Trials before the International Criminal Court must be fair to be credible. Full respect for the defendants 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 defendants 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 defendants 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 defendants 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 prosecutions 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 ICCs 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 formers limited staffing, is discussed below, as is the courts legal aid system.
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 principleand by extension, a fair trialin 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 Registrys 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.
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
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 ICCs 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 OPCDs 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 OPCDs 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 OPCDs 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 courts payrolleven during periods of low activity in court proceedings when there are relatively few defendantscan be an inefficient use of the courts 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 OPCDs mandateproviding assistance to the defense in the situation phase and advancing the rights of the defense within and outside of the ICCwould 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 courts (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 courts umbrella. It puts the court in a much better position to explain to defendantsor their representatives, as in the case of the recent meeting with a delegation of the Lords Resistance Armythat they will be able to mount an independent defense in ICC proceedings.275
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 OPCDs 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 OPCDs 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.
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 ICCs 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 OPCDs 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 OPCDs 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 courts Outreach Unitfor example, in regularly collaborating on defense-related talking points for use in all outreach eventsis, 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 courts 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 courts 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 courts 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 offices 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.
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 offices current level of staffing did not take into account the offices appointment as ad hoc counsel in two situations.286 Further, these projections assumed one case being litigated at the ICC; as such, the OPCDs 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 offices workload will increase. Without enough resources to meet the challenges ahead, Human Rights Watch is concerned that the OPCDs ability to execute its mandateincluding its capacity to provide much needed assistance to defendants and their legal teamswill be compromised.
In this context, it should be noted that the OPCDs 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.
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 Registrys 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 counselincluding counsel for victimspracticing 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 DSSs 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 courts annual seminar for counsel in The Hague and participates in events organized by other institutions.300 For 2007s 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 courts 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 OPCDs outreach mandate which, in addition to creating confusion about the role of the respective offices, can result in wasted resources. Given the OPCDs substantive mandate (as compared to the DSSs administrative function), it seems more appropriate for the OPCD to assume many of the substantive outreach functionsincluding trainingrelating to the defense.302 Indeed, the OPCDs 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 courts 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 defendants rights under the Registrys system of legal aid.
A defendants 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 courts 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 CBFs concern in this regard is the careful management of the legal aid system to avoid abuses and contain costs.310
We understand the CBFs 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 lawyers 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 courts credibility that can arise from real and perceived inadequacies in funding legal aid for indigent defendants. The courts 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 regardincluding perceptions about the fairness of its trialsmay be far greater than the actual expenses associated with operating the legal aid system.
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 defendants 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 applicants 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 recipients 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 applicants financial information form and that collected by the financial investigatorwith whom the DSS works closelyand makes a recommendation to the registrar as to the applicants 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.
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 prosecutions 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 prosecutions 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 defendants 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 equivalentwould 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 defendants 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 courts proceedingsand the operation of its legal aid systemare 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 courts history, generated an unanticipated amount of work for Lubangas defense team in order to fully participate. It also revealed shortcomings in the legal aid systems 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 Registrys 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.
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 progressessuch as tracking down witnesses who may have previously been unavailable and following leads that may uncover exonerating evidenceis 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 courts 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 courts 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 prosecutions 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 prosecutions witness list. (There are limits in the prosecutions 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)
The Registry has put in place several oversight mechanisms to prevent the abuse of legal aid funds. As discussed earlier, the court assesses a defendants 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 courts 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
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 ICCs 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 courts first trial, and with limited pre-trial proceedings to date, it remains too early to comprehensively assess the courts 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 prosecutors 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 courts 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 defendants 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.
239 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 14. As of March 5, 2008, there were 161 states parties to the ICCPR.
240 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, arts. 55, 67 (Rome Statute).
241 See Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), S.C. Res. 827, U.N. Doc. S/RES/827 (1993), as amended, http://www.un.org/icty/legaldoc-e/basic/statut/statute-feb06-e.pdf (accessed June 3, 2008), art. 21; Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), S.C. Res. 955, U.N. Doc. S/RES/955 (1994), as amended, http://18.104.22.168/ENGLISH/basicdocs/statute.html (accessed June 3, 2008), art. 20; Statute of the Special Court for Sierra Leone (SCSL Statute), January 16, 2002, http://www.sc-sl.org/Documents/scsl-statute.html (accessed June 3, 2008), art. 17; and Rules of Procedure and Evidence, Special Court for Sierra Leone, amended May 27,2008, http://www.sc-sl.org/Documents/rulesofprocedureandevidence.pdf (accessed June 3, 2008), rules 42-43 (Rules of Procedure and Evidence, Special Court for Sierra Leone).
