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III. Defense

A. Overview

Trials before the International Criminal Court must be fair to be credible. Full respect for the defendant’s rights at all stages of proceedings is, therefore, paramount. The International Covenant on Civil and Political Rights outlines the minimum guarantees that must be afforded to defendants in criminal proceedings.²³⁹ Consistent with those standards, the Rome Statute provides a number of rights to defendants in proceedings before the ICC, including: 1) the right to be present during trial; 2) the presumption of innocence; 3) the right to a public hearing; 4) the right to have adequate time and facilities for the preparation of the defense; 5) the right to counsel and legal assistance; 6) the right to be tried without undue delay; 7) the right to examine and call witnesses; 8) the right to interpretation and translation; and 9) the right to remain silent.²⁴⁰ These rights are also enshrined in other international tribunals’ statutes and have been incorporated in a number of domestic regimes.²⁴¹

Respecting a defendant’s fair trial rights in practice means that the ICC must ensure that the principle of “equality of arms” is consistently applied. Under this principle, each party to the proceedings must be afforded a reasonable opportunity to present his or her case under conditions that do not place the party at a substantial disadvantage vis-à-vis the opponent.²⁴² In interpreting the equality of arms principle, judges in ICC Trial Chamber I in the Lubanga case have underscored that “the minimum guarantees must be generously interpreted” to protect a defendant’s rights to a fair trial.²⁴³

Equality of arms does not require equality of resources between the prosecution and the defense.²⁴⁴ Indeed, the trial chamber has noted that it is “impossible to create a situation of absolute equality of arms” between the prosecution and the defense.²⁴⁵ In this regard, it is important to recall that the prosecutor has the burden of proof in each of its cases presented for trial. Further, under the Rome Statute, the prosecutor has an obligation to investigate both incriminating and exonerating circumstances equally.²⁴⁶ The challenge is in ensuring that both parties are afforded full equality of treatment so that the conditions of trial do not “put the accused unfairly at a disadvantage.”²⁴⁷

At the ICC, the evaluation of equality of arms must, furthermore, take into consideration the impact on the defense of victims participating in the proceedings. This includes proceedings in individual cases but also encompasses those in the situation phase.²⁴⁸ As discussed above in part I.C.1, to represent and protect the interests of the defense at the situation phase (before there is any specific defendant), the court has appointed ad hoc counsel to act on discrete issues that can arise.²⁴⁹ The court is presented with the challenge of making victims’ participation meaningful while at the same time protecting the fair trial rights of defendants.

The nature of proceedings and the gravity of the crimes at issue make high-quality defense representation in proceedings before the ICC essential. Effective defense representation ensures that defendants’ rights are adequately protected and promotes fair trials. It also improves efficiency in proceedings and helps the court develop a strong body of jurisprudence overall. To ensure top-tier representation of defendants, the ICC has adopted strict requirements that all defense counsel and their assistants must satisfy to practice before the court.²⁵⁰

Early proceedings before the ICC show efforts by ICC judges to respect a defendant’s fair trial rights. The court has, thus far, issued a number of important decisions aimed at preserving the equality of arms of defendants. For instance, proceedings have been postponed several times both in the Lubanga and Katanga and Ngudjolo cases, in part to ensure that the defendants have enough time to mount a proper defense.²⁵¹ Further, in June 2008, as already noted, Trial Chamber I suspended proceedings against Thomas Lubanga because the prosecution’s inability to disclose to the court potentially exculpatory information that it had collected under article 54(3)(e) of the Rome Statute raised concerns that Lubanga would not receive a fair trial.²⁵²

Institutional support for defense rights is particularly important in light of the significant resources and assistance available to the prosecution. The Rome Statute is silent on institutional support for the defense, an omission that was criticized by advocates of defense rights at the time of its approval in July 1998.²⁵³ The ICC’s institutional structure has since been designed to facilitate the effective representation of defense interests through small offices devoted exclusively to supporting the defense at the ICC: the Office of Public Counsel for the Defence and the Defence Support Section (DSS).

In addition, drawing from the experience of other international tribunals, as well as its own experience in early proceedings, the ICC has designed an innovative legal aid system for indigent defendants. The full mandate of the OPCD and DSS, including concerns as to the former’s limited staffing, is discussed below, as is the court’s legal aid system.

