Defense in International Criminal Proceedings [1 ed.] 9789047431176, 9781571053312

Citation preview

INTERNATIONAL AND COMPARATIVE CRIMINAL LAW SERIES

Editorial Board Series Editor

M. CherifBassi 0 uni President, International Human Rights Law Institute, DePaul University President, International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy, President, International Association of Penal Law, DePaul University Professor of Law, DePaul University, Chicago, IL, USA

Diane Amann Professor of Law University of California School of Law Davis, CA, USA Christopher L. Blakesley J.Y Sanders Professor of Law Louisiana State University Law Center Baton Rouge, LA, USA Roger S. Clark Board of Governors Professor The State University of New Jersey School of Law Camden, NT, USA John Dugard Member, International Law Commission, Geneva; Emeritus Professor of Law, University of Witwatersrand, South Africa; and Professor of Public International Law, University of Leiden, The Netherlands Albin Eser Professor of Criminal Law, Albert Ludwig University; Director, MaxPlanck Institute for International and Comparative Criminal Law Freiburg, i. B., Germany Alfredo Etcheberry Professor of Criminal Law, National University of Chile; President, Chilean Lawyers' Association, Santiago, Chile

Jordan Paust Professor of Law University of Houston Law Center Houston, TX, USA Mario Pisani Professor of Criminal Procedure Faculty of Law, University of Milan Milan, Italy William Michael Reisman Myers S. McDougal Professor of Law and Jurisprudence, Yale Law School New Haven, CT, USA Leila Sadat Professor of Law Washington University in St. Louis School of Law St. Louis, MO, USA Michael P. Scharf Professor of Law New England School of Law Boston, MA, USA Kuniji Shibahara Professor Emeritus University of Tokyo, Faculty of Law Tokyo, Japan Brigitte Stern Professor of International Law University of Paris I Pantheon,Sorbonne Paris, France Otto Triffterer Professor of International Criminal Law and Procedure, Faculty of Law, University of Salzburg Salzburg, Austria

DEFENSE IN INTERNATIONAL CRIMINAL PROCEEDINGS Cases, Materials and Commentary

Edited by MICHAEL BOHLANDER ROMAN BOED RICHARD J. WILSON

7/N

T ran

5

nat ion a I

Pub lis her

5

Published and distributed by Transnational Publishers, Inc. 410 Saw Mill River Road Ardsley, NY 10502

Phone: 914-693-5100 Fax: 914-693-4430 E-mail: [email protected] Web: www.transnationalpubs.com

Library of Congress Cataloging-in-Publication Data Defense in international criminal proceedings / edited by Michael Bohlander, Roman Boed, Richard]. Wilson. p. em. Includes bibliographical references and index. ISBN 1-57105-331-X 1. Defense (Criminal procedure) 2. Criminal procedure (International law) I. Bohlander, Michael, 1962- II. Boed, Roman. III. Wilson, Richard]., 1943K5455.D44 2005 345 '05044-dc22 2005052889 Copyright © 2006 by Transnational Publishers, Inc. All rights reserved. This book may not be reproduced, in whole or in part, in any form (beyond that copying permitted by u.S. Copyright Law in Section 107, "fair use" in teaching and research, Section 108, certain library copying, and except in published media by reviewers in limited excerpts), without written permission from the publisher. Manufactured in the United States of America

"To no one will we sell, to no one deny or delay, right or justice."

MAGNA CARTA, (40),1215

TABLE OF CONTENTS

Foreword

XXI

M. Cherif Bassiouni

Preface

XXIX

Michael Bohlander, Roman Boed and Richard J Wilson

About the Authors

xxxi Chapter 1: Introduction and Overview Michael Bohlander

Chapter 2: Procedural Safeguards for the Defense in International Human Rights Law Richard J Wilson

2.1. Introduction and Overview 2.2. "Legal Assistance" in International Human Rights Law 2.2.1. "Legal Assistance" and Representation by a Non-Lawyer 2.2.2. Advice and Assistance Through Other State Entities and NGOs 2.2.3. Representation by Apprentices in Pupilage, Mandatory Service Programs as a Condition of Bar Admission or Students in a Law School Clinical Program 2.2.4. No Structural Requirements for Defense Services 2.3. The Right to Legal Assistance in Criminal Matters Generally 2.3.1. "Minimum Guarantees" 2.3.2. The Principle of Access to a Court. 2.3.3. The Principle of Equality of Arms 2.3.4. The Principle of the Presumption of Innocence 2.3.5. Scope of the Right to Legal Assistance in Criminal Matters: Duration of Representation and Types of Cases Requiring Assignment 2.3.6. Counsel of Choice, Number of Counsel, Unwanted Counsel and Harassment of Counsel 2.3.7. "Free" Counsel, Costs and Recovery of Costs of Counsel in Criminal Proceedings 2.3.8. The Right to Effective Assistance of Counsel 2.4. Pre-Trial Rights to Counsel. 2.4.1. Notice of the Right to Counsel and Legal Assistance 2.4.2. Early Access to Counsel for Detained Persons 2.4.3. Adequate Time to Prepare 2.4.4. Adequate Facilities 2.4.5. Confidential Communication With Counsel 2.5. The Right to Counsel at Trial. 2.5.1. The Right to Oral Proceedings

vii

7 8 9 10

11 12 13 14 14 15 15 16 17 18 20 22 22 22 23 24 24 26

27

viii • Defense in International Criminal Proceedings

2.5.2. The Right of the Accused to Effective Participation in the Trial 2.6. Counsel on Appeal 2.7. Special Situations for Legal Assistance Under International Human Rights Law 2.7.1. Juvenile Matters 2.7.2. Capital Cases 2.7.3. Trial by Military Courts 2.7.4. Suspension of the Right to Legal Assistance During National Emergencies 2.8. Bibliography: Books and Articles Not Otherwise Referenced

27 27 28 28 29 29 29 30

Chapter 3: A History of the Role of Defense Counsel in International Criminal and War Crimes Tribunals Richard J Wilson

3.1. Introduction and Framework 3.2. International Criminal Defense Before Nuremberg 3.3. The Scope of the Right to Assigned Counsel in the United States and Europe at the End of World War II 3.4. Defense at the Nuremberg and Tokyo International Criminal Tribunals 3.4.1. The Nuremberg IMT: Structures for Defense Services 3.4.2. The Tokyo IMTFE: Defense Structures 3.4.3. Structural and Procedural Limitations on the Defense at Nuremberg and Tokyo 3.4.4. Profile: Otto Kranzbuhler, Defense Counsel for Admiral Karl Doenitz Before the Nuremberg IMT 3.5. Defense in Post-World War II War Crimes Trials 3.5.1. The Subsequent International Trials of Nuremberg and Tokyo 3.5.2. Profile: A. Frank Reel, Defense Counsel Team Member for General Tomoyuki Yamashita at Trial Before a U.S. Military Commission, Luzon, Philippines: 1945 3.5.3. Post-War Efforts to Create an International Criminal Tribunal 3.6. Domestic Trials for International and War Crimes 3.6.1. Profile: Robert Servatius, Defense Counsel for Adolf Eichmann in Jerusalem, 1961-62 3.6.2. Other National Trials for International Crimes Since World War II 3.6.3. Profile: Jacques Verges, Defense Counsel for Klaus Barbie in French Domestic Court, 1987

31 32 35 38 39 40 42 45 48 49

50 56 56 57 61 62

Chapter 4: ICTY Monica Martinez

4.1. Right to Counsel 4.2. Assignment of Counsel 4.2.1. Introduction 4.2.2. Legal Framework of the IClY Legal Aid System 4.2.2.1. IClY Statute 4.2.2.2. IClY Rules of Procedure and Evidence 4.2.2.3. IClY Directive on Assignment of Defense Counsel. 4.2.3. IClY Case Law and Practice

67 79 79 79 79 79 80 87

Table of Contents • ix 4.2.3.1. The Chambers 87 4.2.3.1.1. Article 21 of the Statute-Assignment of Counsel-the Accused's Right to Defend Himself 87 4.2.3.1.2. The Accused's Right to Choose Counsel 90 4.2.3.1.3. Article 16 of the Directive-Accused's Right to Have a Second Counsel ("Co-Counsel") Assigned 91 4.2.3.1.4. Article 11 of the Directive-Registrar's Refusal to Assign Counsel After Review of Accused's Indigent Status 92 4.2.3.2. The ICTY President 94 4.2.3.2.1. Rule 44B of the Rules-Procedure to Follow Regarding Assignment of Counsel-The Discretion of the Registrar in Defining the Bounds of the "Interests of Justice" Exception 94 4.2.4. Commentary 94 4.2.4.1. Qualifications of Assigned Counsel-Article 14 of the Directive 94 4.2.4.2. The So-Called Rule 45 List 95 4.2.4.2.1. Admission to the Practice of Law or University Professor of Law 95 4.2.4.2.2. The Language Requirement 96 4.2.4.2.3. Established Competence in Criminal Law and/or International Criminal Law/International Humanitarian Law/International Human Rights Law 96 4.2.4.2.4. Disciplinary and Criminal Record 96 4.2.4.2.5. Counsel's Availability 97 4.2.4.2.6. ADC Membership in Good Standing 97 4.2.4.3. Removal From the Rule 45 and Duty Counsel Lists 97 4.2.4.4. Procedure for Assignment of Counsel 98 4.2.4.4.1. Right to Assigned Counsel 98 4.2.4.4.2. Right to Choose Counsel. 98 4.2.4.4.3. Initial Assignment 99 4.2.4.4.4. Remedy Against the Registrar's Decision 99 4.2.4.4.5. Scope ofAssignment. 99 4.3. Professional Ethics 100 4.3.1. Introduction 100 4.3.2. Legal Framework 101 4.3.2.1. Rule 46 of the Rules (Misconduct) 101 4.3.2.2. Rule 77 of the Rules (Contempt of Court) 101 4.3.2.3. The ICTY Code 103 4.3.3. ICTY Case Law and Practice 118 4.3.3.1. The Chambers 118 4.3.3.1.1. Rule 46 of the Rules 118 4.3.3.1.1.1. Warning Counsel About Possible Refusal of Audience and Consequential Withdrawal 118 4.3.3.1.1.2. Refusal of Audience to Pro Bono Counsel Not Fit to Appear Before the Tribunal 119

x • Defense in International Criminal Proceedings 4.3.3.1.2. Rule 77 of the Rules 4.3.3.2. The Code 4.3.3.2.1. The Chambers 4.3.3.2.1.1. Article 14 of the Code-Conflict of Interest 4.3.3.2.2. The Disciplinary Panel 4.3.4. Commentary 4.3.4.1. Rule 46 of the Rules 4.3.4.2. Rule 77 of the Rules 4.3.4.3. The Code 4.4. Communications With a Client in Custody 4.4.1. Introduction 4.4.2. IClY Applicable Rules 4.4.2.1. The Rules 4.4.2.2. The Rules of Detention 4.4.2.3. The U.N. Detention Unit Regulations to Govern the Supervision of Visits to and Communication With Detainees 4.4.2.3.1. Correspondence 4.4.2.3.2. Telephone Conversations 4.4.2.3.3. Visits 4.4.2.4. The Code 4.4.3. IClY Practice 4.4.3.1. Scope of Attorney-Client Privilege 4.4.3.2. Justification and Purpose of the Privilege 4.4.3.3. Limits to the Privilege 4.4.3.4. Telephone Communications in Particular

119 120 120 120 122 123 123 123 124 127 127 127 127 127 128 128 129 129 131 132 132 133 134 135

Chapter 5: ICTR Roman Boed and Mame Mandiaye Niang 5.1. Right to Counsel Under the Statute and the Rules 5.1.1. Introduction 5.1.2. Statutes, Rules and Official Legal Documents 5.1.2.1. Statute 5.1.2.2. Rules of Procedure and Evidence 5.1.2.3. Rules Covering the Detention of Persons Awaiting Trial or Appeal 5.1.2.4. Directive on the Assignment of Defense Counsel 5.1.3. Case Law and Practice 5.1.3.1. Article 17 (3) of the Statute 5.1.3.2. Article 20(4) of the Statute 5.1.3.3. Rule 40 bis of the Rules of Procedure and Evidence 5.1.3.4. Rule 42 of the Rules of Procedure and Evidence 5.1.3.5. Rule 44 of the Rules of Procedure and Evidence 5.1.3.6. Rule 44 bis of the Rules of Procedure and Evidence 5.1.3.7. Rule 45 of the Rules of Procedure and Evidence 5.1.3.8. Rule 62 (A) (i) of the Rules of Procedure and Evidence 5.1.3.9. Rule 63 of the Rules of Procedure and Evidence

137 137 137 137 138 140 141 142 142 148 154 154 156 159 159 159 159

Table of Contents • xi 5.1.3.10. Rule 82 bis of the Rules of Procedure and Evidence 5.1.3.11. Rule 107 of the Rules of Procedure and Evidence 5.1.3.12. Rule 10 of the Rules Covering the Detention of Persons Awaiting Trial or Appeal 5.1.3.13. Rule 65 of the Rules Covering the Detention of Persons Awaiting Trial or Appeal 5.1.3.14. Article 2 of the Directive on the Assignment of Defense Counsel 5.1.3.15. Article 13 of the Directive on the Assignment of Defense Counsel 5.1.3.16. Article 14 of the Directive on the Assignment of Defense Counsel 5.1.4. Materials 5.1.5. Commentary 5.2. Assignment of Counsel 5.2.1. Introduction 5.2.2. Statute, Rules and Official Legal Documents 5.2.2.1. Statute 5.2.2.2. Rules of Procedure and Evidence 5.2.2.3. Directive on the Assignment of Defense Counsel. 5.2.2.4. Administrative Directives 5.2.2.4.1. Guidelines for the Remuneration of Counsel Appearing Before the ICTR (Arusha, September 1, 1998) ... 5.2.2.4.2. Guidelines for Settlement of Defense Accounts. 5.2.2.4.3. Information Circular No.1 of November 18, 1998 5.2.2.4.4. Information Circular No.2 on Assignment of Counsel of November 22,1999 5.2.3. Case Law and Practice 5.2.3.1. Rules 44 and 45 of the Rules of Procedure and Evidence 5.2.3.2. Rule 45 ter (A) 5.2.3.3. Rule 45 quater 5.2.3.4. Article 4 of the Directive 5.2.3.5. Article 5-8 of the Directive 5.2.3.6. Article 9 of the Directive 5.2.3.7. Article 10 of the Directive 5.2.3.8. Article 10 bis of the Directive 5.2.3.9. Article 12 of the Directive 5.2.3.10. Article 13D of the Directive 5.2.3.11. Article 14 of the Directive 5.2.3.12. Article 15 of the Directive 5.2.3.13. Article 16 of the Directive 5.2.3.14. Article 17 of the Directive 5.2.3.15. Article 20 of the Directive 5.2.3.16. Article 29 of the Directive 5.2.3.17. Article 30 of the Directive

159 159 159 159 159 159 160 160 160 163 163 164 164 164 165 170 170 171 174 174 175 175 181 183 185 186 186 186 186 187 191 192 192 198 199 199 199 200

xii • Defense in International Criminal Proceedings

5.2.4. Commentary 5.2.5. Withdrawal of Counsel 5.2.5.1. Statute, Rules and Official Legal Documents 5.2.5.1.1. Rules of Procedure and Evidence 5.2.5.1.2. Directive on Assignment of Counsel 5.2.5.2. Case Law and Practice 5.2.5.2.1. Rule 45 of the Rules of Procedure and Evidence 5.2.5.2.2. Rule 45 ter of the Rules of Procedure and Evidence 5.2.5.2.3. Rule 46 of the Rules of Procedure and Evidence 5.2.5.2.4. Article 15 of the Directive 5.2.5.2.5. Article 18 of the Directive 5.2.5.2.6. Article 19 of the Directive 5.2.5.3. Materials 5.3. Professional Ethics 5.3.1. Introduction 5.3.2. Statutes, Rules and Official Legal Documents 5.3.2.1. Statute 5.3.2.2. Rules of Procedure and Evidence 5.3.2.3. Directive on the Assignment of Defense Counsel 5.3.2.4. Code of Professional Conduct for Defense Counsel 5.3.3. Case Law and Practice 5.3.3.1. Rule 44 of the Rules of Procedure and Evidence 5.3.3.2. Rule 46 of the Rules of Procedure and Evidence 5.3.3.3. Rule 73 of the Rules of Procedure and Evidence 5.3.3.4. Rule 77 of the Rules of Procedure and Evidence 5.3.3.5. Article 16 of the Directive on the Assignment of Defense Counsel 5.3.3.6. Article 19 of the Directive on the Assignment of Defense Counsel 5.3.3.7. Code of Professional Conduct for Defense Counsel 5.3.4. Materials 5.3.5. Commentary 5.3.5.1. Regulatory Framework 5.3.5.2. Counsel Misconduct 5.3.5.3. Frivolous Motions and Abuse of Process 5.3.5.4. Contempt 5.4. Attorney-Client Privilege 5.4.1. Introduction 5.4.2. Statutes, Rules and Official Documents 5.4.2.1. Rules of Procedure and Evidence 5.4.2.2. Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal 5.4.2.3. Code of Professional Conduct for Defense Counsel

203 205 205 205 206 207 207 214 215 216 216 216 229 229 229 230 230 230 233 233 241 241 241 247 253 261 262 262 273 273 273 273 275 275 276 276 277 277

277 278

Table of Contents • xiii 5.4.2.4. Regulations to Govern the Supervision of Visits to and Communication With Detainees 5.4.2.5. Brief to All Other Persons Regarding Visits to Detainees 5.4.3. Case Law and Practice 5.4.4. Commentary 5.5. Communications With a Client in Custody 5.5.1. Introduction 5.5.2. Statutes, Rules and Official Legal Documents 5.5.2.1. Statute 5.5.2.2. Rules of Procedure and Evidence 5.5.2.3. Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal 5.5.2.4. Regulations to Govern the Supervision of Visits to and Communications With Detainees 5.5.3. Case Law and Practice 5.5.4. Commentary 5.6. Defense Access to Witnesses 5.6.1. Introduction 5.6.2. Statute, Rules of Procedure and Evidence, Other Regulations and Case Law 5.6.2.1. Statute 5.6.2.2. Rules of Procedure and Evidence 5.6.2.3. Other Regulations-Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise 5.6.2.4. Case Law 5.6.3. Commentary

278 282 283 289 290 290 291 291 291

291 292 299 313 315 315 316 316 316

324 325 432

Chapter 6: The International Criminal Court Kenneth S. Gallant and Stefan Kirsch

6.1. Right to Counsel Under the ICC Statute, the Rules of Procedure and Evidence, and the Regulations of the Court 6.1.1. Introduction 6.1.2. Statutes, Rules and Official Legal Documents 6.1.2.1. ICC Statute 6.1.2.2. Rules of Procedure and Evidence 6.1.2.3. Regulations of the Court 6.1.3. Case Law and Practice 6.1.4. Academic Writing 6.1.5. Commentary 6.1.5.1. The Right to Counsel During the Investigatory Stage 6.1.5.2. Right to Counsel for "the Accused" Under Article 67 of the ICC Statute 6.1.5.2.1. Time of Attachment of Right to Counsel for the Accused Under Article 67 6.1.5.2.1.1. Confirmation Hearing and After 6.1.5.2.1.2. Confirmation Hearing in Absence of Accused but With Counsel

437 437 437 437 439 441 445 445 446 446 448 449 450 451

xiv • Defense in International Criminal Proceedings 6.1.5.2.1.3. Right to Counsel Under Article 67 Before the Confirmation Hearing 451 6.1.5.2.1.3.1. The Regulations of the Court and the Authority to Appoint Counsel Before the Confirmation Hearing 452 6.1.5.3. Right to Counsel Before National Courts Before Surrender to the ICC 453 6.1.5.4. No Right to Counsel for Compensation Claims 454 6.1.5.5. Right to Free Choice of Counsel. 454 6.2. Assignment of Counsel 455 6.2.1. Introduction 455 6.2.2. Statute, Rules and Official Legal Documents 455 6.2.2.1. Statute 455 6.2.2.2. Rules of Procedure and Evidence 456 6.2.2.3. Regulations 459 6.2.2.3.1. Regulations of the Court 459 6.2.3. Case Law and Practice 465 6.2.4. Materials 467 6.2.4.1. Statute of the International Criminal Tribunal for the Former Yugoslavia 467 6.2.4.2. Statute of the International Criminal Tribunal for Rwanda 467 6.2.5. Commentary 468 6.3. Professional Ethics and Discipline of Counsel in the International Criminal Court 475 6.3.1. Introduction 475 6.3.2. Statutes, Rules and Official Legal Documents 475 6.3.2.1. Rules of Procedure and Evidence 475 6.3.2.2. Assembly of States Parties Resolutions 476 6.3.2.3. Proposal for a Draft Code of Professional Conduct for Counsel Before the International Criminal Court 476 6.3.3. Practice 476 6.3.4. Reports and Academic Writings 476 6.3.4.1. Reports 476 6.3.4.2. Academic Writings 477 6.3.5. Commentary 477 6.4. Counsel-Client Privilege in the International Criminal Court 478 6.4.1. Introduction 478 6.4.2. Statutes, Rules and Official Legal Documents 478 6.4.2.1. ICC Statute 478 6.4.2.2. Rules of Procedure and Evidence 479 6.4.3. Case Law and Practice 479 6.4.4. Reports 479 6.4.5. Commentary: Right to Confidentiality as Part of the Right to Counsel in the ICC Statute 479 6.5. Communications With a Client in Custody 481 6.5.1. Introduction 481

Table of Contents • xv 6.5.2. Regulations of the Court 6.6. Communications With Witnesses

481 482

Chapter 7: Associations of Defense Counsel-Development and Role Stephane Bourgon, Kennedy Ogetto and Wolfgang Bendler

7.1. The Association of Defense Counsels Practicing Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) 7.1.1. Introduction 7.1.2. Documents and Materials-Constitution of the ADC-ICTY 7.2. The Defense Lawyers' Association at the ICTR (ADAD) 7.2.1. Introduction 7.2.2. The Role and Development of ADAD 7.2.3. ADAD as Amicus Curiae 7.2.4. Advocacy 7.2.5. Transfer of Prisoners to Rwanda 7.2.6. Organizational Problems 7.2.6.1. The Legal and Institutional Framework for the Defense at the ICTR; The Need for an Interlocutor 7.2.6.1.1. The Statute 7.2.6.1.2. Code of Professional Conduct 7.2.7. Conclusion 7.3. International Criminal Bar 7.3.1. Constitution 7.3.2. Code of Conduct and Disciplinary Procedure of the International Criminal Bar 7.4. European Associations of Defense Counsel-Development and Role 7.4.1. Introduction 7.4.1.1. Security Versus Liberty 7.4.1.2. Failings of the Past 7.4.2. Treaties, Conventions, Charters, Drafts 7.4.2.1. The Treaty on European Union (TEU) 7.4.2.2. The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 7.4.2.3. Charter of Fundamental Rights of the European Union (CFREU) 7.4.2.4. Draft Treaty Establishing a Constitution for Europe 7.4.2.5. The Draft of the "Corpus Juris" 7.4.3. European Legislation and/or Measures to Approximate and Harmonize National Laws 7.4.3.1. Green Paper of the Commission for Procedural Safeguards for Suspects and Defendants in Criminal Proceedings Throughout the European Union 7.4.3.2. The Proposal for a Council Framework Decision on Certain Procedural Rights in Criminal Proceedings Throughout the European Union 7.4.4. Rules for Professional Practice in the European Union 7.4.5. Representation of European Defense Counsel Associations 7.4.5.1. Council of the Bars and Law Societies of the European Union (CCBE)

483 483 489 501 501 505 509 512 515 516 517 517 523 526 528 528 536 568 568 569 569 570 570 570 571 572 573 574

575

577 581 583 583

xvi • Defense in International Criminal Proceedings 7.4.5.2. European Criminal Bar Association (ECBA) 7.4.5.3. Avocats Europecns Democrats (AED) /European Democratic Lawyers (EDL) 7.4.5.4. Union des Avocats Europeens (UAE)/European Lawyers' Union 7.4.5.5. Federation des Barreaux d'Europe (FBE/EBF)/European Bars Federation 7.4.5.6. Non-Governmental Organizations-Fair Trials Abroad (FTA) 7.4.5.7. National Initiatives 7.4.5.7.1. Frankfurt Appeal and Proposal for a Magna Carta of Procedural Safeguards 7.4.5.7.2. The "Eu-Defense" Project 7.4.5.7.3. "EURO-Defensor" 7.4.5.7.4. The "EURO-Defense" Proposal. 7.4.6. Current State of European Defense Counsel Associations 7.4.7. Project Proposal for Establishing a European Criminal Defense Network 7.4.8. Outlook 7.4.9. Annexes 7.4.9.1. Annex I-Treaty on European Union (TEU)Consolidated Version From December 24, 2002, Amended by the Treaty of Nice 7.4.9.2. Annex 2-The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 7.4.9.3. Annex 3-Charter of Fundamental Rights of the European 7.4.9.4. Annex 4-Draft Treaty Establishing a Constitution for Europe 7.4.9.5. Annex 5-CorpusJuris 7.4.9.6. Annex 6-Proposal for a Council Framework Decision on Certain Procedural Rights in Criminal Proceedings Throughout the European Union 7.4.9.7. Annex 7-FrankfurtAppeal of the German Defense Counsels 7.4.9.8. Annex 8-Frankfurt Appeal-Discussion Paper "Procedural Safeguards of the Suspect/Accused in Europe"

584 584 585 585 586 586 586 587 588 589 590 590 592 593

593 596 597 598 603

605 610 613

Chapter 8: Mixed Tribunals Alan Simmons, Heleyn Uiiac, Sylvia de Bertodano, Rupert Skilbeck, Richard J Wilson, Sarah Williams, Mohamed C. Othman and Scott Worden 8.1. Kosovo 8.1.1. Applicable Law in Kosovo 8.1.1.1. Applicable Criminal Law and Criminal Procedure Law 8.1.1.2. Observance of Human Rights Standards 8.1.2. Representation Before Mixed Tribunals in Kosovo 8.1.2.1. The Principle: Only Members of the Kosovo Bar Can Be Defense Counsel. 8.1.2.3. Representation by Foreign Lawyers

619 619 619 621 624 624 625

Table of Contents • xvii 8.1.3. The Criminal Defense Resource Center (CDRC) 8.1.4. Right to Counsel Under the Provisional Criminal Procedure Code of Kosovo 8.1.4.1. The Right to Have Defense Counsel at All Stages of the Proceedings 8.1.4.2. Mandatory Legal Assistance 8.1.4.3. Waiving the Right to Defense Counsel 8.1.4.4. The Right to Have Defense Counsel of One's Choice 8.1.4.5. Appointment by the Court of Ex Officio Lawyers at Public Expense 8.1.5. Defense Counsel's Duties and Discipline 8.1.5.1. The Law on Advocacy and Other Legal Assistance of 1979 8.1.5.2. The Statute of the Kosovo Chamber of Advocates 8.1.5.3. The Code of Lawyers' Professional Ethics 8.1.5.4. The Provisional Criminal Procedure Code of Kosovo (PCPCK)-Discipline by the Bench 8.1.6. Defense Counsel's Rights 8.1.7. Role of Defense Counsel Before Kosovo Mixed Tribunals 8.1.7.1. Procedure Applicable 8.1.7.2. Role of the Defense Counsel at the Pre-Trial Stage 8.1.7.2.1. During the Investigation 8.1.7.2.2. Filing and Confirmation of the Indictment. 8.1.7.3. The Role of the Defense Counsel at the Main Trial 8.1.7.4. The Role of Defense Counsel at the Appeal Stage 8.1.8. Annex I: The Statute of the Kosovo Bar Association 8.1.9. Annex II: Law on Advocacy and Other Legal Assistance 8.1.10. Annex III: Kosovo Chamber of Advocates, the Code of Lawyers' Professional Ethics 8.2. East Timor 8.2.1. Introduction 8.2.2. Statutes, Rules and Official Legal Documents 8.2.2.1. Security Council Resolution 1272 8.2.2.2. UNTAET Regulations 8.2.2.2.1. On the Organization of Courts in East Timor, UNTAET/REG 2000/11, as Amended by UNTAET/ REG 2001/25 8.2.2.2.2. Transitional Rules of Criminal Procedure, UNTAET/REG 2000/30 8.2.2.2.3. On the Establishment of a Legal Aid Service in East Timor, UNTAET/REG/2001/24 8.2.2.3. The Constitution of East Timor 8.2.3. Case Law and Practice 8.2.3.1. Illegal Detention 8.2.3.2. Admissibility of Prior Statements: Access to a Lawyer 8.2.4. Materials 8.2.4.1. East Timor: Justice Past, Present and Future Amnesty International 8.2.4.2. Report on East Timor International Legal Assistance Consortium

626 626 626 627 627 628 628 630 630 631 632 633 633 634 634 635 635 637 640 643 644 674 692 703 703 704 704 705

705 706 711 716 717 718 719 720 720 721

xviii • Defense in International Criminal Proceedings

8.2.5. 8.2.6. 8.3. Sierra 8.3.1.

8.3.2.

8.3.3.

8.2.4.3. The General Prosecutor v. Joni Marques and 9 Others-JSMP ... 722 8.2.4.4. Justice Denied for East Timor: Indonesia's Sham Prosecutions, the Need to Strengthen the Trial Process in East Timor, and the Imperative of U.N. Action Human Rights Watch 722 8.2.4.5. East Timor Report: Conflict Security and Development Group King's College, London 723 8.2.4.6. Indonesia and Timor-Leste-International Responsibility for Justice Amnesty International 723 8.2.4.7. Indonesia and Timor-Leste: Justice for Timor-LesteThe Way Forward, JSMP and Amnesty International 724 8.2.4.8. Report of the Secretary-General on the U.N. Transitional Administration in East Timor, S/2001/983 724 8.2.4.9. Report of the Secretary General on the United Nations Transitional Administration in East Timor, S/2002/432 725 8.2.4.10. Report of the Secretary-General on the U.N. Mission in Support in East Timor, S/2002/1223 725 8.2.4.11. Question of the Violation of Human Rights and Fundamental Freedoms in Any Part of the World: Situation of Human Rights in Timor-Leste Report of the U.N. High Commissioner for Human Rights, E/CN.4/2003/37 725 8.2.4.12. Report of the Secretary-General on the U.N. Mission in Support in East Timor, S/2003/449 726 8.2.4.13. Report of the Secretary-General on the U.N. Mission in Support in East Timor, S/2003/944 726 8.2.4.14. Special Report of the Secretary-General on the U.N. Mission in Support in East Timor, S/2004/117 726 Academic Writing 727 Conclusion 729 Leone 730 Introduction 730 8.3.1.1. The Special Court for Sierra Leone 730 8.3.1.2. The Office of the Principal Defender 730 Legal Documents 731 8.3.2.1. Statute of the Special Court for Sierra Leone 731 8.3.2.2. Rules of Procedure of the Special Court for Sierra Leone 732 8.3.2.3. Directive on the Assignment of Counsel 744 8.3.2.4. Other Documents 756 8.3.2.4.1. Constitution of Sierra Leone (Excerpts) 756 8.3.2.4.2. Headquarters Agreement Between the Republic of Sierra Leone and the Special Court of Sierra Leone .... 760 8.3.2.4.3. Practice Direction on the Procedure Following a Request by a State, the Truth and Reconciliation Commission or Other Legitimate Authority to Take a Statement From a Person in the Custody of the Special Court for Sierra Leone 760 8.3.2.4.4. First Annual Report of the Special Court for Sierra Leone for the Period December 2, 2002 to December 1, 2003 (Excerpts) 762 Case Law and Practice 764

Table of Contents • xix 8.3.4. Articles 786 8.3.4.1. No Peace WithoutJustice: Report on Defense Provision for the Special Court for Sierra Leone 786 8.3.5. Commentary 803 8.3.5.1. Office of the Principal Defender (OPD) 803 8.3.5.1.1. Legal Basis in Statute and RPE 803 8.3.5.1.2. Duty Counsel 804 8.3.5.1.3. Assignment of Counsel 805 805 8.3.5.1.4. Legal Support. 806 8.3.5.1.5. Administrative Support 8.3.5.1.6. Legacy 806 8.3.5.1.7. Outreach 806 8.4. Defending Detainees at Cuantanamo Bay 806 8.4.1. Overview of the Detainees in Cuantanamo Bay and Their Legal Situation 807 8.4.2. Federal Court Litigation After the Supreme Court Decision in Rasul . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809 8.4.2.1. The Government's Administrative Structural Response: The CSRT and ARB Processes 810 8.4.2.2. The Right to Defense in the CSRTs 811 8.4.2.3. Court Rulings on the Validity of the CSRT Process 811 8.4.2.4. The Ongoing Annual Review Board Process 811 8.4.2.5. The Government's Litigation Response: The Protective Order, National Security Limitations and Other Limits on Defense Coursel 812 8.4.2.6. The Federal Court Rejects the Government's Argument for Monitoring of Defense Counsel Visits With Detainees, but Imposes a Protective Order 812 8.4.2.7. Other Early Procedural Issues 813 8.4.2.8. The Government's Litigation Response: Consolidation of Common Legal Issues and Competing Court Decisions 813 8.4.3. Military Commission Trials in Cuantanamo 814 8.4.3.1. Military Commission Structure 814 8.4.3.2. The Role of Defense Counsel in the Commission Process 815 8.4.2.3. The Federal Court Suspends Military Commission Trials 816 8.4.4. Conclusion: Other Issues To Be Decided, and the Law To Be Applied 816 817 8.5. The Iraqi Special Tribunal 8.5.1. Introduction 817 8.5.2. Texts 818 8.5.2.1. The Statute of the Iraqi Special Tribunal (Excerpts) 818 8.5.2.2. Rules of Procedure and Evidence 819 825 8.5.3. Commentary 825 8.5.3.1. The Office of the Defense 8.5.3.2. Defense Counsel 826 8.5.3.3. International Advisers to the Office of the Defense 827 8.5.3.4. Role of Defense Counsel 828 8.5.4. Conclusion 830 8.6. Cambodia: Extraordinary Chambers 830 8.6.1. Introduction 830

xx • Defense in International Criminal Proceedings

8.6.2. 8.6.3. 8.6.4. 8.6.5. 8.6.6. 8.6.7.

8.6.8.

8.6.9.

8.6.10.

8.6.1.1. Historical Development 8.6.1.2. Cambodia'sJudicial System 8.6.1.3. Bar Association of Cambodia Basic Framework for Defense in the Extraordinary Chambers Extraordinary Chambers Jurisdiction Extraordinary Chambers Structure Extraordinary Chambers Defense Procedures Extraordinary Chambers Investigations and Prosecutions Defense Rights in Cambodia 8.6.7.1. Constitutional Law 8.6.7.2. Procedural Law 8.6.7.3. Application of Defense Rights Statutes, Rules and Official Legal Documentation 8.6.8.1. Law on the Establishment of the Extraordinary Chambers 8.6.8.2. U.N.-Cambodia Agreement 8.6.8.3. Constitution of Cambodia 8.6.8.4. SOC Law 8.6.8.5. UNTAC Code 8.6.8.6. Law on Aggravating Circumstances of the Felonies 8.6.8.7. Law on the Bar Association of the Kingdom of Cambodia 8.6.8.8. Code of Ethics for Lawyers Licensed With the Bar Association of the Kingdom of Cambodia 8.6.8.9. Draft Criminal Procedure Code Commentary 8.6.9.1. Cambodian Lawyers (Admission Requirements) 8.6.9.2. Foreign Lawyers (Admission and Practice) 8.6.9.3. Elements of Defense Practice in Cambodia 8.6.9.4. Assignment of Counsel 8.6.9.5. Communications With a Client in Custody 8.6.9.6. Communications With Witnesses 8.6.9.7. Code of Ethics 8.6.9.8. Discipline of Attorneys Conclusion

Table of Cases Index

831 832 833 833 834 835 835 836 836 837 837 838 839 839 840 842 843 845 848 848 853 858 858 858 859 860 861 863 863 865 866 867 869 875

FOREWORD

International criminal tribunals reflect an international criminal justice model, referred to as the direct enforcement system, meaning that enforcement does not go through state systems ofjustice. Ideally, a direct international criminal justice enforcement system is independent of national ones, and is therefore not subject to the sovereign powers of the different states. Such a system would operate at a supra-national level. For all practical purposes, there has never been such a system in the history of law and legal institutions. The 1474 Breisach trial, a judicial body which represented the 26 member states of the Holy Roman Empire, prosecuted Peter von Hagenbach, for what was then known as "crimes against the laws of God and Man."l Von Hagenbach was the representative of the Duke of Burgundy, in the administration of the city of Breisach where these crimes were committed. The composition of the tribunal was international and it had the power to enforce its judgment, which in the case of Peter Von Hagenbach was to be drawn and quartered. Von Hagenbach acted on the specific orders of the Duke of Burgundy, but he was not allowed to introduce that defense. Would the outcome have been different if Von Hagenbach had effective outside counsel? Would the responsibility have befallen the Duke of Burgundy? Not likely, because the Duke would not have been judged in absentia by proxies of his peers. However, an effective counsel would have made a strong historic record, making it more difficult in the future to have scapegoats pay for their masters, while the latter evaded responsibility. After WWI, the efforts to establish an international tribunal to prosecute Kaiser Wilhelm II and other German war criminals, pursuant to Articles 227,228 and 229 of the treaty of Versailles, never materialized." The few German officers and soldiers who were prosecuted were tried by the German Supreme Court sitting in Leipzig and applying German criminal law and procedure as it existed in 1922-23. At these trials, German defense lawyers had the full latitude of German law, and they used it, including swaying the public's sympathy. In these cases, the Germanjudges proved to be fair and rigorous. After WWII, the International Military Tribunal sitting at Nuremberg (IMT) and the International Military Tribunal for the Far East sitting in Tokyo (IMTFE) were respectively created by a treaty between the four major allies, signed in London August 8, 1945, and by a proclamation by the Supreme Allied Military Commander for the Far East,january 19, 1946. The London agreement as it was called, to which the charter of the IMT was appended, was acceded to by 19 states. The charter of the IMTFE, which was nearly identical to that of the IMT, was part of a proclamation by the Supreme Allied Commander. Why one institution was created by treaty and the other by a military order has only to do with the politics existing in the two theaters of operation, as well as the 466 (1968), quoting 10 A.G. DE BARANTE, 1364-1477 16 (1839) 2 See M. Cherif Bassiouni, World War I: "The War to End all Wars" and the Birth of a Handicapped International Criminal Justice System, 30 DENV. J. INT'L L. & POL'Y 244 (2002); CLAUDE MULLINS, THE LEIPZIG TRIALS: AN ACCOUNT OF THE WAR CRIMINALS' TRIALS AND A STUDY OF GERMAN MENTALIlY (1921). 1

See 2

GEORG SCHWARZENBERGER, INTERNATIONAL LAW

HISTOIRE DES Ducs DE BOURGOGNE DE LA MAISON DE VALOIS,

xxi

xxii • Defense in International Criminal Proceedings roles of the respective allies in both these theaters of operation. In the Far East, the USSR had entered that theater of operation only three weeks before the end of the war, and had much less of a claim on its outcome than it did in the European theater. While the allies in Europe were willing to concede a greater role to the USSR in German and Eastern Europe, this was not the case for the Americans in the Far East, who did not want to give any prominent role to the USSR. These political factors, as well as others, had a great bearing on the rights of the defense, and on the ability of defense counsels to effectively represent their clients. It is evident that politics have an important role in the establishment of international judicial institutions. However, the role of politics extends beyond that, since justice outcomes are related to political agenda. At the IMT, jurists of distinction had significantly greater weight with respect to the contents of the charter, as well as the proceedings of the Tribunal than those involved in IMTFE. With respect to the latter, the American and to some extent British military had the dominant role, and they were susceptible to their superiors wishes, in this case, General MacArthur. The stature and personalities of the judges and prosecutors of both tribunals also reveal a significant qualitative distinction as to the "equality of arms" of defense and prosecution. While the defense at Nuremberg was frequently stymied in its ability to introduce evidence, there was one case where the defense ran away from the Tribunal's control. This was the Goering case, in which he represented himself and for nearly three days he outmaneuvered U.S. Chief Prosecutor RobertJackson. Over fifty years later, Slobodon Milosevic repeated that feat, abusing the rights of the defense by being obstreperous, and managing to delay the proceedings beyond reasonable expectations. The IMTFE was by comparison to the IMT, much less rigorous in its proceedings with respect to fairness and impartiality of the judges, as well as their judicial demeanor," The defense had much fewer opportunities to make an adequate representation of the defendants. The proceedings, modeled after the Common Law's adversary-accusatorial system, were quite alien to the Japanese legal system. Consequently, Japanese defense lawyers were mostly bewildered. Conversely, German lawyers appearing before the IMT and Subsequent Proceedings were for the most part lawyers steeped in the Germanic and Romanist-Civilist systems, and also quite conversant with the Common Law system." More significantly, the German defense lawyers understood, as did their clients, that even though a trial had its political purposes, it was also a process which was part of their social system. The Japanese culture was entirely different. For them, a trial was nothing more than a way of humiliating not only the defendants, but the Japanese nation. Thus, for the Germans, the trials were a way of cleansing themselves of the errors of their leaders, while for the Japanese, it was a way of humiliating the people through their leaders.> The defense's strategies and roles were thus conditioned by these considerations. 3 This was particularly true of the presiding judge, who repeatedly came to the bench in the afternoons evidencing that he had imbibed alcohol, sometimes in significant quantities. 4 For the impressions of three of these lawyers, see Carl Haensel, The Nuremberg Trials Revisited, 13 DEPAUL L. REv. 233 (1964); Otto Kranzbuhler, Nuremberg Eighteen Years Afterwards, 14 DEPAUL L. REV. 333 (1965); and Otto Pannenbecker, The Nuremberg War Crimes Trial, 14 DEPAUL L. REv. 348 (1965). 5 General Douglas MacArthur in part understood that, and that is why he never ordered Emperor Hirohito prosecuted, and excluded most of Hirohito's family, particularly the Emperor's uncle, who directed the commission of the crimes committed by Japanese forces in Nanking, China in 1932.

Foreword • xxiii Both the IMT and IMTFE were supplemented by national proceedings in Germany, pursuant to Control Council Order No. 10, and in the Far East, pursuant to the military authority of the allies in respect to the territories under their control. In Germany, military tribunals were set up by France, Great Britain, and the USSR, while the United States set up a special tribunal consisting of federal and state judges who were assigned to what was then called the American prosecutions, also held at Nuremberg. The quality of justice differed significantly between these four post-Nuremberg proceedings. Little is known about the USSR proceedings other than an estimated 10,000 persons who were given short trials and resulting in a substantial number of death penalties." France and Great Britain conducted military trials in accordance with their own system of military justice, which provided fewer rights and guarantees to defendants and their counsels than did the American proceedings. The Americans, however, discredited themselves and their justice system in the prosecution of General Yamashita before a specially empanelled military commission in the Philippines. The command influence of General Macarthur, the five legally untrained military judges of that Commission, and the highly prejudiced procedures that they conducted were not one of the shining hours in the history of American military justice." More significantly, the law was distorted in order to find General Yamashita guilty, and a new standard was established, namely, that a commander, "should have known" what potential crimes his troops may commit even though he had no such knowledge, nor could have foreseen them. The real hero in these proceedings was Captain Frank Reel who defended Yamashita, even though only a captain facing five generals sitting as judges, and knowing that the entire weight of the allied supreme commander, General Macarthur, was against him." It shows that even under such circumstances, a committed defense lawyer can make a difference, if not for his client, then for posterity. It is in this way that law progresses and that the errors of the past are not repeated. The post-WWII proceedings are a milestone in the history of international criminal justice, but they are not without their faults, to say the least, if only because they excluded the victors. It was clear that the establishment of such institutions constituted progress toward international criminal justice. It also brought about important substantive and procedural legal developments. However, these post-WWII proceedings were dominated by the Common Law's adversary-accusatorial model, which is in part understandable in view of the predominant role that America played in the war, as well as subsequently. The development of international criminal justice institutions, and for that matter, of substantive international criminal law, was arrested between 1950 and 1990 as a result of the Cold war. The fall of the Berlin Wall in 1989 and the disintegration of the USSR brought about dramatic changes in many areas. When the Security Council in 1992 established, pursuant to Resolution 780, the Commission of Experts to Investigate Violations of International Humanitarian Law in the former Yugoslavia, it broke down There is no reliable information on the numbers, as the USSR never disclosed them. It was also a shameful withdrawal by the United States Supreme Court, which refused to entertain a habeus corpus petition in this case. See In Re Yamashita, 327 U.S. 1 (1945) and particularly the extraordinary dissents ofJustices Murphy and Rutledge, ide at 26 et seq. See also M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANIlYIN INTERNATIONAL CRIMINAL LAW 419-445 (2d rev. ed. 1999); M. Cherif Bassiouni, Establishing an International Criminal Court: Historical Survey, 149 MILITARY LAW REVIEW 49 (1995). 8 See A. FRANK REEL, THE CASE OF GENERAL YAMASHITA (1949). 6

7

xxiv • Defense in International Criminal Proceedings the forty-year old barrier that had impeded the progress of international criminal law.9 In short succession, the Security Council established the International Criminal Tribunal for the former Yugoslavia (IClY) and the International Criminal Tribunal for Rwanda (ICTR), and in 1998, the United Nations Diplomatic Conference held in Rome adopted the treaty and statute of the International Criminal Court (ICC). The long-awaited goal of establishing a permanent international criminal court had thus been achieved. During the short period of 1994-2000, international criminaljustice also proceeded along different models referred to as mixed models, with applications in Kosovo, East Timor, and Sierra Leone. These mixed models are also a reflection of realpolitik seeking to accommodate itself with as little accountability as possible.I? None of these institutions from 1992 to date, including the ICC, is truly a direct enforcement model, since they are not supra-national, and require the voluntary cooperation of states."! Thus, their effectiveness depends on extrinsic factors, namely the degree to which states will cooperate with the institution in question, including cooperation in securing evidence and in affording the defense investigatory rights. All of these institutions have followed the adversary-accusatorial model, and more particularly its American version, thus rejecting without much wisdom some important features of the so-called inquisitorial model.l" This influence on international and mixed judicial settings!" is also due to the evolution of international human rights norms and standards applicable to criminal proceedings.':' The post-WWII period brought about an extraordinary development, namely, the United Nations human rights system. As of 1950, an even more extraordinary development occurred in Europe with the adoption of the European Convention on Fundamental Freedoms and the Protection of Human Rights and its enforcement rnechanism.l- fol-

9 See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, Annex, U.N. Doc. S/1994/674 (27 May 1994); Annexes to the Final Report, U.N. SCOR, 49th Sess., U.N. Doc.S/1994/674/Add.2 (1994). 10 See M. Cherif Bassiouni, Accountability for Violations ofInternational Humanitarian Law and Other Serious Violations of Human Rights, in POST-CONFLICT JUSTICE 3 (M. Cherif Bassiouni ed., 2002). For specific mixed model case-studies, see the various articles in POST-CONFLICT jusTICE (M. Cherif Bassiouni ed., 2002), at 429-828. 11 Except, in connection with the IClY/ICTR, the Security Council deems a member state of the United Nations to be in breach, and imposes a direct order or sanction. 12 The inquisitorial system is erroneously assumed to be inquisitional as opposed to simply inquisitorial, in the sense that there is an investigative judge who conducts an independent inquiry in to the facts before a person is remanded to trial proceedings. The use of a judge of instruction in complex investigations would have probably been a better approach than having investigations done by prosecutors and then giving the defense discovery rights to check or challenge the prosecutor's investigation. An investigative judge could follow different protocols approved by the pre-trial chamber, and give access to the defense without duplicating defense costs in doing independent investigations. 13 See M. CHERIF BASSIOUNI, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW (2004), at 545. 14 See STEFAN TRECHSEL, HUMAN RIGHTS IN CRIMINAL PROCEEDINGS (2005); THE PROTECTION OF HUMAN RIGHTS INTHE ADMINISTRATION OFJUSTICE (M. Cherif Bassiouni ed., 1998); and HUMAN RIGHTS & THE ADMINISTRATION OFJUSTICE: INTERNATIONAL INSTRUMENTS (Christopher Gane & Mark Mackarel, eds., 1997). 15 European Convention on Human Rights, Nov. 4, 1950, EUR. TS. Nos. 5, 213 U.N.T.S. 221.

Foreword • xxv lowed shortly thereafter by a similar treaty and human rights system under the InterAmerican convention on Human Rights.!'' The combination of these two major regional treaties, as well as the many United Nations treaties starting with the Universal Declaration on Human Rights;'? and the International Covenant on Civil and Political Rights.l'' firmly established certain basic procedural rights in criminal proceedings, including certain fundamental rights of the defense. Under the aegis of the United Nations a number of other treaties were developed which went into greater specificity as to the protection of human rights in the administration ofjustice which provided the defense with more specific rights.'? These developments at the international level, in turn, had an impact on the drafting of national constitutions which gradually incorporated many of the rights contained in these rreaties.s'' National constitutions are interpreted and applied in national legal systems, and bring about changes in codes, laws and practices. In time, dogmatic differences distinguishing the inquisitorial and adversary-accusatorial systems eroded.s! and a rapprochement between different legal procedural legal systems ensued. Necessarily, this evolutionary process had an impact on international judicial institutions. It was not, however, the product of classical comparative analysis methodology through which one would arrive at general principlcs.s? Instead, it was an ad hoc evolutionary process which was the product of these different factors and influences. The procedures and practices of the ICTY, which in turn influenced those of the ICTR, became the fulcrum of the new international criminal procedure, including the rights of the defense. There is no doubt that the IClY procedures and practices influenced the drafters of the ICC.23 The rules of procedure and evidence of the ICC and those of the IClY/ICTR reveal a high degree of consistency. Thus today we have something that we can call international criminal procedure applicable to international criminal judicial institutions.

16

17

American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S 123, O.A.S.T.S. 36. Universal Declaration of Human Rights, Dec. 10, 1948, GA Res. 217 A (III), U.N. Doc.

A/810 (1948). 18 International Covenant on Civil and Political Rights, Dec. 19, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976). 19 See supra note 13. 20 For a comparison of national constitutional rights and international treaty rights concerning the defense, see BASSIOUNI, INTRODUCTION, supra note 11 at 666-672. 21 See Inquisitorial-Accusatorial: The Collapse ofDogmas in Criminal Procedure?, 68 REVUE INTERNATIONALE DE DROIT PENAL (1997); Comparative Criminal Justice Systems: From Diversity to Rapprochement, 17 NOUVELLES ETUDES PENALES (1998); Jean Pradel, Procedure penale comparee dans les systemes modernes: Rapports de synthese des colloques de l'ISISC, 15 NOUVELLES ETUDES PENALES (1998). See also CRIMINAL JUSTICE BETWEEN CRIME CONTROL AND DUE PROCESS: CONVERGENCE AND DIVERGENCE IN CRIMINAL PROCEDURE SYSTEMS (Albin Eser & Christiane Rabenstein eds., 2004). 22 See M. Cherif Bassiouni, A Functional Approach to "General Principles of International Law, " 11 MICH.J. INT'L L. 768 (1990). 23 Many representatives of the IClY came repeatedly to the sessions of the 1995 Ad Hoc Committee, the 1996-98 Preparatory Committee, and to the Rome Diplomatic Conference. They shared their experiences and expressed their views which were considered by the committee members and then the delegates to the diplomatic conference as being authoritative. See e.g. THE LEGISLATIVE HISTORY OFTHE INTERNATIONAL CRIMINAL COURT (3 vols., M. CherifBassiouni ed., 2005).

xxvi • Defense in International Criminal Proceedings An important part of the new international criminal procedure is of course the rights of the defense. Many of these rights can be found in the seminal treaties on human rights mentioned above.v' as well as by reference to national constitutions.s'' More particularly, it is important to be able to find a comprehensive record of international institutions' practices. This is what this book accomplishes under the able editorship of Michael Bohlander, Richard Wilson and Roman Boed. After and introduction and overview by Michael Bohlander in Chapter 1, Chapter 2 covers some of the procedural safeguards and rights of the defense in what its author, Richard Wilson, considers to be part of international human rights law. He then enunciates those rights which go from general representation to appeal, and also addresses defense rights in special proceedings, such as juvenile matters, capital cases, and military tribunals. His division into categories of defense rights is then followed in Chapters 4 on the ICll:: covered by Monica Martinez and Michael Bohlander, and Chapter 5 on the ICTR covered by Roman Boed and Mandiaye Nyang. In Chapter 3, "A History of the Role of Defense Counsel in International Criminal and War Crimes Tribunals," Wilson addresses the rights of the defense as they existed in certain post-WWII proceedings. 26 Chapters 4 and 5 address with meticulous detail the various rights of the defense, linking the respective statutes of the IClY and ICTR, their rules of procedure and evidence, and their respective jurisprudence. There is no doubt that anyone who wants to know how the defense's rights worked in these two tribunals has only to read these two chapters to be fully informed. Chapter 6, by Kenneth Gallant and Stephen Kirsch, deal with the International Criminal Court. They follow a slightly different approach than the one followed in Chapter 4, probably because the ICC does not yet have existing practice or jurisprudence. The authors follow a classic didactic approach whereby they identify the statute, the rules and regulations, academic writings and commentary. It is through this approach and by reference to the IClY and ICTR that they describe various aspects of the right to counsel. The authors also deal with sections regarding ethics and disciplinary matters, the need for a code of professional conduct, and the role of the Assembly of States Parties. Like the preceding chapters, this one is also highly informative and detailed. It also follows the structured approach set up by the editors and evidenced throughout this book, particularly Wilson's Chapter 2. Chapter 7 deals with a separate but related question, namely, the role of the new international professional associations. Stephanc Bourgon, Kennedy Ogetto, and Wolfgang Bendler address the development and role of associations of defense counsel. They also address issues of professional responsibility and a code of conduct, as well as the establishment of an international criminal bar association with its code of conduct and disciplinary proceedings. The chapter also deals with comparative European experiences, in particular, European defense counsel associations and organizations.

See supra note 13. See BASSIOUNI, INTRODUCTION TO ICL, supra note 19. 26 Chapter 3 does not cover all of the Subsequent Proceedings in Europe or national proceedings in the Far East. However, the author does address the Eichmann and Barbie prosecutions, respectively in Israel and France, which are purely national prosecutions. A similar national prosecution is the Finta case in Canada. 24 25

Foreword • xxvii Chapter 8 is a cooperative undertaking by several authors, namely Alan Simmons and Heleyn Uriac, who cover Kosovo under the UNMIK law; Silvia de Bertodano, who covers East Timor; Rupert Skilbeck, who covers Sierra Leone; Richard Wilson who covers Guanatanamo; Sarah Williams who covers Iraq, and Mohamed Othman and Scott Warden, who cover Cambodia. This chapter addresses the procedural rules and practices before the mixed tribunals and covers in detail issues pertaining to the rights of the defense.'? The chapter also includes references to the eventual establishment of the special chambers for prosecutions in Cambodia pursuant to the UN-Cambodia agreement. It is very informative, and the documents contained therein are very useful. What the collection of materials in this book reveals is a trend towards a supranational system of criminal procedure. In other words, an international common law of procedural norms and standards, which, though applicable to various types of international and inter-national institutions, could also one day ripen into an international standard for states. The European Union's experience is indicative of a new path toward harmonization, if not uniformity of legal norms in different national legal systems.P Thus, we may well be seeing the beginning of a new era of international norms and standards in the field of criminal procedure, irrespective of whether it is before international, inter-national institutions, or national judicial institutions. The editors as well as the authors are to be congratulated for this focused, analytical and detailed study of the rights of defense in what we can call international proceedings and proceedings with an international dimension. While the editors and the authors seem to have targeted the book for students of international criminal law and human rights, it is also a valuable textbook for experts, and it is surely a useful guide for anyone practicing or wanting to practice before international institutions. There is no doubt that this is a valuable contribution to the literature on international criminal law, human rights, and comparative criminal procedure. The editors and the authors are also to be congratulated for their thoroughness and precise detail on what would otherwise appear to be a narrow question in the midst of the larger questions relating to the establishment of international judicial institutions. In the end, the goals ofjustice can only be attained through fairness and impartiality-and for that, a vigorous and effective right to counsel, with all that which the concept implies, is necessary. If international criminal justice is to become that, as opposed to merely another means by which to achieve political outcomes, then we surely must strive to have institutions of international justice meet the highest standards of due process of law. The rights of defense are foundational to any system ofjustice, even though they may at times be costly, lengthy, and even be abused. The quality ofjustice we must offer internationally and nationally is about the values this civilization wants to uphold, not about militarism. If that were the case, we could simply return to trial by battle, where the outcomes are

27 It should be noted, however, that neither Guantanamo nor the Iraq Tribunal are mixed models of international/national justice. Admittedly, the Iraq tribunal statute was promulgated by the Coalition Provisional Authority and drafted mainly by American advisors. See M. Cherif Bassiouni, Post-Conflict Justice in Iraq: An Appraisal of the "Iraq Special Tribunal, " 38 CORNELL INT'L L.J. 327 (2005). On October 19, 2005, Iraqi Law No. 10 abrogated CPA Order No. 48 of 10 December 2003. This law contains significant elements of the American procedural system, but it was still enacted by national legislation. The Tribunal has only Iraqi judges and prosecutors. 28 This includes European supra-national criminal law and procedure as well as European institutions such as Europol and Eurojust, and framework laws giving effect on a European Union wide basis to national arrest warrants.

xxviii • Defense in International Criminal Proceedings prompt, and for some, even entertaining. Fair and impartialjustice makes trials something more than a Greek tragedy where a deus ex machina emerges somewhere to resolve the tragedy. This is why we need an effective right to counsel as part of an overall due process approach that balances the different rights in question and which accomplishes the several goals ofjustice, including recordation and prevention. M. Cherif Bassiouni Distinguished Research Professor of Law, President International Human Rights Law Institute, DePaul University College of Law President, International Institute for Higher Studies in Criminal Sciences Honorary President, International Association of Penal Law

PREFACE

Justice has nothing to do with expediency. President Woodrow Wilson, February 26, 1916 Equality before the law in a true democracy is a matter of right. It cannot be a matter of charity or of favor or of grace or of discretion. U.S. Supreme CourtJustice Wiley Rutledge, Speech to the American Bar Association, September 29, 1941 This book is the fruit of the desire to produce a collection of materials and commentaries on the law and practice of the defense before international and internationalized tribunals and courts.' The area of international criminal law and procedure is a fast moving discipline, and very often events overtake any scholarly attempt to provide a systematic overview of matters. Thus, the editors and contributors are aware that by the time this book is published, many things will have happened that will render parts of it obsolete. Nevertheless, we considered it useful at least to make a start by putting together a foundation on which one can build and which tries to focus the developments up to a certain point in time, to describe the status quo, as it were, from which future events will lead onward. We attempted to state the law and practice as of May 2005, but due to the unavoidable and ubiquitous delays in the writing, editing and publishing process, that attempt may not always have been successful." The editors would like to thank the contributors" for their preparedness to sacrifice their precious time, which they had to take out from their otherwise very busy professions and practices, and for enduring the endless cajoling, admonitions and outright harassment about corrections and the timely delivery of the manuscripts. We are most grateful for the insights they provided, both on the scholarly and practical level. Our heartfelt thanks must go to Professor M. Cherif Bassiouni, for writing the Foreword, and to him and Heike Fenton of Transnational Publishers, for accepting the book in the prestigious International and Comparative Criminal Law Series. Michael Bohlander Roman Boed RichardJ. Wilson Durham, The Hague and Washington, D.C.,June 2005 1 We have also included two systems that are strictly speaking national courts (Cuantanamo and Iraq), but they deal with the same sort of crimes addressed in the international(ized) courts and have an international background to their creation. 2 Before the book went to press, the Statute of the Iraqi Tribunal was radically amended; the new version and the Rules of Procedure and Evidence can be found in the Official Gazette Al-Waqa'I Al-Iraqiya No 4006, Ramadan 14, 1426 Hijri, 47th year, October 18, 2005. 3 Disclaimer: All contributions in this book represent only the personal views of the authors and editors. They are not meant to be representative of the views of the institutions, chambers or firms in which they work.

xxix

ABOUT THE AUTHORS

Michael Bohlander is a professor of law at Durham University (U.K.). He was a member of the German Judiciary from 1991-2004 and the senior legal officer of a trial chamber at the IClY from 1999-2001. He is the founding editor-in-chief of the International Criminal Law Review and has published on a wide range of topics. Roman Boed is Coordinator of Legal Support to the Appeals Chamber of the International Criminal Tribunal for Rwanda; he has served as a legal officer in ICTR Chambers since 1999. He is a doctoral candidate in international criminal law at the University of South Africa, holds LLM degrees in international law from Cambridge (U.K.) and Columbia (U.S.) Universities, aJuris Doctor degree from DePaul University (U.S.) and a Bachelor of Arts degree from Lawrence University (U.S.). He is a member of the Board of Editors of the International Criminal Law Review and the author of over 20 book chapters, articles, and essays on international law. RichardJ. Wilson is Professor of Law and founding director of the International Human Rights Law Clinic at the Washington College of Law, American University, in Washington, D.C. He is a member of Board of Directors of the law school's Center for Human Rights and Humanitarian Law. Since 1990, his clinic regularly litigates cases raising questions of transnational and international criminal law and procedure. Professor Wilson teaches in the Oxford University summer International Human Rights Law program, and has been a visiting professor at law schools in Japan and Peru. He has served as a legal advisor on prisoner's rights issues for the Consulate of Colombia in Washington, and was a Fulbright Scholar in Colombia in 1987. He has written or edited eight books or monographs on international and domestic law, and has authored over 60 articles, chapters and reviews on a range of issues, with particular emphasis on international criminal defense and the death penalty. He was a member of the American Bar Association's Criminal Justice Section Council, and served as Reporter on the last revision to the Association's national Standards for Defense Services in 1992. He was a member of the Board of Editors of the American Journal of Comparative Law and now serves as a member of the Board of Editors of the International Criminal Law Review. He began his legal career as a criminal defense attorney in Illinois, where he practiced for eight years. Wolfgang Bendler studied law and sociology in Munich and practiced as a young lawyer in Paris. Since 1974 he has practiced as defense counsel in numerous criminal cases, including proceedings on extradition and political prosecution by means of penal law as in human rights work. He has authored various publications on the development of the European and international cooperation of police, prosecution and justice. He is a member of the advisory board of the academic journal STRAFVERTEIDIGER and was head of a working group for creating an institutionalised network of European defense counsel (EU-DEFENSE). He is a former president of the "Initiative Bayerischer StrafVerteidigerinnen und Strafverteidiger e. V. Miinchen," a member of "International Criminal Law Net (ICLN) ," an individual member of the "International Criminal Bar (ICB)," and has been listed as defense counsel at the International Criminal Court.

xxxi

xxxii • Defense in International Criminal Proceedings Sylvia de Bertodano is a U.K. barrister specializing in national and international criminallaw. She was defense counsel in Prosecutor v. Tadic, the first trial before the ICTY, and has defended cases at the ICTR and the Special Panels for Serious Crimes in East Timor. She is a legal expert for the East Timor delegation at the PrepComs and Assembly of States Parties for the ICC and has advised the East Timor government on issues concerning accession to and implementing legislation for the Rome Statute. Likewise, she advised the Special Court for Sierra Leone on defense issues. She is a member of a panel of experts for the International Bar Association, drafting a Code of Conduct for Defense Counsel before the ICC and a member of a panel of experts on defense issues for the ICC: She also serves on the Editorial Committee of the Journal of International CriminalJustice. Stephane Bourgon, B. adm, LLB, LLM, is a lawyer and a member of the Quebec Bar in Canada. Formerly military legal advisor with the Canadian Armed Forces, he is presently Defense Counsel representing General Enver Hadzihasanovic before the IClY From 1998 to 2001, he was a staff member at the ICTY, initially as Legal Officer within the Office of the Prosecutor and then as Chef de Cabinet for the President of the ICTY, Judge Claude Jorda from France 1999-2001. From October 2003 until May 2005, he was President of the Association of Defense Counsel Practicing before the International Criminal Tribunal for the former Yugoslavia (ADC-IClY). Kenneth S. Gallant is Professor of Law at the University of Arkansas at Little Rock School of Law, and a member of the inaugural Council of the International Criminal Bar. He has published on various topics in international criminal law and procedure, including international organizations and international criminal law,jurisdiction, individual rights and role of defense counsel. Before teaching, he was a prosecutor with the District Attorney's Office in Philadelphia, PA, USA. His law degree is from the University of Pennsylvania and his undergraduate degree is from Harvard University. Stefan Kirsch is an attorney specializing in criminal law (Rechtsanwalt, Fachanwalt fur Strafrecht) in Frankfurt am Main. He studied law in Frankfurt and Lausanne, Switzerland, and was a research assistant to Prof. Dr. W. Kargl at the Chair of Philosophy of Law, Theory of Law and Criminal Law at Johann Wolfgang von Goethe University in Frankfurt. He appeared as counsel in three cases before the IClY and has recently been assigned as lead counsel in a case before the ICTR. He serves as a member of the Board of Editors of the International Criminal Law Review and has been vice-president of the Association of Defense Counsel practicing before the IClY (ADC-IClY) 2003/2004. In December 2004 his name was included in the list of Counsel of the ICC. Monica Martinez holds a law degree from Oviedo University, Spain, a Master in European and International Law from the Universite Libre de Bruxelles, Belgium, and is admitted to the Spanish Bar (Gij6n). She was an Associate Legal Officer in the Judicial Support Services Division within the Registry of the International Criminal Tribunal for the former Yugoslavia and has been the Deputy Chief of the Office of Legal Aid and Detention Matters since October 2002. She works as a Legal Officer at the IClY Registry's Legal Department since August 2004. Marne Mandiaye Niang holds a Master in Private Law (with distinction) from the University of Dakar (Senegal), a Certificate of the Ecole Nationale d'Administration et de Magistrature (with distinction) and was a Magistrate of the Senegalese Judiciary from 1987-1997; currently he is the Special Assistant to the Registrar of the ICTR.

About the Authors • xxxiii Kennedy Ogetto is the immediate former President of the Association of Defense Attorneys at the ICTR (ADAD). He holds an LLB and an LLM from the University of Nairobi, Kenya, and is a member of the Law Society of Kenya. He is a criminal practitioner and has been lead defense counsel at the ICTR, representing Colonel Anatole Nsengiyumva in the so-called "Military One Trial." Mohamed C. Othman is Senior Legal andJustice Sector Reform Adviser to the United Nations Development Program (UNDP) in Cambodia. Prior to that he served as Prosecutor General of the United Nations Transitional Administration in East Timor (2000-2001), was Chief of Prosecutions of the International Criminal Tribunal for Rwanda (1998-2000), and served as Senior Legal Adviser to the Office of the Prosecutor, ICTR from 1996-1998. He holds a degree in law from the University of Dar es salaam (1974), and an MA (International Relations), Webster University (Geneva) 1982. He has published numerous articles on international law and humanitarian law. Alan Simmons qualified as a solicitor and practiced in the field in commercial law with several law firms in London. He subsequently gained an LLM in International Human Rights Law from the University of Essex. He is experienced in representing individuals before the European Commission and Court of Human Rights and carrying out training on international human rights law in Central and Eastern Europe. Alan was an international legal adviser at the Criminal Defense Resource Center from June 2003 to September 2004. Rupert Skilbeck was called to the Bar in London in 1996 where he practices predominantly in criminal law, prosecution and defense. He is currently the head of Odsjek Krivicne Odbrane (OKO), the criminal defense section of the Registry of the Court of Bosnia and Herzegovina with responsibility for war crimes cases. In 2004 he worked as the Defense Advisor for the Special Court for Sierra Leone. He has lectured on human rights law and international humanitarian law for various organizations around the world. He is an executive member of the Bar Human Rights Committee in London and is also a director of Amicus, an NGO that assists lawyers working against the death penalty in the USA. Heleyn Ufiac qualified as an avocate in Montpellier, France, in 1996. She has practiced as an avocate in France and on a defense team at the International Criminal Tribunal for Rwanda. In November 2001, she moved to Kosovo, where she has worked as a human rights officer with the Organization for the Security and Cooperation in Europe and as international legal adviser and coordinator of case assistance with the Criminal Defense Resource Center. Sarah Williams is a Lecturer in Public International Law at the University of Durham, where she teaches international law and international criminal law. Sarah was formerly a commercial solicitor in London and Sydney. A staff doctoral candidate in international criminal law, she holds a Master ofJurisprudence degree from the University of Durham, and undergraduate degrees in Law and Commerce from the University of Wollongong in Australia. Her current research focuses on the hybrid criminal tribunals. Scott Worden is a Legal Adviser to the Cambodian Defenders Project and has served as an adviser to Cambodian government on legal reform. Before moving to Cambodia, he worked as a litigator with Coudert Brothers in New York, and is a member of the New

xxxiv • Defense in International Criminal Proceedings

York Bar. He holds aJD from Harvard Law School and a BA from Colgate University. He is an advisory board member of the Public International Law and Policy Group in Washington, D.C., and has published several articles on international law and international affairs.

CHAPTER 1

INTRODUCTION AND OVERVIEW Michael Bohlander

It is unjust to deny legal assistance to somebody defending himself against a charge of sorcery. It is even unjust not to provide him with the best advocate if possible, or at least the one he may desire to have.... He should rather be supported in his defence and given everything that is necessary, instead of being obstructed in any manner. The greater the crime with which someone is charged, the greater the sin of those who deny him a proper defence.... The judge himself must take care that the prisoner is not without an advocate.'

Friedrich von Spee, Cautio Criminalis

International criminal law is a legal growth industry. With the creation of the ad hoc tribunals for Yugoslavia (ICTY) and Rwanda (ICTR) in 1993 and 1994 and the International Criminal Court (ICC), which became operational in 2002, the criminal prosecution of war crimes, crimes against humanity and genocide has been put on a different legal footing. In addition, many national conflicts are now being adjudicated by hybrid or mixed tribunals, as well as domestic courts containing international elements, such as internationaljudges and/or prosecutors, as is the case, for example, in Bosnia, Kosovo, Sierra Leone, East Timor and Cambodia. A lot has been written about the efforts of the international community in the fight to end impunity and state-sponsored violations of human rights. The emergence of a genuine system of international criminal law is seen as the victory of law over power. Sitting heads of state, like Slobodan Milosevic, have been indicted and brought to trial for the first time. Yet it appears that, over the legitimate joy about these achievements, the other side of the coin of human rights has been to some extent neglected by the international bodies concerned with the prosecution and adjudication, as well as by legal scholarship. The above-mentioned citation from the book by Friedrich von Spee Friedrich von Spee, Cautio Criminalis oder Rechtliches Bedenken wegen der Hexenprozesse, Question 18 I., II., IV., VI., X (2d ed. 1632) (Translated by Michael Bohlander). The original text reads: Es ist unrecht, jemandem, der sich verteidigen will, er sei kein Zauberer, einen Rechtsbeistand zu verweigern. Es ist schon unrecht, wenn man ihm nicht moglichst den besten Anwalt, oder doch den gibt, den er selbst vielleicht zu haben wiinscht. ... Man soll ihm eher bei der Verteidigung helfen und alles Erforderliche bewilligen, statt ihn irgendwie zu behindern.... Je schwerer das Verbrechen, dessen einer beschuldigt wird, desto schwerer versiindigt sich, wer ihm die Verteidigung verweigert. ... Der Richter hat selbst dafur zu sorgen, daB es den Gefangenen nicht an Advokaten fehlt.

1

2 • Defense in International Criminal Proceedings on witch trials from 1632, shows that even in cases of apparently atrocious behavior the rights of the accused must not be at the disposition of those who profess to save us from the worst criminals mankind has produced. As the chapter by Rick Wilson on Guantanamo and Philippe Sands' recent book Lawless World 2 show, this can, in the end, lead to a state of affairs which Jacques Verges, the controversial former defense counsel for Klaus Barbie, has aptly called "la democratie a visage obscene."> This concern has recently been addressed by Judge David Hunt, in his now famous dissenting opinion in the Milosevic case, where he wrote with respect to the international pressure to wind down the IClY's operation and the so-called "completion strategy": This Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials. The Majority Appeals Chamber Decision and others in which the Completion Strategy has been given priority over the rights of the accused will leave a spreading stain on this Tribunal's reputation." The accused in these proceedings are faced with a new kind of law, new jurisprudence and an amalgam of legal systems from all over the world never before encountered. Very often, and due to the paucity of previous practical judicial experience, the law is being developed by the courts for the first time in the very cases against these accused. They are therefore in need of excellent legal representation and an accompanying legal and administrative infrastructure, in order to do justice to the principle of equality of arms between prosecution and defense, one of the fundamental principles of the Rule of law. As I have said elsewhere.> it is obvious that with lawyers coming from so many different places and legal systems, some will be totally unfamiliar with the adversarial trial system practiced at the international courts. Choice of counsel may thus have a dramatic impact on the position of the accused. The IClY Appeals Chamber in the Tadic case dealt with this problem as follows: Due diligence is a necessary quality of counsel who defend accused persons before the International Tribunal. The unavailability of additional evidence must not result from the lack of due diligence on the part of the counsel who undertook the defence of the accused. As stated above, the requirement of due diligence includes the appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.

2

Philippe Sands, Lawless World, America and the Making and Breaking of Global Rules

(2005). 3

Jacques Verges, La democratic

a visage obsccnc-s-Lc vrai catcchisme de George W. Bush

(2005). 4 Admissibility of Evidence in Chief in the Form of Written Statement, Dissenting Opinion ofJudge David Hunt, Prosecutor v. Milosevic, Case No. IT-02-54-AR73.4, A. Ch., Oct. 21, 2003, Majority Decision given Sept. 30, 2003, at para. 22. 5 "The Defence," in Gideon Boas & William A. Schabas, International Criminal Law Developments in the Case Law of the IClY 66-69 (2003).

Introduction and Overview • 3 Thus, due diligence is both a matter of criminal procedure regarding admissibility of evidence, and a matter of professional conduct of lawyers. In the context of the Statute and the Rules, unless gross negligence is shown to exist in the conduct of either Prosecution or Defence counsel, due diligence will be presumed. In this case, the parties agree that due diligence might have been lacking in respect of certain evidence which was not presented at trial because of the decision of the Defence team to withhold it. The Appeals Chamber is not, however, satisfied that there was gross professional negligence leading to a reasonable doubt as to whether a miscarriage ofjustice resulted. Accordingly, evidence so withheld is not admissible under Rule 115 of the Rules. The Appeals Chamber considers it right to add that no counsel can be criticised for lack of due diligence in exhausting all available courses of action, if that counsel makes a reasoned determination that the material in question is irrelevant to the matter in hand, even if that determination turns out to be incorrect. Counsel may have chosen not to present the evidence at trial because of his litigation strategy or because of the view taken by him of the probative value of the evidence. The determination which the Chamber has to make, except in cases where there is evidence of gross negligence, is whether the evidence was available at the time of trial. Subject to that exception, counsel's decision not to call evidence at trial does not serve to make it unavailable.... As indicated above, when evidence was not called because of the advice of defence counsel in charge at the time, it cannot be right for the Appeals Chamber to admit additional evidence in such a case, even if it were to disagree with the advice given by counsel. The unity of identity between client and counsel is indispensable to the workings of the International Tribunal. If counsel acted despite the wishes of the Appellant, in the absence of protest at the time, and barring special circumstances which do not appear, the latter must be taken to have acquiesced, even if he did so reluctantly. An exception applies where there is some lurking doubt that injustice may have been caused to the accused by gross professional incompetence. Such a case has not been made out by the Appellant. Consequently, it cannot be said that the witnesses and material were not available to the Appellant despite the exercise of due diligence." This reasoning, in my view, is far from the reality in the legal environment of international criminal proceedings. The problem becomes especially virulent when counsel has been assigned by the Tribunal without a specific request from the accused. In such cases, choice of counsel cannot be blamed on the accused, but is the direct responsibility of the court. There should be no debate that in the overwhelming majority of cases, the accused is in no position whatsoever to gauge counsel's abilities. The tribunals and courts will have to make up their mind about whether one can just adopt the "save-it-or-waive-it" approach developed over a long time in common law 6 Prosecutor v. Tadic, Decision on Appellant's Motion for the Extension of Time Limit and Admission of Additional Evidence, Case No. IT-94-1-A, Oct. 15, 1998, paras. 46-50 and 65. The Appeals Chamber recently confirmed this approach in Prosecutor v. Kupreskic et al., Judgment, Case No. IT-95-16-A, Oct. 23, 2001, para. 60, referring to its ruling in the same case in the Decision on the Admission of Additional Evidence Following Hearing of Mar. 30, 2001, Apr. 11,2001, paras. 24 and 25.

4 • Defense in International Criminal Proceedings domestic systems with an adversarial setting, or whether it is not more realistic to admit that the law as practiced before and by the IClY is anything but well-defined and settled, and that the Tribunal and its judges have a responsibility towards the accused to ensure that no one is disadvantaged only because counsel was not up to the task. To refer the accused to a request for withdrawal of counsel and to conclude from the absence of such a request that the accused has agreed to counsel's strategy, has the cynical ring of a scheme designed to avoid disruptions because of the problems connected to a change in defence counsel. Regional supranational systems, such as the European Union, are beginning to prepare a genuine supranational criminal law that may supersede the national jurisdictions. These efforts are still in their infancy, but along with the creation of the prosecutorial framework and measures like, e.g., the European Arrest Warrant, EUROPOL or EUROJUST, the defense lawyers are preparing themselves for the new challenge. It is thus useful and necessary to cover these developments from the start. This collection attempts to provide a compendium of the most important legal texts, relevant documents and cases, as well as explanatory commentary on the law of defense in international criminal proceedings by scholars and practitioners who have a wealth of relevant experience in the field. The book is meant to provide students of courses on international human rights law and international criminal law with the essential materials to understand the vital importance of an adequate defense in international criminal proceedings, and to give legal practitioners, who consider extending their field of practice to the international level, a first impression of the diversity of the tasks they will encounter and prepare them for the legal culture shock they will experience before international tribunals and courts. Rick Wilson begins in Chapter 2 by taking a look at the background of human rights and procedural safeguards enshrined in such documents as the European Convention on Human Rights, the International Covenant on Civil and Political Rights and others. In Chapter 3 he takes the reader on a brief tour through the history of the role of the defense in international criminaljustice. He thus sets the stage for the exploration of the individual international and hybrid jurisdictions. Monica Martinez and Michael Bohlander look at the law and practice in the IClY in Chapter 4, covering topics such as the right to counsel under the statute and the rules, assignment of counsel, professional ethics, the Code of Conduct, discipline by the bench, the attorney-client privilege, communications with a client in custody and communications with witnesses. Roman Boed and Marne Mandiaye Niang repeat this exercise for the ICTR in Chapter 5, followed by Ken Gallant and Stefan Kirsch in Chapter 6 for the ICC. Chapter 7 addresses the different associations of defense counsel, their development and role. Stcphanc Bourgon describes the Association of Defense Counsel Practicing before the IClY (ADC-IClY), followed by Ken Ogetto for the pendant at the ICTR. Regrettably, the International Criminal Bar is only represented by two excerpts from the Internet, because-despite the efforts of the editors-no contributor could be found who could take this topic on within an acceptable time frame for publication. Wolfgang Bendler finally shines a light on the history and development of European initiatives.

Introduction and Overview • 5 The last chapter, Chapter 8, is dedicated to hybrid tribunals, where Alan Simmons and Heleyn Ufiac look at the situation in Kosovo under the law ofUNMIK, followed by Sylvia de Bertodano for East Timor, Rupert Skilbeck for Sierra Leone, Rick Wilson for Cuantanamo, Sarah Williams for the Iraqi Special Tribunal and finally Mohamed Othman and Scott Worden for Cambodia. The newly established Bosnian War Crimes Chamber was not covered, as at the time of writing neither laws nor practice had been sufficiently established. It appears that the tenor of all the contributions at the end of the day is more or less that of doubt-doubt that the concept of equality of arms for the defense is really alive and well in the international criminal law community. There is much emphasis on the fight for ending impunity, and rightly so. Less clear is the foundation for the apparent conviction in that community that domestic systems are less able to cope with past atrocities, but that internationaljudges and prosecutors are and that international legal principles should be imposed on the national legal traditions. We should, in the final analysis, be on our guard that the paragons of international criminal justice, especially against the background of the so-called war on terrorism, do not fall into the trap of self-righteousness and bigotry, taking the world with them, with an attitude that Neil Peart, a member of the Canadian rock band Rush, has so trenchantly expressed in the lyrics of their song Witch Hunt: Quiet in conscience, calm in their right, Confident their ways are best. They say there are strangers who threaten us, Our immigrants and infidels. They say there is strangeness to danger us In our theatres and bookstore shelves, That those who know what's best for us Must rise and save us from ourselves. Quick to judge, Quick to anger, Slow to understand Ignorance and prejudice And fear walk hand in hand. A strong and fearless defense is one of the most important contributions to keep that from happening.

