There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.
US Supreme Court Justice Hugo Black
A fair trial is one in which the rules of evidence are honored, the accused has competent counsel, and the judge enforces the proper courtroom procedures – a trial in which every assumption can be challenged.
Harry Browne
There is much to be said about money buying a good defence. By this I mean a suspect or accused being able to have highly qualified and experienced counsel, to have a defence team that is both ideally suited and diligent, and to have sufficient resources to hire discrete investigators and experts essential in challenging every assumption.
Money does not necessarily guarantee quality, no more than being on the List of Counsel guarantees that counsel has the relevant experience and competence to lead a case before the ICC. But money does generally help when not dependent on legal aid for the quality of lead counsel and the resources in mounting a defence. Don’t get me wrong, there are plenty of top shelf advocates on the ICC List of Counsel. Truth be told, however, the vast majority of suspects and accused are not sophisticated enough to distinguish the excellent from the good, the mediocre, or the inadequate. Generally, they will rely on others (rumors abound on who some of them are and of their methods) to help them out in picking a name off the list of 600-700 names. But this is an issue for another time. Here I want to focus on the draft Legal Aid Policy that the Assembly of State Parties will consider, and most likely adopt – though I would not be surprised if it balks at the modest remuneration increases being offered.
In comparison to other international(ized) criminal tribunals and courts, the ICC gets the honor of being at the bottom of the list in terms of defence remuneration. To be blunt, the fees offered to experienced counsel like myself are insulting; plumbers and electricians, even simple handymen in the Netherlands make more on an hourly basis.
The excuses often heard are that some counsel provide sub-par representation, or that defence counsel can supplement their income by taking on private clients or work on other cases before other tribunals and courts. There may be some truth to this, but it’s a sliver. And it misses the point.
If counsel is sub-par, then the Registry and Counsel Support Services should intervene. Unfortunately, however, this does not happen because of the client’s right to freely select his/her counsel – even if utterly incompetent. I disagree. When the court is paying for legal services, it has the right to replace incompetent counsel. Thus far, however, there have been no officially transparent indications that any counsel has been incompetent; hence, this argument for keeping fees exceptionally low has no traction.
As for working on other cases while in the pre-trial and trial phases at the ICC, while a very few may do so, diligent counsel can barely keep up the pace in meeting his or her professional responsibilities in ensuring the client’s fair trial rights. The cases are far too complex and the procedural modalities far too exacting, with such a negligible margin for error, that it is prohibitive to be working on other cases – especially in trial when the average day can run 14 to 16 hours, including on Saturdays and Sundays.
For years defence counsel have been advocating to be paid on par with their counterparts in the prosecution. Being part of the institution, they not only earn higher fees but also get other social benefits (health insurance, paid leave and employment security, to name a few) and tax exemptions. The defence enjoys none of that. As independent contractors, it is expected that social benefits are not provided – at least not to lead counsel. But it is inexcusable and inequitable for the defence counsel to be paid less. I get the argument: there are plenty of counsel that would take an assignment for less since many of them come from places where the cost of living and fee expectations are far less than those coming from Europe and North America. So what! This excuse does not address the disparity argument.
Effectively, the principle of equality of arms should be respected. This principle generally refers to resources, not remuneration. But if the spirit of the principle is to have a semblance of parity and symmetry, then the remuneration scheme should be somewhat equivalent. The Registrar argues that it is equivalent as it is because defence counsel can earn money on the side by working in their domestic practice or taking on other cases. As I’ve noted, this is a misguided and misapprehended fallacy. Indeed, for the solo practitioner – which is what most defence lawyers are – working a complex case being tried a distance away from their office generally kills their domestic practice. Clients are hiring a specific defence counsel because of their reputation and proven track record of being diligent and experienced. They are not hiring the office but the specific defence lawyer – so even if one is working in an office with other defence lawyers, it is virtually certain that one’s domestic practice will suffer significantly by the lawyer’s unavailable for long periods of times.