B. Institutional support for the defense

The principle of providing adequate institutional support to the defense in international judicial proceedings has evolved significantly over time. At the International Criminal Tribunals for Rwanda and the former Yugoslavia, the defense was not created as an internal structure of the court, and defense counsel there had to work, notably through independent associations of counsel, to gain status and resources.²⁵⁴ Over time, there has been recognition that for trials of war crimes, crimes against humanity, and genocide to operate fairly and effectively, defendants need institutional support to mount a strong defense.

As a result, the Special Court for Sierra Leone, the Bosnian War Crimes Chamber, and the Extraordinary Chambers in the Courts of Cambodia each include a permanent office to provide logistical, administrative, and substantive legal support to defense teams in cases before each of the respective courts.²⁵⁵ Channeling assistance through a permanent office can help to implement the equality of arms principle—and by extension, a fair trial—in practice.

At the ICC, the Office of Public Counsel for the Defence, in brief, provides substantive support to all defense teams and essentially operates independently of the Registry.²⁵⁶ By contrast, the Defence Support Section, as an arm of the Registry, handles administrative tasks associated with defense representation; this includes the management of legal aid for indigent defendants. This separation of administrative and substantive functions is advantageous for the interests of the defense and reflects an important “lesson learned” from the experience at other tribunals, like the Special Court for Sierra Leone. Since the OPCD is independent from the Registry, it is much better placed to intervene in the event that the Registry’s management of the legal aid system or dealing with other defense related issues would infringe on the rights of defendants.²⁵⁷ In addition, as a practical matter, administering the payment of fees of indigent defendants’ counsel can generate conflict and make relationships with counsel tense.²⁵⁸ Relieving the OPCD of this responsibility means that its staff can focus on substantive issues related to the defense. This also helps its staff avoid being perceived as agents of the Registry, curtailed by broader interests of the institution.

1. Office of Public Counsel for the Defence

a. Executing a robust mandate

The Office of Public Counsel for the Defence is mandated to provide substantive support to the defense in ICC proceedings and other related matters. This mandate is executed in three primary ways: by assisting defense counsel who appear before the court; by supporting and, in some instances, representing the interests of the defense during the situation phase of proceedings; and through advancing the rights of the defense within and outside of the ICC.²⁵⁹ The office employs a small number of staff to perform these functions: currently, the OPCD consists of the head of office, three staff members, and two interns.²⁶⁰

i. Assisting defense counsel in ICC proceedings

As noted above, maintaining high-quality representation of defendants in ICC proceedings is essential to ensure fair and effective trials. To this end, the OPCD was designed to supplement, not supplant, defense counsel in proceedings.²⁶¹ The office provides valuable research assistance to defense counsel on substantive legal issues that can emerge. For instance, staff in the office have prepared memoranda on issues such as victims’ participation, provisional release, disclosure, and the ICC’s jurisdiction.²⁶² This assistance is particularly important since attorneys who otherwise meet the rigorous professional standards to practice before the ICC may not have experience litigating war crimes, crimes against humanity, and genocide.²⁶³

The OPCD maintains an institutional memory for defense issues, which can be shared with multiple defense teams. This is an important role since it is not realistic to have a specialized team of defense attorneys that practices exclusively before the ICC.²⁶⁴ The OPCD can help new defense counsel fill in gaps, particularly in the initial stages of representation, by providing template motions on standard procedural issues that arise in proceedings. To facilitate this assistance further, the OPCD has prepared a database of these template motions for defense counsel acting in ICC cases.²⁶⁵ The OPCD’s institutional memory is very beneficial for the court because it means that defense teams do not have to “reinvent the wheel” for routine matters that arise, which improves efficiency in proceedings. For counsel representing indigent defendants, this can save the court legal aid funds.

The assistance of the OPCD is available to all defense counsel. This includes counsel of indigent defendants who are receiving legal aid, as well as ad hoc counsel appointed to represent the interests of the defense during the situation phase. While this assistance is available to all defense counsel, there is no obligation to use it.²⁶⁶ The OPCD’s ability to provide assistance depends on its workload. The OPCD and counsel must agree on a deadline before the office will agree to act in order to maintain the quality and timeliness of the assistance provided.²⁶⁷

The office has also prepared a manual outlining the rights of suspects that is provided to suspects upon arrival in detention.²⁶⁸ When urgent legal assistance is required, the head of the OPCD, who is currently the only staff member who meets the criteria to appear before the ICC, can directly represent individual defendants as duty counsel in proceedings.²⁶⁹ So far, this has only been required during the initial appearance of ICC suspect Germain Katanga.²⁷⁰ Using the OPCD in this manner should be the exception and not the rule.²⁷¹ As explained below, regularly using the office to directly represent individual defendants seriously risks undermining the OPCD’s mandate of providing quality legal assistance to all defense teams appearing before the ICC.