CHAPTER 2

PROCEDURAL SAFEGUARDS FOR THE DEFENSE IN INTERNATIONAL HUMAN RIGHTS LAW* Richard J. Wilson

2.1. INTRODUCTION AND OVERVIEW Domestic law, through constitution, statutes and other positive expression, is often seen as the principal source of procedural protections relating to the defense in a criminal proceeding. By contrast, when we think of the defense in international criminal proceedings, we tend to look to the extensive and rich body of law that forms the subject matter for the rest of this book. There is, however, a third source of law, often overlooked, that also has developed an extensive body of principles, rules and jurisprudence relating to procedural safeguards for the defense: international human rights law. This chapter will review in some depth the extensive body of international human rights law relating primarily to the right to counsel and other legal assistance in criminal proceedings. Sources include international treaties and standards, as well as the decisions of international treaty bodies and other international jurisprudence, which interpret those treaties and standards. While there are now treatises on the major human rights treaties, both global and regional, and their jurisprudence, this chapter will examine that law by topic. The cumulative jurisprudence under these treaties is truly impressive, but can be daunting to those who have not encountered the array of treaties and treaty bodies providing those interpretations. At the global level, it will review the provisions and interpretation of the International Covenant on Civil and Political Rights (ICCPR) and its interpretive body, the Human Rights Committee (HRC). Occasional reference will also be made to the Universal Declaration on Human Rights, adopted in 1948, from which the ICCPR was derived. Other U.N. standards, bodies and their decisions fill out the remainder of the global survey. At the regional level, it will examine the main human rights treaties and bodies of Europe (the European Convention for the Protection of Human Rights and Fundamental Freedoms, or European Convention on Human Rights-ECHR); the Americas (the American Convention on Human Rights-ACHR); and Africa (African Charter on Human and Peoples' Rights-ACHPR). Each of these treaties, in turn, has its own treaty bodies that interpret the norms of that region's treaties: the European Court of Human Rights (European Court) and its Commission, which has now been eliminated as a Convention organ and subsumed within the Court; the Inter-American Commission on Human Rights (Inter-American Commission, or IACHR) and the

* Thanks to my intrepid research assistant, Christine Lin, whose help in the research for this chapter and others was indispensable. 7

8 • Defense in International Criminal Proceedings

related Inter-American Court of Human Rights (Inter-American Court or IACtHR), and the African Commission on Human and People's Rights (African Commission). In general, reference to "treaties" in this chapter is to this group of global and regional human rights treaties, and their treaty bodies. Oftentimes, the ICCPR will provide a model from which to begin discussion of a topic, with differences explained in the related provisions of other treaties. Explicit reference will be made to other treaties and instruments dealing with issues such as international humanitarian and criminal law. The right to defense is generally contained within what are referred to as fair trial rights under the treaties above. The rights to a fair trial, themselves, are part of a range of protections for any person under state control, such as those that protect against torture or other cruel treatment, or against prolonged detention without charge. This chapter will further narrow the focus to particular issues related to the right to legal assistance or counsel, and not on the broader array of protections for the defense typically addressed by these treaties, such as rights to silence, disclosure, interpretation, protection against double jeopardy and compensation for miscarriages ofjustice. The rich array of norms and jurisprudence in this area suggests similar development of the law in the other related areas not addressed here. Another reason for exclusive focus on the right to counsel is the crucial importance of that right to the full exercise of the other rights of defense enumerated in international and domestic law. The chapter will address the three modes by which defense representation is exercised: by counsel of choice or retained counsel; by counsel assigned by a court, whether private or a public defender; and by pro se or self-representation. The last section of the chapter deals with special situations involving the right to legal assistance, including juvenile proceedings, the death penalty, military tribunals and times of national emergency, each of which is dealt with by the various treaties and bodies named above, and all of which may be relevant to the issues of international criminal defense. This chapter hopefully will provide a framework for subsequent discussions of the rules and procedures relating to the defense function in international criminal proceedings. In addition, the chapter gives a sense of the rich array of issues addressed in the international context, sometimes well beyond the level of detail at which such issues have been developed in domestic courts. This is particularly important for those advocates seeking to deploy additional arguments in the domestic courts relating to the right to counsel, fair trial, the presumption of innocence, due process of law, equality in general, and equality of arms in particular, and the right of access to the courts. Each of these issues will be touched on below in the context of legal assistance. Finally, the international tribunals discussed below, particularly the ad hoc tribunals for the former Yugoslavia and Rwanda, have made extensive use of this jurisprudence in their own decisions, just as national courts have done increasingly in their decisions. This chapter will hopefully contribute to that broad cross-pollination of doctrine.

2.2. "LEGAL ASSISTANCE" IN INTERNATIONAL HUMAN RIGHTS LAW The terms "legal assistance" and "assigned legal assistance" are the terms most commonly used in international treaties and standards when referring to legal representation. The term "legal assistance" refers to representation by an attorney or other person, without cost or at substantially reduced cost, to an individual in need of such repre-

Procedural Safeguards for the Defense • 9 sentation in criminal legal proceedings. In that sense, the term has broader meaning than a right to "counsel," which would permit representation only by a lawyer, presumably one who has met the standards for legal admission to practice law in the relevantjurisdiction or tribunal. "Assigned," when used to modify the term legal assistance, means that the representative is provided through a process administered by state authorities. In international human rights law generally, assignment of legal assistance is available only when one or both of two conditions are met: (1) where a person's financial means are insufficient to permit hiring a representative; and (2) in criminal matters, where "the interests ofjustice" require the assignment, with exceptions as noted in the text. While the term "assignment" implies total discretion on the part of the state over the choice of a lawyer for the person to whom counsel is assigned, international human rights law recognizes a limited right of individual choice in the selection of a representative. The distinctions within the legal profession between lawyer, counsel, advocate, barrister and solicitor are generally interchangeable unless otherwise indicated in the text. The right to legal assistance is specified in all of the major global and regional human rights treaties.! It can also be found in humanitarian law treaties." This section will review the meaning of the term "legal assistance," and will explore whether a defendant charged with international crimes should ever be represented by a non-lawyer.

2.2.1.

"Legal Assistance" and Representation by a Non-Lawyer

The ICCPR uses the term "counsel" in Section 14(3) (b), which deals with communication with one's advocate prior to the trial of a criminal matter, while using "legal

Universal Declaration of Human Rights, Article 11 (1); International Covenant on Civil and Political Rights, Article 14(3) (b) and (d); European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(3) (b) and (c); American Convention on Human Rights, Article 8(2) (c) and (e); African Charter on Human and Peoples' Rights, Article 7 (c). All treaties use the term "legal assistance" or "right to defence" when discussing assignment by the state, except the American Convention, which uses the term "counsel provided by the state, paid or not as the domestic law provides." 2 The language of the Geneva Conventions ranges from the most general to very specific protections. E.g., Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Common Article 3(d) (1949) ("all the judicial guarantees which are recognized as indispensable by civilized peoples."); Geneva Convention (III) Relating to the Treatment of Prisoners of War, Article 105 (in judicial proceedings, the prisoner of war "shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate of his own choice"); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Article 72 (in the courts of the occupying power, accused persons "shall have the right to be assisted by a qualified advocate or counsel of their own choice"); Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 75 (4) (a) (1977) ("all necessary rights and means of defence"); Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Article 6(2) (a) (1977).

10 • Defense in International Criminal Proceedings

assistance" in Section 14(3) (d), which deals explicitly with the exercise of the right to representation by the accused. An examination of the drafting process of the treaty contributes to an explanation as to why the broader term is used in the latter context. The drafting history of the ICCPR indicates a deep concern with the simple fact that "lack of lawyers and the non-existence of a bar often prevent the implementation of the right to legal assistance to its maximum extent."3 One delegate to the drafting conference, for example, stated that legal assistance "did not necessarily mean a lawyer, but merely assistance in the legal conduct of the case. Under Moslem Law or in cases judged according to native law and custom the compulsory assistance of a lawyer might give rise to difficulties."4 The term "legal assistance" is also used in reference to the more cautiously worded protections of the right to legal representation in civil matters, contained in the same treaties, where representation by a lawyer is not felt to be as important to the litigant as situations in which liberty or life can be at stake. Similarly, the European Commission on Human Rights applied the European Convention on Human Rights, which also contains the reference to "legal assistance," to a German probationer (a graduate of law school not yet admitted to practice law) undergoing statutory training. The Commission held he was qualified to provide defense in a criminal case in Germany> On the other hand, even a non-lawyer must provide adequate legal assistance. Thus, the Human Rights Committee has found a denial of adequate legal assistance in the preparation of a defense where a Uruguayan judge assigned a non-lawyer to defend the pctitioncrf One might also note that the term "legal assistance" might also be interpreted so as to afford the accused resources in addition to counsel, such as expert and investigative services, or research facilities, but research has not revealed a decision to that effect to date. It is reasonable to assume that defendants facing complex criminal charges of international crimes, often in specialized tribunals, will be represented by a professionally trained lawyer, whether that person is charged domestically or internationally. Such, in fact, is the case with the international tribunals, even those that are ad hoc in nature. However, some trials may take place before domestic courts with extremely limited resources. The following sections illuminate the limits set by international human rights law and standards on when a non-lawyer may provide legal assistance in the criminal context.

2.2.2.

Advice and Assistance Through Other State Entities and NGOs

Other standards discuss the importance of non-governmental organizations and voluntary organizations in providing legal assistance. The Council of Europe, for exam-

Charika Marasinghe, "The Right to Legal Assistance in International Law, with Special Reference to the ICCPR, the ECHR, and the ACHR," 5 Asian YB. Int'l L. 15, 18 (1997) (hereafter "Marasinghe"). 4 Id. 5 X. v. Federal Republic of Germany, European Commission on Human Rights, 3 Eur. Comm. Hum. Rts. YB. 174, 180-82 (1959), quoted in Marasinghe, at 18-19. 6 Vasilskis v. Uruguay, Doc. A/38/40, cited in Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, at 422 (1994) (hereafter "McGoldrick").

Procedural Safeguards for the Defense • 11 pIe, has said that such organizations should "give assistance, in the context of access to the courts, to persons who are in a position of such dependence and deprivation that they cannot defend themselves."7 Another resolution of the Council of Europe recognized the importance of legal advice. States should ensure that such advice be given free "dependent on the resources of the person seeking the advice," and can be given by appropriate agencies assigned that task." The Human Rights Committee has asked whether the administration ofjustice could be improved in rural areas of the Dominican Republic through the use of state entities such as an ombudsman or defensor del pueblo (community defender) .9

2.2.3.

Representation by Apprentices in Pupilage, Mandatory Service Programs as a Condition of Bar Admission or Students in a Law School Clinical Program

In some countries, provision of legal services to the poor is a condition for admission to the bar. This may be accomplished by mandatory participation in a law school clinic, by mandatory national service prior to admission or by the acceptance of a certain number of cases on a pro bono basis during a period of pupilage or apprenticeship. The European Court of Human Rights rejected a claim by a Belgian advocate, who was required to assume the defense of some 50 criminal cases without compensation during his mandatory period of pupilage, that his work violated provisions of the European Convention protecting against forced labor.'? In the United States and in a growing number of other countries, law students are permitted to appear in certain courts on a limited range of criminal legal matters. In some countries, due to severe limitations on the in-court practice of law by non-lawyers, students can only provide legal advice and referral, and they may assist in the preparation for trial but are not permitted to appear before a court as an advocate. Some courts do allow students to appear in criminal proceedings under close supervision of a lawyer, although the severity of the crimes for which such services are available is often limited by law or court rule. Where court practice is permitted, student advocates must often qualify to provide such services and be certified by the courts before which they appear, or at least obtain the permission of the accused and the tribunal before appearance. The criteria for certification of law students usually include enrollment in a law school clinical program, completion of certain prerequisites such as a number of credit hours or specific required courses and supervision by a law school professor or other attorney admitted to practice in the relevant jurisdiction or tribunal.

7 Effective Access to the Law and to justice for the Very Poor, Committee of Ministers of the Council of Europe, Recommendation No. R (93) 1,jan. 8, 1993. ("Very poor" means "persons who are particularly deprived, marginalized or excluded from society both in economic and in social and cultural terms." Id. in Preamble.) 8 On Legal Aid and Advice, Council of Europe, Committee of Ministers, Resolution (78) 8, Mar. 2, 1978. See also the U.N. Basic Principles on the Role of Lawyers, which distinguish between "lawyers" and "legal services" in Articles 3 and 4. U.N. Basic Principles on the Role of Lawyers, U.N. Doc. A/CONF.144/28/Rev.1, at 118 (1990) (hereafter "U.N. Basic Principles"). 9 McGoldrick, at 398-99. 10 Van de Mussele v. Belgium, Eur. Ct. H.R. (Ser. A., No. 70), discussed in john Andrews, "Council of Europe," 9 Eur. L. Rev. 132, 133-35 (1984).

12 • Defense in International Criminal Proceedings

Such appearances by students normally also require a statement to the effect that no fee is to be paid by the client, and that the services are provided on a pro bono basis. Most standards and domestic codes, however, assume that the provision of legal assistance will be given by professional counsel who are qualified to practice law and licensed under domestic law, and who are subject to some formal structure of qualification and discipline.

2.2.4.

No Structural Requirements for Defense Services

All of the treaties under consideration here provide that states that become parties to the treaty agree to create an effective means to protect the rights set out in the treaty. In the ICCPR, for example, Article 2(2) provides that states parties to the treaty undertake "to take the necessary steps ... to adopt such legislative or other measures as may be necessary to give effect to the rights" in the treaty. In the Velasquez Rodriguez case, the first and most important decision of the Inter-American Court of Human Rights, the Court interpreted a similar provision in the American Convention on Human Rights. Article 1 (1) of the Convention, which requires states to respect and protect rights in the Convention, creates a duty on the part of states party "to organize the government apparatus and, in general, all the structures through which public power is exercised, so that they are capable ofjuridically ensuring the free and full enjoyment of human rights."ll In a later decision on access to assigned counsel, the Court applied this structural analysis to the right to counsel: "Insofar as the right to legal counsel is concerned, this duty to organize the governmental apparatus and to create the structures necessary to guarantee human rights is related to the provisions of Article 8."12 Another source of structural guidance is the U.N. Basic Principles on the Role of Lawyers, which contains the following two articles in its opening provisions: Principle 2. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status. Principle 3. Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall cooperate in the organization and provision of services, facilities and other resources. The references to "mechanisms" and sufficient funding provide a strong argument for a structural approach. The advisory language of the Inter-American Court of Human Rights and the Basic Principles provide a legal basis for a country's obligation to provide an effective struc-

11 Velasquez Rodriguez Case, Inter-Am. C.H.R.,Judgment ofJuly 29, 1988, Sere C, No.4, para. 166. 12 Inter-American Court of Human Rights, Advisory Opinion OCjll-90, Exceptions to the Exhaustion of Domestic Remedies (Article 46(1), 46(2) (a) and 46(2) (b) American Convention on Human Rights), Aug. 10, 1990, at para. 24 (hereafter "Advisory Opinion OCjll-90").

Procedural Safeguards for the Defense • 13 tural or systematic approach to the provision of defense services for the poor. This is particularly important in that the poor make up the overwhelming number of criminal accused in any criminal justice system. The implicit assumption of the treaty regimes is that counsel will be provided through assignment to individuals on a case-by-case basis. This is a structure of sorts, in that it requires an administering authority to dispense the assignments of counsel in the numerous cases in which that is necessary. However, the treaties themselves contain no guidance as to how state structures can assure what the treaties consistently have been held to require: competent and effective counsel. This is not to say that there are not possible structural solutions available. National experience shows a rich variation of structures for the delivery of legal services to those who cannot afford counsel. The various structures often overlap the provision of legal services in civil and criminal cases or provide advice and referral services in addition to representation in criminal litigation. 13 One authority notes no fewer than ten extant models for the delivery of legal services to the poor.':' This absence of language addressing the need for systematic provision of defense services for the indigent accused is a serious shortcoming in the treaty regime. A treatise on the law of the European system of human rights, for example, states that" [a] system that does not contain any obligation to pay costs for the accused who is acquitted but requires the reimbursement of the costs of appointed lawyers in case the person concerned is convicted, is in itself not compatible with the Convention."15

2.3. THE RIGHT TO LEGAL ASSISTANCE IN CRIMINAL MATTERS GENERALLY Virtually all of the international treaty body decisions on the scope of "fair trial" rights to legal assistance occur in the criminal context. In a criminal trial, the state seeks to deprive the accused of liberty or even life, thereby requiring a high level of fairness and equal treatment. Thatjurisprudence is now quite extensive and sophisticated, with a good deal of overlap between the decisions of the various bodies. The remainder of this chapter will address the right to legal assistance in criminal proceedings. With the very narrow exceptions set out in the previous section in mind, the rest of this chapter generally equates legal assistance to work by a trained lawyer, except where otherwise indicated.

13 Robert J. Rhudy, "Expanding Access to Justice: Legal Aid Models for Latin America," in Justice Beyond Borders: Judicial Reforms for Latin America and the Caribbean, at 53 (Christina Biebesheimer & Francisco Mejia eds., 2000); European Commission, Guide to Legal Aid and Advice in the European Economic Area (1996) (providing guidance to the legal aid structures of 17 Western European countries); Karoly Bard & Vessela Terzieva, "Legal Services for Indigent Criminal Defendants in Central and Eastern Europe," 5 Parker Sch. J. E. European L. 209 (1998) (summarizing legal services in criminal matters in Central and Eastern Europe). In the United States, the three models for defense services are assigned counsel panels, public defenders and contracts for services. See ABA Standards for CriminalJustice, Providing Defense Services 5-13 (3d ed. 1992). 14 Rhudy, ide at 82 and Table 2.1, at 84-88. 15 P. Van Dijk & GJ.H. Van Hoof, Theory and Practice of the European Convention on Human Rights 472 (3d ed. 1998) (hereafter "Van Dijk & Van Hoof'); see also my own critique of the shortcomings of systematic provision of defense services in international criminal tribunals. Richard J. Wilson, "Issues in the Assignment of Defense Counsel in International and Domestic War Crimes Tribunals: The Need for a Structural Approach," 2 Int'l Crim. L. Rev. 145 (2002).

14 • Defense in International Criminal Proceedings

2.3.1.

"Minimum Guarantees"

All of the treaties dealing with legal assistance in criminal matters recognize that the right to legal assistance is among the "minimum guarantees" available in the determination of a criminal charge. Thus, the state may provide more protection than the treaties, but it cannot provide less. Also, because the minimum guarantees are not exhaustive, a fair trial may not occur even where all minimum guarantees have been met.!''

2.3.2. The Principle of Access to a Court The right to access to a court results from interpretations by the European Court of Human Rights of the fair trial provisions of Article 6(1) of the European Convention on Human Rights. It began with the case of Golder v. United Kingdom in 1975, a case holding that a prison inmate who was refused access to his lawyer in order to prepare a civil action for libel against a guard was denied access to a court under the relevant article. 17 The Golder rationale has been extended significantly since then. For example, the former European Commission on Human Rights found that excessive costs for the accused in taking evidence could, in some circumstances, constitute denial of effective access to a court.l" The right to effective access can also be invoked in assessing whether legal aid counsel should have been granted, and whether a legal aid lawyer's representation must be effective.19 The Inter-American Court has also addressed the issue of the relationship of fair trial rights to that of access to the courts. It has repeatedly found that "for true guarantees of fair trial to exist in a proceeding ... it is necessary to observe all the requirements that are designed to protect, to ensure or to assert the entitlement to a right or the exercise thereof." A violation of Article 8, the fair trial rights provision of the American Convention, occurs when there is no effective access to the domestic courts."? Similarly, the rights in Article 8 (2) of the Convention, including the right to counsel, "must be respected in proceedings or procedures before or accompanying the judicial proceedings, which, should these guarantees not be respected, could have an unfavorable and unjustified impact on the juridical status of the person in question."21 The failure to provide effective access to the courts, or to mechanisms closely related to the courts, constitutes a violation of the right to counsel and, more broadly, to a fair trial.

16 European Commission on Human Rights, cited in David Harris, "The Right to a Fair Trial in Criminal Proceedings as a Human Right," 16 Int'l & Compo L.Q. 352,376-77 (1967). 17 1 E.H.R.R. 524 (1975), discussed in Karen Reid, A Practitioner's Guide to the European Convention on Human Rights 75 (2d ed. 2004) (hereafter "Reid"). 18 X v. Switzerland, Appl, 9379/81, discussed in Van Dijk & Van Hoof, at 422, n.721. 19 See e.g., Grangerv. The United Kingdom, (Ser. A., No. 174) ,judgment of Mar. 28,1990, and Kamasinski v. Austria, (Ser. A., No. 168) ,judgment of Dec. 19, 1989, discussed in Van Dijk & Van Hoof, at 422, n.723 and 724. 20 Sanchez v. Honduras, judgment No. 99, june 7, 2003, at " 124, 135 (internal quotes omitted) . 21 Urrutia v. Guatemala,judgment No. 103, Nov. 27, 2003, at' 120.

Procedural Safeguards for the Defense • 15

2.3.3. The Principle of Equality ofArms The principle of equality of arms is even more important in criminal cases, where, as one authority said, "the very character of the proceedings involves a fundamental inequality of the parties."22 The Human Rights Committee found that refusal to permit adjournment for a defendant to obtain counsel was a violation of the right to equality of arms implicit in Article 14(1) of the Covenant, especially when the prosecution was permitted several adjournmcnts.s" More recently, the Committee found a violation of the same article when the defendant in a capital case was held for five months in detention without access to counsel, during which time he was interrogated by police and was not invited to take part in a reconstruction of the crime scene.s! The European Court of Human Rights has a long tradition of applying the principle, in instances such as equal opportunity to receive and respond to submissions, to present or give evidence, to provide equal status to witnesses and to correct for procedural inequalities and legislative interference-" The Court, for example, found that denying the defense the same opportunities as the prosecution to call experts could violate the principle.s'' Similarly, when a prosecutor's office is permitted to participate in the deliberations of an appellate chamber, as is the case in some civil law systems, the defense must be given an opportunity to respond to unfavorable submissions made by that office to the chamber."? Most remarkably, the Court has not required a showing of prejudice from denial of equality, even where the erroneous advantage to the prosecution is rejected by the domestic court in question.w

2.3.4. The Principle ofthe Presumption ofInnocence The principle of the presumption of innocence is one of the most familiar concepts in criminal law, but the way in which the principle plays out procedurally, and its corresponding treatment in international human rights law, make it one of the most narrowly applied of the concepts as related to the right to counsel. It has not been applied in Europe, for example, to the detention of individuals prior to trial, pending appeal or even upon remand after successful appcal.s? Nor has the European system found that imposition of certain evidentiary presumptions against the accused are per seviolations of the presumption of innocence, so long as they do not strip a fact-finder of "any effective power of assessment of the facts or guilt."3o While inappropriate comments on the public record by a court, prosecutor or other government actor may impermissibly violate the presumption of innocence, such comments are almost never challenged without the effective assistance of a defense advocate. Although it would appear that the

Id. at 430. Robinson v.Jamaica, Human Rights Committee, Doc. A/ 44/40, para. 6.4. 24 Garyverdy ogly Aliev v. Ukraine, CCPR/C/78/D/781/1997, Sept. 18, 2003, at , 7.2. 25 Cataloged and discussed in Reid, at 100-04. 26 Bonisch v. Austria, Eur. Ct. of H.R. (Ser. A., No. 92), Judgment of May 6, 1985, cited in Van Dijk & Van Hoof, at 432. 27 Borgers v. Belgium, Eur. Ct. of H.R. (Ser. A., No. 214-B), Judgment of Oct. 30, 1991, cited in Van Dijk & Van Hoof, at 432. 28 Bulut v. Austria, No. 17358/90, Feb. 22, 1996, at , 96. 29 See discussion in Reid, at 154. 30 Id. at 155. 22 23

16 • Defense in International Criminal Proceedings

denial of counsel might, in itself, be evidence of denial of the presumption of innocence, there is no jurisprudence to support this assertion.

2.3.5.

Scope ofthe Right to Legal Assistance in Criminal Matters: Duration of Representation and Types ofCases Requiring Assignment

All of the relevant treaties apply the rights of defense to persons under "criminal charge" or "charged with a criminal offense." However, assigned legal assistance is said to be necessary only in cases where "the interests ofjustice so require," and where the applicant is without means to hire counsel. To what proceedings should the right to legal assistance attach? The Basic Principles on the Role of Lawyers make clear that the right to counsel extends to all stages of criminal proceedings, including interrogations, presumably even before formal arrest.v The Human Rights Committee has also held that the interests ofjustice require assignment of counsel at all stages of the proceedings in capital cases, particularly where the accused has no choice of counsel-" In the European human rights system, the right to assigned legal assistance applies "from the date of the charge to the ultimate resolution of the case by appeal or cassation, if any."33 A recent decision by the Court has extended the right to representation by assigned counsel to prison disciplinary proceedings where the nature of the charges and the severity of the consequences combine to make the charges "criminal" in nature.>' Counsel must be made available at the earliest possible time for all detained persons. Early assignment is discussed below in Section 2.4.2. The seriousness of the offense is the most important criterion in deciding whether the interests ofjustice require assignment of counsel. In a case involving the prosecution of two minor traffic offenses where the worst punishment is a small fine, the Human Rights Committee held that the interests ofjustice do not require the assignment of counsel.f The "interests ofjustice" standard makes clear that counsel must be provided whenever a person faces serious charges: capital punishment, long imprisonment or loss of livelihood are examples found in the jurisprudencc.v' In the European system, the Court applies two criteria to the determination of the "interests ofjustice": first, "the seriousness of the alleged offense in conjunction with the severity of the penalty that the accused risks, and secondly, the complexity of the case. "37 The Court has found legal aid to be a necessity where national law makes provision of counsel compulsory for a certain stage of a case, such as cassation reviewf"

Basic Principles, Principle 1 and 17 (1). Henry and Douglas v. Jamaica, No. 571/1994, July 26, 1996; Saidov v. Tajikistan, CCPR/C/81/D/964/2001, Aug. 20, 2004, , 6.8. 33 Leonard H. Leigh, "The Right to a Fair Trial and the European Convention on Human Rights," in The Right to a Fair Trial 645,650 (David Weissbrodt & Rudiger Wolfram eds., 1996) (hereafter "Fair Trial"). 34 Ezeh and Connors v. United Kingdom, Nos. 39665/98 and 40086/98, Judgment of the Grand Chamber of Oct. 9, 2003, at , 130. 35 O.F. v. Norway, No.158/1983, Oct. 26, 1984. 36 Rainer Grote, "Protection of Individuals in the Pre-Trial Procedure," in Fair Trial, at 723. 37 Van Dijk & Van Hoof, at 472. 38 Twalib v. Greece, June 9, 1998, cited in Jeremy McBride, "Access to Justice Under International Human Rights Treaties," 5 Parker Sch.J. E. Eur. L. 3,42, n.169 (1998). 31

32

Procedural Safeguards for the Defense • 17 The particular characteristics of the accused also may create the need for additional procedural safeguards to fully protect the right to assigned counsel. In the European system, for example, the Human Rights Court has held that the French court, having before it a mentally disabled defendant who did not respond to the court's notice of appearance to defend against serious allegations of sexual assault, should have ordered that the defendant attend an appointment with psychiatrist and the hearing itself, and, in his absence, to assure that a supervisor or lawyer appeared on behalf of the accused. The principle at stake, said the Court, was the "interests of justice" requirement of Section 6(c) (3) of the European Convention.o?

2.3.6.

Counsel ofChoice, Number ofCounsel, Unwanted Counsel and Harassment ofCounsel

There is a general rule that persons who are able to retain counsel cannot be limited as to their selection of an attorncyt" Thus, a law that restricts attorneys from representing more than one defendant at a time, nationwide, where the defendant is accused of certain terrorist offenses, violates the right to choice of counsel."! The European Court of Human Rights has held, more recently, that there is no absolute right to choose counsel, even if retained, if the domestic rules limiting the choice of counsel are reasonable. Thus, a French system, which limits selection of lawyers to those who are members of the Conseil d'Etat or Cassation bars, was reasonable to assure the court's smooth opcration.t? In the case of counsel assigned at state expense, the state has stronger interests in restricting the role of the accused in the choice of counsel, for reasons of cost, efficiency and administrative structure. The European Court, which has taken the strongest position against choice of counsel for the indigent accused, nonetheless finds that "the national courts must certainly have regard to the defendant's wishes.... However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests ofjustice."43 The Human Rights Committee has said that in death penalty cases, the court should give preference to the choice of counsel by the accused, including the appeal, even if it involves a postponement of the case.r' In another more recent case, however, the Committee found that Article 14(3) (d) does not entitle the accused to a choice of assigned counsel, but that counsel, once assigned, must provide effective representatiori.f The question of choice of counsel also implicates the issue of the number of lawyers available to the indigent accused. The international criminal tribunals for Rwanda and the former Yugoslavia now appoint two defense counsel for each accused routinely

Vaudelle v. France, 37 E.H.R.R. 16 (2001), at " 52-53,58. See, e.g., cases from IACHR in Marasinghe, at 24, n.36. 41 Juliane Kokott, "Fair Trial-the Inter-American System for the Protection of Human Rights," in Fair Trial, at 144, citing to 1994 Annual Report of the IACHR (hereafter "Kokott"). 42 Meftah and Others v. France, Nos. 32911/96, 35237/97 and 34595/97, (July 26,2002). 43 Croissant v. Germany, 62/19991,314/385, Sept. 25, 1992, cited in Amnesty International, Fair Trials Manual, at 105, n.9 (hereafter "Fair Trials Manual"). 44 Pinto v. Trinidad and Tobago, 232/1987, July 20, 1990, cited in Fair Trials Manual, at 104, n.8. 45 Saidov v. Tajikistan, CCPR/C/81/D/964/2001, Aug. 20, 2004, at , 6.8. 39

40

18 • Defense in International Criminal Proceedings because of the seriousness of the charges and the diverse legal systems involved, but the normal rule is that the indigent accused reasonably can be limited to one lawyer'v Even when choice is limited, the indigent accused should be able to refuse a lawyer who is offered to him, in appropriate circumstances.'? In Burgos v. Uruguay, for example, the Human Rights Committee found a violation of the right to legal assistance when the accused was forced to choose his representative from a list of military lawyers, drawn up by the state. When counsel refused to select counsel from the list, instead seeking an assigned civilian counsel, he was forced, under threat, to accept a military officer as his defender. The Committee found a violation by virtue of the fact that the petitioner was "forced to agree to ex officio legal counsel. "48 Finally, the Human Rights Committee has suggested that harassment or intimidation of a lawyer by a government may constitute a violation of the right to effective legal assistance.t? Where the harassment or intimidation contributes to a fear in the entire legal community about providing needed legal assistance, individuals may be exempted from the requirements of exhaustion of domestic remedies before pursuing international remedies. The Inter-American Court of Human Rights so found in its important advisory opinion on indigence and fear as bars to obtaining counsel, and the resultant relaxation of the exhaustion requirement for those affected by either of those local conditions. The Court found that "where an individual requires legal representation and a generalized fear in the legal community prevents him from obtaining such representation, the ... individual is exempted from the requirement to exhaust domestic remedies."5o

2.3.7.

"Free" Counsel, Costs and Recovery of Costs of Counsel in Criminal Proceedings

Legal assistance is available without cost to the applicant where two conditions are met: (1) the applicant demonstrates that his financial means do not permit the hiring of counsel; and (2) the "interests ofjustice" require the assignment. The latter criterion is dealt with above. Domestic law usually controls the standard for determination of indigence, but there is a growing body of rules and cases on such determinations in international criminal tribunals, which will be discussed in the succeeding chapters. As to who assumes the costs of counsel, ICCPR Article 14 (3) (d) states only that the accused is to have legal assistance assigned "without payment by him." The European Convention, Article 6(3) (c), states that the assistance is "to be given free," while the American Convention, Article 8 (2) (e), states that counsel is to be "provided by the state, paid or not as the domestic law provides." All of these articulations make clear that legal assistance is to be provided without cost to the defendant, but none makes clear who ultimately assumes the cost of legal assistance-sometimes quite high if the charges are serious-if it is not the accused.

See discussion in Marasinghe, at 25-26, citing Murphy v. United Kingdom. This view was advanced during the drafting debates of the ICCPR. See David Harris, "The Right to a Fair Trial in Criminal Proceedings as a Human Right," 16 Int'l & Compo L.Q. 352, 367, n.73 (1967). 48 Burgos v. Uruguay, Human Rights Committee, Doc. A/36/40, cited in McGoldrick, at 426. 49 McGoldrick, at Section 10.43. 50 Advisory Opinion OC/11-90, at , 35. 46

47

Procedural Safeguards for the Defense • 19 There are essentially three ways in which the costs for the provision of legal assistance, consisting of the expenses and fees or honoraria of the legal representative, are paid in criminal matters: •

The legal representative assumes the costs, providing the services pro bono or pro deo;

•

A private entity, often the professional bar association, contributes to the costs;

•

The state assumes all or part of the costs.

There is some guidance in the jurisprudence of international human rights as to which source is most appropriate. The European system of human rights has found that the right to assignment of counsel is a per se right. That is, the fact that the accused can show no prejudice from the non-fulfillment of the right does not mean that no violation has occurred, or that relief is not warranted."! It has further found that denying the right to assigned counsel as a punishment for the unjustifiably absent defendant is inappropriare.v In the American Convention, Article 8(2) (e) states that the requirement of state provision of counsel arises in two instances: when "the accused does not defend himself personally or [when he does not] engage his own counsel within the time period established by law." On its face, it leaves discretion to the state in this regard: counsel is "paid or not as the domestic law provides." The Inter-American Court of Human Rights has interpreted this obligation to mean that "since [Article 8] does not stipulate that legal counsel be provided free of charge when required, an indigent would suffer discrimination by reason of his economic status if, when in need of legal counsel, the state were not to provide it to him free of charge."53 One writer on the subject succinctly summarizes the general rule: "accused persons who cannot afford counsel generally have a right to receive counsel paid for by the state."54 The same author goes on to say that assigned counsel "usually receive remuneration well below the amount which a private lawyer could expect in a similar case [referring to the United States, Mexico and Malaysia]. There are countries where the appointed lawyer does not receive any fees by the state and even has to pay for his expenses himself [referring to Morocco and Senegal]. Not surprisingly, the quality of the legal advice given by appointed counsel is often said to be very poor."55 In rare instances, the state may seek to recover the costs incurred by the state for assigned counsel from a legally indigent defendant. The European Court left open the question of whether a state system violates the European Convention when it requires the indigent defendant to pay back some or all of the costs of legal assistance if he has 51 Alimena v. Italy, Eur. Ct. ofH.R. (Ser. A., No. 195-D), Judgment of Feb. 19, 1991, cited in Van Dijk & Van Hoof, at 473, n.1070. 52 Poitrimol v. France, Eur. Ct. of H.R. (Ser. A., No. 277-A), Judgment of Nov. 23, 1993, cited in Van Dijk & Van Hoof, at 473, n.1069. 53 Advisory Opinion OC-11/90. The Court also addressed the question of whether states that deny access to free counsel can argue that a person has not adequately exhausted state remedies before seeking international relief for violations of domestic law. It held that a "state that does not provide indigents with such counsel free of charge cannot, therefore, later assert that appropriate remedies existed but were not exhausted." 54 Rainer Grote, "Protection of Individuals in the Pre-Trial Procedure," in Fair Trial, at 723. 55 Id. at 723-24.

20 • Defense in International Criminal Proceedings the means to do so.56 Commentators criticize the failure of the Court to strike such a system down as inconsistent: "if the accused has no sufficient means to bear the costs of legal assistance, which is required in the 'interests ofjustice,' it should be given to him free, without restrictions."57 Moreover, by contrast, notes another critic, the right to free assistance of an interpreter "denotes a once and for all exemption."58 Payment for counsel by the indigent accused can thus seem hypocritical or vindictive.

2.3.8. The Right to Effective Assistance ofCounsel Human rights treaties contain no specific language governing the quality of assigned counsel in criminal or civil matters. In criminal matters, Principle 6 of the Basic Principles on the Role of Lawyers states that accused persons are "entitled to have a lawyer of experience and competence commensurate with the nature of the offense assigned to them in order to provide effective legal assistance." Obviously, a lawyer who works "in the interest of the prosecution" does not provide effective assistance, according to the Human Rights Committee.w The Committee further found that the state must provide lawyers the leeway to counsel and represent a client effectively, that is, "in accordance with their established professional standards andjudgement." Lawyers "must have the right to act diligently and fearlessly in pursuing all available defences and the right to challenge the conduct of the case if they believe it to be unfair."? The Committee found that, as to tactical or strategic questions, "it is not for the Committee to question counsel's professionaljudgment, unless it was clear or should have been manifest to the judge that the lawyer's behavior was incompatible with the interests ofjustice."61 The cases of the treaty bodies also conclude that, once assigned, the lawyer must serve the client effectively. The Human Rights Committee has held that "legal assistance in a capital case must be provided in ways that adequately and effectively ensure justice." Counsel must, "once assigned, provide effective representation in the interests of justice."62 The Committee also has held more generally that where the accused was offered only a limited choice of assigned counsel, and where the counsel assigned took "the attitude of a prosecutor," the accused's right to adequate defense was violated.v"

56 Croissant v. Germany, 16 E.H.R.R. Rep. 135 (1992). Note, however, that an earlier decision by the European Commission found inadmissible as manifestly ill-founded a claim by a defendant that a court's order to pay the costs of legal assistance was a violation of his right to free legal assistance under the Convention, "once and for all." X v. Federal Republic of Germany, 5 E.H.R.R. 160 (1982). 57 Van Dijk & Van Hoof, at 472. 58 Fair Trial, at 665. 59 Khomidov v. Tajikistan, CCPR/C/81/D/1117/2002, Aug. 25, 2005, at , 6.4. 60 Human Rights Committee, General Comment 13 of Apr. 13, 1984, Equality Before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (Art. 14), at " 9, 11 (hereafter "General Comment 13"). 61 McLeod v. Jamaica, No. 734/1997, Mar. 31, 1998, at para. 6.1. In McLeod, however, the Committee found a separate violation of the right to effective counsel, where counsel in a capital case argued no grounds for appeal without informing his client of that decision. Id. at para. 6.3. 62 Pinto v. Trinidad and Tobago, No. 232/1987; Kelly v.Jamaica, No. 253/1987, both cited in Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 260-61 (1993) (hereafter "Nowak"). 63 Estrella v. Uruguay, No. 74/1980, Mar. 29, 1983, in Fair Trials Manual, at 107, n.22.

Procedural Safeguards for the Defense • 21 Effective counsel on appeal, according to the Human Rights Committee, would include consulting with the client and informing him of the lawyer's intention to withdraw the appeal or argue that it had no merit.v' The mere naming of a lawyer is not enough to protect the defendant's rights. In a case decided by the European Court of Human Rights, assigned counsel began work and then withdrew due to other commitments. The accused persistently requested new counsel without success, and the government argued that domestic law is complied with when counsel is "nominated." The Court noted that the Convention uses the term "assistance," not "nomination," and that "mere nomination does not ensure effective assistance, since the lawyer appointed for legal aid purposes may die, fall seriously ill, be prevented for a protracted period from acting or shirk his duties." When notified, the Court concluded, "the authorities must either replace [the assigned counsel] or cause him to fulfil his obligations. "65 The state is required to intervene to assure effective assistance, the European Court found, only where the failure to provide effective assistance is "manifest and sufficiently brought to their attention," or where counsel was "incapable of effectively representing a defendant."66 In more recent decisions, treaty bodies have looked more closely at the issue of effective assistance of counsel, and occasionally have rejected such claims. The European Court of Human Rights, for example, noted, even when finding a violation of the convention on ineffectiveness grounds, that such a violation can be found "only if the failure by legal-aid counsel to provide effective representation is manifest or sufficiently brought to [the government's] attention in some other way."67 The Inter-American Commission has faced the issue in a number of recent cases involving challenges to the imposition of the death penalty, particularly in the United States and the Caribbean. Because of the heightened scrutiny test that the Commission applies in capital cases, issues about availability or adequacy of counsel, particularly counsel assigned by the state, are often played out in their recent decisions. In one such case, the Commission implied that counsel had been ineffective in failing to present direct evidence of the defendant's innocence.t" In several other cases, however, the Commission found that the issue had not been adequately preserved at trial.v? that the issues were "more appropriately left to the domestic courts,"70 or that there was no violation at all.?' The Commission applied the somewhat vague test used by the Human Rights Committee, which holds that "a state cannot be held responsible for any alleged deficiencies in the defense of the accused or alleged errors committed by the defense lawyer unless it was manifest to the trialjudge that the lawyer's behavior was incompatible with the interests ofjustice. "72

Kelly v. jamaica, No. 253/1987, Apr. 8, 1991, in Fair Trials Manual, at 107, at n.23. Artico v. Italy, No. 6694/74, in Marasinghe, at 39, n.100. 66 Id. at 40-41. 67 Czekalla v. Portugal, No. 38830/97 (Oct. 10, 2002). 68 Sankofa v. United States, Report No. 97/03, Case 11.193, Dec. 29, 2003. 69 Aitken v. jamaica, Report No. 58/021, Case 12.275, Oct. 21, 2002, at , 143. 70 Edwards et al. v. The Bahamas, Report No. 48/01, Cases 12.067, 12.068, 12.086, Apr. 4, 2001, at , 208-215. 71 Lamey et al. v.jamaica, Report No. 49/01, Case Nos. 11.826,11.843,11.846, Apr. 4, 2001, at , 217. 72 Aitken v. jamaica, Report No. 58/021, Case 12.275, Oct. 21, 2002, at , 141. 64

65

22 • Defense in International Criminal Proceedings 2.4. PRE-TRIAL RIGHTS TO COUNSEL Article 14(3) (b) of the ICCPR, typical of human rights protections, provides that every person under criminal charge shall have "adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing." This right applies at all stages of criminal proceedings, but is particularly important for those people held in pre-trial derention.P All of the treaty bodies have addressed the issues in this and the other related treaties: the time necessary to adequately prepare a defense, the meaning of "facilities," the requirement of communication between client and the selection of counsel of one's choice. Article 14(3) (d) of the same treaty sets out the three options available for the accused with regard to the exercise of the right to representation: he may "defend himself in person," select "legal assistance of his own choosing" or "have legal assistance assigned to him" if certain conditions are met. Although these options are expressed in terms of trial rights, there is little doubt that the defendant can exercise all three choices in the first instance. All of the other guarantees below apply, whichever of these options is exercised.

2.4.1.

Notice ofthe Right to Counsel and Legal Assistance

All persons who are arrested, detained or charged with a criminal offense must be informed immediately of their right to have legal assistance.?! The rules of the international criminal tribunals for the former Yugoslavia and Rwanda, discussed more fully in later chapters, require notification of a right to counsel be given to all suspects questioned by the tribunal's prosecutor, whether or not they are in detention.

2.4.2.

Early Access to Counsel for Detained Persons

Treaties do not make clear the point in the criminal process at which persons are entitled to the assignment of counsel. Interpretation of treaty obligations and international standards makes clear that anyone in detention, whether on criminal charges or not, has the right to immediate access to legal assistance. Early access to counsel protects the detainee against such abuses as torture, ill treatment, coerced confessions and other abuses" Principle 7 of the Basic Principles on the Role of Lawyers states that access to a lawyer must be granted "promptly," meaning less than 48 hours from the time of arrest or detention. Thus, the Human Rights Committee found a violation of the ICCPR where counsel was not provided to the accused until two months after his arrest." The Inter-American system for human rights suggests that legal assistance should be available to qualified persons from the time of their arrest,"? and the European Court has said that legal assistance could be applicable from the time of preliminary investi-

Fair Trials Manual, at 36, citing all relevant instruments on fair trial and prisoners. U.N. Basic Principles, Principle 17(1). 75 See Report of the U.N. Special Rapporteur on Torture, U.N. Doc. E/CH.4/1992/17, Dec. 17, 1991, at para. 284; Human Rights Committee, General Comment 20, at para. 11. 76 Khomidov v. Tajikistan, CCPR/C/81/D/1117/2002, Aug. 25, 2004, at , 6.4. 77 Inter-American Commission on Human Rights, Report on the Situation of Human Rights in El Salvador, OEA/Ser.L/V/11.85, Doc. 28, rev. (1994), at 5, cited in Kokott, at 143. 73 74

Procedural Safeguards for the Defense • 23 gations." In a recent case, the Court extended the right to assignment of counsel to a pre-charge investigation that took place for over a year before formal charges were filed."? In the interrogation context, the European Court has held that the right to legal assistance was violated when the applicant was denied access to counsel during the first 48 hours of police interrogation. Under British law, the accused had been told by the police that he had the right to remain silent, but that adverse inferences could be drawn from his silence. The Court called this a "fundamental dilemma" between the privilege against self-incrimination and the right to counsel, and found a denial of the right to counsel in the circumsrances.s''

2.4.3.

Adequate Time to Prepare

The Human Rights Committee concludes that it is "imperative" that accused individuals have adequate time to prepare a defense.f" The time necessary to prepare adequately depends on the circumstances of each case. There is some guidance from the treaty bodies, although most of the situations present such serious treaty breaches that there is no doubt of the violation. One example is the two-week period provided to the defense to review 17,000 pages of files in the trial of Kurdish activist Abdullah Ocalan in Turkey, which the European Court found to be insufficient time to exercise defense rights. 82 In Goddi v. Italy, neither the defendant, who was in custody, nor his defense lawyer was present at a court hearing because the lawyer had not been notified at all of the event. The Human Rights Committee found that appointment of a new lawyer at the hearing was not sufficient to give that attorney time to acquaint himself with the case. 83 In Reid v. Jamaica, the petitioner had been sentenced to death for the alleged murder of his girlfriend. The Human Rights Committee found that Article 14(3) (b) had been violated where the legal aid attorney who represented the defendant at the preliminary inquiry was not present at all the hearings. The defendant met the legal aid lawyer who was going to represent him at the trial only ten minutes before its start.v' The InterAmerican Commission on Human Rights found a violation where the prisoner was given no more than 20 minutes to visit with his lawyer while in the presence of secret police in Nicaragua.f The right to a fair trial applies in military courts as well. In Conteris v. Uruguay, the Human Rights Committee found a violation when the accused never saw his militaryappointed counsel before trial and then was sentenced to 15 years imprisonment at a "trial" that lasted "three to four minutes. "86

78 Can v. Austria, No. 9300/81 (1985), and Imbrioscia v. Switzerland, Eur. Ct. of H.R. (Ser. A., No. 275), Judgment of Nov. 24, 1993, cited in Marasinghe, at 20-21. 79 Berlinski v. Poland, No. 27715/95 and 30209/96,June 20, 2002. 80 Murray v. United Kingdom, Eur. Ct. of H.R. (Ser. A., No. 300-A), Judgment of Feb. 8, 1996, cited in Van Dijk & Van Hoof, at 468. 81 Marasinghe, at 33, citing Nicole Fillastre v. Bolivia, No. 336/1988, U.N. Doc. A/ 47/40. 82 Ocalan v. Turkey, No. 46221/99, Judgment of Mar. 12, 2003, at , 168. 83 Goddi v. Italy, No. 8966/80, 76Judgments and Decisions (1984). 84 Reid v Jamaica, Human Rights Committee, CCPR/C/51/D/355/1989, July 20, 1994. 85 Marasinghe, at 34, citing Case 10.198 (Nicaragua), 1989-90 Annual Report. 86 Id. citing No. 139/1983.

24 • Defense in International Criminal Proceedings As regards appeals, the European system has held that there must be sufficient time for counsel and client to decide both the question of whether an appeal is to be lodged and how to prepare for an appellate hearing.s? The European Court found a violation when appellate counsel had to give notice of appeal within five days of a court decision, without the benefit ofa written judgment, and failure to file was a bar to the appcal.s"

2.4.4.

Adequate Facilities

The Human Rights Committee finds that "facilities" for preparation of a defense must include "access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel." Communication must be in confidence.s? In Europe, "facilities" also includes a right to inspect files in the possession of the prosecution or other aurhorities.?" As regards evidence in the possession of the prosecution, which might exonerate or reduce the sentence of the accused, the European Court of Human Rights has interpreted "facilities" to mean that the accused is entitled to have "all relevant elements that can be collected from the competent authorities."91 Facilities may not include the translation of documents into the language of the accused, where the accused's lawyer can read the language of the documents. The Human Rights Committee has found that if the documents are made available to counsel, counsel can read them to the client. No postponement was necessary so that this process can take place, and there was no violation of the right to facilities.t"

2.4.5.

Confidential Communication With Counsel

There are two elements to communication between counsel and accused in pretrial criminal matters: privacy and access. Both must be satisfied. Interpreting the right to communication, the Human Rights Committee notes that counsel must be able "to communicate with the accused in conditions giving full respect for the confidentiality of their communications."93 The right to communication means that there can be no interception or censorship of communication between counsel and client, and that communications between detained persons and their lawyers are inadmissible as evidence against them unless they are evidence of the commission of

Van Dijk & Van Hoof, at 466. Hadjianastassiou v. Greece, Eur. Ct. of H.R. (Ser. A., No. 252), Judgment of Dec. 16, 1992, cited in Van Dijk & Van Hoof, at 467, n.l027. 89 General Comment 13, at para. 9. 90 Van Dijk & Van Hoof, at 467. 91 Bricmont v. Belgium, Eur. Ct. of H.R. (Ser. A., No. 158), Report of Oct. 15, 1987, cited in Van Dijk & Van Hoof, at 467, n.l030. 92 Harward v. Norway, Human Rights Committee, No. 451/1991, cited in Alfred de Zayas, "The United Nations and the Guarantees of a Fair Trial in the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment," in Fair Trial, at 684. 93 General Comment 13, at para. 9; Khomidov v. Tajikistan, CCPR/C/81/1117/2002, Aug. 25, 2004, , 6.4 (no consultations in presence of prosecution investigators). 87 88

Procedural Safeguards for the Defense • 25 an ongoing or contemplated crime.v! The right to communicate with counsel starts as early as the investigative stages of a case. The European Court has found this to be true even where there is no explicit right to communication with counsel under Article 6 of the European Convention.v- To ensure confidentiality, but to permit adequate security, consultations may take place within sight, but not within the hearing, of law enforcement officials.i" Similarly, two months of court-monitored surveillance of counsel's early meetings with the defendant, based on fears of improper collusion, also constitute violations of the right to counsel under Article 6(3) (b) and (c) of the European Convention.P? The right to communication also implies a right of access to the accused by counsel, and vice versa. A violation of the right to assigned counsel occurs when there is no effective access to legal assistance.t" Conversely, where counsel is assigned but never visits the accused or informs him of developments in the case, access to counsel is effectively denied.v? Governments cannot interfere with access to counsel, nor impose unwanted counsel on the accused. The Basic Principles on the Role of Lawyers state that they must be able to carry out their professional functions "without intimidation, hindrance, harassment or improper interference ... and ... shall not suffer, or be threatened with ... sanctions for any action taken in accordance with recognized professional duties, standards and ethics."loo The African Human Rights Commission found that the accused were denied their right to defense when defense counsel were harassed and intimidated to such an extent that they were forced to withdraw from the proceedings. The trial, however, continued, and the accused were convicted and given death sentences."?' In Suarez Rosero v. Ecuador, the Inter-American Court of Human Rights found a violation of Article 8(2) (c)-(e) of the American Convention on Human Rights when Mr. Suarez was kept incommunicado for the first 36 days of a more prolonged illegal detention. He did not have the assistance of a public defender as required under Ecuadorian law, nor was he able to obtain legal counsel of his own choosing during that time.t'"

94 Principle 18, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988) (hereafter "Body of Principles"); see also Lanz v. Austria, No. 24430/94, Jan. 31,2002 (ECHR), at' 50 (communication with counsel must be out of hearing of third persons and without surveillance). 95 Can v. Austria, No. 9300/81, cited in Marasinghe, at 35, n.80. 96 U.N. Basic Principles, Principle 8; Principle 18(4), Body of Principles, cited in Fair Trials Manual, at 37. 97 Lanz v. Austria, No. 24430/94, Jan. 31, 2002, at , 53 ("an accused's right to communicate with his defence counsel out of hearing of a third person is part of the basic requirement of a fair trial in a democratic society." , 50); same result in Ocalan v. Turkey, No. 46221/99, Mar. 12, 2003, , 146 (conversations between accused and his lawyers were monitored and filmed. , 25). 98 Antonaccio v. Uruguay, Human Rights Committee, Doc. A/37/ 40, cited in McGoldrick, at 421. 99 Scarrone v. Uruguay, Human Rights Committee, Doc. A/39/40, cited in McGodlrick, at 42l. 100 Basic Principles, Principle 16. 101 The Constitutional Rights Project (in respect of Zamani Lakwot and six others) v. Nigeria, 87/93, Annual Report, 1994-1995, cited in Fair Trials Manual, at 107, n.25. 102 Suarez Rosero v. Ecuador, Inter-Am. C.H.R., Judgment of Nov. 12, 1997, at paras. 79-83.

26 • Defense in International Criminal Proceedings The Human Rights Committee reached a similar conclusion where the accused was incommunicado in detention for seven monrhs.l'"

2.5. THE RIGHT TO COUNSEL AT TRIAL The typical articulation of the right to counsel at trial is set out in Article 14(3) (d) of the ICCPR. It states that a person is entitled, in the determination of a criminal charge, in full equity, "To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of so require, and without payment by him in any such case if he does not have sufficient means to pay for it." This provision is typical, with minor variations, of the rights to legal assistance in criminal matters contained in other international human rights treaties. Thus, at trial, the accused should have the following rights relating to representation: •

the right to be tried in one's presence;

•

the right to defend oneself in person;

•

the right to choose one's own counsel;

•

the right to be informed of the right to counsel;

•

the right to assignment of free legal assistance, if certain conditions are met.

The rights in this list are available to those accused who hire their own lawyers as well as those to whom legal assistance is assigned, except those that deal with choosing one's counsel, which may be controlled by the assigning authority. The preceding sections of this chapter have dealt extensively with the issues of choice of counsel, information on the availability of counsel and the right to free legal assistance. The right to trial in one's presence does not implicate access to counsel, and so will not be addressed here. Accused persons may choose to defend themselves in person. The decision to proceed pro se, or on one's own, was controversially exercised by Serbian leader Slobodan Milosovic, who chose to represent himself in his trial before the international criminal tribunal for the former Yugoslavia. In the European system, however, Article 6 (3) (c) does not always give a person the unrestricted right to defend himself without counsel. There, despite the wording of the provision itself, the European Commission has said that the decision of accused persons to defend themselves rests with "competent aurhoriries.t"?' There is, of course, a difference between the free choice to defend oneself and being forced to go without counsel. The Inter-American Court of Human Rights has said that "in those cases in which the accused is forced to defend himself because he cannot afford legal counsel, a violation of Article 8 of the Convention could be said to exist if it can be proved that the lack of legal counsel affected the right to a fair hearing to which he was entitled under that Article.t'U"

103

Machado v. Uruguay, Human Rights Committee, Doc. A/39/40, cited in McGoldrick,

at 422. 104 105

X v. Norway, No. 5923/72, cited and criticized in Marasinghe, at 22, n.26. Advisory Opinion OC-ll/90, at para. 27.

Procedural Safeguards for the Defense • 27

2.5.1.

The Right to Oral Proceedings

The Human Rights Committee has interpreted Article 14(3) (d) and (e) together to require that the right to fair trial includes the right to an oral hearing at which the accused must have the opportunity, in his presence, to bring evidence and examine witnesses. A totally written proceeding thus denies the right to fair trial.l'"

2.5.2.

The Right ofthe Accused to Effective Participation in the Trial

Within the past several years, the European Court of Human Rights has articulated and sharpened a right of the accused to effectively participate in a criminal trial. That right was originally articulated in 1994 in Stanford v. United Kingdom, where the Court found that "Article 6 [the fair trial provision of the European Convention on Human Rights], read as a whole, guarantees the right of an accused to participate effectively in a criminal trial."107 One recent analysis finds that the Court has given a more sharp focus to the right in its recent jurisprudence, culminating in the decision of T. and v: v. United Kingdom, the trial of a ten-year-old child for murder discussed below in Section 4.1.108

2.6. COUNSEL ON APPEAL The right to appeal in a criminal case is well recognized in the treaties and their interpretation, and will not be reiterated here. The various treaty bodies also recognize that the right to counsel on appeal is an indispensable aspect of that right, although each takes a different theoretical position as to the source and substance of the right. The Human Rights Committee has recognized the right to counsel on appeal as an indispensable aspect of the right to a fair hearing under Article 14(1) of the ICCPR.109 More recently, the Committee recognized that denial of legal assistance at the Supreme Court hearing, at which neither the defendant nor his counsel appeared, also constituted a violation of Article 14(3) (d) of the ICCPR, the right to assigned counsel.U" Similarly, the Committee has long recognized that, in the absence of legal aid, lack of review by a constitutional court cannot be invoked by the government in the treaty body as a basis for failure to exhaust domestic remedies."!' The European system has, as noted above, made clear that the right to counsel applies at all stages of a criminal trial, appeal and even prison disciplinary proceedings. Il 2 The European Court also has used the principle of equality of arms to require the assignment of legal representation to the accused, where the prosecution was present in full appellate procedurcs.U'' Moreover, the fact that the defendant does not him-

106 107

Rodriguez Orejuela v. Colombia, CCPR/C/75/D/848/1999, Sept. 20, 2002, at , 7.3. Stanford v. United Kingdom, Eur. Ct. of H.R. (Ser. A., No. 282-A), Judgment of Feb.

23, 1994. 108 Geertjan GJ. Knoops, Defenses in Contemporary International Criminal Law 228-38 (2001) (hereafter "Knoops"). 109 Currie v.Jamaica, No. 377/1989, U.N. Doc. CCPR/C/50/D/377/1989 (1994). 110 Garyverdy ogly Aliev v. Ukraine, U.N. Doc. CCPR/C/78/D/781/1997 (2003), at , 7.3. 111 See e.g., Little v.Jamaica, U.N. Doc. CCPR/C/43/D/283/1988 (1991). 112 See Fair Trial, at 645. 113 Granger v. United Kingdom, No. 2/1989/162/218,Judgment of Feb. 19, 1990, at" 47-48.

28 • Defense in International Criminal Proceedings self request legal assistance on appeal, and presents arguments on his own behalf, does not prevent a violation of the right to assigned legal representation; it can be said that there is a per se violation of the right. 1I 4 One troubling decision from the European Court, however, suggests that where the defendant (a lawyer himself, who had been assigned legal aid) had the opportunity to lodge an appeal, despite his counsel's failure to do so, there was no violation of the right to access to a court.U> In capital cases from the Caribbean, the Inter-American Commission recently found in a number of cases that the unavailability of legal aid for complex constitutional motions in the domestic courts gave rise to violations of Article 25 of the American Convention, which protects the right to access to a court.Uf In more recent similar cases from Jamaica, the Commission instead grounded its decision in the right to effective assistance of counsel under Article 8 (2) (e) of the Convention, the right to state-assigned legal assistance.!'?

2.7. SPECIAL SITUATIONS FOR LEGAL ASSISTANCE UNDER INTERNATIONAL HUMAN RIGHTS LAW There are a number of special situations relating to the provision of assigned legal assistance, some of which have been alluded to in other contexts above, but which will be briefly summarized in this section. They include juvenile cases, death penalty cases, military courts and rules during national emergencies. The special issues arising in international or war crimes tribunals are addressed separately in the chapters that follow.

2.7.1.

Juvenile Matters

Children are entitled to all of the fair trial guarantees of adults, but are afforded some additional protections. The emerging consensus in international law is that a child is anyone under the age of 18. 118 Children are entitled to access and representation by counsel at all stages of the proceedings, with special care to privacy, protection of their best interests, and rehabilitative potcntial.!'? An important and controversial decision of the European Court of Human Rights found that T., a ten-year-old boy convicted of the murder of a two-year-old child, suffered post-traumatic stress disorder to such an

Biba v. Greece, No. 33170/96, Sept. 26, 2000, at , 30. Freixas v. Spain, No. 53590/99, decision on inadmissibility, Nov. 21, 2000. In general, the rule of the Court is that failure of a legal aid lawyer to perfect the grounds of appeal, which leads to rejection of the appeal, constitutes a violation of the right to effective representation by counsel. Czekalla v. Portugal, No. 38830/97, Oct. 10, 2002, at " 66-71. 116 Knights v. Grenada, Report No. 47/01, Case 12.028, Apr. 4, 2001, at' 136; Lamey et al. v.Jamaica, Report No. 49/01, Cases 11.826,11.843,11.846, Apr. 4, 2001, at" 225-26; see also Lallion v. Grenada, Report No. 55/02, Case 11.765, Oct. 21, 2002, at' 94; and Jacob v. Grenada, Report No. 56/02, Case 12.158, Oct. 21, 2002, at " 102-103. 117 Sewell v. Jamaica, Report No. 76/02, Case 12.347, Dec. 27, 2002, at , 133; Myrie v. Jamaica, Report No. 41/02, Case 12.417, Oct. 12,2004, at , 72. 118 See e.g., Inter-American Court of Human Rights, Advisory Opinion OC/17-2002 of Aug. 28, 2002, Juridical Condition and Human Rights of the Child, , 42 ("child" refers to any person who has not yet turned18 years of age). 119 See generally Fair Trials Manual, at 134-37. 114 115

Procedural Safeguards for the Defense • 29 extent that he could not effectively participate in his three-week criminal trial. The failure to treat the stress disorder so severely hampered his defense that he could not effectively participate despite a conclusion by the Court that he had been provided effective and capable assistance of counsel. 120 While the holding of the Court was not based exclusively on the juvenile status of the defendant, the child's inability to follow the trial undoubtedly influenced its outcome.

2.7.2.

Capital Cases

International human rights law supports gradual abolition of the death penalty, and the right to life is always protected under international human rights law. Treaties, standards and decisions of the treaty bodies protect the right to legal assistance in all stages of capital litigation. 121 The U.N. Economic and Social Council has adopted resolutions calling for "special measures" by states to assure full compliance with the right to legal assistance.l'" The Human Rights Committee asserts that "it is axiomatic that legal assistance should be made available to a convicted person under sentence of death. This applies to all stages of the judicial proceedings."123

2.7.3. Trial by Military Courts All fair trial guarantees apply in the context of military tribunals. The trial of civilians by military tribunals, however, should be limited to "very exceptional circumstances," in which the accused is scrupulously provided with all fair trial guarantees, including that of the right to access to effective legal assistance.F! The Inter-American Commission found proceedings in military courts in Nicaragua to be so devoid of any legal safeguards, including the right to counsel, as to violate Article 8. 125

2.7.4.

Suspension ofthe Right to Legal Assistance During National Emergencies

Certain national crises may constitute a basis for suspension of fair trial guarantees in criminal proceedings. Article 4(1) of the ICCPR, for example, provides that suspension of rights is justified when there is a time of public emergency that threatens the life of the nation and the existence of which is officially proclaimed. Even then, however, the limits to fair trial guarantees must be strictly required by the exigencies of the situation, they must not be inconsistent with other obligations under international law, and they cannot be applied in a discriminatory fashion. There are serious proposals at

120 T. and V. v. United Kingdom, Application No. 24724/94,Judgment of Dec. 16, 1999, discussed in Knoops, at 229, 233-35. 121 In addition to the cases cited to previously, see also Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, Safeguard 5, ECOSOC Res. 1984/50, May 25, 1984. 122 See Implementation of the Safeguards: Guaranteeing Protection of the Rights of Those Facing the Death Penalty, ECOSOC Res. 1989/54, U.N. Doc. E/1989/91, May 24, 1989, at Recommendation 1 (a) . 123 Kelly v.Jamaica, No. 253/1987, Apr. 8, 1991, at , 5.10. 124 See discussion in Nowak, at 240. 125 Revnaldo Tadeo Aguado Montealegre v. Nicaragua, Case Report 10.198, Inter-Am. C.H.R. 73, OEA/ser. L/V/11.77 rev. 1, doc. 7 (1989).

30 • Defense in International Criminal Proceedings

the United Nations to make fair trial rights non-derogable in all circumstances. These include a Draft Third Optional Protocol to the ICCPR on the Right to Fair Trial and a Draft Declaration on the Right to a Fair Trial and a Rcmcdy.l'"

2.8. BIBLIOGRAPHY: BOOKS AND ARTICLES NOT OTHERWISE REFERENCED Timothy Bakken, "International Law and Human Rights for Defendants in Criminal Trials," 25 IndianJ. Int'l L. 411 (1985). Michael Bohlander, "A Silly Question? Court Sanctions Against Defense Counsel for Trial Misconduct," 10 Crim. L.F. 467 (1999) (Comparing several countries' disciplinary rules for defense counsel with those of Illinois). Hugh Brayne, "Is Legal Aid a Human Right?" 3 Law Soc. Gazette 25 (1989) (Discussing European human rights decisions applied in England). Francis G.Jacobs, "The Right to a Fair Trial in European Law," 1 Eur. Hum. Rts. L. Rev. 141 (1999) (discussing fair trial under both the European Convention on Human Rights and the European Community law). J.F. Nijboer, "Children and Young Persons in the Criminal Justice System: The Council of Europe Recommendation on Witness Protection and Rights of the Defense," 10 Crim. L.F. 443 (1999) (discussing a Recommendation by the Committee of Ministers of the Council of Europe on balancing victim interests in crimes against minors with rights of the defense to confrontation). Marek Antoni Nowicki, "The Right to Legal Assistance in Criminal Proceedings," 5 Parker Sch.J. E. Eur. L. 57 (1998) (analyzing recent decisions of the European Commission and Court of Human Rights). Jelena Pejic, "What is a Fair Trial? A Basic Guide to Legal Standards and Practice," 1 E. Eur. Hum. Rts. Rev. 141 (1995). Stephanos Stavros, The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights: An Analysis of the Application of the Convention and a Comparison with Other Instruments (1993). Stephanos Stavros, "The Right to a Fair Trial in Emergency Situations," 41 Int'l & Compo L.Q. 343 (1992). Patrick Thornberry, "Poverty, Litigation and Fundamental Rights: A European Perspective," 29 Int'l & Compo L.Q. 250 (1980). David Weissbrodt, The Right to Fair Trial: Articles 8, 10 and 11 of the Universal Declaration of Human Rights (2001).

126

See Draft Third Optional Protocol, Article 1; Draft Declaration, Article 70.

CHAPTER 3

A HISTORY OF THE ROLE OF DEFENSE COUNSEL IN INTERNATIONAL CRIMINAL AND WAR CRIMES TRIBUNALS* Richard J. Wilson

Certainly, any member of the legal profession who places his skill, talents, and learning at the service of a defendant, against whom there is great social resentment, and who has been charged by society, through judicial agencies, with the commission of revolting crimes, deserves the unstinting praise and admiration of his fellow members of the bar and of every member of society. 1

3.1. INTRODUCTION AND FRAMEWORK The modern fulcrum of interest in international criminal law and tribunals is the set of post-World War II trials at Nuremberg and Tokyo. Interest in the history of those trials and others has grown with the contemporary development of the ad hoc international criminal tribunals for the former Yugoslavia (IClY) and Rwanda (ICTR), and the more recent creation of the permanent International Criminal Tribunal (ICC). There is, however, an extensive history of tribunals-domestic and international, military and civilian-which tried offenses defined as international crimes, both before and after Nuremberg and Tokyo. This chapter will examine that history through one particular lens: that of the role of and procedures governing defense of the accused. There is potential confusion in the terms of reference for this history, with regard to the question of whether trials for war crimes or other international criminal offenses are, or should be, tried in civilian or military courts, and, if in the latter, whether legal standards for fair trial and due process, including the right to counsel, are the same or different in military and civilian tribunals. Military trials for war crimes or general courts

* I wish to thank my very helpful research assistants, Christine Lin, Julia Graff and Amar Bhalla for their relentless digging for historical information here. Some portions of this chapter have appeared in other forms in Richard J. Wilson, "Will History Repeat Itself? Case Studies of Systematic Constraints on Defense Counsel in Historic International War Crimes Trials and the Need for Resource Parity Today," in Effective Strategies for Protecting Human Rights 187 (David Barnheiser ed., 2001). 1 Joseph Berry Keenan & Brendan Francis Brown, Crimes Against International Law 155 (1950). Keenan, who was the U.S. chief prosecutor at the Tokyo IMTFE, goes on, on the next page, to severely chastise defense counsel for permitting "the immediate aim of the acquittal of the defendants to subordinate the greater and ultimate purposes of the case." Id. at 156. This typical condemnation by the prosecution clearly but typically misstates the most fundamental obligation of the defense in any criminal trial. 31

32 • Defense in International Criminal Proceedings martial have a longer tradition than do international criminal tribunals, by hundreds of years. Yet the use and fairness of military trials, particularly for civilian offenses, has been challenged from the outset of their use, and they continue to be controversial venues for any international criminal trial. The history of criminal defense representation in international and war crimes tribunals is also, then, a history of structures for such trials. The chapter will examine how such structures, or lack thereof, have affected the assignment of counsel to that great majority of defendants who did not have the funds or knowledge of local legal systems to retain counsel of choice. This chapter will also profile four of the generally unrecognized and sometimes colorful personalities who have defended those who were charged with crimes that were and are arguably the "worst of the worst": genocide, crimes against humanity and other atrocities. The chapter will draw on scant but persuasive evidence that, when these defense lawyers have provided vigorous defense representation, they have been identified closely with their clients or their client's causes, leading to accusations of moral or ethical violations by these individuals in the use of particular tactics, or in the provision of any representation at all to these defendants. Finally, a brief word on the definition of terms. As used in this chapter, "assigned counsel" means a lawyer or other advocate appointed by ajudge or other government official to represent the accused in a criminal case. That advocate mayor may not be paid by the tribunal or a third-party source for the advocacy provided. I use the term primarily to distinguish those advocates, who appear more often than not in any criminal case, from privately retained counsel.

3.2. INTERNATIONAL CRIMINAL DEFENSE BEFORE NUREMBERG There were, of course, international war crimes trials before the Nuremberg proceedings. The law of armed conflict has ancient roots in the various legal traditions of the world." One author suggests that the first known war crimes trial was that of the Scottish freedom fighter, William Wallace, known as "Braveheart," in 1305. 3 The evidence is that Wallace defended himself, rather than using an advocate on his behalf, as would likely have been the case at that historical period. Joan of Arc, at her famous "war crimes" trial in 1431,4 also spoke in her own defense. Other authors suggest that the first known military tribunal was established in 1474, when a trial of representative judges convicted Peter von Hagenbusch, the Governor of Breisach, Austria for committing crimes against "God and man." No mention is made of how von Hagensbusch was defended.>

See, e.g., The Handbook of Humanitarian Law in Armed Conflict " 104-124 (Dieter Fleck ed., 1995); Alex Obote-Odora, The Judging of War Criminals: Individual Responsibility Under International Law 109-17 (1997) (finding historical evidence of human rights in armed conflicts in the cultures of Africa, Asia, Latin America, Islam, Socialism and the West). 3 John H.E. Fried, "War Crimes," Grolier Online, at http://gi.grolier.com/wwii/wwii_warcrimes.htm (last visited July 21, 2004). 4 "The Trial of Jeanne D'Arc, February 13, 1431-May 30,1431," The Avalon Project at Yale Law School, at http://www.yale.edu/lawweb/avalon/treatise/jean_darc/jeanne.htm (last visited July 22, 2004). 5 Major Joshua E. Kastenberg, "The Right to Assistance of Counsel in Military and War

History of the Role of Defense Counsel • 33 Treaty and national law on the right to defense in international humanitarian law also evolved slowly before the turn of the 20th century. For example, the so-called Lieber Code, adopted by President Abraham Lincoln to govern the actions of American troops in the Civil War, contained no direct reference to defense, but stated only that a "prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was captured, and for which he has not been punished by his own authorities."6 There are a few reported cases that reached the United States Supreme Court that arose from alleged war crimes during the Civil War. In those cases, the accused seem to have appeared with private counsel." By the turn of the 20th century, war crimes defense had begun to take on more familiar characteristics. Two of the Hague Conventions, negotiated at conferences in 1899 and 1907, contain spare provisions guaranteeing trial for accused spies.f One popularized war crimes trial took place after the Boer War in South Africa in 1901-02, and provides insight into the role of defense in an international military tribunal. Harry "Breaker" Morant was an Australian commanding officer in the Bushveldt Carbineers, an auxiliary guerilla unit created through the command structure, in that war. He was tried for his unit's role in the summary execution of 12 Boer prisoners and a German missionary they claimed was an enemy spy. He was unsuccessfully defended by Major J.F. Thomas, a fellow Australian, who was appointed by a British tribunal to represent Morant at his court martial. Morant was executed on February 17, 1902, and the story of his trial became the subject of a popular movie." While Thomas did not succeed in preventing Morant's conviction and death sentence, he unexpectedly mounted a vigorous defense that embarrassed the British military command. Major Thomas' appearance for the defense in South Africa typifies some of the central issues in the development of the role of defense counsel in international criminal courts in several ways. First, he was selected by military commanders to defend; Morant himself had no say in the selection of his counsel. The command structure controlled both the manner and selection of counsel, leaving the accused without any role in the control of his own defense, and leaving a system for independent counsel compromised Crimes Tribunals: An International and Domestic Law Analysis," 14 Ind. Int'l & Compo L. Rev. 175, 181, n.22 (2003) (hereafter "Kastenberg"). 6 "Instructions for the Government of Armies of the United States in the Field," prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General's Office (1863). 7 Two examples are Ex Parte Milligan, 71 U.S. 2 (1866) (contesting whether the accused, who was charged with violations of the laws of war, among others, could be tried by military commission, and whether review of the actions of such commissions lay through challenge by habeas corpus in the federal courts), and Dow v.Johnson, 100 U.S. 158 (1879) (raising the issue of whether a civil action would lie for recovery of property alleged to have been stolen by occupying forces of the U.S. Army in Louisiana). 8 "A spy taken in the act cannot be punished without previous trial." Found in Article 30 of both Hague Convention II with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Law and Customs of War on Land, The Hague, July 29, 1899, and Convention IV respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Law and Customs of War on Land, The Hague, Oct. 18, 1907. 9 'James Francis Thomas-The Man Who Defended Breaker Morant," Personal Histories: Boer War and WWI, at http://www.lighthorse.org.au/Pershist/thomas.htm (last visited July 22, 2004).

34 • Defense in International Criminal Proceedings

even before actual selection, because it was under the control of the commanding authority. These issues of an independent structure for selection of counsel, and the right of the defendant to have a role in that selection would become two of the most important flash points in the development of the right to defense in international criminal trials. Moreover, the stakes in the trial put the defendant's life on the line, as often has been the case in such proceedings. Second, despite control of the process by the tribunal and its judges, and an assumption by the panel that its control of the proceedings would also control the defense, it did not. If the court was to give any impression of impartiality, it had to give the defense an opportunity to express its theory fully. Major Thomas, despite hopes to the contrary by the appointing authority that he would be no match for the well-prepared prosecution team that outnumbered him in resources, rose to the occasion and proved himself a worthy representative of his client. This aspect of client loyalty in the face of opprobrium from the court and general public is also a signal historic quality of assigned defense lawyers in international war crimes trials. The various peace treaties signed in the wake of World War I contained provisions for the trial of war crimes that included reference to the right to defense guarantees and a right to counsel."? The few trials conducted after the war, however, tried in the German courts at Leipzig, were few, and were not considered models of individual accountability.'! The Leipzig trials were, by agreement of the parties to the conflict, to be conducted first by the Germans themselves, then by the Allied nations, first Great Britain, then France and Belgium. There is remarkably little about the role of defense counsel in any of the contemporary accounts of the trials, and when there is, it is usually unfavorable. For example, one account notes that in the British trials, defense counsel "introduced hatred and prejudice into their fiery speeches. They were often speaking to press and public rather than to the Court and ... they were openly and severely rebuked by the President of the Court for doing so. No judges have ever had a more difficult task than to act judicially under such circumstances."12 By all accounts, the Belgian trials were the most bitter and acrimonious, with the general population supporting the accused, while witnesses against them "breathed hatred." Perhaps uniquely in war crimes trial history, the "courtroom audiences applauded counsels for the defense when they bitterly denounced Belgium and France; 10 Treaty of Versailles, June 28, 1919 ("A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence." Article 227. "In every case the accused will be entitled to name his own counsel." Article 229). Other post-war treaties contained a clause identical to that quoted from Article 229 of the Treaty of Versailles without more general reference to a right of defense. Treaty of Saint-Germain-En-Laye, Sept. 10,1919, Article 174; Treaty of Neully-Sur-Seine, Nov. 27,1919, Article 119; Treaty of Trianon, June 4, 1920, Article 158; Treaty of Sevres, Aug. 10, 1920, Article 227. The treaties are collected in James F. Willis, Prolog to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War 177-81 (1982). 11 The trials are discussed in depth in Willis, id., with virtually no reference to defense counsel. See also M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 519-23 (2d ed. 1999) (hereafter "Bassiouni") (" [T] he Leipzig Trials, affected by the realpolitik exercised by the Allied Powers and the impact of German public opinion, resulted in very few convictions." Id. at 522). 12 Claude Mullins, The Leipzig Trials: An Account of the War Criminals' Trials and a Study of German Mentality 42 (1921).

History of the Role of Defense Counsel • 35 crowds in the streets cheered defendants and jeered French witnesses as they left the court."13 No high-ranking officer was convicted, and officers successfully invoked the defense of superior orders."! In a contemporary report of the decisions of the Leipzig Trials, each decision begins with the names of the judges, the prosecutors and the court clerk; no defense counsel is narned.lThe first articulation of a procedure for defense of a prisoner of war in 'Judicial proceedings" is found in the 1929 Geneva Convention Relating to the Treatment of Prisoners of War. 16 Under that treaty, the prisoner was to be advised that he is "entitled to assistance by a qualified counsel of his choice," and if he failed to choose counsel, "the protecting Power may obtain a counsel for him."17 Similar provisions can be found in the 1937 League of Nations proposed convention for the creation of an international criminal court. That provision also required bar membership for the representative, as well as approval by the court.l" Thus, the law regarding criminal defense before Nuremberg began to take shape around two fundamental questions. First, what process would be used for the selection of defense counsel when, as was and is most often the case, the accused is unable to retain counsel of choice? Second, what qualifications would be required of any defense representative as part of that process? It took a cataclysmic war of global proportions, with killing of monstrous proportions, to focus world attention on the issue of international criminal justice.

3.3. THE SCOPE OFTHE RIGHT TO ASSIGNED COUNSEL INTHE UNITED STATES AND EUROPE AT THE END OF WORLD WAR II U.S. constitutional standards on the right to assigned counsel and other procedural protections were quite limited, by contemporary standards, at the time of the creation of the IMTs. The U.S. Supreme Court interpreted the Sixth Amendment of the U.S. Constitution as guaranteeing a defendant without funds to retain counsel, charged in a state court where most criminal trials are held, the right to assigned counsel only in capital cases. The landmark decision in Powell v. AlabamaJ» the so-called "Scottsboro case," had prevailed since 1932 as the national expression of constitutional limits on the right to counsel for the poor. That notorious case involved the conviction and sentence to the death penalty of seven black youths convicted of the rape of two white women outside of the town of Scottsboro, Alabama. The young men were illiterate and poor. They were tried only six days after their arraignment, at which the trial judge had

Willis at 134. Bassiouni at 521-22. 15 'Judicial Decisions Involving Questions of International Law: German War Trials, Supreme Court at Leipzig," 16 Am.j. Int'l L. 674-724 (1922). 16 Convention between the United States of America and other powers, relating to prisoners of war. Signed at Geneva,july 27,1929, Articles 42,60-67. 17 Id. at Articles 61-62. 18 Article 29, Convention for the Creation of an International Criminal Court, League of Nations, Nov. 16, 1937. 19 287 U.S. 45 (1932). Powell applied only to trials in state courts. The right to counsel in all federal felony proceedings was confirmed by the Supreme Court in johnson v. Zerbst, 304 U.S. 458 (1938). 13 14

36 • Defense in International Criminal Proceedings

appointed all of the members of the Scottsboro bar to represent them. No individual lawyer voluntarily appeared for them at their trial, and they were all sentenced to death. On appeal to the u.S. Supreme Court, a seven-two majority reversed the conviction on grounds of denial of the constitutional right to counsel. The language of the holding has some relevance in the context of war crimes trials such as those under examination here. The Court held that: [I] n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by the assignment at such time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. 20 The Court emphatically concluded that a denial of the right to counsel to severely disadvantaged defendants would be "little short ofjudicial murder."21 Yet the Court gave no guidance to the states or to the appointing trial judges as to how or whether any system for assignment of counsel was to function for appointments in such cases, nor from where funding for such services was to come. Further, before Nuremberg and Tokyo, the Court refused to extend the right to assigned counsel to other serious crimes in state courts, where the vast majority of criminal trials take place, in Betts v. Brady,22 decided in 1942. It did not retreat from that position until nearly 20 years after Nuremberg when, in its 1963 landmark decision in Gideon v. Wainwright,23 it extended the right to state-paid assigned counsel to all poor persons with felony charges. Thus, there was no structural approach to the provision of assigned defense counsel in either state or federal proceedings in the United States. There were, however, some voluntary organizations such as the Legal Aid Society of New York City, which handled very large numbers of cases-over 43,000 applications for legal aid in civil and criminal matters in 1948. 24 The evidence is sparse with regard to the law in Europe, but appears to indicate a more generous system of state-funded defense counsel than in the United States. A system of legal aid based on the duty of the legal profession to provide free legal services to the poor came into being in the late 19th century and took more permanent shape by the 1920s in France, Italy, Germany and England. 25 Similarly, the European states met in 1874 to codify the rules of warfare, some of which dealt with the rights ofprisoners, who were to be "subject to the laws and regulations in force in the army [in] 20 287 U.S., at 71. The "due process of law" to which the Court refers is that of the 14th Amendment of the Constitution, which extends that guarantee to the states. The Court found the Sixth Amendment right to counsel, which applies only to federal proceedings, to be one of the hallmarks of the right to due process of law and a fair trial which must be extended to the states. 21 Id. at 72. 22 316 U.S. 455 (1942). 23 372 U.S. 335 (1963). 24 Martin V. Callagy, "The Legal Aid Society in the City of New York," 24 N.YU. L.Q. Rev. 356, 362 (1949). 25 Mauro Capelletti, James Gordley & Earl Johnson, Jr., Toward Equal Justice: A comparative Study of Legal Aid in Modern Societies 18-21 (1981).