242 European Commission of Human Rights, Kaufman v. Belgium (App. 10938/84); (1986) 50 DR 98, available at www.echr.coe.int, p. 115; European Court of Human Rights, Foucher v. France (App. 22209/93), Judgment of 18 March 1997; (1998) 25 EHRR 234, available at www.echr.coe.int, para. 34; UN Human Rights Committee, Decision: Morael v. France, Comm. No. 207/1986, UN Doc. Supp. No. 40 (A/44/40) at 210 (1989), para. 9.3 ( the concept of a fair hearing in the context of article 14(1) should be interpreted as requiring a number of conditions, such as equality of arms ).
243 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on defence's request to obtain simultaneous French transcripts, December 14, 2007, para. 18 (Decision on Simultaneous French Transcripts).
244 Prosecutor v. Clement Kayishema and Obed Ruzindana, ICTR, Case No. ICTR-95-1-A, Judgment (Appeals Chamber), June 1, 2001, para. 69.
245 Decision on Simultaneous French Transcripts, para.19.
246 Rome Statute, art. 54(1)(a).
247 European Court of Human Rights, Delcourt v. Belgium, Judgment of 17 January 1970, Series A no. 11, available at www.echr.coe.int, para. 34. See also Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1-A, Judgment (Appeals Chamber), July 15, 1999, para. 48.
248 Under article 68(3) of the Rome Statute, at the discretion of the chamber, victim participants can present their views and concerns where their personal interests are affected. For a complete discussion of victims participation at the ICC, see Part VII, below.
249 See, for example, Situation in the DRC, ICC, Case No. ICC-01/04, Decision on Protective Measures Requested by Applicants 01/04-1/dp to 01/04-6/dp (Public Redacted Version), July 21, 2005, p. 4; Situation in the DRC, ICC, Case No. ICC-01/04, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 (Public Redacted Version), January 17, 2006, para. 70; see also Regulations of the Court, International Criminal Court, ICC-BD/01-02-07, amended June 14 and November 14, 2007, http://www.icc-cpi.int/library/about/officialjournal/ICC-BD-01-02-07-ENG.pdf (accessed June 11, 2008), (Court Regulations), reg. 76(1).
250 Counsel for the defense shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise. Rules of Procedure and Evidence, International Criminal Court, ICC-ASP/1/3, http://www.icc-cpi.int/library/about/
officialjournal/Rules_of_procedure_and_Evidence_English.pdf (accessed June 11, 2008), rule 22 (Rules of Procedure and Evidence). Regulation 67 of the Court Regulations specifies that defense counsel must have at least 10 years experience and should not have been convicted of a serious criminal or disciplinary offence considered to be incompatible with the nature of the office of counsel before the Court. Assistants to counsel must have five years of relevant experience in criminal proceedings or specific competence in international or criminal law and procedure. Regulations of the Registry, International Criminal Court, ICC-BD/03-01-06-Rev.1, revised September 25, 2006, http://www.icc-cpi.int/library/about/officialjournal/ICC-BD_03-01-06-Rev1_English.pdf (accessed June 11, 2008), reg. 124 (Regulations of the Registry).
251 Judge Adrian Fulford, Reflections from the Bench, speech to the Friends of the ICC, The Hague, February 20, 2008, http://www.britishembassy.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1025627657266&a=KArticle&aid=1199215379245 (accessed June 3, 2008). See also Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07, Decision on the Defence Request for Postponement of the Confirmation Hearing, April 25, 2008 (Postponement of Confirmation Hearing Request Decision). For example, adjournments have been required where the need to put protective measures in place for witnesses has help up disclosure to the defense of witness identities. See Part VI.B.2, below.
252 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, June 13, 2008, para. 32.
253 Elise Groulx, Equality of Arms: Challenges Confronting the Legal Profession in the Emerging International Criminal Justice System, Oxford University Comparative Law Journal, vol. 3 (2006), http://ouclf.iuscomp.org/articles/groulx.shtml (accessed June 11, 2008), pp. 8-9.