It should be noted that the court rejected the “public defender” model for the office, where the office would provide full representation of defendants, because it was not considered cost-effective.²⁷² Maintaining a group of quality defense lawyers permanently on the court’s payroll—even during periods of low activity in court proceedings when there are relatively few defendants—can be an inefficient use of the court’s resources. Beyond financial considerations, favoring an exclusive practice of counsel before the court can discourage the dynamic and active participation of counsel from different countries and regions of the world in the work and evolution of the court.²⁷³ The office was simply not designed to handle the onerous demands, including financial demands, associated with representing individual defendants.

There are other significant disadvantages of using the OPCD to regularly represent individual defendants. For instance, there is a real risk that the other important aspects of the OPCD’s mandate—providing assistance to the defense in the situation phase and advancing the rights of the defense within and outside of the ICC—would suffer. Moreover, using the same office to represent a number of different defendants can lead to serious conflicts of interest, undermining defendants’ representation in ICC proceedings.

Further, based on our field research in the country situations under investigation, using lawyers in the OPCD to act as counsel for defendants may not even be desirable. We encountered a number of misperceptions in the DRC and Uganda about the court’s (lack of) independence and impartiality, which we have outlined in other chapters of this report.²⁷⁴ Although the OPCD is technically independent from the Registry in its operation, its staff members are still employed by the court. Having ICC “staff lawyers” represent individual defendants in cases brought by the same institution risks feeding negative perceptions among outside observers about the fairness of trials. By contrast, the independence of individual attorneys who represent defendants, even those who receive legal aid from the court, is less contentious since these lawyers operate outside of the court’s umbrella. It puts the court in a much better position to explain to defendants—or their representatives, as in the case of the recent meeting with a delegation of the Lord’s Resistance Army—that they will be able to mount an independent defense in ICC proceedings.²⁷⁵

ii. OPCD’s assistance during the situation phase

As discussed in part I.C.1 above, the court has developed a practice of appointing ad hoc counsel to protect the interests of the defense during the situation phase. Where individual defendants have not yet been named, it is, nonetheless, important to protect the general interests of defense since actions taken at this stage may eventually have implications for defendants named in cases. The OPCD provides assistance to these attorneys as they meet the demands of serving as ad hoc counsel.

The operation of the victims’ participation regime presents a number of particularly complex challenges for the defense in the situation phase. Under article 68(3) of the Rome Statute, victim participants can present their “views and concerns” in proceedings as considered appropriate by the court. Participation at the situation phase can have implications for future defendants. For example, it is possible that a victim participant could, in the process of submitting his or her “views and concerns” in the situation, name an individual who could later be implicated as a defendant in ICC proceedings.²⁷⁶

As of March 2008, there were 104 applications to participate in proceedings from victims in Congo and 21 in Darfur. In the OPCD’s capacity as ad hoc counsel for the defense, it has submitted 20 filings in the Congo and 13 in the Darfur situations in relation to these applications.²⁷⁷ Included in this figure are four appeals briefs prepared by the office that raise a number of complex legal questions relating to the modalities of victims’ participation in proceedings in the situation phase.

Assigning the OPCD the role of ad hoc counsel in the situation phase presents a number of advantages. The OPCD’s institutional memory means that it is well placed to identify, analyze, and address scenarios that arise in the situation phase that may have ramifications for the defense. Moreover, by acting in this capacity, the OPCD saves the Registry money that would have otherwise been paid to outside defense counsel from the legal aid budget.²⁷⁸ However, reviewing the numerous applications and analyzing their impact on the rights of the defense in the Darfur and Congo situations has resulted in considerable strain on OPCD staff.

iii. The OPCD’s institutional role: Advancing defense interests within and outside of the ICC

In addition to the assistance that it provides in proceedings in the situation and case phases, the OPCD has the mandate to promote defense interests in institutional policies and in external outreach. Internally, the OPCD has represented the interests of the defense in planning the permanent premises for the ICC, for example.²⁷⁹ The OPCD has also advocated on behalf of the defense in the revision of the legal aid system and has provided input on behalf of the defense in the ICC’s Strategic Plan and in its more detailed strategy for counsel.