History of the Role of Defense Counsel • 37 whose power they are." This provision, while it did not specifically call for defense counsel, did result in the provision of counsel under the prevailing law in much of Western Europe at the time.s'' The right to counsel in military proceedings took more firm shape in Europe through the adoption of the 1929 Geneva Convention, which did provide for a right of the prisoner of war to defend himself."? Before World War II, the right to counsel in courts martial was extremely limited in the United States, as were all procedural rights in such trials. In fact, no trained lawyer was required to appear in military trials at all, whether as judge, prosecutor or defense counsel. As one contemporary critic commented, "[ 0] ne of the striking features about the judicial system of the Army is that lawyers have little to do with it."28 Although reforms, including a right to select private counselor have qualified military counsel assigned to the accused, had been made after the First World War, the "bitter protests" of the War Department and others in 1920 prevented their implemcntation.s? Again, a critic of that era noted the relationship between justice and the structures in which law is administered. 'Just as in the time of Dickens," this author notes, "a legal machine with defects is capable of great injustice to the individual. "30 The legal machinery of military trials of the day was fatally flawed. Another critic of the era asserted that the "single most glaring defect of the present system is its frequent condonation [sic] of trials of soldiers on serious charges without representation by trained lawyers, despite the statutory provision for defense counsel."31 The system at the time, which generally was condoned by the federal courts onjudicial review, permitted representation by assigned military defense "counsel" who was not a trained lawyer.32 The same author notes that although the accused had a statutory right to select his own civilian counsel, the right was exercised in an "infinitesimal" number of cases.f'' Two cases serve as examples. In one, a soldier tried in Manila was represented by a non-lawyer, convicted of murder, and sentenced to hang. On retrial, defended by a lawyer, he was convicted of involuntary manslaughter and sentenced to three years imprisonmcnt.t" In another case, a non-lawyer entered a stipulation, on recommendation of his post's commanding officer (who also had appointed him to the task of defense), which cured a defect in the prosecution's efforts to prove his client's guilt of desertion. Although the sentence was later "disapproved" when the improper conflict of interest was disclosed, the author points out that "in the more usual case the interference would have been less direct, [and] would not have come to the attention of the higher authority."35 Kastenberg, at 182. Id. at 183-84. 28 Delmar Karlen, "Lawyers and Courts-Martial," 1946 Wis. L. Rev. 240 (1946). 29 Arthur John Keefe, "Universal Military Training with or without Reform of Courts Martial?," 33 Cornell L.Q. 465, 467-68 (1948). 30 Id. at 467. 31 Leonard M. Wallstein, Jr., "The Revision of the Army Court-Martial System," 48 Colum. L. Rev. 219, 226 (1948). 32 Id. at 226-27, n.42; Karlen, at 247 ("The lieutenant who is appointed defense counsel on a court-martial ... may have been a plumber, a salesman, or a playground director before entering the service, but that makes no difference."). 33 Wallstein, at 221, n.15. 34 Id. at 227, n.43. 35 Id. at 222, n.18. 26

27

38 • Defense in International Criminal Proceedings Reform would come to the military system, which now is seen as a "mirror" of federal court trials in the United States.v' However, at the time of the Nuremberg and Tokyo trials, the U.s. domestic system for protection of the right to counsel, in both civilian and military courts, was not as well-developed as the international law, in that the 1929 Geneva Convention gave a right to choice of counsel, or to assigned counsel if the accused did not choose a lawyer, to the prisoner of war in all judicial proceedings. Even before Nuremberg, it should be noted, at least some limitations applied to obtaining evidence of criminal conduct through official torture during interrogation. It took a vicious case of white-on-black torture for the U.s. Supreme Court to rule, in 1936, that a confession produced through torture was legally involuntary, and could not be the sole basis for a criminal conviction. In Brown v. Mississippi,37 the black suspects were severely whipped and repeatedly hung by the neck by their white interrogators until near death before they confessed. The Court held that authorities could not substitute "the rack and torture chamber ... for the witness stand."38

3.4. DEFENSE ATTHE NUREMBERG AND TOKYO INTERNATIONAL CRIMINAL TRIBUNALS It was not clear, after World War II, whether accused Nazi or Japanese war criminals, both among civilians and in the high command positions, would be tried at all. Many world leaders, including Winston Churchill and U.s. Treasury Secretary Henry Morgenthau, strongly felt that the most appropriate legal recourse for captured Nazi officials was summary execution.c? However, international tribunals, made up ofjudges and prosecutors from the Allied powers, were created after the war and became a global example of accountability and justice for major war crimes, including the crime of aggression itself: the waging of unprovoked war against other nations. The international tribunals at Nuremberg and Tokyo are not without detractors, then or now, but they provide a modern, post-war framework for understanding international criminal law and procedure. The 1945 Charter of the International Military Tribunal at Nuremberg contained fair trial protections for all 22 defendants who eventually stood trial, 12 of whom were civilians, and the rest military officers. Article 16(d) of the Charter guaranteed that a defendant "shall have the right to conduct his own defense before the Tribunal or to have assistance of counsel."40 This is the only mention of the role of defense counsel other than a similarly terse reference of the right of the defense to "present evidence," either through himself or through counsel."! This sparse language, however, gave rise to an entire system for the provision of defense services at Nuremberg. Article 9(d) of the Charter of the International Military Tribunal for the Far East (IMTFE), held in

Kastenberg, at 216. 297 u.s. 278 (1936). 38 Id. at 285-86. Later decisions during the war suggest that a criminal conviction is flawed where an involuntary confession was accompanied by the failure to provide access to counsel when requested by the accused. See, e.g., Malinski v. New York, 324 u.s. 401 (1945). 39 Eugene Davidson, The Trial of the Germans: An Account of the Twenty-two Defendants before the International Tribunal at Nuremberg 17 (1997). 40 See "Charter of the International Military Tribunal," in Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, at Appendix A, 645, 651, Article 16(d) (1992). 41 Id. at 651, Article 16(e). 36

37

History of the Role of Defense Counsel • 39 Tokyo between 1946 and 1948, contained a bit more detail, providing that "[e]ach accused shall be represented by counsel of his own selection, subject to disapproval of such counsel at the time by the Tribunal. The accused shall file with the General Secretary of the Tribunal the name of his counselor of the counsel whom he desires the Tribunal to appoint. If an accused is not represented by counsel, the Tribunal shall designate counsel for him." This provision applied to the 29 defendants in Tokyo, only nine of whom were civilians.

3.4.1. The Nuremberg IMT: Structures for Defense Services The structures for the operation of the Nuremberg International Military Tribunal (IMT) included some detail on the composition, operation and management of the court itself, as well as the office of the prosecution. The statute did not, however, include any specific mechanism for the selection and assignment of defense counsel when the accused was unrepresented and did not have the necessary knowledge or resources to retain counsel. Several weeks before the indictments were served on the defendants in 1945, the American prosecution team established a Defendants' Information Center, which was designed to provide a meeting place for counsel and their clients, a location to obtain documents and a source of other kinds of assistance. The Center and its director, Lt. Commander Albert Schrader of the u.S. Navy, were later incorporated into the structure of the General Secretariat of the Tribunal, of which the Defendants' Information Center was made a part. This section and one other, the Witness Notification and Procurement Section, provided assistance to defense counsel throughout the trial. Those defense lawyers who required housing were provided with billets in Nuremberg, as well as a weekly allowance and access to scarce items from the American Post Exchange. Counsel were allotted some office space in the courthouse, with their own mess facility nearby, and transportation was provided upon approval of the Secrerariat.i" The Tribunal's budget included an item to pay assigned counsel, whether chosen from the list or selected scparatcly.t'' In addition, in February of 1946, the Tribunal ordered that counsel could be assisted by an associate counselor by another defendant's counsel, but that associate counsel was not permitted to speak in court or examine witnesses. Over time, this rule became less strict, with several associate counsel examining witnesses and some defense counsel asking questions on behalf of absent colleagues.r' The court delegated the general procedure for selection of defense counsel to the Secretariat. Major A.M.S. Neave, a young British officer, was appointed to formally serve the accused with their indictments and to assist them in obtaining counsel. Neave visited each defendant with a list of some 60 lawyers from whom they could choose if they

42 Drexel A. Sprecher, Inside the Nuremberg Trial: A Prosecutor's Comprehensive Account, Vol. II, 131-32 (1999). 43 Sprecher puts the monthly stipend at 3,500 marks a month, plus the Post Exchange rations of cigarettes. Id. Pay rates for defense lawyers Nuremberg may be difficult to translate, but Robert Conot notes that the judges paid an advance of 4,000 marks, as well as a monthly stipend of 2,500 marks to all defense counsel. "Successful" German lawyers at the time earned between 30,000 and 40,000 marks a year. Robert E. Conot,justice at Nuremberg 77-78 (1983). 44 Sprecher, at 129.

40 • Defense in International Criminal Proceedings wisherl." Defendants were also permitted to select counsel of their own choosing from outside the list, subject to the lawyer's consent.v' There is no record of how or by what criteria the lawyers on Major Neave's list were selected. Several authors note that lawyers who were members of the Nazi party were not barred from service as counsel, and Telford Taylor reports that there were eight former Nazis among the defense lawyers at the trial."? The defendants all were represented by Germans; no lawyer from any Allied power appeared for the defense. This procedure, with few changes, remains the essential mechanism for the selection of counsel in the ad hoc international tribunals for the former Yugoslavia and Rwanda, as well as the one proposed for the International Criminal Court. And choice of counsel is not always based on knowledge of a lawyer's skills or reputation. One commentator notes that Dusko Tadic, the first defendant in contemporary history to be tried by the Yugoslav international criminal tribunal, selected his very capable lawyer, Michail Wladimiroff, from a list of 30 lawyers drawn up by the tribunal because Wladimiroff's was the only Slavic name he recognized.P

3.4.2.

The Tokyo IMTFE: Defense Structures v

Procedures at the IMTFE differed from Nuremberg in many respects. The courts themselves were different, although both were international bodies. In Nuremberg, the "Big Four" nations each provided ajudge, an alternate and a prosecutorial representative, so there was always a judicial representative from France, the Soviet Union, the United Kingdom and the United States on the bench during the proceedings. In Tokyo, a single judge and prosecutor was named for each of the 11 Allied countries represented there: Australia, Canada, China, France, India, the Netherlands, New Zealand, the Philippines, Soviet Union, United Kingdom and the United States. The IMTFE was also distinguished at the time as "the longest continuous trial in history. It lasted two years and 98 days, beginning on May 3,1946, after nine months of preparation, and ending on November 12, 1948."50 There were also vast differences between the structures and mode of defense operation in Tokyo and Nuremberg. Defense at Nuremberg was relatively calm, formal and straightforward, while the defense work at Tokyo was marked by dissention and chaos, both among the defense lawyers and in conflict with the Tribunal. There is no entirely coherent account of the structures, work and costs of defense representation in Tokyo, perhaps because all chroniclers of the trial agree that the defense was dismally disorganized, especially at the outset of the proceedings.

Conot, at 77-78. Id. at 83. 47 Taylor, at 144. 48 Michael P. Scharf, Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg 102 (1997). 49 There were two international tribunals in the Far East, one in Tokyo, which tried the most serious, or "class A" offenses, and one in Yokohama, which tried lesser charges, called "class Band C" offenses. The literature on the trials in the Far East consistently refers to the Tokyo trial alone as the "IMTFE." 50 John L. Ginn, Sugamo Prison, Tokyo: An Account of the Trial and Sentencing of Japanese War Criminals in 1948, by a u.S. Participant 57 (1992). 45

46

History of the Role of Defense Counsel • 41 First, the trials took much longer to get underway after the initial arrests of potential defendants. The defendants were interrogated from the time of their initial arrests in the fall of 1945 until April 1946, without charge or benefit of counsel, and all evidence obtained by such questioning was admissible at their subsequent trial."! Second, the amount of documentation available for trial was not nearly as extensive or wellorganized as it had been in Nuremberg, but, at the same time, it had all of the difficulties of translation fromJapanese that made access to the information a problem for both sides. Most assessments of the defense at the Tokyo IMTFE characterize it as "disorganized" at the outset. The General Secretary of the Tribunal, Vern Wallbridge, set up an International Defense Panel within his office, created to provide a paid structure of American lawyers to assist and advise Japanese counsel with the difficult task of understanding an essentially adversarial trial. 52 All of the defendants chose Japanese counsel, many of whom had been educated at elite law schools in the United States, and some of whom were prestigious and well-known law professors or politicians in their home county. Those lawyers made direct appeals to the Japanese people for funding of such basics as "communications, lodgings and food." The defendants and their attorneys, contributing from their own pockets, ended up deeply in debt for hotel bills, and the presidingjudge of the tribunal, Sir William Webb of Australia, eventually persuaded the Allied command to provide small salaries for local counsel, and some small fees for translation of documents, a major expense on both sides.s'' Among the most well-known of the Japanese counsel were Kenzo Takayanagi, a Harvard Law School graduate, who served as an intellectual force on the defense team; Ichiro Kiyose, called "an ultrarightist with military leanings" but "a very capable and astute defense attorney"; and the eminent scholar Somei Uzawa, president of Meiji University.-" Chief Prosecutor Joseph Keenan appealed to Washington to send 20 attorneys to Tokyo to assist the defense. Fifteen U.S. lawyers arrived on May 17, 1946, two weeks after the trial began, and joined six Americans already in Japan to assist. Navy Capt. Beverly Coleman was appointed chief of the defense team, and John W. Guilder, also Navy, was selected to be assistant chief of defense.Y One of the American counsel, noting the lack of familiarity of the Japanese with adversarial courtroom style, called one of the Japanese lawyers "too polite and courteous" to stand up to the presidingjudge, and characterized that lawyer's conception of his role as "figuratively speaking, to put flowers gracefully on his client's grave."56 However, when the first group of U.S. volunteers arrived, Judge Webb ruled that they could not appear without an explicit written appointment from the accused, despite the fact that there had been no formal accusations filed against any of the defendants until the day of the Americans' arrival. Six of the U.S. lawyers were so outraged at their treatment that they immediately resigned their positions.v? 51

Merion & Susie Harries, Sheathing the Sword: The Demilitarization of Japan 145

(1987).

Id. at 146. Id. at 145-46. 54 Ginn, at 43 55 Id. 56 Harries, at 146. 57 Id. at 146; Arnold C. Brackman, The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials 82 (1987). 52 53

42 • Defense in International Criminal Proceedings Eventually, each of the 25 defendants in Tokyo was represented by at least one u.s. lawyer partnered with at least one Japanese counsel. Statistics from the court clerk indicate that there were 79 Japanese barristers and 25 American defense artorneys.v' while the prosecution team assembled by Chief Prosecutor Joseph Keenan totaled 340 lawyers and American and Japanese staff.t? Some of the American lawyers arrived before the trial began and stayed for the duration of the two and a half year event. The U.S. contingent, while taking serious career risks in appearing for the defense before the Tribunal, was hardly reticent to criticize, sometimes engaging in what one observer called "suicidal bravery." Owen Cunningham, a former dean at the Des Moines College of Law in Iowa, was dismissed by the Tribunal when he declaimed against the "erroneous presumption of guilt rather than innocence," asserting that the prosecution had no limits to its powers and was "created for the occasion with no code of ethics to guide its conduct, emphasizing the dangers which arise from a political prosecution accountable to no authority and whose sole purpose is conviction."6o

3.4.3. Structural and Procedural Limitations on the Defense at Nuremberg and Tokyo All of the defense counsel at Nuremberg performed their tasks during a period in which the public revelations of German military atrocities and the horrifying scope of the Holocaust turned both the public and the legal profession strongly against the defendants and their lawyers. Public revulsion at the defendants themselves cannot be overstated. One of the defense counsel notes that during the time of the trial, the bar association of the German city of Cologne proposed to "take measures" against defense counsel because of their acceptance of the defense at all.v! Counsel received threatening mail from fellow Germans throughout the trial. An account in the Berlin newspaper, Berliner Zeitung, published on February 2, 1946, criticized one of the defense lawyers "in the severest terms" for perceived wrongs in his cross-examination of a prosecution witness and threatened the lawyer with "complete ostracism in the future ... in language both violent and intimidating."62 Defense counsel at the Nuremberg IMT also worked under several severe procedural and structural disadvantages. First, long before many of the defendants were provided with counsel, they were interrogated extensively by police and prosecutors. Drexel Sprecher, one of the Nuremberg prosecutors, notes in his voluminous account of the trial that for "three months beginning in late August, 1945, most of the prospective defendants and a number of possible witnesses were interrogated in Nuremberg. During these interrogations staff from various divisions of the Prosecution often sat listening in the rear of the interrogation rooms. "63 Second, all defense counsel worked in extremely

58 Galen Irvin Johnson, Defending the Japanese Warlords: American Attorneys at the Tokyo War Crimes Trial, 1946-1948 (1998) (Doctoral Dissertation for the Department of History, University of Kansas, on file at the Washington College of Law, Washington, DC), at 51. 59 Ginn, at 55. 60 Id. at 147. 61 Dr. Hans Laternser, "Looking Back at the Nuremberg Trials with Special Consideration of the Processes Against Military Leaders," 8 Whittier L. Rev. 557, 565 (1986) (Laternser served as Chief Counsel for the German High Command and the German General Staff). 62 Quoting, in part, the Tribunal's President, Lord Justice Geoffrey Lawrence, in Sprecher, at 746-47. 63 Sprecher, at 80.

History of the Role of Defense Counsel • 43 rushed circumstances in a multiple-defendant trial with literally hundreds of thousands of documents proposed by the prosecution as primary sources of evidence against the defendants. One defense attorney, for example, counted nearly 200,000 affidavits in evidence.v' By late August of 1945, the prosecution's Documentation Division numbered over 100 personnel, one of the largest of the many branches of the overall prosecution effort. The prosecution organized a series of meetings and seminars to more carefully analyze their voluminous documentation, all of which took place well before the defense had its own brief access to this material for the month or less before trial.v'' The defendants' lawyers effectively had one month to prepare their cases, from the time of the service of the first indictments, on October 19, 1945, until November 20, the date that pleas had to be entered.v" Telford Taylor notes that the procedure for selection of counsel happened simultaneously with the service of the indictment, and that the last of the defendants obtained defense counsel on November 12, just eight days before the opening of the trial.v? The short trial preparation time in Nuremberg recalls the u.s. Supreme Court's decision in the Scottsboro case, where the Court held that the duty to provide assigned defense counsel "is not discharged by the assignment at such time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case."68 Time constraints did not abate for the defense during the trial itself. While the Soviet prosecution proceeded with its case-in-chief near the close of the prosecution's case, the defense lawyer for defendant Hjalmar Schacht made a general defense motion on behalf of all counsel, asking for a three-week continuance to prepare their case. He argued "that the conspiracy charge meant that there was no area that a defense counsel could neglect; that most defense counsel had only one assistant; that the Soviet Prosecution was still adding new evidence; that important documents were still not available; and that much remained to be done in interrogating witnesses and submitting interrogatories. "69 The motion was summarily denied and the trial proceeded directly to the defense case when the prosecution completed its proof. Some of the defense limitations at the Tokyo IMTFE have already been introduced above. It is difficult to evaluate the extent to which the shortcomings experienced by the defense there were part of the generally lower level of respect accorded to the Tokyo proceedings when compared with those of the Nuremberg IMT. One example of the lack ofjudicial rigor at Tokyo was that the rules of the Tribunal made no provision for alternate judges, unlike that of the Nuremberg Tribunal. When any member of the court was absent, the proceedings went forward with the judges present, which produced inconsistency in evidentiary rulings, much to the justifiable consternation of defense

64 Dr. Kurt Kauffmann, "Translation: The Nuremberg Trial in Retrospect," 9 Whittier L. Rev. 537 (1987) (counsel for Ernst Kaltenbrunner, Chief of the Gestapo and the SD). 65 Sprecher, at 69-71. 66 Eugene Davidson, The Trial of the Germans: An Account of the Twenty-two Defendants before the International Tribunal at Nuremberg 31 (1997). 67 Taylor, at 131-44. Taylor further notes that among the defense lawyers were eight former Nazis. Kranzbuhler was not one of the eight. Id. at 144. 68 Citation from Powell v. Alabama, 287 u.S. 45 (1932). 69 Sprecher, at 733.

44 • Defense in International Criminal Proceedings counsel.t" Another was the potential bias of the judges. Judge DelfinJaranilla, the judge assigned from the Philippines, for example, had been a prisoner of the Japanese for a year and had participated in the Bataan Death March, yet refused to recuse himself."! Yet another was the refusal of the court to dismiss some charges at the close of the prosecution's case, when those charges had clearly not been proven, thus forcing the defense to rebut all charge in the defense case-in-chief. The defense consternation at this ruling was borne out in the court's judgment, which found guilt on only ten out of the original 55 counts.?? Differences in staff parity and resources also put the defense at serious disadvantage. One powerful example of that disparity was in the availability of translators for the defense. While the prosecution office had 200 translators, the defense shared 72, of which they said only four or five were competent. This meant that of the 2,000 documents the defense proposed to offer into evidence, only 300 were processed by the time of trial. 73 And the defense continued to fight amongst itself, particularly over issues ofjoint decisionmaking. Early in the trial, the American lawyers, led by Navy personnel, began to bicker among themselves and with lawyers from other branches of the service. When no resolution came about in an emergency defense meeting, the Naval chiefs of staff asked for and got a transfer of the entire naval defense team, after General MacArthur "blew a few fuses."74 Final assessments of the overall effectiveness of this combination ofJapanese and u.s. defense representation vary widely. One commentator boldly asserts that "it is hard to see how the defence at Tokyo could have done other than fail," concluding that "in the end, it proved disorganized, inefficient and ineffectual."75 Another differs radically in his conclusion, asserting that the combined representation "furnished the accused extraordinarily sound and forceful defenses."76 Lord Patrick, one of the judges representing the United Kingdom at the trial, left no doubt where he stood when he said publicly that the defense "will never be anything else but in a mess ... The have no organization which would have the authority to reject unessential and irrelevant evidence, so they waste their time and clutter up the machinery of translating and copying evidence with the preparation for presentation of the most irrelevant stuff, which this tribunal rejects when they present it."77 In what seems to be an almost fitting anti-climax to the Tokyo IMTFE, the U.s. Supreme Court declined to review the convictions of several of the defendants after hearing oral argument on the issue.?"

Harries, at 148-49. Ginn, at 48. 72 Harries, at 151. 73 Id. at 150. 74 Ginn, at 48. 75 Id. at 145. 76 Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 1945-1951,14 (1979). 77 Harries, at 150. 78 Hirota et al. v. MacArthur, 335 u.s. 876 (1948) (on the grant of oral argument, with memorandum of views ofJackson,J.); 338 U.S. 197 (1948) (on denial of motion to file petition for writ of habeas corpus). 70 71

History of the Role of Defense Counsel • 45

3.4.4.

Profile: Otto Kranzbuhler, Defense Counsel for Admiral Karl Doenitz Before the Nuremberg IMT79

Admiral Karl Doenitz became commander of the submarine arm of the German Navy in 1936. German V-boats under his command wrecked havoc on the allied commercial vessels and navies before and during the war. He became Commander-In-Chief of the Navy in January 1943, a post he held until the collapse of Germany, at which point he was named as Adolph Hitler's hand-picked successor.s" In Hitler's "political testament," written shortly before his suicide, he named Doenitz to succeed him as President of the Reich and as Supreme Commander of the Armed Forces.s! Karl Doenitz became one of the 22 indicted members of the Nazi high command to be tried at Nuremberg.f" Defendants were permitted, as did Doenitz, to select counsel of their own from outside the list, subject to the lawyer's consent.s" Otto Kranzbuhler was FleetJudge Advocate General, the highest ranking lawyer in the German Navy when he agreed to serve as defense counsel at the specific request of Admiral Doenitz.v' At the time, Kranzbuhler said, he "felt myself obligated, on the German side, to cooperate as much as possible."85 He notes that his appearance in the case was "through the agency of the British Royal Navy," without further explanation.s" The prosecution charged Admiral Doenitz with plotting to wage and waging aggressive war, as well as with war crimes. His defense was one that was given very limited scope at Nuremberg, and which has since been rejected by contemporary international criminal tribunals.s? that of tu quoque. Tu quoque asserts that the opposing 79 Several other accounts by defense counsel from the Nuremberg trial are included in Nuremberg: German Views of War Trials 106 (Wilbourn E. Benton & Georg Grimm eds., 1955). The DePaul account by Kranzbuhler was one of a group of six recollections in law reviews about representation of defendants at Nuremberg. The others were Carl Haensel, "The Nuremburg [sic] Trial Revisited," 13 DePaul L. Rev. 248 (1963-64) (counsel for the SS-Die Schutz-Staffeln der Nationalsozialistischen Deutschen Arbeiterpartei-and the SD-Der Sicherheitsdienstboth Nazi groups charged with organizational responsibility); Herbert Kraus, "The Nuremberg Trial of the Major War Criminals: Reflections after Seventeen Years," 13 DePaul L. Rev. 233 (1963-64) (counsel for Hjalmar Schacht, German Minister of Economics); Otto Pannenbecker, "The Nuremberg War-Crimes Trial," 14 Depaul L. Rev. 348 (1964-65). Two other reflections by defense counsel at the Nuremberg Control Council trials appear in the Whittier Law Review: Dr. Hans Laternser, "Looking Back at the Nuremberg Trials with Special Consideration of the Processes Against Military Leaders," 8 Whittier L. Rev. 557 (1986) (Laternser served as Chief Counsel for the German High Command and the German General Staff); Dr. Kurt Kauffmann, "Translation: The Nuremberg Trial in Retrospect," 9 Whittier L. Rev. 537 (1987) (counsel for Ernst Kaltenbrunner, Chief of the Gestapo and the SD). 80 Sprecher, Vol. II, 981 (1999). 81 Whitney R. Harris, Tyranny on Trial 462, 531 (Rev. ed. 1999). 82 Sprecher, at 982. 83 Taylor, at 83. 84 Sprecher, at 126. 85 Peter MacGuire, Law and War: An American Story 124 (2000). 86 Otto Kranzbuhler, "Nuremberg Eighteen Years Afterwards," 14 DePaul L. Rev. 333 (1964-65). 87 In Prosecutor v. Kupreskic et al.,judgment, Case No. IT-95-16-T, jan. 14,2000, for example, the Trial Chamber of the IClY rejected the tu quoque argument as "flawed in principle" and further concluded that "the tu quoque defence has no place in contemporary international humanitarian law." Id. at paras. 511-520.

46 • Defense in International Criminal Proceedings

forces engaged in acts similar to or the same as those now charged as crimes against the defendants.t" Kranzbuhler petitioned the tribunal successfully for an interrogatory to U.S. Admiral Chester W. Nimitz, who had been Commander-In-Chief of the U.S. Pacific Fleet during the war. 89 Kranzbuhler argued, from his earliest submissions, that the justification for Doenitz's actions in naval warfare was no different than those offered by the U.S. submarine fleet. When challenged on grounds that a tu quoque defense was inappropriate, Kranzbuhler asserted that the purpose of the interrogatory was not to prove similar behavior. Instead, he argued, it would prove that in practice, the U.S. admiralty interpreted the London Naval Agreement of 1930, which Doenitz was alleged by prosecutors to have violated, in exactly the same way as did the Germans, and that the actions of both navies were Icgal.?" The request for the interrogatory was granted as a point of personal privilege, and over the objections of other tribunaljudges, to the U.S. judge, Francis Biddle, with whom Kranzbuhler had "caught favor."91 The request for the interrogatory was granted, and the response to the interrogatory proved invaluable.v- The U.S. Admiral affirmed that unrestricted submarine warfare was the prevailing practice in the Pacific Theater. He stated that it was customary for U.S. submarines to attackJapanese merchant ships "without warning," and that survivors of submarine attacks were not rescued "if undue additional hazard to the submarine resulted," much the same as Doenitz himself had justified his own intentional failure to rescue.v" Using the evidence to his advantage, Kranzbuhler made his closing summation with "skill and persuasiveness," as contrasted to the final arguments of defense counsel in general, arguments that were characterized as "notable for the prolixity, reams of irrelevancies, and plethora of banalities."94 Doenitz was convicted of waging aggressive war, but not of plotting to carry it out. He was acquitted of the offense of crimes against humanity, largely on the strength of the Nimitz interrogatory" He was sentenced to ten years imprisonment, as contrasted to the death sentences imposed on 12 of the 19 convicted defendants, all of which were promptly carried out. 96 Admiral Doenitz served out his sentence at Spandau prison, was released in 1956, and died in 1981. 97 By virtually all contemporaneous accounts, Kranzbuhler's defense was professional, smooth and shrewdly effective. Sir David Maxwell-Fyfe, the British Deputy Chief Prosecutor, called his representation "as good as could be found at any bar."98 Drexel Sprecher, a U.S. prosecutor who provides a comprehensive account of the trial, asserts that Kranzbuhler "was widely regarded among the Prosecution staff as one of the most Sprecher, at 722. Id. at 982-83. 90 Id. at 982-983. 91 Id. 92 Id. 93 Id. at 994-95. 94 Conot, at 466-67. 95 Harris, at 507, 532. 96 Id. at 478-88. Three of the defendants were acquitted, but the nature of the evidence against Doenitz, by comparison, makes Kranzbuhler's accomplishment all the more impressive. 97 Conot, at 519. 98 Sprecher, at 730. 88

89

History of the Role of Defense Counsel • 47 effective, if not the most effective, of the Defense Counsel."99 Yet another prosecutor, remembering the trial in 1995, called Kranzbuhler the "star defense counsel."lOO A recent historical review of the trial found Kranzbuhler to be "Nuremberg's most successful defense attorney."lOl One analyst of the trial offers that "the personality and skill of Kranzbuhler had more to do with the outcome of the case against Doenitz than the evidence against the admiral. "102 Kranzbuhler's own reflections after many years offer some insight into the perceived limitations on his own advocacy. Of all the procedural constraints imposed, lack of access to documents frustrated Kranzbuhler more than any other. In his reflections on the trial 18 years later, he stated: I would consider the Anglo-American procedure as such, particularly suitable for a political trial, subject to one requirement: equality of arms between the two parties. That was not the case at Nuremberg. The prosecution, through a multitude of investigations, had searched all the German archives, which had been confiscated, in order to find material in support of the prosecution's case. And the defense counsel had to live on what was left over, so to speak, from the documents which the prosecutor introduced into evidence against the defendants. For the defense counsel, access to the archive was barred. Thus, they were unable to make the investigations, always necessary for the defense, but particularly necessary in an historical rrial.l'" Kranzbuhler also notes in his account of the proceedings that before trial, the defense "was flooded" with English translations of documents originally in German, and their request to obtain the original versions of the documents was denied.l?' Despite this fact, Kranzbuhler is credited with performing effective cross-examination using these documentary sources, an accolade made all the more remarkable by virtue of his training in the classic, non-adversarial civil law tradition of the European continent. After the Nuremberg IMT, Kranzbuhler defended Friedrich Flick and Alfred Krupp in what was called the Industrialists Trial before u.s. courts sitting in Nuremberg, and Hermann Roehling, the Saar industrialist, before a similar tribunal constituted by the French in Rastatt.l'" In 1951, Kranzbuhler made an influential appearance before a German legislative committee charged with review and disposition of war criminals still in custody, and his plan, which won "overwhelming approval," resulted in significant advancement of their early release.l'" He notes at the outset of a personal account that in his post-war law practice, "I was concerned as a corporation lawyer with the consequences of these penal proceedings on the German enterprises affected thereby, particularly with the problems of confiscation of private property and of decartellization

Id. at 982. Professor Henry T. King,]r., "The Nuremberg Context from the Eyes of a Participant," 149 Mil. L. Rev. 37,44 (1995). 101 Peter MacGuire, Law and War: An American Story 17 (2000). 102 Co not, at 417. 103 Kranzbuhler, at 336. 104 Id. at 345. 105 Kranzbuhler, at 333. 106 Frank M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946-1955, 133 (1989). 99

100

48 • Defense in International Criminal Proceedings [sic]. The tasks connected therewith were, and continue to be even today [in 1964], of a political rather than a legal character."107 By all accounts, then, Otto Kranzbuhler was one of the most successful defense lawyer in one of history's most famous trials, and he was able to build on his Nuremberg success. Telford Taylor, one of the best known u.s. prosecutors and authors on the Nuremberg IMT, concludes that Kranzbuhler was able to parlay his able defense at Nuremberg into "a lucrative postwar career at the bar."108

3.5. DEFENSE IN POST-WORLD WAR IIWAR CRIMES TRIALS Post-World War II trials for international and war crimes were systematic and massive. In addition to the relatively well-known trials under Allied authority at Nuremberg, called "the Subsequent Cases" or those conducted under Control Council Law No. 10, there were extensive trials by national authorities after the war.l''? In the European theater, Germany itself carried out some 60,000 reported prosecutions against war criminals between 1947 and 1990. 110 The DeputyJudge Advocate for War Crimes, European Command, carried out prosecutions in Dachau, Germany against 1,672 defendants accused of crimes against U.S. military personnel. Of these, 1,416, or about 85 percent, ended in conviction. The British also carried out prosecutions at Dachau.U! Uncounted numbers of prosecutions of Nazis occurred in Canada, Italy, England, Lithuania, Austria and some Eastern European countries.'!" In the Far East, 215 Japanese defendants were tried by the United States in the Philippines.U'' part of the 1,409 defendants tried by U.S. authorities throughout the Far East in the post-war period. Of that number, 180, or 14 percent, were acquitted, while about the same number, 163, were sentenced to death.U" U.S. soldiers assigned by the court provided the overwhelming majority of defense representation in these trials.U> All told, in prosecutions conducted by Britain, Australia, China, Holland, the Philippines and France, another 5,573 Japanese defendants were tried, of whom 4,488, or about 80 percent, were convicted.U'' It is noteworthy that on several occasions in the Far East theater, Allied trials were held and convictions obtained againstJapanese military personnel for "denial of a fair trial during a war." These were trials in which it was alleged that

Kranzbuhler, at 333. Taylor, at 132. 109 In the sources I have found, there is no distinction drawn between trials for violation of domestic or international criminal law in the prosecutions documented here. For my purposes, such data would be interesting but irrelevant to my own thesis: in each of these trials, the defendant was presumably provided with counsel who was probably assigned by some appointing authority, given the evidence from all trials in which the provision of defense counsel is fully or partially documented. 110 Bassiouni, at 543. 111 Id. at 533. 112 Id. at 544. 113 Piccigallo, at 67. 114 Id. at 95. Bassiouni, citing various sources, puts the total number of U.S. convictions in Yokohama, Japan at 1,229 Japanese. Bassiouni, at 534. 115 I draw this conclusion by inference, as all trials in the Piccigallo volume on the Far Eastern theater, for example, discuss defenses and issues raised by defense counsel. Piccigallo, passim. 116 These figures are arrived at by totaling the numbers at the end of each of the chapters on the named countries as discussed in Piccigallo, ide 107 108

History of the Role of Defense Counsel • 49 summary proceedings held under Japanese authority denied the Allied accused the right to fair trial, in part because no defense counsel had been provided in any of the cases in qucstion.!'? In summary then, even without including any estimate of other undocumented national war crimes prosecutions that almost certainly took place, there were almost 69,000 nationally sponsored trials of Axis soldiers for war crimes arising from World War 11. 118 Except for a very limited number of the most famous of these trials, there is little information as to how defense counsel was provided to the accused. Given the data of the cases documented here, as well as those having been processed by the IClY and the ICTR, one can safely assume that defense counsel for these accused were seldom retained by the defendant, and that assigned counsel systems of some sort prevailed in virtually all cases.

3.5.1.

The Subsequent International Trials ofNuremberg and Tokyo

There were 12 "subsequent cases" ofjudicial importance conducted in Nuremberg between October of 1946 and April of 1949. While these cases are sometimes confused with the Nuremberg IMT, and they were technically international trials conducted under Control Council Law No. 10, written by the Allies.!'" they were directed by the United States through the chief prosecutor, Brigadier General Telford Taylor. Robert Donihi was a civilian prosecutor employed by the Justice and War Departments when he traveled to both Tokyo, Japan and Dachau, Germany to participate in prosecutions in both countries, perhaps uniquely among U.S. personnel. He also describes switching from prosecution to defense as he wished during his time at Dachau by virtue of his status as a Chief Trial Attorney. He describes Dachau as having 'Just too many cases," but "administered much like the federal district courts and U.S. Attorney's offices."120 In Japan, there was also a second layer of international trials administered by the United States, with Allied cooperation, but under the firm guiding hand of General Douglas MacArthur, the Supreme Commander of the Allied Powers (SCAP) in the Pacific. These trials were conducted in Yokohama, and were considered to be defendants of lesser importance than those tried in Tokyo. Of 474 trials conducted in the Far East under the SCAP command, 319 took place in Yokohama. Additional U.S. military commission trials took place in Shanghai, China, the Marshall Islands and the Philippines. Of all of these trials, perhaps the most famous was that of General Tomoyuki Yamashita, the Japanese commander of the Philippines at the time it was retaken by MacArthur. Yamashita's case went to the U.S. Supreme Court for decision on the mer-

Piccigallo, at 72-73, 86-87, 132-33. By contrast, the only case brought against one of the Allies for World War II war crimes was an action against the United States in Japan for death and injury of an estimated 225,000 persons in the atomic bomb attacks on Hiroshima and Nagasaki. The case was dismissed by the Japanese Supreme Court in 1963. Bassiouni, at 546. 119 In Flick v.Johnson, 174 F.2d 983 (D.C. Cir.) , cert. denied, 338 U.S. 879 (1949), the federal court refused to review a conviction by a Control Council court, finding it to be "international" despite the fact that the judges and prosecutors were exclusively American citizens and paid by the United States. 120 Robert Donihi, "War Crimes," 66 St. John's L. Rev. 733, 749 (1992). 117 118

50 • Defense in International Criminal Proceedings its, and one of his defense counsel, Captain Frank Reel, wrote a book about his defense of the general. 121

3.5.2.

Profile: A. Frank Reel, Defense Counsel Team Member for General Tomoyuki Yamashita atTrial Before a U.S. Military Commission, Luzon, Philippines: 1945

The Philippines was a territory of the United States at the time it became a key tactical location in the battle for control of the Pacific during World War II. It did not achieve its independence from the United States until after the war, in 1946. During the period from 1942 to 1945, control of the island changed hands from the United States to Japan and back to the United States with the return of General Douglas MacArthur in 1944. General Tomoyuki Yamashita took command of the Japanese 14th Area Army in the Philippines on October 9, 1944, only 11 days before General MacArthur invaded the island of Leyte in his eventually successful effort to retake the country through coordinated land and sea offensives.l'" The fight for the island nation was costly to both sides, with "tens of thousands" ofJapanese and U.S. soldiers killed and somewhere between 30 and 40 thousand Filipino citizens killed by the Japanese in the fight for Manila and the main island of Luzon. By all accounts, the Japanese soldiers under Yamashita's command during that time unquestionably committed horrific abuses on the civilian population, internees and prisoners of war.123 The legal question would later become the extent to which the General was responsible for the actions of his troops. General Yamashita surrendered to U.S. military forces in the Philippines on September 3, 1945, and became a prisoner of war. His surrender followed closely after the U.S. dropped atomic bombs on Hiroshima and Nagasaki, three days apart, in August of that year. 124 General Yamashita was tried, convicted, had his case reviewed by the U.S. Supreme Court and was executed on February 23, 1946, all before the commencement of the Tokyo IMTFE, which began on May 3 of the same year. 125 The trial of General Yamashita was conducted by a five-member military commission, named personally by U.S. General MacArthur in his capacity as SCAP. Thejudges were all from the Army, and all held the rank of either major or brigadier general. Captain Frank Reel, a defense lawyer for Yamashita, notes that as professional soldiers, these men "could not be expected to offer serious resistance to the desires of General MacArthur or of any other superior officer on whose favor their future well-being might depend."126 Moreover, none of the men were lawyers or had any legal experience, and none had ever seen combat."? U.S. military personnel drafted the statute for opera-

121 A. Frank Reel, The Case of General Yamashita (1949). Reel's is the only booklength personal account in English by a international war crimes defense attorney that I have discovered. 122 Major Michael L. Smidt, ''Yamashita, Medina, and Beyond: Command Responsibility in Contemporary Military Operations," 164 Mil. L. Rev. 155, 177 (2000). 123 Id. at 178. 124 Reel, at 12. 125 Piccigallo, at 17. 126 Reel, at 40. 127 Id. at 40-41.

History of the Role of Defense Counsel • 51 tion of the tribunal, defining the crimes and the procedures for the operation of the commission. General MacArthur delegated the details for the operation of the trial to Lieutenant General Wilhelm D. Styer, who coordinated the assignment of defense counsel. All of the defense lawyers were u.S. soldiers named in an order of October 1, 1945, which also named the commission members and prosecution team. Because of the tenet of U.S. military fair trial requirements that the unrepresented accused have assigned Army counsel, Styer recruited a six-member defense team for the task. The six eventually chosen included Captain A. Frank Reel, from Boston, Massachusetts; Major George Guy, a Cavalry officer from Cheyenne, Wyoming; and Lieutenant Colonel James G. Feldhaus, a tax lawyer from South Dakota, each of whom have also given accounts of their representation.U" None of the defense team had worked before as a criminal defense lawyer. Reel himself asked not to be assigned the case, and one of the men originally appointed to the defense team, a judge from Alabama, asked to be removed from service because of his fears that his defense of a Japanese general would prevent him from ever being elected again. 129 As with Otto Kranzbuhler's defense of Admiral Doenitz at Nuremberg, one of the most daunting issues that faced the defense team in the Philippines was the time and resources to prepare. The indictment was served on General Yamashita on September 25, 1945, after "dozens" of U.S. judge advocates had spent all summer working up charges and gathering evidence all over the Philippincs.l'v The case went to trial only a month later, on October 29. Moreover, the original indictment included 66 specifications of war crimes violations. On the day of trial, prosecutors served the defense with 58 supplemental spccifications.I''! Because they had no additional help, and because Feldhaus became ill for nearly a month at the beginning of the trial, only three of the defense lawyers, including Captain Reel, actually appeared in court. Another member of the team prepared for later appeals and habeas corpus review of the anticipated conviction, while George Guy flew to Japan to continue investigation for the defense.l " The judges sat for six full days a week, and often extended sessions into the evening, so there was little time for additional defense preparation once the trial was underway. When the defense reiterated its need for time to adequately prepare, and particularly for a recess to prepare the defense case-in-chief, the commission declined, but offered to supplement the size of the defense team. The commissioners also suggested that one of the existing defense team members could spend more time outside the courtroom in investigation, because it did not seem necessary to the commissioner that all three lawyers needed to be present in the courtroom for the defense to function adequately. The defense team declined both offers, knowing of the difficulty of briefing and preparing another lawyer on all aspects of the case. On November 20, when the prosecution rested its case, the defense renewed its request for a "reasonable" recess for preparation. The commission granted the defense from that morning until 1:30 p.m. the same afrernoon.F" 128 George F. Guy, "The Defense of Yamashita," 4 Wyoming L. Rev. 153 (1950);J. Gordon Feldhaus, "The Trial of Yamashita," S.D. BJ., Oct. 1946, at 191. 129 Reel, at 7-11. 130 Guy, at 156; Reel, at 6. 131 Guy, at 157. 132 Guy, at 157-60; Reel, at 37 et seq. 133 Reel, at 77-84.

52 • Defense in International Criminal Proceedings The charges against General Yamashita eventually focused on a single legal question, despite the complexity of the charging document. It asserted that during the approximately one-year period he was in command of the Japanese forces in the Philippines, the General "unlawfully disregarded and failed to discharge his duty as commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against the people of the United States and its allies and dependencies, particularly the Philippines, and he, General Tomoyuki Yamashita, thereby violated the laws ofwar."134 The charges as to when, where and how he had failed to act were contained in the 124 specifications served on the defense, some on the opening day of trial. When the defense objected to the vagueness of the charge at the arraignment, the prosecution responded that the objection might be "appropriate in a court of law, but certainly not in this proceeding," and the commission ordered the trial to proceed.l'v The central issue in the Yamashita trial was one that has become a cornerstone of many subsequent war crimes prosecutions, but one that was virtually unknown at the time.l'" The issue was one of command responsibility, the duty of a commander to control his troops by assuring that only lawful orders are given and carried out. The legal answer for that responsibility is easy when the commander actually gives an order to commit violations of the law, although the issue of individual responsibility for international crimes was still in flux in the post-war period. The central legal question in the Yamashita case, one that continues to be debated today, is the extent to which a commander can be held responsible when he knows or should have known of violations of the laws of war or the commission of other crimes by troops under his command and either intentionally or negligently fails to take steps to stop or prevent further such violations. The prosecution argued that Yamashita either secretly ordered or must have known of the crimes committed by his troops, given their widespread and systematic nature.!"? The defense theory was that the general had specifically ordered his troops not to commit such crimes. Moreover, if troops under his command were engaged in wrongdoing, he could not have known of these crimes for three reasons. First, many of the worst offenses occurred in the city of Manila. Although he ordered his troops to evacuate the city, and they did so, the Japanese Navy remained there against his orders, and it was the Navy that had committed the wrongs. Second, the alleged atrocities occurred in diffuse geographic locations far from his command headquarters. Third, the explicit strategy of the U.S. assault was to disrupt communication within the Japanese command structure. 138 At the conclusion of the testimony of some 200 witnesses over 20 days of trial.l''" the commission rendered its verdict on December 7, 1945, exactly four years after the Japanese bombed Pearl Harbor. The commission concluded that "methodically superId. at 32. Id. at 33. 136 One of the strongest critics of Captain Reel's account of the Yamashita proceedings provides a concise history of command responsibility in humanitarian law before World War II. Major William H. Parks, "Command Responsibility for War Crimes," 62 Mil. L. Rev. 1,2-20 (1973). 137 See the written opinion of the Commission, excerpted in ide at 30. 138 Reel, at 151-64. 139 Id. at 4. 134 135

History of the Role of Defense Counsel • 53 vised" atrocities were committed by Japanese forces under Yamashita's command, and that during the time of his command, General Yamashita "failed to provide effective control of [his] troops as was required by the circumstances." Despite an explicit mandate from General MacArthur prohibiting appeals of the commission judgment other than to himself.l-" the defense team challenged the commission's vague and conclusive decision by appealing, first to the Philippine courts and then, via habeas corpus and mandamus, to the u.s. Supreme Court. Captain Reel and two of his co-counsel argued the Yamashita case in the Supreme Court on January 7 and 8, 1946. On February 4, 1946, the Court denied the writs and upheld the conviction by a vote of six to two; Justice Robert Jackson, the chief prosecutor at Nuremberg, recused himself from consideration of the case.!"! The decision included strong, indeed bitter dissents fromJustices Murphy and Rutledge. The strongest condemnations came from Murphy, a former governor of the Philippines prior to his taking the bench.l-? who concluded that the conviction conveyed the following message to General Yamashita and to the world: We, the victorious American forces, have done everything possible to destroy and disorganize your lines of communication, your effective control of your personnel, your ability to wage war. In those respects we have succeeded. We have defeated and crushed your forces. And now we charge and condemn you for having been inefficient in maintaining control of your troops during the period when we were so effectively beseiging and eliminating your forces and blocking your ability to maintain effective control. Many terrible atrocities were committed by your disorganized troops. Because these atrocities were so widespread we will not bother to charge or prove that you committed, ordered or condoned any of them. We will assume that they must have resulted from your inefficiency and negligence as a commander. In short, we charge you with the crime of inefficiency in controlling your troops. We will judge the discharge of your duties by the disorganization which we ourselves created in large part. Our standards ofjudgment are whatever we wish to make them.U'' Justice Rutledge finished his dissenting opinion with a quote from Thomas Paine that continues to resound for all accused of the most serious crimes: "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."144 While the issue was settled as a matter of law, history has been less kind to the Supreme Court majority's view, and many strong critics now see the Yamashita precedent as having gone too far in finding command responsibility.l-> One of the best known authorities on the his140 If the regulations drafted for the proceedings had been followed, appeal would have followed from the decision of the commission to General MacArthur. The defense team sought and obtained a stay from the U.S. Supreme Court before MacArthur could intervene. Lael, at 99-100; Reel, at 203-05. 141 In re Yamashita, 327 U.S. 1 (1946). 142 Reel, at 222. 143 In re Yamashita, at 35. 144 Id. at 81. 145 See, e.g., Christopher N. Crowe, "Command Responsibility in the Former Yugoslavia: the Chances for Successful Prosecution," 29 U. Rich. L. Rev. 191,208 (1994); but see, Smidt, at 200-01 (arguing that the Yamashita "knew or should have known" test is the prevailing expression of customary international law) .

54 • Defense in International Criminal Proceedings tory of war crimes prosecutions, Professor CherifBassiouni, calls the case "a blot on the history of Americanjustice."146 The military commission sentenced General Yamashita to death by hanging. After a brief and relatively cursory review of the conviction by General MacArthur following denial of review by the Supreme Court, Yamashita was hanged at 3:00 a.m. on the morning of February 23, 1946, in the Philippine town of Los Banos, about 35 miles outside of Manila. His last words were, "I will pray for the Emperor's long life and his prosperity forever."147 At the close of his case and before sentence was imposed, General Yamashita was asked if he had anything to say. He spoke briefly, and concluded by stating that he wished to express his "gratitude to the United States of America for having accorded to an enemy general the unstinted services of a staff of brilliant, conscientious, and upright American officers and gentlemen as defense counsel."148 In his Supreme Court dissent, Justice Rutledge wrote the following extended praise for the work of the defense: [General Yamashita] has been represented by able counsel, officers of the army he fought. Their difficult assignment has been done with extraordinary fidelity, not only to the accused, but to their high conception of military justice, always to be administered in subordination to the Constitution and consistent Acts of Congress and treaties. But, as will appear, even this conceded shield was taken away in much of its value, by denial of reasonable opportunity for them to perform their function.l-? One of the most outspoken defenders of the outcome in the Yamashita trial, Major William Parks, on the other hand, asserts that the controversy over the outcome of the proceedings is due to the novelty of the concept of war crimes trials, the "ill-worded" opinion of the military commission and the book written by Captain Reel. 150 If that assessment is accurate, Reel's most significant contribution to history may have been his outspoken attempts to tell his client's story, even after Yamashita's death. Reel and the other defense lawyers representing Yamashita went well beyond what anyone expected of them, and took steps during the trial and after it, such as the petition to the U.S. Supreme Court, which not only annoyed or even disobeyed superior officers but may have jeopardized their professional careers. Although they did not, and almost certainly could not, gain an acquittal for their client, they made the case a close moral and legal question that continues to be debated today. There are few other judgments of the performance of defense counsel from which to draw, but the Rutledge dissent points to one of the central concerns raised in this chapter about the provision of defense counsel. Whatever may be the skills or dedication of the defense lawyer to the client, operating rules imposed by the tribunal can severely hinder and even cripple the defense from effectively performing its duties. One author of an extended critique of the trial, Richard Lael, reflected thoughtfully on the issue of enforced speed in the conduct of the proceedings and its impact on the defense. Speed, he asserts, "sparked a series of questionable rulings by [the military commission], 146 147 148 149 150

Bassiouni, at 534. Reel, at 239. Lawrence Taylor, A Trial of Generals: Homma, Yamashita, MacArthur 132 (1981). In re Yamashita, at 45. Parks, at 22.

History of the Role of Defense Counsel • 55 including its decision to receive affidavits into evidence without accompanying oral testimony, its instructions to defense counsel to shorten its cross-examinations, and its orders that no criticism could be made in open court of inaccurate translations by the official interpreters. "151 Here, the untrained Tribunal, their operating rules and strict enforcement by that body, and the generally hostile atmosphere faced by the defendant all contributed to inhibit defense counsel from performing their duties, as was exhaustively documented in the dissents from denial of Supreme Court review by Justices Murphy and Rutledge. Given the odds, Captain Reel's unstinting devotion and zeal on behalf of his client can only be applauded. While it is difficult to assess the impact of race and culture on this trial, or on public attitudes about the Japanese war trials more broadly, it is clear in historical perspective that there were racial dimensions to the Yamashita trial that did not exist in the Nuremberg context. General Yamashita was represented by soldiers from an enemy army, all white males, and none of whom spoke Japanese. Yamashita himself neither spoke nor understood English. In their accounts of the events, Reel and Guy both became convinced of the General's innocence of the charges. Both men appear to have represented him as zealously as any lawyer could under the circumstances. Yet there is more than a slight undercurrent of racial stereotyping, even in their accounts. Reel recounts that while waiting to meet his client for the first time, he realized that none of the defense team "had ever been well acquainted with anyJapanese," and wondered whether "the common belief that they were likely to be 'tricky,' evasive, and unreliable" was propaganda or truth.V? Guy describes his first impressions of the General, noting that "his head seemed to be unusually large" for aJapanese person, that his nose was "large and not flat as was true with so manyJapanese," and that his eyes "were deep and expressive and without the usual oriental slant."153 Ironically, Yamashita's interpreter, Masakatsu Hamamoto, also aJapanese soldier, had graduated from Harvard in 1927, and he flawlessly performed English interpretation throughout the trial. Hamamoto provided a cultural bridge betweenJapanese and u.S. thought, mores and psychology.l>' Frank Reel continued to write and criticize the u.S. government on aspects of war crimes command responsibility at least into the Vietnam War era,155 and died in April 2000 in Norfolk, Virginia at the age of 92. 156

Lael, at 138. Reel, at 13. 153 Guy, at 155. In her account of the Yamashita proceedings, Ann Marie Prevost is more explicit about the role of racism. She notes, for example, that when Yamashita and his troops traveled through the jungle at great speed to capture the British fortifications at Singapore, the British magazine Punch depicted the Japanese troops as apes swinging through the trees. Ann Marie Prevost, "Race and War Crimes: The 1945 War Crimes Trial of General Tomoyuki Yamashita," 14 Hum. Rts. Q. 303, 308 (1992). 154 Reel, at 13-15. 155 A. Frank Reel, "Must We Hang Nixon Too?," 34 The Progressive 26 (Mar. 1970). 156 "A. Frank Reel, Japanese War-Crimes Trial Lawyer, Dies," Japan Policy & Politics, Apr. 17,2000. 151 152

56 • Defense in International Criminal Proceedings

3.5.3.

Post-War Efforts to Create an International Criminal Tribunal

At the same time that the major war crimes tribunals came into being, the international community began efforts to establish a more permanent international mechanism for the trial of genocide and major war crimes. The text of the Genocide Convention, adopted in 1948, called for trial before "such international penal tribunal as may havejurisdiction."157 The International Law Commission began work in 1950 to create a permanent international criminal court.l-" but that work was to continue through many iterations and struggles until the eventual creation of the International Criminal Court in 1998. In the meantime, trials for war crimes and crimes under international criminal law continued at the domestic level.

3.6. DOMESTIC TRIALS FOR INTERNATIONAL AND WAR CRIMES Some scholars suggest that there was little activity with regard to war crimes and international criminal law between the Nuremberg and Tokyo trials and the creation of the first ad hoc tribunals in 1993. Nothing could be more incorrect. There is a rich national experience of such trials in the interim, some of which will be explored in this section with regard to the role of the defense in such national proceedings. Many of these trials are national prosecutions of criminal conduct alleged to have occurred during World War II, and such prosecutions have continued even today. Others are for crimes committed during subsequent internal or international armed conflicts. Israel provides examples of one of the earliest and one of the most recent high-profile national prosecutions, with the trials of Adolf Eichmann in the early 1960s, and the much more recent trial and appeals, between 1986 and 1993, of John Demjanjuk, alleged to be "Ivan the Terrible," a notorious concentration camp guard at the Treblinka and Sobibor death camps of World War II. These trials not only provide a perspective into the lives of the individuals on trial, but into the life of a country whose national identity was still in formation in the early 1960s, but which had fully matured into a mature nation of laws, capable of sustaining the blow of the overturning of the Demjanjuk conviction by the Israeli Supreme Court.l''? The trial of Adolf Eichmann, however, some 30 years before, provides a unique body of information not only on what Hannah Arendt appropriately called "the banality of evil," but into the work of his defense lawyer, Robert Servatius.l'v

157 Convention on the Prevention and Punishment of the Crime of Genocide, 78 D.N.T.S. 277 (1948), at Article VI. 158 Timothy L.H. McCormack, "From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime," in The Law of War Crimes: National and International Approaches 31, 59-62 (Timothy L.H. McCormack & Gerry J. Simpson eds., 1997). 159 A brief account of both proceedings is given in Jonathan M. Wenig, "Enforcing the Lessons of History: Israel Judges the Holocaust," in The Law of War Crimes, id., at 103. 160 Hannah Arendt, Eichmann In Jerusalem: A Report on the Banality of Evil 21 (1963). It is now almost impossible to conceive of the Eichmann trial without reference to the Arendt critique of it, which appeared in The New Yorker magazine in several segments, contemporaneously to the event. Aside from her account, there are precious few sources that make any reference at all to Robert Servatius and his representation of the accused.

History of the Role of Defense Counsel • 57

3.6.1.

Profile: Robert Servatius, Defense Counsel for Adolf Eichmann in Jerusalem, 1961-62

Palestine became a protectorate of Britain after the First World War, in 1917, and the Palestinian territory achieved its statehood as Israel on May 14, 1948. Almost exactly 12 years later, on May 11, 1960, "as Israel was celebrating its Bat Mitzva,"161 agents of Israel's security service, Mossad, kidnapped Adolf Eichmann in Argentina. Mossad agents interrogated him for over a week and flew him to Israel to face trial for his role as a principal architect of the "final solution to the Jewish question," the formal policy of the Third Reich to exterminate allJews in Europe.l'< Adolf Eichmann began his ascendancy through the Nazi hierarchy in 1939, when he forced 150,000 Jews out of Austria-60 percent of its Jewish population-in 18 months.l'f After implementing Nazi policy on the physical separation ofJews into ghettos in several Central European cities, Eichmann was instructed to draw up plans for the "final solution," a policy that was adopted by 15 high-ranking Reich officials, including Eichmann, at the Wannsee Conference in January of 1942. He resisted the safe emigration ofJews, particularly to Palestine, and was involved in almost all of the activities of the extermination process, including the decision to substitute Zyklon B gas vans for shooting as a more efficient means of killing. In 1944, as head ofJewish Affairs and Evacuation in the Reich security services, he supervised the deportation of more than 400,000 HungarianJews to Auschwitz after Reichsfuhrer Heinrich Himmler had ordered the facility to be closed down.lv' Many of these facts came to judicial light at the Nuremberg proceedings through the testimony of a prosecution witness, SS Captain Dieter Wisliceny, one of Eichmann's chief assistants.l'" By this time, though, Eichmann had made his escape from Germany with the help of Odessa and Die Spinne (The Spider), two organizations of ex-Nazis that helped him to emigrate safely to Argentina. There, he lived and worked under an assumed name as foreman of a Mercedes-Benz auto firm in Buenos Aires. The Argentine government obviously was aware of his presence; he often used his real name and even gave an interview to Life magazine on the eve of his kidnapping by Mossad.lv" Aside from the legal issues that arose from Eichmann's kidnapping by Israeli agents, the action provoked a political firestorm for adolescent Israel. Argentina quickly converted the issue from one in which they had to defend the undetected presence of a notorious Nazi, who openly bragged of his deeds, into one of an invasion of national sovereignty. This was particularly true, Argentina argued, where there was no showing

161 Pnina Lahav, "The Eichmann Trial, the Jewish Question, and the American-Jewish Intelligentsia," 72 B.U. L. Rev. 555, 558 (1992). 162 Matthew Lippman, "The Trial of Adolf Eichmann and the Protection of Universal Human Rights Under International Law," 5 Hous.J. Int'l L. 1,6 (1982). For some time after the kidnapping, the Israeli government denied official involvement in the kidnapping, asserting that it had been carried out by "volunteers." Id. at 6, n.28. An account by the Mossad officers who carried out the manhunt and apprehension of Eichmann is provided in Zvi Aharoni and Wilhelm Dietl, Operation Eichmann: The Truth About the Pursuit, Capture and Trial (1997). 163 Lippman, at 2. 164 Id. at 2-4. 165 Id. at 5; Sprecher, at 362-64. 166 Lippman, at 5-6. See also "Eichmann Tells His Own Damning Story," Life, Nov. 28 and Dec. 5, 1960.

58 • Defense in International Criminal Proceedings that Israel had a superior right to that of any country other than Germany, where the crimes had occurred, to try Eichmann for his alleged crimes. After an initial exchange of notes that left the Argentines unhappy with Israeli unwillingness to return Eichmann to Argentina as a form of reparations, Argentina put the matter to the United Nations Security Council for resolution.l''? Golda Meir, then Israel's ambassador to the United Nations, made the case for Israel in the Security Council, calling the abduction "an isolated violation of Argentine law" that "must be seen in the light of the exceptional and unique character of the crimes attributed to Eichmann."168 The matter was settled by a compromise resolution that ultimately made an apology from Israel "adequate reparation" to Argentina for the kidnapping. The Security Council reached no conclusions on the issues of violation of sovereignty or the legality of the kidnapping.tv? Eichmann was brought to Israel on May 20, 1960. His trial, which was televised throughout Israel, began almost a year later, on April 11, 1961, and lasted eight months until December of that year. Eichmann was charged under the domestic law of Israel with 15 counts, including war crimes and then-novel crimes against humanity.P? He was charged under the Nazi and Nazi Collaborators (Punishment) Law, which incorporated the crimes against humanity provision of the Nuremberg Charter, and also included a section called Crimes Against the Jewish People, which punished genocide as one type of crime against humanity."?' Eichmann was offered three choices of counsel onJuly 14, 1960, six weeks after the police had begun their examination of him. He chose between Robert Servatius, who had been recommended by his family; another German lawyer who then resided in Chile; and an American law firm in New York. 172 He immediately chose Servatius, a private practitioner from Cologne, Germany who specialized in tax and business law and never joined the Nazi party.173 Eichmann knew of Servatius' extensive previous work in the Nuremberg subsequent proceedings. The lawyer had represented the Leadership Corps of the Nazi party, charged organizationally for its crimes, Fritz Saukel, Hitler's labor minister, at the Nuremberg subsequent proceedings and Karl Brandt, Hitler's personal physician and chief of the euthanasia program.I?" Almost as soon as he had picked his counsel, Eichmann was reported to have had second thoughts. He told authorities that Servatius alone could not digest all of the material in what Eichmann characterized as a "monster process" with a potentially worldwide audience. He was reassured when he was reminded that Servatius himself had written that he would head "a group of attorneys," and the police assured Eichmann that Servatius would not appear alone.l-" While Servatius was assisted by Dr. Dieter Wechtenbruch, who attended the first few weeks of the trial, was sent to Germany to

Lippman, at 7-8. Id. at 9. 169 Id. at 9-11. 170 Arendt, at 21. 171 Matthew Lippman, "Crimes Against Humanity," 17 B.C. Third World LJ. 171,240 (1997). 172 Servatius had called the family to offer his services. The authorities revealed no other names than that of Servatius. Arendt, at 243. 173 Id. at 69. 174 Sprecher, at 82, 126; Arendt, at 69-70. 175 Id. at 243-44. 167

168

History of the Role of Defense Counsel • 59 conduct investigations, and returned in August of 1961,176 Hannah Arendt appropriately observed that "Eichmann became the chief assistant to his own defense counsel" and worked very hard on his defense throughout the trial.!"? She notes in her otherwise generally unsympathetic account that "the chief handicap of the defense, at Nuremberg as atJerusalem, was that it lacked the staff of trained research assistants needed to go through the mass of documents and find whatever might be useful in the case."178 Servatius continued to work alone through the appeal as well.!"? Though selected by the defendant, the government of Israel paid Servatius, much as the Allies paid for German defense counsel's expenses at Nuremberg. Although Servatius said publicly that he had taken the case "to make money," and that his representation was a "mere business matter,"180 this seems unlikely, as his total payment by that government was $30,000. 181 Eichmann asserted as his principal defense that he was "a transportation export who was merely following orders."182 At his arraignment, he pled not guilty "in the sense of the indictment,"183 and he and his lawyer asserted that he was guilty "from a human point of view" but not on legal grounds. 184 In the defense case, only one witness testified: Eichmann himself. One observer suggests that this was for practical reasons. "The accused, having no financial resources, could not properly defend himself, and no witness would come along on his behalf for fear of being arrested and prosecuted on similar charges."185 Documentary challenges, however, abounded. Servatius exercised a series of technical and procedural challenges, preferring not to focus on the evidence itself. He argued that the judges who heard the case were not

176 Arendt, at 145. There is some passing reference to an assistant in the Arendt account, but this is the only reference by name that I could find. It appears that Wechtenbruch played no significant role in the proceedings or outcome; Arendt states that "Dr. Servatius, as it turned out, appeared quite alone most of the time." Id. at 244. 177 Id. 178 Id. at 221. Arendt made this comment in the context of her observation that the prosecution submitted 1,500 documents at the trial, while the defense offered only 110. She observed that the absence of defense access to documents refuted Israel's assertion that it was the most suitable place for a trial because documents and witnesses were more abundant there than in any other country. Id. 179 Id. at 248. 180 Id. at 21,222. 181 Arendt puts the figure at $20,000, and notes that the Eichmann family, in Linz, Germany paid him another 15,000 marks. She also asserts that Servatius complained that he had hoped to sell Eichmann's memoirs. Id. at 222. The $30,000 figure is reported in two separate sources. Lippman, Trial of Eichmann, at 16, n.87. Lippman notes that the Israeli Knesset had to pass special legislation to permit Servatius to appear before Israeli courts; Moshe Pearlman, The Capture and Trial of Adolf Eichmann 87 (1963). After his taking on the duties of counsel, Servatius made a request that West Germany extradite Eichmann to stand trial there, or, in the alternative, that it pay the expenses of the defense. The Bonn government refused, asserting that Eichmann was not a German national. Arendt, at 34. 182 Lippman, Trial of Eichmann, at 2. 183 Arendt, at 21. 184 Id.; Lippman, Trial of Eichmann, at 2, n.4. 185 D. Lasok, "The Eichmann Trial," 11 Int'l & Compo L.Q. 355, 359-60 (1962).

60 • Defense in International Criminal Proceedings sufficiently neutral and should recuse thcmsclves.l'" that the abduction from Argentina was illegal under international law and denied the court in personam jurisdiction over the defendant; that extraterritorial jurisdiction could not lie against a defendant accused of crimes committed before the state of Israel came into being; that universaljurisdiction did not provide a justification for Israel's attempt to try Eichmann for crimes allegedly committed in Germany and other European countries; that any attempt to apply the Nazi and Nazi Collaborators (Punishment) Act retroactively would fall afoul of the principle of nullum crimen sine lege; that Eichmann was protected in his actions by the act of state doctrine and the defense of superior orders.l''? that the statute of limitations on the offenses in question had run out in Argentinajust prior to Eichmann's kidnapping; and that the death penalty was barred because it had been abolished in Germany, where he more appropriately could have been tried.l'" None of the lawyer's procedural gambits actually denied guilt of the offenses charged, but each was viable to some greater or lesser degree, given the state of development of international criminal law at the time. Each of these defenses was rejected by both the Jerusalem District Court and on appeal to the Israeli Supreme Court. Hannah Arendt, one of the strongest critics of the failure by Israel to honor fair trial guarantees, concluded that Israel should not have freed Eichmann or turned him over to Argentina on the slim chance that he would be extradited to Germany, but should have assassinated him on the streets of Buenos Aires. The assassins would surely have been acquitted, she argued, wherever they stood trial.P? Eichmann was convicted on all counts and sentenced to death by hanging on December 15, 1961. In a lengthy statement to the court that continued to assert his innocence, Eichmann concluded by stating, "I thank my defence lawyer who made himself responsible for my rights."19o The Supreme Court affirmed his conviction on May 29,1962. The President of Israel, Itzhak Ben-Zvi, rejected a plea for mercy on May 31, and Eichmann was hanged a few hours later, shortly before midnight.!"! His last words were, "Long live Germany. Long live Austria. Long live Argentina. Those are the three countries to which I had the closest ties. I will not forget them. I greet my wife, my family and my friends. I was required to obey the laws of war and of my flag. I am prepared."192 He was cremated and his ashes were scattered over the Mediterranean Sea outside of Israeli territorial waters.l'" In his role as Eichmann's defense counsel, Robert Servatius shared none of that client loyalty that can be seen by Army Captain Frank Reel for his client, General Yamashita, part of the army of the enemy. Servatius was reckless in his condemnation of his client while not in court, referring to him before trial as "small fry" with the per-

186 All three of the trial court judges had emigrated to Palestine in 1933 when it was under British mandate. Lippman, at 16, n.87. 187 Lippman, at 17-28. 188 Arendt, at 247. 189 Id. at 264-66. 190 Paul Rassinier, "The Eichmann Trial or The New Master Singers of Nuremberg," at http://www.heretical.com/miscella/eichmann.html. 191 Arendt, at 248-49. 192 Aharoni & Dietl, at 173. 193 Arendt, at 250.

History of the Role of Defense Counsel • 61

sonality of a "common mailman."194 During the trial, he once told the press that "like a good wife, Mrs. Eichmann had no doubt sat at home knitting while her husband had gone about his grisly business."195 Servatius was a lawyer trained in the civil law tradition, and was unacquainted with the adversarial system used in both Nuremberg and Israel. Nonetheless, his passivity at trial was noteworthy. Arendt summarizes this attitude by noting that the defense "hardly ever rose to challenge any testimony, no matter how irrelevant or immaterial it might be."196 Another observer noted that an assistant to Servatius attended to foreign testimony from former Nazis, taken in Germany. "Not always, to everyone's surprise," concludes the author, "was this testimony helpful to Eichmann."197 Moreover, rather than adopt the highly polished and professional style of Otto Kranzbuhler in his defense of Doenitz at Nuremberg, Servatius, like his client, adopted a chilling "objectivity" in his analysis of why the Nazi high command took steps towards extermination. Hanna Arendt, in her perceptive coverage of the Eichmann trial, concludes that this "objective" attitude could be distinguished from "emotional" positions adopted by the more strident and outspokenly fascist views of certain party leaders. Eichmann and his lawyer were the epitome of "objectivity." His breathtaking emotional distance from the reality of the Holocaust was apparent in Servatius' closing argument, in which he characterized killings by gas as a "medical matter." When interrupted by the court and asked if his statement had not been a "slip of the tongue," Servatius replied: "It was indeed a medical matter, since it was prepared by physicians; it was a matter of killing, and killing, too, is a medical matter."198 Perhaps the most charitable evaluation of Servatius' performance was that of the prosecutor, Gideon Hausner. He characterized the relationship with the defense team as "professional," a "workable arrangement to get our respective jobs done." On legal issues, however, Hausner asserts that "we found our adversaries militant and resourceful." At the time of the appeal, which he handled as well, Servatius was said by Hausner to have told the reviewing court that "the accused had received a fair trial." Hausner notes that Servatius left the country the day of the reviewing court's decision, again telling the press that "the trial was fair."199

3.6.2.

Other National Trials for International Crimes Since World War II

The previous sections points to two important post-war prosecutions in Israel, those in the Eichmann and Demjanjuk cases. Similar prosecutions have occurred throughout

Arendt, at 145. Pearlman, at 94. 196 Arendt, at 9. 197 Pearlman, at 108. 198 Arendt, at 69. Servatius adopted a similar position in his defense of Karl Brandt, the physician in charge of the euthanasia program during the war. In that trial, he argued on Brandt's behalf: "Who would not have the desire to die while in good health rather than to be forced by all the resources of medical science to continue life degraded to an animal's existence! Only misguided civilization keeps such beings alive; in the normal struggle for existence Nature is more charitable." Quoted in Rita L. Marker, et al., "Euthanasia: A Historical Overview," 2 Md.J. Comtemp. Legal Issues 257,270, n.77 (1991). 199 Gideon Hausner, Justice In Jerusalem 437, 444 (1966). 194 195

62 • Defense in International Criminal Proceedings both Western and Eastern Europe, Australia and Canada.s?" Professor CherifBassiouni, a prodigious chronicler of crimes against humanity, notes that some 60,000 prosecutions of war criminals took place in Germany between 1947 and 1990. 201 Bassiouni also notes that prosecution of war crimes has an element of selective enforcement, remembering particularly the failed efforts to prosecute Pakistani soldiers for war crimes in the Bangladesh war ofindependence. 202 Until very recently, the prospects seemed dim for a tribunal to try international crimes committed by the Khmer Rouge regime in Cambodia. This most recent "hybrid" national tribunal, working in conjunction with the United Nations, provides that "the right to defence counsel ... mean [s] that the accused has the right to engage counsel of his or her own choosing as guaranteed by the International Covenant on Civil and Political Rights."203 Other trials in national courts have occurred under the principle of universal jurisdiction, which permits trial by any country for certain serious international crimes, regardless of where the crimes occurred. Recent examples are the prosecution and conviction of Rwandan nuns in Belgium for their role in the Rwandan genocide,204 or more recently, the trial in Spain of Argentine naval officer Adolfo Scilingo for his role in the Argentine "Dirty Wars."205 These trial demonstrate that there is no absence of interest by national authorities in the trial of international and war crimes, even with the creation of a permanent international criminal court. These national trials, however, generally fail to provide any information as to who acts as defense counsel, how that person became involved in the defense and whether that lawyer was provided as part of a system for providing defense counsel in such cases, or through the general operation of criminal procedure in the particular country. One exception to that absence of information is the trial of Klaus Barbie in France in 1982. The literature on that trial provides us with exceptional access to information about the work of defense counsel, and provides us with the last profile in this chapter, that of Barbie's principal defense counsel,Jacques Verges.

3.6.3.

Profile: Jacques Verges, Defense Counsel for Klaus Barbie in French Domestic Court, 1987

When Klaus Barbie was reassigned by the Gestapo to Lyon, France in November 1942, he had two tasks: dismantling the city's active Resistance organization and ridding the city of all Jews. He took on both tasks with brutal dedication during the following 21 months. He oversaw the deportation of thousands ofJews and resistants, most of whom would never return. His reign of terror earned him the nickname "the Butcher of Lyon."206

200 The individual trials and policies of these countries are set out in detail in The Law of War Crimes. 201 Bassiouni, at 543. 202 Id. at 549-50. 203 United Nations, Resolution Adopted by the General Assembly: Khmer Rouge Trials, A/RES/57/228 B, May 22, 2003, at Article 13(2). 204 BBC News, "Nuns Jailed for Genocide Role," June 8, 2001, at http://news.bbc.co .uk/ 1/hi/world/europe/1376692.stm. 205 Al Goodman, "'Dirty War' Trial Begins in Spain," Jan. 14, 2005, at http://www.cnn.com /2005 /WORLD / europe/O1/14/spain.argentine! 206 Jewish Virtual Library, "The Trial of Klaus Barbie," at http://www.jewishvirtuallibrary. org/jsource/Rolocaust/barbietrial.h tml.

History of the Role of Defense Counsel • 63 Barbie escaped before the end of the war only because he was evacuated to a military hospital in Germany in August of 1944. After the war, Barbie and other former SS officers formed a clandestine organization with virulent anti-Communist views, and the group planned to approach the British and Americans to offer their services in the new Cold War. The American Counter-Intelligence Corps, however, infiltrated the group and arrested all of its leaders, with the exception of Barbie, who escaped and made his way to Bolivia. Barbie was to spend 40 years in hiding outside of Germany before his arrest and extradition to France in 1983, after years of legal wrangling between France and Bolivia. 207 Even after he arrived in France in 1983, it would be another four years before Barbie's trail got underway. Much of the pre-trial activity focused on two issues: the scope of charges that could be brought and who would represent Barbie. Commentators point to the limitations of French law regarding crimes against humanity as the primary reason for legal limitations on charges. 208 Barbie had already been convicted twice in absentia, and had been sentenced to death both times, thus limiting his prosecution under French law to crimes for which he had not been tried previously. Moreover, when the prosecuting judge asked the public to come forward with personal charges against Barbie, a total of 42 lawyers representing different factions came forward. These groups split into two hostile camps, those who believed that the most important charges were Barbie's murders and torture against the Resistance, and those who wanted him punished for his role in the Final Solution.w? Barbie faced eight charges when he arrived in France, but the prosecution was forced to narrow those charges to only three, all for the deportation ofJews as crimes against humanity under French law: one group of 90 seized at aJewish community center, some 300 who were sent from Lyon as the Germans withdrew, and a group that included 52 children known as the children of Izieu, a small village outside of Lyon. 210 The scope of the trial was therefore limited to a small number of crimes among the thousands of individuals victimized by Barbie during his tenure in Lyon. The struggle to decide who would defend Klaus Barbie, however, was to prove even more daunting than settling on the charges, and provides a window into some of the abiding tensions between the political and the legal in defense strategy. The first lawyer to step up for the defense was Alain de la Servette, president of the Lyon Bar Association. Like many other French lawyers who had volunteered, de la Servette, an acknowledged liberal of "impeccable reputation," recognized the potential benefit to his career, but he professed to want only a fair trial. De la Servette, by one account, "believed he was the most qualified to defend Barbie because he had experience, because he avoided politics, and because he had a sense ofjudicial fairness."211 As president of the bar, he had the responsibility to pick a lawyer for Barbie, and he picked himself.

Id. Guyora Binder, "Representing Nazism: Advocacy and Identity at the Trial of Klaus Barbie," 98 Yale L.J. 1321, 1329-35 (1989); Jean-Olivier Viout, "The Klaus Barbie Trial and Crimes Against Humanity," 3 Hofstra L. & Pol'y Symp. 155 (1999). 209 The Trial of Klaus Barbie, at 25. 210 Binder, at 1336; The Trial of Klaus Barbie, at 26. 211 The Trial of Klaus Barbie, at 17. 207

208

64 • Defense in International Criminal Proceedings De la Servette immediately brought another lawyer into the case. Robert Boyer was a well-known priest-turned-lawyer, whom de la Servette brought into the case to offset the strong condemnation of Barbie by the Catholic Church. The issue became much more complicated and more politicized when Francois Genoud, a Swiss businessman who had openly Nazi sympathies, offered to take over the costs of Barbie's defense and give advice to the defense team. Genoud began to work closely with the team, and after some time, he began to lobby for the inclusion of another well-known French advocate, Jacques Verges. Verges was to take over Barbie's defense with motives completely distinct from the fair trial goals of de la Servette and Boyer. His objective was not justice but memory-his intent was to put the French nation on trial for its own wrongs, both in its colonial repression of Algeria and in its collaboration with the Nazis during the war. The more loudly Verges denounced the French in the press, the less de la Servette and Boyer found a place for a quiet but fair trial. OnJune 15, 1983, the two resigned and left the defense totally to Verges and his colleagues. Verges was certainly no stranger to this style of trial strategy. Born in 1925 to a French father and Vietnamese mother in Thailand, he joined the French resistance at age 17. While later studying at the Sorbonne, he became president of the Association for Colonial Students and befriended another student, Pol Pot, the Cambodian strongman who was to be his friend for life. He worked for the Communist party in Prague for four years in the early 1950s, then returned to France to begin his law practice by taking the most controversial cases he could get. His first major success was his defense of a group of communist militants who tried to disrupt a trainload of draftees headed for Algeria. He made his name based on both his clients and his style. He defended men and women accused of terrorist acts against France, and his strategy was to disrupt the proceedings and get public attention for the issues. His successful defense of Djamila Bouhired, a 20-year-old Algerian accused of bombing cafes in Algiers frequented by Europeans, gained him national fame and a wife; he and Bouhired married when she was freed in 1962. He lost his law license and spent two months in prison for his disruptive tactics in cases related to the French occupation of Algiers, and later gained the nickname "Monsieur Guillotine" for his often unsuccessful defense of those sentenced to death for their crimes by either the French establishment or Israel, a new enemy for him. When Genoud called him to step into the Barbie case, Verges was ready for his next public challenge. 212 The trial of Klaus Barbie was at least as much about his primary lawyer as it was about Barbie's crimes. To assert this is not to diminish the enormity of Barbie's crimes, but to note that all of the historic accounts of the event focus at least as much on his lawyer's behavior and strategy, in which Barbie and his wishes for representation were relatively unimportant. Verges was intent on putting France, and its collective amnesia, on trial. His trial team was made up of five persons, all from Third World countries, while the prosecution team was some 40 lawyers making up the various parties of the prosecution. The trial began on May 11, 1987, and was tried to a jury of nine young lay people who would sit together with the three trial judges as a jury at the close of the evidence.v'" 212 213

Jacques Verges, at http://members.aol.com/voyl/barbie/verges.htm. A contemporary account in Time magazine gives these numbers, which are more likely,

History of the Role of Defense Counsel • 65 The first day of trial was spent by the prosecutor reading through the potential crimes with which Barbie could be charged, a task that took the entire day. Barbie then took the stand himself, without swearing an oath of truth, as is the custom in much of the civil law tradition. Barbie began his exposition by asserting that he was only following orders, during which he was immediately silenced by Verges. Verges did not so much care that Barbie was incriminating himself, as that he was spoiling the opportunity that Verges had planned to carefully unpack the sins of France.s!" The next day, when Barbie again began his testimony with an assertion that he was still an "honest Nazi," Verges interrupted and had him read a statement in which he asserted that he had been illegally deported from Bolivia, and asking the court to permit him to absent himself from his own trial for the duration. The court, under French law, was obliged to follow that request, and Barbie left the courtroom in the exclusive control of his lawyer for the duration of his trial until sentencing. There is no indication that Verges ever acquired his client's consent to take the action of removing him from the courtroom, and there is some evidence that Barbie himself was not aware of the strategy because he read the note silently to himself before reading it out loud.v'> After that, the entire trial, through four weeks and more than 60 prosecution witnesses, was not about Barbie's wrongs, but about the wrongs of the French in collaboration, the wrongs of the French in their colonization of Algeria and Indochina, and the fabrication of claims against Barbie by the "Zionist ... and hitman," Serge Klarsfeld, who, with his wife, had discovered Barbie in Bolivia and gathered evidence against him. 216 When the time came for closing argument, Verges brought in two colleagues to assist. He was assisted in his arguments by Nabil Bouaita, an Algerian attorney, andJeanMartin M'Bemba, a Congolese attorney, who were there to make pleas for "the Arab people" and "the African people," respectively. It took the jurors only six hours to find Barbie guilty of all charges, which they did shortly after midnight on July 4, 1987. 217 After a short statement by Barbie, he was sentenced to life imprisonment, the maximum available to the court. Klaus Barbie died of cancer in prison on September 25, 1991. 218 Jacques Verges was hardly finished with his defense of Barbie. He continues to actively practice today, and his clients over the years have included some of the most controversial defendants in the modern world. In 1994, he defended Ilich Ramirez Sanchez, the Venezuelan terrorist known as "Carlos the Jackal";219 in 1996, he represented the Holocaust revisionist philosopher, Roger Garaudy;220 in 1999, he brought suit for the government of Togo against Amnesty International for its alleged fabricagiven the structure of French criminal procedure, than the 14 lay jurors acting alone, as described in The Trial of Klaus Barbie, at 26. William Dowell, "A Verdict on the Butcher," Time, July 13, 1987. 214 The Trial of Klaus Barbie, at 28-29. 215 Id. at 29. 216 Id. at 30-31. 217 Id. at 34. 218 Jewish Virtual Library, Klaus Barbie, at http://www.jewishvirtuallibrary.org/source /Holocaust/Barbie.html. 219 'Jackal's Jacques," The Economist, Aug. 27, 1994. 220 Jewish Bulletin of Northern California, "French Scholar Probed for Book Denying Holocaust," May 10,1996; DouglasJohnson, "French Historians and the Holocaust," 46 History Today, No. 10, Oct. 1, 1996.