254 Human Rights Watch interview with ICTY defense counsel, The Hague, October 17, 2007.
255 See Rules of Procedure and Evidence, Special Court for Sierra Leone, rule 45 (establishing Defense Office); Additional Rules of Procedure for Defense Advocates Appearing Before Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Court of Bosnia and Herzegovina, adopted by the Court of Bosnia and Herzegovina at the plenary session held on June 30, 2005, art. 2.1(1) (establishing the Criminal Defense Support Section, known as OKO, in the Sarajevo War Crimes Chamber); Internal Rules, Extraordinary Chambers in the Courts of Cambodia, http://www.eccc.gov.kh/english/cabinet/fileUpload/27/Internal_Rules_Revision1_01-02-08_eng.pdf (accessed June 10, 2008), rule 11 (establishing the Defense Support Section).
256 Court Regulations, reg. 77.
257 Human Rights Watch interview with ICC staff, The Hague, March 18, 2008; The Registry, International Criminal Court, An ICC Strategy for Counsel: Underlying principles, Achievements and the Future Direction, (draft), para. 13 (copy on file with Human Rights Watch) (Draft Counsel Strategy).
258 Human Rights Watch interviews with ICC staff, The Hague, March 18 and April 8, 2008.
259 Human Rights Watch interview with ICC staff, The Hague, March 18, 2008. See also Court Regulations, regs. 76 and 77.
260 Human Rights Watch interview with ICC staff, The Hague, March 18, 2008.
261 Draft Counsel Strategy, paras. 37-43.
262 Human Rights Watch interview with ICC staff, The Hague, October 18, 2007.
263 Under rule 22 of the Rules of Procedure and Evidence, attorneys must have established competence in international or criminal law and procedure (emphasis added) in order to practice before the ICC.
264 The courts policy is to permit defense counsel to maintain a domestic practice while appearing before the ICC. Prohibiting defense counsel from doing so was considered undesirable for a number of reasons, including: it is not in conformity with legal texts of the court dealing with the qualifications of counsel; it would limit the way in which law is practiced before the court as it prevents the system from benefiting from the richness of experience acquired through domestic practice; and it favors certain counsel and does not guarantee diversity and representation from various regions and legal systems of the world. Draft Counsel Strategy, paras. 29-36.
265 Human Rights Watch interview with ICC staff, The Hague, October 18, 2007.
267 Human Rights Watch interview with ICC staff, The Hague, March 18, 2008.
269 Court Regulations, regs. 73(2) and 76(2). A duty counsel is a provisional attorney assigned to a defendant by the court until he or she chooses permanent counsel.
270 First appearance of Mr. Germain Katanga before the Pre-Trial Chamber I, ICC press release, ICC-20071022-260_en, October 22, 2007, http://www.icc-cpi.int/press/pressreleases/294.html (accessed June 11, 2008).
271 Draft Counsel Strategy, paras. 41-42.
272 ASP, Report to the Assembly of States Parties on options for ensuring adequate defence counsel for accused persons, ICC-ASP/3/16, August 17, 2004, http://www.icc-cpi.int/library/asp/ICC-ASP-3-16-_defence_counsel_English.pdf (accessed July 2, 2008), para. 9.
273 The Registry put forward this argument to explain the courts policy on the intervention of counsel before the court, namely its decision to allow defense counsel to maintain a domestic practice while practicing before the court (and not the mandate of the OPCD, per se). Nonetheless, the arguments against having a specialized group of lawyers practicing exclusively before the ICC are just as relevant to illustrate why the OPCD should not fill this function. Draft Counsel Strategy, para. 34.
274 See Part II.B.2-C.1, above, and Part V.C.1-2, below.
275 ICC officials discuss the role of the Registry in proceedings before the court with the Lords Resistance Army delegation, ICC press release, ICC-CPI-20080310-PR295-ENG, March 10, 2008, http://www.icc-cpi.int/press/pressreleases/346.html (accessed June 11, 2008).
276 There are other possible scenarios in the situation phase where defense rights could be implicated. For instance, under rule 47(2) of the Rules of Procedure and Evidence, the interests of the defense must be represented when the prosecutor is taking testimonies in relation to the exercise of his proprio motu power under article 15 of the Rome Statute. Defense interests must also be represented during unique investigative opportunities that arise in the situation phase pursuant to article 56(2)(d) of the Rome Statute.