Externally, the OPCD should conduct outreach on the substantive rights of the defense. In addition to outlining the OPCD’s mandate, this should include explaining the fair trial rights of defendants, such as the presumption of innocence, the importance of receiving an impartial trial, and the rights available to defendants in detention. Effectively conveying the rights of defendants can help those in communities most affected to understand why a fair trial is important. This can strengthen their understanding of the rule of law and can bolster outreach efforts by the court to explain delays in proceedings that may be necessary to protect the rights of the defense, for example. In addition, the office could represent the interests of the defense in ICC press conferences when suspects are arrested (and before individual counsel are appointed). Unfortunately, the OPCD’s limited resources have circumscribed its ability to conduct this important outreach on a consistent basis.

At the same time, the OPCD cannot be solely responsible for conducting outreach on behalf of the defense. Indeed, even with additional resources, there are limits to the amount of outreach that the office could undertake on behalf of the defense in light of its many other responsibilities. Effective coordination between the OPCD and the court’s Outreach Unit—for example, in regularly collaborating on defense-related talking points for use in all outreach events—is, therefore, crucial. However, it appears that this effective collaboration has been found wanting.

For instance, the OPCD produced a finalized version of a “fact sheet” in both English and French explaining its mandate and the fair trial rights of defendants for publication and distribution by the court’s outreach section in July 2007. At this writing, the Public Information Documentation Section has not yet published this document, nor has it provided any additional feedback to the office. While the OPCD has been invited to participate in several outreach events to discuss defense issues, these invitations have been sporadic. In one outreach event in Kampala, for example, the principal counsel of the OPCD was only invited to speak on substantive defense issues after the head of the Defence Support Section cancelled on short notice.²⁸⁰

Further, the OPCD has expressed an interest in including a page on the court’s website to explain its mandate and to provide general information on defense issues, along the lines of the page that currently exists for the Office of Public Counsel for Victims (OPCV), an independent body like the OPCD but charged with representing victim interests.²⁸¹ While the Registry has expressed its willingness to do so, thus far this has not been addressed.²⁸² We understand that the Registry has been working for some time with an external consultant in order to launch an improved version of the court’s website. However, the delays in launching a defense page are unclear since the Registry was able to create an outreach webpage on relatively short notice.²⁸³

The office has a small budget to conduct outreach in the situation countries, and yet last year this money was instead used to fund a case manager position. This was necessary for the office to handle the victims’ participation applications in relation to its situation work.²⁸⁴ The office’s outreach budget has again been converted to fund this position for 2008.²⁸⁵ In addition, the OPCD only has a modest travel budget to attend external outreach events. This suggests that the office simply lacks the financial and human resources to pursue outreach more effectively.

b. Additional resources needed

As noted above, the OPCD consists of four staff members (including the head of the office) and two interns. However, projections that resulted in the office’s current level of staffing did not take into account the office’s appointment as ad hoc counsel in two situations.²⁸⁶ Further, these projections assumed one case being litigated at the ICC; as such, the OPCD’s support to the Katanga and Ngudjolo defense teams is outside of this initial estimate.²⁸⁷ The fact that the office has converted its outreach funds to hire more staff to keep up with the current workload indicates that it is already straining to fulfill its mandate effectively. An increase in the number and intensity of proceedings before the ICC, as well as the additional demands placed on the office during the situation phase discussed above, means that the office’s workload will increase. Without enough resources to meet the challenges ahead, Human Rights Watch is concerned that the OPCD’s ability to execute its mandate—including its capacity to provide much needed assistance to defendants and their legal teams—will be compromised.

In this context, it should be noted that the OPCD’s stated need for additional resources has been modest: last year, a request was made to the Assembly of States Parties to fund another senior (P-4) position in the office.²⁸⁸ In addition to helping the office manage its workload, another senior-level staff member could appear in court as necessary, provided the other requirements to do so are satisfied. Human Rights Watch and other nongovernmental organizations strongly supported this request.²⁸⁹ Unfortunately, the ASP, on the recommendation of the Committee on Budget and Finance, rejected this post.²⁹⁰ We wish to underscore that the many responsibilities of the office and its heavy workload, combined with outdated projections of the level of staffing necessary to execute these responsibilities, strongly suggest that additional staff are needed in the OPCD. Moving forward, we urge states parties to consider future requests by the office for additional resources favorably. We also urge the Registry to continue allocating interns and other support to the office as necessary.

