The MICT model: panacea or chimera?

On 20 September 2016 a press release was issued by the United Nations Mechanism for International Criminal Tribunals (“MICT”), also referred to as “the Mechanism”, describing a presentation given by MICT President Judge Theodor Meron at The Hague Institute for Global Justice. The press release described President Meron’s view that the MICT presented itself as a new model for international justice. Under this model, courts could be more streamlined and cost-effective by having a roster of judges on call who would step into the breach only when needed, as opposed to being in situ, collecting a full-time salary with benefits. This model is likely the brave new world and is being advocated by some who are looking for alternatives or complements to the International Criminal Court (“ICC”).

Such ad hoc tribunals – presumably if under the auspices of the UN Security Council – could more effectively deal with international crimes in discrete circumstances.  The ad hoc model, minus the efficiency modalities being introduced by the MICT, seems to have worked well for the former Yugoslavia and Rwanda, though critics have pointed out that these judicial institutions were highly politicized and transparently agenda-based. At the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) there was a noticeable targeting of Serbs, and to a lesser extent Croats, with Muslims/Bosniaks by and large getting a pass. At the International Criminal Tribunal for Rwanda (“ICTR”) not a single Tutsi was indicted. In fact, when Madame Carla Del Ponte dared to investigate Tutsis, her wings were clipped; her remit no longer covered the ICTR.

This sort of criticism is prevalent with virtually every international criminal tribunal, and there will always be such complaints.  Who is or should be prosecuted, and for what, are discretionary issues since these tribunals are not equipped to try every alleged accused for every alleged or perceived crime. The other defect in the ad hoc models is the clear, but disregarded conflict in the judiciary, often, but not always in the person of the president, involving itself in prosecutions, propaganda, and politics in the regions.1See annual speeches by the ICTY President commemorating Srebrenica events: Address by ICTY President Theodor Meron, At Potocari Memorial Cemetery, 23 June 2004 (after Judge Meron presided over the appeal in Prosecutor v. Krstić, IT-98-33, “Srebrenica-Drina Corps”); President Theodor Meron to Attend Srebrenica Genocide 10th Anniversary Commemoration at Potocari Memorial, 21 June 2005; and more recently: President Meron addresses Srebrenica Genocide 20th Anniversary Commemoration at Potočari Memorial, 11 July 2015; President Agius pays tribute to victims of Srebrenica genocide, 11 July 2016.

In any event, with the continuing dysfunctionality of the ICC after over a decade of trying to get it right, despite the benefit of lessons learned from other tribunals, setting up cost-efficient ad hoc tribunals with discrete mandates may be a rational alternative to the ICC. This option also serves the interests of those who do not subscribe to the ICC’s model of international justice, namely the big three (the United States, Russia and China) of the UN Security Council.  Some will also be quick to point out the benefits of the big-tent approach to international justice – the more tribunals the merrier. Professor Carsten Stahn, in his excellent article in EJIL: Talk! (Tribunals are Dead, Long Live Tribunals: MICT, the Kosovo Specialist Chambers and the Turn to New Hybridity), seems to welcome this multi-dimensional approach.  Professor Stahn nicely describes what he calls the “4D” nature of international criminal justice: “domestic, international, hybrid and regional,” though I found his exposé a wee bit wanting.   He did not share with us his views on whether the emergence of these new courts and this resurgence in hybridity (or, as I prefer, “boutique” tribunals, since every international or internationalized tribunal is to some extent a hybrid) demonstrates that the ICC is being marginalized, if not becoming irrelevant. Is the ICC turning into the big engine that couldn’t?   

Back to the MICT: the new model for efficient international justice.

chimera_apulia_louvre_k362There is much to be said for running efficient tribunals.  In this context it makes perfect sense to have judges being paid only when they actually work. I cannot speak for the prosecutors (though the ones I know who are in the trenches tend to work very hard), but defence counsel only get paid when they work, and even then, not always, not completely, and not commensurately.  Under the MICT – this new “lean and efficient” tribunal – defence counsel are expected to do a good deal of pro bono work.  It is typical that those getting the least are the first in line to get less.  Scandalous.

The MICT was established as a natural result of the completion strategy of the ICTY and ICTR.2See UN Security Council Resolution 1966 (2010) establishing the MICT, S/Res/1966/2010, 22 December 2010, Preamble. Even after all the trials and appeals are concluded (never mind if there is a retrial, such as in Stanišić & Simatović, IT-03-69), there are post-conviction and post-acquittal relief matters that require services and interventions.  For instance, accused who have been tried and acquitted and whose judgments are final find themselves in limbo because they are unable to return to their countries of origin (usually the case with those from Rwanda who were acquitted by the ICTR) and have trouble finding a country that would accept them.  Or what about when there is newly discovered exculpatory evidence that would have tipped the balance had it been known during trial or appeal? Or when an incarcerated accused seeks early release due to health reasons or having served two-thirds of the sentence, etc.?