277 These specific figures were derived from the OPCDs six month report. See OPCD, Mise à jour des activités du Bureau du Conseil Public pour la Défense de ces 6 derniers mois, March 2008, copy on file with Human Rights Watch.
278 Human Rights Watch interview with ICC staff, The Hague, March 18, 2008.
279 This includes ensuring that defense counsel have enough office space to facilitate representation.
280 Human Rights Watch interview with ICC staff, The Hague, March 18, 2008.
281 Office of Public Counsel for Victims webpage, http://www.icc-cpi.int/victimsissues/victimscounsel/OPCV.html (accessed June 4, 2008).
282 Human Rights Watch interview with ICC staff, The Hague, March 18, 2008.
283 ICC Outreach webpage, http://www.icc-cpi.int/outreach.html (accessed June 4, 2008).
284 Human Rights Watch interview with ICC staff, The Hague, October 18, 2007.
285 Human Rights Watch interview with ICC staff, The Hague, March 18, 2008.
288 ASP, Proposed Programme Budget for 2008 of the International Criminal Court, ICC-ASP/6/8, July 25, 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-8_English.pdf (accessed June 11, 2008), paras. 387-390. The OPCD had initially proposed to hire this lawyer as a Generally Temporary Assistant (GTA).
289 Budget and Finance and Legal Representation Teams, Coalition for the International Criminal Court, Comments and Recommendations to the Sixth Session of the Assembly of States Parties, 30 November 14 December 2007, New York, USA, draft, November 12, 2007, http://www.iccnow.org/documents/Budget-Legal_Rep_Draft_Team_Paper_ASP_6_211107.pdf (accessed June 6, 2008).
290 ASP, Report of the Committee on Budget and Finance on the work of its ninth session, ICC-ASP/6/12, September 28, 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-12_English.pdf (accessed June 11, 2008), para. 74.
291 Rules of Procedure and Evidence, rule 14(2). The administrative support provided includes facilitating access of defense counsel to the ICC building and helping with information technology-related matters.
292 Human Rights Watch interview with ICC staff, The Hague, April 8, 2008. The DSS also accepts applications for victims counsel. However, the Victims Participation and Reparations Section recruits professionals to facilitate victims representation and administers their payment.
293 For the requirements of counsel and assistants to counsel, see note 251 above. Under regulation 137 of the Regulations of the Registry, a professional investigator shall have established competence in international or criminal law and procedure and at least ten years of relevant experience in investigative work in criminal proceedings at national or international level.
294 Draft Counsel Strategy, para. 54. The Registry has indicated its commitment to encourage more qualified women to apply, and to achieve greater geographic diversity.
295 Draft Counsel Strategy, para. 47; Human Rights Watch interview with ICC staff, The Hague, April 8, 2008.
296 Human Rights Watch interview with ICC staff, The Hague, April 8, 2008.
297 Draft Counsel Strategy, para. 2; Human Rights Watch interview with ICC staff, The Hague, April 8, 2008.
298 Draft Counsel Strategy, para. 11.
299 Human Rights Watch interview with ICC staff, The Hague, October 18, 2007.
300 See ICC, Sixth Seminar of Counsel, May 12 and 13, 2008, Agenda http://www.icc cpi.int/library/organs/registry/6thSeminarProg-ENG.pdf (accessed June 11, 2008). According to the counsel strategy, the aim of the training is to standardize, as far as possible, the practice before the court among legal professionals coming from diverse legal cultures. Draft Counsel Strategy, para. 53.
301 Human Rights Watch interview with ICC staff, The Hague, April 8, 2008.
302 For legal representatives of victims, the Office of Public Counsel for Victims could provide this training. See Part VII, below.
303 Rules of Procedure and Evidence, rule 20(1)(c). Human Rights Watch interview with ICC staff, The Hague, April 8, 2008.
304 Rome Statute, arts. 55(2)(c) and 67(1)(d).
305 Under the courts legal aid system, victims who have been accepted to participate in proceedings may be eligible for financial aid to obtain legal representation in proceedings. The legal aid system also covers the cost of ad hoc and duty counsel (when the OPCD does not act).