66 • Defense in International Criminal Proceedings tion of a report of the disappearance of some 100 people by government officials.t-' and in 2000, he represented the Democratic Republic of Congo before the International Court ofJustice in its case arguing that Belgium could not properly arrest the DRC's sitting foreign minister.s'" More recently, he has provided advice to Serbian ex-President Slobodan Milosevic, has undertaken the representation of Saddam Hussein and Tarik Aziz in Iraq,223 and has brought suit against the United States in the French courts on behalf of Muhammad al-Ioundi, a Syrian driver taken hostage in Iraq by U.S. forces in Iraq and alleged to have been tortured while in custody. 224 Age has certainly not diminished his stamina or his dedication-he is now 80 years old. In 1994, The Economist called Jacques Verges "a strange character," and described him fittingly as follows: "Bespectacled and neatly dressed, with the Asian features of his Vietnamese mother, he loves to shock, cock a snook a the establishment, and cultivate his image as the enfant terrible of the French legal profession."225 A more considered portrait of Verges emerges in the lengthy and an insightful critique of the Barbie trial by U.S. scholar Guyora Binder. She sees Verges as displacing his client as the chief villain in the trial, and alternatively calls for narratives of Verges as Nazi, "Ironist," "Provocateur," "Prosecutor," and himself the prosecuted. Ultimately, it can be said, she finds Verges a tragic figure, one whose "cynical assumptions" reflect his own disillusionment. Worse still, she concludes, "Verges subordinates his clients to values in which even he no longer believes."226 Verges himself, when asked why he took on the case of Saddam Hussein, responded, "I am against lynching and lynching is the tendency of the people. And my pride is when a lynching is in preparation, to stand between the so-called criminals and the lynchers. "227 Professor Michael Tigar, no stranger to controversial clients himself, states that "I find comment that begin 'how could you possibly represent' to be offensive and (quite literally) impertinent, at least if lawyers make them." While he examines the case of Verges and concludes that he would not himself represent a Nazi, he agrees to struggle with the question. His answer is simple, elegant and appropriate as an ending to this chapter: "Once you make the choice to take any case ... the task is set: Figure out how to win.... When we think of crimes against humanity, we must remember that governments and government groups are the most dangerous criminals. They have the most power to inflict harm, and are the most likely to be recidivists. State-sponsored terrorism is the most dangerous brand, especially when it masquerades as justice."228 221 Honore YT. Blao, "Lawyers Prepare a Suit Against Amnesty International," Inter Press Service, June 9, 1999. 222 "ICJ Begins Hearing DRC Foreign Minister's Case," Panafrican News Agency, Nov. 20, 2000. 223 Both references are to "The Devil's Advocate," CBSNews.com, Apr. 25, 2004; Michael Radu, "Saddam Circus is Coming to Town: The Strange Story ofJacques Verges," Foreign Policy Research Institute, Apr. 14, 2004. 224 Bruce Zagaris, "Former Fallujah Resident Sues U.S. for Inhumane Treatment in French Courts," 21 Int'l Enforcement L. Rep. 125 (Mar. 2005). 225 'Jackal's Jacques," The Economist, Aug. 27, 1994. 226 Guyora Binder, "Representing Nazism: Advocacy and Identity at the Trial of Klaus Barbie," 98 Yale LJ. 1321, 1355-64 (1989). 227 "The Devil's Advocate," CBSNews.com, Apr. 25, 2004. 228 Michael E. Tigar, "The Most Impertinent Question," 29 Litigation 9 (Spring 2003). Professor Tigar represented John Demjanjuk, whose case is briefly mentioned in the text, and Terry Nichols, the domestic terrorist convicted of bombing the Oklahoma federal building.

CHAPTER 4

ICTV Monica Martinez and Michael Bohlander

A fool for a client Remarks on the freedom of choice and assignment of counsel at the ICTY

4.1. RIGHT TO COUNSELl Since 1993 there has been a proliferation of international or "internationalized" criminal courts, as evidenced by the creation of the ICTY, ICTR, ICC, Special Court for Sierra Leone, Cambodia, the Special Chambers in East Timor, the mixed panels in Kosovo and the new war crimes court in Bosnia-Herzegovina. This chapter deals with the position of the defense in one of those courts, the ICTY, and more specifically with the issue of how the freedom of choice of counsel can be reconciled with the requirements of the interests ofjustice in such complex proceedings. The developments in the cases of Milosevic and Seselj will likely have an impact in the other tribunals;" however for reasons of space, these are not treated here." The basic elements and the procedural structure of the law of the IClY are regulated by the Statute and the Rules of Procedure and Evidence (RPE). The structure is mostly adversarial. Admission to practice before the IClY is dealt with under Rule 44 RPE et seq.! The "constitutional" foundations of the defense before the IClY are to be found in Articles 20 and 21 of the Statute, and the sections relevant for our topic are:

Article 20 Commencement and conduct oftrial proceedings 1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with Section 4.1 was written by Michael Bohlander and is an adaption of an article by the same title in Criminal Law Forum (2005). He would like to thank Kluwer Academic Publishers for the permission to reproduce the article here. 2 The Milosevic jurisprudence has been applied, for example, by the Special Court for Sierra Leone in Prosecutor v. Samuel Hinga Norman, Decision on the application of Samuel Hinga Norman for self-representation under Article 17 (4) (d) of the Statute of the Special Court ofJune 8, 2004, at www.sc-sl.org/Documents/SCSL-04-14-T-125.pdf. 3 See, for more detailed information on the hybrid courts Michael Bohlander & Renate Winter, "Internationalisierte Strafgerichte auf nationaler Ebene-Kosovo, Kambodscha, Sierra Leone und Timor-Leste," in Stefan Kirsch ed., Internationale Strafgerichte (2005). 4 Seewww.un.org/icty in the folder "Basic Documents" for the latest version of the Statute and the RPE.

67

68 • Defense in International Criminal Proceedings

full respect for the rights of the accused and due regard for the protection of victims and witnesses.

Article 21 Rights ofthe accused 4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a)

(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) to be tried without undue delay; (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests ofjustice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

Article 21 (4) (d) raises the problem of which procedural model is at the heart of the position of the defense: Is it a protective model of mandatory representation in certain cases, or is it a pure legal aid model without compulsory assignment of counsel? The wording would suggest the Iarter," but the proceedings against Milosevic and Seselj have shown that obstructive behavior or bad health of the accused may create insurmountable problems in the case of an accused defending himself, that may even lead to a complete standstill of the trial. What follows is a critical review of the jurisprudence of the IClY on this issue.

Milosevic-Decision ofApril 4,2003 6 Trial Chamber III, at the time consisting ofJudges May, Robinson and O-Gon Kwon, a majority of common lawyers, had to face the problem that Milosevic did not want to be represented by counsel, was in very poor health owing to high blood pressure and kept making political speeches." The prosecution feared that there might be deficits in the truth-finding process, ineffective defense, delays and possibly an end to the trial based on a lack of fitness to stand trial on the part of the accused. They made an appli-

5 At the ICTR assignment is also possible under Rule 45quater RPE "in the interests of justice," although the Statute of the ICTR is silent in this regard. 6 See www.un.org/icty/milosevic/trialc/decision-e/040403.htm. 7 Prior to that the Trial Chamber had already assigned three attorneys as amici curiae, ostensibly in order to assist the court, not to take the role of defense counsel. See Michael Bohlander, "The Defence," in Gideon Boas & William Schabas eds., International Criminal Law Developments in the Case Law of the IClY 35,40 (2003).

ICTY • 69 cation to the Trial Chamber for the assignment of counsel to counter these problems. The background for Milosevic's insistence on defending himself was to a large part based on the practice of the IClY Trial Chambers: an accused who is represented by counsel only participates in the proceedings by making an unsworn statement or giving evidence under oath. He has no right himself to ask questions, i.e., to examine witnesses-in-chief or cross-examine them, which is based on common law practice. The Trial Chamber refused to assign counsel for the following reasons." It noted Article 21 (4) (d) of the Statute and argued that a plain reading of this provision indicated that there was a right to defend oneself in person and the Trial Chamber was unable to accept that it would allow for the assignment of defense counsel against the wishes of the accused in the present circumstances. It noted further that the proceedings of the IClY were essentially adversarial and against that background the discussion had to follow." Adversarial proceedings were said to be a feature of the common law and to find little echo in the civil law. The imposition of a defense counsel upon an accused, who does not want one, was seen to be a feature of inquisitorial systems but not of adversarial systems. The reasons for the common law rule were traced to a u.S. Supreme Court case, Faretta v. California, which concerned the question of whether a defendant has a right under the u.S. Constitution to proceed without counsel when he voluntarily and intelligently elects to do so. The Court there noted that" [t] his Court's past recognition of the right of selfrepresentation, the federal-court authority holding the right to be of constitutional dimension, and the state constitutions pointing to the right's fundamental nature form a consensus not easily ignored. [... ] We confront here a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." It found that "[t lhe language and spirit of the Sixth Amendment contemplate that counsel, like the other defence tools guaranteed by the Amendment, shall be an aid to a willing defendant-not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master, and the right to make a defence is stripped of the personal character upon which the Amendment insists." It further pointed to the odium of the 16th century Court of Star Chamber;'? which in English legal history was the only one that had adopted the practice of forcing counsel upon an unwilling defendant in criminal proceedings, and went on to make reference to Stephen's-) comment, who had said "There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defence." There was, in the opinion of the Trial Chamber, a further reason for the right to self-representation in common law.!? While, it said, it may be the case that in civil law systems it was appropriate to appoint defense counsel for an accused who wished to represent himself, in such systems the court was fulfilling a more investigative role in an attempt to establish the truth. In the

8 Para. 10 et seq.-footnotes omitted. The references to the cases and literature cited by the Tribunal can be found in the Trial Chamber's decision. 9 Para. 20 et seq. 10 Para. 22. 11 J. Stephen, A History of the Criminal Law of England 341 (1883). 12 Para. 24 et seq.

70 • Defense in International Criminal Proceedings

adversarial systems, it was the responsibility of the parties to put forward the case and not for the court, whose function it was to judge. Therefore, the Trial Chamber argued, in an adversarial system the imposition of defense counsel would effectively deprive the accused of the possibility of putting forward a defense. Article 21 (4) (d) of the Statute could thus be said to be reflective of the common law position. The obligation of "putting a case," that is, putting forward the defense version of events was reflected in Rule 90(H) of the Rules. Such an obligation could not be fulfilled by counsel who was not instructed by an accused as to the defense to be put forward. The Trial Chamber then turned to international and regional human rights conventions and the case law under thern.l'' In particular, the prosecution had argued that Croissant v. Germany, a case before the European Court of Human Rights (ECHR), could be adduced for the proposition that defense counsel could be imposed on an accused. Croissant had appointed two lawyers, but the court had appointed a third one. In holding that there had been no violation of Article 6(3) (c) of the European Convention on Human Rights, the ECHR had held that the right to be defended by counsel of one's own choosing could not be considered to be absolute. It was for the courts to decide whether the interests of justice required that the accused be defended by counsel appointed by them. When appointing defense counsel, the national courts had to have regard to the defendant's wishes but could override them if there were relevant and sufficient grounds for holding that it was necessary in the interests ofjustice. The Trial Chamber noted that Croissant v. Germany was not concerned with the case of an accused representing himself. It was, thus, distinguishable from the case of Milosevic. However, it emphasized a passage where the ECHR declared that the requirement that a defendant be assisted by counsel at all stages of the proceedings could not be deemed incompatible with the Convention. The Trial Chamber went on to note that the Human Rights Committee found in Michael and Brian Hill v. Spain that the accused had a right to defend himself pursuant to Article 14(3) (d) of the ICCPR. The Spanish courts had denied one of the appellants the right to defend himself. The Committee noted that Spanish legislation did not allow an accused to defend himself, and concluded that the accused's right to defend himself had not been respected. The Trial Chamber concluded that international and regional conventions articulated a right to defend oneself in person. It was possible that they allowed for certain exceptions to that principle, but the Chamber noted that the only case on the issue decided under these conventions, which the Trial Chamber had been able to find, did not allow for such an exception, namely Michael and Brian Hill v. Spain. Despite the fact that the Human Rights Committee did not discuss its findings in any detail, the case was, in the eyes of the Trial Chamber, highly relevant to the interpretation of Article 21 (4) (d) of the Statute. In the Trial Chamber's view, it was appropriate to be guided by the ICCPR and the Human Rights Committee's interpretation of it, which confirmed the right to self-defense and rejected the imposition of defense counsel on an unwilling accused. There were, in the opinion of the Trial Chamber, additional practical reasons for not appointing defense counsel to Milosevic. If counsel were appointed, the Trial Chamber would have to take one of two courses: should the accused refuse to instruct counsel, the Trial Chamber could either not allow Milosevic to make submissions and question witnesses, thereby preventing him from putting forward any defense,

13

Para. 27 et seq.

ICTY • 71

or it could allow him to make submissions and question witnesses, in which case defense counsel could do no more than the amici curiae. The Trial Chamber was, at the end of the day, satisfied that Milosevic was competent to defend himself in person.!" He had been advised that it would be in his best interests to accept the assistance of defence counsel, but, nonetheless, he was entitled to defend himself in person, under the proviso that certain scenarios, such as Rule 80(B) RPE, which provides that a Trial Chamber may order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct following a warning that such conduct may warrant the removal of the accused from the courtroom, could result in the Chamber taking the view that the accused had relinquished his right to defend himself in person.lThe Trial Chamber thus argued that the procedure before the IClY was essentially adversarial-one of the rare unambiguous statements of the Tribunal on this issue-, that mandatory representation was an emanation of inquisitorial procedure and that therefore the assignment against the will of the accused had no place in the practice before the IClY When examining the Sixth Amendment and Faretta v. Califomia'" the Trial Chamber, however, overlooked the fact that under that decision, and according to the more recent jurisprudence of the u.S. Supreme Court, the assignment of standby counsel against the will of the defendant was permissible, as was shown in McKaskle v. Wiggins,17 and that the Supreme Court in Martinez v. Court ofAppeal of California18 refused to acknowledge a right to self-representation at the appellate stage. The Trial Chamber also conveniently omits to mention that three of the justices, among them the then ChiefJustice Burger and the present ChiefJustice Rehnquist, authored ajoint dissenting opinion, which contains serious arguments against the majority opinion.'? The historical aside on the inquisitorial model, by likening it to the practices before the Court of Star Chamber, is misconceived, because the procedure used there is the exact opposite of the practice in most civil law systems, where the accused can always participate himself, make motions etc. That the adversarial system of "putting a case" by the parties-something counsel cannot do without the trust of and instructions by the clientis used as an acceptable solution to the problem based on the insinuation that to do otherwise would mean to deny the accused a proper defense, loses sight of the real issue, which is that this conclusion is based solely on the narrow common law view that a client may not participate in the proceedings himself anymore once he is represented by counsel. The Trial Chamber's arguments relating to the Star Chamber are therefore led ad absurdum, because the practice of the IClY had precisely the effect of silencing the accused as was the case in that infamous tribunal. Para. 39. Para. 40 16 422 u.s. 806 (1975). 17 465 U.S. 168 (1984). 18 120 S. Ct. 684 (2000). 19 The consequences of such a wide-ranging view are illustrated by the almost surrealist facts of People v. Reason, 37 N.Y2d 351 (1975), at footnote 4: "An example of defendant's irrelevant rambling follows: 'The issue of the dead belong to God. It's in the bible. Each of the dead belong to God. God seeks the past. Life gives birth to time, time is passed, just passed, time passed, just passed. Anticipate time. Time is past. Hour has already been. I wrote right here, I would like to repeat that and I would, I would like to repeat that." 14 15

72 • Defense in International Criminal Proceedings

When discussing the human rights conventions, the Trial Chamber did recognize the effect of Croissant, but distinguished the case on the facts. For no apparent reason, in paragraph 36, the case is cursorily dismissed as a possible exception, but Hill v. Spain, a case without any written legal reasoning, is accepted as the only case decided under the conventions, something that defies comprehension given the previous treatment of Croissant. The additional practical problem of what course the court should take is based on the same narrow understanding of the role of the accused in the common law as discussed above. Moreover, the fact that the Trial Chamber had previously appointed three amici curiae and the remit of their mandate show that the Chamber had appointed de facto standby counsel. 20

Sese/j-Decision of May 9, 2003 21 Almost exactly one month later another Trial Chamber presided over by the German judge Schomburg andjudges Mumba and Agius, again a common lawyer majority, had to decide the same issue on an application by the prosecution in the case against Seselj. The Chamber examined the Milosevic decision discussed above and found as follows.s? Article 21 of the Statute, and the jurisprudence of this Tribunal and the Rwanda Tribunal, leave open the possibility of assigning counsel to an accused on a case by case basis in the interests of justice. The existence of Rule 45 Quarter of the Rwanda Tribunal's Rules of Procedure and Evidence confirms that the assignment of counsel in the interests ofjustice to represent the interests of an accused is considered by the Rwanda Tribunal to be in conformity with Article 20 of its Statute which has the same wording as Article 21 of this Tribunal's Statute. In reaching its decision in this case, the Trial Chamber takes the right to self-representation articulated in the Statute as a starting point, but notes that according to international and national jurisprudence, this right is not absolute. The phrase "in the interests ofjustice" potentially has a broad scope. It includes the right to a fair trial, which is not only a fundamental right of the Accused, but also a fundamental interest of the Tribunal related to its own legitimacy. In the context of the right to a fair trial, the length of the case, its size and complexity need to be taken into account. The complex legal, evidential and procedural issues that arise in a case of this magnitude may fall outside the competence even of a legally qualified accused, especially where that accused is in detention without access to all the facilities he may need. Moreover, the Tribunal has a legitimate interest in ensuring that the trial proceeds in a timely manner without interruptions, adjournments or disruptions.... The attitude and actions of the Accused ... are indicative of obstructionism on his part. . . . [T] he Trial Chamber is of the view that at this stage of the proceedings, the best way to preserve the rights of the Accused while at the same time satisfying

20

21 22

See Bohlander, in Boas & Schabas Ope cit., n. 7. See www.un.org/icty/seselj/trialc/decision-e/030509.htm. See para. 20 et seq.-footnotes omitted.

ICTY • 73

the interests ofjustice is to assign a "standby counsel" fulfilling the requirements of Rule 44(A). The Trial Chamber went on to emphasize that the right to defend oneself was left "absolutely untouched,"23 and that standby counsel was not an amicus curiae but operating in the sphere of the accused only, serving to ensure a fair and expeditious trial. The counsel-client privilege would apply, and standby counsel would be bound in the same way as any other counsel by the obligations protecting the interests of an accused. The right to self-representation and the appointment of standby counsel furthermore did not exclude the right of the accused to obtain legal advice from counsel of his own choosing, and it "would be a misunderstanding of the word 'or' in the phrase 'to defend himself in person or through legal assistance of his own choosing' to conclude that self-representation exclude[d] the appointment of counsel to assist the Accused or vice versa."24 Against this background, the position and duties of standby counsel were strictly defined. He was •

to assist the accused in the preparation of his case during the pre-trial phase whenever so requested by the accused;

•

to assist the accused in the preparation and presentation of his case at trial whenever so requested by the accused;

•

to receive copies of all court documents, filings and disclosed materials that are received by or sent to the accused;

•

to be present in the courtroom during the proceedings;

•

to be engaged actively in the substantive preparation of the case and to participate in the proceedings, in order always to be prepared to take over from the accused at trial (see below);

•

to address the Court whenever so requested by the accused or the Chamber;

•

to offer advice or make suggestions to the accused as counsel sees fit, in particular on evidential and procedural issues;

•

as a protective measure in the event of abusive conduct by the accused, to put questions to witnesses, in particular sensitive or protected witnesses, on behalf of the accused if so ordered by the Trial Chamber, without depriving the accused of his right to control the content of the examination;

•

in exceptional circumstances to take over the defense from the accused at trial should the Trial Chamber find, following a warning, that the accused is engaging in disruptive conduct or conduct requiring his removal from the courtroom under Rule 80(B).25

The Trial Chamber analyzed the Milosevic decision and recognized that Trial Chamber Ill's argument already fell short of the mark under common law jurisprudence. Apart from Faretta, it discusses McKaskle v. Wiggins and Martinez v. Court ofAppeal

23 24

25

Para. 28. Para. 29. Para. 30.

74 • Defense in International Criminal Proceedings

of California on standby counsel. The Chamber made it clear that Hill v. Spain does not deal explicitly with the issue of mandatory representation and therefore does not provide any support or cogent arguments for the debate.

Milosevic-Decisions on the Assignment of Counsel of September 2 and 22,2004,26 and on the Modalities of Counsel's Activity of September 3, 2004 27 On September 2, 2004, Trial Chamber III ordered the assignment of counsel to Milosevic because of the repeated delays caused by the deteriorating state of health of the accused; the Chamber gave its written opinion on September 22, 2004. On September 3, 2004, the conditions and modalities of service of counsel were set down by Trial Chamber III. The Chamber justified its uolte-face with regard to its previous jurisprudence, by stating that it now read Article 21 (4) "as setting out a bundle of rights"28 within the principle that the accused has a right to a fair trial under Article 21 (2) of the Statute. The concept of fairness not only included these rights but had a much wider ambit, and all aspects the conduct of the trial had to be fair to the accused. Hence, they were described as "minimum guarantees." Fairness was the paramount requirement in criminal proceedings. 29 It is in that context that the accused's right to defend himself in person, or through legal assistance of his own choosing, as set out in Article 21 (4) (d), must be read. Regardless of the issue of self-representation or legal assistance, the purpose of the provision was held to be to secure the right to a defense as a prerequisite for a fair trial. If self-representation gave rise to a risk of unfairness to the accused, steps had to be taken to secure a fair trial. A fundamental need was ensuring that the accused had the opportunity and facility to present his defense fully and effectively. Yet that did not oblige the court to grant the request of an accused to conduct his own defense where his capacity to do so was so impaired that there would be a "material risk" that he would not receive a fair trial. If there was a real prospect that the trial would be disrupted with the risk that it would not be conducted fairly, the court had the duty to establish a regime to avoid that conscqucncc.s'' It was recognized in domestic legal systems that an accused who represents himself and disrupts the trial by misconduct could be removed from court and counsel appointed to conduct his defense for him. The Trial Chamber held that there was "no difference in principle between deliberate misconduct which disrupts the proceedings and any other circumstance which so disrupts the proceedings as to threaten the integrity of the trial. These [were] simply examples of circumstances in which the right to represent oneself must yield to the overarching right to a fair trial. "31 The court went on to state that "the ordinary meaning of Article 21 (4) (d) of the Statute, when read in light of the object and purpose of securing for an accused his right to a defence and to a fair trial, is that an accused has a right to represent himself, but that right may be lost if the effect of its exercise is to obstruct the achieve-

26 Seewww.un.org/icty/milosevic/trialc/decision-e/040922.htm, at para. 29 et seq.-footnotes omitted. 27 See www.un.org/icty/milosevic/trialc/order-e/040903.htm. 28 Para. 29. 29 Para. 31 et seq. 30 Para. 33. 31 Id.

ICTY • 75

ment of that object and purpose. The Trial Chamber is, therefore, entirely satisfied that, on the proper interpretation of Articles 20 and 21, it is competent, in appropriate circumstances, to insist upon an accused being represented by counsel in spite of his wish to represent himself."32 Interestingly the decision in the Seselj case and Croissant v. Germany were then adduced as the basis for the new look of things, but without any discussion as to the discrepancy between these and the Trial Chamber's own previous opinion: In Prosecutor v. Seselj the Trial Chamber recognised that the wording of Article 21 of the Statute "leave [s] open the possibility of assigning counsel to an accused on a case by case basis in the interests ofjustice." Although the accused in that case made it clear that he intended to represent himself, the Trial Chamber considered the right to self-representation as articulated in the Statute as a starting point, but noted that according to international and national jurisprudence "this right is not absolute," and decided that "standby counsel" should be appointed with various responsibilities, including the possibility of taking over the conduct of the defence case against the will of the accused.... Generally, a provision similar to Article 21 (4) (d) of the Statute is found in the constitutive instruments of international criminal tribunals, as well as international and regional conventions on human rights. While international and regional human rights conventions plainly articulate a right to defend oneself in person, many states parties to those conventions have systems in which self-representation, as recognized in those instruments, is not unqualified; thus several states parties originating from the civil law tradition provide for mandatory defense counsel in domestic criminal procedures. And the fact that the law of some states precludes a defendant in a criminal case from representing himself, requiring that a lawyer assist him with his defense, is not incompatible with the ECHR. Thus, in the case of Croissant v. Germany, the ECHR held that there had been no violation of Article 6(3) (c) of the Convention, which article contains the minimum right of an accused "to defend himself in person or through legal assistance of his own choosing," where the accused had appointed two counsel of his own choosing, but the Regional Court insisted upon the appointment of a third in spite of the accused's strong objection to that appointment. The Court said that "it is for the courts to decide whether the interests ofjustice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant's wishes .... However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests ofjustice." The Court specifically noted that "avoiding interruptions or adjournments corresponds to an interest ofjustice which is relevant in the present case and may well justify an appointment against the accused's wishes."33 The fact that Hill v. Spain was of no help in deciding the issue at hand was now recognized expressis verbis, however, again without a trace of self-criticism in light of the Chamber's prior views, which had expressly preferred Hill v. Spain to Croissant as the appropriate basis for the decision.>' The exaggerated previous reliance on Faretta was 32 33 34

Para. 34. Para. 41 et seq. Para. 44: "Conversely, the United Nations Human Rights Committee found in Michael

76 • Defense in International Criminal Proceedings

also reduced to that decision's real impact on the probleru.f The Trial Chamber also dedicated more consideration to comparisons with civil law models." It accepted that while common law jurisdictions recognized a right to self-representation, civil law systems often made representation by counsel mandatory, especially in serious criminal cases. This was said to be the case in France, Germany, Belgium, Austria, Switzerland and the Republic of Korea. The Code of Criminal Procedure of the Federal Republic of Yugoslavia of 2001, which remained in force in Serbia, provided for similar assignments of counsel. The Chamber considered that" [t] he rationale behind the mandatory assignment of counsel in these jurisdictions appears to be that, in cases where the personal liberty of an accused is at stake, the right to a fair trial, which includes the right to an adequate and effective defence, actually imposes a duty on the State to ensure that the accused is represented by professional counsel whose task is to ensure that the interests of the accused are fully protected throughout the proceedings." The Trial Chamber then set out the modalities for the service of assigned counsel: (1) It is the duty of court assigned counsel to determine how to present the case for the Accused, and in particular it is their duty to: (a) represent the Accused by preparing and examining those witnesses court assigned counsel deem it appropriate to call;

& Brian Hill v. Spain that the accused's right to defend himself had not been respected, contrary to Article 14 paragraph 3 (d) of the ICCPR. In that case the Spanish courts had denied the accused the right to defend himself, over his insistence that he wanted to do so. However, as this Trial Chamber observed in its Decision of 4 April 2003, the Committee gave no reason for its determination. The Committee were not faced with circumstances which can be compared to those now being addressed." 35 Para. 45: "Common law jurisdictions, in which proceedings are adversarial, typically recognise an accused's right to represent himself at trial. As noted in the Trial Chamber's Decision of 4 April 2003, the classical statement of the right to self-representation was set out by the United States Supreme Court in Faretta v. California. In recognising the constitutional right of an accused to represent himself at trial, the Court held that forcing a lawyer upon an accused who is literate, competent, and understanding, and who voluntarily exercises his informed free will to represent himself by waiving his right to assistance of counsel, would be a breach of his constitutional right to conduct his own defence. However, there are qualifications to this general rule. In Faretta itself, the Court recognised that the right to self-representation by an accused was not without limits: 'the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct,' and "a State may-even over objection by the accused-appoint "standby counsel" to aid the accused if and when the accused requests help, and to be able to represent the accused in the event that termination of the defendant's self-representation is necessary." Furthermore, the Court noted in Faretta that' [t] he right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.' Moreover, in Martinez v. Court of Appeal of California, the United States Supreme Court confined its holding in Faretta to a defendant's self-representation at trial and held that a defendant did not have a constitutional right to represent himself on appeal. In so holding, the Court reasoned that, '[a] s the Faretta opinion recognized, the right to self-representation is not absolute' and that' [e]ven at the trial level, therefore, the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer'." 36 Para. 49.

ICTY • 77

(b) make all submissions on fact and law that they deem it appropriate to make; (c) seek from the Trial Chamber such orders as they consider necessary to enable them to present the Accused's case properly, including the issuance of subpoenas; (d) discuss with the Accused the conduct of the case, endeavour to obtain his instructions thereon and take account of views expressed by the Accused, while retaining the right to determine what course to follow; and (e) act throughout in the best interests of the Accused; (2) The Accused may, with the leave of the Trial Chamber, continue to participate actively in the conduct of his case, including, where appropriate, examining witnesses, following examination by court assigned counsel; (3) The Accused has the right, at any time, to make a reasonable request to the Trial Chamber to consider allowing him to appoint counsel; and (4) Court assigned counsel is authorised to seek from the Trial Chamber such further orders as they deem necessary to enable them to conduct the case for the Accused. The Trial Chamber is satisfied that assigned counsel will make determined efforts to discuss the presentation of the Accused's defence with him. Should the Accused fail to cooperate with counsel, the trial will nonetheless proceed. If such failure on the part of the Accused results in material which is actually relevant to the Accused's case not being presented, then the Accused must bear responsibility for that and cannot plead injustice. "37 However, the case was not over yet, which was mostly to do with paragraph (2) of the order, which required Milosevic to obtain the approval of the court if he wanted to participate actively in the proceedings. Neither he nor his defense counsel were willing to accept this restriction and they appealed the decisions of September 3 and 22, 2004.

Milosevic-Appeal Decision of November 1,2004 38 The Appeals Chamber granted the appeal in part, by stating that the Trial Chamber had the power to appoint counsel against the wishes of the accused, but that the restriction in paragraph (2) mentioned above violated the principle of proportionality. The Appeals Chamber sharply criticized the Trial Chamber's approach and held: The Appeals Chamber parts ways with the Trial Chamber, however, in its assessment of the Order on Modalities. In spelling out the future working relationship between Milosevic and Assigned Counsel, the Order sharply restricts Milosevic's ability to participate in the conduct of his case in any way.... In every way, then, the Order relegates Milosevic to a visibly second-tier role in the trial.

Para. 69. Seewww.un.org/icty/milosevic/appeal/decision-e/041101.htm. at para. 11 et seq.-footnotes omitted. 37 38

78 • Defense in International Criminal Proceedings

These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milosevic's right to represent himself must be limited to the minimum extent necessary to protect the Tribunal's interest in assuring a reasonably expeditious trial. When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided by some variant of a basic proportionality principle: any restriction of a fundamental right must be in service of "a sufficiently important objective," and must "impair the right ... no more than is necessary to accomplish the objective." ... The excessiveness of the Trial Chamber's restrictions is apparent for at least three reasons: (1) the medical reports relied on by the Trial Chamber explicitly rejected the notion that Milosevic's condition is permanent; (2) there was no evidence that Milosevic had suffered from any health problems since late July; and (3) Milosevic made a vigorous two-day opening statement without interruption or apparent difficulty. Despite these indications of possible improvement in Milosevic's condition, however, the Trial Chamber failed to impose a carefully calibrated set of restrictions on Milosevic's trial participation. Given the need for proper respect of a right as fundamental as this one, this failure was an improper exercise of the trial court's discrerion.t" After the case had returned to the Trial Chamber, assigned counsel made a motion to be released from their duties, as the accused did not enter into any relationship of trust with them and they considered any further representation on such grounds as unethical. It showed the distinct unease the common law barristers had faced with the new situation of having to represent an unwilling client. The Trial Chamber-in a questionable, confusing and unnecessary assumption ofjurisdiction over an issue, which fell squarely into the responsibility of the Registrar-refused the motion by its decision of December 7, 2004,40 but certified the issue for appeal." This appeal had not yet been decided at the time of writing. Counsel's appeal against the previous decision of the Registrar to assign them was rejected by the President of the IClY on February 7, 2005. 42 However, this issue is not central to the question discussed here and will thus not be elaborated on.

Conclusion Whatever one's views may be with respect to the principle of self-representation, it would appear that the adage quoted by the minority in Faretta-One who is his own lawyer has a fool for a client-applies to an even stronger degree in the highly complex legal environment of the proceedings based on the often rather nebulous concepts of international (customary) criminal law. The degree of certainty of law and foreseeability of result one is used to from national systems will take a while to be reached on the international level. There is no reason to believe that an accused tried by international (ized) courts is in any position to mount a proper defense if he chooses to represent himself. The decision of the Appeals Chamber in Milosevic treads a careful middle path, but it remains to be seen whether its approach will work in practice.

39 40 41

42

Para. 16 et seq. See www.un.org/icty/milosevic/trialc/decision-e/041207.htm. See www.un.org/icty/milosevic/trialc/decision-e/041217-3.htm. See www.un.org/icty/milosevic/trialc/decision-e/050207e.htm.

ICTY • 79

4.2. ASSIGNMENT OF COUNSEL43 4.2.1.

Introduction

The right to assigned counsel for an accused who lacks the means to remunerate counsel is one of the most sensitive issues arising from the accused's fundamental right to a fair and expeditious trial. The Registrar of the IClY has primary responsibility with regard to the accused's right to an adequate defense. The IClY Chambers have, however, inherent powers to deal with assignment of counsel issues to the extent necessary to ensure the integrity of the proceedings. Defense counsel are to be considered as an essential pillar of the IClY proceedings, contributing to ensure the viability and quality of international criminal justice.

4.2.2. 4.2.2.1.

Legal Framework ofthe ICTY Legal Aid System ICTY Statute

According to the IClY's Statnte.v' the accused shall be entitled, as a minimum guarantee and in full equality to "have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing."

4.2.2.2.

ICTY Rules of Procedure and Evidence

The Rules of Procedure and Evidence (hereafter "The Rules'T:" govern the conduct of proceedings from the initial appearance of the accused to the appeal and possible review proceedings, including the admission of evidence and the protection of witnesses. Consequently, the Rules also include relevant provisions related to the rights of the accused. More in particular, there is a section on defense counsel related issues, namely, Rule 44, which specifies the qualifications and duties of counsel appearing before the ICTY, and Rule 45 in respect of assigned counsel. The Registry shall assign defense counsel to accused lacking the necessary means to remunerate counsel whenever the interests ofjustice so require. In accordance with Rule 45bis, Rules 44 and 45 shall apply to any person detained under the authority of the Tribunal.

Rule 45 Assignment ofCounsel (A) Whenever the interests ofjustice so demand, counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel. Such assignments shall be treated in accordance with the procedure established in a Directive set out by the Registrar and approved by the permanentJudges.

43 The remainder of this chapter is written by Monica Martinez. The statements contained herein reflect the personal views of the author and do not necessarily reflect the views of the United Nations or the IClY The author is grateful for the assistance of Melinda Taylor and Christopher Dye. 44 As adopted on May 25,1993, and latest amended on May 17, 2002; See Article 21.4(b). 45 As adopted on February 11, 1994, and latest amended on July 28, 2004 (IT/32/Rev. 32).

80 • Defense in International Criminal Proceedings

(B) For this purpose, the Registrar shall maintain a list of counsel who: (i) fulfil all the requirements of Rule 44, although the language requirement of Rule 44 (A) (ii) may be waived by the Registrar as provided for in the Directive; (ii) possess established competence in criminal law and/or international criminal law/international humanitarian law/international human rights law; (iii) possess at least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other capacity, in criminal proceedings; and (iv) have indicated their availability and willingness to be assigned by the Tribunal to any person detained under the authority of the Tribunal lacking the means to remunerate counsel, under the terms set out in the Directive. (C) The Registrar shall maintain a separate list of counsel who, in addition to fulfilling the qualification requirements set out in paragraph (B), are readily available as "duty counsel" for assignment to an accused for the purposes of the initial appearance, in accordance with Rule 62. (D) The Registrar shall, in consultation with the permanent Judges, establish the criteria for the payment of fees to assigned counsel. (E) Where a person is assigned counsel and is subsequently found not to be lacking the means to remunerate counsel, the Chamber may, on application by the Registrar, make an order of contribution to recover the cost of providing counsel. (F) A suspect or an accused electing to conduct his or her own defence shall so notify the Registrar in writing at the first opportunity.

Rule 45 bis Detained Persons Rules 44 and 45 shall apply to any person detained under the authority of the Tribunal. [ ... ]

4.2.2.3.

ICTY Directive on Assignment of Defense Counsel 46

The ICTY Directive on Assignment of Defense Counsel (hereinafter "Directive") further governs the provision of legal representation to indigent accused. It sets out, inter alia, the conditions to be met to be declared indigent, the procedure concerning the assignment of counsel as well as the expenses covered pursuant to the legal aid regime of the IClY

46

As adopted on July 28, 1994, and latest amended on July 28,2004 (IT/73/Rev. 10).

ICTY • 81

PART III-RIGHTTO HAVE COUNSEL ASSIGNED Chapter 1: Basic principles Article 6 Right toassigned counsel (A) Suspects or accused who lack the means to remunerate counsel shall be entitled to assignment of counsel paid for by the Tribunal. (B) A suspect or accused lacks the means to remunerate counsel if he does not dispose of means, which would allow him to remunerate counsel at the rates provided for by this Directive. For the purposes of Section III of this Directive, the remuneration of counsel also includes counsel's expenses. (C) For suspects or accused who dispose of means to partially remunerate counsel, the Tribunal shall pay that portion, which the suspect or accused does not have sufficient means to pay for.

Chapter 2: Procedure for assignment ofcounsel Article 7 Request for assignment ofcounsel (A) Subject to the provisions of Article 17, a suspect or accused who wishes to be assigned counsel shall make a request to the Registrar of the Tribunal on the form provided by the Registry. A request shall be lodged with the Registry, or transmitted to it, by the suspect or accused himself or by a person authorised by him to do so on his behalf. (B) For the purposes of Article 8, a suspect or accused requesting the assignment of counsel is required to make a declaration of his means on the form provided by the Registry. (C) To ensure that the provisions of Article 8 are met, a suspect or accused must update his declaration of means at any time a change relevant to his declaration of means occurs.

Article 8 Determination ofthe means ofsuspects and accused (A) A suspect or accused who requests the assignment of counsel must produce evidence that he is unable to remunerate counsel. (B) In order to determine whether the suspect or accused is unable to remunerate counsel, there shall be taken into account means of all kinds of which he has direct or indirect enjoyment or freely disposes, including but not limited to direct income, bank accounts, real or personal property, pensions, and stocks, bonds, or other assets held, but excluding any family or social benefits to which he may be entitled. In assessing such means, account shall also be taken of the means of the spouse of a suspect or accused, as well as those of persons with whom he habitually resides, provided that it is reasonable to take such means into account. (C) Account may also be taken of the apparent lifestyle of a suspect or accused, and of his enjoyment of any property, movable or immovable, and whether or not he derives income from it.

82 • Defense in International Criminal Proceedings Article 9 Certification ofthe declaration of means A declaration must, so far as possible, be certified by an appropriate authority, either that of the place where the suspect or accused resides or is found or that of any other place considered appropriate in the circumstances which it shall be for the Registrar to assess.

Article 10 Information (A) For the purpose of establishing whether the suspect or accused satisfies the requisite conditions for assignment of counsel, the Registrar may inquire into his means, request the gathering of any information, hear the suspect or accused, consider any representation, or request the production of any documents likely to verify the request. (B) In executing this stipulation and even after counsel has been assigned, the Registrar shall be authorised to request any relevant information at any time from any person who appears to be able to supply relevant information.

Chapter 3: The decision Article 11 Decision by the Registrar After examining the declaration of means laid down in Article 7 (B) and (C) and relevant information obtained pursuant to Article 10, the Registrar shall determine how far the suspect or accused lacks means to remunerate counsel, and shall decide, providing reasons for his decision: (i) without prejudice to Article 18, to assign counsel and choose for this purpose a name from the list drawn up in accordance with Rule 45(B) of the Rules and Article 14; or, (ii) without prejudice to Article 18, that the suspect or accused disposes of means to partially remunerate counsel in which case the decision shall indicate which costs shall be borne by the Tribunal; or (iii) not to grant the request for assignment of counsel. To ensure that the right to counsel is not affected while the Registrar examines the declaration of means laid down in Article 7 (B) and (C) and the information obtained pursuant to Article 10 the Registrar may temporarily assign counsel to a suspect or an accused for a period not exceeding 120 days. If a suspect or an accused, either (i) requests an assignment of counsel but does not comply with the requirements set out above within a reasonable time; or (ii) fails to obtain or to request assignment of counsel; or (iii) fails to elect in writing that he intends to conduct his own defence;

ICTY • 83

the Registrar may nevertheless, in the interests of justice, assign him counsel from the list, and in accordance with Rule 45 (B) of the Rules, and without prejudice to Article 18.

Article 12 Notification ofthe decision The Registrar shall notify the suspect or accused of his decision, and shall also notify the counsel so assigned and his professional or governing body of his decision.

Chapter 4: Remedy Article 13 Remedy against the Registrar's decision (A) The suspect whose request for assignment of counsel has been denied may, within fifteen days of the date of notification to him, seek the President's review of the decision of the Registrar. The President may either confirm the Registrar's decision or decide that a counsel should be assigned. (B) The accused whose request for assignment of counsel has been denied, may, within two weeks of the date of notification to him, make a motion to the Chamber before which he is due to appear for immediate review of the Registrar's decision. The Chamber may (i) confirm the Registrar's decision; or (ii) rule that the suspect or accused has means to partially remunerate counsel, in which case it shall refer the matter again to the Registrar for determination of which parts shall be borne by the Tribunal; or (iii) rule that a counsel should be assigned.

PART IV-PREREQUISITES FOR ASSIGNMENT AS COUNSEL Article 14 Qualifications and standing ofcounsel (A) Any person may be assigned as counsel to an accused if the Registrar is satisfied that he is admitted to the list of counsel envisaged in Rule 45 (B) of the Rules. A person is eligible for admission to the list if: (i) he is admitted to the practice of law in a State, or is a university professor of law; (ii) he has written and oral proficiency in one of the two working languages of the Tribunal; (iii) he possesses established competence in criminal law and/or international criminallaw/international humanitarian law/ international human rights law; (iv) he possesses at least seven years of relevant experience, whether as ajudge, prosecutor, attorney or in some other capacity, in criminal proceedings;

84 · Defense in International Criminal Proceedings (v)

he has not been found guilty or otherwise disciplined in relevant disciplinary proceedings against him in a national or international forum, including proceedings pursuant to the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, unless the Registrar deems that, in the circumstances, it would be disproportionate to exclude such counsel;

(vi) he has not been found guilty in relevant criminal proceedings; (vii) he has not engaged in conduct whether in pursuit of his profession or otherwise which is dishonest or otherwise discreditable to a counsel, prejudicial to the administration ofjustice, or likely to diminish public confidence in the International Tribunal or the administration ofjustice, or otherwise bring the International Tribunal into disrepute; (viii) he has indicated his availability to be assigned as counsel by the Registrar to represent any indigent suspect or accused under the terms of this Directive; and (ix) he is a member in good standing of an association of counsel practising at the Tribunal. (B) Any person may be assigned as duty counsel to an accused for the purposes of the initial appearance if the Registrar is satisfied that he is admitted to the list of counsel envisaged in Rule 45 (C) of the Rules. A person is eligible for admission to that list if: (i) he fulfils all requirements of Article 14(A); and (ii) he has informed the Registrar that he is readily available for assignment to an accused for the purposes of the initial appearance in accordance with Rule 62 of the Rules. (C) A person who does not have written and oral proficiency in either of the two working languages of the Tribunal but who speaks a language spoken in the territory over which the Tribunal has jurisdiction, and who fulfils all other requirements set out in Article 14 (A), may be admitted to the list envisaged in Rule 45 (B) of the Rules, if the Registrar deems it justified. Such person can be assigned only as co-counsel in accordance with Article 16(C). (D) The Registrar may, after giving counsel a warning and an opportunity to respond, remove the name of counsel from the lists referred to in Rules 45 (B) and (C) of the Rules: (i) upon a decision by a Chamber under Rule 46 (A) (i) of the Rules; or (ii) where counsel has been found to be in contempt pursuant to Rule 77 of the Rules, in consultation with the Chamber; (iii) where counsel has provided false information in relation to his or her qualification to be admitted to the list, or has failed to provide relevant information; (iv) where counsel has been found guilty of a disciplinary offense under the Code of Conduct, in accordance with the relevant provision of the Code, in consultation with the Chamber. Counsel may seek review of the Registrar's decision before the President within fourteen days of having been notified of that decision.

ICTY • 85 (E) The Registrar shall remove the name of counsel from the lists referred to in Rules 45(B) and (C) of the Rules: (i) upon a decision by a Chamber under Rule 46 (A) (ii); (ii) upon a final decision of the Disciplinary Panel or Disciplinary Board that counsel is banned from practicing before the Tribunal, in accordance with Article 47 (C) (vi) of the Code of Professional Conduct; (iii) where counsel no longer satisfies the requirements of Article 14(A). (F) The Registrar may refuse a request for assignment of a counsel where a procedure pursuant to Rule 77 of the Rules, or, in accordance with Article 45 of the Code of Conduct, if a disciplinary procedure under Part Three of the Code of Professional Conduct has been initiated against that counsel. Counsel may seek review of the Registrar's decision before the President within fourteen days of having been notified of that decision. (G) Counsel admitted to the lists referred to in Rules 45 (B) and (C) of the Rules shall: (i) confirm his continued availability to be assigned to indigent suspects or accused every two years from the date of their admission to the list; and (ii) immediately advise the Registrar if he is no longer available to represent an accused or suspect for an extended period, being more than 6 months. If counsel fails to confirm his availability, the Registrar may, after giving notice to counsel, remove his name from the list.

Article 15 Professional certification (A) An applicant for admission to the lists envisaged in Rules 45 (B) and (C) of the Rules shall supply the Registrar with: (i) for applicants whose native language is not English or French, a certificate from a language institute or other evidence of proficiency in English or French; the Registrar may also require such applicants to demonstrate their language ability by means of a language proficiency test; (ii) a certificate of professional qualification issued by the competent professional or governing body, including a certificate of current practice and good standing; (iii) the names and addresses of two referees, who practise in the fields of criminal law, international humanitarian law, international human rights law or international criminal law, and who are in a position to advise the Registrar as to the professional competence of the applicants in these fields; (iv) and such other documentation the Registrar deems necessary. (B) The Registrar may refer an applicant for admission to the lists referred to in Rules 45(B) and (C) of the Rules to a panel composed ofjudges, members of the Advisory Panel, and/or fully qualified counsel to interview the applicant and make a recommendation on his application.

86 • Defense in International Criminal Proceedings

(C) An applicant who was denied admission to the list may seek review of the Registrar's decision before the President within fourteen days of receiving notification of this decision.

PART V-SCOPE OF ASSIGNMENT

Article 16 Basic principles (A) A suspect or accused shall be entitled to have one counsel assigned to him, and that counsel shall handle all stages of the procedure and all matters arising out of the conduct of the suspect's or accused's defence, including where two or more crimes are joined in one indictment, except where a second counsel has been assigned to the defence in accordance with Article 16 (C) . (B) Where persons accused of the same or different crimes are jointly charged or tried, each accused shall be entitled to request assignment of separate counsel. (C) (i) In the interests ofjustice and at the request of the person assigned as counsel, the Registrar may, in accordance with Article 14 above, assign other counsel to the defence. The counsel first assigned shall be called the lead counsel. (ii) At the request of lead counsel and where the interests ofjustice so require, the Registrar may assign a co-counsel who does not speak either of the two working languages of the Tribunal but who speaks the native language of the accused. The Registrar may impose such conditions as deemed appropriate. (iii) At the request of lead counsel, the Registrar may assign other persons such as legal assistants, consultants, investigators and interpreters, as required, to provide support to counsel. Lead counsel is responsible for all aspects of the defence, including selecting and supervising co-counsel and other members of the defence team. Under the authority of lead counsel, co-counsel may deal with all stages of the procedure and all matters arising out of the representation of the accused or of the conduct of his defence. Lead counsel shall sign all documents submitted to the Tribunal unless he authorises co-counsel, in writing, to sign on his behalf. No counsel shall be assigned to more than one suspect or accused at a time, unless: (i) Each accused has received independent legal advice from the Registrar and both have consented in writing; (ii) The assignment would neither cause prejudice to the defence of either accused, nor a potential conflict of interest. Counsel assigned pursuant to Rule 62 shall represent the accused for the purposes of his initial appearance only, unless the Registrar deems it appropriate that the representation continue until such time a permanent counsel is assigned by the Tribunal or retained by the accused.

ICTY • 87

Article 17 Assignment ofcounsel away from the seat ofthe Tribunal (A) Away from the seat of the Tribunal, and in a case of urgency, a suspect who, during the investigation, requests assignment of counsel, may indicate the name of counsel if he knows one who may be assigned in accordance with the provisions of this Directive. (B) Where the suspect fails to indicate a name, the Prosecutor, or a person authorised by him or acting under his direction, may contact the local Bar Association and obtain the name of counsel who may be assigned in accordance with the provisions of this Directive. (C) In the situations envisaged in paragraphs (A) and (B), the procedure for assignment of counsel as set out in this Directive shall apply mutatis mutandis but shall be accelerated where necessary.

4.2.3.

ICTY Case Law and Practice

The relevant provisions of the ICTY Statute, Rules and the Directive as outlined above are further supplemented by Registry's well-established policies based upon that legal framework as well as on relevant national practices and international and customary law principles, if relevant. The Registry's policies are in the process of being reviewed in the light of day-to-day practices, and especially, with a view to the recent amendments to the Rules and Directive.

4.2.3.1. 4.2.3.1.1.

The Chambers Article 21 ofthe Statute-Assignment ofCounsel-The Accused's Right to Defend Himself

Prosecutor \t. Milosevic-Reasons for Decision on Assignment of Defense Counsel, Case No. IT·02·54·T, Trial Chamber III, September 22, 2004, at Paragraphs 29-30, 32, 38, 42, 49, 51, 69-71 47 The Trial Chamber reads Article 21 (4) of the Statute as setting out a bundle of rights, which are embraced within the principle that the accused must have a fair trial, which is itself set out in Article 21 (2) of the Statute. The concept of fairness not only includes these specific rights but also has a much wider ambit, requiring that in all aspects the conduct of the trial must be fair to the accused. Hence, the specific rights are described as "minimum guarantees." Fairness is thus the overarching requirement of criminal proceedings. While Article 21 of the Statute sets out the rights of the accused, Article 20 imposes statutory obligations on the Trial Chambers to ensure the fairness and expeditiousness of the trial process as a whole, according full respect to the rights of the accused.

47 In an Order issued on September 10, 2004, the Trial Chamber granted certification to appeal the oral decision by the Trial Chamber of September 2, 2004, following the request filed by Court assigned counsel on September 9, 2004, on the grounds that the decision assigning counsel to the accused would affect fundamentally the future conduct of the trial.

88 • Defense in International Criminal Proceedings

The minimum guarantees set out in Article 21 (4) of the Statute are elements of the overarching requirement of a fair trial. It is in that context that the accused's right to defend himself in person, or through legal assistance of his own choosing, as set out in Article 21 (4) (d), must be read. Whether by way of self-representation or legal assistance, the purpose of the provision is to secure for an accused the right to a defence, which is a prerequisite for a fair trial. [... J Fundamental to that is ensuring that the accused has the opportunity and ability to present his defence fully and effectively. The jurisprudence of the IC~ the International Tribunal for Rwanda ("ICTR"), and the Special Court for Sierra Leone ("SCSL") recognizes that there may be circumstances where it is competent and appropriate for a Trial Chamber to insist that the defence is presented by counsel and not by the accused in person. Circumstances in which such a course may be appropriate have to be determined on a case-by-case basis, having regard to the particular circumstances of the case as a whole, including such factors as the ability of the accused to conduct his own defence, as well as his attitude and actions. This case law from the three international tribunals clearly suggests that the right of an accused to act on his own behalf embodied in the Statute of the IClY is not unqualified.

[... J The rationale behind the mandatory assignment of counsel in civil law jurisdictions appears to be that, in cases where the personal liberty of an accused is at stake, the right to a fair trial, which includes a right to an adequate and effective defence, actually imposes a duty on the State to ensure that the accused is represented by professional counsel whose task is to ensure that the interests of the accused are fully protected throughout the proceedings. Crucial to the determination of whether the trial was fair will be the fact that, whatever regime is put in place-self-representation combined with legal assistance, amici curiae, or mandatory assigned counsel-the accused was given reasonable opportunity to answer the charges against him and to lead evidence in support of that answer. Having decided to assign counsel to the accused, it is the duty of the Trial Chamber to ensure that the role of assigned counsel is so fashioned that the trial process will protect fundamental right of the accused to fair trial. The Trial Chamber is satisfied that assigned counsel will make determined efforts to discuss the presentation of the accused's defence with him. Should the accused fail to co-operate with counsel, the trial will nonetheless proceed. If such failure on the part of the accused results in material which is actually relevant to the accused's case not being presented, then the accused must bear responsibility for that and cannot plead injustice. The Trial Chamber granted a request for certification to appeal the oral decision by the Trial Chamber of 2 September 2004, in which it determined that it was both competent an appropriate to assign counsel to the accused. In granting certification of the appeal, the Trial Chamber accepted the submission of the court assigned counsel that the decision of the Trial Chamber to assign counsel would affect fundamentally the future conduct of the trial and, as such, found that a solution of the matter by the Appeals Chamber at this stage would be appropriate.

ICTY • 89

Prosecutor \t. Milosevic-Decision on Interlocutory Appeal of theTrial Chamber's Decision on the Assignment of Defense Counsel, Case No.IT-02-54-AR73.7, Appeals Chamber, November 1, 2004, at Paragraphs 16-20 The Appeals Chamber, while agreeing with the Trial Chamber's conclusion with regard to the accused's right to defend himself, dissents, however, with the Trial Chamber in its assessment of the Order for Modalities. In the Appeals Chamber's view, such an Order delegates Milosevic to a visibly second-tier role in the trial. The Appeals Chamber stated in its Decision that [... J These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milosevic's right to represent himself must be limited to the minimum extent necessary to protect the Tribunal's interest in assuring a reasonably expeditious trial. [... J The Appeals Chamber considers that a proportionality principle of this sort was clearly called for in the circumstances. Accordingly, the Appeals Chamber affirmed the Trial Chamber's imposition of defence counsel, but reversed its Order on Modalities. [... J On remand, the Trial Chamber should craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests ofjustice. At a minimum, this regime must be rooted in the default presumption that, when he is physically capable of doing so, Milosevic will take the lead in presenting his case-choosing which witnesses to present, questioning those witnesses before assigned counsel has an opportunity to do so, arguing any proper motions he desires to present to the court, giving a closing statement when the defense rests, and making the basis strategic decisions about the presentation of his defense. The Appeals Chamber further stressed that, in practice, "if all goes well," the trial should continue much as it did when Milosevic was healthy. [... J If Milosevic's health problems resurface with sufficient gravity, however, the presence of assigned counsel will enable the trial to continue even if Milosevic is temporarily unable to participate. The precise point at which that reshuffling of trial roles should occur will be up to the Trial Chamber.

Prosecutor \t. Milosevic-Decision on Assigned Counsel's Motion forWithdrawal (Modalities of Assigned Counsel's Assignment), Case No. IT-02-54-T, Trial Chamber III, December 7, 2004, at Paragraphs 32, 34-35 Counsel should continue to serve a valuable function in the filing of written legal submissions on matters such as subpoenas and binding orders in respect of certain witnesses, as well as other important aspects of the conduct of the defence case. [... J The underlying obligation of counsel will be to continue to act in the best interests of the accused [... J The Trial Chamber determined that the application by court assigned counsel to withdraw from their assignment should be denied and instructed the Registrar, pursuant to his powers under Article 19 of the Directive, to deny the application.w 48 See Decision of the Registrar of December 14, 2004 denying assigned counsel's application to withdraw.

90 • Defense in International Criminal Proceedings

Prosecutor \t. Milosevic-Decision Affirming the Registrar's Denial of Assigned Counsel's Application to Withdraw, Case No. IT-02-54-T, President, February 7,2005, at Paragraphs 9,11, 13 As already decided by the Appeals Chamber, an accused's refusal to cooperate with his lawyers does not require the Registrar to withdraw the assignment of counsel under Article 19 (A) of the Directive.

[... J But even if the Prosecution joined with Assigned Counsel to oppose the Registrar's decision, that would not decide the matter. As noted in the Appeals Chamber's ... Decision, the Tribunal has its own distinct set of interests at stake in this case, including first and foremost the interest in an outcome that is just, accurate, and reasonably expeditious. [... J Representing criminal defendants is not an easy task. Assigned counsel would do well to recognize that fact, to realize the breadth of activities that they can carry out even in the absence of Milosevic's cooperation, and to continue making the best professional efforts on his behalf that are possible under the circumstances. 4.2.3.1.2. The Accused's Right to Choose Counsel

Prosecutor \t. Blagojevic & Jokic-Decision on Independent Counsel for Vidoje Blagojevic's Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel, Case No. IT-02-60-T, Trial Chamber I, July, 3 2003, at Paragraphs 116-120 In assessing whether assigned counsel for an accused should be withdrawn, it is for the person seeking the withdrawal to satisfy the Registrar that he should exercise his discretion to withdraw such counsel "in the interest ofjustice." The factors or grounds that are of relevance to such a determination include, but are not limited to, fulfillment of professional obligations and responsibilities; satisfaction of qualification requirements pursuant to the Rules of the Tribunal; the existence of a conflict of interest; engagement in any form of misconduct; and performing responsibilities with diligence, competence and loyalty towards the client. The burden of proof is squarely on the person requesting the withdrawal of assigned counsel to demonstrate good cause for the withdrawal of assigned counsel. accused should, therefore, take great care in working with the Registrar to select their counsel. There is no absolute right for an indigent accused to choose his or her assigned counsel. This is a limited right, and it is within the Registrar's discretion to override the wishes of an accused if relevant and sufficient grounds exist for holding that this is necessary in the interests ofjustice. One aspect of the right to a fair trial is the right to an expeditious trial. Immediately before or at any time after the commencement of trial proceedings, only the most exceptional motions for withdrawal of counsel will be entertained, as any replacement of counsel will have an effect on the accused's right to be tried expeditiously. The Trial Chamber, while recognizing that friction existed between the accused and his counsel in the case at stake, stated that [... J Friction is not, however, equal to a fundamentallack of trust due to misconduct or manifest negligence. Choosing to cease communications with counsel is not equivalent to counsel breaching their obligation to communicate and consult with their client. A lack of trust in counsel based on disagreements in approach to ones defence, including the criteria upon which to deter-

ICTY • 91 mine the appropriate candidate for co-counsel, is distinguishable from a lack of trust due to a breach by counsel in fulfilling his professional and ethical responsibilities in the course of representation.

Prosecutor \t. Milan Martie-Decision on Appeal Against Decision of the Registry, Case No. IT-95-11-PT, Trial Chamber I, August, 2 2002, at Pages 5 and 6 Considering that the jurisprudence of the ICTY49 and of the ICTR indicates that the right of the indigent accused to counsel of his own choosing may not be unlimited but that, in general, the choice of any accused regarding his defence counsel in proceedings before the Tribunals shall be respected, the Chamber took the view that the choice of all accused should be respected unless there exist well-founded reasons not to assign counsel of choice.

4.2.3.1.3.

Article 16of the Directive-Accused's Right to Have a Second Counsel ("Co-Counsel") Assigned

Prosecutor \t. Blagojevie & Jokie-Decision on Independent Counsel for Vidoje Blagojevic's Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel, Case No. IT-02-60-T, Trial Chamber I, July, 3 2003, at Paragraphs 79, 84-85, 93 and 116 As evident from the Statute, Rules and the Directive, and recently affirmed in a decision by the President of the Tribunal, there is no right for the accused to have co-counsel; it falls within the discretion of the Registrar to appoint a co-counsel in the interests ofjustice and upon a request by the lead counsel. Even after one co-counsel had been appointed and subsequently withdrawn, there is no guaranteed right that the previous co-counsel will be replaced.

[... J The Trial Chamber finds that the appointment of Ms. Tomanovic as co-counsel was done in accordance with the requirements of the Rules and Directive, and that lead counsel acted in a manner consistent with his obligations under the Code in appointing her as co-counsel for the accused. [... J While it certainly is a more favourable situation when lead counsel and an accused can agree on the selection of co-counsel, barring evidence that the accused had a conflict of interest with the proposed co-counselor that she was manifestly unqualified or incompetent, or, that through her performance as legal assistant, proposed co-counsel demonstrated that she was ineffective or uninterested in being a zealous advocate for the accused, lead counsel's choice will be considered as a valid one. It was for the accused to present evidence of such factors, and in this case he failed to do so. The selection and appointment of Ms. Tomanovic as co-counsel must therefore stand. The Trial Chamber comes to this finding being mindful of the fact that it is the accused who is charged in these proceedings, and as such, clearly has a vested interest in the qualifications, performance and selection of the members of his defence team. 49 Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic, Simo Zaric, Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarevic, Case No. IT-95-9-PT, Mar. 25, 1999; Prosecutor v. Dusko Knezevic, Decision on Accused's Request for Review of Registrar's Decision as to Assignment of Counsel, Case No. IT95-4-PT/IT-95-8/1-PT, Sept. 6, 2002.

92 • Defense in International Criminal Proceedings -Defence strategy against the wishes of the accused

[... J Finally, in relation to claims of ineffective assistance of counsel such that the interests ofjustice require the replacement of counsel, which, arguably the accused may have been making at the March Hearing in relation to lead counsel, and is now making in the Motion ... , the Trial Chamber recalls that the person bringing such a claim must support the claim. To support such a claim, it must be demonstrated that, inter alia, counsel failed to act with competence, skill, care, honesty and loyalty; counsel failed to diligently and promptly protect the client's best interests; and failed to keep the client informed about the status of his case. The Trial Chamber has reviewed any implications upon the "effectiveness" of lead counsel in relation to the appointment of co-counsel above, and will examine here the broader allegation made through the Motion that the accused was not properly informed about the preparation and strategy of his defence. It is alleged that lead counsel did not communicate with him, and inform him of motions being filing on behalf of the accused before they were filed. Based on the submissions of counsel, and the supporting documentation thereto, the Trial Chamber finds that there was sufficient communication between the accused and lead counsel on the preparation of the defence, and sufficient communication about the case generally. Indeed, without seeking to violate attorney-client privilege, a cursory review of the filings sufficiently reveals for the Trial Chamber that such filings could not have been drafted without input from the accused.

[... J In relation to the obligation of the Registry to investigate and discover possible cases of ineffective assistance of counsel, bearing in mind that the Registry only places those lawyers who satisfy the requirements of Rules 44 and 45 on the list of qualified counsel to be assigned to indigent suspects or accused pursuant to Rule 45(B), the Trial Chamber recalls the finding by the European Court of Human Rights that a state cannot be held responsible for every short-coming on the part of a lawyer appointed for legal aid purposes. The Chamber considered that, [... J in what circumstances a given counsel decides to take a decision that may be against the wishes of the accused because that counsel, being competent and fulfilling professional obligations, genuinely believes that the decision is in the best interests of the client, is largely a question for counsel to answer. The Trial Chamber must satisfy itself "only" that the counsel made this decision in light of his/her obligations under the Rules, the Directive and the IClY Code of Professional Conduct, namely the duty of loyalty, honesty, competency, skill and care, with open communication, and the overarching duty to act in the best interests of the client.

4.2.3.1.4.

Article 11 of the Directive- Registrar's Refusal to Assign Counsel After Review of Accused's Indigent Status

Prosecutor \t. Dokmanovic-Decision on Defence Preliminary Motion on the Assignment of Counsel, Case No.IT-95-13a-PT, Trial Chamber II, September, 30 1997, at paragraphs 7, 9-10,12 After having assigned temporarily counsel for a thirty day period pending the determination of the accused's indigent status, the Registrar found that the accused had sufficient means to engage counsel of his choice therefore refusing the assignment of counsel. Based upon its inherent powers to ensure the integrity of the proceedings

ICTY • 93

[... J The accused challenged the determination by the Registrar, based on the Declaration of Means submitted pursuant to Article 8 of the Directive and other information gathered by her concerning his financial situation, that he had sufficient means to retain counsel of his own choosing. The accused submitted that a number of the facts relied upon by the Registrar are incorrect and that the value of his property was, in fact, significantly less than that estimated by the Registrar. The Trial Chamber considered that Article 21 of the Statute mandates the protection of the rights of accused persons. [... J These rights are fundamental and reflect the provisions of various international human rights instruments, which were carefully considered when the Statute was adopted. It is incumbent upon the Trial Chamber to ensure full respect for those rights, including the right to be represented by legal counsel and to have counsel assigned "where the interests ofjustice so require" and without payment by an accused, should he not have the requisite financial means available. The determination of indigency of an accused person and the assignment of counsel is within the competence of the Registrar and is regulated by the Directive. The Registrar has various methods at her disposal for the gathering and processing of relevant information and, generally, the Trial Chamber does not involve itself in this process. [... J It is difficult for a Trial Chamber to make the necessary assessment of facts upon which the determination of indigency rests [... J it must rely on the documents supplied by the Registrar in support of her decision along with those supplied by the accused. In this case it is clear that there is a dispute concerning the value of the property of the accused ... and this substantially affects the total amount of his financial assets. [... J Until the question over the value of the property and its disposability are resolved within the Registry, the Trial Chamber finds it appropriate to exclude this property from the calculation of the financial means of the accused ... When further information is available, this Decision may be reconsidered by the Trial Chamber.

Prosecution \t. loran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic andVladimir Santic-Decision on the Registrar's Withdrawal of the Assignment of Defence Counsel, Case No. IT-95-16, September, 3 1999, at Paragraph 6 Regarding the establishment of the burden and standard of proof for indigency, the Trial Chamber founded that the burden of proof shifts depending on the stage at which the decision is to be made. Articles 8 and 10 of the Directive deal with the declaration of financial means and information relating thereto to be submitted by the accused to the Registrar. At the initial stage the accused must satisfy the Registrar that he fulfils the requirements of Article 5 of the Directive. Thus the burden of proof is upon him. Article 19 of the Directive deals with the withdrawal of the assignment of counsel, after an initial showing of indigency ahs been made to the satisfaction of the Registrar. In this case the Registrar takes away a benefit which had already been granted to the accused. The burden of proof for the withdrawal is upon her.

94 • Defense in International Criminal Proceedings

4.2.3.2.

The ICTY President

4.2.3.2.1.

Rule 44B of the Rules-Procedure to Follow Regarding Assignment of CounselThe Discretion of the Registrar in Defining the Bounds of the"Interests of Justice" Exception

Prosecutor \t. Sljivancanin-Decision on Assignment of Counsel, Case No. IT-95-13/1-PT, President, August 13, 2003, at Paragraphs 22, 24-25 In the view of the President, the Registrar must provide the accused with at least a summary of the evidence upon which he intends to rely while taking his decision on assignment of counsel. He must also take into account whatever materials the accused (in consultation with the attorney of his choice) wishes to submit within some very short period to be determined by the Registrar so as to avoid undue delay. The President ruled that such obligation of the Registrar does not in any way relieve the accused of the burden of establishing that the interests ofjustice demand the assignment of the attorney of his choice. Nor does not it restrict the discretion of the Registrar in defining the bounds of the "interests of justice" exception. The accused (and attorney of his choice) need not be given an opportunity to respond to all materials collected by the Registrar, only to those upon which the Registrar intends actually to rely in making his decision. Regarding the discretionary powers of the Registrar to define the bounds of the "interests ofjustice" exception, the President considered that while the Registrar possesses the authority and the responsibility to define the "interests ofjustice" exception in the first instance, he must apply the definition consistently across cases with a view to established jurisprudence on the matter. The Registrar is certainly correct that he has the authority to change the criteria he uses in giving meaning to the "interests ofjustice" exception [... J In doing so, however, he must observe the following procedural regularities [... J intended to ensure fairness to affected parties, to improve the accuracy of the Registrar's decisions, and to establish a basis for effective judicial review of the Registrar's decisions. First, the Registrar must explain that he is changing the meaning of the "interests ofjustice" exception and why he is doing so. Second, he should do so in a way that does not leave a particular applicant facing new standards of which he could not reasonably be aware. [... J The Registrar may also announce a new interpretation in the course of ruling on a particular request for assignment of counsel, so long as he makes clear to the affected parties the standards upon which the request for assignment will be judged. The President further rejected the accused's claim that the refusal of the Registrar to assign the lawyers of his choice violated his right to choose counsel under Article 21 of the Statute, in accordance with IClY (and ICTR) jurisprudence.

4.2.4. 4.2.4.1.

Commentary Qualifications of Assigned Counsel-Article 14of the Directive

Before an internationaljudicial body as the ICTY, with a sui generis hybrid body of statutory law based upon both the inquisitorial and the adversariallegal systems, defense counsel's adequate qualifications and experience are essential to ensure the accused's right to a fair and expeditious trial.

ICTY • 95 The ICTY Registry has therefore given due consideration to reviewing counsel's qualifications as a prerequisite condition for counsel to appear before the Tribunal. Furthermore, the establishment in October 2002 of an association of defense counsel practicing before the Tribunal (the ADC), has assisted the Registry with verifying and improving the skills of assigned counsel. Subject to any determination by a Chamber pursuant to Rule 46 (Misconduct) or

77 (Contempt of Court) of the Rules or to the outcome of disciplinary proceedings as set forth in the ICTY Code of Professional Conduct, defense counsel shall be considered qualified to represent an accused if he or she satisfies the Registrar that he/she fulfills the requirements set forth in the Rules and Directive.

4.2.4.2.

The So-Called Rule 45 List

An important instrument in securing proper qualification of counsel is the list of counsel referred to in Rule 45 (B) of the Rules (the so-called Rule 45 list). Registration on this list is mandatory for assigned counsel. In addition, counsel shall be a member in good standing of the ADC.50 The Registrar shall also maintain a separate list of counsel who, in addition to fulfilling the qualification requirements set out in Rule 45(B), are readily available as "duty counsel" for assignment to an accused for the purposes of the initial appearance (the so called "duty counsel list") . Article 14 of the Directive further develops the Rules in this respect adding further requirements to be met by counsel in order to be included in the Rule 45 and duty counsel lists. Further to the amendment of Rules 44 and 45 of the Rules and Articles 14 and 15 of the Directive on July 28,2004, enforceable as of August 12, 2004, to set new higher qualification requirements for counsel practicing before the Tribunal, counsel included in the Rule 45 list have to satisfy the Registrar that they meet the new qualification requirements in order to remain on that list. Counsel engaged in ongoing proceedings will only be required to seek readmission to the list if their assignment is sought in a new case or if they are retained as counsel by a new client.

4.2.4.2.1.

Admission to the Practice of Law or University Professor of Law 51

Applicants must submit to the Registry relevant documentation supporting such a professional background to be reviewed jointly by the ADC and the Registry before adding counsel to the relevant list. The Registrar shall withdraw the assignment of counsel if counsel no longer satisfies the requirements for assignment as set out in the Directive. For instance, co-counsel shall be withdrawn if he/she does not possess the requisite level of experience in criminal law to comply with the requirements to be assigned as counsel, as set out in Articles 14(A) and 16 of the Directive.V

See Rule 44(A) (iii) of the Rules. See Rule 44(A) (i) of the Rules and Article 14(A) (i) of the Directive. 52 Prosecutor v. Momcilo Krajisnic, Case No. IT-00-39-PT, July, 30 2003-Mr. Neskovic informed the Trial Chamber that he had not intended to attend hearings, that he considered his role to be to remain in the field gathering evidence and coordinating investigative strategy for the duration of the prosecution case in chief and that he was more prepared to fulfill this role rather than to appear in court. 50

51

96 • Defense in International Criminal Proceedings

4.2.4.2.2.

The Language Requirement

In accordance with new Rule 44 (A) (ii) of the Rules, in order to qualify to represent an accused, counsel shall satisfy the Registrar that he or she has written and oral proficiency in one of the two working languages of the Tribunal. The Registrar may waive this requirement in the interests ofjustice and admit counsel who does not speak English or French but who speaks the native language of the suspect or accused. The Registrar may, in such a case, impose such conditions as deemed appropriate, including the requirement that counsel and/or accused undertake to meet all translation and interpretation costs not usually met by the Tribunal and not to request any extensions of time as a result of the fact that he does not speak one of the Tribunal's working languages, strengthening the language requirement. Article 14(C) of the Directive further narrows the role of counsel admitted to the Rule 45 list who does not speak an official language of the Tribunal. Such counsel can be assigned only as co-counsel to the accused. Simultaneous interpretation is available into English, French and BCS (Bosnian/Croatian/Serbian) while in the courtroom.

4.2.4.2.3.

Established Competence in Criminal Law and/or International Criminal Law/ International Humanitarian Law/International Human Rights Law

Defense counsel must possess at least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other capacity. A certificate of professional qualification, issued by the competent professional or governing body, including a certificate of current practice and good standing shall be supplied to the Registrar while applying to be included in the Rule 45 and duty counsel lists. In addition, counsel shall submit two referees who practice in the field of criminal law, international humanitarian law, international human rights law or international criminal law, and who are in a position to advise the Registrar as to the professional competence of the applicant in these fields. An applicant who was denied admission to the list may seek review of the Registrar's decision before the President within 14 days of receiving notification of this decision.

4.2.4.2.4.

Disciplinary and Criminal Record 53

Counsel must satisfy the Registrar that he/she has not been found guilty or otherwise disciplined in relevant disciplinary proceedings in a national or international forum, including proceedings pursuant to the IClY Code of Professional Conduct, he/she has not been found guilty in relevant criminal proceedings and has not engaged in conduct whether in pursuit of his profession or otherwise, which is dishonest or otherwise discreditable to a counsel, prejudicial to the administration ofjustice or likely to diminish public confidence in the IClY or the administration ofjustice or otherwise bring the IClY into disrepute. The Registrar has therefore a margin of appreciation to assess the relevance and gravity of the offenses in the light of the circumstances on a case by case basis. Furthermore, counsel will only qualify to be on the Rule 45 or duty counsel's lists if they satisfy the Registrar that they have not provided false or misleading information 53 See Rule 44(iv), (v), (vi) and (vii) of the Rules and Article 14(A) (v), (vi) and (vii) of the Directive.

ICTY • 97 in relation to their qualifications and fitness to practice or failed to provide relevant information.

4.2.4.2.5.

Counsel's Availability

With a view to the necessity of avoiding, as much as practicable, any delays while processing requests for assignment of counsel, counsel included in the Rule 45 list shall have indicated their availability and willingness to be assigned by the Tribunal to any person detained under the authority of the Tribunal lacking the means to remunerate counsel.v' As mentioned above, the Registry also maintains a separate list of counsel readily available as "duty counsel" for assignment for the purpose of the accused's initial appearance. Counsel admitted to the Rule 45 and the duty counsel lists shall confirm his/her continued availability to be assigned to indigent suspects or accused every two years from the date of their admission to the list. Counsel shall also immediately advise the Registrar if he/she is no longer available to represent an accused for an extended period, i.e., more than six months. If counsel fails to confirm his/her availability, the Registrar may, after giving notice to counsel, remove his name from the list. 55

4.2.4.2.6.

ADC Membership in Good Standing 56

Defense counsel started being collectively represented in October 2002. The initiative to create an association of counsel practicing before the Tribunal was initially developed by a working group of acting defense counsel, including a representative of the Dutch Bar Association and a representative from the IClY Registry in January of 2002. The judges endorsed the ADC at a plenary meeting ofJuly 2002. The ADC was established under Dutch law on September 20, 2003, and officially acknowledged by the Registrar on October 4, 2002. This resulted in an amendment to the Rules, which now require counsel's ADC membership in good standing.

4.2.4.3.

Removal From the Rule 45 and Duty Counsel Lists57

The Registrar may, after giving counsel a warning and an opportunity to respond, remove the name of counsel from the Rule 45 and duty counsel lists upon a decision by a Chamber in relation to counsel misconduct, (1) where counsel has been found to be in contempt pursuant to Rule 77 of the Rules, in consultation with the Chamber, (2) where counsel has provided false information in relation to his or her qualification to be admitted to the list, or has failed to provide relevant information and, (3) where counsel has been found guilty of a disciplinary offense under the IClY Code of Professional Conduct, in consultation with the Chamber. Counsel may seek review of the Registrar's decision before the President within 14 days of having been notified of that decision.

54 55

56

57

See Rule 45 (B) (iv) of the Rules. See Article 14(G) of the Directive. See Rule 44(A) (iii) of the Rules and Article 14(ix) of the Directive. See Article 14(D) and (E) of the Directive.

98 • Defense in International Criminal Proceedings The Registrar shall remove the name of counsel from the Rule 45 and duty counsellists (1) upon a decision by a Chamber in relation to counsel misconduct, (2) upon a final decision after completion of disciplinary proceedings under the IClY Code of Professional Conduct that counsel is banned from practicing before the Tribunal and (3) where counsel no longer satisfies the qualification requirements set out in the Directive.v'

4.2.4.4. 4.2.4.4.1.

Procedure for Assignment of Counsel 59 Right to Assigned Counsel

Accused lacking the means to remunerate counsel at the rates provided for by the Directive shall be entitled to assignment of counsel paid for by the Tribunal. The Directive also envisages partial legal aid. Consequently, accused who dispose of means to partially remunerate counsel shall cover a portion of their legal representation, which is calculated in accordance with the means of all kinds they have direct or indirect enjoyment or freely dispose of. The Registry's investigative powers are fairly broad compared to other legal aid systems. The income and assets of the applicant, his spouse and the persons with whom he habitually resides will be assessed. In doing so the Registry may rely on the information provided by the applicant in the declaration of means or undertake an inquiry into the applicant's means in accordance with the Directive. From the disposable means, the Registry deducts the estimated living expenses of the applicant's family and dependents during the estimated period in which the applicant will require representation before the International Tribunal. The amount remaining is the contribution to be made by the applicant to his defense.

4.2.4.4.2.