Finally, the ICC Legal Aid Policy may get a face-lift. The draft submitted to the Assembly of States Parties, overall, represents a noticeable improvement. Flexibility is included in assessing needs. The complexity levels better reflect the demands of defence teams during each phase of the proceedings. Measures are in place to improve the working conditions for defence team members. Higher pay levels with increases in experience and duties are provided. Much to be thankful for.
Yet, despite these improvements, the deletion of certain language in the text is disconcerting. Initially, the policy acknowledged the need for a degree of equivalence in compensation between a defence team and the prosecution. That language is now gone. Query whether the deleted language would have added anything of substance since it is all relative? Depending on how the numbers are crunched and explanations for disparities offered (as noted below), plausible answers can be reached to cut either way. Having the language in the draft Legal Aid Policy would be more like an anodyne. What really matters is whether sufficient resources are afforded to an indigent suspect and accused in mounting a proper defence. To that end, my experience at the ICC has been positive.
It is regrettable that parity in fees with prosecution counterparts remains unresolved – precisely for the reasons I’ve mentioned. Convinced that defence counsel can make up the difference in the pay disparity because of the possibility of being remunerated for additional cases or taking on other remunerated activities at any given time, the Registrar said as much at a recent Townhall meeting on 27 October 2023 when the draft Legal Aid Policy was unveiled.
Not everyone on the List of Counsel was informed of the Townhall meeting. Not that it would have made much of a difference since the draft Legal Aid Policy was served as a fait accompli. Having learned of this meeting and having been provided with the draft Legal Aid Policy – notwithstanding the needed improvements to make it more fair, more reasonable, and more appropriate – I, along with Suzana Tomanović and Noah Al-Malt wrote to the ICC Registrar, Mr. Osvaldo Zavala Giler, and to the Director of the Division of Judicial Services, Mr. Marc Dubuisson, copying Mr. Pieter Vanaverbeke, Head of Counsel Support Services. In a nine-page memorandum we spelled out the adjustments to the draft Legal Aid Policy that should be considered. Rather than paraphrase from it, the memorandum is reproduced below.
But first, some background information leading up to where we are today.
The ICC’s Legal Aid Policy has been an issue for defense counsel since the court was founded. To add salt to injury, in 2012, the Assembly of States Parties decided to reduce the remuneration of defence team members by doing away with the “mirroring principle” under which remuneration for defence and victims team members was supposed to “ensure a degree of equivalence” with staff members of the court.[1] Instead, in the 2013 Legal Aid Policy, the Assembly of States Parties pegged remuneration for lead counsel at step 5 in the UN common system, in part to account for the possibility that counsel could be remunerated for additional cases or other activities[2] – a misguided assumption as noted.
The ICC Registrars had known of the inequitable payment and resource scheme under which defense counsel were laboring, but none of them had shown an inkling of interest in addressing the issue – none until the former ICC Registrar, Herman von Hebel. Back in April 2015, von Hebel commissioned the International Justice Consortium (“ICJC”) to reassess the functioning of the legal aid system, though for various reasons (primarily, lack of time), he decided that the ICJC should confine its report to an assessment and not address recommendations.[3] When the report was delivered, however, it was so deficient that it appeared that von Hebel had no choice but to commission a second report by Richard J. Rogers of Global Diligence LLP: international law and human rights compliance. Though he clearly benefited by having the ICJC report, Rogers’s report is more detailed, having gone 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.
On balance, both reports provided a solid basis for the Registrar to commence a serious discussion with List Counsel and others on adjusting the payment scheme and resource allocation. A one-day seminar (divided into several sessions) was held in June 2017, covering topics such as remuneration, case complexity, team composition, investigative budget, and other matters such as Article 70 cases. 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. Expectedly, the meeting was not very productive; no concrete details were worked out.
Though I was unable to attend the 2017 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 were generally sound as a starting point, though I found some matters in his report insufficiently nuanced. In my commentary (as in the one below in our memorandum on the draft Legal Aid Policy), I sought to provide the Registrar and those responsible for refashioning the Legal Aid Policy with the big picture elements: the necessary context that should guide decisions as to what is reasonable and necessary for effective representation.
With this backdrop in mind here is our memorandum.