306 The legal aid system at the ICTY, originally paid on an hourly basis, has been revised multiple times in the history of the tribunal, and counsel are now paid in a lump sum which varies for each case according to a number of factors, including the complexity of the case. The Special Court for Sierra Leone operates under a lump sum system similar to that implemented during the trial phase of the ICTY. At the ICTR, counsel are paid at an hourly rate with a monthly ceiling on the maximum amount payable. See ASP, Report to the Assembly of States Parties on options for ensuring adequate defence counsel for accused persons, paras. 13-15.
307 The court identified the following difficulties in early proceedings, which strained the capacity of defense counsel: short time limits in proceedings, interventions by victims in proceedings, and practical problems using the electronic disclosure system. See ASP, Report on the operation of the Courts legal aid system and proposals for its amendment, ICC-ASP/6/4, May 31, 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-4_English..pdf (accessed July 3, 2008), para. 18 (Report on the operation of the Courts legal aid system and proposals for its amendment); ASP, Report to the Assembly of States Parties on options for ensuring adequate defence counsel for accused persons (ICC-ASP/3/16) Update to Annex 2: Payment details of the ICC legal aid scheme, ICC-ASP/5/INF.1, October 31, 2006, http://www.icc-cpi.int/library/asp/ICC-ASP-5-INF1_English.pdf (accessed June 11, 2008); ASP, Report to the Assembly of States Parties on options for ensuring adequate defence counsel for accused persons, ICC-ASP/3/16, August 17, 2004, http://www.icc-cpi.int/library/asp/ICC-ASP-3-16-_defence_counsel_English.pdf (accessed July 3, 2008).
308 ASP, Report of the Committee on Budget and Finance on the work of its eighth session, ICC-ASP/6/2, May 29, 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-2_English.pdf (accessed June 11, 2008), para. 80. While endorsing the system, the CBF took the view that additional costs incurred should be met by the existing budget for legal aid. Ibid., para. 81.
309ASP, Report of the Committee on Budget and Finance on the work of its ninth session, ICC-ASP/6/12, September 28, 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-12_English.pdf (accessed June 11, 2008), para. 72. The CBF also noted that the court had chosen to create a scheme of funding for the defence of indigent accused as well as a public defenders office (referring to the OPCD) and that these combined resources could lead to an unprecedented level of expense. As discussed above, however, the OPCD is not a public defenders office, and the resources allocated to it are more streamlined as a result.
310 ASP, Report of the Committee on Budget and Finance on the work of its fourth session, ICC-ASP/4/2, April 15, 2005, http://www.icc-cpi.int/library/asp/ICC-ASP-4-2_English.pdf (accessed June 11, 2008), para. 49.
311 Mark S. Ellis, The Evolution of Defence Counsel Appearing Before the International Criminal Tribunal for the Former Yugoslavia, New England Law Review, vol. 37 (2003), pp.964-966.
312 See ASP, Report on the principles and criteria for the determination of indigence for the purposes of legal aid (pursuant to paragraph 116 of the Report of the Committee on Budget and Finance of 13 August 2004), ICC-ASP/6/INF.1, May 31, 2007, http://www.icc-cpi.int/library/asp/ICC-ASP-6-INF.1_English.pdf (accessed June 11, 2008), paras. 23, 33 (Report on the principles and criteria for the determination of indigence).
313 The court estimates that the average length of a case before the ICC (from pre-trial to the appeals phase) is 51 months, and the cost of mounting a defense during that period is 1,259, 496 ($1,979,835). ASP, Report on the principles and criteria for the determination of indigence, annex. By way of comparison, according to the UNs assessment of the costs at the ICTY issued in 1999, a defense team in the ICTY at the pre-trial stage then cost the tribunal (on average) $22,000 (13,994) to $25,000 (15,903) per month, which increased to about $45,000 (28,625) during the trial. See Ellis, The Evolution of Defence Counsel, p. 953. The ICC has not yet finalized the threshold for determining a victims indigence.
314 Court Regulations, reg. 84(2); ASP, Report on the principles and criteria for the determination of indigence, para. 8.
315 Ibid. These factors are also considered in assessing requests from victim participants for legal aid. The scope of the legal assistanceand therefore the overall amount availableto victims is determined by the Registrar in consultation with the chamber where appropriate. See Court Regulations, reg. 83(2).
