Ensuring Defence Independence at the ICC

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This paper is also available through the ICDAA web site at http://www.hri.ca/partners/aiad-icdaa/reports/ensuringdefence.shtml

The ICDAA wishes to thank the following for their contributions to this proposal: Mr. Daniel N. Arshack, J.D.; Mrs. Nancy Hollander, J.D.; Ms. Margaret Ross, JD; Mr. Martin Philibert, LLB, LLM; Professor Speedy Rice, Gonzaga University School of Law; Mr. Andrew Amigo, Esq., JD; Mr. L.H. Diggs, MA, MBA, member of the ICDAA board of advisors.

Ensuring defence independence at the ICC

We applaud the Secretariat for including the Defence Counsel Unit in the draft budget and welcome this appreciation of the importance of a separate and independent defence counsel unit.

The Revised Draft Budget for the first financial period of the Court, dated 28 March 2002, contains two extremely important paragraphs, 86 and 87, entitled "Defence Counsel Unit (DCU)." These two paragraphs provide vital force to Rules 20 fn.1 and 21 fn.2 of the ICC Rules of Procedure and Evidence. The language included in Rules 20 and 21, adopted in June 2000, clearly defines and limits the "responsibilities of the Registrar relating to the rights of the defence" and creates an affirmative duty for the Registrar to carry out his functions, "including the financial administration of the Registry, in such a manner as to ensure the professional independence of defence counsel." These rules also embody the principle of ensuring fair trials and further delineate the Registrar's positive duty to ensure the independence of the defence and to "consult, as appropriate, with any representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties."

Any effort to dilute the clear language of the text contained in paragraphs 86 and 87of The Revised Draft, would be clearly contrary to the provisions of Rule 20(2) that imposes a mandatory obligation on the Registrar to ensure the professional independence of defense counsel.

The obligations created by rule 20-now recognized and affirmed in the draft budget-are in accord with the rights of the accused contained in article 67 of the Rome Statute, and with the role and the function of the Registrar as set forth in article 43(1) of the Rome Statute:

The Registry shall be responsible for non-judiciary aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the prosecutors in accordance with article 42. (Emphasis added).

This draft budget reflects the requirement of rule 20(1)(e) by implementing a Defence Counsel Unit "that would cover three core functions: legal aid, general assistance to Defence Counsel Unit and detention matters." � 86. More specifically, in dealing with defence counsel, the draft budget provides that the "defence (team) and the defendant are in practice one 'customer' for the services to be provided, one party for decisions to be addressed to, and one information structure to be aware about when managing the functions." � 86.

It is now vitally important to stress the need for this Defence Counsel Unit to be independent and to be sufficiently funded. Every decision of the Registrar that negatively affects the independence of the defence will have a corollary negative impact on the judiciary. The Registrar cannot act in accordance with article 43 and comply with Rules 20 and 21 without institutional arrangements that insure confidentiality and sufficient financial independence for the defence team.

The ICC can avoid the structural defects experienced at the ad hoc tribunals for Rwanda and the former Yugoslavia relating to the Registrars' overreaching in matters relevant to the defence. An international Committee of Experts' 1982 guideline requires that: "all persons have effective access to legal services provided by an independent legal profession" fn.3 and that "lawyers must be able to counsel and represent their clients...in accordance with their established professional standards and judgment without any restriction, influences, pressures, threats or undue interferences from any quarter." (Emphasis added). fn.4 The Council of Europe has recently reasserted a similar principle: "all necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public ..." fn.5 (Emphasis added). The Registrar's compliance with rules 20 and 21 together with paragraphs 86 and 87 of the Revised Draft Budget of the ICC will facilitate the independence of the defence function.

Only through such independence and sufficient funding to guarantee "equality of arms" between the prosecution and the defence, can the ICC fulfill its promise to meet the standard of a real presumption of innocence and to guarantee the full protection of a fair trial.