Right to Choose Counsel

Article 21 of the Statute establishes that an accused shall be entitled to defend himself through legal assistance of his own choosing. Neither the Statute nor the Rules expressly recognize the right to counsel of one's own choosing. The accused's right to choose counsel is nonetheless a fundamental right for everyone charged with a criminal offense. Bearing this in mind, the Registry's practice has been to abide by the accused's choice subject to counsel fulfilling all qualification requirements to ensure the most efficient defense possible in the context of a fair trial. The Registry has therefore tried to accommodate the accused's wishes as much as possible, unless it has reasonable and valid grounds not to grant the request.The defendant's wishes must however be overriden when there are relevant and sufficient grounds for holding that this is necessary in the interests ofjustice. The language requirement, strengthened through the latest amendments to the Rules and Directive, has been without any doubt the most controversial one. The existence of a potential conflict of interest or alleged fraud practices has also been considered as a reasonable ground to limit the accused's choice of assigned counsel. The Registrar may also refuse a request for assignment of counsel where contempt or disciplinary proceedings under the IClY Code of Professional Conduct have been initiated against counsel.

58 59

See Article 14 (A) . See Chapter 2 of the Directive, Articles 7 through 10.

ICTY • 99 It therefore appears that certain limitations on the right of the accused to choose counsel are justified in the interests ofjustice as it has been recognized by IClYjurisprudence. It has also been the reasoning behind the latest amendment of the Rules and the Directive streamlining counsel's qualification requirements with a view to the Registry's duty to ensure effective legal representation.

4.2.4.4.3.

Initial Assignment

Accused who wish to have counsel assigned by the IClY shall make a written request to the Registry and produce sufficient evidence that they lack the means to remunerate counsel at the rates provided for by the Directive. Otherwise, the accused must file a power of attorney with the Registry. In order to ensure that the accused's choice has not been influenced by soliciting counsel, the Registry does not accept a power of attorney filed by the lawyer on behalf of the accused. Defense counsel is temporarily assigned by the Registry to ensure that the accused's right to counsel is not affected pending determination of whether the accused satisfy the requisite conditions for assignment of counsel, and to what extent, under the terms of the Directive. If an accused requests an assignment of counsel but does not comply with the requirements set out within a reasonable time, fails to obtain or to request assignment of counsel or fails to elect in writing that he/she intends to conduct his or her own defense, the Registrar may nevertheless assign him/her counsel in the interests ofjustice.

4.2.4.4.4.

Remedy Against the Registrar's Decision

The accused whose request for assignment of counsel has been denied, may, within two weeks of the date of notification to him/her, make a motion to the Chamber before which he/she is due to appear for immediate review of the Registrar's decision. The Chamber may confirm the Registrar's decision, rule that the accused has means to partially remunerate counsel, in which case it shall refer the matter again to the Registrar for determination of which parts shall be borne by the Tribunal or rule that counsel should be assigned to the accused.

4.2.4.4.5.

Scope of Assignment

Accused is entitled to have one counsel assigned to him or her (the so-called lead counsel). A second counsel (the so-called co-counsel) may be assigned in the interests of justice and at the request of the lead counsel. Lead counsel may also request the Registrar to assign other members of the defense team such as legal assistants, consultants, investigators and interpreters, as required, to provide support to counsel (the socalled supporting staff). Lead counsel is responsible for all aspects of the defense, including selecting and supervising co-counsel and other members of the defense team. Co-counsel may deal with all stages of the procedure and all matters arising out of the representation of the accused or the conduct of his or her defense. In order to prevent a potential conflict of interest, as a general rule, defense counsel shall not be assigned to more than one accused at a time. It may however be efficient and in line with the accused's right to a fair and expeditious trial to have counsel, especially the ones experienced before the ICTY, assigned to more than one accused. The Registrar may consider such an assignment only if each accused has received inde-

100 • Defense in International Criminal Proceedings pendent legal advice from the Registrar and both have consented in writing and the assignment would neither cause prejudice to the defense of either accused, nor a potential conflict of interest. In practice, the Registrar shall take into account, inter alia, the current status, in terms of expected workload, of the proceedings on which counsel would be involved. Thus, counsel's involvement in almost completed appeals and early pre-trials might be possible. Duty counsel assigned pursuant to Rule 62 of the Rules shall represent the accused for the purposes of his or her initial appearance only, unless the Registrar deems it appropriate that the representation continue until such time as permanent counsel is assigned by the Tribunal or retained by the accused. In relation to the assignment of counsel to assist suspects during the prosecution's investigations away from the seat of the Tribunal, the Registry shall ensure that the suspect is fully informed of his/her rights, especially regarding self-incrimination. The Registry must hence verify that local counsel either chosen directly by the suspect or recommended by the prosecution fulfill the qualification requirements to be assigned pursuant to the Rules and Directive.

4.3. PROFESSIONAL ETHICS 4.3.1.

Introduction

Defense counsel appearing before the Tribunal are subject to the IClY rules of professional conduct's' (The Code) and its disciplinary regime. Counsel are also bound by their respective national ethical rules. In case of conflict, the IClY Code shall prevail over the domestic rules. According to the Rules, counsel is qualified to represent a detainee if he is admitted to the practice of law in a state or is a university professor of law. This means that a counsel is bound by his/her oath or the rules of his/her governing body, which usually implies, in many countries, that counsel binds himself/herself to act with competence, skill, honesty and loyalty when providing representation. A University professor is also bound by the rules of his/her governing body, being a public service's agent. Notwithstanding lawyers' overriding duty to represent their clients, they also playa role as officers of the court having special responsibility for the quality of justice. Although the legal profession is usually largely self-governing, lawyers have a responsibility to ensure that their regulations are conceived in the public interest and that all the interested parties abide by them.

60 Code of Professional Conduct for Defense Counsel Appearing Before the International Tribunal, as adopted on June 12, 1997 and latest amended on July 12, 2002 (IT-125 Rev. 1).

ICTY • 101

4.3.2. 4.3.2.1.

Legal Framework Rule 46 ofthe Rules (Misconduct) 61 Rule 46 Misconduct ofCounsel

(A) If a Judge or a Chamber finds that the conduct of a counsel is offensive, abusive or otherwise obstructs the proper conduct of the proceedings, or that a counsel is negligent or otherwise fails to meet the standard of professional competence and ethics in the performance of his duties, the Chamber may, after giving counsel due warning: (i) refuse audience to that counsel; and/or (ii) determine, after giving counsel an opportunity to be heard, that counsel is no longer eligible to represent a suspect or an accused before the Tribunal pursuant to Rule 44 and 45. (B) AJudge or a Chamber may also, with the approval of the President, communicate any misconduct of counsel to the professional body regulating the conduct of counsel in the counsel's State of admission or, if a university professor of law and not otherwise admitted to the profession, to the governing body of that counsel's University. (C) Under the supervision of the President, the Registrar shall publish and oversee the implementation of a Code of Professional Conduct for defence counsel.

4.3.2.2.

Rule 77 ofthe Rules (Contempt ofCourt) Rule 77 Contempt ofthe Tribunal

(A) The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration ofjustice, including any person who (i) being a witness before a Chamber, contumaciously refuses or fails to answer a question; (ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber; (iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber; (iv) threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness; or (v) threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber.

61

As latest amended on July 28, 2004, enforceable as of August 12, 2004.

102 • Defense in International Criminal Proceedings (B) Any incitement or attempt to commit any of the acts punishable under paragraph (A) is punishable as contempt of the Tribunal with the same penalties. (C) When a Chamber has reason to believe that a person may be in contempt of the Tribunal, it may: (i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for contempt; (ii) where the Prosecutor, in the view of the Chamber, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating contempt proceedings; or (iii) initiate proceedings itself. (D) If the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may: (i) in circumstances described in paragraph (C) (i), direct the Prosecutor to prosecute the matter; or (ii) in circumstances described in paragraph (C) (ii) or (iii), issue an order in lieu of an indictment and either direct amicus curiae to prosecute the matter or prosecute the matter itself. (E) The rules of procedure and evidence in Parts Four to Eight shall apply mutatis mutandis to proceedings under this Rule. (F) Any person indicted for or charged with contempt shall, if that person satisfies the criteria for determination of indigence established by the Registrar, be assigned counsel in accordance with Rule 45. (G) The maximum penalty that may be imposed on a person found to be in contempt of the Tribunal shall be a term of imprisonment not exceeding seven years, or a fine not exceeding 100,000 Euros, or both. (H) Payment of a fine shall be made to the Registrar to be held in a separate account. (I) If a counsel is found guilty of contempt of the Tribunal pursuant to this Rule, the Chamber making such finding may also determine that counsel is no longer eligible to represent a suspect or accused before the Tribunal or that such conduct amounts to misconduct of counsel pursuant to Rule 46, or both.

0) Any decision rendered by a Trial Chamber under this Rule shall be subject to appeal. Notice of appeal shall be filed within fifteen days of filing of the impugned decision. Where such decision is rendered orally, the notice shall be filed within fifteen days of the oral decision, unless (i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or (ii) the Trial Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision.

ICTY • 103 (K) In the case of decisions under this Rule by the Appeals Chamber sitting as a Chamber of first instance, an appeal may be submitted in writing to the President within fifteen days of the filing of the impugned decision. Such appeal shall be decided by five differentJudges as assigned by the President. Where the impugned decision is rendered orally, the appeal shall be filed within fifteen days of the oral decision, unless (i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or (ii) the Appeals Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision.

4.3.2.3.

The ICTY Code PART TWO OBLIGATIONS OF COUNSEL Article 7 Purpose

The purpose of this Part is to provide for standards of conduct for counsel in the interests of the fair and proper administration ofjustice.

SECTION 1: OBLIGATIONS OF COUNSEL TO CLIENTS Article 8 Scope of Representation (A) Counsel shall advise and represent a client until counsel's representation is terminated by the client or withdrawn by the Registrar. (B) When representing a client, counsel shall: (i) abide by the client's decisions concerning the objectives of representation; (ii) consult with the client about the means by which those objectives are to be pursued, but is not bound by the client's decision; and (iii) seek or accept only those instructions which emanate from the client and which are not given as the result of an inducement from any person, organisation or State. (C) Counsel shall not advise or assist a client to engage in conduct which counsel knows is criminal or fraudulent, in breach of the Statute, the Rules, this Code or any other applicable law and, where counsel has been assigned to the client, the Directive. However, counsel may discuss the legal consequences of any proposed course of conduct with a client and may advise or assist a client in good faith to determine the validity, scope or meaning of the applicable law.

104 • Defense in International Criminal Proceedings

Article 9 Declining, terminating or withdrawing representation (A) Counsel shall not represent a client if: (i) representation will result in conduct which is criminal, fraudulent or a violation of the Statute, the Rules, this Code or any other applicable law; (ii) counsel's physical or mental condition materially impairs counsel's ability to represent the client; or (iii) counsel's representation is terminated by the client or withdrawn by the Registrar. (B) Counsel may terminate or request, if applicable subject to the provisions of the Directive, withdrawal of his representation of a client if such termination or withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (i) the client has used counsel's services to perpetrate a crime or fraud, or persists in a course of action involving counsel's services that counsel reasonably believes is criminal or fraudulent; (ii) the client insists upon pursuing an objective that counsel considers repugnant or imprudent; (iii) the client fails to substantially fulfil an obligation to counsel regarding counsel's services and has been given reasonable warning that counsel will terminate or request withdrawal of his representation unless the obligation is fulfilled; or (iv) other good cause for termination or withdrawal exists. (C) Subject to leave from the Chamber, if representation by counsel is to be terminated or withdrawn, counsel shall not do so until a replacement counsel is engaged by the client or assigned by the Registrar, or the client has notified the Registrar in writing of his intention to conduct his own defence. (D) Upon termination or withdrawal of representation, counsel shall take steps to the extent reasonably practicable to protect the client's interests, such as giving sufficient notice to the client, surrendering papers and property to which the client or the Tribunal is entitled and refunding any advance payment of fee that has not been earned.

Article 10 Competence, Integrity and Independence In the course of providing representation to a client, counsel shall: (i) act with competence, skill, care, honesty and loyalty; (ii) exercise independent professional judgement and render open and honest advice; (iii) never be influenced in the matter of his representation; (iv) preserve their own integrity and that of the legal profession as a whole; (v) never permit their independence, integrity and standards to be compromised by external pressures.

ICTY • 105

Article 11 Diligence Counsel shall represent a client diligently and promptly in order to protect the client's best interests. Unless the representation is terminated or withdrawn, counsel shall carry through to conclusion all matters undertaken for a client within the scope of his legal representation.

Article 12 Communication Counsel shall keep a client informed about the status of a matter before the Tribunal in which the client is an interested party and must promptly comply with all reasonable requests for information.

Article 13 Confidentiality (A) Whether or not counsel continues to represent a client, counsel shall preserve the confidentiality of the client's affairs and shall not reveal to any other person, other than to members of his team who need such information for the performance of their duties, information which has been entrusted to him in confidence or use such information to the client's detriment or to his own or another client's advantage. (B) Notwithstanding paragraph (A), counsel may reveal information which has been entrusted to him in confidence under the following circumstances: (i) when the client has been fully consulted and knowingly consents; (ii) when the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure; or (iii) when essential to establish a claim or defence on behalf of counsel in a controversy between counsel and the client, to establish a defence to a criminal or disciplinary charge or other claim formally instituted against counsel based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning counsel's representation of the client; or (C) to prevent an act which counsel reasonably believes: (i) is, or may be, criminal within the territory in which it may occur or under the Statute or the Rules; and (ii) may result in death or substantial bodily harm to any person unless the information is disclosed.

Article 14 Conflict of Interest (A) Counsel owes a duty of loyalty to a client. Counsel also has a duty to the Tribunal to act with independence in the interests ofjustice and shall put those interests before his own interests or those of any other person, organisation or State.

106 • Defense in International Criminal Proceedings (B) Counsel shall exercise all care to ensure that no conflict of interest arises. (C) Counsel shall not represent a client in connection with a matter in which counsel participated personally and substantially as an official or staff member of the Tribunal or in any other capacity, unless the Registrar determines, after consultation with the parties and taking account the views of the Chamber, that there is no real possibility shown that a conflict between the former and present assignment exists. (D) Counselor his firm shall not represent a client with respect to a matter if: (i) such representation will be, or may reasonably be expected to be, adversely affected by representation of another client; (ii) representation of another client will be, or may reasonably be expected to be, adversely affected by such representation; (iii) the matter is the same or substantially related to another matter in which counsel or his firm had formerly represented another client ("former client"), and the interests of the client are materially adverse to the interests of the former client; or (iv) counsel's professional judgement on behalf of the client will be, or may reasonably be expected to be, adversely affected by: (1) counsel's responsibilities to, or interests in, a third party; or (2) to counsel's own financial, business, property or personal interests. (E) Where a conflict of interest does arise, counsel shall: (i) promptly and fully inform each potentially affected present and former client of the nature and extent of the conflict; and (ii) either: (1) take all steps necessary to remove the conflict; or (2) obtain the full and informed consent of all potentially affected present and former clients to continue the representation unless such consent is likely to irreversibly prejudice the administration ofjustice.

Article 15 Sexual Relations with Clients Counsel shall not: (i) require or demand sexual relations with a client as a condition of professional representation; (ii) employ coercion, intimidation or undue influence in sexual relations with a client; or (iii) represent or continue to represent a client with whom counsel has or had sexual relations if such sexual relations may reasonably be expected to result in violations of this Code.

ICTY • 107

Article 16 Client under a Disability When a client's ability to make adequately considered decisions in connection with his representation is affected because of a mental disability, his status as a minor or any other reason, counsel shall: (i) inform the Judge or Chamber hearing the matter, if any, of the client's mental disability or status as a minor; and (ii) take such steps as are necessary to ensure the adequate legal representation of that client.

Article 17 Consultations with Clients on Provisional Release orat Liberty (A) Counsel shall not consult with a client on provisional release or at liberty at the client's place of residence. (B) Notwithstanding paragraph (A), counsel may exceptionally consult with a client at his residence if illness, physical disability or other constraints restrict the client's mobility and preferably in the presence of an independent person.

Article 18 Fee-splitting (A) Fee-splitting arrangements, including but not limited to financial arrangements, between assigned counsel and their clients, relatives and/or agents of their clients are prohibited by the Tribunal. (B) Where assigned counsel are being requested, induced or encouraged by their clients to enter into fee-splitting arrangements, they shall advise their clients on the prohibition of such practice and shall report the incident to the Registrar forthwith. (C) Counsel shall inform the Registrar of any alleged fee-splitting arrangement by any member of his or any other defence team. (D) Following receipt of information regarding possible fee-splitting arrangements between assigned counsel and their clients, the Registrar shall investigate such information in order to determine whether it is substantiated. (E) Where assigned counsel is found to have engaged in a practice of fee-splitting or to have entered into a fee-splitting arrangement with his client, the Registrar shall consider taking action in accordance with the Directive. (F) Where the Registrar has granted leave, counsel may provide their clients with equipment and materials necessary for the preparation of their defence.

Article 19 Fees and Compensation (A) Counsel, other than counsel assigned by the Registrar, shall provide to a client, in writing and before counsel is engaged to represent a client, a statement of costs of representation, including:

108 • Defense in International Criminal Proceedings (i) the basis for calculating the costs; (ii) the billing arrangements; and (iii) the client's right to receive a bill of costs. (B) Counsel, other than counsel assigned by the Registrar, shall not accept compensation for representing a client from a source other than that client unless: (i) that client consents in writing after being fully informed by counsel of the source and any other information relevant to the interests of the client; and (ii) there is no interference with counsel's independence of professional judgement nor with the client-counsel relationship. (C) Counsel, if assigned by the Registrar, shall not accept compensation for representing a client except as provided for under the Directive.

SECTION 2: CONDUCT BEFORE THE TRIBUNAL Article 20 Rules ofthe Tribunal Counsel shall at all times comply with the Statute, the Rules, this Code or any other applicable law including such rulings as to conduct and procedure as may be issued by the Tribunal in its proceedings. Counsel shall at all times have due regard to the fair conduct of proceedings.

Article 21 Discriminatory Conduct Counsel shall not engage directly or indirectly in discriminatory conduct in relation to any other person because of race, colour, ethnic or national origin, nationality, citizenship, sex, sexual orientation, marital status, disability, religion or political persuasion.

Article 22 Communications with the Chambers Unless permitted by the Rules, this Code or theJudge or Chamber hearing the matter, counsel shall not: (i) make contact with aJudge or Chamber in relation to the merits of a particular case, except within the proper context of the proceedings in the case; or (ii) submit exhibits, notes or documents to aJudge or Chamber without transmitting them through the Registry, except in an emergency or when at the same time transmitted to the Registry.

Article 23 Candour Toward the Tribunal (A) Counsel shall be personally responsible toward the Tribunal for the conduct and presentation of a client's case.

ICTY • 109 (B) Counsel shall not knowingly: (i) make an incorrect statement of material fact or law to the Tribunal; or (ii) offer evidence which counsel knows to be incorrect. (C) Notwithstanding paragraph (B) (i), counsel will not have made an incorrect statement of material fact or law to another party to the proceedings or to the Tribunal simply by failing to correct an error on any matter stated to counselor to the Tribunal during proceedings. (D) Counsel shall take all necessary steps to correct an incorrect statement of material fact or law by counsel in proceedings before the Tribunal as soon as possible after counsel becomes aware that the statement was incorrect. (E) Counsel may refuse to offer evidence if counsel makes a reasoned determination that the material in question is irrelevant or lacks probative value.

Article 24 Integrity of Evidence Counsel shall at all times maintain the integrity of evidence, whether in written, oral or any other form, which is or may be submitted to the Tribunal.

Article 25 Meritorious proceedings and claims Counsel shall not bring or defend a proceeding or action unless there is a basis for doing so that is not frivolous. It shall not be considered frivolous for counsel to defend a proceeding so as to require that every element of the case be established.

Article 26 Counsel as Witness Counsel shall not act as an advocate in a proceeding in which counsel is likely to be a necessary witness except where: (i) the testimony relates to an uncontested issue; (ii) the testimony relates to the nature and value of legal services rendered in the case; or (iii) substantial hardship would be caused to the client if that counsel does not so act.

SECTION 3: OBLIGATIONS OF COUNSEL TO OTHERS Article 27 Persons Facilitating or Participating in the Proceedings (A) Counsel shall demonstrate respect, integrity and courtesy for officials and staff members of the Tribunal and for all persons who facilitate and participate in the proceedings.

110 • Defense in International Criminal Proceedings (B) Counsel shall not seek to influence or communicate with aJudge, official, or staff member of the Tribunal by means prohibited by the Statute, the Rules, this Code or any other applicable law. (C) Counsel shall recognise the representatives of the parties as professional colleagues and shall act fairly, honestly and courteously towards them. (D) Counsel shall not communicate with the client of another counsel without the authorisation of that client's counsel unless permitted under the Rules, this Code or any other applicable law.

Article 28 Victims and Witnesses (A) Counsel shall not use any means that have no substantial purpose other than to embarrass, delay or burden victims and witnesses, or use coercive or other methods of obtaining evidence that violate the Statute, the Rules or this Code. (B) Counsel shall not make any payments in monies or assets to witnesses or potential witnesses for the purpose of unduly influencing or inducing such witnesses or potential witnesses.

Article 29 Unrepresented Persons (A) Counsel communicating, on behalf of a client, with a person who is not represented by counsel ("unrepresented person"), shall not:

(i) knowingly mislead the unrepresented person, to the prejudice of that person, concerning the identity and interests of counsel's client; (ii) coerce, harass or threaten the unrepresented person or his relatives; (iii) state or imply that counsel is disinterested; (iv) make other statements prohibited by applicable law; (v) fail to disclose information required by applicable law; or (vi) give advice to the unrepresented person, except to retain counsel and in relation to matters specified under paragraph (B), if the interests of that person are or may reasonably be expected to be in conflict with the interests of his client. (B) Whether or not a conflict exists or may exist with the interests of counsel's client, counsel shall inform the unrepresented person of: (i) the role counsel plays in the matter; (ii) the person's right to counsel under the Rules; and (iii) the nature of legal representation in general.

ICTY • 111

Article 30 Prospective Clients Counsel shall not: (i) contact a prospective client, his relatives or acquaintances directly or indirectly; (ii) solicit work from a prospective client, if: (1) the prospective client, his relatives or acquaintances have made known to counsel a desire not to be solicited by counsel; or (2) the solicitation involves behaviour such as fraud, undue influence, coercion, duress or harassment; or (iii) make false, misleading or deceptive communications to a prospective client, his relatives or acquaintances about the counselor another counsel's services.

Article 31 Referral Fees (A) Counsel shall not demand or accept from another counselor any other person a fee, commission or any other compensation for referring or recommending the counsel to a client. (B) Counsel shall not pay any person a fee, commission or any other compensation as a consideration for referring a client to the counsel.

SECTION 4: SUPERVISORY AND SUBORDINATE CONDUCT Article 32 Responsibilities ofSupervisory Counsel (A) Counsel having direct supervisory authority over another counsel in his team shall make reasonable efforts to ensure that the other counsel adheres to this Code. (B) Counsel shall be responsible for another counsel's violation of this Code if: (i) counsel orders, or with knowledge of the specific conduct, approves the conduct involved; or (ii) counsel has direct supervisory authority over the other counsel, and knew or had reason to know of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Article 33 Responsibilities ofSubordinate Counsel (A) Counsel is bound by this Code notwithstanding that counsel acted at the direction of another counsel. (B) Counsel reasonably acting in accordance with a supervisory counsel's reasonable resolution of an arguable question of professional duty shall not be considered to have violated this Article.

112 • Defense in International Criminal Proceedings

Article 34 Responsibility for other Team Members (A) Counsel having direct supervisory authority over other members of his team shall make reasonable efforts to ensure that such members' conduct is compatible with the professional obligations of counsel. (B) Counsel shall be responsible for the conduct of other members of his team who provide services for counsel that would be a violation of this Code if engaged by counsel if: (i) counsel orders or, with knowledge of the specific conduct, approves the conduct involved; or (ii) counsel has direct supervisory authority over the team member, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

SECTION 5: MAINTENANCE OFTHE INTEGRITY OFTHE PROFESSION Article 35 Misconduct It shall be professional misconduct for counsel, inter alia, to: (i) violate or attempt to violate the Statute, the Rules, this Code or any other applicable law, or to knowingly assist or induce another person to do so, or to do so through the acts of another person; (ii) commit a criminal act which reflects adversely on counsel's honesty, trustworthiness or fitness as counsel; (iii) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (iv) engage in conduct which is prejudicial to the proper administration ofjustice before the Tribunal; or (v) provide inaccurate information or fail to disclose information regarding counsel's qualifications to practice before the Tribunal as set out in the Rules and, where counsel has been assigned to a client, the Directive.

Article 36 Reporting Misconduct In accordance with the disciplinary regime set out in Part Three of this Code, counsel shall inform the Disciplinary Panel if counsel knows that another counsel has breached this Code or has otherwise engaged in professional misconduct.

ICTY • 113

PARTTHREE DISCIPLINARY REGIME Article 37 Purpose The purposes of this Part are: (a) to protect clients and other individuals, and particularly witnesses from counsel who have not discharged, will not discharge or are unlikely to discharge their professional responsibilities and to provide every person the right to submit a complaint about the conduct of counsel; (b) to ensure compliance by individual counsel with the necessary standards of professionalism, competence, diligence and honesty and to maintain at a significantly high level the ethics and practice of the legal system operated by the Tribunal; and (c) to guarantee that procedural fairness is applied to any disciplinary proceedings taken against counsel.

Article 38 Inherent Powers ofthe Tribunal This Part shall not affect the inherent powers of the Tribunal to deal with conduct which interferes with the administration ofjustice under the Statute, the Rules or any other applicable law.

Article 39 Filings, Decisions and Orders Unless otherwise provided in this disciplinary regime, all filings, decisions and orders in relation to the disciplinary regime shall be submitted in confidence to, or transmitted by, the Registry in a working language of the Tribunal. The Registry shall maintain all records for the purposes of this disciplinary regime.

Article 40 Disciplinary Panel (A) A Disciplinary Panel shall deal with all matters relating to counsel ethics. The Panel shall consist of: (i) a member of the Association of Counsel to be appointed in accordance with the Association's statute; (ii) a member of the Advisory Panel having practised at the Tribunal to be appointed by the President of the Advisory Panel; (iii) the Registrar of the Tribunal, or a senior Registry legal official designated by him. (B) The members of the Panel shall select at its first meeting a counsel chairperson from amongst its members. The chairperson shall be appointed for a term of two years.

114 • Defense in International Criminal Proceedings

(C) Except as otherwise provided by this Code, the Panel may determine its own procedure for the filing of briefs and presentation of argument. (D) Complaints concerning the conduct of a counselor a member of his team relating to matters before the Tribunal and specified in Article 35 shall be submitted to the Chairperson of the Panel in accordance with Article 39. Where the Panel itself has reasonable grounds to suspect that counselor a member of his team has engaged in such conduct, it may commence, proprio motu, an investigation into the matter.

Article 41 Submission ofComplaints (1) Complaints may be submitted by a client, a party to proceedings before the Tribunal, or any other person, organisation or State whose rights or interests could be substantially affected by an alleged misconduct. (2) The complaint, which shall be in writing and submitted in accordance with Article 39, shall identify the complainant and the counsel against whom the complaint is made, and describe in sufficient detail the alleged misconduct of the counsel. (3) The complaint shall be submitted within twelve months after the alleged misconduct is brought to the attention of the complainant or within twelve months after the complainant should have reasonably known about the existence or occurrence of the alleged misconduct. The Disciplinary Panel may pursue complaints after these deadlines if the matter is of general importance for the Tribunal or in the interests ofjustice in a pending case.

Article 42 Summary Dismissal ofComplaints In consultation with the DutyJudge of the Tribunal, the Disciplinary Panel may dismiss a complaint if it is vexatious, misconceived, frivolous, lacking in substance or out of time.

Article 43 Withdrawal ofComplaints (A) By notice in writing served on the Chairperson of the Disciplinary Panel, a complaint may be withdrawn by the complainant in writing. The withdrawal of a complaint does not impact upon the Panel's competencies under Article 40(D) to investigate the matter raised in the complaint. (B) The withdrawal of the complaint does not prevent a further complaint being made under this Part by the same or any other complainant, with respect to the subject matter of the withdrawn complaint; or action being taken on any other complaint made with respect to that matter.

Article 44 Investigation ofAlleged Misconduct (A) The Disciplinary Panel shall conduct, as soon as possible, an investigation into the alleged misconduct specified in Article 35, provided that a complaint is not summarily dismissed.

ICTY • 115 (B) In the investigation of the conduct, the Panel: (i) shall send particulars of the conduct to the respective counselor team member ("respondent") in a language he understands, and invite him to submit a written explanation in response to the complaint; (ii) may order, by notice served in writing, the respondent to: (1) produce, at any time and place specified in the notice, any books, documents, papers, accounts or records that are in his possession or under his control and that relate to the subject-matter of the complaint; or (2) otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner. (C) The Disciplinary Panel may inspect any book, document, paper, account or record produced in accordance with paragraph (B) (ii) (1) and may retain it for such period as it deems necessary for the purposes of the investigation. For the purpose of investigating an alleged misconduct of counsel involving allegations of fee-sharing, the Panel may request the Registrar to provide information on his related inquiries into the financial status of an accused, if any. (D) Any respondent who, without reasonable justification or excuse, refuses or fails to comply with any order or requirement of the Disciplinary Panel under this Article may be fined by the Disciplinary Panel with a penalty of up to 10.000 .

Article 45 Interim Suspension from Practice (A) At any time after a complaint against a respondent has been filed or the Disciplinary Panel has commenced an investigation propriu motu, if there are reasonable grounds to conclude that the alleged misconduct is likely to cause immediate and irreparable harm to the interests of justice, a party to the proceedings, a witness, the respondent's client or any other prospective client, the Panel may, without prior notice to the respondent, issue a reasoned order that the respondent be suspended from practising before the Tribunal until the charge has been heard and disposed of. (B) If counsel is representing a suspect or accused while the Disciplinary Panel considers an order for suspension, the Panel must obtain approval from the PresidingJudge of the Chamber in front of which counsel appears before issuing an order. (C) The respondent, or his client, may at any time apply to the President of the Tribunal for the revocation of the order. The President of the Tribunal shall review such application within seven days after it has been received and may grant or refuse the application as he deems fit.

Article 46 Charges against Counsel and Institution ofProceedings and Hearings (A) The Disciplinary Panel shall inquire into each particularised allegation, and if there are reasonable grounds that the counsel has committed misconduct, formulate charges against counsel.

116 • Defense in International Criminal Proceedings

(B) The Disciplinary Panel may order, if it is in the interests ofjustice, the joinder of: (i) more than one charge against the same respondent; or (ii) a charge against one or more respondents if all the charges are founded on the same, or closely related, acts or omissions. (C) During the course of the inquiry, the respondent shall be provided the opportunity to file a reply to the allegation in the charge in accordance with the rules of the Disciplinary Panel. (D) If there are any material issues of fact raised in the pleadings or if the respondent requests the opportunity to be heard in mitigation, the Disciplinary Panel shall hold a hearing in public at the seat of the Tribunal unless it decides, proprio motu or upon application by the respondent, to exclude the public. (E) During the hearing the respondent shall have the right to be represented by counsel, to examine evidence submitted by the complainant or gathered by the Disciplinary Panel, cross-examine witnesses and to present evidence. The complainant, if any, shall be permitted to address the Disciplinary Panel concerning the respondent's alleged misconduct and its effect on him. (F) The Disciplinary Panel may admit any evidence which is relevant or which has probative value, whether oral or written, whether direct or hearsay and whether or not the same would be admissible in a court of law. (G) Every witness appearing before the Disciplinary Panel shall, before giving evidence, make the solemn declaration as set out in the Rules. The provisions of the Rules relating to false testimony under solemn declaration shall apply, mutatis mutandis, to witnesses appearing before the Disciplinary Panel.

Article 47 Findings and Sanctions (A) The findings of the Disciplinary Panel on each charge shall be rendered, in consultation with the Duty Judge of the Tribunal, by the majority of its members and shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended. (B) The Disciplinary Panel may conclude its proceedings without a finding of misconduct, or dismiss any charge. The Panel may suspend or dismiss a complaint, before, during or after the investigation of the complaint, if it is in the interests ofjustice to do so or it fails to find reasonable grounds to conclude that the respondent committed the alleged misconduct. (C) A respondent against whom a charge of professional misconduct has been found proved beyond a reasonable doubt may be sentenced by the Disciplinary Panel to be, either alternatively or cumulatively: (i) admonished by the Disciplinary Panel; (ii) given advice by the Disciplinary Panel as to his future conduct; (iii) publicly reprimanded by the Disciplinary Panel;

ICTY • 117 (iv) ordered to pay a fine of up to =€50,OOO to the Tribunal; (v) suspended from practising before the Tribunal for an appropriate fixed period of time not exceeding two years; (vi) banned from practising before the Tribunal. (D) In determining the sentence imposed, the Disciplinary Panel must take into account any mitigating factors it considers relevant, including, inter alia, the fact that the respondent was acting pursuant to a provision of another code of practice and ethics which governs his conduct and that provision is inconsistent with this Code. A sentence must be proportionate in view of the misconduct. (E) The decision of the Disciplinary Panel shall be notified in writing to the complainant, if any, and to the respondent in a language the respondent understands. (F) A copy of the decision shall be communicated to the Association of Counsel as well as the professional body regulating the conduct of the respondent in his State of admission, or to the governing body of the university where counsel is a law professor. (G) The Registry shall take such action as may be required to enforce the sentence.

Article 48 Appeal to the Disciplinary Board (A) In cases where one or more charges of professional misconduct have been proved, the respondent may file an appeal with a Disciplinary Board within fourteen days of notification of the decision of the Disciplinary Panel. (B) In cases where the Disciplinary Panel has decided that a charge has not been proved, the Registrar may file an appeal with the Disciplinary Board within fourteen days of notification of the decision to the respondent. (C) The Disciplinary Board shall consist of: (i) three Judges to be appointed by the President of the Tribunal; (ii) two members of the Association of Counsel, to be appointed for a two year period, and in accordance with the Association's statute. No member of the Disciplinary Panel shall be a member of the Disciplinary Board at the same time. (D) No Judge who sat as a member of the Chamber before which the respondent appeared shall be eligible to sit as a member of the Disciplinary Board on the hearing or determination of any charge against the respondent for professional misconduct. (E) The members of the Disciplinary Board shall, at its first meeting, select a chairperson from amongst their number. (F) Except as otherwise provided by this Code, the Disciplinary Board may determine its own procedure for the filing of briefs and presentation of argument. During its review, however, the Disciplinary Board shall not receive or consider any evidence that was not presented to the Disciplinary Panel, unless it considers that the interests ofjustice so require.

118 • Defense in International Criminal Proceedings

(G) Any respondent who, without reasonable justification or excuse, refuses or fails to comply with any order or requirement of the Disciplinary Board under this Article may be fined by the Board with a penalty of up to =€10.000. (H) The Disciplinary Board may confirm, reverse or modify the decision on appeal. (I) In any case in which the respondent has given notice of appeal to the Disciplinary Board, the actions set out in Article 47 paragraph (G) shall be deferred until the appeal has been disposed of by the Disciplinary Board with or without a hearing. The Board may at any time after it was seized order a measure in accordance with Article 45 (A). Article 45(B) does not apply.

0) The decision of the Disciplinary Board is final, and shall in particular not be subject to any remedy before the President or a Chamber of the Tribunal. Article 49 Costs (A) If a respondent is sentenced by the Disciplinary Panel, and an appeal is not filed, or by the Disciplinary Board, the respondent shall bear the costs of the procedure. These costs consist of necessary and reasonable travel costs of the Panel or Board members in accordance with the Tribunal's practice for travel of defence counsel, if any, and an office expenses lump sum of up to 1000 to be determined by the Disciplinary Panel or Board. (B) If a proceeding or complaint is dismissed by the Disciplinary Panel, and an appeal is not filed, or by the Disciplinary Board, the Tribunal bears the costs of the proceedings, unless the Panel or Board decides, on the basis of reasonable cause, that the respondent should bear up to fifty percent of the costs. (C) All costs shall be paid to the Registrar.

Article 50 Non SisIn Idem Once a proceeding or complaint has been finally adjudicated by the Disciplinary Board and an appeal has not been filed to the Disciplinary Board within fourteen days of notification, or by the Disciplinary Panel, no further action shall be taken by the Disciplinary Panel or Disciplinary Board against the respondent with respect to the subject matter of the proceeding or complaint.

4.3.3.

ICTY Case Law and Practice

4.3.3.1. 4.3.3.1.1.

The Chambers Rule 46 of the Rules

4.3.3.1.1.1. Warning Counsel About Possible Refusal of Audience and Consequential Withdrawal

Prosecutor \t. De/alic et al.-Case No. IT-96-21, Order, June, 161998 In response to an Order by a Chamber requiring the defense to file a list of defense witnesses, assigned counsel to one of the co-accused filed a list that was totally unac-

ICTY • 119 ceptable. As a result, the Chamber ordered counsel to file an appropriate list. When counsel failed to do so, the Chamber entered an Order requesting, for a second time, that an appropriate list be filed, along with a warning to counsel indicating, inter alia, that should counsel not comply with the Chamber's Order in full, to the satisfaction of the Trial Chamber, counsel would be refused audience. The consequence thus being that counsel would be withdrawn from representing the relevant co-accused. To avoid unnecessary delays, the defense case would be continued by the co-counsel with the assistance of such other counsel as the Registrar shall assign.

4.3.3.1.1.2.

Refusal ofAudience to Pro Bono Counsel Not Fit to Appear Before the Tribunal

Prosecutor \t. Kunarac, Kovac and Vukovic-Decision on the Request ofthe Accused Radomir Kovac to Allow Mr. Milan Vujin to Appear as Co-Counsel Acting Pro Bono, Case No. IT-96-23, March 14, 2000 The Registrar, considering that she had no jurisdiction to entertain the accused's request to allow a defense counsel to appear as pro bono co-counsel, referred it to the Chamber for further adjudication. The Trial Chamber considered that it was appropriate for it to utilize its inherent power to control the proceedings in such a way as to ensure that justice is done and to deal with conduct that interferes with the Tribunal's administration ofjustice, to refuse audience to counsel because as a pro bono counsel, the Registry did not have the jurisdiction to withdraw him under the Directive. The Chamber found that counsel's conduct interfered with the orderly and lawful conduct of the proceedings before the Tribunal in a manner that was unacceptable with respect to counsel's duties under the Code. The Chamber ruled therefore that counsel was no longer fit to appear before the Tribunal and, consequently, could not be given the right of audience by the Trial Chamber.

4.3.3.1.2. Rule 77 ofthe Rules

Prosecutor \t. Dusko Tadic-Judgment on Allegations ofContempt Against Prior Counsel, Milan Vujin, Case No. IT-94-1, January 31, 2000 The Appeals Chamber found the accused's former defense counsel guilty of contempt for putting forward to the Chamber, in support of an application for additional evidence, a case that was known to him to be false and for manipulating witnesses by having them give statements that avoided any identification of persons who may have been responsible for the crimes for which the accused had been convicted so as to avoid the identification of other persons who may have had exposure. The Chamber held that the power to deal with contempt under Rule 77 is within the inherent jurisdiction of the Tribunal. The Chamber stated that a power to punish conduct that tends to obstruct, prejudice or abuse the administration ofjustice of the Tribunal is necessary in order to ensure that the exercise of its jurisdiction under the Statute is not frustrated and that its basic judicial functions are safeguarded. Furthermore, the Chamber found that defense counsel appearing in matters before the Tribunal are bound by the ICTY Code, which, as mentioned before, shall prevail where there is any inconsistency between it and any other code which counsel may be bound to honor.

120 • Defense in International Criminal Proceedings Even though counsel was no longer appearing before the Tribunal, the Chamber was of the view that the Registrar had power generally to strike counsel off the Rule 45 list because of his serious professional misconduct and directed the Registrar to consider striking counsel off the list and reporting his conduct, as found by the Chamber, to the professional body to which he belonged.

Prosecutor \t. Beqa Beqaj-Case No. IT-03-66-R77 The Indictment'< alleges that the accused is a relative of Isak Musliu, one of the coaccused in the Prosecutor v. Limaj et al. case, currently in the Tribunal's custody. The Indictment against Beqe Beqaj states that "From on or about 17 February 2003 through to on or about 19 October 2004, Beqe Beqaj individually and in concert with others (... ) , knowingly and willfully interfered with the administration ofjustice by threatening, intimidating, offering a bribe to or otherwise interfered with witnesses or potential witnesses" in the Limaj et al. case. More specifically, the indictment details the accused's dealings with two potential witnesses.

4.3.3.2. 4.3.3.2.1.

The Code The Chambers

4.3.3.2.1.1. Article 14ofthe Code-Conflict of Interest

Prosecutor \t. Milan Simic-Decision on the Prosecution Motion to Resolve Conflict ofInterest Regarding Attorney Borislav Pisarevic, Case No. IT-95-9/2, March 25, 1999 The Trial Chamber ruled that because of the intimate involvement and personal knowledge of defense counsel in relation to events relevant to the charges alleged in the indictment, which would be at issue at trial, his participation in the trial raised a conflict of interest. The prosecution brought a motion seeking to resolve the alleged conflict of interest prior to the commencement of the trial, by determining whether counsel was likely to be called as a witness at trial. The Chamber held that a conflict of interest between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests ofjustice. Relying on Article 14 of the Code, the Chamber found that counsel must act at all times in the best interests of the client and exercise all care to ensure that a conflict of interest does not arise in the course of representing a client. It disposed of the matter pursuant to the remedies set forth in the Code by ordering that for counsel to continue his representation of the accused, he must obtain full and informed written consent from his client.

62 The indictment, issued on October 21,2004, and confirmed on October 29,2004, was kept under seal until the arrest of the accused by UNMIK and his subsequent transfer to the custody of the Tribunal.

ICTY • 121

Prosecutor \t. Enver Hadzihasanovic, Mehmed Alagic andAmirKubura-Decision on Prosecution's Motion for Review of the Decision of the Registrar to Assign Mr. Rodney Dixon as Co-Counsel to the Accused Kubura, Case No. IT-01-47, March 26,2002 The Chamber addressed the conflict of interest issue between former employees of the prosecution assigned as defense counsel in the light of the accused's fundamental right to a fair trial. The Chamber developed the test that a real possibility must be proved that there is a conflict of interest between the former and present assignment of counsel. The Chamber, because of a lack of more concrete indicators of a possible conflict of interests.s" was not satisfied that the named counsel should have been disqualified as counsel in that particular case and dismissed therefore the prosecution's motion.

Prosecutor \t. Milosevic-Decision on Assigned Counsel's Motion forWithdrawal, Case No. IT-02-54-T, Trial Chamber III, December 7, 2004, at Paragraphs 17-19,23,26,29-30 [... J the jurisprudence of the Tribunal is that counsel should continue to act in the absence of cooperation. [... J If it is competent to assign counsel in the circumstances of this case, then the refusal of the accused to communicate with or instruct assigned counsel cannot be a basis for withdrawal. Whether an accused takes action to prevent the creation of a relationship of trust with assigned counselor to destroy such a relationship, that does not put counsel in breach of any provision of the IClY Code, including Article 14(A) or (B), which deal with the question of conflict of interest. Equally, there is, on the part of court assigned counsel, no breach resulting from the refusal of the accused to communicate with or instruct them. A critical aspect of the argument of court assigned counsel is that their inability to obtain instructions from the Accused means that they are unable to act in his best interests, as required by Article 11 of the IClY Code. [... J What is required of counsel is that they act in what they perceive to be the best interests of the Accused. This position is consistent with Article 8 of the IClY Code. When counsel is assigned and acts in accordance with a court order, the obligation inherent in the normal counsel-client relationship must be modified to the extent necessary to give effect to the order appointing counsel.

[... J It follows from the previous analysis that assigning counsel to an unwilling and uncooperative accused-including an accused who attacks the professional conduct of counsel-cannot be said to impose pressure on counsel such that their integrity is compromised within the meaning of Article 10 of the IClY Code, which deals with professional integrity. [... J the Trial Chamber holds that good cause justifying withdrawal of counsel has not been established. On the contrary, the Trial Chamber remains of the view that the presence of assigned counsel is essential to ensure the fair and expeditious conduct of the proccedings.v' It is, therefore, plainly in the interests of justice that counsel should remain assigned to the Accused and should not be permitted to withdraw. 63 The prosecution established only that, while working for the prosecution, the named counsel worked on a number of cases to a certain extent factually related to the case in which his client was now involved. 64 See Prosecutor v. Seselj, Decision on Prosecution's motion for Order Appointing Counsel

122 • Defense in International Criminal Proceedings

Article 9 (B) of the IClY Code provides for the circumstances in which counsel may terminate their assignment. Under that provision, as relevant to the fact of this case, counsel must show that their termination (or withdrawal) can be accomplished without material adverse effect on the interests of the client, or that other good cause exists. [... J The Appeals Chamber has confirmed that their assignment was lawful, and this Trial Chamber has determined that their withdrawal in the present circumstances would militate against the fair and expeditious conduct of the proceedings and that no good cause therefore exists. [... J In these circumstances, unilateral termination of their assignment would not be consistent with the provisions of Article 9(B), and in particular Article 9 (B) (iv) , of the IClY Code.

[... J The Trial Chamber further notes that, in circumstances where counsel's assignment is either withdrawn or is terminated, Article 9 (C) of the IClY Code obliges them, subject to leave of the Chamber, to continue to act for the accused until a replacement of counsel is assigned by the Registrar. 4.3.3.2.2.

The Disciplinary Panel 65

The Disciplinary Panel was established in 2003 under Article 40 of the Code. Its purpose is to investigate complaints of violations of the Code. It consists of a member of the ADC, a member of the Advisory Panel having practiced before the Tribunal and the IClY Registrar or a senior Registry official designated by him. The Panel shall deal with all matters related to counsel's ethics, including alleged professional misconduct. If misconduct is found, penalties range from admonishment to banning counsel from practicing before the International Tribunal. The Panel has received three complaints, mainly related to counsel's financial misconduct and conflict of interest issues, and it has rendered two decisions to date. One decision has been appealed to the Disciplinary Board, a body created by the Code composed of three International Tribunal judges and two defense counsel. The retroactive application of the disciplinary proceedings set up by the Code has been challenged by counsel in relation to alleged acts of misconduct that took place at the time when the 1997 Code was in force. The Panel noted that all defense counsel appearing before the Tribunal are bound by the Code as provided for by Rule 44 of the Rules. The Panel also considered that the 1997 Code having established substantive jurisdiction to deal with for example, misconduct, had foreseen that a mechanism to ensure enforcement and a disciplinary procedure be set up to allow for the exercise of such jurisdiction. Such a mechanism was accordingly provided by the 2002 Code. It followed, therefore, according to the Panel, that the establishment of the Panel under the 2002 Code must be seen in the light of providing the Panel with jurisdiction over the conduct of counsel that was governed by the provisions of the 1997 Code. Accordingly, the Panel decided that there were sufficient grounds to maintain that the 1997 Code provides for jurisdiction of the Panel to consider the matter. Aware of the fact that at the time the acts were alleged to have occurred, defense counsel prac-

to Accused Vojislav Seselj with His Defense, Case No. IT-03-67, May, 9 2003 (stating that the wording of Article 21 of the Statute leaves open the possibility of assigning counsel to an accused on a case by case basis if the interests of justice so require). 65 See Articles 37 through 50 of the Code.

ICTY • 123 ticing before the Tribunal were bound by the 1997 Code, the Panel applied that Code's definition of misconduct to the alleged acts while the procedure was governed by the 2002 Code.

4.3.4. 4.3.4.1.

Commentary Rule 46 ofthe Rules

As an international criminal court, the Tribunal possesses inherent powers deriving from its judicial function to deal with conduct that interferes with the administration ofjustice. Hence, ajudge or a Chamber may sanction counsel for any offensive or abusive conduct obstructing the proper conduct of the proceedings. The Registrar has been however vested with the disciplinary power in this respect as primarily responsible for the administration and servicing of the Tribunal under the authority of its President. The Registrar has indeed the discretionary authority, after giving counsel a warning and an opportunity to respond, to remove counsel's name from the Rule 45 and duty counsel lists upon a decision by a Chamber to refuse audience to counsel for misconduct if counsel's conduct is offensive, abusive or otherwise obstructs the proper conduct of the proceedings, or that a counsel is negligent or otherwise fails to meet the standard of professional competence and ethics in the performance of his duties. The Chamber may also determine, after giving counsel an opportunity to be heard, that counsel is no longer eligible to represent a suspect or an accused before the Tribunal pursuant to Rules 44 and 45 of the Rules.

4.3.4.2.

Rule 77 ofthe Rules

Where counsel has been found to be in contempt of court under Rule 77 of the Rules, the Registrar may remove counsel's name from the Rule 45 list. The Registrar may also refuse a request for assignment of counsel and temporarily suspend'f counsel already assigned where a procedure of contempt of court has been initiated against counsel. The Registrar has considered that counsel's professional obligations towards his client may reasonably be expected to be adversely affected by the counsel's own interest in further developments of the contempt proceedings. Where counsel has been found to be in contempt, the Registrar shall ultimately withdraw counsel's assignment. With regard to punishment to be imposed on counsel found to be in contempt, the Appeals Chambers? is of the view that contempt requires punishment, which serves not only as retribution for what has been done but also as deterrence of others who may be tempted to act in the same way. Based on the Registrar's general power to strike counsel off the list of assigned counsel in case of serious professional misconduct, it directed the Registrar to consider striking counsel off the list and reporting his conduct to the professional body to which he belonged.

66 See Registrar's Decision in Prosecutor v. Milan Simic, Case No. IT-95-9 /2, July, 27 1999, suspending the assignment of counsel and Registrar's Decision in Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36, Apr. 15, 2001, suspending the assignment of co-counsel. 67 See Appeals Chamber Judgment on Allegations of Contempt Involving Former Defense Counsel of the Accused in Prosecutor v. Dusko Tadic, Case No. IT-94-1, Jan. 31,2000.

124 • Defense in International Criminal Proceedings 4.3.4.3.

The Code

When the Code was initially drafted in 1997, the Tribunal was in its very initial stage. The Registrar considered the fact that defense counsel appearing before the Tribunal originate from many different countries with different legal systems and rules of professional conduct and that the interests ofjustice require all counsel to adhere to the same ethical rules in such an international environment. The Tribunal's Code therefore prevailed over the counsel's national ethical rules while counsel appear before the Tribunal. There was no way that the Registry could possibly have envisaged all the novel and inventive conflicts of interests and professional misconduct that it has since encountered. Although there is a need for certainty, this must be balanced with the need to recognize the fact that the Tribunal is an evolving institution and it may be necessary to amend the Code regularly to meet the evolving requirements of professional practice before the Tribunal. Thus, the Code was substantially reviewed for the first time on July 12, 2002. The explicit prohibition offee splitting between counsel and their clients, which also relates to the exchange of gifts, and the explicit reference to enforcement and disciplinary proceedings to sanction defense counsel's breaches with the participation of the Registrar, are the two main novelties of this legal text. The Code has indeed been tailored to the ICTY unique environment in the light of the crimes over which the Tribunal has jurisdiction. In order to ensure that the accused are effectively and fairly defended to the utmost extent and to protect the safety of victims and witnesses appearing before the Tribunal, the Registry considered the highest professional standards possible while adopting the Code. The Code must be read and applied so as to most effectively attain the objective and uphold the value of the proper administration ofjustice before the Tribunal. It is worth noting that an important consequence of counsel being assigned by the Registry is that they shall not accept compensation for representing a client except as provided for in the Directive. Without prejudice to accused disposing of means to partially remunerate counsel, assigned counsel shall not accept remuneration for the assignment from any other source. Other than with a view to a potential interference with counsel's professional independence, the principle of equity in the distribution of legal aid funds justifies the Registry's allocation of funds only where necessary. The Code'" also refers to counsel's duty to bring or defend only meritorious proceedings and claims, which aims at precluding counsel from litigating already established facts and submitting frivolous motions. The judges, exercising an overall control on the smooth running of the proceedings, should bring to the attention of the Registry counsel's use of what may be considered as a dilatory tactic in order to reflect it in counsel's reimbursement of fees for work necessary and reasonably performed. The rationale behind the Code's interdiction of counsel's contact with a prospective client or his/her relatives directly or indirectly, as well as the acceptance of a fee, commission or any other compensation for referring or recommending the counsel to a client is to enable accused to fully exercise his/her right to choose counsel without any hindrance. The fact that the Registry may temporarily assign duty counsel ab initio

68

See Article 25 of the Code.

ICTY • 125 to represent the accused during the initial appearance, gives the accused some additional time to consider potential candidates out of the Rule 45 list before taking such a critical decision. Another interesting aspect of the Code is the lacunae in the regulationv? regarding lead counsel's responsibility for other team members. Lead counsel's responsibility is excluded if counsel did not order or approve the conduct involved or does not have direct supervisory authority over the team member and took reasonable remedial action to avoid or mitigate the consequences of the staff's conduct. Part III of the Code sets ups the new disciplinary regime. The unique system of the Tribunal, in which Registry's neutral position is challenged by dealing with defense counsel's conflicting interests and disciplinary measures, has given rise to the necessity of establishing a totally independent disciplinary body. The purpose of the establishment of a disciplinary regime, including disciplinary proceedings and a sanctioning system is threefold. Firstly, to ensure counsel's compliance with their professional obligations protecting clients and other individuals, notably witnesses' rights. Secondly, to ensure counsel's compliance with the necessary standards of professionalism, competence, diligence and honesty maintaining at a high level the ethics and practice of the legal system operated by the Tribunal, and thirdly, to guarantee that procedural fairness is applied to any disciplinary proceedings taken against counsel. The initiation of disciplinary proceedings shall not affect the inherent powers of the Tribunal to deal with conduct that interferes with the administration ofjustice under its applicable law. Complaints concerning the conduct of a counselor a member of his or her team relating to matters before the Tribunal"? shall be submitted to the Panel. The Panel may commence proprio motu an investigation into counsel's misconduct if it has reasonable grounds to suspect that counselor a member of his or her team has engaged in such a conduct. Complaints may be submitted by the accused, a party to proceedings before the Tribunal or any other person, organization or state whose rights or interests could be substantially affected by an alleged misconduct within 12 months after the alleged misconduct is brought to the attention of the complainant or after he should have reasonably known about its existence or occurrence. In matters of general importance for the Tribunal or in the interests ofjustice, the Panel may pursue complaints after these deadlines. The disciplinary panel shall conduct, as soon as possible, an investigation into the alleged misconduct."! At any time after a complaint has been filed or an investigation initiated proprio motu by the Panel itself, if there are reasonable grounds to conclude that the alleged misconduct is likely to cause immediate and irreparable harm to the interests ofjustice, a party to the proceedings, a witness, counsel's client or any other prospective client, the Panel may suspend counsel from practicing before the Tribunal until the charge has been heard and disposed of. For instance, in case of alleged conflict of interest, counsel's continuance in the case might jeopardize the accused's right See Article 34 of the Code. See Article 35 of the Code. 71 See Rule 44 of the Code (Investigation of Alleged Misconduct) for further details on investigation process. 69

70

126 • Defense in International Criminal Proceedings to a fair trial. Counselor his/her client may at any time apply to the President of the Tribunal for the revocation of the order, who may grant or refuse the application as he deems fit. The Panel shall inquire into each particularized allegations, and if there are reasonable grounds that the counsel has committed misconduct, formulate charges against counsel. Proceedings will then be instituted with all the guarantees including due regard to due process. The majority members of the Disciplinary Panel shall render its findings on each of the charges, in consultation with the Tribunal's duty judge and accompanied by a reasoned opinion in writing. The Panel may also conclude the proceedings, suspend or dismiss a complaint if it is in the interests ofjustice to do so or if it fails to find reasonable grounds to conclude that counsel committed the alleged misconduct. The threshold of proof is proof beyond reasonable doubt and the sanctions to be applied either alternatively or cumulatively include, inter alia, a fine of up to 50,000 Euros, suspension from practicing before the Tribunal for a fixed period of time not exceeding two years and ban from practicing before the Tribunal. In determining the sentence, the Panel may consider mitigating factors and the sanction shall be proportionate in view of the misconduct. In addition, the Panel may consider utilizing any remedies available under customary international law, such as restitutio in integrum. The Registry is in charge of taking such action as may be necessary to enforce the sentence. Both the counsel and the Registry may appeal the Disciplinary Panel's decision. In cases where one or more charges of professional misconduct have been proved, the counsel may lodge an appeal with the Disciplinary Board?" within 14 days of notification of the Disciplinary Panel's decision. Should the Disciplinary Panel decides that a charge has not been proved, the Registrar may also file an appeal with the Disciplinary Board within 14 days of notification of the decision to the counsel. The Disciplinary Board may confirm, reverse or modify the decision of the Disciplinary Panel. In any case in which the counsel has given notice of appeal, the implementation of the sanctions envisaged by the Code shall be deferred until the appeal has been disposed of. The Board may at any time after it was seized, order counsel's interim suspension from practicing before the Tribunal. The Disciplinary Board's decision is final. Besides the sanctioning system contemplated in the Code, the Registrar may remove counsel from the Rule 45 and duty counsel lists where counsel has been found guilty of a disciplinary offense under the Code, in consultation with the Chamber. Needless to say, counsel shall also be removed from those lists upon a final decision of the Disciplinary Panel or Disciplinary Board that counsel is banned from practicing before the Tribunal. Furthermore, the Registrar may refuse/suspend the assignment of counsel where disciplinary proceedings have been initiated against counsel. Pending the final 72 The Disciplinary Board consists of three judges to be appointed by the President of the Tribunal and two ADC members, to be appointed for a two-year period in accordance with the ADC's statute. A chairperson shall be selected amongst the members of the Disciplinary Board at its first meeting.

ICTY • 127 determination of the disciplinary proceedings, besides a possible suspension from practicing before the Tribunal, counsel is not likely to be considered for assignment to another accused either. Consequently, it is in the best interest of all parties involved that disciplinary proceedings be timely completed.

4.4. COMMUNICATIONS WITH A CLIENT IN CUSTODY 4.4.1.

Introduction

Sufficient access of counsel to their clients is regarded as vital for the defense by international law, and consequently enshrined in the Tribunal's Statute and applicable Rules. While accused are not entitled to unlimited access in person and by mail or phone to counsel, Article 21 of the Statute foresees the right to "have adequate time and facilities for the preparation of his defence and to communicate with counsel." The Rules of Detention" further entitle each detainee to communicate fully and without restraint with his/her defense counsel, with the assistance of the interpreter where necessary. All such communications shall be privileged.?!

4.4.2. 4.4.2.1.

ICTY Applicable Rules The Rules

[ ... ]

Rule 97 Lawyer-Client Privilege All communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. [ ... ]

4.4.2.2.

The Rules of Detention

[ ... ]

73 As adopted on May 5, 1994, and latest amended on November 29, 1999 (IT38/Rev. 8) (currently under review). 74 Counsel may approach his/her client during court hearings with the permission of the Chamber and otherwise communicate with him/her through the transmission of written notes. During hearing breaks, counsel can meet with their clients in a holding cell out of hearing but within the sight of ICTY security staff. Counsel are not allowed to bring any communication equipment into the cells.

128 • Defense in International Criminal Proceedings

Rule 67 Legal Assistance (A) Each detainee shall be entitled to communicate fully and without restraint with his defence counsel, with the assistance of an interpreter where necessary. All such correspondence and communications shall be privileged. (B) Unless such counsel and interpreter have been provided by the Tribunal on the basis of the indigency of the detainee, all such communications shall be at the expense of the detainee. (C) All visits shall be made by prior arrangement with the Commanding Officer as to the time and duration of the visit and shall be subject to the same security controls as are imposed under Rule 63. The Commanding Officer shall not refuse a request for such a visit without reasonable grounds. (D) Interviews with legal counsel and interpreters shall be conducted in the sight but not within the hearing, either direct or indirect, of the staff of the detention unit.

4.4.2.3.

The U.N. Detention Unit Regulations to Govern theSupervision of Visits to and Communication With Detalnees>

4.4.2.3.1.

Correspondence Regulation 11

(A) Correspondence addressed to or from counsel for the detainee shall not be interfered with in any manner unless the Commanding Officer or the Registrar has reasonable grounds for believing that this facility is being abused in an attempt to: (i) arrange escape; (ii) interfere with or intimidate a witness; (iii) interfere with the administration ofjustice; or, (iv) otherwise disturb the good order of the detention unit. (B) In any such case, the Commanding Officer shall immediately forward the item in question to the Registrar, unopened, and shall enter details of the interception in the log referred to above and notify the detainee accordingly. (C) The Registrar shall contact the counsel to whom the item is addressed or by whom it was sent and request counsel to open the item in his presence. (D) Counsel may be required to explain to the Registrar, in one of the working languages of the Tribunal, the nature of the item and to hand over any offending item or enclosure.

75

As adopted in April 1995 and latest amended in July 1999 (IT 198.Rev. 3).

ICTY • 129

4.4.2.3.2.

Telephone Conversations Regulation 20

Telephone conversations will not be recorded or monitored unless: (A) the Commanding Officer or the Registrar has reasonable grounds for believing that the detainee may be attempting to: (i) arrange escape; (ii) interfere with or intimidate a witness; (iii) interfere with the administration ofjustice; or, (iv) otherwise disturb the maintenance of good order in the detention unit; (B) an Order for non-disclosure has been made by aJudge or a Chamber pursuant to Rule 53 and Rule 75 of the Rules of Procedure and Evidence; (C) specifically requested by the Prosecutor following the disclosure to the defence of the names of witnesses pursuant to Rule 67 of the Rules of Procedure and Evidence.

Regulation 21 (A) If one of the situations listed in Regulation 20 arises, the Registrar may order all telephone calls to and from that detainee, other than with counsel and diplomatic representatives, to be recorded or monitored for a period not exceeding thirty days. (B) Renewals of the period, which shall not exceed thirty days, shall be reported to the President. (C) The detainee and his counsel shall be notified of the Registrar's decision within twenty-four hours.

Regulation 22 The detainee may at any time request the President to reverse any decision of the Registrar taken under Regulation 21.

4.4.2.3.3.

Visits Regulation 29

The Commanding Officer shall, in consultation with the Registrar, fix the daily visiting hours for all visitors, taking into account the reasonable demands of the daily schedule of the detention unit and the facilities and staff available.

Regulation 30 (A) Subject to the regulations below, counsel may make arrangements by telephone with the Commanding Officer to visit a detainee from Monday through Friday from 9 a.m. to 5 p.m.

130 • Defense in International Criminal Proceedings (B) A detainee may request a visit from his counsel outside these hours or at the weekend. Such a request shall be granted at the sole discretion of the Commanding Officer.

Regulation 31 (A) The Registrar shall automatically issue defence counsel with a written regular permit as soon as such counsel is entered on the record or assigned by the Tribunal. (B) The Registrar may issue permits to counsel for one-time visits prior to the initial appearance of the detainee based on a written request from the detainee, identifying the counsel in question.

Regulation 39 (A) All persons, including counsel and diplomatic representatives, are also subject to personal searches of clothing, X-ray examination of possessions and other security measures as determined by the Commanding Officer, on entry to the United Nations detention unit. (B) Searches of counsel shall not extend to reading or copying documents brought to the detention unit by counsel.

Regulation 40 (A) No visitor, other than counsel, may pass any item to a detainee during a visit. (B) Any items intended for a detainee must be handed to the staff of the detention unit on entry and shall be dealt with as provided for in Rules 79 and 80 of the Rules of Detention.

Regulation 41 (A) Counsel may pass documents to and from a detainee during a visit. Any quantity of documents which is too large to be physically passed over by counsel to the detainee at the visiting facility shall be handed to the Commanding Officer who shall pass them unopened and unread to the detainee. (B) All documents passed to and from a detainee in this manner shall be treated as mail for the purposes of these regulations and, in particular, Regulation 11 concerning incoming mail shall apply.

Regulation 42 (A) If the Commanding Officer believes that he has reasonable grounds for intervention, or that these Regulations are being breached in any way, he may immediately terminate the visit and advise the detainee and the visitor of his reasons for so doing. (B) The visitor may be required to leave the detention unit and the Commanding Officer shall report the matter to the Registrar. (C) This provision applies equally to visits by counsel.

ICTY • 131

Regulation 43 (A) All visits shall be conducted within the sight of the staff of the detention unit, save in exceptional circumstances and at the discretion of the Commanding Officer in consultation with the Registrar. (B) Discussions between the detainee and the visitor shall not be recorded unless: (i) the Commanding Officer has reasonable grounds for believing that the detainee may be attempting to: (a) arrange escape; (b) interfere with or intimidate a witness; (c) interfere with the administration ofjustice; or, (d) otherwise disturb the maintenance of good order in the detention unit; (ii) an Order for non-disclosure has been made by aJudge or a Chamber pursuant to Rule 53 or Rule 75 of the Rules of Procedure and Evidence. (iii) specifically requested by the Prosecutor following the disclosure to the defence of the names of witnesses pursuant to Rule 67 of the Rules of Procedure and Evidence.

Regulation 44 (A) If one of the situations listed in Regulation 43(B) arises, the Registrar may, at the request of the Commanding Officer or otherwise, order that all visits to that detainee, other than by counsel and diplomatic representatives, be recorded for a period not exceeding seven days. [ ... ]

4.4.2.4.

The Code Article 12 Communication

Counsel shall keep a client informed about the status of a matter before the Tribunal in which the client is an interested party and must promptly comply with all reasonable requests for information.

Article 13 Confidentiality [ ... ]

(D) Whether or not counsel continues to represent a client, counsel shall preserve the confidentiality of the client's affairs and shall not reveal to any other person, other than to members of his team who need such information for the performance of their duties, information which has been entrusted to him in confidence or use such information to the client's detriment or to his own or another client's advantage.

132 • Defense in International Criminal Proceedings

(E) Notwithstanding paragraph (A), counsel may reveal information which has been entrusted to him in confidence under the following circumstances: [ ... ]

(iv) when the client has been fully consulted and knowingly consents; (v) when the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure; or (vi) when essential to establish a claim or defence on behalf of counsel in a controversy between counsel and the client, to establish a defence to a criminal or disciplinary charge or other claim formally instituted against counsel based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning counsel's representation of the client; or (F) to prevent an act which counsel reasonably believes: [ ... ]

(iii) is, or may be, criminal within the territory in which it may occur or under the Statute or the Rules; and (iv) may result in death or substantial bodily harm to any person unless the information is disclosed.

Article 17 Consultations with Clients on Provisional Release orat Liberty [ ... ]

(C) Counsel shall not consult with a client on provisional release or at liberty at the client's place of residence. (D) Notwithstanding paragraph (A), counsel may exceptionally consult with a client at his residence if illness, physical disability or other constraints restrict the client's mobility and preferably in the presence of an independent person.

4.4.3. 4.4.3.1.

ICTY Practice Scope ofAttorney-Client Privilege

As a general rule, all communications between counsel and the accused are privileged and do not fall under the disclosure provisions unless the client has waived the privilege or has previously disclosed such information voluntarily to a third person, who may then be called to testify. As a corollary, Rule 70 (A) of the Rules makes it clear that internal documents like memoranda and reports prepared by the accused or counsel for the investigation or preparation of the case are not subject to the reciprocal disclosure under Rules 66 and 67 of the Rules. Upon having been recognized by the Registrar, either through assignment in case of indigent accused or by recognizing a power of attorney duly filed by the accused, counsel must be entitled to freely communicate with his client with a view to the attorney-client privileged relationship. By recognizing the privilege, the Registry acknowl-

ICTY • 133 edges that it has a direct bearing on the ability of defence counsel to effectively represent their clients. Both lead and co-counsel will be issued a regular visiting permit. Other members of the defense team are, in principle, not entitled to visit the accused due to the risk of an interference with defense counsel's strategy. All visits shall be made by prior arrangement with the United Nations Detention Unit (UNDU) Commanding Officer, acting as a delegate of the Registrar, as to the time and duration of the visit. Counsel visits shall be subject to the same security controls as are imposed to any visitor under the Rules of Detention and the Visiting Regulations, excluding with respect to official documents. Communication with legal representatives'" shall be conducted in the sight but not within the hearing, either direct or indirect, of the UNDU staff. Counsel and accused in multiple-accused cases have requested meetings of all accused and lead counsel together in order to clarify some matters. Such request, falling under Rule 63 of the Detention Rules, requires that all involved parties show a legitimate interest in the visit. The visit will not be considered as a privileged one and will therefore be monitored by UNDU staff. Visits by prospective counsel who have not yet obtained a power of attorney from the accused or whose assignment has not yet been processed by the Registry, have been allowed with some caveats given that counsel have not technically been either recognized or assigned by the Registry."? In case the accused may be considering a replacement of counsel and wishes therefore to meet potential candidates, currently assigned or appointed counsel shall be informed accordingly. Otherwise, whenever a counsel requests visiting an accused other than his client for whatever purpose, counsel representing that accused shall consent to that visit in order to prevent any possible interference with counsel's defense strategy. Counsel will not be granted privileged visiting permits to accused other than their clients. Detainees may receive mail and parcels from counsel. While these are privileged, based on security considerations, counsel must get through all visitors security scrutiny. They will therefore be X-rayed upon entrance through the Dutch prison hosting the UNDUe According to the Detention Regulations, only lead and co-counsel may pass on an item to a detainee during a visit. The practice of the Registry has been to allow detainees to pass on documents to counsel during meetings at the UNDUe Needless to say, the legal privilege only extends to documents relevant for the preparation of the case.

4.4.3.2.

Justification and Purpose ofthe Privilege

The underlying rationale of lawyers' right to consult with their clients freely and grant clients effective and equal access to lawyers is to ensure that detainees are able to establish a trustful relationship with their counsel, which is essential to protect their right to a fair trial. 76 It has been proposed to amend the Rules of Detention in order to privilege accused's communications with legal advisers/consultants who are not to be considered as lead/co-counsel stricto sensu. The reasoning behind this amendment is the Registry's recognition that the accused's right to defend him/herself is not unqualified and may be supplemented by legal assistance. Legal advisors/consultants even though neither assigned or appointed by the Registry, shall therefore be entitled to freely communicate with the accused. 77 One time unprivileged visit.

134 • Defense in International Criminal Proceedings

Justifications for the privilege include facilitating the client's ability to conduct litigation of complex issues, allowing an open exchange of communications between client and his/her lawyer, and promoting more effective advocacy by lawyers assuring adequate advice and proper defense. It could be however argued that, as the purpose of the privilege is to encourage clients to make full disclosure to their attorneys in order to obtain fully informed legal advice and guarantee the fair administration ofjustice, it allows criminals to go free and forces attorneys to be accomplices if the privilege is abused.

4.4.3.3.

Limits tothe Privilege

It can be argued that the attorney-client privilege is not absolute. The difficulty appears to be the necessity of interfering with the confidentiality of the communications and consultations between lawyers and their clients by the authorities in order to prove the abuse. The necessity of maintaining the confidentiality of legal communications stricto sensu must not be underestimated, particularly in respect to accused held in pre-trial detention, as a corollary of the interests ofjustice. The burden of proof should be on the authorities interfering with the communication following an order of the judiciary in case of breach of the Tribunal's applicable rules. The legal privilege should, in any event, only extend to legal advice of any kind sought by the client-limit ratione materiae--from a professional legal adviser in his capacity as such-limit ratione personae--, the communications being related to that purpose, made in confidence and the protection having not been waived by the client. Moreover, a relationship deserves only the protection of a communication privilege if the communication originates in confidence, i.e., with the expectation that it will not be disclosed. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. The mere relation of attorney and client does not generate a presumption of confidentiality, and the circumstances have to be investigated in order to ascertain whether, by implication, the communication was of a kind intended to be confidential. It is indeed the lawyer's function that ultimately determines the ethics of confidentiality and disclosure;" The communication concerned must also imply a request for legal advice, and the injury that disclosure of communications would cause to the relationship must be greater than the benefit thereby gained for the administration ofjustice. Exceptions to the privilege might also be applied to prevent an act that counsel reasonably believes is, or may be, criminal under the laws of the territory in which it may occur or under the Statute or the Rules, and may result in death or substantial bodily harm to any person unless the information is disclosed. Ultimately, under the Tribunal's Rules of Detention,"? the UNDU Commanding Officer may terminate defense counsel's visits under reasonable grounds, i.e., breach of the Tribunal's applicable rules.

78 79

See Article 8 of the Tribunal's Code (requirement of confidentiality). See Rule 42 of the Rules of Detention.

ICTY • 135

4.4.3.4.

Telephone Communications in Particular

The more controversial aspect of the Registry's interference with the accused's communications with the outside world in the past relates to the monitoring of telephone calls. Some accused have contested the Registry's practice of systematically monitoring accused's telephone calls on the grounds of maintaining the good order at the detention unit. As mentioned before, telephone communications with counsel (and diplomatic representatives) are to be regarded as privileged and are therefore not monitored as a general rule. Under the terms of the Visiting Regulations, detainees are entitled to contact counsel by telephone on a daily basis. The Registry shall authorize a designated telephone number for attorneys' privileged telephone communications with their clients. In principle, the Registry authorizes one privileged telephone number for each detainee, and the confidentiality of their conversations is preserved unless there is clear evidence that the privilege is being abused, e.g., counsel's telephone line is being used to communicate with parties other than counselor co-counsel. The privilege is limited to counsel's office telephone number. Only in very exceptional circumstances, the Registrar may consider recognizing a home telephone number if there is a legitimate interest behind that request. The Registry's practice, while determining whether a designated number may be considered as privileged, respects the detainee's interest in communicating with his or her counsel to the extent necessary for the preparation of his or her defense, while simultaneously containing effective safeguards to prevent counselor detainees from abusing the privilege, for instance by communicating with persons other than counsel, which may interfere with the preparation of the defense. The difficulty arises with regard to the verification process, as privileged communications cannot be intercepted. Privileged communications through mobile telephones are not allowed due to the risk of abusing the privilege by easily transferring the telephone to a person other than counsel. Detainees do not have access to Internet facilities. It should be noted that it might be undesirable for the Registry to adopt a rigid policy in which the number of privileged telephone lines is permanently fixed. Some flexibility in regard to accused-counsel communications appears to be necessary in order to meet the different needs and capacities of the respective defence teams. In order to address these situations, the Registry may consider it appropriate to authorize, on an exceptional basis, a temporary privileged telephone line for counsel, which is limited to the duration of their absence from their office. In such cases, counsel should apply for authorization in advance, and should justify to the Registry why they require a privileged telephone line away from the seat of the office, and the length of time during which they will require such access. In addition, counsel should propose a telephone line that satisfies the Registry that it will be the direct line of counsel, is located in a secure environment and can only be accessed by counsel. If the request is granted, then the selected telephone line will be granted temporary privileged status, and during the stipulated time period, the detainee will not be able to conduct privileged telephone communications through the regular telephone line. Accordingly, counsel will only be able to avail themselves of one privileged telephone line at anyone time.

136 • Defense in International Criminal Proceedings

Counsel are also required to notify the Registry in advance of any change in the privileged telephone number. In such circumstances, counsel should submit a new request for a privileged telephone number and should again provide verification that the new telephone number satisfies the Registry's requirements as mentioned above. Otherwise, the Registry is required to review the practice of the UNDU regularly and examine whether the telephone privilege policy is being carried out in conformity with the principle of equality between all the detainees held in custody at the UNDUe

CHAPTER 5

ICTR Roman Baed and Marne Mandiaye Niang*

5.1. RIGHT TO COUNSEL UNDER THE STATUTE AND THE RULES 5.1.1.

Introduction

With its express recognition in international human rights law, the right to counsel is firmly embedded in the governing instruments of the ICTR as well as in its jurisprudence. The following excerpts demonstrate the extent to which the right to counsel is part of the Tribunal's law and practice. In this regard it may be noted that unlike the international human rights law provisions upon which the right to counsel before the Tribunal has been modeled, the Tribunal's law, as the law of the ICTY, expressly recognizes that not only accused persons, but also suspects have a right to assistance by counsel in certain circumstances (see Article 17 of the Statute, Rules 40 bis and 42 of the Rules of Procedure and Evidence, and Article 2 of the Directive on the Assignment of Defence Counsel below}.'

5.1.2. 5.1.2.1.

Statutes, Rules and Official Legal Documents StatuteArticle 17: Investigation and Preparation of Indictment

3. If questioned, the suspect shall be entitled to be assisted by Counsel of his or her own choice, including the right to have legal assistance assigned to the suspect without payment by him or her in any such case if he or she does not have sufficient means to pay for it, as well as necessary translation into and from a language he or she speaks and understands.

* **

Gratefully acknowledging the research assistance of Ms. Hitomi Takemura, LLM. Section 5.1 was written by Roman Boed. 1 See 1 Virginia Morris & Michael P. Scharf, The International Criminal Tribunal for Rwanda, 471 (1998). 2 Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. SjRESj955 (1994), annex (hereafter "ICTR Statute" or "Statute").

137

138 • Defense in International Criminal Proceedings

Article 20: Rights ofthe Accused 4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(b) To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing;

(d) To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interest ofjustice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it;

5.1.2.2.

Rules of Procedure and Evidence 3 Rule 40 bis: Transfer and Provisional Detention ofSuspects

0) After his transfer to the seat of the Tribunal, the suspect, assisted by his counsel, shall be brought, without delay, before the Judge who made the initial order, or another Judge of the same Trial Chamber, who shall ensure that his rights are respected. Rule 42: Rights ofSuspects during Investigation (A) A suspect who is to be questioned by the Prosecutor shall have the following rights, of which he shall be informed by the Prosecutor prior to questioning, in a language he speaks and understands: (i) The right to be assisted by counsel of his choice or to have legal assistance assigned to him without payment if he does not have sufficient means to pay for it;

(B) Questioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived his right to counsel. In case of waiver, if the suspect subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspect has obtained or has been assigned counsel.

3 The Rules of Procedure and Evidence were adopted on june 29, 1995, and were amended as follows: jan. 12, 1996, May 15, 1996,july 4, 1996,june 5, 1997,june 8, 1998,july 1,1999, Feb. 21, 2000,june 26, 2000, Nov. 3,2000, May 31, 2001,july 6,2002, May 27,2003, and May 14, 2004. The current version is available at http://www.ictr.org/ENGLISH/rules /240404/240404.pdf.

ICTR • 139

Rule 44: Appointment and Qualification of Counsel (A) Counsel engaged by a suspect or an accused shall file his power of attorney with the Registrar at the earliest opportunity. Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law. (B) In the performance of their duties counsel shall be subject to the relevant provisions of the Statute, the Rules, the Rules of Detention and any other rules or regulations adopted by the Tribunal, the Host Country Agreement, the Code of Conduct and the codes of practice and ethics governing their profession and, if applicable, the Directive on the Assignment of Defence Counsel.

Rule 44 bis: Duty Counsel (A) A list of duty counsel who speak one or both working languages of the Tribunal and have indicated their willingness to be assigned pursuant to this Rule shall be kept by the Registrar. (B) Duty counsel shall fulfill the requirements of Rule 44, and shall be situated within reasonable proximity to the Detention Facility and the Seat of the Tribunal. (C) The Registrar shall at all times ensure that duty counsel will be available to attend the Detention Facility in the event of being summoned.

(E) In providing initial legal advice and assistance to a suspect transferred under Rule 40 bis, duty counsel shall advise the suspect of his or her rights including the rights referred to in Rule 55 (A).

Rule 45: Assignment of Counsel (A) A list of counsel who speak one or both of the working languages of the Tribunal, meet the requirements of Rule 44, have at least 10 years' relevant experience, and have indicated their willingness to be assigned by the Tribunal to indigent suspects or accused, shall be kept by the Registrar.

Rule 62: Initial Appearance of Accused and Plea (A) Upon his transfer to the Tribunal, the accused shall be brought before a Trial Chamber or a Judge thereof without delay, and shall be formally charged. The Trial Chamber or the Judge shall: (i) Satisfy itself or himself that the right of the accused to counsel is respected;

Rule 63: Questioning of the Accused (A) Questioning by the Prosecutor of an accused, including after the initial appearance, shall not proceed without the presence of counsel unless the accused has voluntarily and expressly agreed to proceed without counsel present. If the accused subsequently

140 • Defense in International Criminal Proceedings expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the accused's counsel is present. (B) The questioning, including any waiver of the right to counsel, shall be audiorecorded or video-recorded in accordance with the procedure provided for in Rule 43....

Rule 82 bis:Trial in the Absence ofthe Accused If an accused refuses to appear before the Trial Chamber for trial, the Chamber may order that the trial proceed in the absence of the accused for so long as his refusal persists, provided that the Trial Chamber is satisfied that:

(iii) the interests of the accused are represented by counsel.

Rule 107: General Provision The rules of procedure and evidence that govern proceedings in the Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.

5.1.2.3.

Rules Covering the Detention of Persons Awaiting Trial or AppealRule 10

As soon as practicable after admission, each detainee shall be provided with information concerning legal, diplomatic and consular representation available to him. The detainee shall be given the opportunity at this time to notify, within reason, his family, his Counsel, the appropriate diplomatic or consular representative and, at the discretion of the Commanding Officer, any other person, of his whereabouts, at the expense of the Tribunal. ...

Rule 65 Each detainee shall be entitled to communicate fully and without restraint with his Defence Counsel, with the assistance of an interpreter where necessary. Unless such Counsel and interpreter have been provided by the Tribunal on the basis of the indigence of the detainee, all such communications shall be at the expense of the detainee. All such correspondence and communications shall be privileged. All visits shall be made by prior arrangement with the Commanding Officer as to the time and duration of the visit and shall be subject to the same security controls as are imposed under Rule 61. The Commanding Officer shall not refuse a request for such a visit without reasonable grounds. Interviews with legal Counsel and interpreters shall be conducted in the sight but not within the hearing, either direct or indirect, of the staff of the Detention Unit.

