Much lip service is paid to the fair trial rights of the accused, the need for a robust defense for all accused, and, let\u2019s 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\u2019s wage and meager resources.\u00a0 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.\u00a0 The ICC, however, has taken it to the near extreme.<\/p>\n Since the ICC was founded, its Legal Aid System (LAS) has been an issue for defense counsel.\u00a0 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 \u2013 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\u2019s be honest, there is little profit for a Registrar in pushing to enlarge the budgetary allotment for the Defense.<\/p>\n 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.\u00a0 Be that as it may, von Hebel seems to have gotten the ball rolling on re<\/em>visiting the LAS. Hats off to him.<\/p>\n Who decides anyway? <\/em><\/strong><\/p>\n 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.\u00a0 Past Registrars were of the let them eat cake<\/em> variety. Apathetic. Not von Hebel. I am not suggesting that I entirely agreed with all the Re<\/em>Vision<\/a> 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 \u2013 the International Criminal Court Bar Association (ICCBA).\u00a0 No minor undertaking<\/p>\n In the past, I have noted<\/a> the shockingly inadequate pay and resources for defense counsel, their assistants, and for providing effective legal representation.\u00a0 Not only has it been inadequate from the ICC\u2019s very existence, but in 2012, the rates were slashed by a scandalous 25%.(( Decision of the Bureau on Legal Aid, ICC-ASP-2012, 23 March 2012; Global Diligence LLP, Assessment of the ICC\u2019s Legal Aid System<\/a>, 5 January 2017, para. 136.)) There is plenty of blame to go around for this inequity.\u00a0 Rather than fix blame, effort should be made finding solutions.\u00a0 That is what the Registrar seems to be attempting to do: tackling the LAS \u2013 a project that is likely to consume considerable time, effort, and resources of the Registry.\u00a0 As for his commitment and ability to deliver the goods, the proof is not just in the pudding, but in the tasting as well<\/em>. \u00a0<\/em>Time will tell.<\/p>\n Commissioning Reports on the LAS<\/em><\/strong><\/p>\n On 14 April 2015, the Registrar commissioned the International Criminal Justice Consortium<\/a> (ICJC) to conduct an assessment.\u00a0 Its mandate, formulated by the ASP, was \u201cto reassess the functioning of the legal aid system\u2026pay[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.\u201d(( 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 <\/em>International Criminal Justice Consortium, A Report on the Assessment of the Functioning of the International Criminal Court\u2019s Legal Aid System, 27 October 2015, para. 11, annexed to Global Diligence LLP, Assessment of the ICC\u2019s Legal Aid System<\/a>, 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.(( International Criminal Justice Consortium, A Report on the Assessment of the Functioning of the International Criminal Court\u2019s Legal Aid System, 27 October 2015, paras. 12-13.))<\/p>\n Thereafter, the Registrar commissioned Richard J. Rogers of the Global Diligence LLP: international law and human rights compliance<\/a> (GD) to conduct a similar assessment. The GD\u2019s terms of reference specified that the expert must \u201cundertake a comprehensive consultation with relevant stakeholders involved\u2026, research the legal aid systems in three other UN assisted criminal tribunals,\u2026 [and] draft a report aimed at improving the functioning [of the LAS].\u201d(( Global Diligence LLP, Assessment of the ICC\u2019s Legal Aid System<\/a>, 5 January 2017, para. 2.)) With both assessment reports in, the Registrar is now soliciting comments from List Counsel through the ICCBA.<\/p>\n Sketches on the reports\u00a0 <\/em><\/strong><\/p>\n Both reports<\/a> 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.<\/p>\n Those who have a vested interest need to give serious consideration to the assessments and proposed recommendations.<\/p><\/blockquote><\/div>Those who have a vested interest need to give serious consideration to the assessments and proposed recommendations. Following the establishment of the ICCBA, I noted in July 2016 that \u201c[t]he restructuring of legal aid is another pressing issue that cannot wait<\/a>.\u201d\u00a0 Waiting for the GD report, which was known to be in the making since June 2016, was an opportunity missed.\u00a0 Members of the ICCBA Executive Committee, Defence Committee, and Victims Committee, who have been around the track, presumably know what is broken and have thoughts on how it can be fixed.