To ensure this vital independence and sufficient funding for "equality of arms" with the prosecution, the budget must contain, at a minimum, sufficient funding for independent facilities that are separate, secure and only accessible to the defence team. This should include dedicated telephone, facsimile and computer lines with secure, high-speed internet access. Separate and secure communication lines are essential to preserve the confidentiality of privileged conversations and communications between clients, counsel and defence investigators. The DCU also must have offices, fully equipped with furniture, equipment and supplies, including copy machines (high-speed for lengthy documents), scanners, printers, desktop and laptop computers, tape recorders, dictation equipment, etc. All of the defence equipment must be located in secure areas to protect privileged and confidential information. The budget must also include sufficient funds for postage and shipping, a well-equipped library and a documentation center with access to all major legal research databases. The office space must be adequate for meetings with clients (if not in custody), witnesses, paralegals and attorneys. These minimal facilities are mandated by the clear language of rule 20 which, in accord with the obligations created by Article 67 (1)(b) of The Rome Statute, requires that the defense be in full equality to the prosecution and have adequate time and facilities for the preparation of a defense case.

The DCU, as provisionally defined in paragraphs 86 and 87 of the draft budget, should fulfill the essential administrative operations necessary to an independent defence function. That independence requires the establishment of an impermeable firewall to protect the confidentially of defence functions from all other ICC operations. The draft budget states that "there would be the need for a Chief of Unit, who would . . . liaise with external parties." � 87. This clear reference to rule 20(3) establishes the obligation of the DCU to consult with an "independent representative body of counsel or legal associations."

The ICC must be scrupulous about the fair administration of justice if it is to earn the respect of the world citizenry. Without this respect the ICC will be hobbled with dissension and ever-increasing limitations on its functions and jurisdiction. Achieving the necessary respect will not be easy, given the diverse interests involved, but it has begun with a foundation that promotes equal justice for the international community, the victim and the accused. Only by ensuring the political and financial independence of defence counsel, with sufficient guarantees of confidentiality, can this be achieved.

Ensuring the professional independence of defence counsel, and their financial independence, is a necessary step to realizing the ICC ideal of "justice for all." The Secretariat's draft budget is a vital step in this process.

fn. 1 Rule 20-Responsibilities of the Registrar relating to the rights of the defence, provides:
1. In accordance with article 43, paragraph 1, the Registrar shall organize the staff of the Registry in a manner that promotes the rights of the defence, consistent with the principle of fair trial as defined in the Statute. For that purpose, the Registrar shall, inter alia:
(a) Facilitate the protection of confidentiality, as defined in article 67, paragraph 1 (b);
(b) Provide support, assistance, and information to all defence counsel appearing before the Court and, as appropriate, support for professional investigators necessary for the efficient conduct of the defence;
(c) Assist arrested persons, persons to whom article 55, paragraph 2, applies and the accused in obtaining legal advice and the assistance of legal counsel;
(d) Advise the Prosecutor and the Chambers, as necessary, on relevant defence-related issues;
(e) Provide the defence with such facilities as may be necessary for the direct performance of the duty of the defence;
(f) Facilitates the dissemination of information and case law of the Court to defence counsel and, as appropriate, cooperate with national defence and bar associations or any independent representative body of counsel and legal associations referred in sub-rule 3 to promote the specialization and training of lawyers in the law of the Statute and the Rules.
fn. 2. The Registrar shall carry out functions stipulated in sub-rule 1, including the financial administration of the Registry, in such a manner as to ensure the professional independence of defence counsel.
fn. 3. For purposes such as the management of legal assistance in accordance with rule 21 and the development of a Code of Professional Conduct in accordance with rule 8, the registrar shall consult, as appropriate, with any independent representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties.

2 Rule 21-Assignment of legal assistance, provides, in relevant part, for criteria and procedures for the assignment of legal assistance, "based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, sub-rule 3."
3 Draft principles on the independence of the judiciary and on the independence of the legal profession, prepared by a Committee of Experts at the International Institute of Higher Studies in Criminal Sciences, Syracuse and Noto Italy, in 1981 and 1982. Association Internationale de Droit P�nal-ERES, 1982, at 69.
fn. 4 Id.
fn. 5 Council of Europe, Committee of Ministers, Recommendation Rec. (2000) 21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer. http://cm.coe.int/ta/rec/2000/2000r21.htm (last visited: April 6, 2002).

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL’s 10,000-plus direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling more than 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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