2. Defence Support Section

The Defence Support Section functions under the Division of Victims and Counsel in the Registry and is tasked with providing necessary administrative support to the defense.²⁹¹ The office consists of three staff members, including the head of the section, and the head of the Division of Victims and Counsel oversees its work. One of its responsibilities is managing the lists of counsel and assistants to counsel eligible to practice before the ICC, as well as the list of professional investigators. This involves contacting states parties and developing relationships with local bar associations to publicize the requirements for inclusion and to encourage eligible professionals to apply.²⁹² Those who meet the criteria to practice before the court are included on the relevant lists.²⁹³ As of January 2008, there were 236 persons on the list of counsel from various countries, of which 189 were men and 47 were women.²⁹⁴

The DSS is also responsible for administering the legal aid system for indigent defendants at the ICC. The DSS currently makes the initial determination on behalf of the Registry as to whether a defendant meets the threshold for indigence to qualify for legal aid. The DSS maintains regular contact between counsel and the relevant representatives in the Registry in order to assist counsel to enhance the use of the legal aid funds that they have been allocated.²⁹⁵ This includes briefing counsel of indigent defendants on the payment procedures and on the assistance available from the OPCD. When legal aid decisions are being litigated (for instance, if a defendant wishes to appeal the Registry’s decision not to provide legal aid), the DSS writes the legal submissions on behalf of the Registry.²⁹⁶

Beyond managing the legal aid system, the DSS handles the institutional matters that concern all counsel—including counsel for victims—practicing before the ICC. For instance, the DSS drafted the recent counsel strategy, which is aimed at articulating a shared vision for the court and counsel and identifies priorities in that regard for the next five years.²⁹⁷ Other areas of DSS assistance include helping counsel in accessing important material, such as the filings, different elements of their dossiers, and other documentation related to the proceedings and in using available technology (the “e-Court” protocol). To this end, the DSS provides the necessary hardware, software, and trainings to do so.²⁹⁸

Further, the DSS conducts outreach, which includes training counsel in relation to defense issues. The DSS’s outreach efforts to date have involved publicizing the list of counsel and soliciting applications in situation and other countries.²⁹⁹

In terms of training, the DSS organizes the court’s annual seminar for counsel in The Hague and participates in events organized by other institutions.³⁰⁰ For 2007’s counsel seminar, the DSS managed to secure funding from a state party to bring counsel from Africa to participate.³⁰¹ Bringing counsel from the countries under investigation is particularly important, and we encourage continuing this practice in the future. In light of the court’s limited resources, however, the training of lawyers practicing before the ICC should be prioritized. This may require developing partnerships with outside organizations to provide similar trainings for others, including attorneys who are not yet eligible to practice before the court.

These efforts are important. At the same time, we wish to highlight areas of overlap with the OPCD’s outreach mandate which, in addition to creating confusion about the role of the respective offices, can result in wasted resources. Given the OPCD’s substantive mandate (as compared to the DSS’s administrative function), it seems more appropriate for the OPCD to assume many of the substantive outreach functions—including training—relating to the defense.³⁰² Indeed, the OPCD’s experience in providing this kind of assistance to individual defense counsel and representing the general interests of defense in proceedings strongly suggests that it is much better placed to do so. In order to fill this role more effectively, we urge the court to allocate additional resources to the OPCD (in addition to the P-4 position mentioned earlier), and for states parties to fund the court’s requests for more resources.

The DSS also provides support to individual defendants in limited circumstances. Most notably, staff in the DSS meet with defendants upon arrival in the Detention Unit and explain their rights, what is involved in the first appearance, and provide the list of counsel.³⁰³

This appears to be another example of duplication with the OPCD. As discussed earlier, the OPCD has prepared a manual outlining the rights of suspects that is provided to defendants upon arrival in detention. Consistent with its mandate of providing substantive support, it seems to make more sense for the OPCD to meet with defendants to provide them with all of this information at this early stage. Indeed, in light of the novelty of certain procedures before the ICC, it would be preferable to explain the contents in person in order to clarify any ambiguities. Further, since the OPCD is substantively independent of the Registry and cannot be appointed as permanent counsel, Human Rights Watch believes that it is in a better position to give impartial advice concerning the defendant’s rights under the Registry’s system of legal aid.

C. Ensuring quality representation for indigent defendants: The ICC’s legal aid system

A defendant’s right to choose his or her own counsel in criminal proceedings is a fundamental component of a fair trial. A defendant who does not have the resources to pay for his or her defense is entitled to financial assistance in order to exercise this right.³⁰⁴ It is the court’s responsibility to provide financial aid to these indigent defendants.³⁰⁵ Providing sufficient resources is essential since, as noted earlier, attracting top-quality defense counsel to practice before the ICC benefits not only individual defendants but also the institution as a whole. At the same time, the court must maintain a legal aid system that is financially realistic.