\u00a0 At a minimum, the ICCBA could have dissected the existing LAS. The ICCBA was also uniquely qualified to provide concrete examples of where the LAS is deficient \u2013 particularly when compared to the legal aid schemes of other international tribunals and courts.\u00a0 Though proactive would have been preferable to reactive, since the Registrar is now soliciting and consulting the ICCBA for its position on improving the LAS, an opportunity to influence the recalibration of the LAS remains within reach.<\/p>\n The reports speak for themselves. Without getting into the weeds, here are some general observations, for what they are worth.<\/p>\n The ICJC\u2019s 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. \u00a0The ICJC experts conducted few interviews and made no comparative analysis between the ICC\u2019s LAS and that of other international(ized) tribunals and courts.\u00a0 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.<\/p>\n The GD report by Rogers is more detailed \u2013 though he clearly benefited by having the ICJC report.\u00a0 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. \u00a0This 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.\u00a0\u00a0 No tribunal or court functions the same.<\/p>\n 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).\u00a0 My main criticism with this is that the payment scheme with the \u201cuplift\u201d 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 \u2013 depending on where they are from and what their domestic office costs are \u2013 get paid less than counsel with less experience.\u00a0 Thus, the uplift provision is not something I would outright embrace.<\/p>\n 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.\u00a0 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.\u00a0 For instance, the OTP is required to examine \u201call communications and situations that come to its attention based on the statutory criteria and the information available.\u201d(( ICC-OTP Report on Preliminary Examination Activities, 14 November 2016, para. 1, citing<\/em> 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.\u00a0 Considering its mandate, it is to be expected that the OTP\u2019s budget would dwarf the Defense\u2019s budget. Thus, presenting statistics and percentage comparisons to other international(ized) tribunals and courts(( See <\/em>Global Diligence LLP, Assessment of the ICC\u2019s Legal Aid System<\/a>, 5 January 2017, Part II, Section III, \u201cComparison Charts\u201d, pp. 15-20; International Criminal Justice Consortium, A Report on the Assessment of the Functioning of the International Criminal Court\u2019s 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.<\/p>\n 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?\u00a0 Also, what is a fair daily rate and fee scheme for duty counsel?<\/p>\n The ICJC makes no concrete recommendations.\u00a0 Rogers does; they are thoughtful and measured.\u00a0 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.<\/p>\n My take<\/em><\/strong><\/p>\n I would simplify the LAS and model it after the one adopted by the International Criminal Tribunal for the former Yugoslavia<\/p><\/blockquote><\/div>I would simplify the LAS and model it after the one adopted by the International Criminal Tribunal for the former Yugoslavia (ICTY). Having tried several models, the ICTY gravitated to a lump sum system, based on the level of complexity of the case with some flexibility shown depending on any special needs of a given case.\u00a0 As lead defense counsel, I should have the discretion to determine my needs: what the composition of my team should be and how to maximize and rationalize the allocated budget considering the characteristics and challenges of the case.<\/p>\n The ICTY scheme is not without weaknesses.\u00a0 One major weakness is that the staff (legal assistants, case managers, investigators, etc.) are not sufficiently protected by providing a minimum salary threshold \u2013 as is now the case at the ICC and other courts, such as the ECCC.\u00a0 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.<\/p>\n The lump sum system works and has a proven record.\u00a0 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.<\/p>\n More on this to follow, no doubt.<\/p>\n![\"\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2017\/01\/ICCLogo.jpg?ssl=1\")
<\/a>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.\u00a0 Why?<\/p>\n<\/a>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.\u00a0 Pro bono<\/em> legal consultants are a welcomed resource, but they should not be factored into the equality of arms equation.\u00a0 This is added and valuable assistance, but it is not, nor should it be, considered a substitute for paid staff.\u00a0 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\u2019s in light of each side\u2019s respective functions and responsibilities.<\/p>\n