MEMORANDUM
By Michael G. Karnavas, Suzana Tomanović and Noah Al-Malt
Commentary on the Registry’s final proposed draft Legal Aid Policy
This commentary on the Registrar’s final proposed draft Legal Aid Policy of 3 November 2023 is offered with the hope that certain issues will be further explored in more detail and adjusted in the draft policy, or in the near future as further discussions are envisaged. Before offering our comments, however, it merits providing an overview of the essential functions of a defence team to appreciate what is demanded of defence counsel in meeting their ethical obligations of due diligence throughout the various stages of proceedings.
I. Overview of the general functions of the defence team
Initial stages of the proceedings
By the time defence counsel gets into the case, the prosecution has been at it for years, learning the historical context of the events, setting up a network in situ to assist in gathering evidence and questioning witnesses, researching any extraordinary legal issues, etc. With a much larger budget and staff, the prosecution is more flexible and nimbler, and better able to obtain resources quickly. Defence counsel, by contrast, are playing catch-up, with a steep learning curve – even if they have ICC experience and know the ICC regime. Unless afforded sufficient time and resources to absorb, organize, analyze, and synthesize the disclosure material and other secondary material for understanding the events and personalities in question, defence counsel cannot readily discern how to best proceed in the most efficient and cost-effective manner. The cost, time, and value of this case-related institutional knowledge and familiarization process cannot be underestimated.
Having a strong defence at the outset of the case is beneficial to the ICC by assisting in “weeding out weak cases at the confirmation stage,” which results in “huge resource savings (resources that might otherwise have been wasted on full trials ending in acquittals).”[4] Article 66 of the Rome Statute – enshrining the presumption of innocence – assumes that not everyone charged with a crime is guilty. The purpose of the confirmation stage is to screen cases; i.e., to determine “whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.”[5] Effectively, however, the prosecution is confident that its case – much of which, evidentiary wise, may not be revealed at this stage for strategic and tactical reasons – meets the much higher burden for conviction, i.e., beyond reasonable doubt.
With this appreciation, everything a defence team does leading up to the confirmation hearing – conducting investigations, reviewing disclosure material, drafting legal submissions – is dual-purpose and essential for setting up the case for trial. In other words, the defence team’s tasks transcend the confirmation period. Depending on the factual complexity of the case, defence counsel may determine that more investigation is necessary, or conversely, if the case is not as factually complex, focus resources on other aspects of the case. Much of course will also depend on how well the prosecution’s case holds up to scrutiny during cross-examination of its witnesses.
The all too short confirmation of charges phase is labor intensive, requiring diligent defence counsel to be in situ or in The Hague almost exclusively. To sufficiently familiarize him or herself with the case and situation on the ground, defence counsel cannot/should not sit in his/her national jurisdictions and simply delegate these tasks to assistants. Even experienced assistants who may be familiar with ICC jurisprudence and procedure will invariably have a steep learning curve on the facts of the case.
If sufficient resources are not provided at this stage, defence counsel may have to rely on interns to take outsized roles in researching and drafting submissions – something we advise against, just as we advise against relying on Office of Public Counsel for the Defence (“OPCD”) for such tasks. Defence counsel may also have to rely on third parties to assist in investigative tasks such as locating witnesses, taking statements, and gathering evidence. Left unsupervised and to their own devices, these third parties, who often come at the suggestion of the client or his or her family members, friends, and associates, wittingly or unwittingly, may engage in conduct that amounts to evidence tampering under Article 70 of the Rome Statute. Ultimately defence counsel is responsible for the conduct of all team members.[6]
For this reason, not only should this sort of assistance be used with caution, but sufficient resources should be provided to defence counsel to employ experienced staff to monitor, control, guide, and work with these third parties. In every case, third parties will be needed to some degree.