4 Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal, adoptedJan. 9, 1996 (hereafter "Rules Covering the Detention of Persons Awaiting Trial or Appeal"), available at http://www.ictr.org /ENGLISH/basicdocs/rulesdet.htm.

ICTR • 141

5.1.2.4.

Directive on the Assignment of Defense Counsels Article 2: Right to Counsel

(A) Without prejudice to the right of an accused to conduct his own Defence, a suspect who is to be questioned by the Prosecutor during an investigation and an accused upon whom personal service of the indictment has been affected shall have the right to be assisted by Counsel provided that he has not expressly waived his right to Counsel. (B) Any person detained on the authority of the Tribunal, including any person detained in accordance with Rule 90 bis, also has the right to be assisted by Counsel provided that the person has not expressly waived his right to Counsel.

Article 13: Pre-requisites for Assignment of Counsel Any person may be assigned as Counsel if the Registrar is satisfied that he fulfils the following pre-requisites: (i) He is admitted to practice law in a State, or is a professor of law at a university or similar academic institution and has at least 10 years' relevant experience; (ii) He speaks one of the working languages of the Tribunal, namely French or English; (iii) He agrees to be assigned as Counsel by the Tribunal to represent a suspect or accused; (iv) His name has been included in the list envisaged in Rule 45(A) of the Rules; and (v) He undertakes to appear before the Tribunal within a reasonable time, as specified by the Registrar.

Article 14: Professional Certification In support of the pre-requisites provided for in Article 13 (i), the Registrar shall be supplied with certification of professional qualifications issued by the competent professional or governing body for that Counsel and such other documentation as the Registrar deems necessary.

5 This Directive was adopted onJan. 9,1996, and was amended on June 6, 1997, June 8, 1998, July 1, 1999, May 27, 2003, and Apr. 24, 2004, available at http://www.ictr.org/ENGLISH /basicdocs/defence/directive240404. pdf.

142 • Defense in International Criminal Proceedings 5.1.3. 5.1.3.1.

Case Law and Practice» Article 17(3) ofthe Statute

The Prosecutor \t. Bagosora et aI-Decision on the Prosecutor's Motion for the Admission of Certain Materials Under Rule 89(C), Case No. ICTR·98·41, October 14, 2004

INTRODUCTION 1. The Prosecution seeks to admit the following materials pursuant to Rule 89 (C) of the Rules of Procedure and Evidence ("the Rules"): (i) a recording and transcript of an interview conducted by ICTR investigators with the Accused Ntabakuze on 19 July 1997 (NTABALO-14, NTABALO-15); (ii) a recording and transcript of an interview conducted by ICTR investigators with the Accused Kabiligi on 19 July 1997 (KABIGRA01, KABIGRA-02); (iii) a written authorisation to purchase arms and ammunition, dated 27 July 1993, purportedly signed by Bagosora in his capacity as Directeur de Cabinet of the Ministry of Defence (BAGOTHE-38); (iv) the Agreement between the United Nations and the Government of the Republic of Rwanda on the status of the United Nations Assistance Mission for Rwanda, signed in New York on 5 November 1993 (UNAMIRZ-04); and (v) documents allegedly signed by the Accused Bagosora regarding the transportation of arms from Seychelles to Zaire (BAGOTHE-25) and a handwritten note by the Accused Bagosora offering to transport General Dallaire to Gitarama (BAGOTHE-26). SUBMISSIONS (i) Custodial Interrogation of Ntabakuze and Kabiligi

2. The Prosecution asserts that the Accused Ntabakuze has consented to the admission of his interview by investigators. The Defence for Ntabakuze filed no response to the motion. 3. The interview of the Accused Kabiligi has previously been the subject of defence motions which have been rejected; the Defence should, therefore, be precluded from relying on those same arguments to challenge. In any event, the Accused Kabiligi voluntarily waived his right to counsel and the interview was otherwise conducted in a proper and legal manner. Defence allegations of coercion during the interview are unsubstantiated. 4. The Defence for Kabiligi argues that previous decisions do not preclude raising the alleged involuntariness of the interview, as they concerned remedies other than exclusion or were ruled premature. The interview was oppressive and involuntary and should be excluded pursuant to Rules 89(C) and 95. The Accused was handcuffed and threatened with return to Rwanda if he did not cooperate, which he perceived to be a death threat. Nor was the Accused informed of the reasons for his arrest, the charges against him, or his rights. The Kabiligi Defence further argues that the Accused did not receive a copy of the tapes and transcripts of the interview in a timely manner, and that the original tapes were not sealed in his presence, in violation of Rules 43 (iv) and (v).

6 The texts are reproduced here as they appear in the original, except that internal citations are generally omitted.

ICTR • 143 (ii) Documents Created Contemporaneous with Events (a) BAGOTHE-38 5. The Prosecution submits that the Rules and jurisprudence of the Tribunal permit the admission of documents as evidence without identification or other authentication by a witness. The provenance and relevance of the proposed exhibits is either admitted by the Defence, or is self-evident. The documents should, accordingly, be admitted. The Prosecution further contends that the Defence for Bagosora has previously acknowledged the authenticity of BAGOTHE-38, and objects to its admission only because the document, though signed, was not prepared in its entirety by Bagosora. The Prosecution argues that such an objection is relevant to the weight, but not the admissibility, of the document. The document is said to be relevant to the form of the Accused Bagosora's signature on official documents. 6. The Bagosora Defence argues that the Prosecution has failed to establish either the relevance or the authenticity of the document referred to as BAGOTHE-38. It admits that the signature at the bottom of the document appears to be that of the Accused, but argues that the Prosecution has failed to establish the origin or chain of custody of the document. (b) BAGOTHE-25 and BAGOTHE-26

7. The Prosecution submits that BAGOTHE-25 and BAGOTHE-26 are admissible without testimony as neither their relevance nor their provenance is disputed. The Defence for Bagosora previously consented to the admission of the documents. 8. The Bagosora Defence indicates that it does not object to the admission of BAGOTHE-25, provided that two other documents disclosed by the Prosecution, BAGOTHE-34 and BELGGVT-2, are also admitted as evidence under Rule 98. The latter documents, an administrative file concerning Bagosora's entries and exits from Seychelles, and a statement from a Belgian judge, are said to provide additional information necessary for understanding BAGOTHE-38. 9. The Bagosora Defence asserts that it has not been shown the original version of document BAGOTHE-26, and argues that there are indications that the document is not authentic. It asks the Chamber to reserve its ruling until the Prosecution has made the original available for inspection, at which time the Defence will make additional subnussions.

DELIBERATIONS

(i) Custodial Interrogation of Kabiligi and Ntabakuze 11. Article 17 (3) of the Statute, "Investigation and Preparation of the Indictment," provides: If questioned, the suspect shall be entitled to be assisted by Counsel of his or her own choice, including the right to have legal assistance assigned to the suspect without payment by him or her in any such case if he or she does not have sufficient means to pay for it, as well as necessary translation into and from a language he or she speaks and understands.

144 • Defense in International Criminal Proceedings Article 20(4) (g) confers on any Accused the right "[n]ot to be compelled to testify against himself or herself or to confess guilt." Rule 42, entitled "Rights of Suspects During Investigation," prescribes that: (A) A suspect who is to be questioned by the Prosecutor shall have the following rights, of which he shall be informed by the Prosecutor prior to questioning, in a language he speaks and understands: (i) The right to be assisted by counsel of his choice or to have legal assistance assigned to him without payment if he does not have sufficient means to pay for it; (ii) The right to have the free assistance of an interpreter if he cannot understand or speak the language to be used for questioning; and (iii) The right to remain silent, and to be cautioned that any statement he makes shall be recorded and may be used in evidence. Rule 42 (B) prescribes the consequences of the absence of counsel, and provides for the possibility of waiver of the right: (B) Questioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived his right to counsel. In case of waiver, if the suspect subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspect has obtained or has been assigned counsel. Rule 40(C) makes clear that a suspect benefits from the rights enumerated in Rule 42 from the moment of transfer into the custody of the Tribunal. Rule 95 requires the exclusion of evidence "if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings." 12. The transcript of the custodial interview of the Accused Ntabakuze shows that he unambiguously invoked the right to counsel and refused to answer any questions of substance. However, the Defence for Ntabakuze has made no objection to its admission. On the basis of the absence of objection from the Defence, and noting that the Accused made no statements of substance during the interview, the Chamber finds that no issue arises under Rule 95 and that the statement may be admitted. 13. The admissibility of the Kabiligi statement is, by contrast, contested. As a preliminary matter, the Prosecution contends that the objections raised by the Defence have already been litigated and rejected. This is not the case. A decision dated 6 October 1998 rejected an application for an investigation into allegations of torture, and refused to quash the proceedings against the Accused. Nothing was said about the admissibility of the interview at trial. Another pre-trial decision held that a request for a declaration of inadmissibility was premature as the Prosecution had not yet sought to tender the interview. The issue of its admissibility is now before the Chamber for the first time. 14. The Prosecution claims that the questioning of the Accused Kabiligi was conducted after he had been advised of his rights by the investigators who interviewed him and made a voluntary waiver of his rights in accordance with Rule 42 (B). During the dialogue which is set forth below, the Accused was handed a form, written in French, entitled "Notice of Suspect's Rights" which substantially recapitulates the rights enumerated in Rule 42 (A) and (B). At the bottom of the form is a declaration indicating that the

ICTR • 145 signatory has read and understands the rights enumerated therein; that he is ready to respond to questions; that he does not wish to have counsel at this time; and that no threats or promises have been made against him to procure his consent. At the end of the dialogue, the Accused signed the declaration. 15. The genuineness of that consent must be considered in the context of the entire conversation preceding his signature. Investigator: We will now provide you a copy [of the "Notice of Suspect's Rights, which had just been read to the Accused orally] to read, if you wish. Can you tell us what you have decided? Do you understand your rights? Do you have any questions about that? Kabiligi: Thank you. I do have one question. I am prepared to exercise my rights as soon as I understand the reasons for my arrest and the case brought against me. Investigator: Can you be more specific? Please clarify what you want? Kabiligi: I would like to know the reason for my arrest. Am I indicted? By whom, and why? Have I committed any crimes? Where, when and why? And how? That's it. I am prepared as soon as I find out the reasons for my arrest, I will be entitled to request the assistance of counsel provided by the International Tribunal, as I do not have sufficient means to pay for it. Investigator: So, at this time, you are laying down the condition that we must first inform you of all the charges the Tribunal has against you. Is that what you are requesting? Kabiligi: Precisely. Before exercising my rights, before requesting the assistance of counsel, I must be informed of the charges against me ... At the least the offences I am accused of. Investigator: Yes. But, of course, that's indeed [?] disclosure is part of the process. In any case, at some point, the Tribunal will have the obligation to disclose in full the case against you. That's part of the standard procedure for your defence procedure. It is obvious that you were not [?]. At some point during your defence, you will be entitled to examine your case file. For the moment, this interview, considered to be the first questioning [?] by Tribunal investigators, what we are requesting is that, if you accept to speak to us. First [?] If you accept to speak to us, we will ask you questions. Should you decide not to speak to us, please tell us what your choice is. Kabiligi: Personally, I am prepared to talk at this time. But, questioning or preliminary investigation or interview of me, but reserving the right to request the assistance of counsel and exercise the full benefit of the rights that have just been read to me, as soon as I find out the case against me, because I don't know what it is at this time. Investigator: So, you are saying that before you speak to us, you require that your case file be disclosed to you? That's the condition you seem to be laying down. We are just trying to understand what you are saying. Tell us what you want. Are you saying that you will not talk to us unless your case file is disclosed to you? That's what I understood. You want your case file disclosed to you before we ask you any questions? Is that what you are suggesting? What exactly do you want? Kabiligi: What I am asking is that at this time, as you explained yesterday, this is a preliminary interview. In case-once I discover the case against me, I will request the assistance of counsel. I am not insisting on having the presence of counsel during this interview, but once I discover the case against me, I must be able to exercise the full extent of the rights that have just been read to me, that I have just taken cognisance of.

146 • Defense in International Criminal Proceedings Investigator: [?] Kabiligi: I'm ready to continue. Investigator: At this time, you are prepared to answer our questions? Kabiligi: I am prepared to answer your questions. Alone, without the assistance of counsel, as I have not yet read my case file. Once I have read my case file, I will request the assistance of counsel. Investigator: That implies that you have now waived that right. That means that you have now waived [?]. Momentarily. At least for today. Because should you accept to answer our questions, that means that for the moment, you waive that right. For now. Kabiligi: But, it doesn't mean I waive it? Investigator: It is not an absolute waiver. In any event, you are entitled to the assistance of counsel for full answer and defence. This is an international tribunal with all the attendant guarantees. Kabiligi: All right. I accept. Investigator: Okay. In that case.... Kabiligi: At this time, for this interview, I am not requesting the assistance of counsel. However, once I have read my case file, I will exercise the full extent of my rights. Investigator: Now, could you sign the waiver? Kabiligi: During this interview, I have decided to answer all your questions without the presence of counsel. However, in due course, I may stop the interview and request the assistance of counsel.

16. Article 17 of the Statute and Rule 42 of the Rules state in unconditional terms that a detainee has a right to the immediate assistance of counsel; and, further, that questioning of the suspect "shall not proceed without the presence of counsel unless the suspect has voluntarily waived his right to counsel." Not all legal systems confer this right on a detainee, but it is deeply and eloquently inscribed in the annals of many national and international legal systems. Along with the right to silence, this right is rooted in the concern that an individual, when detained by officials for interrogation, is often fearful, ignorant and vulnerable; that fear and ignorance can lead to false confessions by the innocent; and that vulnerability can lead to abuse of the innocent and guilty alike, particularly when a suspect is held incommunicado and in isolation. 17. The importance of the right to counsel, and the precariousness of its exercise by a suspect in detention, is reflected in the stringent requirement in Rule 42 (B) that a suspect has "voluntarily waived his right to counsel" before a custodial interrogation can take place. The heavy burden of the words "voluntarily waived" were interpreted by a Chamber of the IClY in Delalic: The burden of proof of voluntariness or absence of oppressive conduct in obtaining a statement is on the Prosecution. Since these are essential elements of proof fundamental to the admissibility of a statement, the Trial Chamber is of the opinion that the nature of the issue demands for admissibility the most exacting standard consistent with the allegation. Thus, the Prosecution claiming voluntariness on the part of the Accused/suspect, or absence of oppressive conduct, is required to prove it convincingly and beyond reasonable doubt.

ICTR • 147 National courts in which the right to counsel is recognized have elaborated that a waiver cannot be voluntary unless a detainee knows of the right to which he is entitled. To be so informed, the suspect must be informed that the right includes the right to the prompt assistance of counsel, prior to and during any questioning. Any implication that the right is conditional, or that the presence of counsel may be delayed until after the questioning, renders any waiver defective. These rights, and the practical mechanisms for their exercise, must be communicated in a manner that is reasonably understandable to the detainee, and not "simply by some incantation which a detainee may not understand." Generally, a suspect may be taken to comprehend what a reasonable person would understand; but where there are indications that a witness is confused, steps must be taken to ensure that the suspect does actually understand the nature of his or her rights. 18. Once the detainee has been fully apprised of his right to the assistance of counsel, he or she is in a position to voluntarily waive the right. The waiver must be shown "convincingly and beyond reasonable doubt." It must be express and unequivocal, and must clearly relate to the interview in which the statement in question is taken. 19. Relying on these principles, the Chamber is of the view that the Prosecution has not discharged its burden of showing that the Accused Kabiligi voluntarily waived his right to the assistance of counsel, as required by Rule 42 (B). At the beginning of his interview with the investigators, the Accused demonstrated that he did not understand that he had an immediate right to the assistance of counsel. He asked repeatedly to be informed of the charges against him, and seems to have believed that "as soon as I find out the reasons for my arrest, I will be entitled to request the assistance of counsel," and that "before exercising my rights, before requesting the assistance of counsel, I must be informed of the charges against me." Rather than correcting the Accused's misperception that his right to counsel was conditional upon being informed of the case against him, the investigators responded that "standard procedure" is that disclosure would happen later. The Accused then attempted to reserve the right to request the assistance of counsel "as soon as I find out the case against me, because I don't know what it is at this time." This again should have demonstrated to the investigators that the Accused was still confused, and probably did not understand that he had the right to assistance of counsel immediately. Nothing in the remainder of the interview indicates that the Accused's misunderstanding was ever corrected, and at no time did the investigators advise the Accused that he had an immediate right to the assistance of counsel during questioning. Under these circumstances, the Prosecution has not proven that there was a waiver of the right to counsel, as required by Rule 42 (B) . 20. The Chamber is further of the view that the Accused actually did invoke the right to counsel at the beginning of his interview. The Accused states three times that as soon as he is informed of the case against him, he would then "exercise" the right of, or "be entitled" to, the assistance of counsel. He also purports to "exercise the full benefit of the rights that have just been read to me, as soon as I find out the case against me." The investigators should have recognized that this was a confused attempt to invoke the right to counsel, and ceased their questioning immediately. Rule 42(B) expressly states that questioning "shall not proceed" in the absence of a voluntary waiver. It was improper for the investigators to have explained that "standard procedure" was that disclosure occurred at a later time, thereby possibly implying that the right to counsel was also only available at a later time. The Accused was under the impression that the interview was "preliminary," but the investigators proceeded to ask important questions of sub-

148 • Defense in International Criminal Proceedings

stance. The questioning of the Accused after his attempted invocation of the right to counsel, including the apparent waiver of that right, violated Rule 42 (B). 21. The right to counsel during a custodial interrogation is closely intertwined with the exercise of the right to silence; the right to be cautioned that any statement made may be used against the detainee in evidence at trial; and the right in Article 20 (4) (g) of the Statute" [n] ot to be compelled to testify against himself or herself or to confess guilt." Without at least the opportunity to choose whether to consult with counsel, there is a possibility that an accused will answer the questions of investigators in ignorance of the other rights to which he or she is entitled. For this reason, the consequence of nonwaiver of the right is expressly set forth in the Rule 42 (B): questioning "shall not proceed without the presence of counsel unless the suspect has voluntarily waived his right to counsel." As stated by the IClY Chamber in Delalic, it is difficult to imagine a statement taken in violation of the fundamental right to the assistance of counsel which would not require its exclusion under Rule 95 as being "antithetical to, and would seriously damage, the integrity of the proceedings." In any event, no circumstances have been raised by the Prosecution to suggest that exclusion is not the appropriate response to the violation of the right. The interview of the Accused Kabiligi is excluded.

FOR THE ABOVE REASONS, THE CHAMBER GRANTS the Prosecution motions to admit into evidence the records of interviews of the Accused Ntabakuze, identified as NTABALO-14 and -15; the written authorisation to purchase arms (BAGOTHE-38); the documents relating to transport of arms (BAGOTHE-25); the Agreement between the United Nations and Rwanda on the Status of UNAMIR (UNAMIRZ-04);

DENIES the Prosecution motion in respect ofKABIGRA-Ol and -02 and BAGOTHE-26.

5.1.3.2.

Article 20(4) ofthe Statute

The Prosecutor \t. Kambanda-Judgment, Case No.ICTR-97-23, Appeals Chamber, Oct. 19, 2000

12. The Appellant argues that the Trial Chamber erred in law by not taking into consideration the denial ofJean Kambanda's right to legal assistance of his own choosing.

33. With respect to the right to choose one's counsel, the Appellant argues that he ought to have had the right to choose his counsel and that the violation of this right was a violation of his right to a fair trial. The Appeals Chamber refers on this point to the reasoning of Trial Chamber I in the Ntakirutimana case [The Prosecutor v. G. Ntakirutimana, Case No. ICTR-96-10-T and ICTR-96-17-T), Decision on the Motions of the Accused for Replacement of Assigned Counsel, 11 June 1997. Author's Note: seesec-

ICTR • 149 tion 3.2.4 below.] and concludes, in the light of a textual and systematic interpretation of the provisions of the Statute and the Rules, read in conjunction with relevant decisions from the Human Rights Committee and the organs of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that the right to free legal assistance by counsel does not confer the right to choose one's counsel.

The Prosecutor \t. Akayesu-Judgment, Case No. ICTR-96-4, June 1,2001

49. Akayesu submits that he was deprived of his right to counsel of his own choosing....

60. In general, the issue of the right of an indigent accused to counsel of his own choosing raises the issue of balancing two requirements: on the one hand, affording the accused as effective a defence as possible to ensure a fair trial, and on the other hand, proper use of the Tribunal's resources. 61. The Appeals Chamber holds that, in principle, the right to free legal assistance of counsel does not confer the right to counsel of one's own choosing. The right to choose counsel applies only to those accused who can financially bear the costs of counsel. ...

67. Akayesu alleges generally that he was not afforded assistance by a competent counsel. ...

76. The Appeals Chamber recalls that indigent accused have the right to competent assigned counsel. The Appeals Chamber reiterates, in this connection, its findings in Kambanda that: the effectiveness of representation by assigned counsel must be assured in accordance with the principles relating to the right to a defence, in particular the principle of equality of arms. It recalls that the right to competent counsel is guaranteed under the International Covenant on Civil and Political Rights (Article 14), the European Convention on Human Rights (Article 6) and the American Convention on Human Rights (Article 8). 77. With respect to the applicable tests for assessing counsel's ineptitude, the Appeals Chamber endorses the tests applied by the IClY Appeals Chamber in the Tadic Decision. In this regard, ICTY Appeals Chamber held that an Appellant alleging incompetence of counsel must show "gross incompetence" of the latter. The Appellant may do so by "demonstrate [ing] that there was reasonable doubt as to whether a miscarriage ofjustice resulted." ... 78. In other words, the Statute of the Tribunal affords an indigent accused the right to be represented by a competent counsel. The latter is presumed to be competent and such a presumption of competence can only be rebutted by evidence to the contrary....

150 • Defense in International Criminal Proceedings

The Prosecutor \t. Kayishema and Ruzindan~Order on the Motion by the Defense Counsel for Application of Article 20(2) and 4(b) ofthe Statute ofthe International Criminal Tribunal for Rwanda, Case No. ICTR·95·1, May 5, 1997

CONSIDERING also the Defence Counsel's oral contention that the most important issue for the consideration of the Tribunal is not procedural but to ensure that the trial is conducted in a fair and equitable manner, and that there should be equality between the Prosecution and the Defence, in terms of the means and facilities made available to them;

WHEREAS the Tribunal finds that the rights of the accused and equality between the parties should not be confused with the equality of means and resources; WHEREAS the Tribunal determines that the rights of the accused as laid down in Article 20 and in particular (2) and (4) (b) of the Statute shall in no way be interpreted to mean that the Defence is entitled to same means and resources as available to the Prosecution; WHEREAS the Tribunal concludes that the Defence Counsel has not proved to its satisfaction any violation of the rights of the accused as laid down in Article 20(2) and (4)(b);

Judgment, May 21, 1999

55. The notion of equality of arms is laid down in Article 20 of the Statute.... Article 20 (4) also provides, " the accused shall be entitled to the following minimum guarantees, in full equality ," there then follows a list of rights that must be respected, including the right to a legal counsel and the right to have adequate time and facilities to prepare his or her defence. 56. Counsel for Kayishema filed a Motion, on 13 March 1997, calling for the application of Rule 20(2) and 20(4) [Author's Note: see section 3.2.3.1 above]. The Defence submitted that in order to conduct a fair trial, full equality should exist between the Prosecution and the Defence in terms of the means and facilities placed at their disposal. To this end, the Defence requested the Chamber to order the disclosure of the number of lawyers, consultants, assistants and investigators that had been at the disposal of the prosecution since the beginning of the case. The Motion also requested the Chamber to order the Prosecutor to indicate the amount of time spent on the case and the various expenditures made. Finally, the Motion called upon the Chamber to restrict the number of assistants utilised by the Prosecution during trial to the same number as those authorised for the Defence.

59. The Chamber considered that the Defence did not prove any violation of the rights of the accused as laid down in Article 20 (2) and 20 (4). The Chamber considered that

ICTR • 151 the Defence should have addressed these issues under Article 17 (C) of the Directive on Assignment of Defence Counsel (Defence Counsel Directive). This provision clearly states the costs and expenses of legal representation of the suspect or accused necessarily and reasonably incurred shall be covered by the Tribunal to the extent that such expenses cannot be borne by the suspect or the accused because of his financial situation. [emphasis added] 60. This provision should be read in conjunction with Article 20 (4) (d) of the Statute which stipulates that legal assistance shall be provided by the Tribunal, "... ifhe or she does not have sufficient means to pay for it." [emphasis added]. Therefore, at this juncture, the Trial Chamber would reiterate its earlier ruling on this Motion that the rights of the accused should not be interpreted to mean that the Defence is entitled to same means and resources as the Prosecution. Any other position would be contrary to the status quo that exists within jurisdictions throughout the world and would clearly not reflect the intentions of the drafters of this Tribunal's Statute.

Judgment (Reasons), June 1,2001

63. During proceedings before the Trial Chamber, Counsel for Kayishema filed a Motion calling for full equality of arms between the Prosecution and the Defence.... The Trial Chamber rejected this argument.... Author's Note: See Order on the Motion andJudgment, above.

67. The right of an accused to a fair trial implies the principle of equality of arms between the prosecution and the Defence. The Appeals Chamber finds that the Trial Chamber rightly held that: "The notion of equality of arms is laid down in Article 20 of the Statute. Specifically, Article 20(2) states, "... the accused shall be entitled to a fair and public hearing...." Article 20(4) also provides, " the accused shall be entitled to the following minimum guarantees, in full equality ," then follows a series of rights that must be respected, including the right to a legal counsel and the right to have adequate time and facilities to prepare his or her defence." 68. The Trial Chamber dismissed Kayishema's motion suggesting a duty to seek full equality between the Prosecutor and the Defence. 69. The Appeals Chamber observes in this regard that equality of arms between the Defence and the Prosecution does not necessarily amount to the material equality of possessing the same financial and/or personal resources. In deciding on the scope of the principle of equality of arms, IClY Appeals Chamber in Tadic held that "equality of arms obligates ajudicial body to ensure that neither party is put at a disadvantage when presenting its case." 70. The Appeals Chamber endorses the Trial Chamber's ruling. This is to ensure that the guarantees set forth in Article 20 (2) and (4) of the Statute are respected.

152 • Defense in International Criminal Proceedings

The Prosecutor \t. G. Ntakirutimana-Decision on the Motions ofthe Accused for Replacement ofAssigned Counsel, Cases Nos.ICTR-96-10 and 96-17, June 11, 1997

WHEREAS, through numerous letters addressed to the President of the Tribunal, the accused Gerard Ntakirutimana is requesting that the counsel assigned to him by the Registrar on 10 March 1997, in the person of Mr. N.K. Loomu-Ojare of the Tanganyika Bar Association, be replaced on the grounds of having lost confidence in said counsel, and subsequently that the Registrar assign to him a particular counsel of his choice; WHEREAS, on this last point he cites the provisions of Article 20 (4) of the Statute of the Tribunal ... , which supposedly entitles him, though indigent, to freely choose his counsel, and submits that the Registrar should never have imposed Mr. Loomu-Ojare on him;

TAKIN G INTO ACCOUNT the rights of the accused, as set forth in Article 14 (3) (d) of the International Covenant on Civil and Political Rights ... , in Article 20 (4) (d) of the Statute, in Article 7(1) (c) of the African Charter on Human and People's Rights ... and in Article 6(3) (c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms... ;

WHEREAS, Article 20 (4) of the Statute, which does, actually, simply reiterate Article 14 of the Covenant, stipulates ... WHEREAS it seems that the formula used for the indigent accused, which is the right "to have legal assistance assigned to (him), and without payment by (him) in any such case if (he) does not have sufficient means to pay for it," involves a party other than the accused in the choice of assigned Defence counsel; WHEREAS, this being the case, the question is whether, in so doing, the Registrar is necessarily bound to consider the choice made by the indigent accused; WHEREAS, on this question, the Tribunal points out that Article 20 (4) of the Statute outlines two situations: -the first situation requires that, where the accused has the means to pay for counsel, the accused may choose whomever he or she wishes; -the second situation is precisely that of the accused Gerard Ntakirutimana who declared himself to be indigent and was so recognized by the Registrar; in this case, it is for the Registrar to assign him counsel who will be remunerated from the funds allocated by the Tribunal for this purpose;

WHEREAS the Tribunal reads Article 20(4) in the same manner as the Human Rights Committee, the supervisory and interpretation body of the Covenant, established in accordance with Article 28, when it reads Article 14(3) (d) of the said Covenant;

ICTR • 153 WHEREAS, indeed, in several of the findings, the Human Rights Committee has had to reiterate that the said Article 14 does not entitle the accused to choose Defence counsel assigned to him without payment by him;

WHEREAS, the principle having thus been set out that the final decision for the assignment of counsel and of the choice of such counsel rests with the Registrar, the Tribunal submits nonetheless that, mindful to ensure that the indigent accused receives the most efficient defence possible in the context of a fair trial, and convinced of the importance to adopt a progressive practice in this area, an indigent accused should be offered the possibility of designating the counsel of his or her choice from the list drawn up by the Registrar for this purpose, pursuant to Rule 45 of the Rules and Article 13 of the Directive [on the Assignment of Counsel], the Registrar having to take into consideration the wishes of the accused, unless the Registrar has reasonable and valid grounds not to grant the request of the accused.

DECLARES that Article 20 (4) of the Statute cannot be interpreted as giving the indigent accused the absolute right to be assigned the legal representation of his or her choice; DECALRES, nonetheless that, mindful to ensure that the indigent accused receives the most efficient defence possible in the context of a fair trial, and convinced of the importance to adopt a progressive practice in this area, an indigent accused should be offered the possibility of designating the counsel of his or her choice from the list drawn up by the Registrar for this purpose, the Registrar having to take into consideration the wishes of the accused, unless the Registrar has reasonable and valid grounds not to grant the request of the accused.

The Prosecutor \t. Simba-Decision on Postponement of Trial, Case No.ICTR-01-76, August 18,2004

22. According to Article 20 (4) (b) and (d) of the Statute, the Accused has the right to defend himself through legal assistance, and to communicate with Counsel, of his own choosing. He is also entitled to have legal assistance assigned to him where required by the interests ofjustice, without payment if he has insufficient means. Rules 44 to 46 and the Directive [on the Assignment of Defence Counsel] supplement the rights guaranteed by the Statute.

154 • Defense in International Criminal Proceedings

5.1.3.3.

Rule 40 bis ofthe Rules of Procedure and Evidence

No relevant jurisprudence.

5.1.3.4.

Rule 42 ofthe Rules of Procedure and Evidence

The Prosecutor \t. Kajelijeli-Decision on the Defense Motion Concerning the Arbitrary Arrest and Illegal Detention ofthe Accused and on the Defense Notice ofUrgent Motion to Expand and Supplement the Record of December 8,1999 Hearing, Case No. ICTR-98-44, May 8,2000

Submissions of the Defence

9. The Accused was denied the right to counsel during his interrogation in July 1998 while in custody in Benin in violation of Rules 42, 43 and 44 of the Rules. He was questioned and statements taken from him by the investigators of the Prosecutor, who also made recordings yet they were not provided to him. Contrary to what the Prosecutor had earlier asserted, the Accused was interrogated for about one hour by the said investigators. The tapes of this interrogation, which were unsealed in the presence of the Parties on 27 March 2000, show this.... The Defence concedes that the Accused had waived his right to have his counsel present at his interrogation . Response by the Prosecutor

23. The Prosecutor had initially submitted that no interrogation occurred and that she was not in possession of any statements that would be used at the trial against him. In a further written brief of 31 January 2000, the Prosecutor apologized for misleading the Chamber.... [When] the tapes were unsealed ... it was revealed that an interrogation had taken place. The Prosecutor argued that nonetheless, the right of the Accused to counsel during the interrogation was respected. With respect to the issue of unlawful questioning, it is clear that the Accused waived his right to counsel as shown by a document, which he had signed to that effect. The document was attached to the Prosecutor's further brief.

30. The Trial Chamber has considered all the arguments advanced by the Parties and gives its decision below.

39. Considering that the Defence had conceded that the Accused had waived his right to counsel, the Chamber finds that, in accordance with Rule 42 (B), the Accused voluntarily waived his right to counsel at the time of questioning. He was made aware of his rights and the Defence has admitted this fact. The Chamber thus finds that, in light of those facts, this allegation is without merit.

ICTR • 155

The Prosecutor \t. Bizimungu etal.-Decision on Prosper Mugiraneza's Renewed Motion to Exclude His Custodial Statements From Evidence, Case No. ICTR-99-50, December 4, 2003

Defence Submissions

2. The Defence requests the Chamber to order the exclusion from evidence of all the custodial statements made by Prosper Mugiraneza, ... because of the Prosecutor's failure to comply with the provisions of Rules 40, 42 and 43 of the Rules of Procedure and Evidence.... 3. The Defence argues that the statements given by Mugiraneza while he was in the custody of Cameroonian authorities were not obtained from him in compliance with the provisions of Rule 42(B). Essentially, the Defence argues that Mugiraneza's consent to an interrogation by investigators in the absence of counsel was equivocally made.

Prosecution Submissions

6. The Prosecution essentially argues that there was no violation of Prosper Mugiraneza's rights provided under Rules 40, 42 and 43 of the Rules.

7. The Prosecution submits that from the interview notes, one can see that on 8, 13 and 19 April 1999, Prosper Mugiraneza's answer with regard to his being interviewed in the absence of counsel was unequivocal.

Defence Reply

11. The Defence emphasizes that Prosper Mugiraneza's answer to the investigators with regard to his waiver of the right to counsel was unequivocal and the investigators made no effort to clarify the Accused's statement.

Deliberations

17. After a careful review of the transcripts of the interviews of the Accused which took place on 8, 13 and 19 April 1999, the Trial Chamber does not consider that the rights of the Accused guaranteed by Rule 42 have been violated. It appears clearly on the records that on 8 April 1999, the Accused was read out Rule 42 by the investigators and he answered unequivocally that he agreed to talk to the investigators in the absence of his counsel. When asked if" [he] would like to waive [his] right to counsel?," the Accused stated "Not completely, but ... for the moment, I ... I accept to talk to you." The Trial Chamber considers that this waiver of right of counsel is unequivocal and therefore the absence of counsel was not prejudicial to the right of the Accused. 18. Furthermore, on 13 April 1999, Rule 42 was again read out to the Accused and he was again asked if "he agrees to continue this discussion in the absence of a counsel?". He answered clearly ''Yes, I agree."

156 • Defense in International Criminal Proceedings

19. On 19 April 1999, the Accused was informed of his rights pursuant to Rule 42 and asked "Honorable Minister do you accept to continue with this interview without the presence of counsel?". He answered to the investigators: ''Yes agreed." 20. The Trial Chamber is of the view that the Accused was quite clear and explicit as to whether he needed counsel to be present during that interview. He did not. He, however, kept his options open should he, in the future, need counsel. When, later, he was reminded of his rights and his concurrence sought on whether he wished to have counsel present, he clearly and categorically stated that he did not. 21. The Trial Chamber considers therefore that the rights of the Accused pursuant to Rule 42 have not been violated. The Trial Chamber finds that the Accused was explicitly informed of his rights by the investigators and that he waived his right to counsel unequivocally.

The Prosecutor \t. Bagosora et al.-Decision on the Prosecutor's Motion for the Admission of Certain Materials Under Rule 89(C), Case No. ICTR-98-41, October 14, 2004 Author's Note: See Section 5.1.3.1.

5.1.3.5.

Rule 44 ofthe Rules of Procedure and Evidence

The Prosecutor \t. E. Ntakirutimana and G. Ntakirutimana-Decision on the Motion ofthe Defence for the Assignment ofCo-Counsel for Elizaphan Ntakirutimana, Case Nos. ICTR-96-10 and 96-17, July 13, 2001

Qualifications

13. Rule 44(A) contains two alternative conditions for being considered qualified to represent an accused: "Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law." 14. Rule 45 (A), which directly deals with the list of Counsel to be drawn up by the Registrar, adds that Counsel must have at least 10 years' experience. Article 13 of the Directive, which applies to both Counsel and co-Counsel, reiterates the conditions laid down by Rules 44 and 45: "Any person may be assigned as Counsel if the Registrar is satisfied that he fulfils the following pre-requisites: (i) He is admitted to practice law in a State, or is a professor of law at a university or similar academic institution and has at least 10 years' relevant experience;" 15. The first condition in Rule 44 is that the person must be "admitted to the practice of law in a State." The English version indicates that Counsel must be a practicing lawyer (barrister), and the French text ("l'habilete a exercer la profession de l'avocat dans un Etat") is quite explicit on this point.

ICTR • 157 16. Mr Gasasira does not fulfil this requirement. He is not admitted to a bar association, but is presently doing his pupilage at the Bruxelles Bar ("avocat stagiaire"). There is no information that he has previously been admitted to the bar. 17. The second alternative in Rule 44 is that Counsel is a "University professor of law." Article 13(i) of the Directive is more generally formulated and includes "similar academic institution." It is clear from the term "professor" that the mere fact that a person teaches at a University or similar institution ("charge de cours") is not in itself sufficient to qualify under this alternative. Furthermore, the person concerned must have "ten years relevant experience" as required by Rule 45. It is not required, however, that the experience includes practice as a lawyer. The purpose of these provisions is to ensure assignment of counsel with relevant and extensive expertise at a high level who can mount an effective defence of the accused. 18. According to the curriculum vitae of Mr Gasasira, he was for nine years (1985-1994) a visiting professor at the Law Faculty of Rwanda ("Faculte de Droit de l'Unioersite Nationale du Rwanda"). For sixteen years (1980-1996) he was a visiting professor at the Center of Judicial Education (" Centre de formation judiciaire"). Even if he is not a permanent University professor, the available information indicates that he had a considerable attachment and regularity to academic institutions. The Chamber notes, however, that the Defence has not produced any written documentation concerning these activities. This is not in conformity with Article 14 of the Directive, which reads: "In support of the pre-requisites provided for in Article 13 (i), the Registrar shall be supplied with certification of professional qualifications issued by the competent professional or governing body for that Counsel and such other documentation as the Registrar deems necessary." (Italics added.) 19. The motion did not provide any documents in order to establish that he acted as a visiting professor. Assuming that the Defence will be able to provide further documentation in this regard, the Chamber observes that Mr Gasasira fulfills the requirement of at least ten years relevant experience as required by Rule 45. He served as a Prosecutor for three years and as a judge, including as a Presiding Judge of the Court of Appeals, for sixteen years in Rwanda. There is every reason to assume that he has valuable experience in criminal proceedings which may be useful for the Defence in the present case. It is also noted that among his publications figure a manual for the police and a commentary on the law of 30 August 1996 concerning the prosecution of crimes constituting genocide and crimes against humanity. Even if he was a visitingnot permanent-professor at academic institutions the Chamber is convinced that his qualifications, seen as a whole, are sufficient to meet the requirements of Rules 44 and 45 and Articles 13 and 15 of the Directive.

The President's Decision on Ms. Tiphaine Dickson's Application for Review of the Registrar's Decision Removing Her From the Tribunal's List of Counsel for Indigent Accused, October 9, 2002

Rule 45 (A) of the Rules, confers on the Registrar the responsibility of maintaining a list of counsel who may be assigned by the Tribunal to represent indigent suspects and

158 • Defense in International Criminal Proceedings

accused. Counsel meeting the criteria stipulated in Rules 44 (A) and 45 (A) of the Rules, are eligible for enrolment on the Tribunal's list of counsel. Rule 44(A) of the Rules states that

.

Rule 45 (A) of the Rules states that

.

In assigning counsel to indigent accused and suspects, the Registrar must ensure that counsel meet the requirements of Article 13 of the Directive on Assignment of Defence Counsel (the "Directive"), which provides.... Where the Registrar has assigned counsel to represent an indigent accused, he may withdraw such assignment pursuant to the authority conferred on him by Article 19 of the Directive.... Ms. Dickson submits that the Registrar's decision to remove her name from the Tribunal's list of counsel on which she was listed from 7 February 1997 to 30 November 2001, was improperly made and that the Rules and Directive do not empower the Registrar to remove a specific counsel from the list of counsel. In response, the Registrar submits that his authority to remove Ms. Dickson from the list of counsel is derived from Rule 45 of the Rules. Ms. Dickson does not have the necessary ten years of relevant experience and she was therefore removed from the list of counsel. Ms. Dickson was enrolled on the Tribunal's list of counsel before the ten-year requirement for counsel was adopted. She submits that she was on the list of counsel when the ten-year requirement came into effect and the Registrar did not at that stage, withdraw her from the list of counsel. In response, the Registrar states that when the ten-year requirement came into effect, Ms. Dickson was representing Georges Rutaganda. At that stage, the trial had already commenced and Lead Counsel Luc De Timmerman, had withdrawn from the case. In order to ensure continuity and to avoid a disruption of the trial proceedings, he had not acted on the withdrawal of Ms. Dickson's assignment at that stage, even though she had not complied with the ten-year requirement. Ms. Dickson submits that the criteria requiring counsel to have a minimum of ten-years experience is not applicable to her because she has "Acquired rights," since her assignment to represent Georges Rutaganda was not withdrawn following the adoption of this criteria. The Registrar submits that Ms. Dickson has "Acquired rights" only in respect of her assignment as counsel for Georges Rutaganda and these rights cannot be said to override the express requirements of Rule 45 of the Rules, in subsequent cases. I note that Ms. Dickson withdrew as counsel to Georges Rutaganda on 5 January 2001. It is clear from the relevant Rules and Articles that the Registrar has the responsibility of ensuring that counsel applying for enrolment on the Tribunal's list of counsel, fulfill all the criteria set out in the Rules before they are placed on the said list. He also has the responsibility of reviewing the list on a continuous basis to ensure compliance with the required criteria and where applicable to remove any counsel no longer meeting the criteria. Having found that Ms. Dickson's experience fell short of the ten-year requirement, the Registrar had rightfully removed her from the Tribunal's list of counsel.

ICTR • 159

5.1.3.6.

Rule 44 bis ofthe Rules of Procedure and Evidence

No relevant jurisprudence.

5.1.3.7.

Rule 45 ofthe Rules of Procedure and Evidence

Author's Note: See Section 3.5.1, The Prosecutor v. E. Ntakirutimana and G. Ntakirutimana (Cases Nos. ICTR-96-10 and 96-17), Decision on the Motion of the Defence for the Assignment of Co-Counsel for Elizaphan Ntakirutimana (Trial Chamber) ,july 13, 2001; Section 3.5.2, The President's Decision on Ms. Tiphaine Dickson's Application for Review of the Registrar's Decision Removing Her From the Tribunal's List of Counsel for Indigent Accused, October 9,2002.

5.1.3.8.

Rule 62(A)(i) ofthe Rules of Procedure and Evidence

No relevant jurisprudence.

5.1.3.9.

Rule 63 ofthe Rules of Procedure and Evidence

No relevant jurisprudence.

5.1.3.10. Rule 82 bis ofthe Rules of Procedure and Evidence No relevant jurisprudence.

5.1.3.11. Rule 107 ofthe Rules of Procedure and Evidence Author's Note: This is a general provision on the mutatis mutandis applicability of the Rules of Procedure and Evidence to proceedings in the Appeals Chamber and it is therefore not necessary to list the related jurisprudence.

5.1.3.12. Rule 10ofthe Rules Covering the Detention of Persons Awaiting Trial orAppeal No relevant jurisprudence.

5.1.3.13. Rule 65 ofthe Rules Covering the Detention of Persons Awaiting Trial orAppeal Author's Note: The relevant jurisprudence is fully summarized and discussed bellow in Chapter 5.5.

5.1.3.14. Article 2 ofthe Directive on the Assignment of Defense Counsel No relevant jurisprudence.

5.1.3.15. Article 13 ofthe Directive on the Assignment of Defense Counsel Author's Note: See Section 3.5.1, The Prosecutor v. E. Ntakirutimana and G. Ntakirutimana (Cases Nos. ICTR-96-10 and 96-17), Decision on the Motion of the Defence for the Assignment of Co-Counsel for Elizaphan Ntakirutimana (Trial Chamber) ,july 13, 2001; Section 3.5.2, The President's Decision on Ms. Tiphaine Dickson's Application for

160 • Defense in International Criminal Proceedings Review of the Registrar's Decision Removing Her From the Tribunal's List of Counsel for Indigent Accused, October 9,2002.

5.1.3.16. Article 14ofthe Directive on the Assignment of Defense Counsel Author's Note: See Section 3.5.1, The Prosecutor v. E. Ntakirutimana and G. Ntakirutimana (Cases Nos. ICTR-96-10 and 96-17), Decision on the Motion of the Defence for the Assignment of Co-Counsel for Elizaphan Ntakirutimana (Trial Chamber) ,July 13, 2001.

5.1.4.

Materials

Marne Mandiaye Niang, "The Right to Counsel Before the International Criminal Tribunal for Rwanda," 13 Crim. L.F. 323-38 (2002).

5.1.5.

Commentary

The right to counsel may be exercised as an alternative to the right to defend oneself, both of which fall within the ambit of the broader right to defense protected by international human rights law instruments.? The excerpted passages from the Tribunal's law highlight that the right to counsel itself is a composite legal concept comprised of several components, principal of these being the right to be informed of the right to counsel, and the right to choose one's own counselor to receive free legal assistance." As noted in the introduction to this chapter, the ICTR law extends the right to counsel to suspects, albeit in an abbreviated form. Pursuant to Article 17(3) of the Statute, if a suspect is questioned, he or she is entitled to be assisted by counsel. If the suspect lacks sufficient means to pay for such legal assistance, then, pursuant to Article 17 (3), he or she is entitled to have free legal assistance provided to him or her. Rule 42 of the Rules of Procedure and Evidence further specifies that prior to questioning, the prosecutor is to inform the suspect, in a language he or she understands, of the right to be assisted by counsel and of the availability of free legal assistance. Rule 42 (B) reinforces the suspect's right to counsel by stipulating that the prosecutor may not proceed to question the suspect without a counsel present, unless the suspect has voluntarily waived his or her right to counsel. If the suspect has waived his or her right to counsel, he or she may withdraw the waiver at any time and the questioning then has to cease and may resume only when the suspect has legal rcprcscntation.? Article 2 of the Directive on the Assignment of Defense Counsel reiterates the suspect's right to counsel during questioning. Other provisions within the Tribunal's regulatory framework recognize the suspect's right to counsel. Specifically, Rule 40 bis 0) of the Rules of Procedure and Evidence provides that after transfer to the Tribunal, the suspect, assisted by counsel, shall be brought

7 See, e.g., International Covenant on Civil and Political Rights, Article 14(3) (d); African Charter on Human and People's Rights, Article 7(1); American Convention on Human Rights, Article 8 (2); European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(3). See also Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 258-61 (1993). 8 See, e.g., ICTR Statute, Article 20( 4) (d). 9 Rules of Procedure and Evidence, Rule 42 (B) .

ICTR • 161 before ajudge who is to ensure that the suspect's rights are respected, and Rule 10 of the Rules Covering the Detention of Persons Awaiting Trial or Appeal prescribes that each detainee is to be provided with information concerning legal representation available to him as well as with the opportunity to notify his or her counsel of his or her whereabouts. The Tribunal's Trial Chambers have had three occasions to rule on alleged violations of Rule 42 (B) of the Rules of Procedure and Evidence (see Section 3.4). In two cases, the Chambers found that the suspects were informed of their right to counsel, but that they had waived the exercise of this right prior to questioning."? In the third, and most recent decision, in the case of The Prosecutor v. Bagosora et al., the Trial Chamber carefully and at length analyzed the issue of custodial interrogation of suspects and the possibility of waiver of the right to be questioned in the presence of counsel under Rule 42(B).11 The Trial Chamber rejected a contention of the prosecution that Gratien Kabiligi, who was a suspect at the time, voluntarily waived his right to have counsel present and found that the suspect's questioning in the absence of counsel violated Rule 42 (B) of the Rules.!? Accordingly, the Trial Chamber excluded the record of the suspect's interview from evidence.!" While by expressly extending the right to counsel to suspects, the ICTR Statute and Rules go beyond the texts of the major international human rights law instruments, which recognize and guarantee the right to counsel.l! the Tribunal's legal regime limits the right of suspects to counsel to the particular circumstance of questioning. Thus, ICTR suspects are not entitled to legal representation during other phases of the investigation, such as, for example, during seizure of evidence.l- Suspects in those circumstances could secure their own legal representation, but they would not be entitled to free legal assistance from the Tribunal. Considering that accused persons before the ICTR generally receive legal assistance due to their indigcncc.l'' it may be unrealistic to expect that suspects would be in a position to secure their own legal representation during the investigation stage. To date, however, the Tribunal's Chambers have not been confronted with a complaint about the lack of legal assistance for suspects during investigatory phases other than questioning.

10 See The Prosecutor v. Kajelijeli, Case No. ICTR-98-44, Decision on the Defense Motion Concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and Supplement the Record of December 8, 1999, Hearing (Trial Chamber), May 8, 2000; The Prosecutor v. Bizimungu et al., Case No. ICTR-99-50, Decision on Prosper Mugiraneza's Renewed Motion to Exclude His Custodial Statements From Evidence (Trial Chamber), Dec. 4, 2003. 11 The Prosecutor v. Bagosora et al., Case No. ICTR-98-41, Decision on the Prosecutor's Motion for the Admission of Certain Materials Under Rule 89 (C) (Trial Chamber), Oct. 14, 2004. 12 Id., para. 20. 13 Id., para. 21. 14 Note, however, that although the European Convention for the Protection of Human Rights and Fundamental Freedoms does not expressly extend the right to counsel to suspects (cf Article 6), the European Court of Human Rights has stated that the right to counsel may extend to pre-trial proceedings, including the preliminary investigation. Imbrioscia v. Switzerland, 17 E.H.R.R. 441, paras. 36-38 (1994). 15 See Salvatore Zappala, "Rights of Persons During an Investigation," in The Rome Statute of the International Criminal Court: A Commentary 1191-92 (A. Cassese et al. eds., 2002). 16 Marne Mandiaye Niang, "The Right to Counsel Before the International Criminal Tribunal for Rwanda," 13 Crim. L.F. 324 (2002).

162 • Defense in International Criminal Proceedings The accused person's right to counsel is guaranteed in Article 20 (4) of the Statute. Sub-paragraph d of Article 20 (4) provides that the accused is entitled to be informed of the right to counsel, that is of the right to defend himself or herself through legal assistance of his or her choice or through free legal assistance assigned by the Tribunal. Upon being transferred to the Tribunal, the accused is to be brought before a Trial Chamber or ajudge in order to be formally charged during the process of initial appearance.l? The first requirement during the initial appearance is for the Chamber or the judge to ascertain that the accused's right to counsel is respcctcd.l'' As in the case of the suspect, according to Rule 63 of the Rules of Procedure and Evidence, the accused person may be questioned by the prosecutor only in the presence of counsel, unless the accused expressly agreed to being questioned without counsel present. Rule 63(B) provides that any waiver of the right to counsel in connection with questioning of the accused by the prosecutor must be audio or video recorded following a prescribed procedure.!? The accused person may, at any time during the questioning, indicate that he or she wishes counsel to be present, in which case the questioning must stop and may resume only when the accused's counsel is prcscru.s'' Finally, according to Rule 82 bis of the Rules of Procedure and Evidence a trial of an accused person may proceed even if he or she refuses to appear, but only if, inter alia, the interests of the accused are represented by counsel. The Tribunal's jurisprudence clearly acknowledges the right of the accused person to legal representation."! However, the contours of the right to counsel are determined by the accused person's ability to meet the costs of representation. From early on, the Tribunal has held that where an accused has the means to pay for counsel, he or she may freely choose the legal representative, but that an accused who is recognized to be indigent receives such legal representation as is assigned by the Tribunal.V This formula flows from the text of Article 20 (4) (d) of the Statute. As will be seen in the following section on the assignment of counsel, however, the indigent accused is not entirely without choice when it comes to his or her legal representation. Still, the principle remains that the indigent accused does not have an absolute right to be assigned legal representation of his or her choice.s"

See Rules of Procedure and Evidence, Rule 62. See Rules of Procedure and Evidence, Rule 62 (A) (i). 19 The procedure is set out in Rule 43 of the Rules of Procedure and Evidence. 20 See Rules of Procedure and Evidence, Rule 63 (A). 21 See, e.g., The Prosecutor v. Simba, Case No. ICTR-01-76, Decision on Postponement of Trial (Trial Chamber), Aug. 18,2004, para. 22. 22 See The Prosecutor v. Kambanda, Case No. ICTR-97-23, judgment (Appeals Chamber), Oct. 19, 2000, para. 33; The Prosecutor v. Akayesu, Case No. ICTR-96-4, judgment (Appeals Chamber),june 1,2001, para. 61; The Prosecutor v. G. Ntakirutimana, Cases Nos. ICTR-96-10 and 96-17, Decision on the Motions of the Accused for Replacement of Assigned Counsel (Trial Chamber), june 11, 1997. 23 See The Prosecutor v. Kambanda, Case No. ICTR-97-23, judgment (Appeals Chamber), Oct. 19, 2000, para. 33; The Prosecutor v. Akayesu, Case No. ICTR-96-4, judgment (Appeals Chamber),june 1,2001, para. 61; The Prosecutor v. G. Ntakirutimana, Cases Nos. ICTR-96-10 and 96-17, Decision on the Motions of the Accused for Replacement of Assigned Counsel (Trial Chamber), june 11, 1997. 17

18

ICTR • 163 The right to counsel presumes effective legal rcprescntation.>' To this end, the Tribunal's instruments prescribe certain qualification requirements as well as a Code of Professional Conduct for Defense Counsel.s- Counsel appearing before the Tribunal must be admitted to the practice of law in any jurisdiction or be a professor of law at a university, have ten years of relevant experience and speak at least one of the official languages of the Tribunal, English or French.s'' The ICTR Appeals Chamber in the Akayesu case confirmed that the right to counsel under the Statute means the right to competent counsel.'? However, once the counsel is assigned, he or she is presumed to be competent and, as the Appeals Chamber said in Akayesu, "such a presumption of competence can only be rebutted by evidence to the contrary."28 Finally, the holdings of the Trial and Appeals Chambers in the Kayishema and Ruzindana case indicate that while fair trial requires equality of arms between the prosecution and defense, this does not amount to a requirement of a material equality between the partics.s? This means that the right to counsel is not circumscribed in a situation where the prosecution boasts a larger team than that available to the defense.

5.2. ASSIGNMENT OF COUNSEL* 5.2.1.

Introduction

The ICTR has the peculiarity of having all suspects and accused persons brought before it to have claimed and to have been subsequently found indigent. Indeed, the regulation governing the assignment of counsel before the ICTR, as well as the case law developed over the years, as we will see below, revolve around the main idea of provid-

24 The Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment (Appeals Chamber), June 1,2001, paras. 76, 78. This has also been recognized in the European human rights system. See, e.g., Artico v. Italy, 3 E.H.R.R. 1 (1980). 25 Professional ethics and the Code of Conduct are addressed in Section 5.3. 26 Rules of Procedure and Evidence, Rules 44(A), 45; Directive on the Assignment of Defense Counsel, Articles 13, 14. See The Prosecutor v. E. Ntakirutimana and G. Ntakirutimana, Cases Nos. ICTR-96-10 and 96-17, Decision on the Motion of the Defense for the Assignment of Co-Counsel for Elizaphan Ntakirutimana (Trial Chamber), July 13, 2001; The President's Decision on Ms. Tiphaine Dickson's Application for Review of the Registrar's Decision Removing Her From the Tribunal's List of Counsel for Indigent Accused, Oct. 9, 2002. 27 The Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment (Appeals Chamber), June 1,2001, para. 78. See also The Prosecutor v. Kambanda, Case No. ICTR-97-23, Judgment (Appeals Chamber), Oct. 19, 2000, para. 34, n.49 ("The effectiveness of representation by assigned counsel must indeed be ensured. According to the European Commission for Human Rights, it is up to the authorities responsible for providing free legal assistance and assigning defence counsel to make sure that counsel can defend the accused effectively."). 28 The Prosecutor v. Akayesu, Case No. ICTR-96-4, Judgment (Appeals Chamber), June 1, 2001, para. 78. 29 The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1,Judgment (Reasons) (Appeals Chamber), June 1, 2001, paras. 67-70; Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1,Judgment (Trial Chamber), May 21, 1999, para. 60; Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1, Order on the Motion by the Defense Counsel for Application of Article 20(2) and 4(b) of the Statute of the International Criminal Tribunal for Rwanda (Trial Chamber), May 5,1997. * Section 5.2 was written by Marne Mandiaye Niang.

164 • Defense in International Criminal Proceedings

ing free and effective legal assistance to suspects and accused in the framework of the Legal Aid Program for indigent persons run by the Registrar, under the supervision of the President of the Tribunal and/or the Chambers. Assignment and withdrawal of counsel appear to be the two beats that punctuate the process.

5.2.2.

Statute, Rules and Official Legal Documents

5.2.2.1. Statute There are no provisions in the Statute that deal with the assignment of counsel as such.

5.2.2.2.

Rules of Procedure and Evidence Rule 44: Appointment and Qualifications ofCounsel

(A) Counsel engaged by a suspect or an accused shall file his power of attorney with the Registrar at the earliest opportunity. Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law.

Rule 44 bis: Duty Counsel (A) A list of duty counsel who speak one or both working languages of the Tribunal and have indicated their willingness to be assigned pursuant to this Rule shall be kept by the Registrar. (B) Duty counsel shall fulfill the requirements of Rule 44, and shall be situated within reasonable proximity to the Detention Facility and the Seat of the Tribunal. (C) The Registrar shall at all times ensure that duty counsel will be available to attend the Detention Facility in the event of being summoned. (D) If an accused, or suspect transferred under Rule 40 bis, is unrepresented at any time after being transferred to the Tribunal, the Registrar shall as soon as practicable summon duty counsel to represent the accused or suspect until counsel is engaged by the accused or suspect, or assigned under Rule 45. (E) In providing initial legal advice and assistance to a suspect transferred under Rule 40 bis, duty counsel shall advise the suspect of his or her rights including the rights referred to in Rule 55 (A).

Rule 45: Assignment ofCounsel (A) A list of counsel who speak one or both of the working languages of the Tribunal, meet the requirements of Rule 44, have at least 10 years' relevant experience, and have indicated their willingness to be assigned by the Tribunal to indigent suspects or accused, shall be kept by the Registrar. (B) The criteria for determination of indigence shall be established by the Registrar and approved by the Judges. (C) In assigning counsel to an indigent suspect or accused, the following procedure shall be observed:

ICTR • 165 (i) A request for assignment of counsel shall be made to the Registrar; (ii) The Registrar shall enquire into the financial means of the suspect or accused and determine whether the criteria of indigence are met; (iii) If he decides that the criteria are met, he shall assign counsel from the list; if he decides to the contrary, he shall inform the suspect or accused that the request is refused. (D) If a request is refused, a further reasoned request may be made by the suspect or the accused to the Registrar upon showing a change in circumstances.

Rule 45 ter: Availability of Counsel (A) Counsel and Co-Counsel, whether assigned by the Registrar or appointed by the client for the purposes of proceedings before the Tribunal, shall furnish the Registrar, upon date of such assignment or appointment, a written undertaking that he will appear before the Tribunal within a reasonable time as specified by the Registrar.

Rule 45 quater: Assignment of Counsel in theInterests of Justice The Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused.

5.2.2.3.

Directive on the Assignment of Defense Counsel Article 3: Person to Whom Counsel is Assigned

If he has insufficient means, the suspect during an investigation or the accused being prosecuted before the Tribunal may be assigned Counsel free of charge on the following terms and conditions.

Article 4: Indigence A person shall be considered to be fully or partially indigent if he does not have sufficient means to engage Counsel of his choice and to have himself legally represented or assisted by Counsel of his choice.

Article 5: Request for Assignment of Counsel Subject to the provisions of Article 21, a suspect or accused who wishes to be assigned Counsel shall make a request to the Registrar of the Tribunal by means of the appropriate form established by the Registrar, with the approval of the Bureau. A request shall be lodged with the Registry, or transmitted to it, by the suspect or accused himself or by a person authorised by him to do so on his behalf.

Article 6: Applicant's Financial Situation (A) A suspect or accused who requests the assignment of Counsel, must fulfil the requirement of indigence as defined in Article 4. (B) In order to determine whether the suspect or accused is indigent, there shall be taken into account means of all kinds of which he has direct or indirect enjoyment or

166 • Defense in International Criminal Proceedings freely disposes, excluding any family or social benefits to which he may be entitled. In assessing such means, account shall also be taken of the means of the spouse of a suspect or accused, as well as those of persons with whom he habitually resides. (C) Account shall also be taken of the apparent lifestyle of a suspect or accused, and of his enjoyment of any property, movable or immovable, and whether or not he derives income from it.

Article 7: Declaration of Means For the purposes of Article 6, the Registrar shall invite a suspect or accused requesting the assignment of Counsel to make a declaration of his means on the appropriate form established by the Registrar, with the approval of the Bureau.

Article 8: Certification ofthe Declaration of Means A declaration must, so far as possible, be certified by an appropriate authority located either in the place where the suspect or accused resides or is found, or any other place considered appropriate in the circumstances to be determined by the Registrar. If the declaration is not certified within a reasonable period of time, the Registrar may assign Counsel without prejudice to Articles 9 and 18.

Article 9: Information (A) For the purpose of establishing whether the suspect or accused satisfies the requisite conditions for assignment of Counsel, the Registrar may request the gathering of any information, hear the suspect or accused, consider any representation, or request the production of any documents likely to support the request. (B) When communicated confidentially, such information or its source shall not be subject to disclosure or notification to the Parties but shall be made available by the Registrar to aJudge or a Trial Chamber in camera upon a request from the Judge or the Chamber, as the interests ofJustice may require.

Article 10: Decision by the Registrar (A) After examining the declaration of means laid down in Article 7 and relevant information obtained pursuant to Article 9, the Registrar shall determine if the suspect or accused is indigent or not, and shall decide: (i) Without prejudice to Article 18, either to assign Counsel and choose for this purpose a name from the list drawn up in accordance with Article 13; or (ii) Not to grant the request for assignment of Counsel, in which case the decision shall be accompanied by a written explanation giving reasons therefor. (B) To ensure that the right to Counsel is not affected while the Registrar examines the declaration of means laid down in Article 7 and the information obtained pursuant to Article 9, the Registrar may temporarily assign Counsel to a suspect or accused for a period not exceeding 30 days.

ICTR • 167

Article 10bis: Assignment of Counsel in the Interests ofJustice If a suspect or accused, (i) Either requests an assignment of Counsel but does not comply with the requirement set out above within a reasonable time; or (ii) Fails to obtain or to request assignment of Counsel, or to elect in writing that he intends to conduct his own defence, the Registrar may nevertheless assign him Counsel in the interests ofjustice in accordance with Rule 45(E) of the Rules and without prejudice to Article 18.

Article 11 : Notification ofthe Decision (A) The Registrar shall notify the suspect or accused of his decision. (B) The Registrar shall also notify the assigned Counsel and Counsel's professional or governing body of his decision.

Article 12: Remedy Against a Decision Not to Assign Counsel (A) The suspect whose request for assignment of Counsel has been denied may seek the President's review of the decision of the Registrar. The President may either confirm the Registrar's decision or decide that a Counsel should be assigned. (B) The accused whose request for assignment of Counsel for his initial appearance has been denied, may make a motion to the Trial Chamber before which he is due to appear for immediate review of the Registrar's decision. The Trial Chamber may either confirm the Registrar's decision or decide that a Counsel should be assigned. (C) After the initial appearance of the accused, an objection to the denial of his request for the assignment of Counsel shall take the form of a preliminary motion by him before the Trial Chamber not later than 60 days after his first appearance and, in any event, before the hearing on the merits.

Article 13: Pre-requisites for Assignment ofCounsel Any person may be assigned as Counsel if the Registrar is satisfied that he fulfils the following pre-requisites: (i) He is admitted to practice law in a State, or is a professor of law at a university or similar academic institution and has at least 10 years' relevant experience; (ii) He speaks one of the working languages of the Tribunal, namely French or English; (iii) He agrees to be assigned as Counsel by the Tribunal to represent a suspect or accused; (iv) His name has been included in the list envisaged in Rule 45(A) of the Rules; and (v) He undertakes to appear before the Tribunal within a reasonable time, as specified by the Registrar.

168 • Defense in International Criminal Proceedings

Article 14: Professional Certification In support of the pre-requisites provided for in Article 13 (i), the Registrar shall be supplied with certification of professional qualifications issued by the competent professional or governing body for that Counsel and such other documentation as the Registrar deems necessary.

Article 15: Scope ofthe Assignment (A) A suspect or accused shall only be entitled to have one Counsel assigned to him and that Counsel shall deal with all stages of procedure and all matters arising out of the representation of the suspect or accused or of the conduct of his Defence. No Counsel shall be assigned to more than one suspect or accused. (B) Where persons accused of the same or different counts are jointly charged or tried, each accused shall be entitled to request assignment of separate Counsel. (C) Whenever appropriate and at the request of the assigned Counsel, the Registrar may, pursuant to Article 13 above, appoint a co-Counsel to assist the assigned Counsel. The first Counsel shall thereafter be designated lead Counsel. (E) Under the authority of Lead Counsel, who has primary responsibility for the Defence, co-Counsel may deal with all stages of the procedure and all matters arising out of the representation of the accused or of the conduct of his Defence. Lead Counsel shall sign all the documents submitted to the Tribunal unless he authorizes co-Counsel, in writing, to sign on his behalf. (F) Any reference to Counsel in this Directive shall apply to both the lead Counsel and the co-Counsel.

Article 16: Applicable Law In the performance of their duties assigned Counsel shall be subject to the relevant provisions of the Statute, of the Rules, of the Rules of Detention, of any other rules or regulations adopted by the Tribunal, of the Host Country Agreement, of this Directive, of the Code of Conduct and of the codes of practice and ethics governing the profession.

Article 17: Responsibility for Costs and Expenses (A) Where Counsel has been assigned, the costs and expenses of legal representation of the suspect or accused necessarily and reasonably incurred shall be met by the Tribunal, subject to availability of funds and applicable United Nations rules and regulations and the procedures established by the Registrar with the approval of the Bureau. (B) Such costs and expenses to be met by the Tribunal shall include costs relating to investigative and procedural steps, measures taken for the production of evidence to assist or support the Defence, expenses for ascertainment of facts, consultancy and expert opinion, transportation and accommodation of witnesses, postal charges, registration fees, taxes or similar duties, and all remuneration due to Counsel in accordance with Articles 22 and 27.

ICTR • 169 (C) When Counsel has not been assigned, and if Counsel so requests, the Registrar, subject to reservations of paragraph (A), may determine that all or part of the costs and expenses of legal representation of the suspect or accused necessarily and reasonably incurred shall be covered by the Tribunal to the extent that such expenses cannot be borne by the suspect or the accused because of his financial situation. (D) The Registry shall reimburse the sums claimed by assigned Counsel for the expenses, as provided in paragraph (A) and (B) above, upon receipt of a statement of expenses made out on the appropriate form established by the Registrar with the approval of the Bureau. (E) The Registrar may however authorize, under exceptional circumstances, direct payment by the Tribunal of some of the costs and expenses referred to in paragraph (B) above, subject to the Counsel providing, at the end of the specific mission for which such direct payment has been requested, originals of receipts for the expenses under consideration.

Article 20: Replacement (E) (i) If Counsel is not available, co-Counsel shall assume responsibility of carrying on the proceedings. (ii) If there is no co-Counsel, the Registrar may appoint one, in consultation with Counsel.

Article 21 : Assignment of Counsel Away from the Seat of theTribunal (A) Away from the seat of the Tribunal, and in a case of urgency, a suspect who, during the investigation, requests assignment of Counsel, may indicate the name of Counsel if he knows one who may be assigned in accordance with the provisions of this Directive. (B) Where the suspect fails to indicate a name, and none of the Counsel on the list maintained by the Registrar resides in the area or the country in question, the Registrar or a person authorized by him or acting under his direction, may contact the local Bar Association and obtain the name of Counsel who may be assigned in accordance with the provisions of this Directive. (C) In the situations envisaged in paragraphs (A) and (B), the procedure for assignment of Counsel as set out in this Directive shall apply mutatis mutandis but shall be accelerated where necessary.

Article 29: Advisory Panel (A) An Advisory Panel shall be set up consisting of two members chosen by the President by ballot from the list referred to in Rule 45, two members proposed by the International Bar Association, two members proposed by the Union International des Avocats, and the President of the Tanganyika Law Society or his representative. (B) The President of the Advisory Panel will be the President of the Tanganyika Law Society or his representative. The membership of the Advisory Panel shall come up for appointment every two years on the anniversary date of the entry into force of this Directive.

170 • Defense in International Criminal Proceedings (C) The Advisory Panel may be consulted as and when necessary by the Registrar or the President on matters relating to assignment of Counsel. (D) The Advisory Panel may also of its own initiative refer to the Registrar any matter relating to the assignment of Counsel.

Article 30: Settlement of Disputes In the event of disagreement on questions relating to the calculation and payment of remuneration, or to the reimbursement of expenses, the Registrar shall make a decision after consulting the President and, if necessary, the Advisory Panel, on an equitable basis. The Registrar may also consult the President and, if necessary, the Advisory Panel, and make a decision under this Article, if it appears to the Registrar that a Counsel has been submitting inflated claims for remuneration or claims for expenses which are unnecessary or unreasonable.

Article 31 : Provision of Facilities (A) Assigned Counsel who do not have professional facilities close to the seat of the Tribunal shall, subject to availability of space and resources, be provided with reasonable facilities and equipment such as photocopiers, computer equipment, various types of office equipment, and telephone lines. (B) At the seat of the Tribunal, assigned Counsel may use the libraries and the documentation centre used by the Judges of the Tribunal.

5.2.2.4. 5.2.2.4.1.

Administrative Directives Guidelines for the Remuneration ofCounsel Appearing Before the ICTR (Arusha, September 1,1998)

All Defence Counsel. Dear Sir/Madam, I would first like to thank all of you who have cooperated and collaborated with the Registry in ensuring the practical realization of the right of a suspect or accused detained by the Tribunal to be assisted by competent counsel. I should like to inform you that, on 2 April 1998, a meeting was convened in Arusha by the Registrar of the Advisory Panel contemplated in Article 29 of the Directive on Assignment of Defence Counsel to review, inter alia, the entire issue of remuneration of defence counsel. Based on the recommendations of the Panel, we have put in place a consolidated framework (in the form of guidelines) for the management of defence lawyer issues. In elaborating these guidelines, we have taken into consideration the overall structure of remuneration for counsel and the possibility of your receiving-also at the Tribunal's cost-the assistance of co-counsel, assistants, investigators, experts, etc. I have instructed the Lawyers and Detention Facilities Management Section to implement these guidelines in order to ensure transparency and uniformity in the Tribunal's practice in this area of work.

ICTR • 171 1 look forward to your continued cooperation in pursuing our common objective of ensuring fair and expeditious trials before the Tribunal. Yours sincerely, Agwu Ukiwe Okali Assistant Secretary-General Registrar

5.2.2.4.2.

Guidelines for Settlement ofDefense Accounts

The following guidelines are issued in the framework of the permanent process of maintaining a sustainable «legal assistance programme» through improved assistance to Defence teams and an increasingly rational management of the limited resources available. They are aimed at providing the partners involved in this process, members of defence teams in particular, with information on the procedure, practice and policies of the Registrar in settling defence accounts and thereby ensuring uniformity and transparency in those matters. The guidelines are an interpretation of the Directive as agreed on by the Advisory Panel set up in conformity with article 29 of the Directive on assignment of Defence Counsel. Remuneration of Counsel for services rendered:

The statement of fees: The statement of fees submitted by the Counsel must be in conformity with article 24 of the Directive and clearly indicate the names of suspect or accused, the registration number in the Record Book, the stage of the procedure, the date, the time spent and the nature of the activity performed, including enough information to show the necessity and reasonableness for the preparation of the case as stipulated by article 17 of the Directive. The proper form must be submitted together with the statement of fees. Fixed rate as per article 22 (A) (I) of the Directive: The fixed rate paid at each stage of the proceedings to cover the time spent by Counsel to familiarize themselves with the pertinent documents of the case and the applicable law. The stages are as follows: PreTrial, Trial, Pre-Sentencing Hearing, Appeal and Review. This fixed rate, thus covers readings of: the indictment, the ICTR rules and regulations (Statute, Rules of Procedure and Evidence, Directive on assignment of defence counsel, Detention Rules, etc.) and the various aspects of the law applicable to an international tribunal. Further reading of such texts will, therefore, not be remunerated separately. The fixed rate, pursuant to article 23 of the Directive, has been raised from $US400 (four hundred) to $US2, 000 (two thousand). Hourly rate, article 22 (A) (ii) of the Directive. The fixed hourly rate covers time spent in the direct preparation of the case and any court appearances. Additional study and research that is not linked to the direct preparation of the case is included in this rate, as are «office overhead expenses». Thus, preparation for meetings, note taking and compilation of own notes will not be reimbursed as a separate activity. Direct preparation is understood, among other activities, to mean preparation of a motion or examination of a witness. Background reading on Rwanda and the Great Lakes region (history, politics, etc.). Recognizing the particularity of the cases before the ICTR, some hours can be remu-

172 • Defense in International Criminal Proceedings

nerated when spent on specific reading of the history and politics of Rwanda in the relevant period. A maximum of 50 hours can be remunerated, and payment is subject to respect for the provisions of article 24 of the Directive. Co-counsel: Lead Counsel can be assisted by a Co-counsel when the trial is about to begin or in exceptional cases where the bulk of work so justifies. The Co-counsel is appointed by the Registrar upon a request made by the assigned counsel as per article 15 of the Directive, using the approved application form. The preference for a Co-counsel should reflect the need to form a team with experience in the tradition of both common law and civil law and knowledge of the two working languages of the Tribunal. Claims for payment of fees or reimbursement of expenses for Co-counsel must be certified by Lead Counsel prior to submission to the Registry. Direct submission by co-counsel is only acceptable on the basis of written authorization from lead counsel. Duplication of work: The Lead Counsel is responsible for the case. He must ensure that the team functions as such and that the members of the team supplement each other and do not duplicate the work. If the Lead Counsel and/or the Co-counsel has already covered an activity, other members of the team can in exceptional circumstances only be reimbursed for similar activities. If other members of the team perform a task, Lead Counselor Co-counsel can only be reimbursed for supervising, assisting and coordinating this activity. Meetings: Meetings between all the members of the team can be reimbursed when spent on streamlining and coordinating the work efforts of the team. Working sessions between team members can also be reimbursed when the time spent has been shown by Counsel to be reasonable and necessary. Meetings with third parties should be limited, as far as possible, to one team member. Meetings attended by more than one member of the team with a third party can be reimbursed when necessity has been shown by Counsel. Witnesses: In order to ensure consistency between the number of witnesses interviewed and the number of witnesses presented at trial, an identification code should be allocated to any potential witness for whom reimbursement is claimed. This code letter/number must accompany the witness all the way throughout the proceedings. If possible, Counsel should indicate in the statement of claim whether the witness has agreed to appear in court. This will facilitate the Tribunal's efforts to plan ahead of time its logistic support to Counsel before appearance in court. Daily Subsistence Allowance (DSA): DSA is meant to cover unspecified costs related to remaining outside the place of residence in connection with the case. As with any other cost reimbursed by the Tribunal, it has to be documented with original invoices and needs to be authorized prior to the travel as well as fulfilling the requirement of being necessary and reasonable for the preparation of the case. The proper form must be filled out and be submitted together with the claim. Claims for DSA will be processed together with the pertinent claims for reimbursement of travel expenses. Reimbursement of travel expenses:

Written authorization from the Registrar should be obtained prior to any official travel. Requests should be made using the proper form, and be submitted in due time to allow for adequate processing.

ICTR • 173 Although authorized in principle,journeys to Arusha for hearing purposes should still necessitate prior authorization, especially with regard to the duration of the stay component of the trip. Duration of travel to Arusha for hearing or other purposes: Counsel should arrive in Arusha not more than two days prior to the hearing date and leave by the next available flight. Exceptions to this principle should be explained and requested in writing. In accordance with article 27 of the Directive, travel expenses are reimbursed on the basis of one economy class round-trip air ticket by the shortest available route. Travel is also reimbursable on the basis of either first class public transportation tickets or fixed rates as established by the United Nations for travel by private motor vehicle. For all travel claims the original ticket, the original invoice, the travel authorization and any receipts related to payments with credit cards must be produced by the counsel. All travel claims must be submitted using the appropriate form established by the Registrar. Taxi fares are not reimbursed. Assistant and investigator:

Counsel must seek, using the proper form, written authorization from the Registrar prior to the recruitment of an assistant or an investigator. Such a request should be justified and include, inter alia, the specific assignment for which the person is recruited as well as the estimated time of duration of the work. Assistant and investigator are remunerated at an hourly flat rate of $US25, with a monthly maximum payment of 100 (one hundred) hours. Travel requests for assistant and investigator should be submitted by Counsel following the same procedure as described in clause 2 above, in the case of Counsel. Claims for payment of fees and reimbursement of expenses for assistant and investigator should be certified by Lead Counsel prior to submission to the Lawyers and Detention Facilities Management Section (LDFMS). Expense not reimbursed by the Tribunal:

Medical expenses: More medical and other personal expenses are not reimbursed by the Tribunal. It is the responsibility of each member of a defence team to arrange and pay for his medical coverage. Expenses incurred for the purchase of items to be owned by counsel such as books and newspapers, etc., will not be reimbursed. Processing offees and expenses:

The statement of fees and/or expenses submitted by counsel is reviewed by the LDFMS using the attached list of standard acronyms, informing the Counsel, where applicable, the grounds on which additional justification is required, payment is disallowed, hours claimed reduced, etc. A copy of the reviewed statement is sent to counsel shortly after the issuance of the cheque, order of bank transfer given, other form of payment effected. The above guidelines will be updated as required on the basis of experience.

174 • Defense in International Criminal Proceedings

5.2.2.4.3.

Information Circular No.1 of November 18, 1998

To all detainees The legal instruments governing the functioning of the Tribunal, in particular, the Statute, the Rules of Procedure and Evidence, the Directive on Assignment of Defence Counsel, etc., are available at the United Nations Detention Facility (UNDF) and may be consulted by any detainee by contacting the Commanding Officer of UNDF (the Commanding Officer); A detainee who has already retained counsel at his own expenses and who can still afford his services shall request of such counsel that he or she file his power of attorney with the Registry in conformity with the provisions of Rule 44 of the Rules of Procedure and Evidence; Indigent detainees shall complete the "request for assignment of counsel" from which can be obtained from the Commanding Officer and return it to this Section through the Commanding Officer; This Section will then forward to the detainee concerned a list provided for under Rule 45 of the Rules of Procedure and Evidence. The CVas well as all supporting documents shall be kept in duplicate by the Commanding Officer. The detainees may consult said documents upon request made to the Commanding Officer; The detainee shall select two potential counsels for appointment as lead counsel and transmit their names to this Section through the Commanding Officer; In selecting such candidates, the detainees shall bear in mind that for reasons pertaining, inter alia, to the need for ensuring geographical distribution and a balance among the principal legal systems of the world, the Registry cannot, for the time-being, assign Canadian or French counsel, two nationalities over represented in the list of defence counsels. Furthermore, the Registry cannot assign counsels who have been dismissed for reasons including professional misconduct. Additionally, the Registrar cannot assign counsels who are already involved in other cases before the Tribunal.

5.2.2.4.4.

Information Circular No.2 on Assignment of Counsel of November 22,1999

1. This information circular outlines the programme of assignment of counsel to an indigent detainee in the custody of the Tribunal pursuant to Rule 45 of the Rules of Procedure and Evidence. 2. The position with regard to legal representation before the Tribunal, as set out in the Tribunal's Statute and other applicable legal Instruments and judicial decisions may be summarized as follows. Every detainee has a right to retain at his or her own expense any counsel of his or her choice, and the right, if he or she is indigent, to be assigned competent counsel by the Tribunal free of charge. A detainee who wishes to defend himself or herself in person shall express it clearly to the Registrar by a written document. 3. A detainee who has already retained counsel at his or her own expense, or who wishes to do so, shall request of such counsel that he or she file his or her poser of attorney with the Registry in conformity with the provisions of Rule 44 of the Rules of Procedure and Evidence.

ICTR • 175 4. An indigent detainee shall complete the "request for assignment of counsel" form, which can be obtained from the Commanding Officer and return it to the Lawyers and Detention Facilities Management Section (LDFMS) through the Commanding Officer. 5. Upon receipt of a request for assignment of counsel form, the LDFMS will make available to the detainee concerned the list of Defence Counsel provided for under Rule 45 of the Rules of Procedure and Evidence. The CVas well as all supporting documents shall be kept in duplicate by the Commanding Officer. The detainee may consult said documents upon request made to the Commanding Officer. 6. The detainee shall select from the List three names of counsel for assignment as lead counsel and transmit such names to the LDFMS through the Commanding Officer. The three names shall be selected in accordance with the following guidelines: (a) Two of the names shall be selected, one each from groups A and B and the third from any of groups A, B or C; (b) No two names proposed can be from the same nationality.