In devising the legal aid system, the Registry took into account the systems in place at the ICTY and ICTR, as well as the Special Court for Sierra Leone.³⁰⁶ Drawing from their experiences,the ICC introduced its own system of monthly payment to defense teams. The system was initially proposed in 2004 and has since been amended twice (in 2006 and 2007) in light of experience in the initial proceedings in the respective situations and in the Lubanga case.³⁰⁷

The Committee on Budget and Finance, which makes recommendations to the ASP on budgetary matters, stated in 2007 its support for the current system (and implicitly, the calculations of indigence on which it is based), referring to it as a “sound structure” for legal aid.³⁰⁸ However, at its next session, when reviewing the budget ensuing from the implementation of the new system, the CBF noted that legal aid was an area “in which there were considerable financial and reputational risks for the court” and refused additional requested funds.³⁰⁹ The CBF’s concern in this regard is the careful management of the legal aid system “to avoid abuses and contain costs.”³¹⁰

We understand the CBF’s caution about the costs of legal aid and about the financial risks involved in its disbursement, particularly in light of the abuses that occurred during early phases of operation of the legal aid system at both the ICTY and ICTR. For example, allegations of fee-splitting, where a defendant hires a lawyer subject to the lawyer’s agreement to split the legal fees paid by the court with the defendant, have contributed to the difficulties in administering legal aid at both tribunals.³¹¹ We note that the ICC Registry has devised a system of “checks and balances” to guard against such abuses, which are also discussed below.

At the same time, we wish to underscore the risks to the court’s credibility that can arise from real and perceived inadequacies in funding legal aid for indigent defendants. The court’s reputation as a fair and impartial institution may be undermined if there are indications that these defendants are being shortchanged in the assistance they receive from the court to mount an effective defense. Indeed, states parties must recognize that the costs for the court in this regard—including perceptions about the fairness of its trials—may be far greater than the actual expenses associated with operating the legal aid system.

1. Determining eligibility for legal aid: Calculating indigence

An applicant must show that he or she does not have the means to pay for legal representation to qualify for legal aid. To understand the threshold for determining a defendant’s indigence, it is useful to consider the estimated cost of representation during proceedings. This amount is divided up differently over the pre-trial, trial, and appeal phases, and indigence is appraised at each of these phases.³¹² For instance, the estimated monthly cost during the pre-trial phase is between €12,410 (US$19,508) (investigation to initial appearance) and €19,864 ($31,225) (initial appearance to confirmation of charges); during the trial phase, the maximum estimated monthly cost is €36,509 ($57,389) from the confirmation of charges to closing arguments, with an estimated €12,410 ($19,506) available monthly after that until the delivery of the decision; the estimated monthly cost during the appeals phase is €21,023 ($33,046).³¹³ These amounts cover costs of investigation and the salaries, travel, and incidental expenses for members of the defense team, among other things.

A person will be considered indigent if he or she cannot meet the costs associated with the particular phase of proceedings at issue. In making a determination on indigence, the registrar considers the applicant’s “means” over which he or she has “direct or indirect enjoyment or power freely to dispose, including, but not limited to, direct income, bank accounts, real or personal property, pensions, stocks, bonds or other assets held,” as well as his or her obligations to dependants.³¹⁴ The registrar can also take into account “any transfers of property by the applicant considered relevant” in addition to his or her “apparent lifestyle.” Any family or social benefits that the applicant may be entitled to are excluded from this assessment.³¹⁵ Since indigence is calculated at each phase, the court can regularly take into account changes in the recipient’s circumstances and can maintain flexibility in the disbursement of resources.³¹⁶

An applicant must complete a financial information form, which includes details about his or her income and assets, and commits to cooperating with the Registry in making a determination on indigence. As explained below, the Registry is building capacity to verify this information with its recruitment of a financial investigator. The DSS collects all relevant information, including the applicant’s financial information form and that collected by the financial investigator—with whom the DSS works closely—and makes a recommendation to the registrar as to the applicant’s indigence.³¹⁷ The registrar makes a decision within one month.³¹⁸ In making a positive determination, the registrar can decide a defendant is indigent or partially indigent.³¹⁹ To date, three of the ICC defendants in custody in The Hague have been found to be indigent and, therefore, eligible for legal aid.