The trial phase
During the trial proceedings, defence counsel are under an even greater threat of either providing ineffective legal assistance or falling afoul of the Trial Chamber’s practice directions, or as already noted, with Article 70 of the Rome Statute. For example, consider the issue of witness preparation. Normally, the start of the familiarization process by the Victims and Witnesses Unit serves as the cut-off date for party contact with the witness.[7] The starting point of the familiarization process is when the witness arrives in the Netherlands, or if testifying by video-link, when the witness arrives to the location of testimony.[8]
In order to have an efficient, effective, and focused examination, defence counsel needs to prepare the witness by: (a) familiarizing the witness with what happens in court (the witness’s function, his/her basic rights such as the right not to answer self-incriminating questions, the role of the parties and judges), and maybe even walking through the courtroom; and (b) going over the witness’s testimony, including any documents that are likely to be shown to the witness, and giving the witness an opportunity to refresh his/her memory with statements that he/she may have given in the past.
If the witness is testifying by video-link, defence counsel will need someone to be in situ to meet with the witness and go over the necessary documents before the cut-off date for meeting with witnesses. During the trial, it is unlikely that the defence team will be able to spare any qualified team members. With the trial proceedings being organic and dynamic, all-hands are needed on deck.
Defence counsel, or whoever does the questioning, does not just show up in court. The preparation process is time consuming, not just for the team member conducting the questioning, but for the case manager and others who need to pitch in to ensure that all practice directions, disclosure obligations, and e-court protocols are met, including, among other tasks, organizing and assessing disclosure material, challenging the continued imposition of redactions, transmitting defence evidence for processing, and undertaking metadata entry.[9] All of this consumes significant time and resources. And, while one witness is testifying, preparation is required for the witness(es) that follow(s). If the composition of the team is inadequate or the team too small, defence counsel runs the ethical risks associated with using in situ unqualified pro bono help or third parties who may or may not be associated with the defence team.
Setting aside the soundness of having a cut-off date (capricious and nonsensical in our opinion), the prosecution is unlikely to have any resource-difficulties in meeting the witnesses in situ and preparing them to give evidence. The same cannot be said for a defence team reliant on the Legal Aid Policy.
Further, written submissions invariably need to be made in the midst of taking evidence. Again, relying on the OPCD to do research or draft submissions should not be seen as a solution. The OPCD may be a resource center and a repository of institutional knowledge, but it should not be relied on as a substitute for the defence team doing its own research and drafting. Outsourcing the work required of the defence team can be ethically dangerous[10] and factually and logistically impractical. Such practice should not be countenanced by the Registrar, let alone touted as a solution to inadequate defence resources. The reality is that conscientious defence counsel would be forced to spend more time framing the issue, providing the factual context and details, confirming the research, and proofing the outsourced product, than would be required to just do it him or herself. There is also the added issue of confidentiality; strategic and tactical decisions should not be shared with anyone outside the defence team, not to mention taking the client out of the loop when relying on persons outside of his/her defence team. Realistically, the Legal Aid Policy is often far too anemic, thus forcing many defence teams to grit their teeth and overly rely on the OPCD, thereby abdicating their responsibilities toward the client and risking professional misconduct.
Appeal phase
The appeal phase is paper-heavy and litigation intensive. In drafting the notices of appeal and the appeal brief, the defence team has the burden of demonstrating and substantiating legal, factual, and procedural errors in the trial judgment and/or sentencing decision and explaining how these errors materially affected the judgment/decision – or face summary dismissal.[11]
The defence team cannot merely repeat arguments advanced during trial or make blanket statements without any references to the trial record.[12] To substantiate legal errors, the defence team must conduct extensive legal research to show how the Trial Chamber misinterpreted the applicable law.[13] For factual errors, the defence team must thoroughly review the transcripts and evidence in the record to show how the Trial Chamber misinterpreted facts, considered irrelevant facts, or failed to consider relevant facts.[14] For procedural errors, the defence team must thoroughly review the submissions and written decisions made during the pre-trial and trial phases, including the sources cited in those materials and additional legal and factual research, to show how the Pre-Trial or Trial Chamber violated a mandatory procedural provision as a result of a factual or legal error or abuse of discretion.[15] And of course, this takes immeasurably more time and effort if defence counsel on appeal did not represent the accused during the trial.