7. The temporary moratorium against further assignment of French and Canadian lawyers, in effect since November 1998, is now lifted, having fulfilled its limited objective of achieving a greater diversification in the defence pool and a better representation of the principal legal systems of the world, in accordance with judicially established criteria. These judicially established criteria, unequivocally reiterated in a recent decision, however remain in effect to guide the process of assignment of counsel. 8. With regard to co-counsel, these shall be assigned on the recommendation of the lead counsel, who also should propose names of would-be co-counsel from the list maintained by the Registry pursuant to Rule 45. 9. In selecting counselor co-counsel, the following shall be borne in mind: (a) the Registrar cannot assign any counsel who has been previously discharged for reasons, including professional misconduct; (b) the Tribunal's rules provide that no counsel can be assigned to more than one detainee at the same time.

5.2.3. 5.2.3.1.

Case Law and Practice Rules 44 and 45 of the Rules of Procedure and Evidence

The Prosecutor \t. Elizaphan Ntakirutimana andGerald Ntakirutimana-Decision on the Motion of the Defense for the Assignment of Co-Counsel for Elizaphan Ntakirutimana, Case Nos. ICTR96-10-T, ICTR-96-17-T, July13, 2001 Qualification:

6. Rule 44(A) contains two alternative conditions for being considered qualified to represent an accused subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law.

7. Rule 45 (A), which directly deals with the list of Counsel to be drawn up by the Registrar, adds that Counsel must have at least 10 years' experience. Article 13 of the Directive, which applies to both Counsel and co-Counsel, reiterates the conditions laid down by Rules 44 and 45: Any person may be assigned as Counsel if the Registrar is satisfied that he fulfils the following pre-requisites:

176 • Defense in International Criminal Proceedings

(i) He is admitted to practice law in a State, or is a professor of law at a university or similar academic institution and has at least 10 years' relevant experience; 8. The first condition in Rule 44 is that the person must be "admitted to the practice of law in a State." The English version indicates that Counsel must be a practicing lawyer (barrister), and the French text ("l'habilete a exercer la profession de l'avocat dans un Etat") is quiet explicit on this point. 9. Mr. Gasasira does not fulfil this requirement. He is not admitted to a bar association, but is presently doing his pupilage at the Bruxelles Bar ("avocat stagiaire"). There is no information that he has previously been admitted to the bar. 10. The second alternative in Rule 44 is that Counsel is a "University professor of law." Article 13(i) of the Directive is more generally formulated and includes "similar academic institution." It is clear from the term "professor" that the mere fact that a person teaches at a University or similar institution ("charge de cours") is not in itself sufficient to qualify under this alternative. Furthermore, the person concerned must have "ten years relevant experience" as required by Rule 45. It is no required, however, that the experience includes practice as a lawyer. The purpose of these provisions is to ensure assignment of counsel with relevant and extensive expertise at a high level who can mount an effective defence of the accused. 11. According to the curriculum vitae of Mr. Gasasira, he was for nine years (1985-1994) a visiting professor at the Law Faculty of Rwanda ("Faculte de Droit de I 'Universite Nationale du Rwanda"). For sixteen years (1980-1996) he was a visiting professor at the Centre ofJudicial Education ("Centre deformationjudiciaire"). Even if he is not a permanent University professor, the available information indicates that he had a considerable attachment and regularity to academic institutions. The Chamber notes, however, that the Defence has not produced any written documentation concerning these activities. This is not in conformity with Article 14 of the Directive, which reads: "In support of the pre-requisites provided for in Article 13 (i), the Registrar shall be supplied with certification of professional qualifications issued by the competent professional or governing body for that Counsel and such other documentation as the Registrar deems necessary." (Italics added) 12. The motion did not provide any documents in order to establish that he acted as a visiting professor. Assuming that the Defence will be able to provide further documentation in this regard, the Chamber observes that Mr. Gasasira fulfils the requirement of at least ten years relevant experience as required by Rule 45. He served as a Prosecutor for three years and as a judge, including as a Presiding Judge of the Court of Appeals, for sixteen years in Rwanda. There is every reason to assume that he has valuable experience in criminal proceedings which may be useful for the Defence in the present case. It is also noted that among his publications figure a manual for the police and a commentary on the law of 30 August 1996 concerning the prosecution of crimes constituting genocide and crimes against humanity. Even if he was a visitingnot permanent-professor at academic institutions the Chamber is convinced that his qualifications, seen as a whole, are sufficient to meet the requirements of Rules 44 and 45 and Articles 13 and 15 of the Directive.

ICTR • 177

The Prosecutor \t. Jerome Bicamumpaka-Decision on the Motion Requesting the Assignment of Francine Veilleux as Defense Counsel for Jerome Clement Bicamumpaka, Case No. ICTR-9950-J, October 6, 1999 WHEREAS also the accused requested the Trial Chamber to assign him a qualified lawyer to enable him to file his preliminary motions to which the Trial Chamber responded by ordering the Registrar to assign a Lead Counsel to the accused; BEING SEIZED OF a Defence motion dated 16 August 1999 requesting, inter alia, the assignment of Ms. Francine Veilleux of the Quebec Bar, Canada, to represent him with effect from 20 May 1999; CONSIDERING Article 19 (1) of the Statute of the Tribunal ("the Tribunal"), on fair and expeditious trial, Article 20, pertaining to the rights of the accused, Rule 45 of the Rules, Articles 5, 10, II and 12 of the Directive on the Assignment of Counsel ("the Directive") and Rules 19 and 23 of the Rules on the Functions of the Tribunal; HAVING HEARD the Parties on 29 September 1999 and taking into account their submissions, particularly the submissions by the accused to have a Counsel of his choice assigned to him, some of which are articulated in the Submissions below. SUBMISSIONS 1. The accused appeared pro se before the Trial Chamber and submitted, inter alia, that: On 18 April 1999, he mandated to Ms Francine Veilleux to represent him and on 20 June 1999, he applied formally to the Registrar requesting the assignment of the said Counsel; On 18 August 1999, the Registrar wrote a letter to the accused informing him that his request for assignment of Counsel was still pending due to the on-going investigations into his indigence and the accused interpreted this information to mean that the Registrar would eventually assign Ms. Francine Veilleux as his Counsel; Moreover, the Registrar's explanation regarding on-going investigations about his indigence does not justify the delay of assignment of a Counsel of his choice because pursuant to Rule 45(G) of the Rules, where an indigent accused is assigned a Counsel and it is subsequently found out to be untrue, the costs of providing him with such a Counsel are recoverable; The Registrar did not comply with the Trial Chamber's Order of 17 August to assign him a Counsel, which has violated his right to be represented by a Counsel of his own choice as stipulated in Article 20 of the Statute. Further, he has also been denied a right to be represented by a Counsel who fulfils the requirements to be assigned as Counsel pursuant to Rule 45(ii) of the Rules; The Registrar must conduct in a neutral manner and strictly apply the Rules He cannot embark upon an arbitrary and discriminatory approach by creating two categories of the accused namely, those who are allowed to choose their assigned Counsel and those who are not allowed to do so; The exclusion of Canadian advocates from the Registrar's List of Lawyers to be assigned to the accused is discriminatory by reason of nationality and is contrary to practice adopted by the Tribunal for the former Yugoslavia. This practice is arbitrary and affects

178 • Defense in International Criminal Proceedings

the credibility of the Tribunal Moreover, the Registrar had promised that the existing moratorium pertaining to Canadian and French lawyers should be temporary but it has now been in operation for a year; Although the moratorium is in force, it has not been complied with because the Registrar as recent as 30 March 1999 had appointed a Canadian Lawyer to Ignace Bagilishema and to others; The well established practice of the Tribunal on the assignment of Counsel requires that the accused should consent to the counsel assigned to him. 2. The Registrar: The Registrar's representative, Mr. Alessandro Caldarone, stated that the claims accused were unfounded and without basis and submitted inter alia that:

0'

the

Pursuant to Rule 62 of the Rules, the rights of the accused were observed and thus complied with during his initial appearance on 17 August; Initially Ms. Francine Veilleux was representing the accused pro bono and pursuant to Rule 58 of the Rules Covering the Detention of Persons awaiting Trial or Appeal Before The Tribunal or Otherwise Detained On The Authority of the Tribunal, 1998, the accused was allowed access to her through telephone calls and correspondence However, Ms. Francine Veilleux expressed her wish to the Registrar on 19 June 1999 to be assigned as Counsel for the accused and to be paid; Pursuant to Rules 44 of the Rules, an accused may be represented by Counsel whom he would payor by a Counsel who acts pro bono or he may be represented by a Counsel paid for by the Tribunal as provided for in Rule 45 of the Rules on the basis of indigence; The assignment of Counsel is made at the request of the detainee and not at the request of Counsel as Ms. Francine Veilleux did. Additionally, in assigning Counsel, the Registrar does not generalize cases but considers each request on a case by case basis; Ms Francine Veilleux is not assigned formally to the accused and the accused is yet to be assigned a Counsel given the on-going investigations by the Registrar of his indigence. 3.

The Prosecutor:

The Prosecutor submitted, inter alia, that: The Statute is the paramount law to be relied upon thus Article 20 of the Statute would suffice and there is no need to resort to general principles of law Additionally, Rule 19, pertaining to the administrative role of the President and Rule 23 of the Rules regarding the role of the Bureau, are clear and provide ample direction on what should be done in cases such as these. Rule 19, stipulates that the President has to supervise the Registrar and the accused may bring his matter before the President if he is not satisfied with the decision of the Registrar. The accused may also approach the Bureau as provided in Rule 23. However, in the current motion, there is no indication that the accused is actually dissatisfied with the Registrar's decision or that the accused has exhausted the established procedure under the Rules. The accused should not entrench a particular position at all costs otherwise no progress would be made in this case.

ICTR • 179 AFTER HAVING DELIBERATED The main issue to be determined in the instant case is whether the Trial Chamber is competent to deal with the issue of the assignment of Counsel to the accused at this stage. Considering Rule 45 of the Rules, the responsibility for the assignment of Counsel to an indigent accused rests upon the Registrar. The relevant provisions of Rule 45 state that: ( ... )

(C) In assigning counsel to an indigent suspect or accused, the following procedure shall be observed: 1.

a request for assignment of counsel shall be made to the Registrar

11.

the Registrar shall enquire into the financial means of the suspect or accused and determine whether the criteria (?f indigence are met;

111.

if he decides that the criteria are met, he shall assign counsel from the list; if he decides to the contrary, he shall inform the suspect or accused that the request is refused.

(D) If a request is refused, a further reasoned request may be made by the suspect or the accused to the Registrar upon showing a change in circumstances. ( ... )

H. Under exceptional circumstances, at the request of the suspect or accused or his counsel, the Chamber may instruct the Registrar to replace an assigned counsel, upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings. This provision has been elaborated in the Directive on the Assignment of Counsel dated 9 January 1996 as amended by the Plenary on 6 June 1997, 8 June 1998 and June 1999 Pursuant to Article 5 of the Directive, an accused, using a prescribed form, shall request the Registrar to assign Counsel to him. In the instant case, the accused allegedly submitted his request on 20 May 1999 but to date, the Registrar is yet to assign him a Counsel. Rule 45 of the Rules and Article 10 of the Directive stipulate that the Registrar shall determine whether or not a suspect or accused is indigent The Registrar is called upon to make a decision either assign Counsel to the accused or to deny the request of the accused to assign him a Counsel. If the Registrar decides to deny the request of the accused, he must accompany his decision with written reasons. Alternatively, the Registrar, instead of taking any decision, may seek more information to support the request of the accused for the purpose of establishing whether a suspect or an accused satisfies the requisite conditions for the assignment of counsel. In accordance with Rule 45 (C) of the Rules and Article 11 of the Directive, the Registrar must notify the suspect or accused of his decision to either grant or deny the assignment of Counsel. It is the view of the Trial Chamber that should the Registrar deny the assignment of Counsel, the accused has the liberty to seek the remedy provided in Article 12 of the Directive. The salient provisions in this case are Article 12(A) and 12 (C). Pursuant to article 12 (A) of the Directive, a suspect who has been denied assignment of Counsel may seek the President's review of the Registrar's decision. The President has discretionary powers to either confirm the Registrar's decision or to decide that a counsel

180 • Defense in International Criminal Proceedings shall be assigned By virtue 0' Article 12(C) of the Directive, the accused may file a preliminary motion objecting to the denial of his request for the assignment of Counsel, not later than 60 days after the initial appearance and in any event before the hearing of the case on the merits. In the instant case, the Registrar is still investigating thus, so far, no decision has been made on the assignment of Counsel to the accused. The Trial Chamber notes that the major reason for the delay of the assignment of Counsel is due to the on-going investigation of the indigence of the accused. Hence, the process of assigning a Counsel to the accused is still underway. The Chamber is, therefore, of the view that it lacks the competence to deal with the issue of assignment of Counsel to the Accused at this stage and that the relevant organ to handle the issue of assignment of Counsel is still the Registrar. If the Registrar decides not to assign Counsel to the accused and the accused is dissatisfied with that decision, then he may seek the remedies enumerated in Article 12 of the Directive as discussed above. Presently, at this stage the accused may not even seek the available remedy as this would be premature. The Trial Chamber underscores the need to guarantee the rights of the accused, particularly the right to be represented by Counsel, pursuant to Article 20(4) (d) of the Statute. The Trial Chamber is also not oblivious of its statutory role as stated in Article 19 of the Statute to ensure that a fair and expeditious trial ensues. In order to have fair trial, the accused must be able to prepare his defence efficiently which may necessitate the engagement of a Defence Counsel. The accused contended that, by not being assigned Counsel of his choice, he is being given differential treatment, which is detrimental to his rights for equal representation before the Tribunal. The Trial Chamber is aware of the right to equality before the Tribunal as stipulated in Article 20(1) of the Statute and is of the opinion that this has not been breached. The Trial Chamber is also aware of the Decisions concerning the assignment of Counsel as cited by the accused in his oral submission. However, the Trial Chamber observes that the cases referred to by the accused covered different aspects of the assignment of Counsel and dealt with change of Counsel, where exceptional circumstances were established. In The Prosecutor vs. Joseph Kanyabashi, Case No. ICTR-96-15-T, Kanyabashi and the assigned Counsel had no effective communication and the accused filed a motion for change of Counsel. However, at the hearing of the motion, as a preliminary matter, the Defence Counsel requested to withdraw and in its Decision of 29 October 1997, the Trial Chamber granted his request. It is important to note that after the withdrawal of Counsel, the Trial Chamber did not assign a new Counsel since the assignment of Counsel is to be dealt with by the Registrar. In another case, The Prosecutor vs. Theoneste Bagosora, Case No. ICTR-96-7-T, the Trial Chamber, in its Decision of27 June 1997, granted the request of the accused to change his Counsel. This time the 'exceptional circumstances' were found to be the deliberate refusal to communicate with the accused and the subsequent lack of confidence in his Counsel. The Appeals Chamber decision of27 July 1999, in the case ofJean Paul Akayesu vs. The Prosecutor, Appeals Chamber No. ICTR-96-1-A may contain facts similar to the instant case, but it is still divergent from the instant case. The Akayesu case was concerned with the assignment of another Counsel to replace the initially assigned Counsel. Further, unlike those cases, in the instant case, the accused is at the preliminary stage of seeking Counsel to be assigned to him. In the above mentioned, the Chambers

ICTR • 181 instructed the Registrar to assign Counsel to the accused after granting the motion for withdrawal or replacement of the assigned counsel. Considering these facts, the Registrar must exercise his discretion to either assign Counsel to the accused or deny him Counsel, taking into consideration the relevant factors as articulated in some of the decisions of the Tribunal, particularly, the case of The Prosecutor vs. Nyiramasuhuko case No. ICTR-97-21-T, where the Trial Chamber set out some of the factors to be considered, which included "the resources of the Tribunal, competence and recognized experience "f counsel, geographical distribution, a balance of the principal legal systems of the world, irrespective of the age, gender, race or nationality of the candidates." The Trial Chamber is mindful of the fact that the Rules and the Directive on Assignment of Counsel do not prescribe a specific time limit within which the Registrar should assign a Counsel to the accused. However, in light of the fact that the initial appearance of the accused has been completed, the Trial Chamber demands that the assignment of Counsel be expedited as the accused may wish to file preliminary motions within an established time period. Consequently, the Registrar should finalize the investigations on the indigence of the accused and assign the accused a Counsel. The Trial Chamber recalls the initial appearance of the accused on 17 August 1999, during which the accused orally raised the issue of assignment of Counsel. The Trial Chamber stated that the matter of assignment of Counsel, if the Accused is qualified to be assigned a Counsel, should be considered urgently as the accused had already made his initial appearance and there were a lot of legal consequences arising therefrom, such as, the filing of preliminary motions. * Although the Chamber reiterates its Decision of 17 August 1999, it cannot order the Registrar to assign a particular Counsel. The Trial Chamber in the Nyiramasuhuko case articulated this matter well and stated that its role was only engage in judicial supervision to ensure the compliance of the Rules. This Chamber agrees with the reasoning in the Nyiramasuhuko case on this matter. FOR ALL THE FOREGOING REASONS, THE TRIBUNAL 1. DISMISSES the Defence Motion requesting for the assignment of Counsel. 2. ORDERS the Registrar to make a determination regarding the indigence of the Accused and accordingly either grant or deny the assignment of a Defence Counsel to the Accused. 3. INSTRUCTS the Registrar to notify all parties concerned of this Decision

5.2.3.2.

Rule 45 ter (A)

The Prosecutor \t. Aloys Simba-Decision on Postponement of Trial, Case No.ICTR-01-76-1, August 18, 2004

On 16 August 2004, Co-Counsel referred to Article 20 (4) (b) and (d) of the Statute and submitted that the Accused was entitled to a defence conducted by Lead and CoCounsel. She was assigned as Co-Counsel in January 2004 and was allotted only 250

182 • Defense in International Criminal Proceedings hours to work on the case. The conditions under Rule 15 (E) of the Directive on the replacement of Lead Counsel by Co-Counsel were not met in this case. Her language was English, and her conversational French did not permit her to discuss the Accused's case with him. Since Lead Counsel would be able to travel to Arusha after a month, a postponement of a month would be appropriate, especially at a stage as important as that of the commencement of the trial. In response to the bench, she stated that one of the Defence assistants was bilingual and the other French-speaking. The Prosecution submitted that it was ready to start the trial, and that Co-Counsel should assume responsibility for the case in Lead Counsel's absence. If a postponement was ordered, it should not exceed a week.

DELIBERATION According to Article 20 (4) (b) and (d) of the Statute, the Accused has the right to defend himself through legal assistance, and to communicate with Counsel, of his own choosing. He is also entitled to have legal assistance assigned to him where required by the interests ofjustice, without payment if he has insufficient means. Rules 44 to 46 and the Directive supplement the rights guaranteed by the Statute. Rule 45 (I) states that it is understood that Counsel shall represent the Accused and conduct the case to finality. Pursuant to Rule 45 ter of the Rules, Counsel must provide a written undertaking to the Registrar of the Tribunal that he will appear before the Tribunal within a reasonable time as specified by the Registrar. Both Lead Counsel and Co-Counsel in the present case have signed such declarations. Article 6 of the Code of Professional Conduct for Defence Counsel states that unless representation is terminated, Counsel "must carry through to conclusion all matters undertaken for a client within the scope of his legal representation."

The Chamber observes that the Accused wishes to be represented by Lead Counsel, who has stated that he remains committed to the defence of the Accused. Lead Counsel has also informed the Chamber of his intention to travel to Arusha next week. The Chamber notes that his email of 17 August 2004 leaves certain matters unclarified. His travel depends on his health; it is uncertain on which day he will arrive; and it is not explicitly stated that he will participate in the trial. However, the Chamber grants the request for postponement of the commencement of trial until no later than Monday 30 August 2004.

FOR THE ABOVE REASONS, THE CHAMBER GRANTS the request for postponement of trial until no later than Monday 30 August 2004 08.45.

ICTR • 183

5.2.3.3.

Rule 45 quater

The Prosecutor \t. Augustin Ndindiliyimana et al.-Oral Decision Instructing the Registrar, Pursuant to Rule 45 quater, to Appoint Counsel to Represent theInterest of the Accused Augustin Ndindiliyimana and Augustin Bizimungu, Case No. ICTR-2000-56-T, September 20,2004 This order was the first of its kind issued pursuant to the new Rule 45 quater. It was issued following the decision of two accused (Augustin Ndindiliyimana and Augustin Bizimungu) not to attend their trial, in protest to ongoing negotiations between Rwanda and ICTR's authorities on transfer of cases and enforcement of sentences to Rwanda. The Accused had also instructed their respective counsel, Christopher Black and Michel Croisier, not to represent them during the proceedings. The Chamber decided to continue the trial despite the absence of the Accused, as permitted by Rule 82 bis which requires however, that the accused's interests be taken care of by counsel. In execution of the Chamber's order, the Registrar immediately appointed the very counsel present in court and previously assigned for the Defence of the two accused in the framework of the Legal Aid Programme. The issue of representation of an accused who has refused to attend his trial came up first in the Barayagwiza case (see section 3.1.3.1). Both Lead and Co-counsel requested to be withdrawn from the case on the ground that they could not represent their client against his wish. The Chamber denied their motion. One Judge, although sharing the outcome of the decision, issued a separate opinion in which he explained how he would have gone about the matter. That opinion, produced below, has later on prevailed and converted into what appears now as Rule 45 quater.

The Prosecutor \t. Jean Bosco Barayagwiza-Concurring and Separate Opinion of Judge Gunawardana: Decision on Defense Counsel Motion to Withdraw, Case No. ICTR-97-19-T, November 2, 2000 I agree with the facts as stated by the Majority and confirm that the motion submitted by Ms. Marchessault and Mr. Danielson should be denied. However, I take a different view with regard to the approach that should be adopted to overcome the problem that we have in hand. The assigned Counsel for Mr. Barayagwiza, Ms. Marchessault and Mr. Danielson, have submitted that it serves no purpose for them to sit in Court in view of the instructions given to them by the accused Mr. Barayagwiza, not to represent him at the trial. They further pointed out that, as Counsel assigned by Court to defend the accused, it is not possible for them to go against those specific instructions given to them, by the accused. Therefore, they have moved that they be permitted to withdraw from the case. It is apparent that if this motion were to be granted it would affect the due administration ofjustice. Mr. Barayagwiza has instructed his assigned Counsel not to represent him, and has decided not to attend his trial. These steps have been taken by the accused with a view to obstructing the proceedings and as a form of protest. However, it is important to note that he is not dissatisfied with the conduct or the competence of his Counsel and, in fact, has full confidence in them. Further, he has not asserted his right to selfrepresentation. In such a situation, it is imperative that the Tribunal should act to ensure that justice is done. In the US Supreme Court case of Feretta v. California, 422 US 806

184 • Defense in International Criminal Proceedings

(1975), ChiefJustice Burger has pointed out that, "... the prosecution is more than an ordinary litigant, and the trial judge is not simply an automation who insures that technical rules are adhered to. Both are charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial." He added that, "the system of criminal justice should not be available as an instrument of self destruction." In the said US Supreme Court case of Faretta, Justice Blackmun, in his Dissenting Opinion remarked, "I cannot agree that there is anything in the Due Process Clause or the Sixth Amendment that requires the States to subordinate the solemn business of conducting a criminal prosecution to the whimsical-albeit voluntary-caprice of every accused who wishes to use his trial as a vehicle for personal or political self-gratification." He went on to point out that, "... the established principle that the interest of a State in a criminal prosecution "is not that it shall win a case, but that justice shall be done." Berger v US, 295 U.S. 78 (1935). For my part, I do not believe that any amount of pro se pleading can cure the injury to society of an unjust result, but I do believe that a just result should prove to be an effective balm for almost any frustrated pro se defendant." The situation that has arisen in this case now, requires us to look for an appropriate solution. This is particularly important considering the possibility of similar situations arising in the future. In the instant case, the interests of justice would not be best served by allowing the accused, who does not wish to attend his trial, to remain without representation. As stated by Justice Blackmun, "the right to Counsel has been based on the premise that representation by Counsel is essential to insure a fair trial." Therefore, in my view, the Chamber is bound to ensure that Mr. Barayagwiza is represented at the trial. In that context, in my view, it will be useful to consider the established procedure adopted in the United States of appointing standby counsel, by the Court. The Supreme Court approved the appointment of standby counsel and discussed the role of such a Counsel, in its Decision in McKaskle v. Wiggins, 465 US 168 (1984) where, in a robbery trial, the accused was permitted to proceed pro se, but the trial court appointed a standby counsel to assist him. The Supreme Court held, "Accordingly, we make explicit today what is already explicit in Feretta: A defendant's Sixth Amendment rights [to self representation] are not violated when a trial judge appoints standby counsel-even over the defendant's objection-to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals. Participation by counsel to steer a defendant through the basic procedures of trial is permissible even in the unlikely event that it somewhat undermines the pro se defendant's appearance of control over his own defence." This solution has been tried and tested in the United States, and has been proved to be an effective and appropriate procedure to assist the proper administration ofjustice. In my view, the appointment of a standby counsel is the proper solution to the problem presented in the instant case. And it is even more important in this case than in Wiggins, since Mr. Barayagwiza has stated his intention to stay away from his own trial. Since Mr. Barayagwiza has instructed his assigned Counsel not to represent him in Court, it would be difficult to force the Counsel to appear for Mr. Barayagwiza, as assigned Counsel. However, this may not prevent the same or different Counsel to appear for

ICTR • 185 the Defence, even against the wishes of Mr. Barayagwiza, as the standby counsel, appointed by the Court, in the interests ofjustice. In such a case, Counsel would act, not only to protect the interests of the accused, but also the due administration ofjustice. Although the appointment of standby counsel is not specifically catered for in the Rules, Article 20 (4) (d) of the ICTR Statute clearly envisages such an appointment. Article 20 (4) states, "In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (d) To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interests ofjustice so require and without payment by him or her in any such case if he or she does not have the sufficient means to pay for it;" (emphasis added). It is pertinent to note that, in the above provision, the assignment of Counsel is envisaged "where the interests ofjustice so require." In my view, this could be considered as an enabling provision for the appointment of a "standby counsel." In any event, the Court has the inherent power to control its own proceedings, which in this case, could be achieved by such an appointment. It is to be observed that it is an advantage in the present case to require Ms. Marchessault and/or Mr. Danielson to be appointed as standby counsel, as they are already fully conversant with the facts of the case and, as is evident from the communication by the accused to the Court, enjoy the confidence of Mr. Barayagwiza. Thus, such an appointment would avoid any delay that the appointment of new counsel may ensue. In this context it must be pointed out that the Washington State Bar Association Rules, cited by Mr. Danielson, do not seem to prevent him from acting as standby counsel, or that such an appointment by Court is prohibited. The position relating to Ms. Marchessault appears to be much the same. Therefore, in my view the motion filed by Ms. Marchessault and Mr. Danielson to withdraw from the case should be denied. Further Ms. Marchessault and/or Mr. Danielson should be appointed as standby counsel for the Defence.

5.2.3.4.

Article 4 of the Directive

InJune 2003, aJudge from the United Kingdom (Pollard), an expert on the assessment of defense fees, undertook a mission in the ICTR for the evaluation of its Legal Aid Program. He subsequently issued a report (not public) setting out different proposals for a better efficiency of the system. Among the proposals he put forward and which were implemented, was the determination of a threshold for indigence fixed at 10,000 USD. The average cost of a single case being estimated at 740,000 USD, the accused whose wealth does not reach that level while rating more than the threshold, would be declared partially indigent. Consequently, whatever means available beyond the threshold should be contributed to the defense costs. This new regulation remains however, theoretical as it has not hitherto been applied to any accused.

186 • Defense in International Criminal Proceedings

5.2.3.5.

Articles 5-8 ofthe Directive

See the form of declaration of means annexed.

5.2.3.6.

Article 9 ofthe Directive

See The Prosecutor v.Jerome Bicamumpaka (Case No. ICTR-99-50:J) referred to in Section 5.2.3.1.

5.2.3.7.

Article 10ofthe Directive

When the Registrar decides to assign counsel, he does not issue any written decision. Only a letter of assignment is sent to counsel and a notification thereof to the accused. See however, the Appeals Chamber Akayesu decision referred to in Section 5.2.3.9 below, stating that "... the practice of the Tribunal has been to provide a list of approved Counsel from which an accused may choose..." As noted in the introduction, all ICTR's accused have claimed and have been found indigent. Thus a dispute regarding refusal to grant a request for assignment of counsel may arise only in respect of the choice of a particular counsel. See however, the Barayagwiza case cited below.

5.2.3.8.

Article 10 bis ofthe Directive

Jean-Bosco Barayagwiza \t. The Prosecutor-Decision on Jean-Bosco Barayagwiza's Motion for Appointment ofCounselor a Stay of Proceedings, Case No. ICTR-97-19-A, October 22, 2004. BEING SEISED of the "Demande d'arret des procedures pour abus de procedure" filed by Jean-Bosco Barayagwiza ("Appellant") on 7 September 2004 ("Motion"), in which the Appellant argues that the Registrar has committed an abuse of process in delaying the assignment of defence counsel and asks the Appeals Chamber to order the assignment of two defence counselor either a permanent stay of proceedings or provisional release of the Appellant; NOTING the "Prosecutor's Response" filed 14 September, in which the Prosecution opposes the Motion, arguing inter alia that the abuse of process doctrine is inapplicable and that the request for a permanent stay of proceedings or provisional release is unmeritorious, but nevertheless requests that the Registrar be directed to expedite the process of appointing new counsel for the Appellant; NOTING the "Repliquc a la Rcponse du Procureur datee du 14 septembre 2003 a rna 'Demande d'arret definitif des procedures pour abus de procedure" filed 20 September 2004; NOTING the "Registrar's Representation pursuant to Rule 33(B) of the Rules of Procedure and Evidence Regarding Jean Bosco Barayagwiza's Motion for a Stay of Proceedings" (Registrar's Representation) filed 17 September 2004, in which the Registrar explains that Appellant has caused the delay in appointing new counsel by refusing to fill out a new Declaration of Means form and explaining that Duty Counsel, Mr. John Maruma, was assigned on 9 September 2004 "to give assistance and advice to Mr. Barayagwiza on his rights";

ICTR • 187 NOTING the "Rcplique a la Reponse du Greffier datee du 17 septembre 2003 a rna 'Demande d'arret definitif des procedures pour abus de procedure' filed 24 September 2004, in which the Appellant Barayagwiza argues inter alia that the Registrar failed to inform him that the new Declaration of Means form was required for the assignment of counselor that his refusal to complete the form was causing the delay and notes that counsel was assigned to other detainees without requiring a new Declaration of Means form; NOTING that under Articles 7 and 10 of the Directive on the Assignment of Defence Counsel ("Directive"), the Registrar shall invite a suspect or accused requesting the assignment of counsel to make a Declaration of Means on the appropriate form in order to determine whether the suspect or accused is indigent in deciding whether to grant the request for the assignment of counsel. NOTING that Article 10 bis of the Directive provides: Assignment of Counsel in the Interests ofJustice: If a suspect or accused, (i) Either requests an assignment of Counsel but does not comply with the requirement set out above within a reasonable time; or (ii) Fails to obtain or to request assignment of Counsel, or to elect in writing that he intends to conduct his own defence, the Registrar may nevertheless assign him Counsel in the interests ofjustice in accordance with Rule 45(E) of the Rules and without prejudice to Article 18. CONSIDERING that further delays in appointing counsel for the Appellant may have an adverse effect on the rights of the other Appellants in this case; FINDING that, notwithstanding the Appellant's refusal to complete a new Declaration of Means Form, it would be in the interests ofjustice and would expedite resolution of the issues before the Tribunal for the Registrar to assign counsel to Appellant Barayagwiza; CONSIDERING that the Registrar may continue to investigate and review Appellant's financial status by all available means; NOTING that under Article 18 of the Directive, the Registrar may withdraw the assignment of counsel if he finds that the accused is no longer in fact indigent, and that in such a case Rule 45 (G) of the Rules of Procedure and Evidence would also allow the Trial Chamber to "[m] ake an order of contribution to recover the cost of providing counsel," thereby protecting the resources of the Tribunal; HEREBY grants the Motion in part, and ORDERS the Registrar to appoint counsel for Appellant Barayagwiza pursuant to Rule 10 bis of the Directive no later than 29 October 2004.

5.2.3.9.

Article 12 ofthe Directive

Jean-Paul Akayesu \t. The Prosecutor-Decision Relating tothe Assignment ofCounsel, Case No. ICTR-96-4-A, July 27,1999 THE APPEALS CHAMBER of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International

188 • Defense in International Criminal Proceedings

Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January and 31 December 1994 ("Appeals Chamber" and "Tribunal" respectively), NOTING the Judgement in The Prosecutor v.Jean-Paul Akayesu, Case No. ICTR-96-4T rendered by Trial Chamber I on 2 September 1998;

NOTING the Directive on the Assignment of Counsel, as amended on 8 June 1998, which provides for a right of recourse against a decision not to assign counsel, but does not extend this right of recourse in relation to an appeal before the Appeals Chamber; CONSIDERING, however, that, in respect of a decision to assign or not to assign counsel to represent an Appellant before the Appeals Chamber, a right of recourse to the Appeals Chamber is required for the effective exercise of the Appellant's rights under Article 20(4) of the Statute of the Tribunal and has been allowed by the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in the Order on the Motion to Withdraw as Counsel due to a Conflict of Interest, IT-96-21-A (24June 1999) and the Order Regarding Esad Landzo's Request for Removal ofJohn Ackerman as Counsel on Appeal for Zejnil Delalic, IT-96-21-A (6 May 1999); CONSIDERING that the practice of the Tribunal has been to provide a list of approved counsel from which an accused may choose and that Mr. John Philpot was included in this list by the Registrar upon the insistence of the Appellant that he desired that Mr. Philpot be assigned to him, and considering further that the Registrar thereby gave the Appellant a legitimate expectation that Mr. Philpot would be assigned to represent him before the Tribunal; NOTING that the Appellant has dismissed prior counsel assigned to him and that this is the sixth counsel appointed by the Appellant; NOTING that the requirements of the Tribunal's Code of Conduct, Directive on the Assignment of Defence Counsel an' the Rules of Procedure and Evidence of the Tribunal apply to Counsel assigned to the Appellant; DIRECTS the Registrar to assign Mr. Philpot as lead counsel, effective 22 September 1998, the date on which the Registry placed Mr. Philpot on the list of approved counsel; FURTHER DIRECTS the Registrar to reimburse Mr. Philpot in accordance with the Directive on the Assignment of Defence Counsel for any eligible work performed since 22 September 1998 in relation to the Appellant's appeal;

Georges A. Rutaganda \t. The Prosecutor-Review ofthe Decision ofthe Registrar in Terms of Article 12 ofthe Directive on the Assignment of Defense Counsel, Case No. ICTR-96-3-A, July 7, 2000 Remedy Against a Decision not to Assign Counsel: A) The suspect whose request for assignment of Counsel has been denied may seek the President's review of the decision of the Registrar. The President may either confirm the Registrar's decision or decide that a Counsel should be assigned.

ICTR • 189

Article 15 B) Whenever appropriate and at the request of the assigned Counsel, the Registrar may, pursuant to Article 13, above, appoint a Co-Counsel to assist the assigned Counsel. ... I consider that this is an appropriate case, bearing in mind the voluminous trial record and complex legal issues, for the appointment of Co-Counsel. In the interest ofjustice, Mr. Rutaganda should be assigned the Co-Counsel he has selected from the list of Counsel. I therefore direct the Registrar to appoint Mr. David P.Jacobs as Co-Counsel for Georges Rutaganda with immediate effect.

The Prosecutor \t. Arsene Shalom Ntahobali-Decision on Review of the Registrar's Decisions Denying Appointment of an Investigator, Case No. ICTR-97-21-T, November 3,2002 HAVING RECEIVED a motion from Arsene Shalom Ntahobali (the "accused") on 21 October 2002, for a review of the Registrar's decisions of 1" July 2001, 18 February 2002 and 9 July 2002 (the Motion"); HAVING CONSIDERED the submissions in the motion and the relief claimed, namely, to order the Registrar to immediately appoint one of the persons proposed by the accused as an investigator in his defence team; HAVING CONSIDERED the Registrar's response received on 7 November 2002;

AFTER HAVING DELIBERATED, On the admissibility of the motion. 1. Article 12 of the Directive states that an accused may seek the President's review of the Registrar's decision where his request for assignment of counsel has been denied. There are no specific provisions in the Rules or Directive that allow for review of the Registrar's decisions where requests for assignments of legal assistants or investigators are denied. 2. It is worth noting that the Registrar, having determined that the accused is indigent, has assigned him a lead counsel, a co-counsel and two legal assistants. The accused was also assigned an investigator, but the Registrar subsequently withdrew the assignment of this investigator when this person was suspected by the Prosecutor of being involved in the events in Rwanda in 1994. The accused has had the benefit of investigations being conducted in his case and Lead Counsel confirmed that he had received the files pertaining to these investigations from the investigator. 3. In its decision on the accused's motion for the reinstatement of his suspended investigator, Trial Chamber II stated that: ... in view of the administrative powers and responsibilities of the Registry in organizing and appointing defence investigators, the Chamber finds that the issue of re-instatement of a suspended investigator is an administrative matter resting with the Registrar.

190 • Defense in International Criminal Proceedings I concur with this reasoning. 4. Modem systems of Administrative Law have built in review procedures to ensure fairness when individual rights and protected interests are in issue, or to preserve the interests ofjustice. In the context of the Tribunal, Rules 19 and 33(A) of the Rules ensure that such review is available in appropriate cases. While the Registrar has the responsibility of ensuring that all decisions are procedurally and substantially fair, not every decision by the Registrar can be the subject of review by the President. The Registrar must be free to conduct the business of the Registry without undue interference by Presidential review. 5. In all systems of administrative law, a threshold condition must be satisfied before an administrative decision may be impugned by supervisory review. There are various formulations of this threshold condition in national jurisdictions, but a common theme is that the decision sought to be challenged, must involve a substantive right that should be protected as a matter of human rights jurisprudence or public policy. An application for review of the Registrar's decision by the President on the basis that it is unfair procedurally or substantively, is admissible under Rules 19 and 33 (A) of the Rules, if the accused has a protective right or interest, or if it is otherwise in the interests ofjustice. 6. In this case, particularly since the trial of the accused is in progress, the immediate assignment of an investigator does have a bearing on the accused's ability to prepare his defence and his right to defend himself. I therefore find that the motion is admissible. On the assignment of an investigator

7. An indigent accused has a right to have counsel assigned to represent him. He has no right to an investigator. However the Registrar, acting in accordance with his discretionary powers, has assigned investigators to defence teams following requests from lead counsel. 8. In managing the Legal Aid Programme, the Registrar is inter alia obliged to ensure that an indigent accused is assigned competent legal representation, and also that there is no abuse of the Legal Aid Programme. The Registrar manages the Legal Aid Programme in accordance with the Directive, which was adopted by a Plenary of the Tribunal's Judges. 9. In implementing the Directive and ensuring that there's no abuse of the Legal Aid Programme, the Registrar has issued a Practical Information Kit for lead counsel inter alia setting out the administrative procedures to be followed when requesting the assignment of legal assistants and investigators. The Registrar states that, from the documentation completed by the lead counsel, he is in a position to determine, among other things, whether the proposed investigators or assistants have family links with the accused and whether they possess the minimum qualifications to perform their respective duties, if assigned. 10. I note that the Office of Internal Oversight (OIOS), in its report of 26 January 2001, have found evidence of abuse of the Legal Aid Programme which resulted inter alia, from the hiring of friends or relatives of accused as investigators, by some defence teams. According to the Registrar, all counsel have been made aware of these findings through the public statement issued by the Registrar on 13 June 2001.

ICTR • 191 11. In the present case, the Registrar has denied the request of Lead Counsel to appoint anyone of the candidates proposed as an investigator for the accused on the basis that the candidates are unsuitable for certain reasons. The factual basis for the Registrar's exercise of discretion in so far as can be gleaned from the documents on record appears to be his concern that one of the candidates is a suspected genocide perpetrator, while the second one has a close family connection with the accused and the third does not meet the required minimum qualifications. 12. It is important to bear in mind that the Registrar has not declined to assign an investigator to the accused. The complaint of the accused is that the Registrar has declined to appoint one of the three candidates proposed by the Lead Counsel. It is still open to the Lead Counsel to submit a candidate who satisfies the criteria made known by the Registrar. 13. Bearing in mind also, the limited scope of my judicial review jurisdiction as opposed to an appeal on merits, I do not find the exercise of discretion by the Registrar in the present case to be unreasonable or malafide or based on irrelevant or extraneous factors. While the accused has no legal entitlement under the Tribunal's statute, to the services of an investigator at the expense of the Tribunal, the Registrar has agreed to provide one to the accused in the present case purely on a discretionary basis. In doing so, the Registrar is fully entitled to use his discretion on a case-by-case basis to determine the criteria that any proposed candidate should meet, in order to be considered for assignment as an investigator for the accused. Without attempting an exhaustive enquiry into the list of criteria, I find that I cannot fault the application of the criteria used by the Registrar in the present case, to disqualify the candidates proposed by the Lead Counsel. 14. The decision of the Registrar does not result in prejudice to the accused, as Lead Counsel has been and is free to submit further names of suitably qualified and competent candidates for assignment as investigator. Thus, I am not inclined to interfere with the impugned decisions of the Registrar. 15. Further, in taking these decisions, the Registrar has not denied the accused the opportunity of benefiting from the services of an investigator and Lead Counsel is urged to take advantage of this situation and propose a candidate satisfying the required criteria. In light of the above, I confirm the Registrar's decisions of 6 July 2001, 18 February 2002 and 9 July 2002, and accordingly,

5.2.3.10. Article 13D of the Directive

The Prosecutor \t. Elizaphan Ntakirutimana andGerald Ntakirutimana-Decision on the Motion of the Defense for the Assignment of Co-Counsel for Elizaphan Ntakirutimana, Case Nos. ICTR-96-10-T, ICTR-96-17-T, July 21, 2001 The Chamber recalls that current provisions and practice of the Tribunal require that the Defence shall select three potential candidates for co-Counsel from the list. Consequently, Counsel is under an obligation to make inquiries with respect to persons on that list. Reference is made to the decision of 29 March 2001 in the case of "The

192 • Defense in International Criminal Proceedings Prosecutor vs. Hassan Ngeze," "The appointment of co-counsel, assistants and investigators are administrative matters falling within the powers and discretion of the Registrar. Lead counsel must initiate requests for such appointments, and he is held responsible for complying with the practice directions of the LDFMS." The next issue to be considered is the legal effect of the Defence's non-compliance with the administrative conditions for processing with the request for co-Counsel. In the Registrar's fax of 29 May 2001 to the Defence it was stated: "The three-name procedure is designed to facilitate the judicial work of the Tribunal by ensuring that if one selected Counsel is for some reason not available, it will be possible to pass on to the next one without the need to return each time to the Lead Counsel, who, depending on which country or city he or she is in, may, as experience has shown, not be readily accessible." In the present case there seems to be virtually no risk that Co-counsel will not be available. On 2 Apri12001 the trial date was fixed to 17 September 2001. Mr Gasasira has stated that he is available. Consequently, the purpose of the three-name procedure, as quoted above, does not prevent that Mr Gasasira is assigned as co-Counsel provided that his qualifications are considered sufficient.

5.2.3.11. Article 14ofthe Directive There is no relevantjurisprudence. It is, however, worthwhile mentioning that ICTR's practice has evolved subsequent to the discovery in April 2003 of a case of forged certifications that enabled an unqualified person to join a defense team as a legal assistant and thereafter as a co-counsel (see the Registrar's Decision to Withdraw the Assignment ofJ. Y Degli as Counsel for Gratien Kabiligi reported in Section 3.6.5.2). Ever since, the Registry no longer contents itself with certification merely supplied by the candidate. Certifications are accepted only after the Registry has made its own enquiries, which may involve a direct contact with the Bar Association of the applicant to ascertain whether he or she has the required qualifications and is also of good standing.

5.2.3.12. Article 15 ofthe Directive

The Prosecutor \t. Pauline Nyiramasuhuko et al.-Decision on a Preliminary Motion by the Defense for Assignment ofa Co-Counsel to Pauline Nyiramasuhuko, Case No. ICTR-97-21-T, March 13, 1998 HAVING RECEIVED from the Defence Counsel Ms Nicole Bergevin, who is assigned to the accused Pauline Nyiramasuhuko in the present matter, a preliminary motion, filed on 26 November 1997, based on the denial of a request for assignment of counsel; CONSIDERING the response from the Registrar, filed on 19 February 1998, to the said motion; HAVING HEARD the Defence Counsel and the representative of the Registrar, Mr. Alessandro Caldarone, Officer-in-Charge of the Lawyers and Detention Facilities Management Section, during the audience held on 20 February 1998 to that end; TAKING INTO ACCOUNT Rules 19, 33, 45, 54 and 72 of the Rules of Procedure and Evidence (the "Rules"), Articles 19 and 20 of the Statute (the "Statute") and also articles 13 and 15 of the Directive on Assignment of Defence Counsel (the "Directive");

ICTR • 193 TAKING NOTE of the majority Decision dated 11 June 199 rendered by the Tribunal on "The motions of the accused for replacement of assigned counsel," in the case of The Prosecutor versus Gerard Ntakirutimana (Case No." ICTR-96-10-T & ICTR-96-17T) (hereinafter the "Ntakirutimana decision"); On the competence of the Tribunal

The Defence Counsel brought her preliminary motion of 26 November 1997 before the Tribunal based on the provisions of Rule 54 generally or alternatively under Rule 72 (B) (iv) of he Rules. Rule 72 (B) (iv) states that the preliminary motions of the accused shall include objections based on the denial of request for assignment of counsel; hence the implicit submission of the Defence that the Chamber is competent to hear matters pertaining to disputes on assignment of counsel to accused persons. The Registrar, in his response to the above mentioned motion, affirmed that the responsibility of appointing co-counsel, pursuant to Article 15 (C) of the Directive, belongs to the Registrar alone. Furthermore, he argued that for the Chamber to order, as requested by the Defence, the Registrar to assign not only a co-counsel, but a specifically named individual as Co-Counsel, would be ultra vires. In concluding his submissions thereon, the Registrar was of the opinion that were the Chamber to make such an order, the respective roles of the Registry and the Trial Chambers would become confused. The Tribunal, in assessing the extent of its competence in this particular matter, refers firstly to Rule 19 of the Rules (Functions of the President) wherein it is stipulated that the President shall supervise the activities of the Registry, and, secondly, to Rule 33 of the Rules (Functions of the Registrar) which states, inter alia, that the Registrar shall assist the Chambers and the Judges in the performance of their functions. One of the functions of the Chambers, as prescribed by Article 19 of the Statute, is to ensure that a trial is fair and expeditious. It is fundamental that, in ensuring that a trial is fair, the rights of the accused are fully respected. Thereupon, Article 20 (4) (d) of the Statute stipulates that an accused has the right to defend himself or herself in person or through legal assistance of his or her own choosing, and to have assistance assigned to him or her, in any case where the interest ofjustice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it. The question of the right to legal assistance is therefore, in the opinion of the Tribunal, a matter subject to judicial supervision. It is unclear exactly what the Registrar construes to be ultra vires or judicial scrutiny of the reasonable exercise of the discretionary powers he holds by virtue of his office. While the Registrar is correct in assessing that the decision to appoint defence counsel falls within his discretion, the exercise of such administrative discretion is still subject to judicial scrutiny or review to ensure that the Tribunal's Directive is complied with and that the discretionary powers are exercised fairly and justly. Hence, the Tribunal believes that a matter affecting the right of an accused to have the most efficient Defence possible in the context of a fair trial, namely the appointment of a co-counsel, is a judicial matter which necessitates the supervision of the Trial Chamber seized thereof. On the assignment of Co-Counsel

The Defence referred to Article 15(C) of the Directive as the Article which provides the mechanism for appointment of co-counsel. This mechanism, she iterated, could

194 • Defense in International Criminal Proceedings

only be put into operation following a request having been made to that effect by the assigned counsel. Moreover, the Defence Counsel submitted that, whether or not to make such a request to be assisted by a Co-Counsel is a matter of assessment belonging to the lead counsel alone. The Registrar not being privy to the information pertaining to the workload, strategy and requirements of the case, is not, according to the Defence, in a position to assess the need of the assigned counsel to be assisted by a co-counsel. In support of her arguments, the Defence Counsel informed the Tribunal that of those accused persons, presently detained at the Tribunal's detention facilities, who had been arrested with her client during the 'Naki' operation, the majority, including the co-accused in the present case, had benefited from the appointment of a co-counsel in the preparation of their defences. All persons being equal before the Tribunal, her client, she believed, should therefore be entitled to the assistance of a co-counsel in the conduct of her client's defence. The Registrar, in response to the above submissions of the Defence, reminded the Tribunal of the discretionary nature of Article 15(C) of the Directive, whereby the Registrar may, whenever appropriate and at the request of the assigned counsel, appoint a co-counsel to assist the assigned counsel. The Registrar interpreted the wording of the said Article to mean that he may appoint a co-counsel when the lead counsel has provided enough elements to convince him that the request of appointment of a cocounsel is appropriate. Furthermore, in noting that there are twice as many lead counsel than co-counsel presently assigned to cases before this Tribunal, the Registrar affirmed that the right to appointment of co-counsel is not an automatic entitlement. In concluding his submissions on the above matter, the Registrar reminded the Defence and the Tribunal of Article 15 (A) (i) of the same Directive which clearly stipulates, inter alia, that an accused shall only be entitled to have one counsel assigned to him and that counsel shall deal with all stages of procedure and all matters arising out of the representation of the accused or the conduct of his Defence. Thence, when Ms. Bergevin accepted to be assigned as counsel, she did so knowing that the appointment of co-counsel was a discretionary matter and not an automatic appointment, albeit during the pre-trial stage. The Tribunal, as already mentioned, shall, of course, at all times respect the rights of the accused and ensure that these are respected, none more so than those enunciated in Article 20 (4) of the Statute. Thus, when contentious matters arise which affect the defence of the accused, the Tribunal will apply those procedures which best favour the accused. Furthermore, the Tribunal recalls the Ntakirutimana decision wherein it held that, mindful to ensure that the indigent accused receives the most efficient defence possible in the context of a fair trial, it was convinced of the importance to adopt a progressive practice in matters pertaining to the assignment and choice of counsel. The Tribunal, having considered the facts of the present matter, believes that the reasoning followed in the said decision should be applied mutatis mutandis in this instance. Article 15(C) of the Directive, as referred to by the Defence, sets up the mechanism for the appointment of co-counsel. Whereas the Tribunal notes the Defence submission that this Article does not confer an absolute power upon the Registrar with respect to the appointment of co-counsel, it agrees with the Registrar that the wording "where appropriate" does grant the Registrar discretion in deciding whether or not to appoint

ICTR • 195 a co-counsel to the accused. In view of the serious charges against the accused, the need to ensure that an accused receives the most efficient defence possible in the context of a fair trial, and the fact that the majority of those persons arrested during the 'Naki' operation, including the co-accused, Arsene Shalom Ntahobali, have each been appointed co-counsel, the Tribunal believes that it is appropriate in the present case that the accused, Pauline Nyiramasuhuko, be appointed a co-counsel to assist the assigned counsel in the conduct of the Defence. Consequently, the Tribunal, in carrying out its judicial functions pursuant to Article 19 of the Statute, deems it necessary to direct the Registrar to so appoint a co-counsel, subject to the findings of the Tribunal hereinafter. On the choice of co-counsel

The Defence Counsel contended that pursuant to Article 15 of the Directive, she had requested the Registrar to appoint co-counsel to assist her in the conduct of the defence of her client. In so doing she had forwarded the name of a specific individual whom, the Defence argued, fulfilled all the requirements of 13 of the Directive (Prerequisites for the assignment of counsel). The Defence Counsel submitted that the prerequisites listed in the Article 13 were exhaustive. The specifically named individual, having complied with all of these, there could be no more objective obstacles in the appointment of this person. However, according to the Defence, and although the conditions laid out in Article 13 of the Directive had been met by the suggested co-counsel, the Registrar declined to appoint the specifically named individual on the ground that the Defence had failed to meet the requirements of what she claimed were retroactively imposed new procedures and conditions. In the opinion of the Defence Counsel, the conditions listed in Article 13 being exhaustive in nature, the retroactive application of new conditions and procedures violates the said Article. In his written response and during the audience, the Registrar explained that though he had received a request from the Counsel on 3 September 1997 for the appointment of co-counsel, there had been insufficient information therein to allow the Registrar to decide whether the request was appropriate pursuant to Article 15(C) of the Directive. On 15 October 1997, stated the Registrar, a general procedure already under elaboration was put into place to regulate the appointment of co-counsel, including appropriate forms for Counsel to explain and justify their requests for co-counsel. The Registrar submitted that pursuant to Article 16 of the Statute the Registry is responsible for the administration and servicing of the Tribunal. Therefore, it is within his discretion to set and implement internal procedures to ensure proper administration specifically, in this case, the implementation of internal procedures regarding the appointment of co-counsel. The Registrar concluded that, although the Defence Counsel had been made aware of the new procedure, he had yet to receive a valid application from her, as he has from other defence counsel, requesting the appointment of co-counsel; hence, the Registrar has not been given the opportunity to reach an appropriate decision thereon. The Tribunal does not wish to enter into factual disputes of the kind but recognizes that the Registrar has the discretion to impose internal regulations provided these are reasonable and fair. The Tribunal as previously mentioned finds in the wording of Article 151 an element of discretion in favour of the Registrar. Indeed, the words "where appropriate"

196 • Defense in International Criminal Proceedings

clearly indicate that the right to co-counsel is not absolute and is subject to certain conditions. Furthermore, the Tribunal believes that the right of an accused to have a cocounsel of his or her choice is also not absolute. In the Ntakirutimana decision, the Tribunal held that an indigent accused should be offered the opportunity of designating the counsel of his choice from the list drawn up by the Registrar for this purpose, pursuant to Rule 45 of the Rules and Article 13 of the Directive, the Registrar having to take into consideration the wishes of the accused, unless the Registrar has reasonable and valid grounds not to grant the request of the accused. In reaching his decision, the Registrar shall also take into consideration, inter alia, the resources of the Tribunal, competence and recognized experience of counsel, geographical distribution, a balance of the principal legal systems of the world, irrespective of the age, gender, race or nationality of the candidates. The Tribunal believes that the same should be applied mutatis mutandis with respect to the appointment of co-counsel. Thus, an accused and Counsel in agreement, shall be permitted to designate a name or names of co-counsel of their choice from the list of counsel drawn up by the Registrar pursuant to Rule 45 of the Rules. This designation shall be taken into consideration by the Registrar, unless the Registrar has reasonable and valid grounds for not granting the request of the accused and Counsel. Thereupon, the Tribunal finds that this procedure is implied in Article 151 of the Directive by the words "where appropriate." Consequently, the Tribunal believes that, subject to the above findings, a co-counsel should be assigned without delay to the accused Pauline Nyiramasuhuko in the present case; THE TRIBUNAL FINDS the motion of the Defence to be admissible; DIRECTS the Registrar to appoint a co-counsel for the accused Pauline Nyiramasuhuko without delay; DECLARES mindful to ensure that in order to ensure the most efficient defence possible in the context of a fair trial, and where appropriate, the accused and Counsel should be offered the possibility of designating the counsel of their choice from the list drawn by the Registrar for this purpose, the Registrar having to take into consideration the wishes of the accused and Counsel, along with namely the resources of the Tribunal, competence and recognized experience of counsel, geographical distribution, a balance of the principal legal systems of the world, irrespective of the age, gender, race or nationality of the candidates.

The Prosecutor \t. Augustin Ndidindiliyimana et al.-Decision on Defense Motion for Adjournment ofthe Proceedings, Case No. ICTR-2000-56-T, October 8,2004 BEING SEIZED of a Defence oral motion for adjournment of the proceedings argued on Thursday 7 October 2004; WHEREAS Mr Ferran, Lead Counsel for the Defence for Nzuwonemeye argues that since Co-Counsel Mr. Beraud has filed a request for withdrawal based on health reasons which he will accept, and awaiting the assignment of a new Co-Counsel to the interest of the Accused, a one month trial adjournment should be ordered by the Tribunal;

ICTR • 197 WHEREAS Mr. Ferran argued that it would not be feasible for him to continue the proceedings without the help of co-counsel at a sustained rhythm and also in view of his age; WHEREAS the Prosecution rejects Counsel's arguments based on the fact that a LeadCounsel and a Co-Counsel are designed to operate as substitute to one another and added that this situation is only temporary and provisional as a Co-Counsel will be appointed and that Lead Counsel benefits from the assistance of a Legal Assistant. HAVING DELIBERATED The Trial Chamber recall Article 20 (4) (b) of the Statute: In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: [... J to have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his own choosing;. The Chamber also recalls that pursuant to Rule 45 (i), "It is understood that Counsel will represent the accused and conduct the case to finality. [... J." The Chamber also notes Article 15 (A) of the Directive on the assignment of Defence Counsel (the "Directive") which states that: A suspect or accused shall only be entitled to have one Counsel assigned to him and that Counsel shall deal with all stages of procedure and all matters arising out of the representation of the suspect or accused or for the conduct of his Defence. [... J" (Our emphasis) The Chamber further notes Article 15 (C) of the Directive which states that: Whenever appropriate and at the request of the assigned Counsel, the Registrar may, pursuant to Article 13 above, appoint a co-counsel to assist the assigned Counsel. [... J (Our emphasis), Article 15 (E) recalls that Lead Counsel "has primarily responsibility for the Defence" and stipulates that under the authority of Lead Counsel, Co-Counsel may deal with all stages of the procedure. Accordingly, the Chamber is of the view that an indigent Accused is entitled to the assignment of one Counsel who has the responsibility to deal with all stages of the procedure whereas the Registrar may appoint a Co-Counsel, which is a discretionary power. The Chamber recalls that Counsel for Nzuwonemeye shall deal with all stages of the procedure and all matters arising out of the representation of the accused or of the conduct of the Accused's Defence. Based on the fact that the Accused Nzuwonemeye is represented by Counsel, the Chamber is satisfied that the right of the Accused to have an adequate Defence is respected. The Chamber adds for the record that Mr. Ferran is an experienced Counsel before this Tribunal and benefits from the assistance of a Legal Assistant. Therefore, the Chamber denies the Defence request for adjournment of the proceedings based on the fact that Co-Counsel has asked to withdraw. DENIES the Defence motion in all respects.

198 • Defense in International Criminal Proceedings

5.2.3.13. Article 16 ofthe Directive

The Prosecutor \t. Jean-Bosco Barayagwiza-Decision on Defense Counsel Motion toWithdraw, Case No. ICTR-97-19-T, November 2, 2000 On 26 October 2000, the lawyers for Mr. Barayagwiza filed a motion for withdrawal of their mandate to represent him. The lawyers of Mr. Barayagwiza argue that they have to abide with their client's decision. To do otherwise, would be in breach of their respective codes of ethics. Consequently, their mandate must be withdrawn. In particular, the lawyers have stressed that they are prevented from acting against their client's instruction according to the national codes of ethics by which they are bound, in Canada (Quebec) and the United States (The State of Washington), respectively. In this context, both the Prosecution and the Defence have submitted information concerning rules of professional conduct in the United States. Under the Tribunal's provisions, Counsel are under an obligation to continue to represent an accused to the best of his ability, unless the Chamber decides that they are permitted to withdraw. The Chamber notes that under Rule 45 and Rule 45 ter, the lawyers have been assigned as Counsel and are under an obligation to represent the Accused and to conduct the case to finality. On the other hand, their client has decided not to give them any instructions. Consequently, the lawyers have remained in the courtroom, but have remained passive, arguing that it would be a breach of their obligation towards their client to defend him contrary to his instructions to them. The question is whether the dilemma with which the lawyers are faced constitutes "most exceptional circumstances" under our Rule and is a reason for withdrawal. According to Rule 45 (I), Counsel is under an obligation to "represent the accused and conduct the case to finality." Article 6 of the Code requires that Counsel must represent a client "diligently in order to protect the client's best interest." It follows from the same provision that Counsel must "carry through to conclusion all matters undertaken for a client," as long as the representation is not terminated. The wording of these provisions clearly indicates that Counsel are under an obligation to mount an active defence in the best interest of the Accused. It should further be noted that Counsel is assigned, not appointed. In the view of the Chamber, this does not only entail obligations towards the client, but also implies that he represents the interest of the Tribunal to ensure that the Accused receives a fair trial. The aim is to obtain efficient representation and adversarial proceedings. The Chamber also notes that within several jurisdictions, a lawyer will not be obliged to comply with the client instructions to take no action in court. This supports the conclusion reached above on the interpretation of the relevant provisions of the Tribunal. Even if the national codes of ethics of the two lawyers defending Mr. Barayagwiza should lead to a different result, this is not decisive. Before this Tribunal, its provisions prevail.

In this connection, the Chamber recalls that Mr. Barayagwiza is faced with serious charges, including genocide, crimes against humanity and serious violations of Article 3 common to the Geneva Conventions and the Protocols thereto. It is a well established principle in human rights law that the judiciary must ensure the rights of the accused, taking into account what is at stake for him. The Chamber is anxious that Mr Barayagwiza has access to legal advice. Reference is made to Poitrimol v France, judge-

ICTR • 199 ment of 23 November 1993 by the European Court of Human Rights (Series A 277-A). According to that Court, a person charged with a criminal offence does not lose the benefit of the right to legal assistance merely on account of not being present at the trial (paragraph 34). In the present case, Mr Barayagwiza is actually boycotting the United Nations Tribunal. He has chosen both to be absent in the trial and to give no instructions as to how his legal representation should proceed in the trial or as to the specifics of his strategy. In such a situation, his lawyers cannot simply abide with his "instruction" not to defend him. Such instructions, in the opinion of the Chamber, should rather be seen as an attempt to obstruct judicial proceedings. In such a situation, it cannot reasonably be argued that Counsel is under an obligation to follow them, and that not do so would constitute grounds for withdrawal. For the reasons stated above, the Chamber does not find "most exceptional circumstances" under Rule 45 (I), warranting Counsel for the Accused to withdraw from the case.

5.2.3.14. Article 17of the Directive See paragraphs 6, 7, 9, and 15 of the President's Decision on Review of the Registrar's Decisions Denying Appointment of an Investigator, 13 November 2002 in Prosecutor v. Arsene Shalom Ntahobali (Case No. ICTR-97-21-T) referred to in section 5.2.3.9.3. These paragraphs, although not directly relevant to Article 17 (B), bear some interest in that they touch upon the issue of providing means to the defence for investigative steps taken to support its case.

5.2.3.15. Article 20 of the Directive

The Prosecutor \t. Aloys Simba-Decision on Postponement of Trial, Case No.ICTR-01-76-1, August 18, 2004 If Lead Counsel is not in Arusha on the stipulated date, ready for trial, Co-Counsel must be prepared to commence trial. Under Article 20 (E) of the Directive, Co-Counsel shall assume responsibility of carrying on the proceedings if Lead Counsel is not available. The Chamber considers that the term "the proceedings" covers the entire proceedings against the Accused, not only the trial. Therefore, the Chamber may order Co-Counsel to assume Lead Counsel's responsibilities also at the start of the trial. Counsel has submitted that she has French language problems, which make it difficult to function as Lead Counsel for the Accused, and that she has only been allotted 250 hours to work on the case. With respect to the language issue, it is now clear that there is a Defence Assistant on the Defence team who is bilingual, has legal training, and is therefore able to assist with communication within the Defence team. As for her time to prepare at the pre-trial stage, the Chamber observes that the postponement of trial will give her additional time. Moreover, the Chamber will consider requests for reasonable adjournments during trial.

5.2.3.16. Article 29 of the Directive A recommendation of the Advisory Panel, following a meeting convened by the Registrar on April 1998 has generated the Guidelines for Remuneration of Counsel, issued by the Registrar on September 1, 1998, and reproduced above.

200 • Defense in International Criminal Proceedings

5.2.3.17. Article 30 of the Directive

The Prosecutor \t. Joseph Nzirorera-Decision Pursuant to Article 30 of the Directive on the Assignment of Defense Counsel, Case No. ICTR-98-44-T, May 24, 2004 Author's Note: This rule has only been used once since the inception of the Tribunal, by Mr. Peter Robinson, Counsel for Joseph Nzirorera. The following decision was rendered in this case by the Deputy Registrar:

1. Mr. Peter Robinson (hereinafter referred to as "the Appellant") was assigned lead Counsel for Nzirorera on 24 April 2002 in replacement of another lead counsel who had been discharged. 2. This Appeal arises out of a disagreement relating to the calculation and payment of remuneration which has arisen between the Defence Counsel and Detention Management Section (hereinafter referred to as "the Section") and the Appellant. The disagreement relates to work that the Appellant performed between April 2003 to September 2003. The Section disallowed a total of 66.3 hours of work which the Appellant claimed to have performed between April and September 2003 totalling to US $ 7,293.00. 3. The Appellant has set out the reasons the Section gave for disallowing the work claimed on page 4 of his Appeal and he has set out his arguments on why he does not agree with the reasons that were given by the Section. These reasons are found from page 4 to page 9 of his Appeal and I will deal with them in the same order that they appear. 4. My decision herein is made after consultation with the President of the ICTR Tribunal and my findings have been fully endorsed by President Pursuant to Article 30 of the Directive on The Assignment of Defence Counsel. A. Working more than 8 hours in a single day.

The Appellant indicates that the Section disallowed 39.9 hours for work performed on days when lead counsel worked more than 8 hours. The Appellant argues that this decision was taken without any notice to him that he was only allowed to work 8 hours in a given day. To this I would like to observe that the international practice for billing purposes applies for maximum daily hours of business strictly and never allows for overtime. Further, Articles 3 and 4 of the International Labour Organisations model maximum work hours under the C 30 Hours of Work (commerce and offices) Convention 1930 the international maximum working hours are 42.25 per week worked at 8.50 hours daily for five working days. This notwithstanding, these are the maximum working hours for Tanzania and the International Criminal Tribunal for Rwanda. There was no need, therefore, for the Section to give special notice regarding the maximum billing hours especially when Article 11 of the Code of Professional Conduct for Defence Counsel which deals with Accounting for time clearly provides that, Counsel is under a duty to set his bill and fees with moderation. It must be noted that this work was performed during the pre-trial stage. Ordinarily, there is no reason why during the pre-trial stage when the case has not even been set

ICTR • 201 for hearing, counsel should be working overtime, from Monday to Sunday. It is understandable that during the trial period and because of the nature of activities peculiar to that period; counsel can claim for more than eight hours a day. The reason is simple. Apart from attending to court proceedings for eight hours, counsel has also to prepare his case for the following day. Further, where there is a hearing on a Monday, Counsel has to consult his client over the week-end and/or prepare his witnesses who will be testifying on the following Monday over the week-end. The same situation does not prevail during the pre-trial period in which the Appellant was working. However, it has to be recognized that in this particular case the Appellant is not the first Lead Counsel to be assigned to this case. He came in at a late stage to replace an earlier counsel who was discharged. The Appellant was therefore under immense pressure to study what had already gone on in his client's case before he took over and compare that with his own strategy before commencement of the trial. I find it as a fact that he was pressed for time to go over the voluminous work that had been done by his predecessor. The Section ought to have taken notice of these exceptional circumstances and on an exceptional basis allowed counsel to claim for more than eight hours a day. I therefore allow the Appellant on this ground alone to have the 39.9 hours that were disallowed under paragraph (A). B. Working on Sunday.

The Appellant makes the same submission that his work was disallowed simply because it was done on a Sunday and he had not been informed that he would not be remunerated when he worked on a Sunday. My earlier observation in (A) applies mutatis mutandis to this ground of appeal. The Section's refusal to pay this amount is buttressed with the fact that this was a pre-trial period. The disallowance of work on Saturday or Sunday during the pre-trial period has nothing whatsoever to do with religion. However, for the exceptional circumstances which I have already indicated under (A) above, I allow the 4.4 hours that were disallowed.

c.

Reading too slow.

The Appellant under this head read 80 pages of material produced by Allan Kuperman and claimed 4 hours for such reading. The Section only allowed him 3 hours. This was in accordance with the practice which has developed where 2 minutes are usually allowed for reading a page. In fact the Appellant concedes that in an earlier assignment in which he read the same number of pages from the same work by Kuperman, he only claimed for 3.2 hours from the Section and he was accordingly paid for 3.2 hours. He however contends that the last 80 pages which he read contained much more dense relevant information pertaining to his client. However, this information was not available to the Section at the 1st instant that the bill was submitted. Under Article 24(B) of the Directive on Assignment of Defence Counsel, the assigned counsel is under an obligation to provide as much information as possible, including the nature of the services rendered, and, as appropriate, the relationship between these and the case pending before the Tribunal. After the Appellant offered an explanation the Section decided to reject the explanation and disallow the extra one hour claimed. My view is that in view of the practice where 2 minutes are allowed for reading a page and in view of previous dealings where the appellant has in fact claimed at a rate ofjust under 2 minutes per page reading the same document, the Section cannot be blamed for not accepting a subsequent bill which asks for more than what was paid for in a similar work that had

202 • Defense in International Criminal Proceedings been done previously. These are matters ofjudgement and discretion where both the Appellant and the Section could differ. It is not therefore correct that whenever there is a difference on a matter like this between the Appellant and the Section, the Appellant's views should always prevail. Having carefully considered the matter, my decision is that the amount in dispute here is so small that I exercise my discretion to allow it without necessarily disagreeing with the Section in the way it dealt with this matter. D. Too much legal research in one day.

Appellant billed 3.8 hours for researching Article 6(3) dealing with superior responsibility. The Section only allowed 2 hours. The Appellant argues that the issue of superior responsibility of Nzirorera is a novel one. The Appellant asks; "As the leader of a political party, not a military or civilian administrator, how can Nzirorera be held liable under Article 6(3) for failure to punish someone?" The Appellant concludes that he spent 3.8 hours on this date and he will probably spend another 40 hours researching and briefing this issue before it is done. To this I would like to observe that the Appellant has considered this matter extensively and on many more times since assignment. On 19 and 20 May 2003, he claimed to have researched on this matter for 3 hours and 3.8 hours respectively; on 6 June 2003 he claimed to have researched on this very point for 0.8 hours; on 18 and 30 August 2003 he again researched on the very point for 2.1 hours and 4.5 hours respectively! In all, the Appellant has spent a total of 14.2 hours considering the question of superior responsibility. I do not regard all this research as reasonable or necessary for purposes of answering the question of superior responsibility which is one of the basic principles of criminal law. While allowing the 1 1/2 hours which were disallowed by the Section, Counsel should take notice that bills based on future research on the same Article 6(3) will require very exceptional justification before they can be allowed in the light of the time already spent on this very point. E. Work that should have been done by the Legal Assistant.

Although I find the choice of some words that counsel has decided to use in arguing this ground as unfortunate, I agree with him that this work could not have been done by a legal assistant for the reasons he advances. From the Statute of the International Tribunal for Rwanda and Directives for Assignment of Defence Counsel, the work of assigned Defence Counsel for the accused or suspect must be done by Assigned Defence Counsel or, where the Registrar orders, Co-counsel. The Statute of the International Tribunal for Rwanda and the Directives for Assignment of Defence Counsel never provide for a legal assistant. While appointment of Co-counsel appears discretionary, in so far as the Directives for Assignment of Defence Counsel require, in the absence of Assigned Lead Counsel, the presence of Co-counsel during hearing is a must. Under the Statute of the International Criminal Tribunal for Rwanda and Directives for Assignment of Defence Counsel, therefore, only Assigned Defence Counsel and Co-counsel can handle the defence of the accused or suspect. The legal assistant cannot replace counsel. On this basis I would allow the 6.2 hours for work performed by Lead Counsel. F. Taking too long to locate and interview a witness.

The practice has developed at the Tribunal that the work of locating and interviewing witnesses be done by investigators. Usually a work programme is required before such work is done. Even where counsel wants to undertake this work, like any other work, he must first submit a work programme that must be approved by the Registrar before the

ICTR • 203 work is undertaken. The Registrar can refuse to pay for any work undertaken by counsel in complete disregard of the practice to submit a work programme for approval before the work is undertaken. In this particular case, this work was approved by the Registrar. I will allow the Appellant to claim the 9.5 hours that were disallowed. All said and done, Lead Counsel should endeavour to make all arrangements to locate the witness and agree with the witness the place and time of meeting before he embarks on the journey. Fishing expeditions are not encouraged.

G. Reading the transcript ofDefence Witnesses. The Appellant indicates that the Section denied payment of 8 hours spent on 11 and 12 September 2003 reading the transcript of the testimony of Georges Rutaganda at his own trial. Appellant argues that the Section has offered no justification for refusing to pay for this time and indeed there is none. To this, I would like to observe that the Appellant has made numerous claims to the Section in respect of the reading of the Rutaganda transcripts for which he has been paid already. On 28 August 2003, he read the Rutaganda transcripts of 21 and 22 April 1999 for 1.9 hours. These are the same transcripts he claims to have read on 11 and 12 September 2003 again. There are various other days that the Appellant has been reading the Rutaganda testimony. On 3 September 2002, he spent 2.1 hours reading Rutaganda transcript; on 7 September 2002, the Appellant spent 7.9 hours reading the Rutaganda transcript; on 8 September 2002, the Appellant spent 10 hours reading Rutaganda transcript and January 2003, the Appellant spent 0.8 hours reading the Rutaganda transcript. All in all, the Appellant has spent more than 29 hours reading the Rutaganda transcript. The Section has paid the Appellant for all these hours. Under Article 24 (B) of the Directive on Assignment of Defence Counsel, the Appellant is under an obligation to show the relationship between all this time spent on reading the Rutaganda transcript and the case of his client. Article 11 of the Code of Professional Conduct for Defence Counsel imposes a duty on counsel to set his bills and fees with moderation. It is my view that the Appellant is not setting his bill and fees in respect of this item with moderation. It is also my view that the total time so far spent on reading the Rutaganda transcript for purposes of calling him as a witness at the trial far exceeds what is reasonable and necessary for the defence of the accused person. In these circumstances, I would therefore agree with the Section and disallow the 8 hours that the Appellant claims under this head. 5. For the above reasons, I would allow the hours that the Appellant claims under heading A, B, C, D, E and F. I would disallow the 8 hours that the Appellant claims under the heading G. In the result, the Appellant's appeal is allowed to the extent of 58.3 hours which the Section should pay to the Appellant. The Section should not pay the Appellant for the 8 hours that he claims under heading G.

5.2.4.

Commentary

ICTR's Rules and regulations as well as its case law developed on assignment of counsel appear as a fortunate combination of several competing interests. ICTR has often had to respond to the delicate question of whether the free choice of counsel's principle applies to indigent accused. The different international legal instruments available were not really of great assistance in this endeavor. Although having apparently put more formal limitations to the exercise of the right of free choice of counsel by indigent people than ICTY or ICC, ICTR has however, been able to design a casuistic

204 • Defense in International Criminal Proceedings approach that has enabled it to accommodate, to a large extent, indigent accused free choice of counsel. ICTR has had, on the other hand, to find practical ways to ensure the efficient conduct of its proceedings despite obstructions that may arise at times, including accused refusing to attend their trial or abusing the Legal Aid Scheme. For each of those incidents, ICTR has developed practices commensurate with the need to ensure the effective legal assistance of the accused, even against his wish, while avoiding to subject the smooth conduct of the proceedings to the sole whims of an accused. The Registrar runs the Legal Aid Program. However, every decision made by him or on his behalf in this context is subject to thorough judicial review. Even when the Rules and regulations have shown flaws in not providing a proper judicial remedy, the judges have always been creative in making up a right of recourse at all stages of the proceedings, when the circumstances of the case so justify. One of the ICTR challenges was also to ensure that counsel appointed through the Legal Aid Scheme reflect the diversity befitting an international Tribunal set up by the United Nations. This challenge is achieved to a large extent, as illustrated below in the table of geographical distribution of counsel as of September 2004.

Number ofCurrently Assigned Defence Counsel And Nationality Asof 15May 2005 Nationality Belgium Benin Burkina Faso Burundi Cameroon Canada Congo Brazzavilie Democratic Republic of Congo France Guinea India Kenya Mali Martinique Mauritania Senegal South Africa Togo United Kingdom United States ofAmerica

Number ofCounsel 3 2 1 1 7 31 1

5 14 1 1 4 1 2 1 2 1 1 4

6

ICTR • 205

Regional Distribution of Defence Counsel Asof 15May 2005 The Americas (USA and Canada) Europe Africa

37 26 28

5.2.5. Withdrawal of Counsel 5.2.5.1. 5.2.5.1.1.

Statute, Rules and Official Legal Documents Rules of Procedure and Evidence Rule 45: Assignment of Counsel

[ ... ]

(H) Under exceptional circumstances, at the request of the suspect or accused or his counsel, the Chamber may instruct the Registrar to replace an assigned counsel, upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings. (I) It is understood that Counsel will represent the accused and conduct the case to finality. Failure to do so, absent just cause approved by the Chamber, may result in forfeiture of fees in whole or in part. In such circumstances the Chamber may make an order accordingly. Counsel shall only be permitted to withdraw from the case to which he has been assigned in the most exceptional circumstances.

Rule 45 ter: Availability of Counsel. [ ... ]

(B) Failure by Counselor Co-Counsel to appear before the Tribunal, as undertaken, shall be a ground for withdrawal by the Registrar of the assignment of such Counselor Co-Counselor the refusal of audience by the Tribunal or the imposition of any other sanctions by the Chamber concerned. [ ... ]

Rule 46: Misconduct of Counsel. [ ... ]

(C) If a counsel assigned pursuant to Rule 45 is sanctioned in accordance with SubRule A) by being refused audience, the Chamber shall instruct the Registrar to replace the counsel.

206 • Defense in International Criminal Proceedings

5.2.5.1.2.

Directive on Assignment ofCounsel Article 15: Scope ofthe Assignment.

[ ... ]

(D) The lead Counsel may request the Chamber to authorize the withdrawal of the assignment of the co-Counsel. [ ... ]

Article 18: Withdrawal ofAssignment When the Suspect or Accused Is No Longer Indigent (A) Assignment of Counsel may be withdrawn by the Registrar if, after his decision, the suspect or accused comes into means which, if available at the time the request in Article 5 was made, would have caused the Registrar not to grant the request. (B) Assignment of Counsel may be withdrawn if information obtained according to Article 9 establishes that the suspect or accused has sufficient means to allow him to pay for the cost of his Defence. (C) The decision to withdraw the assignment shall be accompanied by a written explanation giving reasons for such decision and the suspect or accused and the assigned Counsel shall be so notified. Such withdrawal shall take effect from the date of receipt of the notification. (D) After the notification of the withdrawal of the assignment of Counsel, all the costs and expenses incurred by the representation of the suspect or accused shall cease to be met by the Tribunal. (E) The provisions of Article 12 shall apply mutatis mutandis where there is dissatisfaction with the decision withdrawing the assignment of Counsel.

Article 19: Withdrawal ofAssignment in Other Situations (A) The Registrar may: (i) In exceptional circumstances, at the request of the accused, or his Counsel, withdraw the assignment of Counsel; (ii) In exceptional circumstances, at the request of Lead Counsel withdraw the assignment of co-Counsel; (iii) In the case of a serious violation of the Code of Conduct, withdraw the assignment of Counselor co-Counsel. (B) The Registrar shall withdraw the assignment of Counsel: (i) Upon the decision by a Chamber to refuse audience to assigned Counsel for misconduct under Rule 46 (A) of the Rules; (ii) Where Counsel no longer satisfies the requirements of Article 13 (i) of this Directive. (iii) Where Counselor co-Counsel fails to observe the undertaking made by him pursuant to Rule 45 ter.

ICTR • 207 (C) The accused, the Counsel concerned and his respective professional or governing body shall be notified of the withdrawal. (D) The Registrar shall immediately assign a new Counsel to the suspect or accused, and where appropriate, a co-Counsel. (E) Where a request for withdrawal, made pursuant to paragraph (A), has been denied, the person making the request may seek the President's review of the decision of the Registrar.

Article 20: Replacement (A) Where the assignment of Counsel is withdrawn by the Registrar or where the services of assigned Counsel are discontinued, the Counsel assigned may not withdraw from acting until either a replacement Counsel has been provided by the Tribunal or by the suspect or accused, or the suspect or accused has declared his intention in writing to conduct his own defence. (B) Where the assignment of Counsel is withdrawn by the Registrar or where the services of assigned Counsel are discontinued, the Counsel must deliver within fifteen days of withdrawal all the original documents in the file to the Counsel who succeeds him, or otherwise, to his client. (C) In the case of the withdrawal of the assignment of a co-Counsel, such delivery of documents shall be made to the Counsel within seven days. (D) Failure by Counsel to comply with the requirement of this article may result in withholding counsel's fees, notification to the professional body regulating the conduct of counsel in his place of admission and, if he is a professor and not otherwise admitted to the profession, to the governing body of his University.

5.2.5.2. 5.2.5.2.1.