2. Financial assistance for eligible defendants

a. Legal representation

Mounting an effective defense in ICC proceedings requires not only an effective lead counsel but also a strong defense team. For instance, co-counsel can share the responsibilities of appearing before the court and can provide valuable assistance in strategizing about how to present the best defense. A junior lawyer can help in reviewing the prosecution’s file and can provide research assistance to answer legal questions that arise during proceedings. A case manager can organize the often-voluminous material disclosed by the prosecution, thus making this information accessible to the entire team at all stages of proceedings. Ensuring a well-staffed team puts the defense in a better position to adequately respond to the prosecution’s allegations and improves the efficiency of proceedings overall.

Under the current legal aid system, a defendant chooses a lead counsel from the list of counsel, who acts alone until the defendant’s initial appearance before the pre-trial chamber. After the initial appearance, the lead counsel receives funding for a legal assistant and case manager (the “core team”). An additional co-counsel is appointed for the trial phase, to begin “as soon as a definite decision had been taken relating to the confirmation of charges.”³²⁰ The defense team consists of the core team and associate counsel until the end of closing arguments. The lead counsel acts alone until the delivery of the judgment. During the appeals phase, lead counsel acts again with the core team (legal assistant and case manager). The salaries of all members of the defense team correspond to salaries of staff in the Office of the Prosecutor.³²¹

If the lead counsel requires additional resources, he or she can make a request to the registrar, which if denied may be subject to review by the chamber.³²² Additional legal aid funds are also automatically available under the legal aid system when certain factors arise. For example, an additional “full-time equivalent”would be granted in any of the following situations: 40 additional counts against the defendant; 200 additional victim applications to participate; 50 victim applications granted; 30,000 additional pages added to the case file by other participants; or 30,000 additional pages added by the OTP.³²³ These resources are subject to an as of yet unspecified limit and to reconsideration if the circumstances of the case change.

Assigning additional resources in this manner illustrates the flexibility inherent in the legal aid system, which is a positive development. However, even more flexibility may be required. Experience in responding to victims’ applications to date has shown the tremendous amount of work involved in their review and analysis. Setting the threshold at 200 victims’ participation applications as the “trigger” for additional resources risks depriving a defendant’s legal team of the support required to handle the considerable burden of reviewing and analyzing such applications right before this high threshold has been reached. Rather than choosing another set of arbitrary figures, it may be more realistic to tie the allocation of additional resources to factors related to the complexity of the case (such as the number of counts or the type of charges at issue).³²⁴ The Registry has indicated that it considered this approach, but that it is still too early to decide whether and to what extent these kinds of factors should influence its allocation of resources.³²⁵ We urge the Registry to revisit this issue in the future.

Indeed, the court’s proceedings—and the operation of its legal aid system—are still in the early stages so it is difficult to assess whether the resources allocated will be sufficient. We note that the confirmation of charges hearing in the Lubanga case, the first in the court’s history, generated an unanticipated amount of work for Lubanga’s defense team in order to fully participate. It also revealed shortcomings in the legal aid system’s allocation of resources at this phase. The current allocation of resources in the legal aid system, therefore, reflects, in part, some of the “lessons learned” about necessary defense resources based on experience in the pre-trial phase of the Lubanga case.³²⁶ We welcome the Registry’s approach in this regard.

However, several observers that we interviewed expressed concern about the lack of resources to hire a co-counsel during the pre-trial phase.³²⁷ The Lubanga confirmation of charges hearing operated like a “mini-trial.” At the same time, we note efforts by the pre-trial chamber to circumscribe the scope of the hearing in the Katanga and Ngudjolo case.³²⁸ Moving forward, the Registry has indicated that there may be further revisions of the legal aid system as the court gains more experience in the needs of indigent defendants (as well as indigent victims).³²⁹ We, therefore, urge the Registry to consider the impact of future confirmation of charges proceedings on the defense to determine if additional resources are necessary at the pre-trial phase.

b. Investigations

Investigators play a key role in helping the legal team mount an effective defense. For instance, investigators can locate and interview witnesses in the field, investigate specific allegations in the prosecution file, and pursue new evidentiary leads. Throughout the case, the assistance of investigators in responding to developments that arise as the case progresses—such as tracking down witnesses who may have previously been unavailable and following leads that may uncover exonerating evidence—is essential. This assistance is necessary to ensure that the accused is not placed at a significant disadvantage vis-à-vis the prosecution.