The defence team must also prepare for the prosecution’s response to the defence appeal as well as any prosecution appeals against the judgment or sentencing decision – keeping in mind that the prosecution appeal team is robust, with the further advantage of access to the trial team. This means thoroughly breaking down the prosecution’s submissions, analyzing all cited material, and performing legal and factual research to develop responses and/or replies. After any appeal submissions are filed, the defence team must thoroughly check the text and all footnotes for errors, and if necessary, prepare corrigenda to the submissions or annexes. Oftentimes, the defence team must also draft other appeal related submissions such as requests for extension of time and expansion of word count, or others as issues arise.
Thus, significant resources must be focused on legal and factual research and submission drafting. Defence counsel should be given discretion to determine the composition of the team depending on the needs of the case.
II. Comments on the draft Legal Aid Policy
The fee increases, monthly living cost lump-sum, and tax reimbursement are insufficient to treat defence teams on a par basis with court staff when considering taxes in the Netherlands
The fee increases, monthly living cost lump-sum, and tax reimbursement are insufficient to treat defence team members on a par basis with court staff performing equivalent duties when considering that defence team members are liable to pay between 36.93% to 49.5% in taxes in the Netherlands.
It appears that counsel at step 1 will make between €20,000-25,000 less annually than a similarly situated P-5 OTP senior trial lawyer under the draft Legal Aid Policy – even after factoring in the fee increases, monthly living cost lump-sum, and tax reimbursement. As another example, a legal assistant at step 1 will make between €12,500-13,500 less annually than a similarly situated P-2 OTP analyst under the draft Legal Aid Policy. This disparity in pay is in addition to all the other benefits provided to ICC staff members but not provided to defence team members (e.g., health insurance, education grant, access to in house medical facilities, pension, etc.).
Below on pages 7 and 8 are two illustrative comparisons between similarly situated positions, factoring in the monthly lump-sum and tax reimbursement.
While the Assembly of States Parties and Host State continue to consider the issue of taxes, expanding the tax reimbursement to 20% of the monthly remuneration could be one way to elevate defence counsel to the position of his/her counterparts in the OTP.
Additionally, the Assembly of States Parties and Host State should clarify whether defence team members are eligible to be treated as “entrepreneurs” in Dutch tax law and thus enjoy certain tax deductions. This has important financial consequences as shown in the figures below.
According to the Dutch government, most self-employed professionals are registered with the Netherlands Chamber of Commerce KVK as a sole proprietorship or limited company.[16] However, the Dutch Tax Authority will conduct its own independent assessment of whether someone is an entrepreneur for tax law purposes.[17]
The Dutch Tax Authority will decide whether an individual is an entrepreneur for tax purposes by reviewing criteria such as: (a) the independence of the person in carrying out their work (deciding when and where to work, using own supplies, etc.); (b) business risks assumed by the person (whether liable for debts); (c) continuity (whether a one off job or work for more than one client); and (d) and business size.[18] If someone does not fulfill these criteria and is also not considered “employed” by any employer, the Dutch Tax Authority will regard this income as “regular incidental earnings” – meaning that the person cannot claim tax deductions for entrepreneurs.
While treating lead and associate counsel as “entrepreneurs” may be appropriate under Dutch tax law – in which case the criteria and process for registering need to be clearly explained – it may not be appropriate for legal assistants and case managers, who are not independent in their work, assume no business risks and accept remuneration to assist only one client.
Example 1
Defence counsel at step 1 is making between €20,000-25,000 less annually than a similarly situated P-5 OTP senior trial lawyer
| Total gross monthly payment | Total gross annual salary | Net salary after taxes[19] | Tax reimb.
(10% of monthly salary) |
Net salary after tax reimb. | Difference in annual pay with OTP |
| €11,451.60 | €137,419.20 | €78,873
(if ‘employee’) OR €83,604 (if ‘entrepreneur’) |
€11,451.60 | €90,324.60
OR €95,055.60. |
€25,194.40
OR €20,463.40 |
This first example examines the difference in pay (meaning after any deductions) between a P-5 OTP senior trial lawyer, with a minimum net annual salary of €115,519.00,[20] and defence counsel at step 1 under the draft Legal Aid Policy.
