On 19 June 2016 the Registry of the International Criminal Court (“ICC”) hosted a full day consultation seminar on the ICC’s Legal Aid Scheme (“LAS”). The seminar followed the publication of two expert reports by the International Justice Consortium (“ICJC”) and Richard J. Rogers (the ICJC report is annexed to Rogers’ report), which I commented on in a previous post. The point of the seminar was for relevant stakeholders – ICC List Counsel, Counsel from other international(ized) criminal tribunals and courts, and organizations such as the International Criminal Court Bar Association (“ICCBA”) and the Association of Defence Counsel practising before the International Courts and Tribunals (“ADC”) – to exchange views with the Registrar on refashioning the LAS.
“Why now?” – as the Registrar muses in his Draft Concept Paper – well, the Assembly of States Parties (“ASP”) had requested the Court “to reassess the functioning of the legal aid system and to present, as appropriate, proposals for adjustments … for the consideration of the Assembly at its sixteenth session,”(( Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Fifteenth session, The Hague, 16-24 November 2016 (ICC-ASP/15/20), vol. I, part III, ICC-ASP/15/Res.5, para. 64.)) which will be held from 4 to 14 December 2017 in New York. Sounds good, but hardly convincing. The problem has been known for years. In fact, I suggested to the Registrar back in June 2015 that he tackle this issue meaningfully by convening a working group to deal with the LAS, which he candidly acknowledged needed to be improved. He was waiting for a report of experts, but when the report was delivered, it was so deficient that it appeared that he had no choice but to commission a second report. My point: what a waste of time. It would have cost the Registry (or the ICCBA for that matter) nothing to have convened a working group to deal not only with the big picture, but also the pesky details.
Anyway, don’t hold your breath for any immediate changes in the LAS; the changes are unlikely to come this year. Summer is upon us. By the time the process picks up any steam – if it ever does – it will be around mid-September. In any event, the ASP’s budget for next year is a done deal. And there is also no sense in presenting a rushed, half-baked proposal (as some have proposed) that will shut down any further discussion.
The seminar was divided into several sessions, covering topics such as remuneration, case complexity, team composition, investigative budget, and other matters such as Article 70 cases. In each session, Rogers provided his observations from his report before opening the floor up to questions and comments. At the end of the seminar, the Registrar set a deadline of 3 July 2017 for further comments.
Devoting a full day to consultations was a great idea, but poorly executed. Submissions were requested, though unfortunately, the Registrar did not circulate them to attendants prior to the seminar (and has yet to do so). Expectedly, the meeting was not very productive; no concrete details were worked out. Though these sorts of meetings rarely produce much, they are useful in letting some folks vent their frustrations. Others toss up ideas like trial balloons, and occasionally, result in productive discussions even if no results emerge.
Though I was unable to attend the seminar due to a schedule conflict, I provided a detailed commentary to the Registrar based on the Draft Concept Paper and the report by Rogers. Rogers’ observations are generally sound as a starting point, though I found some matters in his report insufficiently nuanced. In my commentary, I sought to provide the Registrar and those responsible for refashioning the LAS with the big picture elements: the necessary context that should guide decisions as to what is reasonable and necessary for effective representation.
Here, I will provide just some of my observations on the topics discussed during the seminar; an appetizer, if you will. For the more comprehensive analysis see my commentary.
Remuneration and Case Complexity
As I have remarked in the past, I think much of the administration-frustration over the LAS can be resolved by adopting a modified version of the lump sum/case complexity model applied at the International Criminal Tribunal for the former Yugoslavia (“ICTY”), where a certain amount of hours are provided for each stage of the proceedings based on case complexity, with flexibility to augment the hours upon a showing of need. Lead Counsel and Co-Counsel should be remunerated for those hours at rates comparable to other international(ized) criminal tribunals and courts and adjusted based on increases in the cost of living. Support staff (Legal Assistants/Consultants and Case Managers), on the other hand, should be compensated at roughly the same level as their Prosecution and Chambers counterparts, and should enjoy virtually the same benefits (paid leave, maternity leave, health insurance, etc.).
Though some have argued that the ICC is too different to apply a lump sum/case complexity model, this argument is overblown and pedestrian. Yes, the Rome Statute is unique (and in no small measure, unnecessarily complicated), but so what? Yes, the ICC covers a larger geographical scope than the ICTY, but all cases require Defence Counsel to perform more or less the same functions throughout the proceedings and there must be some determination of case complexity to identify what is needed in each particular case: how many staff members should a team be entitled to, what sort of resources are needed for the investigation, etc. The lump sum/case complexity model is sufficiently flexible, allowing for resource-allocation to be adjusted at various stages of the proceedings as it becomes apparent that more (or less) resources are necessary. And as I noted, additional resources should be made available based on a showing of need.