316 ASP, Report on the principles and criteria for the determination of indigence, para. 27.
317 Human Rights Watch email correspondence with ICC staff, June 9, 2008.
318 Court Regulations, reg. 85(1).
319 Ibid., reg. 84(1). A finding of partial indigence means the defendant has enough resources, after deducting estimated monthly expenses (including living expenses), to cover the costs of representation during some phases of proceedings. ASP, Report on the principles and criteria for the determination of indigence, para. 22-23.
320 ASP, Report on the operation of the Courts legal aid system and proposals for its amendment, paras. 32-33. The lead counsel has the discretion to use the resources allocated for the associate counsel to recruit instead a legal assistant and a general services assistant.
321 Under this system, the lead defense counsel is paid at a P-5 level; the associate counsel, P-4; legal assistant, P-2; and case manager, P-1. Ibid., para. 32(a).
322 Court Regulations, regs. 83(3) and 83(4).
323 One full-time equivalent would allow the lead counsel to hire an additional legal assistant, while three full-time equivalents would permit the hiring of an additional associate counsel. ASP, Report on the operation of the Courts legal aid system and proposals for its amendment, paras. 35-36.
324 Human Rights Watch interview with ICTY defense counsel, The Hague, October 17, 2007.
325 ASP, Report on the operation of the Courts legal aid system and proposals for its amendment, para. 45.
326 Ibid., para. 23.
327 Human Rights Watch interview with Jean Flamme, former defense counsel to Thomas Lubanga, Ghent, Belgium, November 8, 2007; see also International Bar Association, IBA Monitoring Report: International Criminal Court, November, 2007, http://www.ibanet.org/images/downloads/11_Report_IBA_Monitoring_Report_ICC_November_2007.pdf (accessed June 11, 2008), p. 36.
328 Postponement of Confirmation Hearing Request Decision, p. 7.
329 ASP, Report on the operation of the Courts legal aid system and proposals for its amendment, para. 23.
330 Ibid., paras. 46-50.
331 Regulation 137(2) of the Regulations of the Registry states that a professional investigator shall have established competence in international or criminal law and procedure and at least ten years of relevant experience in investigative work in criminal proceedings at national and international level. A professional investigator shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Subject to exceptional circumstances, he or she shall speak at least one of the languages of the country in which the investigation is being conducted.
332 Human Rights Watch interview with ICC staff, The Hague, April 8, 2008.
333 Regulations of the Registry, reg. 139(2).
334 Human Rights Watch interview with Jean Flamme, former defense counsel to Thomas Lubanga, Ghent, Belgium, November 8, 2007.
335 ASP, Report on the operation of the Courts legal aid system and proposals for its amendment, para. 47.
336 Situation in the DRC, ICC, Case No. ICC-01/04-01/06, Hearing Transcript, February 13, 2008, p. 7.
337 ASP, Report on the operation of the Courts legal aid system and proposals for its amendment, para. 3. This position is currently vacant. In the interim, however, the court has recruited a temporary consultant.
338 Regulations of the Registry, reg. 136(2)(b). There are three legal aid commissioners, all of whom are appointed by the Registrar. They provide the Registrar with advice regarding the management of funds allocated by the ASP for the legal aid system and operate independently.
339 ASP, Report on the operation of the Courts legal aid system and proposals for its amendment, para. 63. The original percentage split was 60 percent upon submission of the statement and 40 percent at the end of the phase or in six months. This was changed to the current percentage split based on strong objections by defense counsel, among others. The ICTY also uses a deferred payment system (80/20 percent). The practice of deferred fees is not used by the ICTR.
340 Ibid. para. 64.
341 Ibid., para. 65. Payment in full is important for these other team members because of their lower salaries.
342CourtRegulations, reg. 26. See also Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Submission of a new version of the e-court protocol prepared jointly by the Office of the Prosecutor, the Defence and the Registry, July 20, 2006; Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Consolidated e-court protocol, April 4, 2008.
343 Draft Counsel Strategy, para. 50.
344 See Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on the procedures to be adopted for ex parte proceedings, December 6, 2007.
345 See Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Separate and Dissenting Opinion of Judge Blattmann attached to Decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters, April 28, 2008, paras. 4-6, annex 3 to Decision issuing a confidential and a public redacted version of Decision on disclosure issues, responsibilities for protective measures and other procedural matters, May 8, 2008, para. 10.