If defence counsel is engaged in the case full time, the monthly salary will be €9,543 in addition to the monthly living cost lump-sum of €1,908.60, making a total monthly payment of €11,451.60 and annual payment of €137,419.20. However, if defence counsel is residing in the Netherlands – a necessity during the trial proceedings, which typically last years in core ICC crimes cases[21] – the fees earned from ICC work are subject to the higher tax bracket rate of 49.50%.[22]
Assuming that the defence counsel is not eligible for any deductions, defence counsel’s net salary from ICC fees after taxes is either €78,873 or €83,604, depending on whether the Dutch Tax Authority views him/her as an employee of the ICC or an entrepreneur. Assuming proof is provided of taxes paid, the defence counsel is entitled to a tax reimbursement of €11,451.60 (which may also be subject to taxes), making the annual take home net pay €90,324.60 or €95,055.60.
Regretfully, we were not made aware of the 27 October 2023 Townhall meeting, during which, we have been informed, the Registrar took a position that defence counsel can work elsewhere during the pre-trial, trial, and appeal stages, thus generating additional income; hence the justification for lower-level fees in comparison to OTP senior trial attorneys. We beg to differ. Let us clarify why.
To assume that defence counsel can also work on other cases while also being in court during ICC proceedings is unrealistic and, in our long experience, inaccurate. When defence counsel is gearing up for trial, or even during the confirmation of charges proceedings, the learning curve is very steep, and the time frame is very limited. To reiterate, the Assembly of States Parties must appreciate that the OTP has been investigating and analyzing the case for years before issuing an arrest warrant and drafting its Document Containing the Charges. While the resources made available under the Legal Aid Policy are generally sufficient – in part due to the flexibility that is available when good cause can be demonstrated that additional resources are need – the amount of material that has to be investigated, analyzed, and digested by defence counsel, it is a tremendous burden on even the most experienced team. If defence counsel is to be diligent, this requires one hundred percent (100%) of their efforts. Unless defence counsel is affiliated with a large firm that has a pool of other lawyers capable of addressing any gaps in workload throughout the ICC proceedings, there will be no domestic practice for the defence counsel to resume.
If some defence counsel are not diligent enough and are willing to take on other work when they should be working on their ICC cases, then the Registrar/Counsel Support Services should discount their fees. Thus, only those defence counsel that are not working full time on their ICC case should get a reduced monthly fee. To have this reduction spread across the board penalizes diligent counsel. This should have been discussed and better appreciated. Perhaps in the future it can be revisited.
Simply, the proposed fee (which assumes that counsel can work elsewhere) is inequitable, with defence counsel earning between €20,000-25,000 less annually than his/her OTP counterpart – to say nothing of the other substantial economic benefits granted to prosecution staff but denied to defence teams.
Example 2
Defence legal assistant at step 1 is making between €12,500-13,500 less annually than a similarly situated P-2 OTP analyst
| Total gross monthly payment | Total gross annual salary | Net salary after taxes[23] | Tax reimb.
|
Net salary after tax reimb. | Difference in annual pay with OTP |
| €6,453.60 | €77,443.20. | €51,681 (if ‘employee’)OR€53,182(if ‘entrepreneur’) |
€6,453.60 | €58,134.60
OR €59,635.60
|
€13,850.40
OR €12,349.40 |
This second example examines the difference in pay (meaning after any deductions) at the support staff level between a P‑2 OTP associate analyst, with a minimum net annual salary of €71,985.00,[24] and a legal assistant at step 1 under the draft Legal Aid Policy.
Assuming the legal assistant is engaged in the case full time, the monthly salary will be €5,378 in addition the monthly living cost lump-sum of €1,075.60, making a total monthly payment of €6,453.60 and annual payment of €77,443.20. However, because the legal assistant is residing in the Netherlands and making over €73,000, the fees earned from ICC work are subject to the higher tax bracket rate of 49.5%.
Assuming that the legal assistant is not eligible for any deductions, the legal assistant’s net annual salary from ICC fees after taxes is either €51,681 or €53,182, depending on whether the Dutch Tax Authority views the legal assistant as an employee of the ICC or an entrepreneur. Assuming proof is provided of taxes paid, the legal assistant is entitled to a reimbursement of €6,453.60 (which may also be subject to taxes), making the legal assistant’s annual take home pay €59,635.60 or €58,134.60.
