such, while Regulation 69 of the Court Regulations implies that Bar membership and the right to practice in other jurisdictions are required for inclusion on the list of counsel, these requirements have not been explicitly listed under the relevant provisions of the RPE or the Court Regulations.
In this regard, we refer to Article 14 of the ICTY Defence Counsel Directive, Article 13 of the SCSL Counsel Directive and Article 12 of the ICTR Defence Counsel Directive. Each of these directives clearly addresses the prerequisites for the placement of counsel on the list of qualified counsel in one provision. We recommend a similar approach in the Draft Regulations to avoid confusion. Further, the Draft Regulations should emphasize the need to maintain the integrity of the list of counsel by updating it on an ongoing basis to ensure the accuracy of the information provided by counsel.
In addition, we note that pursuant to Regulation 121 of the Draft Regulations, the list of counsel may also be issued to victims seeking representation. However, there is no indication of the criteria to be satisfied by victims' counsel for inclusion on the list of counsel. Accordingly, Human Rights Watch recommends that the Draft Regulations clearly articulate the requirements that all counsel must satisfy prior to inclusion on the list of counsel, or devise separate lists for defence and victim's counsel, to avoid confusion.
Scope of Assignment
Upon review of the Draft Regulations, the Court Regulations, the RPE and the Rome Statute, it appears that the issue of the scope of assignment of counsel has not been addressed. The failure to address such a sensitive issue is particularly relevant with respect to a suspect and an accused, as this could seriously undermine their right to representation during court proceedings. There is no provision addressing whether defence counsel can be assigned to more than one suspect or accused and if so, the circumstances under which this assignment is possible.
By contrast, Article 16 of the ICTY Defence Counsel Directive, Article 14 of the SCSL Counsel Directive and Article 15 of the ICTR Defence Counsel Directive outline the scope of assignment of defence counsel. As such, the Draft Regulations should be revised to address the issue of the scope of assignment, taking into consideration the provisions of the other ad-hoc tribunals. For example, it is recommended that the Draft Regulations clearly indicate that each indigent or partially indigent person shall be entitled to have counsel assigned to him or her. Further, with respect to the assignment of counsel to a suspect or an accused, it should be clearly stated that no counsel should be assigned to more than one suspect or accused unless all of the suspects or accused in question have received independent legal advice and have waived their right to be represented by separate counsel. It would also be helpful to clearly state in the Draft Regulations that counsel that have been assigned to an accused will be marked as unavailable on this list of counsel.
Withdrawal of Assigned Counsel
Upon review of the Draft Regulations, the Court Regulations, the RPE and the Rome Statute, it appears that the issue of a counsel's withdrawal is only partially addressed in Regulation 78 of the Court Regulations. This provision states that "prior to withdrawal from a case, defence counsel shall seek the leave of the Chamber." There are no other provisions outlining how the procedure of withdrawal should be carried out. In this regard, we refer to Article 19 of the ICTY Defence Counsel Directive, Articles 23 and 24 of the SCSL Counsel Directive and Articles 18 and 19 of the ICTR Defence Counsel Directive. Each of these directives clearly outlines the circumstances under which counsel may be withdrawn, and specifies the applicable procedure.
Accordingly, we recommend the amendment of the Draft Regulations to clearly articulate the applicable procedure for the withdrawal of counsel when the person being represented is no longer considered indigent. Further, reference should be made to those circumstances other than indigence when counsel may be withdrawn, such as when counsel has requested withdrawal or when there are outstanding disciplinary proceedings against him or her. The procedure for such withdrawal should also be outlined. Including a list of criteria and/or circumstances under which counsel may be withdrawn is important to promote transparency in the process, and is crucial to protecting the right to representation of a suspect or accused to ensure a fair trial.
Replacement of Counsel
Further, it appears that the issue of replacement of counsel has not been addressed. Once Chambers confirms a request for the withdrawal of counsel pursuant to Regulation 78 of the Court Regulations, there is no guidance regarding the appropriate procedure to replace counsel which preserves the rights of a suspect or an accused during the proceedings. In this regard, we recommend considering the procedure adopted by the other tribunals. For example, Article 20(A) of the ICTR Defence Counsel Directive states:
"Where the assignment of Counsel is withdrawn by the Registrar or where the services of assigned Counsel are discontinued, the Counsel assigned may not withdraw from acting until either a replacement Counsel has been provided by the Tribunal or by the suspect or accused, or the suspect or accused has declared his intention in writing to conduct his own defence."
Similar provisions are found in Article 20 of the ICTY Defence Counsel Directive and Article 25 of the SCSL Counsel Directive. Human Rights Watch strongly recommends the inclusion in the Draft Regulations of a similar procedure that is mindful of the need to protect the rights of a suspect and/or an accused in the event a decision is made to withdraw counsel.
CHAPTER 5: DETENTION
Section 3 - Management of the Detention Centre
Reg. 203(6) - This provision outlines the applicable procedure with respect to conducting a cavity search where it is suspected objects are being carried internally. Human Rights Watch recommends the revision of this provision to indicate that such searches should only be conducted in exceptional circumstances and should only be used as a last resort. One possible amendment is as follows: "The Chief Custody Officer, should he or she consider it necessary, and only after having exhausted all other means of detection, shall request the medical officer to carry out an examination of the detained person."
Further, we recommend the revision of this provision to indicate that a detained person is entitled to be examined by a medical officer of the same gender to ensure consistency with international standards. This is in line with the UN Human Rights Committee's General Comment 16 to Article 17 of the International Covenant of Civil and Political Rights, which states that "persons being subjected to body search by State officials, or medical personnel acting at the request of the State, should only be examined by persons of the same sex."
 In this regard, we refer to Non Paper nr. 4 of the CICC Communications Team, of which Human Rights Watch is a member, on the Draft Regulations of the Registry.