For an indigent defendant, the legal aid system provides funds to cover the equivalent, over the entire duration of the case, of 90 days work by a “professional investigator” (P-4 level), including travel and expenses.³³⁰ To be reimbursed at P-4, an investigator must have 10 years’ experience, among other things, and must be chosen from the court’s list of professional investigators.³³¹ Alternatively, there is flexibility in how these funds are used: for instance, the lead counsel could hire three junior investigators (P-1 level).³³² This flexibility in how funds for hiring investigators are used is important since the number of professional investigators on the court’s list is relatively small.

In addition, the legal aid system provides the funds to hire a “resource person” (assistant investigator) for the same period of 90 days, including travel and expenses.³³³ This could be a lawyer in the country situation under investigation, which can be advantageous to the extent that he or she is fluent in the local language, culture, and history and is knowledgeable about the legal requirements of evidence in a criminal trial.³³⁴ The “core” budget for investigations is € 70,138 ($110,533).³³⁵

Maintaining flexibility in allocating resources for defense investigations, particularly to address developments related to supplementary witnesses, is essential. The prosecution’s discretion to change its witness list means that the defense could understandably use its resources to investigate witnesses who may not ultimately be called at trial. Making supplementary funds available to an indigent defendant helps his or her defense team “keep up” with changes in the prosecution’s witness list. (There are limits in the prosecution’s discretion in this regard, however: in the Lubanga case, the Trial Chamber has stated that past the date of the trial, witnesses may be dropped but additions would be treated “with a high degree of scorn.”³³⁶)

3. Guarding against abuse: Checks and balances in the legal aid system

The Registry has put in place several oversight mechanisms to prevent the abuse of legal aid funds. As discussed earlier, the court assesses a defendant’s claim of indigence at every phase of the proceedings. In addition, the court has the budget to recruit a financial investigator to verify the information provided by a defendant seeking legal aid.³³⁷ This can help avoid the unjustified allocation of legal aid funds to those who could otherwise afford to pay the costs of representation.

Defense counsel are also required to prepare and submit an action plan to the Registry every six months with details of anticipated work. While such a plan cannot account for unexpected filings that may arise in proceedings, it can provide the court with a general sense of how the defense anticipates its funds will be used and hence provide a measure of accountability for actual use of funds. In the event of a dispute over the plan, either the registrar or the legal team can refer the matter to the court’s legal aid commissioners to assess whether the means requested are necessary for the effective representation of the defendant.³³⁸

In addition, the court has adopted a deferred payment scheme, where 75 percent of the legal fees are paid upon receipt of the statement of hours worked, with the remaining 25 percent paid at the end of every phase and at the very least every six months.³³⁹ This system of deferred payment allows the Registry to exercise oversight over the use of the funds paid to the legal teams, to ensure the reimbursement of sums paid to members in error, and, in the event counsel withdraws from the case, to ensure the return of the case file.³⁴⁰ It applies only to counsel and associate counsel; all other team members are paid in full throughout the proceedings.³⁴¹

D. Monitoring the challenges ahead

The ICC has followed on the work of the ad hoc tribunals in using electronic court systems to make the courtrooms and the process of case management more streamlined and efficient. Most notably the “e-court protocol” is an electronic system to “support its daily judicial and operational management and its proceedings.”³⁴² In the early phases of the ICC’s work, defense counsel and others have cited difficulties with these electronic tools. The Registry has acknowledged the importance of ensuring that counsel receive appropriate training on the e-court protocol.³⁴³ Moving forward, we look forward to assessing whether the difficulties previously identified persist despite additional training by the Registry.

In advance of the court’s first trial, and with limited pre-trial proceedings to date, it remains too early to comprehensively assess the court’s performance in safeguarding fair trial rights. At this writing, there are a number of important issues that are being litigated before the court that may have an impact on the rights of the defense. In the Lubanga case, the court has made a number of decisions related to the disclosure of the prosecutor’s evidence to the defense. Some of the decisions concerning witness protection have been taken following ex parte proceedings where the defense is excluded.³⁴⁴ The court’s vigilance in ensuring that ex parte hearings remain the exception and not the rule will be essential since, cumulatively, such hearings used injudiciously could undermine the defendant’s right to a fair trial.³⁴⁵ We will continue to follow these and other issues to ensure that the rights of defendants are adequately respected in ICC proceedings. Further, outside of these judicial developments, we find it encouraging that the Registry has developed the practice of extensive annual consultations with defense counsel eligible to practice before the ICC, with counsel associations, and with nongovernmental organizations on matters affecting the interests of the defense, including in the design of the legal aid system.