Team Composition
Irrespective of case size, the “core” team should consist at a minimum of the following members: Lead Counsel, Co-Counsel, Legal Assistant/Consultant, Case Manager, and Investigator. However, flexibility is necessary to increase or decrease the core team depending on the circumstances. A one-size-fits-all approach is not appropriate. Also, it is ridiculous to suggest that the early stages of the proceedings (pre-confirmation) require only a modest team. It is difficult to assess from the outset how many hours or what sort of staff are required. The initial stages can be very dynamic, requiring significant resources if the Defence is to mount successful challenges at the confirmation stage. And let’s not forget about the steep learning curve and the inequality of arms. At this point the Prosecution is on top of the case for months, if not years, and have a staff dedicated to the case and an in-situ network for gathering additional evidence. Conversely, the Defence is wading through a morass of disclosure material, much of which may not even be the most damaging or challenging evidence in the Prosecution’s file.
Investigative Budget
Placing a monetary value on the investigative budget, as is currently the practice at the ICC, is unwise. It ends up being an arbitrary figure that requires Counsel to constantly have to negotiate with the Counsel Support Section (“CSS”) for additional funds. Rather, a system should be introduced based on a number of hours. For example, Defence Counsel could be allocated 1,000 billable hours that could be used for a variety of purposes, one of which could be for investigative purposes. The hours should be transferrable, so that if they are not used up for investigations, they can be used for other purposes, such as drafting submissions.
Article 70 Cases
While Article 70 cases are generally, but not necessarily, less complex than Article 5 cases, resources should not be reduced to the point that Defence Counsel can no longer provide effective legal assistance. Some Article 70 trials could take a week, while others may last a year, or more. Resources should be flexible and be based on actual needs. For example, in Bemba et al., there was significant material coming in through bar table motions – hundreds of hours of audio recordings, financial records, and other materials(( See e.g., Prosecutor v. Bemba et al., ICC-01/05-01/13-1013-Red, Public redacted version of “Prosecution’s First Request for the Admission of Evidence from the Bar Table”, 16 June 2015, ICC-01/05-01/13-1013-Conf, 23 June 2015.)) – all of which required thorough review and analysis. This would have been impossible with reduced Defence teams.
Way Forward
What is now required is to go forward and to impose deadlines to avoid the process dragging out into analysis-paralysis. A working group should be formed by the Registrar with no more than a dozen participants (if not fewer) to start working out the details. In addition to a couple of independent Counsel, the working group should include delegates of the ASP, Judges, and CSS staff members.
The ASP needs to be involved and have ownership in the product. To present the ASP with a LAS that fails to consider their auditory demands is an exercise in futility. Including the ASP in the process is also necessary to educate them on what it takes to defend cases before the ICC: what the Defence do, why we do it, how we do it, and the resources we need to do it. The fact that we are now having this discussion more than 14 years after the ICC became operational shows a disconnect between those practicing before the ICC and those making decisions on the Court’s funding.
The ICCBA should have been educating the ASP throughout the course of the year. It should have formed – as I suggested last year – a blue-ribbon panel of experienced lawyers and experts to devise a comprehensive draft LAS proposal with all the details worked out. Inexcusably, the ICCBA waited for Rogers to hand them his observations on a silver platter before making any submissions (effectively just adopting Rogers’ recommendations).
The working group should include a Judge or two Judges (preferably with past experience as Defence Counsel); their inside knowledge of the conduct of the proceedings and case complexity is valuable. The CSS staff also need to be involved because in the end they are responsible for administering the LAS; the more cumbersome the LAS is for the CSS, the less efficient and more frustrating the process becomes.
Once a draft LAS is in the works, it can be circulated to Counsel and assistants on the ICC lists and relevant organizations for comment. Another workshop or two can be held to flush out any remaining issues. The process must be dynamic with a bias for action.
Having another general consultation seminar with a large group of participants at this point is useless. It will result in some individuals grandstanding, while avoiding the difficult topics and dealing with the critical details. And in the end, the Registrar is likely to present a fait accompli proposal that fails to satisfy the needs of Defence Counsel.
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