Simply, the proposed fee is inequitable, with the legal assistant at step 1 making between €12,500‑13,500 less annually than his/her OTP counterpart. Again, this math does not contemplate the full OTP benefit package.
The reduced travel and accommodation budget disparately impacts on non-EU Counsel
The 2013 Legal Aid Policy provides for a flat fixed-rate monthly allowance to cover the expenses of each legal team, held in trust by the Registrar.[25] It covers transportation expenses incurred by counsel and associate counsel to and from The Hague, as well as costs of accommodation related counsel’s or associate counsel’s stay in The Hague.[26]
The draft Legal Aid Policy significantly reduces this amount to €800 (or a maximum of €1,200 if counsel’s commuting distance exceeds 50% of the monthly lump-sum).[27] While this should not cause much of a problem for lawyers travelling within the EU to the Netherlands, it does impact the financial position of non-EU counsel who will be required to travel to and even reside in The Hague for much of the proceedings, given their labor intensive nature.
The cap on travel and accommodation expenses should be expanded to €3,000 per month.
The titled position of “Assistant to Counsel” is insufficient to attract qualified lawyers
The draft Legal Aid Policy envisages a new position of “Assistant to Counsel”. This position would require more than the minimum experience to be qualified as a legal assistant under the current Legal Aid Policy (five years) but less than the minimum experience required to be an associate counsel (eight years).[28] This title is unfortunate and should be changed. This position, as titled, will not attract qualified lawyers. Being referred to as an “assistant to” gives the impression that the position is clerical or administrative. Irrespective of the tasks assigned, when seeking other employment, this sobriquet is likely to give pause to any employer seeking an experienced lawyer.
The current Legal Aid Policy already requires one to have five years of experience in criminal proceedings (or specialized expertise in international or criminal law) to be admitted to the “List of Assistants to Counsel” and become a legal assistant. If the Registrar and Assembly of States Parties envisage a position above legal assistant, the title should be sufficient to attract qualified candidates – for instance, “Assistant Counsel”, a title commonly given to junior level attorneys in government offices.
Step grades for legal assistants and case managers
Consideration should be given to whether these newly created step grades will have the unintended consequences of keeping young lawyers away from higher positions. There does not seem to be a reason for having step grades for junior level positions – case managers and legal assistants – beyond five years of experience. With five years of experience, a case manager between step two and step three under the draft Legal Aid Policy could apply to be on the List of Assistants to Counsel and become an assistant to counsel at Step 1. Similarly, the legal assistant who gains sufficient experience would likely want to apply to the List of Counsel to become an associate counsel.
The Joint Committee on Legal Aid needs a representative from outside the ICCBA
The draft Legal Aid Policy provides for the Joint Committee on Legal Aid, an advisory group responsible for the review of the Court’s Legal Aid Policy.[29] It is composed of three representatives of the Registry and two representatives of the ICCBA.[30] Not being a mandatory association of counsel to practice at the ICC, the ICCBA does not represent all List Counsel practicing before the ICC. An additional representative from List Counsel who are not represented by the ICCBA would help ensure that all those who represent individuals and practice before the ICC are heard on critical matters concerning legal aid.
III. Conclusion
The draft Legal Aid Policy is an improvement. However, it can further be improved – and as we respectfully assert – without unduly straining the resources allocated to the defence of indigent suspects, accused, and convicted persons on appeal before the International Criminal Court.
We suggest the following be considered:
- Expand the tax reimbursement to 20% of the monthly remuneration for all defence positions (or consider other means to elevate defence positions to their equivalent counterparts in the OTP);
- Clarify whether defence team members are eligible to be treated as “entrepreneurs” in Dutch tax for the purpose tax deductions law (and the requirements/criteria for such treatment);
- Expand the cap on travel and accommodation to €3,000 per month;
- Retitle the position of “Assistant to Counsel” to “Assistant Counsel”; and
- Reconsider the step grades for legal assistants and case managers beyond five years of experience.
