Ever since the International Criminal Court (ICC) was established, it has been rather unfashionable for defense counsel to praise the ICC Registrar for attempting, let along getting, something right for the Defense. Why?
Much lip service is paid to the fair trial rights of the accused, the need for a robust defense for all accused, and, let’s not overlook, the attainment of equality of arms. While the ICC from its inception has extolled the virtues of the role played by defense counsel, it has, unabashedly, provided a pauper’s wage and meager resources. Any prosecutor or judge would cringe were he or she in the dock dependent on a court-financed defense of the type funded by the ICC. Nothing new; with one or two exceptions, other international(ized) tribunals and courts are only marginally better. The ICC, however, has taken it to the near extreme.
Since the ICC was founded, its Legal Aid System (LAS) has been an issue for defense counsel. The ICC Registrars have known of the inequitable payment and resource scheme under which defense counsel have been laboring, but none of them have shown an inkling of interest in addressing the issue – none until the current ICC Registrar, Herman von Hebel. This may be attributed to the lack of appreciation of the importance of the Defense to the legitimacy of the ICC by some members of the Assembly of States Parties (ASP). And, let’s be honest, there is little profit for a Registrar in pushing to enlarge the budgetary allotment for the Defense.
Von Hebel is not beyond criticism by the Defense. Hard not to be, particularly in matters where he has non-delegable responsibility with negligible discretionary authority. Tough spot to be in, though it comes with the territory of being the Registrar of this leviathan. Be that as it may, von Hebel seems to have gotten the ball rolling on revisiting the LAS. Hats off to him.
Who decides anyway?
When it comes to the LAS, the ICC paymasters, the ASP, are the puppeteers, the deciders. This does not mean, however, that the Registrar and others are in no position to influence the ASP on the LAS. Past Registrars were of the let them eat cake variety. Apathetic. Not von Hebel. I am not suggesting that I entirely agreed with all the ReVision proposals impacting the Defense, but for the most part, he has come to the table in good faith and with inventive ideas. He was the first and only Registrar to encourage, support, and assist in the establishment of an association for List Counsel and their assistants – the International Criminal Court Bar Association (ICCBA). No minor undertaking
In the past, I have noted the shockingly inadequate pay and resources for defense counsel, their assistants, and for providing effective legal representation. Not only has it been inadequate from the ICC’s very existence, but in 2012, the rates were slashed by a scandalous 25%.1 Decision of the Bureau on Legal Aid, ICC-ASP-2012, 23 March 2012; Global Diligence LLP, Assessment of the ICC’s Legal Aid System, 5 January 2017, para. 136. There is plenty of blame to go around for this inequity. Rather than fix blame, effort should be made finding solutions. That is what the Registrar seems to be attempting to do: tackling the LAS – a project that is likely to consume considerable time, effort, and resources of the Registry. As for his commitment and ability to deliver the goods, the proof is not just in the pudding, but in the tasting as well. Time will tell.
Commissioning Reports on the LAS
On 14 April 2015, the Registrar commissioned the International Criminal Justice Consortium (ICJC) to conduct an assessment. Its mandate, formulated by the ASP, was “to reassess the functioning of the legal aid system…pay[ing] special attention to the determination of indigence and the resources required for the legal representation of victims, including the ability of counsels to consult with victims.”2 Mandates of the Assembly of States Parties for the Intersessional Period, 27 November 2013, Resolution ICC-ASP/12/Res.8, annex I, para. 6(c). See also International Criminal Justice Consortium, A Report on the Assessment of the Functioning of the International Criminal Court’s Legal Aid System, 27 October 2015, para. 11, annexed to Global Diligence LLP, Assessment of the ICC’s Legal Aid System, 5 January 2017, Attachment E. For various reasons (primarily for the lack of time), the Registrar decided that the ICJC should confine its report to an assessment, and not address recommendations.3 International Criminal Justice Consortium, A Report on the Assessment of the Functioning of the International Criminal Court’s Legal Aid System, 27 October 2015, paras. 12-13.
Thereafter, the Registrar commissioned Richard J. Rogers of the Global Diligence LLP: international law and human rights compliance (GD) to conduct a similar assessment. The GD’s terms of reference specified that the expert must “undertake a comprehensive consultation with relevant stakeholders involved…, research the legal aid systems in three other UN assisted criminal tribunals,… [and] draft a report aimed at improving the functioning [of the LAS].”4 Global Diligence LLP, Assessment of the ICC’s Legal Aid System, 5 January 2017, para. 2. With both assessment reports in, the Registrar is now soliciting comments from List Counsel through the ICCBA.
Sketches on the reports
Both reports are solid, though not without weaknesses. On balance, the reports provide a solid basis for the Registrar to commence a serious discussion with List Counsel and others in adjusting the payment scheme and resource allocation.
Those who have a vested interest need to give serious consideration to the assessments and proposed recommendations.
The reports speak for themselves. Without getting into the weeds, here are some general observations, for what they are worth.