Anyone who has dealt with claims for compensation for unlawful detention or relocation and family reunification for acquittees knows these are complex, time consuming, and exhausting.  They generally require a review of the case on its substantive merits and/or procedural correctness. Many of these issues are also likely to be issues of first impression at the MICT, requiring extensive research, creative thinking, and incisive drafting. Also, the Registrar, who is responsible for determining the fees and resources to be allocated for such matters, is certain to be involved as a party on many occasions.

burdenDespite these complexities and challenges, the MICT’s solution is to deny these claimants any legal assistance unless the claimants retain private counsel or have the good fortune to secure the services of competent pro bono counsel. In other words, the judges who review the matters get paid, as do their staff, the prosecutors and their staff, and the Registry staff.  Even the electric bill gets paid. Only defence counsel are expected to work for free, unsupported and without resources.  Former accused and convicted persons may engage pro bono counsel to represent them before the MICT, but only if exceptional circumstances are found and a judicial order is issued will the MICT grant legal aid for post-conviction issues.3The Mechanism does not have a procedure for making applications for legal aid post-conviction, nor does it have a policy to administer such legal aid. The practice of the Mechanism is not to provide legal aid for post-conviction matters unless ordered by a Judge in the interests of justice. “As a matter of principle, it is not for the Mechanism to assist a convicted person whose case has reached finality with any new investigation he would like to conduct or any new motion he may wish to bring by assigning him legal assistance at the Mechanism’s expense…. It is only in exceptional circumstances that a convicted person will be granted legal assistance at the expense of the Mechanism after a final judgement has been rendered against him.” See In the Case Against Florence Hartmann, MICT-15-87-ES, Decision of the President on the Urgent Request for Legal Aid, 29 March 2016, para. 13; Niyitegeka v. Prosecutor, MICT-12-l6-R, Decision on Niyitegeka’s Request for Review and Assignment of Counsel, 13 July 2015, para. 8.

To be fair, last year the MICT Registry magnanimously informed the Association of Defence Counsel Practising before the ICTY (“ADC-ICTY”), the professional association officially recognized by the MICT, that despite the absence of an entitlement to legal assistance, the MICT would aid convicted persons in obtaining pro bono counsel to assist with post-conviction matters by establishing a list of pro bono counsel. Irony of all ironies, however, the MICT Registry also shared the limits (or absurdity) of its magnanimity: even if legal aid were granted for exceptional circumstances, the pro bono counsel who picked up the baton and scaled that high bar of exceptional circumstances, thus securing the golden fleece of legal aid assistance, would not necessarily be appointed to the post-conviction matter, despite having spent his or her own uncompensated time and resources working on the case. The word you are searching for, dear reader, is disincentive. Flagrant, soulless, and needless.

While it is commendable that the Registrar saw the need for some quality control on who could be on the pro bono list,4The barest of minimums was requested – one must: a. be admitted to the practice of law in a State and in good standing with a bar association, or be a university professor of law; and b. possess written and oral proficiency in one of the two working languages of the MICT. it boggles the mind that competent defence counsel are expected to provide pro bono legal services lest those seeking post-conviction or post-acquittal relief be left to their own devices – to act pro se or abandon all hope ye who enter here (to paraphrase from Dante’s Divine Comedy).

The MICT is unable to see the inequity of its legal aid policy.  Pity.  The solution is simple.  Those seeking post-conviction relief could be provided with duty counsel with a very limited remit and fixed fee (4-8 hours) to review the claim and provide a reasoned submission on the merits of the claim.  If the claim is meritorious, then legal aid should be provided.  A reasonable and transparent legal aid scheme can be adopted with consultation from the ADC-ICTY.  But the MICT obdurately remains unmoved.

I am not saying anything novel.  I have raised this matter on several occasions; the last time was in December 2015 at an ADC-ICTY training session, where representatives of the MICT and the Registrar were present to give rhyme and reason to the MICT legal aid scheme and other matters related to representing those before the MICT.

The MICT may stand as the new model for international justice, and it may be a more rational approach than that offered by the ICC, but when it comes to issues related to the equality of arms, fair trial rights, and defence counsel, it seems to be going backwards.  Aside from lowering the fees and resources afforded to the Defence by the ICTY,5Compare ICTY and MICT appeals legal aid policies: ICTY Defence Counsel – Appeals Legal Aid Policy, 18 April 2013, and Remuneration Policy for Persons Representing Indigent Accused in Appeals Proceedings before the Mechanism for International Criminal Tribunals, 21 March 2016. Generally, although the minimum under the MICT is certainly more than under the ICTY policy, the maximum amounts differ by roughly 27,000 Euros in favor of the ICTY policy, still excluding the money reserved for hearing hours. it expects defence counsel to work for free.  The MICT should try to get judges and staff to work for free, let alone without benefits or perquisites.  Let’s see how that works out.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

One thought on “The MICT model: panacea or chimera?”

  1. Thank you Michael Karnavas. Interesting and pertinent analysis. I am writing a paper on the MICT and I shall keep that in mind. Curious to read any follow-up.

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