[1] Registry’s single policy document on the Court’s legal aid system, ICC-ASP/12/13, 4 June 2013, para. 83.
[2] Id., para. 84.
[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, annexed to Global Diligence LLP, Assessment of the ICC’s Legal Aid System, 5 January 2017.
[4] See Richard J. Rogers, Assessment of the ICC’s Legal Aid System, 5 January 2017, para. 11.
[5] Rome Statute, Art. 61(7).
[6] ICC Code of Professional Conduct for Counsel, ICC-ASP/4/Res.1, 2 December 2005, Art. 32: “Counsel shall be liable for misconduct … by his or her assistants or staff when he or she (a) Orders or approves the conduct involved; or (b) Knows or has information suggesting that violations may be committed and takes no reasonable remedial action.”
[7] See e.g., Prosecutor v. Bemba et al., ICC-01/05- 01/13-1299, Decision on Victim and Witnesses Unit Request to modify the witness familiarisation process, 25 September 2015, para. 5; Prosecutor v. Kenyatta, ICC-01/09-02/11-259-Anx, Unified Protocol on the practices used to prepare and familiarise witnesses for giving testimony, 22 August 2011, para. 27.
[8] Prosecutor v. Kenyatta, ICC-01/09-02/11-259-Anx, Unified Protocol on the practices used to prepare and familiarise witnesses for giving testimony, 22 August 2011, para. 28.
[9] See Karim A. Khan KC & Anand A. Shah, Defensive Practices: Representing Clients Before the International Criminal Court, 76 L. & Contemp. Problems 191, 200-14 (2014).
[10] This concerns quality control – not the quality of those working for the OPCD – but Counsel’s ability to monitor what he or she is putting his or her signature to. Defence counsel cannot order or manage OPCD staff, or simply vouch for the quality of the OPCD’s work.
[11] Rome Statute, Art. 81(b); Prosecutor v. Lubanga, ICC-01/04-01/06-3121-Red, Judgment on the appeal of Mr Thomas Lubanga Dylio against his conviction, 1 December 2014 (“Lubanga Appeal Judgment”), para. 30.
[12] Lubanga Appeal Judgment, para. 30.
[13] Lubanga Appeal Judgment, para. 32; Prosecutor v. Ngudjolo, ICC-01/04-02/12-271-Corr, Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled “Judgment pursuant to article 74 of the Statute”, 27 February 2015 (“Ngudjolo Appeal Judgment”), para. 22 (internal citation omitted)
[14] Lubanga Appeal Judgment, para. 32.
[15] Ngudjolo Appeal Judgment, para. 21 (internal citation omitted).
[16] Business.gov.nl, Regulations for self-employed professionals.
[17] Business.gov.nl, What qualifies you as a Dutch entrepreneur?
[18] Business.gov.nl, What qualifies you as a Dutch entrepreneur?; Business.gov.nl, VAT and income tax for self-employed professionals.
[19] Figures calculated using Blue Umbrella’s income tax calculator for the Netherlands, year 2024, respectively as “employee” and “self-employed”. https://www.blueumbrella.nl/dutch-tax-calculator.
[20] Figure taken from a 2022 vacancy announcement in the ICC Office of the Prosecutor.
[21] See supra, pp. 2-5.
[22] See Table 1: Brackets for wage tax/national insurance contributions for 2023.
[23] Figures calculated using Blue Umbrella’s income tax calculator for the Netherlands, year 2024, respectively as “employee” and “self-employed”. https://www.blueumbrella.nl/dutch-tax-calculator.
[24] Figure taken from a November 2023 vacancy announcement in the ICC Office of the Prosecutor.
[25] Registry’s single policy document on the Court’s legal aid system, ICC-ASP/12/13, 4 June 2013, para. 139.
[26] Id., paras. 141-142.
[27] Registrar’s Proposed Draft Legal Aid Policy, 3 November 2023, paras. 92-94.
[28] Id., Table 6.
[29] Id., para. 16.
[30] Id., paras. 16-17.
About Author