The ICJC’s assessment was made by four experts: Hon. Marcel Lemonde, James Bethke, Andrew Silverman, and Prof. Lorena Bachmaier Winter. All are highly competent in their own right, but each has limits to their relevant experience. Lemonde was a career French investigative judge with limited international experience and no experience as a defense counsel. Bethke and Silverman are well versed in legal aid matters with relevant domestic experience, but with no international experience. Prof. Bachmaier Winter has considerable and diverse academic experience, but has not practiced domestic or international criminal law, and it is unclear if she has any experience concerning legal aid matters. The ICJC experts conducted few interviews and made no comparative analysis between the ICC’s LAS and that of other international(ized) tribunals and courts. That said, they recognized the benefit of having a section dedicated to all matters related to the Defense, much like the institutional model of the Special Tribunal for Lebanon.
The GD report by Rogers is more detailed – though he clearly benefited by having the ICJC report. Rogers went further than the ICJC experts by conducting extensive interviews (full disclosure, I was consulted) and a comparative study of the legal aid schemes of the various international(ized) tribunals and courts. This proved to be highly useful, though a cautionary note is essential: anyone working at the various tribunals knows that comparisons are largely anecdotal, and to the unwary can even be deluding. No tribunal or court functions the same.
Based on the recommendations offered by Rogers, it seems clear that his proposed solutions are similar to the modalities he helped formulate while working at the Defence Support Section of the Extraordinary Chambers in the Courts of Cambodia (ECCC). My main criticism with this is that the payment scheme with the “uplift” provision (increasing the basic fee to cover the cost of professional charges such as bar fees, chambers fees / office expenses, pension, health care, income and other taxes, etc.) has not been equitable; some highly experienced counsel – depending on where they are from and what their domestic office costs are – get paid less than counsel with less experience. Thus, the uplift provision is not something I would outright embrace.
Rogers, like the ICJC experts, makes a comparison of the funds allocated to the Office of the Prosecutor (OTP) versus those allocated to the Defense. Looking at the raw figures and translating them into percentages can be striking, but can also be misleading. No comparison, for instance, was made (perhaps due to the lack of time or available data) with what the OTP needs as an operating budget in conducting all of its affairs. For instance, the OTP is required to examine “all communications and situations that come to its attention based on the statutory criteria and the information available.”5 ICC-OTP Report on Preliminary Examination Activities, 14 November 2016, para. 1, citing ICC-OTP, Policy Paper on Preliminary Examinations, November 2013. The ICC-OTP claims that since 2015, it has received 477 communications relating to Article 15 of the Rome Statute. It then must conduct preliminary investigations, and so on. Considering its mandate, it is to be expected that the OTP’s budget would dwarf the Defense’s budget. Thus, presenting statistics and percentage comparisons to other international(ized) tribunals and courts6 See Global Diligence LLP, Assessment of the ICC’s Legal Aid System, 5 January 2017, Part II, Section III, “Comparison Charts”, pp. 15-20; International Criminal Justice Consortium, A Report on the Assessment of the Functioning of the International Criminal Court’s Legal Aid System, 27 October 2015, pp. 14-22. is not terribly useful to the debate as to what is a fair and reasonable LAS for defense teams representing indigent accused at the ICC.
The issue for me is simple: what is an equitable payment scheme for competent defense counsel and their staff, and what resources are needed for a defense team to fully prepare the case for whatever stage it may be? Also, what is a fair daily rate and fee scheme for duty counsel?
I am more concerned about having a semblance of equal arms with the OTP in investigating the case, filing all relevant and necessary submissions, securing all relevant and necessary witnesses, including expert witnesses, and in trying the case with a qualified and adequate staff that is properly remunerated. Pro bono legal consultants are a welcomed resource, but they should not be factored into the equality of arms equation. This is added and valuable assistance, but it is not, nor should it be, considered a substitute for paid staff. Depending on the complexity and magnitude of the case, lead counsel should be entitled to assemble a team that meets his or her needs; the human and financial resources allocated must comparatively match the OTP’s in light of each side’s respective functions and responsibilities.
The ICJC makes no concrete recommendations. Rogers does; they are thoughtful and measured. For the most part, I agree with Rogers, though I also find some of his proposals overly formulaic and unnecessarily complex. What is needed is simplicity; overcomplicating an already overcomplicated LAS is not useful, especially when it is widely accepted that the ICC Counsel Support Section is understaffed, overburdened by unnecessary bureaucratic chores, and drowning under the weight of all sorts of nonsensical paperwork and administrative tasks.
My take
I would simplify the LAS and model it after the one adopted by the International Criminal Tribunal for the former Yugoslavia
The ICTY scheme is not without weaknesses. One major weakness is that the staff (legal assistants, case managers, investigators, etc.) are not sufficiently protected by providing a minimum salary threshold – as is now the case at the ICC and other courts, such as the ECCC. Rogers appropriately shows the pay disparity between the ICC and the international(ized) tribunals and courts. Strikingly, the salaries for defense staff at the ICC who live and work in The Hague, are significantly lower than the salaries of those working at the ECCC, who work in Phnom Penh where the cost of living is notably lower.
The lump sum system works and has a proven record. In revising the LAS, my advice is for the Registrar to seriously consider the observations and recommendations of the two reports, using the ICTY lump sum system as a point of departure in creating a boutique LAS best suited for the ICC.
More on this to follow, no doubt.
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