Case Law and Practice Rule 45 ofthe Rules of Procedure and Evidence

The Prosecutor \t. Jean Paul Akayesu-Decision Concerning a Replacement ofan Assigned Defense Counsel and Postponement ofthe Trial, Case No. ICTR·96·4·T, October 31, 1996 BEING SEIZED BY a motion filed by the Defense under Rule 73 of the Rules for further postponement of the case due to non-submission of documentary evidence from the Prosecutor and to lack of sufficient time and funds available to the Defense to defend the accused properly; CONSIDERING the official assignment by the Tribunal on 10 May 1996 of Mr. Johan Scheers as defense counsel for the accused; HAVING RECEIVED a letter from the assigned counsel, Mr. Scheers, in which he indicated that he would not be present at the trial today due to unsettled financial claims between himself and the Tribunal, but that the rights of the accused would be sufficiently protected by the provisional presence of Mr. Karnavas as defense counsel in his place;

208 • Defense in International Criminal Proceedings TAKING INTO ACCOUNT Mr. Karnavas' oral request, at the beginning of this session, to represent the accused during the session; TAKING ALSO INTO CONSIDERATION Mr. Karnavas' wish to be assigned by the Tribunal as the leading counsel for the defense; HAVING HEARD AS WELL the accused, who had no objection to being represented by Mr. Karnavas during this session, but who did not wish to exclude Mr. Scheers as his defense counsel if two or more counsels could be assigned to him; HAVING BEEN INFORMED by the Registrar that Mr. Scheers is currently the only counsel officially assigned to the accused, that under the existing rules there can be only one counsel assigned at any time, and that Mr. Karnavas' name appears on the list of defense counsels, held by the Registrar according to Rule 45 of the Rules, from which defense lawyers can be assigned; TAKING INTO ACCOUNT the provisions in Rule 45 of the Rules and Articles 15 and 19 of the Directive on Assignment of Defense Counsel (hereinafter the "Directive"); AFTER HAVING DELIBERATED, GIVEN that Article 15 of the Directive on Assignment of Defense Counsel allows for assignment of one counsel only to each accused; CONSIDERING that the Chamber, according to Article 19(A) and (D) of the Directive, in exceptional cases only, may grant the request of an accused to be assigned another counsel for his defense, in which case the Registrar shall withdraw the assignment and immediately assign a new counsel to the accused; TAKING INTO ACCOUNT that the officially assigned defense counsel has not appeared before the Tribunal on the scheduled date for commencing the trial on 31 October 1996, which was fixed by the Chamber on 27 September 1996, due to unresolved financial claims presented to the Registrar; BEING OF THE OPINION that a financial dispute with the Registrar does not constitute an acceptable reason for refusing to appear on the scheduled trial date, which was fixed in agreement with the assigned counsel; FINDING, therefore, that the non-appearance of the assigned counsel, based on reasons which are neither acceptable nor justifiable, provides an exceptional circumstance in this case within the meaning of Article 19 of the Directive; CONSIDERING the request made by the accused before the Tribunal to have Mr. Karnavas assigned as his defense counsel without, however, excluding for all time Mr. Scheers as co-counsel, if and when the Directive is amended to this effect; HEREBY: GRANTS the request made by Mr.Jean-Paul Akayesu for replacement of defense counsel; INSTRUCTS the Registrar to withdraw the assignment of Mr. Johan Scheers as defence counsel for Mr. Jean-Paul Akayesu according to article 19 of the Directive and to immediately assign Mr. Michael G. Karnavas as new counsel for defence of the accused;

ICTR • 209

The Prosecutor \t. Georges Anderson Nderubumwe Rutaganda-Decision on the Accused's Motion for Withdrawal of His Lead Counsel, Case No. ICTR-96-3-T, October 31, 1997 HAVING RECEIVED from the accused, Georges Anderson Nderubumwe Rutaganda, on 25 August 1997, a request dated 20 August 1997 with a memorandum attached of 12July 1997, in which he urgently requests the withdrawal of his assigned lead counsel, Mr. Luc de Temmerman, for the reason that the lead counsel has failed to provide sufficient legal and strategic assistance in support of his defence and that, consequently, the accused has lost confidence in the said counsel; HAVING HEARD the lead counsel at the hearing held on 29 September 1997, during which he declared that he had no objections to the withdrawal of his assignment as counsel for the accused; TAKING INTO CONSIDERATION the provisions in Article 20 (4) (d) of the Statute of the Tribunal, Rule 45 of the Rules of Procedure and Evidence and Article 19 (D) of the Directive on Assignment of Defence Counsel (the "Directive"); AFTER HAVING DELIBERATED: 1. The Tribunal observes, as it has done previously on several other occasions, that the unique and international character of the proceedings before this Tribunal necessitates full protection of the rights of the accused in accordance with international human rights standards in order to ensure a fair trial to the accused. One of these rights is the right to effective legal defence provided by qualified and impartial defence counsels. 2. A proper and efficient defence of the accused, however, does require establishment and maintenance of full confidence between the accused and the Defence Counsel. The counsels, in turn, whether or not assigned by the Tribunal, are bound by the ethical standards of their profession to ensure the best possible defence of their clients with prudence and vigour. 3. The Tribunal observes that the lead counsel in this case has been absent from hearings for some time and has been replaced by the co-counsel. The Chamber accepts, therefore, the reasons given by the accused for having lost confidence in his lead counsel and considers this loss of confidence as an exceptional circumstance within the meaning of Article 19 (D) of the Directive. The Chamber notes, in addition, that the lead counsel had no objection to the request made by the accused. 4. The Tribunal finds, consequently, that there are sufficient grounds for directing the Registrar to replace, if possible, the lead counsel of the accused with his current counsel.

The Prosecutor \t. Jean-Bosco Barayagwiza-Decision on Defense Counsel Motion to Withdraw, Case No. ICTR-97-19-T, November 2, 2000 1. On 26 October 2000, the lawyers for Mr. Barayagwiza filed a motion for withdrawal of their mandate to represent him. The motion reiterates that it is his view that the trial against him will not be just and fair. In particular, Mr. Barayagwiza is of the opinion that the Tribunal is dependant on what he refers to as the "dictatorial anti-hutu regime in Kigali" ("la dependance de ce Tribunal aupres du Regime dictatorial anti-hutu de Kigali"). According to the motion, he is ready to contest the allegations against him and prove his innocence before any independent and impartial Tribunal of any democratic state, which respects the law and observes the procedure.

210 • Defense in International Criminal Proceedings 2. The motion was introduced following the Chamber's oral decision of 25 October 2000 on the lawyers' request to withdraw from the hearing as a consequence of their client's instruction not to represent him in any respect during the trial. The Chamber rejected the request and allowed the accused time for further reflection. 3. The present motion reiterates that Mr. Barayagwiza has indeed reflected on the issue. Reference is made to his letter of 24 October 2000, which-according to the lawyerswas handed over to them in the evening of 25 October after the Chamber's decision. The lawyers maintain that it is unreasonable that their presence is requested when they take no active part in the trial following their client's instruction not to represent him in any respect during the trial. The decision of 25 October 2000 places the lawyers in an untenable situation. They reiterate that they are willing to represent their client until the end of the case, in conformity with the wish of the accused. However, both the accused and the lawyers are now forced to ask for withdrawal of their mandate, in the absence of a decision to allow them not to be present during the proceedings. 4. During the hearing of 26 October 2000, the Chamber allowed comments from the Prosecution, as well as Counsel for the Defence, on the issues raised by the motion. Deliberation: A. Absence of the Accused.

5. The trial in the so-called Media-cases started on 23 October 2000. One of the three accused, Mr. Barayagwiza, has chosen not to attend the proceedings. The reasons for his absence were advanced in his letter of 24 October 2000, where he stated: "I would like to confirm to you the content of my statement of 23 October 2000, by which I informed you of my decision not to attend the so-called "Media Trial" in the Trial Chamber I to the International Tribunal for Rwanda (ICTR) for the reasons stated in that statement. I challenged the ability of the ICTR to render and independent and impartial justice due, notably, to the fact that it is so dependent on the dictatorial antiHutu regime of Kigali to which two of you paid recently a working visit aimed at strengthening relations to the detriment of my rights." 6. Thus, in the present case, Mr. Barayagwiza is fully aware of his trial, but has chosen not to be present, despite being informed by the Chamber that he may join the proceedings at any time. In such circumstances, where the accused has been duly informed of his ongoing trial, neither the Statute nor human rights law prevent the case against him from proceeding in his absence. 7. Article 20 of the Statute is modelled on Article 14(3) (d) of the International Covenant on Civil and Political Rights, which is equivalent to Article 6(3) (d) of the European Convention on Human Rights. Human rights case law does not prevent that a trial takes place in the absence of the accused provided that he has been duly notified of the proceedings. Reference is made to Maleki v Italy, views of the Human Rights Committee, adopted on 27 July 1999 (Communication No 699/1996). Here, the Committee reiterated that a trial in absentia is compatible with Article 14, only when the accused is summoned in a timely manner and informed of the proceedings against him. In that case, the accused was convicted in absentia, duly represented by his courtappointed lawyer (paragraph 9.3). Similar principles are developed in Strasbourg caselaw, see, for instance, the Court's judgement of 28 August 1991 in F C B v Italy (Series A 208-B) with further references (paragraphs 29-36).

ICTR • 211 B. Withdrawal of Counsel.

8. Rule 45 (I) reads as follows, "It is understood that Counsel will represent the accused and conduct the case to finality. Failure to do so, absent just cause approved by the Chamber, may result in forfeiture of fees in whole or in part. In such circumstances, the Chamber shall make an order accordingly. Counsel shall only be permitted to withdraw from the case to which he has been assigned in the most exceptional circumstances." 9. This provision should be read together with Rule 45 ter (A), "Counsel and CoCounsel, whether assigned by the Registrar or appointed by the client for the purposes of proceedings before the Tribunal, shall furnish the Registrar, upon date of such assignment or appointment, a written undertaking that he will appear before the tribunal within a reasonable time as specified by the Registrar." 10. Thus, only in "most exceptional circumstances" will Counsel assigned by the Tribunal to represent an accused be permitted to withdraw from the case. Ms. Marchessault and Mr. Danielsson, Counsel and Co-Counsel, have been assigned by the Registrar and have signed written declarations in conformity with Rule 45 ter (A). The motion implies that the Chamber must decide whether there are "most exceptional circumstances" which allow Counsel to withdraw. Different reasons have been advanced in support of withdrawal, and the Chamber considers it important to distinguish between them in its deliberations. First, the Chamber will address the reasons provided by the accused for giving instructions to his lawyers not to represent him during the trial. Second, the Chamber will consider his instructions, including the situation of his lawyers. The Reasons for the Instructions: 11. Mr. Barayagwiza's position in this regard is explicit in his letters of 23 and 24 October 2000 to the Chamber, appended to the present motion. His first letter reads as follows: "If this Chamber rules that my counsels are required to continue to be present at trial contrary to my instructions, I no longer wish to be represented by them. I would regret it if I am forced to make this decision because my counsel have properly represented me from the beginning. However, under no circumstances are they authorized to represent me in any respect whatsoever in this trial. It is for this reason that I am forced to put an end to the mandate I entrusted given them." 12. The reasons for not wanting them to appear are the same as for his absence from the proceedings. In his letter of 24 October 2000, he stated: "My Counsels are instructed not to represent me in that trial. Thus, their forced presence in the trial is the continuation of violation of my rights by a Tribunal incapable of respecting fundamental human rights, contrary to the UN Charter. I repeat that I am willing to face anyaccusation against me before any independent and impartial Tribunal which applies law and respect procedure in any democratic State. But, I will never accept to give support to a mockery ofjustice by this Tribunal." 13. Mr. Barayagwiza develops upon his views of the Tribunal in Chamber Exhibit 4 A, Band C, one of which consists of 67 pages. 14. As the Chamber observed in its decision of 25 October 2000, Mr. Barayagwiza does not lack confidence in his two lawyers. Neither does he argue that they are incompetent. The core of his argument is that he will not be given a fair trial. He argues that the International Criminal Tribunal for Rwanda is not an independent and impartial Tribunal, but dependent on the Kigali regime.

212 • Defense in International Criminal Proceedings

15. This allegation is without foundation. Political considerations play no role whatsoever in the judicial activities of Chambers. In the present context, it is sufficient to refer to the Appeal Chamber's decision of 31 March 2000, in particular the declaration of Judge Nieto-Navia, which explicitly addressed this issue. Reference is also made to the decision of 11 September 2000 of Trial Chamber I, which rejected a motion on behalf of Mr. Barayagwiza to the effect that two of the Judges in this Chamber are disqualified because of the Tribunal's visit to Kigali in the end of August 2000. In fact, Mr. Barayagwiza is partially revisiting issues that were dealt with in that decision. 16. The Chamber finds it obvious that Mr. Barayagwiza's arguments do not constitute exceptional circumstances as required under Rule 45 (I). Rather, Mr. Barayagwiza is merely boycotting the trial and obstructing the course ofjustice. As such, the Chamber shall not entertain the request of the accused for the withdrawal of his counsel, on this basis. The Instructions of the Accused:

17. Mr. Barayagwiza has instructed his lawyers not to represent him in the courtroom. As a consequence, they have remained passive and have not mounted any active defence.

In the present motion, it is argued that they are placed in an untenable position if the Court requires that they remain in the courtroom in spite of his instructions not to represent them. They argue that they have to withdraw as a consequence of the Chamber's decision of 25 October 2000. In that decision, the question at issue was whether the lawyers should be excused from the trial. The concluding paragraphs of that order read as follows: "In spite of the fact that the accused by his own act has taken the position to instruct his Counsel not to represent him in the trial nor to be present in Court and has conveyed to the Chamber through his Counsel that his position is final and irrevocable, the Chamber in an abundance of caution and in the interest of preserving the Accused's rights wishes to provide him the opportunity for further reflection. Consequently, the Chamber is not disposed to grant the request by Counsel to leave the courtroom at this stage." 18. Counsel has referred, inter alia, to Article 4 of the Tribunal's Code of Professional Conduct for Defence Counsel. Article 4(2) reads as follows: "When representing a client, Counsel must: (a) Abide by a client's decision concerning the objectives of representation if not inconsistent with Counsel's ethical duties; and (b) Consult with the client about the means by which those objectives are to be pursued." 19. The lawyers of Mr. Barayagwiza argue that they have to abide with their client's decision. To do otherwise, would be in breach of their respective codes of ethics. Consequently, their mandate must be withdrawn. In particular, the lawyers have stressed that they are prevented from acting against their client's instruction according to the national codes of ethics by which they are bound, in Canada (Quebec) and the United States (The State of Washington), respectively. In this context, both the Prosecution and the Defence have submitted information concerning rules of professional conduct in the United States. 20. Under the Tribunal's provisions, Counsel are under an obligation to continue to represent an accused to the best of his ability, unless the Chamber decides that they are

ICTR • 213 permitted to withdraw. The Chamber notes that under Rule 45 and Rule 45 ter, the lawyers have been assigned as Counsel and are under an obligation to represent the Accused and to conduct the case to finality. On the other hand, their client has decided not to give them any instructions. Consequently, the lawyers have remained in the courtroom, but have remained passive, arguing that it would be a breach of their obligation towards their client to defend him contrary to his instructions to them. The question is whether the dilemma with which the lawyers are faced constitutes "most exceptional circumstances" under our Rule and is a reason for withdrawal. 21. According to Rule 45(1), Counsel is under an obligation to "represent the accused and conduct the case to finality." Article 6 of the Code requires that Counsel must represent a client "diligently in order to protect the client's best interest." It follows from the same provision that Counsel must "carry through to conclusion all matters undertaken for a client," as long as the representation is not terminated. The wording of these provisions clearly indicate that Counsel are under an obligation to mount an active defence in the best interest of the Accused. It should further be noted that Counsel is assigned, not appointed. In the view of the Chamber, this does not only entail obligations towards the client, but also implies that he represents the interest of the Tribunal to ensure that the Accused receives a fair trial. The aim is to obtain efficient representation and adversarial proceedings. 22. The Chamber also notes that within several jurisdictions, a lawyer will not be obliged to comply with the client instructions to take no action in court. This supports the conclusion reached above on the interpretation of the relevant provisions of the Tribunal. Even if the national codes of ethics of the two lawyers defending Mr. Barayagwiza should lead to a different result, this is not decisive. Before this Tribunal, its provisions prevail. 23. In this connection, the Chamber recalls that Mr. Barayagwiza is faced with serious charges, including genocide, crimes against humanity and serious violations of Article 3 common to the Geneva Conventions and the Protocols thereto. It is a well established principle in human rights law that the judiciary must ensure the rights of the accused, taking into account what is at stake for him. The Chamber is anxious that Mr Barayagwiza has access to legal advice. Reference is made to Poitrimol v France, judgement of 23 November 1993 by the European Court of Human Rights (Series A 277-A). According to that Court, a person charged with a criminal offence does not lose the benefit of the right to legal assistance merely on account of not being present at the trial (paragraph 34). 24. In the present case, Mr Barayagwiza is actually boycotting the United Nations Tribunal. He has chosen both to be absent in the trial and to give no instructions as to how his legal representation should proceed in the trial or as to the specifics of his strategy. In such a situation, his lawyers cannot simply abide with his "instruction" not to defend him. Such instructions, in the opinion of the Chamber, should rather be seen as an attempt to obstructjudicial proceedings. In such a situation, it cannot reasonably be argued that Counsel is under an obligation to follow them, and that not do so would constitute grounds for withdrawal. 25. For the reasons stated above, the Chamber does not find "most exceptional circumstances" under Rule 45(1), warranting Counsel for the Accused to withdraw from the case.

214 • Defense in International Criminal Proceedings 26. Article 4 (1) of the Code of Professional Conduct for Defence Counsel reads as follows: "Counsel must advise and represent their client until the client duly terminates Counsel's position, or Counsel is otherwise withdrawn with the consent of the Tribunal." 27. In the present case, it is not clear whether the client has duly terminated Counsel's position. Reference is made to paragraph 13 of the motion, where both the Accused and Counsel consider themselves forced to ask for withdrawal, even if it is against the will of both the Accused and Counsel. Paragraph 13 reads as follows in the original French version: «Par consequent, I'accuse est contraint et/ou force de mettre fin au mandat de ses conseils et ces derniers sont aussi contraints et/ou forces de demander leur retrait, et ce, a l'encontre de la volonte tant de I'accuse que de celIe de ses conseils.» This is not an unequivocal termination of Counsel's mandate. Unless Mr Barayagwiza makes a clear and unequivocal decision to terminate representation, the Chamber has to deny the request for withdrawal. FOR THESE REASONS THE CHAMBER DENIES THE MOTION FOR WITHDRAWAL

5.2.5.2.2.

Rule 45 ter ofthe Rules of Procedure and Evidence

Decision on Withdrawal of Mr. Richard Harvey as Co-Counsel of Mr. Juvenal Kajelijeli, April 2, 2001 Considering the letter dated 14th January 2000, assigning Mr. Richard Harvey as Cocounsel of Mr. Juvenal Kajelijeli; Considering Mr. Lennox Hinds's letter of 28th March 2001, which he sent to the Registrar in his capacity of Lead counsel, requesting for the withdrawal of his Co-counsel due to his unavailability and unwillingness to act; Considering Mr. Richard Harvey's letter of resignation dated 28th March 2001, which he sent to the Registrar confirming his unavailability due to other commitments; Considering that the Co-Counsel accepted his assignment and duly signed a declaration of availability committing him to represent the accused and conduct the case to finality; Considering that the exceptional circumstances underlying the implementation of Article 19 of the Directive prevail in this case as the unavailability and unwillingness to act of the Co-Counsel is preventing an effective representation of the Accused; Considering, however that Counsel who accepts assignment as Defence Counsel before the Tribunal is legally obliged to act in compliance with its Rules and Code of Conduct, and Mr. Richard Harvey has put his other commitments ahead of his commitments to the Tribunal despite his signed declaration of availability, hereby placing the Defence in an unforeseeable situation; Hereby grants Mr. Lennox Hinds's request, discharges Mr. Richard Harvey as Co-Counsel of Mr. Juvenal Kajelijeli and notes that he is no longer eligible for assignment to an accused/suspect of the Tribunal;

ICTR • 215 Hereby notifies Mr. Lennox Hinds, Lead counsel, Mr. Richard Harvey, former Co-counsel, Mr. Juvenal Kajelijeli and the President of the State Bar of New York of these developments.

5.2.5.2.3.

Rule 46 ofthe Rules of Procedure and Evidence

The Prosecutor \t. Musema-Decision toWithdraw Assigned Counsel and toAllow the Prosecutor Temporarily to Redact Identifying Information of Her Witness, Case No. ICTR-96-13, November 18,1997 REFERRING to the Tribunal's Warning and Notice of 31 October 1997 to Ms. Honegger pursuant to Rule 46(A) of the Rules of Procedure and Evidence of the Tribunal (the "Rules"), wherein the Tribunal concluded that the assigned Counsel's conduct and lack of co-operation are obstructing the proceedings and are contrary to the interests of justice, and therefore warned her that she may be sanctioned by refusal of further audience before the Tribunal, if she did not comply with the Tribunal's request to represent in person her client during his initial appearance, scheduled anew for 18 November 1997; TAKING NOTE of the fact that the assigned Defence Counsel, despite the said warning and notice, has not presented herself for the initial appearance of her client on 18 November 1997 in accordance with Rule 62 of the Rules, as requested by the Tribunal; AFTER HAVING DELIBERATED, The Tribunal, however, has been unable to obtain the necessary co-operation of Ms. Honegger, who has twice caused the suspension of the initial appearance of the accused. For this reason, the Tribunal has been compelled to proceed and arrange for the initial appearance of the accused without the assistance of the Defence Counsel. Prior to formally charging the accused by having the indictment read out to him during the initial appearance, the Tribunal clarified with the accused that his pleading guilty or not guilty to the charges without the presence of his lawyer did not deprive him of his right to counsel and further explained to him that should he fail to plead to the charges, a plea of not guilty will be entered on his behalf. After having satisfied itself that the accused had understood and accepted this, the Tribunal proceeded with the initial appearance. The Tribunal recalls that the accused would, in any event, be entitled to conduct his own defence if he so chose, by virtue of Rule 45 (F) of the Rules. The Tribunal notes that the accused, during his initial appearance, declared that he was satisfied with Ms. Honegger as his lead counsel and that he was prepared to accept the co-counsel suggested by her, Mr. Steven Kay of the United Kingdom. The Tribunal, however, is unable to accept the reasons expressed by Ms. Honegger in her letter of 14 November 1997 to explain her absence during the initial appearance of her client. Making her presence at the Tribunal conditional upon the Tribunal's advance payment of her air ticket and her claims for prior legal services, notably, and awaiting assignment of co-counsel who is unavailable before 26 January 1998, are obviously and clearly insufficient grounds for further postponement of the initial appearance. Finding no reasonable or compelling grounds in the response by the assigned counsel for refusing to be present at the Tribunal for the initial appearance of her client, the

216 • Defense in International Criminal Proceedings Tribunal will give effect to the warning to the Counsel issued on 31 October 1997 according to Rule 46(C) of the Rules, by refusing her further audience before the Tribunal; FINDS that the conduct of the assigned Defence Counsel, Ms. Marie-Paule Honegger, despite the warning issued to her on 31 October 1997, continues to obstruct the proceedings and remains contrary to the interests ofJustice; DECIDES, therefore, pursuant to Rule 46(C) of the Rules, to refuse further audience to Ms. Honegger before the Tribunal; INSTRUCTS the Registrar to withdraw the assignment of Ms. Honegger as defence counsel for the accused, Alfred Musema, and to immediately assign a new defence counsel to him; FURTHER INSTRUCTS the Registrar to send to the Geneva Bar a copy of this Decision and of the above mentioned Decision of 31 October 1997;

5.2.5.2.4.

Article 15 ofthe Directive

There is no case law addressing specifically the lead counsel's exclusive ability to request the withdrawal of co-counsel. It appears however, from the cases referred to in this section that whenever a withdrawal of a co-counsel has been sought except in the Barayagwiza's motion for withdrawal of defense counsel, it was based upon a request from the Lead counsel pursuant to this Rule.

5.2.5.2.5.

Article 18ofthe Directive

See the Barayagwiza case cited in Section 5.2.3.8 (Rule 10 bis).

5.2.5.2.6.

Article 19ofthe Directive

Jean Bosco Barayagwiza \t. The Prosecutor-Decision (Request for Withdrawal of Defense Counsel), Case No.ICTR-97-19-AR72, January 31, 2000 BEING SEISED OF a request for withdrawal of defence counsel, filed by Jean-Bosco Barayagwiza ("the Appellant") on 21 January 2000 ("the Request"); NOTING the "Prosecutor's Motion for Review or Reconsideration of the Appeals Chamber Decision Rendered on 3 November 1999," filed on 1 December 1999 ("the Prosecutor's Motion"); NOTING the Order of 20 January 2000 setting the date for hearing arguments on the Prosecutor's Motion at 15 February 2000 ("the Hearing Schedule"); NOTING the "Decision on Review in Terms of Article 19(E) of the Directive on Assignment of Defence Counsel" issued by Judge Navanthem Pillay, President of the Tribunal, on 19 January 2000 ("the Decision"), in which she confirms the earlier decision of the Registrar not to grant Mr. Barayagwiza's request for withdrawal of his defence counsel; MINDFUL OF the concern expressed in the Decision that a change of counsel at this late stage would unduly delay the proceeding;

ICTR • 217 NOTING also the Appellant's like concern, expressed in the Request, not to delay the work of the Appeals Chamber; ORDERS as follows: The Registrar shall immediately withdraw the assignment of Mr. J.P.L. Nyaberi as Defence Counsel for the Appellant, and assign a new Counsel to the Appellant along with a Co-Counsel;

Joseph Nzirorera \t. The Prosecutor-Decision on the Motion for Withdrawal ofAssignment of Counsel, Case No. ICTR-98-44-A, February 1,2002 BEING SEIZED of the "Notice of appeal against the 3 October 2001 Trial Chamber II Decision on the Motion for withdrawal of Counsel McCartan and Bauwens," lodged by Joseph Nzirorera on 15 October 2001 (the "Notice of Appeal," the "Impugned Decision" and the "Appellant" respectively) pursuant to Articles 19 (1) and 20 (4) of the Statute of the Tribunal and Rule 45 (H) of the Rules of Procedure and Evidence (the "Statute" and the "Rules" respectively); NOTING the "Response to Appellant's Application for Leave to Appear," filed by Counsel McCartan on 19 October 2001; WHEREAS the Impugned Decision dismissed the Extremely Urgent Motion for the withdrawal of Messrs McCartan and Bauwens (the "Motion"), filed by the Appellant on 3 July 2001 pursuant to Article 20 of the Statute and Rules 45 and 73 of the Rules; WHEREAS, regarding the admissibility of the Appeal, the Appellant argues in the main that the decisions rendered on 27 July 1999 and 31 January 2000 in the Akayesu and Barayagwiza Cases (the "Akayesu and Barayagwiza Decisions") recognise a right of recourse to the Appeals Chamber when an issue concerning assignment of Counsel arises in respect of Articles 19(1) and 20(4) of the Statute; the interest ofjustice requires that the Appeal be judged admissible in order to avoid that the Appellant be represented by Counsel in whom he has lost confidence; WHEREAS the Appellant's grounds of appeal can be summarised as follows: (1) The Trial Chamber did not give reasons for its decision regarding an the grievances expressed in the Motion: The allegations concerning, in particular, loss of confidence and disagreement on defence strategy were not examined; The Trial Chamber took the issue of fee-splitting, raised by Counsel McCartan) as the cause of the dispute; As an the grievances were not examined, it was not possible to concede to the existence of exceptional circumstances within the meaning of Rule 45 of the Rules; (2) The right of the Appellant to make full answer and defence was not observed: The allegations of fee-splitting were raised in confidence with the Registrar and the Trial Chamber; the Appellant was informed of these allegations on [21 September 2001] and was thereby prevented from adequately preparing his defence; (3) The right of the Appellant to the presumption of innocence was not observed: The allegations of fee-splitting were taken as proven; The fact that Counsel had agreed to a request to share fees should have entailed withdrawal of his assignment; The impugned decision was rendered to penalise the Appellant; The latter was hence presumed guilty of requesting fee splitting;

218 • Defense in International Criminal Proceedings WHEREAS Counsel McCartan and the Prosecutor submitted similar arguments in respect of the admissibility of the appeal, mainly: That the Appellant's cause of action does not fall under Rule 72 (D) of the Rules; That decisions rendered under Rule 73 of the Rules are without interlocutory appeal; That Articles 19 (1) and 20(4) of the Statute, as well as Rule 45 (H) of the Rules do not confer a right of appeal; That the Akayesu and Barayagwiza Decisions are not relevant because they concern motions filed in the course of appeal against ajudgement; WHEREAS Counsel McCartan and the Prosecutor did not submit arguments specific to the grounds of appeal; CONSIDERING that the Appellant explicitly concedes that the Appeal is grounded on Articles 19 (1) and 20 (4) of the Statute, as well as on Rule 45 of the Rules; CONSIDERING that those provisions do not provide for a right of interlocutory appeal on issues of assignment or withdrawal of assignment of Counsel; CONSID ERING that Rule 73 (B) of the Rules provides that decisions rendered in application of the Rule "are without interlocutory appeal"; CONSIDERING that the Akayesu and Barayagwiza Decisions were rendered on motions ancillary to other questions pending before the Appeals Chamber, and for which the Chamber had a legitimate interest to guarantee adequate representation; CONSIDERING that the Appellant has no other recourse before the Appeals Chamber; CONSIDERING therefore that the Appellant has not shown that he has a right of interlocutory appeal; CONSIDERING however that the lack of a good working relationship between the Appellant and his Counsel can compromise the preparation of the defence and the fairness of the trial, and that it will be difficult to remedy any prejudice incurred at the possible stage of appeal against the judgement; CONSIDERING that the appeal record appears to reveal a complete breakdown in communication between the Appellant and his Counsels; CONSIDERING that, in fulfilment of his responsibilities relating to an assignment of counsel, it will be for the Registrar to inquire speedily into whether there has been such a breakdown in communication including any reasons for the breakdown, and to take any appropriate action; FOR THE FOREGOING REASONS, DISMISSES the Appeal

Prosecutor \t. Joseph Nzirorera-Decision ofWithdrawal of Mr. Andrew Mc Cartan as Lead Counsel and Mr. Martin Bauwens as Co-Counsel ofthe Accused Joseph Nzirorera, Case No. ICTR-98-44, February 5, 2002 Considering the letter dated April 12, 2000 assigning Mr. Andrew McCartan as Lead Counsel of the accused Joseph Nzirorera; Considering the letter dated March 23, 2001 assigning Mr. Martin Bauwens as Co-counsel of Mr. Joseph Nzirorera;

ICTR • 219 Considering the decision of October 3, 2001 rendered by Trial Chamber II in its majority denying Mr. Nzirorera's request for withdrawal of his Lead and Co-counsel and further directing the Registry to examine fee-splitting matters, including allegations of financial dishonesty in the case, and to take all necessary measures to inform all accused and Counsel that fee splitting is unacceptable and merits sanctions under the rules; Considering the decision of February 1, 2002 rendered by the Appeals Chamber in the case; Considering that the investigation conducted by the Registry in the matter revealed evidence supporting, inter alia, that the Lead Counsel in the particular instance, has inflated his bills of October and November 2000, and did provide his Legal Assistant with pre-signed blank forms for submission and reimbursement of expenses; Considering that such acts are constitutive of serious violation of Articles 5 and 11 of the Code of Conduct for Defence Counsel, which require Counsel to act with honesty and to bill the Tribunal with moderation; Considering the loss of confidence alleged by the accused which has led to a complete breakdown of communication between him and his two Counsels; Considering that the financial dishonest behaviour of the Lead Counsel with the complicity of his legal assistant coupled with the complete break down of communication between the Accused and his two Counsels arising partly from this financial dishonesty are constitutive of serious violation of the Code of Conduct under Article 19 of the Directive; Hereby discharges Mr. Andrew McCartan as Lead Counsel of Mr. Joseph Nzirorera and notes that he is no longer eligible for assignment to an accused/suspect of the Tribunal; Hereby withdraws Mr. Martin Bauwens as Co-Counsel of Mr. Joseph Nzirorera; Hereby notifies Mr. Andrew McCartan, Mr. Martin Bauwens, Mr. Joseph Nzirorera, the President of the Law Society of Scotland and the President of the Law Society of Brussels of these developments.

The Prosecutor \t. Jean Paul Akayesu-Decision on the Request ofthe Accused for the Replacement ofAssigned Counsel, Case No. ICTR-96-4-T, November 20,1996 CONSIDERING the decision of the Tribunal of 31 October 1996 adjourning the date of hearing to 9 January 1997 and authorising, upon the request of the accused, the replacement of Mr. Johan Scheers by Mr. Michael G. Karnavas as assigned counsel for the accused; CONSIDERING the letter of 11 November 1996 addressed by Jean-Paul Akayesu to the President of the Tribunal; CONSIDERING the memorandum of 15 November 1996 addressed to the Registrar by Mr. Karnavas in his capacity as counsel for Jean-Paul Akayesu, taking note of the request for his replacement by Mr. Scheers; AFTER HAVING DELIBERATED: WHEREAS Jean-Paul Akayesu has requested the replacement of Mr. Karnavas, the reason being the latter's behaviour which he considers inappropriate and which, in his

220 • Defense in International Criminal Proceedings opinion, would result in a total lack of confidence in the ability of his counsel to act fully for his defence; WHEREAS Mr. Karnavas takes exception to all the grievances set forth by Jean-Paul Akayesu, while not objecting, however, to the request made by his client and that, in that regard, he himself had written in his memorandum of 15 November 1996: "Given the fact that Mr. Akayesu (... ) is unwilling to accept his currently assigned counsel, it behoves the Registrar to bring this matter immediately to the Tribunal's attention and urge that a hearing be scheduled forthwith. Mr. Akayesu is entitled to have counsel of his choice. We all must respect his wishes"; WHEREAS the Tribunal, without taking a position in the conflict between the accused Akayesu and Mr. Karnavas, notes however that given the present circumstances and the resulting lack of confidence of the accused in his counsel, there was indeed an exceptional case, as provided in paragraph (D) of Article 19 of the Directive, as a condition for the replacement of assigned counsel upon decision by a Chamber; WHEREAS the Tribunal consequently considers it appropriate to accede to the request made by Jean-Paul Akayesu for the replacement of his counsel; [ ... ]

The Prosecutor \t. Gerard Ntakirutimana-Decision on the Motions ofthe Accused for Replacement ofAssigned Counsel, Case Nos.ICTR-96-10-T/ICTR-96-17-T, June 11, 1997 WHEREAS, through numerous letters addressed to the President of the Tribunal, the accused Gerard Ntakirutimana is requesting that the counsel assigned to him by the Registrar on 10 March 1997, in the person of Mr. N. K. Loomu-Ojare of the Tanganyika Bar Association, be replaced on the grounds of having lost confidence in said counsel, and subsequently that the Registrar assign to him a particular counsel of his choice; WHEREAS it should be recalled that this is the second request made by the accused for replacement of counsel; WHEREAS in fact, during a hearing on this matter on 4 March 1997, taking into account the crisis situation that had developed between the accused Gerard Ntakirutimana and his counsel at the time, Ms. Ghislaine Moisc-Bazie of the Cote d'Ivoire Bar Association, who had asked to be withdrawn from the case, the Tribunal considered that there existed, on that occasion, an exceptional case as a condition for the change of assigned counsel, as required by Article 19 (D) of the Directive on Assignment of Defence Counsel (the "Directive';), and, for that reason, decided to withdraw Ms. Moisc-Bazie and instructed the Registrar to immediately assign a new counsel to the accused; WHEREAS it was therefore at the instruction of the Tribunal that the Registrar assigned Mr. N. K. Loomu-Ojare to replace Ms. MOlse-Bazie; AFTER HAVING DELIBERATED, WHEREAS the Tribunal considers that the correspondence and oral arguments of the accused Gerard Ntakirutimana raise two important issues: •

firstly, the existence of an exceptional case as a condition for the replacement of counsel, upon the decision of a Chamber, at the request of an accused ...

ICTR • 221 A. On the replacement of Mr. Loomu-Ojare upon the decision of the Chamber

WHEREAS, in accordance with Article 19 (D) of the Directive, only in exceptional cases may the assigned counsel be replaced, upon a decision by a Chamber, at the request of the accused; WHEREAS, in support of his request for the replacement of his current counsel, the accused essentially claimed, at the hearing convened on 8 May 1997 to that end, that he no longer had confidence in said counsel, solely on the ground that Mr. LoomuOjare was a Tanzanian national and that the United Republic of Tanzania maintained special ties with the present Government of the Republic of Rwanda; WHEREAS, while objecting to the allegations made by the accused, Mr. Loomu-Ojare asserted, at the same hearing, that, as a lawyer and in accordance with the professional code of ethics of his Bar, he was totally independent of the Tanzanian Government, and was committed to the defence of Gerard Ntakirutimana; WHEREAS with regard to Mr. Loomu-Ojare, the Tribunal has had occasion to confirm for itself that he has always conscientiously striven to provide effective legal representation for the accused; WHEREAS, consequently, the Tribunal is not far from believing that the accused's request for change of counsel is motivated solely by his desire to be assigned a particular counsel, and not because of any loss of confidence vis-a-vis Mr. Loomu-Ojare; WHEREAS an exceptional case, as required by Article 19 of the Directive, to permit a change of counsel therefore does not exist, and thence the accused's request should not be granted; [ ... ]

The Prosecutor \t. Simon Bikindi-Decision on Ms. Tiphaine Dickson's Application for Review ofthe Registrar's Decision Removing Her From the Tribunal's List ofCounsel for Indigent Accused, Case No. ICTR-ICTR-01-72-1, October 9, 2002 CONSIDERING an Application dated 5 August 2002 filed by Ms. Tiphaine Dickson, for review of the Registrar's decision of 30 November 2001, removing her from the list of counsel maintained by the Registrar. (the "Application"); CONSIDERING that Ms. Dickson makes this Application on behalf of herself and at the request of Simon Bikindi, an accused appearing before the Tribunal; CONSIDERING the Registrar's response of 28 August 2002 and Ms. Dickson's reply dated 4 September 2002. AFTER HAVING DELIBERATED, On whether the Registrar's decision in this matter is subject to review. Ms. Dickson submits that pursuant to Rule 19 of the Tribunal's Rules of Procedure and Evidence the "Rules"), the President has "supervisory powers" over the Registry. The President therefore has the authority to reverse the Registrar's decision and reinstate her to the Tribunal's list of defence counsel. The Registrar accepts this interpretation of Rule 19 of the Rules and submits that his decisions "are subject to review by the President." Rule 19 of the Rules provides that:

222 • Defense in International Criminal Proceedings The President shall preside at all plenary meetings of the Tribunal, co-ordinate the work of the Chambers and supervise the activities of the Registry as well as exercise all the other functions conferred on him by the Statute and Rules. Whilst the President does have the responsibility to supervise the activities or the Registry, the power of review can not be invoked summarily over all and sundry activities undertaken by the Registrar but only in circumstances that warrant review, such as the interests ofjustice or the proper exercise of administrative discretion. I note that this Application is also made on behalf of and at the request of Simon Bikindi, an accused currently appearing before the Tribunal. I have considered the rights of Simon Bikindi as envisaged in Article 20 of the Statute in particular, his right to have counsel assigned to him where he is found to be indigent. This right, coupled with the circumstances particular to this case, warrant a review of the Registrar's decision. On the merits of the Application made by and on behalf of Ms. Dickson. Rule 45 (A) of the Rules, confers on the Registrar the responsibility of maintaining a list of counsel who may be assigned by the Tribunal to represent indigent suspects and accused. Counsel meeting the criteria stipulated in Rules 44 (A) and 45 (A) of the Rules, are eligible for enrolment on the Tribunal's list of counsel. Rule 44(A) of the Rules states that: Counsel engaged by a suspect or an accused shall file his power of attorney with the Registrar at the earliest opportunity. Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University Professor of law. Rule 45 (A) of the Rules states that: A list of counsel who speak one or both of the working languages of the Tribunal, meet the requirements of Rule 44, have at least 10 years' relevant experience, and have indicated their willingness to be assigned by the Tribunal to indigent suspects or accused, shall be kept by the Registrar. In assigning counsel to indigent accused and suspects, the Registrar must ensure that counsel meet the requirements of Article 13 of the Directive on Assignment of Defence Counsel (the "Directive"), which provides that: Any person may be assigned as Counsel if the Registrar is satisfied that he fulfils the following pre-requisites: (i) He is admitted to practice law in a State, or is a professor of law at a University or similar academic institution and has at least 10 years' relevant experience; (ii) He speaks one of the working languages of the Tribunal, namely French and English; (iii) He agrees to be assigned as Counsel by the Tribunal to represent a suspect or accused; (iv) His name has been included in the list envisaged in Rule 45 (A) of the Rules; and; (v) He undertakes to appear before the Tribunal within a reasonable time, as specified by the Registrar. Where the Registrar has assigned counsel to represent an indigent accused, he may

ICTR • 223 withdraw such assignment pursuant to the authority conferred on him by Article 19 of the Directive. Article 19 (A) and (B) of the Directive states that: (A) The Registrar may: (i) In exceptional circumstances, at the request of the accused, or his Counsel, withdraw the assignment of Counsel; (ii) In exceptional circumstances, at the request of Lead Counsel withdraw the assignment of co-Counsel; (iii) In the case of a serious violation of the Code of Conduct, withdraw the assignment of Counselor co-Counsel. (B) The Registrar shall withdraw the assignment of Counsel: (i) Upon the decision by a Chamber to refuse audience to assigned Counsel for misconduct under Rule 46 (A) of the Rules; (ii) Where Counsel no longer satisfies the requirements of Article 13(i) of the Directive; (iii) Where Counselor co-Counsel fail to observe the undertaking made by him pursuant to Rule 45 ter. Ms. Dickson submits that the Registrar's decision to remove her name from the Tribunal's list of counsel on which she was listed from 7 February 1997 to 30 November 2001, was improperly made and that the Rules and Directive do not empower the Registrar to remove a specific counsel from the list of counsel. In response, the Registrar submits that his authority to remove Ms. Dickson from the list of counsel is derived from Rule 45 of the Rules. Ms. Dickson does not have the necessary ten years of relevant experience and she was therefore removed from the list of counsel. Ms. Dickson was enrolled on the Tribunal's list of counsel before the ten-year requirement for counsel was adopted. She submits that she was on the list of counsel when the ten-year requirement came into effect and the Registrar did not at that stage, withdraw her from the list of counsel. In response, the Registrar states that when the ten-year requirement came into effect, Ms. Dickson was representing Georges Rutaganda. At that stage, the trial had already commenced and Lead Counsel Luc De Timmerman, had withdrawn from the case. In order to ensure continuity and to avoid a disruption of the trial proceedings, he had not acted on the withdrawal of Ms. Dickson's assignment at that stage, even though she had not complied with the ten-year requirement. Ms. Dickson submits that the criteria requiring counsel to have a minimum of ten-years experience is not applicable to her because she has "Acquired rights," since her assignment to represent Georges Rutaganda was not withdrawn following the adoption of this criteria. The Registrar submits that Ms. Dickson has "Acquired rights" only in respect of her assignment as counsel for Georges Rutaganda and these rights cannot be said to override the express requirements of Rule 45 of the Rules, in subsequent cases. I note that Ms. Dickson withdrew as counsel to Georges Rutaganda on 5 January 2001. It is clear from the relevant Rules and Articles that the Registrar has the responsibility of ensuring that counsel applying for enrolment on the Tribunal's list of counsel, fulfil all the criteria set out in the Rules before they are placed on the said list. He also has the responsibility of reviewing the list on a continuous basis to ensure compliance with the

224 • Defense in International Criminal Proceedings required criteria and where applicable to remove any counsel no longer meeting the criteria. Having found that Ms. Dickson's experience fell short of the ten-year requirement, the Registrar had rightfully removed her from the Tribunal's list of counsel. On the merits of the Application made on behalf of Simon Bikindi Simon Bikindi has been assigned duty counsel on the basis of indigence and it is this counsel who has the locus standi to represent his interests before the Tribunal. It is improper for any other counsel to take instructions from him, in relation to his case before the Tribunal. Simon Bikindi has the right to choose Ms. Dickson to represent him in his case before the Tribunal. However, if Simon Bikindi as an indigent accused and requests the Tribunal to assign counsel to represent him, he is obliged to follow the Tribunal's Rules on assignment of counsel. He must accept that Ms. Dickson is no longer eligible to be enrolled on the Tribunal's list of assigned counsel. FOR THE AFORE GOING REASONS, I deny the application for review and confirm the Registrar's decision of 30 November 2001.

The Prosecutor \t. Theoneste Bagosora et al.-Decision toWithdraw the Assignment of Mr. Jean Yaovi Degli as Defense Counsel for Gratien Kabiligi, Case No. ICTR-96-7, October 26,2004 Factual background:

1. Mr.Jean Yaovi Degli was assigned as Defence Counsel for Gratien Kabiligi on 8 August 1997. On his recommendation, the Registry appointed Mrs. Sylvia Olympio as his Legal Assistant on 17 January 1998. Among other documents submitted to the Registry in support of the candidacy of Mrs. Olympio was an attestation from the Paris Bar Association that Mrs. Olympio had been sworn in as an advocate on 15 June 1991 and called to the Bar on 15 June 1993. As Legal Assistant, Mrs. Olympio was paid USD 25 per hour, the applicable rate for legal assistants and investigators, with a ceiling of 100 hours per month. 2. In 1999, Mr. Degli requested the Registry to appoint Mrs. Olympio as his co-counsel, which would have entitled her to an hourly payment of USD 80 with a billing ceiling raised from 100 to 175 hours per month. The Registry did not grant his request because Mrs. Olympio had only eight years' experience, based on the documents submitted. However, ICTR relevant instruments require a candidate to have at least 10 years' experience before he or she can be appointed as counsel. Mr. Degli then suggested that the Registry upgrade the status of Mrs. Olympio, stressing that she was, in fact, acting as co-Counsel. He proposed that she be paid at an hourly rate of USD 50, and that her monthly billing ceiling be increased to 150 hours, in return for which he would not hire a co-Counsel, who would have cost the Tribunal more. The Registry accepted this proposal, which took effect from 1 September 1999. On 15 February 2002, Mrs. Olympio could formally satisfy the requirement of 10 years' experience and was appointed coCounsel on Mr. Degli's recommendation. From this date, she could be entitled to the remuneration applicable to this category of counsel. 3. On 27 April 2003, the Registry received a letter signed by Mrs. Olympio, in which she pointed out, among other things, that she had never been called to the Bar, and that the relevant attestation was forged. She said that she informed Mr. Degli of this sit-

ICTR • 225 uation only on 26 April 2003, that is, a day before the letter was sent. Mrs. Olympio asked to be withdrawn from the case, and this was done forthwith. 4. In early May 2003, the matter was referred to the Investigations Division of the Office of Internal Oversight Services of the United Nations (IDjOIOS), which opened an investigation. It heard all the parties concerned, including Mr. Degli, Mrs. Olympio, Registry staff in charge of the Defence Lawyers' Section, and the Paris Bar Association. It received various documents from the parties concerned, as well as from Stanbic Bank, Arusha, by tracing, in particular, the various transactions operated on Mrs. Olympio's account. 5. Concluding its investigations, IDjOIOS confirmed with the Paris Bar Association that the attestation submitted on behalf of Mrs. Olympio was indeed forged. Mrs. Olympio explained to the investigators how she used a colour printer to produce the forged attestation. She also explained the nature of her relationship with Mr. Degli in that both families had long friendship ties in Togo. She explained that she met Mr. Degli in 1996. He subsequently suggested that she work in his practice, without being declared, for a monthly salary of USD 2,000 payable in cash. She accepted the offer because this amount was almost double the salary her previous employers paid her. As Mr. Degli was aware that she was not a lawyer, he then suggested that she forge the attestation from the Paris Bar Association in order to be admitted to practice at ICTR. He allegedly assured her that neither the Tribunal nor the Paris Bar Association would verify the authenticity of the document. That is why she gave him the forged attestation and her curriculum vitae to file with the Registry of ICTR. 6. Mrs. Olympio explained that, under pressure from Mr. Degli, she tried to exonerate him in her letter of April 2003. While acknowledging her responsibility in forging the attestation, she explained that, to a large extent, she was only an instrument used by Mr. Degli to swindle the Tribunal out of large sums of money.

7. She explained to the investigators that Mr. Degli helped her to open an account at Stanbic Bank, Arusha to receive the funds transferred by ICTR as payment for fees. Mr. Degli also provided a sample of his signature and obtained a power of attorney on the account. It was only on 15 April 2003, during a transaction operated on this account, that she was informed by chance that some major transactions (USD 43, 000 and USD 32, 000) had been operated on her account. The said sums had been paid in by the Tribunal and transferred by Mr. Degli into another account, now opened in the name of Felicienne D'Almeida, his spouse. After verifying with the Registry, Mrs. Olympio was informed that the amounts that had been paid in by the Tribunal were fees that were due her, such as certified by Mr. Degli. She immediately revoked the power of attorney given to Mr. Degli over her account. 8. IDjOIOS investigated and confirmed with Stanbic Bank that Mr. Degli had a power of attorney on the said account, that major transactions were operated on the account and that the power of attorney was revoked. Mrs. Olympio explained to the investigators what she understood Mr. Degli's strategy to be, namely inflating co-Counsel's fees at the time of submitting bills to the Registry, and deducting from Mrs. Olympio's account the over-billed amount, which he then transferred to the account opened in his spouse's name. 9. OIOS investigators showed Mrs. Olympio sixteen bills prepared and submitted on her behalf by Mr. Degli. After examining them, she confirmed that they were all forged, and that she had never worked for the hours mentioned therein. She also pointed out

226 • Defense in International Criminal Proceedings to the investigators that she did sign a blank form that she gave to Mr. Degli who, undoubtedly, had photocopied it as many times as necessary to submit the forged bills on her behalf. According to her, the total amount of money that she received from the Tribunal was at most USD 80,000. 10. OIOS investigators heard Mr. Degli, who acknowledged having helped Mrs. Olympio to open her account at Stanbic. He also admitted that he had a power of attorney on the said account, and that Dede Fcicicnne d'Almeida, holder of the account at Stanbic and on whose behalf he made transfers from Mrs. Olympio's account, was indeed his spouse. Mr. Degli also admitted that, as Lead Counsel, he was responsible for certifying bills submitted by members of his team, including Mrs. Olympio. 11. OIOS investigators noted that when asked why he made the transfers from Mrs. Olympio's account to that of his wife, Mr. Degli was very evasive, and seemed to suggest that the money only transited through that account before being given to Mrs. Olympio when he saw her in Paris. The investigators then showed Mr. Degli a cheque of USD 32,000 drawn on Mrs. Olympio's account and paid to Mr. Degli's wife on 7 April 2003. The investigators pointed out to him that on this date Mrs. Olympio was actually in Arusha. Mr. Degli then claimed that this amount was an exceptional reimbursement of a debt that Mrs. Olympio owed him. He did not provide the investigators with any justification for the said debt. The investigators showed him five cheques amounting to a total ofUSD 119,265.63 drawn on Mrs. Olympio's account between April 2002 and April 2003. Mr. Degli replied that these were debts for which he did not keep any relevant documentary evidence. 12. Mr. Degli explained to the investigators that he was informed that Mrs. Olympio had usurped the qualification of a lawyer only on 20 April 2003 when he went to the Paris Bar Association to enquire about professional liability insurance relating to two cases that Mrs. Olympio had poorly handled. Mrs. Olympio reiterated the confessions she made on 26 April 2003 in the presence of a witness called d'Almeida (a relative of Mr. Degli's spouse) regarding her usurpation of the qualification of a lawyer. The investigators reminded Mr. Degli that in the written application of 4 November 1997 that he had sent to the Tribunal for the appointment of Mrs. Olympio as a Legal Assistant, he had pointed out that she used to work in his practice and that he was quite aware that she was conversant with legal work. However, in Mrs. Olympio's CV, which he had filed for her appointment as co-Counsel, this fact had changed. Mrs. Olympio was presented therein as having worked for the law firm Campbell & Labruinie from March 1996 to May 1999. Mr. Degli responded that he did not take note of that change. Questioned by the investigators as to the checks that he had to carry out with the Paris Bar Association before hiring Mrs. Olympio, Mr. Degli responded that he never carried out such checks. He also told the investigators that he was not aware of the startling difference between the signature at the bottom of the attestation allegedly provided by the Paris Bar Association to Mrs. Olympio and that on his personal attestation, presumably of the same person, Mr. Loup Monnot de Angles. 13. Questioned on the revocation by Mrs. Olympio of the power of attorney on her account, Mr. Degli explained to the investigators that it was because he had discovered that Mrs. Olympio was usurping the qualification of a lawyer. The investigators then pointed out to him that he had previously explained that he was informed of the forgery only on 20 April 2003, whereas the revocation was made at least three days prior to that

ICTR • 227 date. The investigators noted that Mr. Degli prevaricated before changing his account, explaining that Mrs. Olympio got angry when she learned that USD 32,000 had been withdrawn from her account, which caused her to revoke the power of attorney. 14. The investigators then showed Mr. Degli different bills that were suspected of being inflated. For example, they drew his attention to the September 2002 bill in which Mrs. Olympio pointed out that she had worked for 64 hours and 50 minutes. However, the bill that he had certified and submitted to ICTR showed that she had worked for 185 hours and 35 minutes. For the weekend of 14 to 15 September 2002 alone, he had certified 18 hours and 20 minutes. Mr. Degli admitted before the investigators that the number of hours reported were not plausible, and that he should have been more careful. However, he claimed that such over-billing was due to error, and, in any case, did not benefit him as the money was actually paid to his colleague. After this hearing, Mr. Degli spontaneously appeared anew before the investigators to explain that there was indeed over-billing. He explained that such over-billing enabled other persons who had done the work that Mrs. Olympio had not done to be paid. Mr. Degli did not reveal the identity of such persons to the investigators. 15. The sums transferred to Mrs. Olympio's account during the time she rendered legal services at ICTR amounted to USD 380,266.90. Mrs. Olympio stated that of that amount, she received no more than USD 80,000. The difference, that is, more than USD 300,000, would be the amount of money that Mr. Degli misappropriated. Procedure:

16. The Registrar received the OIOS report in August 2004. He carried out broad-based consultations with a view to sanctioning any abuse of the legal aid scheme if such abuse is established, while also making sure not to abruptly interrupt the course ofjustice. The Registrar was equally keen to fully respect the adversarial principle by affording the counsel concerned an opportunity to freely make precise representations on the forgery and subsequent misappropriation of funds of which he is suspected to be the kingpin. Thus, when OIOS informed the Registrar that it was neither necessary nor usual to share its report with persons other than the few people who had received copies thereof, the Registrar did everything he could to produce a summary of the said report stating the specific acts imputed to Counsel, after expunging therefrom issues alien to the case. The summary was served on Mr. Degli on 15 October 2004; in the summary, Mr. Degli was invited to make his observations and defence within 8 (eight) days. 17. In his response dated 18 October 2004, but received at the Registry only on 22 October 2004, Mr. Degli dwelled at length on issues that were completely alien to the facts he had been requested to explain. He speaks of a conspiracy against him, a phrase that invariably occurs in all his letters to the Registry since the beginning of investigations into this matter. However, the response bears some indications as to Mr. Degli's stand. In paragraph 9 of the said response, he states that he can provide an adequate response only if the complete report, and not a summary thereof, is communicated to him. The request for the complete report is reiterated in paragraphs 10, 11 and 12 of his response. He, however, mentioned that he would reserve his response for other authorities because "the Registry and its head [are] highly interested parties in this case." In conclusion, he called on the Registry to make its decision as soon as possible to enable him to appeal. 18. The Registrar takes cognizance of Mr. Degli's stand as expressed in his response of

228 • Defense in International Criminal Proceedings 18 October 2004. The Registrar believes that he gave him ample opportunity and time to defend himself by informing him of the specific acts with which he is charged. The information is as complete as any report he could have received from OIOS. Mr. Degli chose not to respond to it. Moreover, by asserting in his response that the Registry is, in his own words, an interested party in this matter and that he reserves his defence arguments for "the next step of the proceedings in this case," Mr. Degli clearly shows that his refusal to provide a response on the merits is driven by personal motives which, in any case, have nothing to do with the disclosure of charges. Reasons for the Decision:

19. Article 19 (A) (iii) of the Directive provides that the Registrar may withdraw the assignment of Counsel in the case of a serious violation of the Code of Professional Conduct. Article 11 of the said Code requires Counsel to set his bills and fees with moderation and to account in good faith for the time spent working on a case. Article 20(c) of the same Code provides that conduct involving dishonesty, fraud, deceit or misrepresentation shall amount to professional misconduct by Counsel. 20. In the light of the facts described above, there is overwhelming evidence that Mr. Degli played a major role in what appears to be a veritable fraud scheme that was well planned, orchestrated and carried out. In fact, he has not contested the reality of the fraudulent acts which, moreover, are established through documentary evidence. By helping Mrs. Olympio to open an account with Stanbic Bank, by requesting and obtaining a power of attorney on the account, by opening another account in his spouse's name with the same bank and with the same powers on the account, even though his wife is neither resident in Arusha nor linked to the Tribunal by any contract whatsoever, by systematically transferring into his wife's account huge sums of money transferred by the Tribunal into Mrs. Olympio's account, Mr. Degli was carefully and knowingly putting together the various parts of a very elaborate, fraud mechanism. These undisputed facts are consistent with Mrs. Olympio's account with respect to over-billing-an act by which Mr. Degli swindled the Tribunal out of its resources before making use of the bank device that he set up in order to withdraw the said sums. Moreover, Mr. Degli eventually admitted before OIOS investigators, who had even confounded him, that he indulged in over-billing, which he sought to justify by advancing a false claim that it was aimed at paying persons who did the work Mrs. Olympio was supposed to do. It is obvious that such ajustification, even if established, would be unacceptable. Mr. Degli cannotjustify the unlawful practice of over-billing by the need to pay people who were alien and unknown to the Tribunal. 21. In the final analysis, the only unlawful activity to which Mr. Degli vehemently objects being associated with is that he prepared and subsequently used a false attestation of the Paris Bar Association. However, here again, his bad faith is established, for this initial unlawful act appears to be the cornerstone of the fraudulent device that he set up subsequently. Moreover, the investigators found numerous inconsistencies in Mrs. Olympio's CV that Mr. Degli himself filed with the Registry and wherein he himself acknowledged to have worked with her. Besides, Mr. Degli cannot claim to have shown good faith after admitting that he employed Mrs. Olympio in his Law Chambers without declaring it, thereby acting outside the purview of French law and of the rules and regulations of his Bar Association. An advocate cannot be an undeclared employee. In any case, after taking the risk of hiring an advocate without declaring her, Mr. Degli cannot subsequently plead good faith as to his not knowing her real status. In the circum-

ICTR • 229 stances, OIOS investigators were not impressed by the written confessions of Mrs. Olympio made in the doubtful presence of Mr. Degli's in-law, and exonerating Mr. Degli from having had prior knowledge of usurpation. The Registrar, for his part, also declines to credit that assertion, and is rather inclined to believe that it was obtained under duress, then subsequently retracted before OIOS investigators. 22. It appears from the foregoing that Mr. Degli was engaged in conduct involving dishonesty, fraud and deceit, in violation of Article 20 (c) of the Code of Professional Conduct. It is also established that he did not account in good faith for the time spent by his defence team on the Gratien Kabiligi case, in violation of Article 11 of the Code of Professional Conduct. These serious breaches of the Code of Professional Conduct justify the withdrawal of the assignment of Mr. Degli, pursuant to Article 19 (A) (iii) of the Directive, all of these without prejudice to any other action that may be instituted for the recovery of the misappropriated sums. For these reasons: Orders the withdrawal of the assignment of Mr. Jean Yaovi Degli; Finds Mr. Degli no longer eligible as Counsel within the framework of the Tribunal's legal aid scheme, and orders his withdrawal from the list; Orders that Mr. Jean Yaovi Degli deliver to Accused Gratien Kabiligi or to his co-Counsel, Rene Saint Leger, within fifteen days of notification of the present decision, all the original documents in the file which are in his possession; Orders notification of this decision to the Accused, Gratien Kabiligi; Orders notification of this decision to the Bar Associations of Paris and Togo; Invites the Accused, Gratien Kabiligi, to submit, without delay, a list of 3 (three) names of Counsel whose names appear on the list of counsel that may be assigned by the Tribunal;

5.2.5.3.

Materials

Mame Mandiaye Niang, "The Right to Counsel Before the International Criminal Tribunal for Rwanda," 13(3) Crim. L.F. 323-38 (2002).

5.3. PROFESSIONAL ETHICS* 5.3.1.

Introduction

As this chapter reflects, the matter of professional ethics, although not expressly addressed in the Statute, is extensively covered in the Tribunal's legal instruments, most particularly in the Code of Professional Conduct for Defense Counsel. This Code became part of the Tribunal's regulatory framework in June 1998 after the Plenary Session amended Rule 46 of the Rules of Procedure and Evidence, enabling the Registrar to formally declare the ethical standards incumbent on counsel appearing before the Tribunal. As its title implies, however, the Code seeks to regulate the professional conduct of defense counsel; lawyers appearing on behalf of the prosecution

*

Section 5.3 was written by Roman Baed.

230 • Defense in International Criminal Proceedings are bound by the more concise set of rules contained in Prosecutor's Regulation Number 2. 30 Still, fundamental ethical obligations fall equally on all lawyers appearing before the Tribunal.s! and the jurisprudence excerpted below shows that the judges have disciplined both prosecution and defense lawyers when necessary to maintain control over the proceedings before them.

5.3.2. 5.3.2.1.

Statutes, Rules and Official Legal Documents Statute

There is no related provision to be found in the Statute.

5.3.2.2.

Rules of Procedure and Evidence Rule 44: Appointment and Qualification ofCounsel

(B) In the performance of their duties counsel shall be subject to the relevant provisions of the Statute, the Rules, the Rules of Detention and any other rules or regulations adopted by the Tribunal, the Host Country Agreement, the Code of Conduct and the codes of practice and ethics governing their profession and, if applicable, the Directive on the Assignment of Defence Counsel.

Rule 45 ter: Availability ofCounsel (A) Counsel and Co-Counsel, whether assigned by the Registrar or appointed by the client for the purposes of proceedings before the Tribunal, shall furnish the Registrar, upon date of such assignment or appointment, a written undertaking that he will appear before the Tribunal within a reasonable time as specified by the Registrar. (B) Failure by Counselor Co-Counsel to appear before the Tribunal, as undertaken, shall be a ground for withdrawal by the Registrar of the assignment of such Counselor Co-Counselor the refusal of audience by the Tribunal or the imposition of any other sanctions by the Chamber concerned.

Rule 46: Misconduct ofCounsel (A) A Chamber may, after a warning, impose sanctions against a counsel if, in its opinion, his conduct remains offensive or abusive, obstructs the proceedings, or is otherwise contrary to the interests of justice. This provision is applicable mutatis mutandis to Counsel for the prosecution. (B) AJudge or a Chamber may also, with the approval of the President, communicate any misconduct of counsel to the professional body regulating the conduct of counsel in his State of admission or, if a professor and not otherwise admitted to the profession, to the governing body of his University.

30 Prosecutor's Regulation No.2, Standards of Professional Conduct for Prosecution Counsel (1999). 31 See Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A,Judgment (Appeals Chamber), July 9,2004, para. 16.

ICTR • 231 (C) If a counsel assigned pursuant to Rule 45 is sanctioned in accordance with SubRule A) by being refused audience, the Chamber shall instruct the Registrar to replace the counsel. (D) The Registrar may set up a Code of Professional Conduct enunciating the principles of professional ethics to be observed by counsel appearing before the Tribunal, subject to adoption by the Plenary Meeting. Amendments to the Code shall be made in consultation with representatives of the Prosecutor and defence counsel, and subject to adoption by the Plenary Meeting. If the Registrar has strong grounds for believing that Counsel has committed a serious violation of the Code of Professional Conduct, as adopted, he may report the matter to the President or the Bureau for appropriate action under this rule.

Rule 73: Motions

(F) In addition to the sanctions envisaged by Rule 46, a Chamber may impose sanctions against Counsel if Counsel brings a motion, including a preliminary motion, that, in the opinion of the Chamber, is frivolous or is an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof.

Rule 77: Contempt ofthe Tribunal (A) The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and willfully interfere with its administration ofjustice, including any person who (i) being a witness before a Chamber, contumaciously refuses or fails to answer a question; (ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber; (iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber; (iv) threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness; or (v) threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber. (B) Any incitement or attempt to commit any of the acts punishable under paragraph (A) is punishable as contempt of the Tribunal with the same penalties. (C) When a Chamber has reason to believe that a person may be in contempt of the Tribunal, it may:

232 • Defense in International Criminal Proceedings

(i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for contempt; (ii) where the Prosecutor, in the view of the Chamber, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating contempt proceedings; or (iii) initiate proceedings itself. (D) If the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may: (i) in circumstances described in paragraph (C) (i), direct the Prosecutor to prosecute the matter; or (ii) in circumstances described in paragraph (C) (ii) or (iii), issue an order in lieu of an indictment and either direct amicus curiae to prosecute the matter or prosecute the matter itself. (E) The rules of procedure and evidence in Parts Four to Eight shall apply mutatis mutandis to proceedings under this Rule. (F) Any person indicted for or charged with contempt shall, if that person satisfies the criteria for determination of indigence established by the Registrar, be assigned counsel in accordance with Rule 45. (G) The maximum penalty that may be imposed on a person found to be in contempt of the Tribunal shall be a term of imprisonment not exceeding five years, or a fine not exceeding USDIO,OOO, or both. (H) Payment of a fine shall be made to the Registrar to be held in a separate account. (I) If a counsel is found guilty of contempt of the Tribunal pursuant to this Rule, the Chamber making such finding may also determine that counsel is no longer eligible to represent a suspect or accused before the Tribunal or that such conduct amounts to misconduct of counsel pursuant to Rule 46, or both. (J) Any decision rendered by a Trial Chamber under this Rule shall be subject to appeal. Notice of appeal shall be filed within fifteen days of filing of the impugned decision. Where such decision is rendered orally, the notice shall be filed within fifteen days of the oral decision, unless (i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or (ii) the Trial Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision. (K) In the case of decisions under this Rule by the Appeals Chamber sitting as a Chamber of first instance, an appeal may be submitted in writing to the President within fifteen days of the filing of the impugned decision. Such appeal shall be decided by five differentJudges as assigned by the President. Where the impugned decision is rendered orally, the appeal shall be filed within fifteen days of the oral decision, unless

ICTR • 233 (i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or (ii) the Appeals Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision.

5.3.2.3.

Directive on the Assignment of Defense Counsel Article 16: Applicable Law

In the performance of their duties assigned Counsel shall be subject to the relevant provisions of the Statute, of the Rules, of the Rules of Detention, of any other rules or regulations adopted by the Tribunal, of the Host Country Agreement, of this Directive, of the Code of Conduct and of the codes of practice and ethics governing the profession.

Article 19: Withdrawal ofAssignment in Other Situations (A) The Registrar may:

(iii) In the case of a serious violation of the Code of Conduct, withdraw the assignment of Counselor Co-counsel. (B) The Registrar shall withdraw the assignment of Counsel: (i) Upon the decision by a Chamber to refuse audience to assigned Counsel for misconduct under Rule 46 (A) of the Rules;

(C) The accused, the Counsel concerned and his respective professional or governing body shall be notified of the withdrawal.

5.3.2.4.

Code of Professional Conduct for Defense Counsel INTRODUCTION

This Code is made in the belief that: 1. As legal practitioners, Counsel must maintain high standards of professional conduct. 2. The role of Counsel as specialist advocates in the administration ofjustice requires them to act honestly, fairly, skilfully, diligently and courageously. 3. Counsel have an overriding duty to defend their client's interests, to the extent that they can do so without acting dishonestly or by improperly prejudicing the administration ofjustice. 4. Counsel may be subject to disciplinary proceedings under Rule 46 of the Rules of Procedure and Evidence of the Tribunal. It is therefore necessary that Counsel be aware of their rights and obligations toward the Tribunal. To these ends, this Code and its Articles of conduct have been formulated.

234 • Defense in International Criminal Proceedings

Part I: Preliminary Article 1: Definitions (1) In this Code, unless a different interpretation is required by the provisions of the Code or the context in which they appear, the following terms shall mean: Client: an accused, suspect, detainee, witness or other person who has engaged Counsel for the purposes of his legal representation before the Tribunal. Counsel: Any person who has satisfied the Registrar that he is admitted to the practice of law in a State, or is a University professor of law, and (a) Has filed his or her power of attorney with the Registrar; or (b) Has been assigned under the Rules to a suspect, accused, detainee, witness or other person. Any reference to Counsel includes a reference to any Co-counsel jointly and to each of them severally. Directive: The directive entitled "Directive on Assignment of Defence Counsel." This is Directive No. 1/96 (ICTR/2/L.2) as amended. Rules: Means the Rules of Procedure and Evidence of the Tribunal adopted on 5 July 1995, as amended. Statute: The Statute of the Tribunal adopted by Security Council Resolution 955 of 8 November 1994. Tribunal: The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, established by Security Council Resolution 955 of 8 November 1994. (2) In the event of any inconsistency between this Code and the Directive, the terms and provisions of the Directive prevail. (3) Any term not defined in this Code has the same meaning given to it by the Statute or by the Rules. (4) While Counsel is bound by this Code, it is not, and should not be read as if it were, a complete or detailed Code of Conduct for Counsel. Other standards and requirements may be imposed on the conduct of Counsel by virtue of the Tribunal's inherent jurisdiction and the code of conduct of any national body to which Counsel belongs. (5) This Code must be read and applied so as to most effectively attain the objects and uphold the values expressed in the Preamble. (6) General provisions of this Code should not be read or applied in a restrictive way by reason of any particular or illustrative provisions. (7) The singular includes the plural and vice versa.

ICTR • 235

Article 2: Entry into Force This Code enters into force on 4June 1998.

Article 3: General Purpose and Application (1) The general purpose of this Code is to provide for standards of conduct on the part of Counsel which are appropriate in the interests of the fair and proper administration ofjustice. (2) This Code applies to Counsel as defined in Article 1 (1) of this Code.

Part II: General Obligations ofCounsel to Clients Article 4: Scope and Termination of Representation (1) Counsel must advise and represent their Client until the Client duly terminates that Counsel's position, or the Counsel is otherwise withdrawn with the consent of the Tribunal. (2) When representing a Client, Counsel must: (a) Abide by a Client's decisions concerning the objectives of representation if not inconsistent with Counsel's ethical duties; and (b) Consult with the Client about the means by which those objectives are to be pursued. (3) Counsel must not advise or assist a Client to engage in conduct which Counsel knows is in breach of the Statute, the Rules or this Code and, where Counsel has been assigned to the Client, the Directive.

Article 5: Competence and Independence In providing representation to a Client, Counsel must: (a) Act with competence, dignity, skill, care, honesty and loyalty; (b) Exercise independent professional judgement and render open and honest advice; (c) Never be influenced by improper or patently dishonest behaviour on the part of a Client; (d) Preserve their own integrity and that of the legal profession as a whole; (e) Never permit their independence, integrity and standards to be compromised by external pressures.

Article 5 bis: Fee Splitting (1) Fee-splitting arrangements, including but not limited to financial arrangements, between Counsel and their clients, relatives and/or agent of their clients are not permitted by the Tribunal.

236 • Defense in International Criminal Proceedings (2) Where Counsel are being requested, induced or encouraged by their clients to enter into fee splitting arrangements, they shall advise their clients on the unlawfulness of such practice and shall report the incident to the Registrar forthwith. (3) Counsel shall inform the Registrar of any alleged fee splitting arrangements by any member of his Defence team. (4) Following receipt of information regarding possible fee splitting arrangements between Counsel and their clients, the Registrar shall investigate such information in order to determine whether it is substantiated. (5) Where Counsel is found to have engaged in a practice of fee splitting or to have entered into a fee splitting arrangement with his client, the Registrar shall take action in accordance with Article 19 (A) (iii) of the Directive on assignment of Defence Counsel. (6) In exceptional circumstances, and only where the Registrar has granted leave, Counsel may provide their clients with equipment and materials necessary for the preparation of their defence.

Article 6: Diligence Counsel must represent a Client diligently in order to protect the Client's best interests. Unless the representation is terminated, Counsel must carry through to conclusion all matters undertaken for a Client within the scope of his legal representation.

Article 7: Communication Counsel must keep a Client informed about the status of a matter before the Tribunal in which the Client is an interested party and must promptly comply with all reasonable requests for information.

Article 8: Confidentiality (1) Whether or not the relation of Counsel and client continues, Counsel must preserve the confidentiality of his Client's affairs and, subject to sub-article (2), must not reveal to any other person, other than to any assistants who need to know it for the performance of their duties, information which has been entrusted to him in confidence or use such information to his Client's detriment or to his own or another Client's advantage. (2) Notwithstanding sub-article (1), and subject to Article 19 ("Conflicts"), Counsel may reveal information which has been entrusted to him in confidence in anyone of the following circumstances: (a) When the Client has been fully consulted and knowingly consents; or (b) When the Client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure; or (c) When essential to establish a defence to a criminal or disciplinary charge or civil claim formally instituted against Counsel; or (d) To prevent an act which Counsel reasonably believes:

ICTR • 237 (i) Is, or may be, criminal within the territory in which it may occur or under the Statute or the Rules; and (ii) May result in death or substantial bodily harm to any person unless the information is disclosed. (3) For the purposes of this Article, Counsel includes employees or associates of Counsel and all others whose services are used by Counsel.

Article 9: Conflict of Interest (1) Counsel owes a duty of loyalty to his or her Client. Counsel must at all times act in the best interests of the Client and must put those interests before their own interests or those of any other person. (2) In the course of representing a Client, Counsel must exercise all care to ensure that no conflict of interest arises. (3) Without limiting the generality of sub-articles (1) and (2), Counsel must not represent a Client with respect to a matter if: (a) Such representation will be or is likely to be adversely affected by representation of another Client; (b) Representation of another Client will be or is likely to be adversely affected by such representation; (c) The Counsel's professional judgement on behalf of the Client will be, or may reasonably be expected to be, adversely affected by: (i) The Counsel's responsibilities to, or interests in, a third party; or (ii) The Counsel's own financial, business, property or personal interests; or (iii) The matter is the same or substantially related to another matter in which Counsel had formerly represented another client (the former client); and the interests of the Client are materially adverse to the interests of the former client, unless the former client consents after consultation. (4) Counsel must not accept compensation for representing a Client from a source other than that Client or, if assigned by the Tribunal, from a source other than the Tribunal, unless: (a) That Client consents after consultation; and (b) There is no interference thereby with the Counsel's independence of professionaljudgement nor with the Client-Counsel relationship. (5) Where a conflict of interest does arise, Counsel must: (a) Promptly and fully inform each potentially affected Client of the nature and extent of the conflict; and (b) Either: (i) Take all steps necessary to remove the conflict; or (ii) Obtain the full and informed consent of all potentially affected Clients to continue the representation, so long as Counsel is able to fulfil all other obligations under this Code.

238 • Defense in International Criminal Proceedings Article 10: Client under a Disability When a Client's ability to make adequately considered decisions in connection with their representation is impaired because of minority, mental disability or any other reason, Counsel must: (a) Inform theJudge or Chamber of the Tribunal hearing the matter, if any, of the disability; (b) Take such steps as are necessary to ensure the adequate legal representation of that Client; and (c) As far as reasonably possible maintain a normal Counsel-Client relationship with the Client.

Article 11 : Accounting for Time Counsel should account in good faith for the time spent working on a case and maintain and preserve detailed records of time spent. Counsel is under a duty to set his bills and fees with moderation.

Part III: Conduct before the Tribunal Article 12: Rules ofthe Tribunal (1) Counsel must at all times comply with the Rules and such rulings as to conduct and procedure as may be applied by the Tribunal in its proceedings. Counsel must at all times have due regard to the fair conduct of proceedings. (2) Counsel must not, unless permitted by the Rules or this Code or the Judge or Chamber hearing the matter: (a) Make contact with aJudge or Chamber of the Tribunal without first or concurrently informing Counsel acting for any other party to the proceedings; (b) Submit exhibits, notes or documents to the Judge without communicating them first or concurrently to Counsel acting for any other party to the proceedings.

Article 13: Candour Toward the Tribunal (1) Counsel is personally responsible for the conduct and presentation of their Client's case, and must exercise personal judgement upon the substance and purpose of statements made and questions asked. (2) Counsel must not knowingly: (a) Make an incorrect statement of material fact to the Tribunal; or (b) Offer evidence which the Counsel knows to be incorrect. (3) Despite sub-article (2) (a), Counsel will not have made an incorrect statement to another party to the proceedings or to the Tribunal simply by failing to correct an error on any matter stated to Counselor to the Tribunal during proceedings.

ICTR • 239 (4) Counsel must take all necessary steps to correct an incorrect statement made by Counsel in proceedings before the Tribunal as soon as possible after Counsel becomes aware that the statement was incorrect.

Article 14: Integrity of Evidence (1) Counsel must at all times maintain the integrity of evidence, whether in written, oral or any other form, which is or may be submitted to the Tribunal. (2) If Counsel's representation of a client terminates for any reason, Counsel shall return evidence and other materials, which have come into his possession as a result of the said representation, to his former client, to the latter's Counsel, or under seal to the Registrar for onward transmission to the said client or Counsel, as appropriate.

Article 15: Impartiality ofthe Tribunal (1) Counsel must take all necessary steps to ensure that their actions do not bring proceedings before the Tribunal into disrepute. (2) Counsel must not seek to influence a Judge or other official of the Tribunal by means prohibited by the Statute, the Rules or this Code.

Article 16: Counsel as Witness Counsel must not act as advocate in a trial in which the Counsel is likely to be a necessary witness except where the testimony relates to an uncontested issue or where substantial hardship would be caused to the Client if that Counsel does not so act.

Part IV: Duty of Counsel to Others Article 17: Fairness and Courtesy (1) Counsel must act fairly, honestly and courteously towards all persons with whom they have professional contact, namely other Counsel, their Clients, Judges, members of the Office of the Prosecutor and Registry staff. Counsel shall recognize all other Counsel appearing or acting in relation to proceedings before the Tribunal as professional colleagues. (2) Counsel must not communicate with the Client of another Counsel except through or with the permission of that Client's Counsel.

Article 18: Dealing with Unrepresented Persons (1) If, on behalf of a Client, Counsel is dealing with a person who is not represented by Counsel, Counsel: (a) Must not give advice to this unrepresented person if the interests of the person are, or have a reasonable possibility of being, in conflict with the interests of the Counsel's Client; but (b) May advise the unrepresented person to secure legal representation.

240 • Defense in International Criminal Proceedings (2) Counsel must inform the unrepresented person of the role Counsel plays in the matter, the person's right to Counsel under the Rules, and the nature of legal representation in general. This information must be given whether or not a conflict exists or may exist with the interests of Counsel's Client.

Part V: Maintenance ofthe Integrity ofthe Profession Article 19: Conflicts If there is any inconsistency between this Code and any other code which Counsel is bound to honour, the terms of this Code prevail in respect of Counsel's conduct before the Tribunal.

Article 20: Misconduct It is professional misconduct for Counsel, inter alia, to: (a) Violate or attempt to violate this Code or to knowingly assist or induce another person to do so, or to do so through the acts of another person; (b) Commit a reprehensible act which reflects adversely on Counsel's honesty, trustworthiness or fitness as Counsel; (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) Engage in conduct which is prejudicial to the proper administration ofjustice before the Tribunal; or (e) Attempt to influence an officer of the Tribunal in an improper manner.

Article 21 : Reporting Misconduct (1) If:

(a) Counsel knows that another Counsel has breached this Code or has otherwise engaged in professional misconduct; and (b) That violation or conduct raises a substantial question as to the other Counsel's honesty, trustworthiness or fitness as Counsel Counsel may inform the Judge or Chamber of the Tribunal before which Counsel is appearing. (2) The Registrar may also communicate any misconduct of Counsel to the professional body regulating the conduct of Counsel in his State of admission or, if a Professor and not otherwise admitted to the profession, to the governing body of his University.

Article 22: Enforcement Counsel must abide by and voluntarily submit to any enforcement and disciplinary procedures as may be established by the Tribunal in accordance with the Rules.

ICTR • 241

Article 23: Amendment This Code may be amended by the Registrar, after consultation with the Judges.

5.3.3. 5.3.3.1.

Case Law and Practice 32 Rule 44 of the Rules of Procedure and Evidence

This general provision sets out the individual instruments which govern counsel in the performance of their duties at the Tribunal. No jurisprudence has developed under this provision, as such.

5.3.3.2.

Rule 46 of the Rules of Procedure and Evidence

The Prosecutor \t. Musema-Decision to Withdraw Assigned Counsel and to Allow the Prosecutor Temporarily to Redact Identifying Information of Her Witness, Case No. ICTR-96-13, November 18,1997

REFERRING to the Tribunal's Warning and Notice of 31 October 1997 to Ms. Honegger pursuant to Rule 46(A) of the Rules of Procedure and Evidence of the Tribunal (the "Rules"), wherein the Tribunal concluded that the assigned Counsel's conduct and lack of co-operation are obstructing the proceedings and are contrary to the interests ofjustice, and therefore warned her that she may be sanctioned by refusal of further audience before the Tribunal, if she did not comply with the Tribunal's request to represent in person her client during his initial appearance, scheduled anew for 18 November 1997;

TAKING NOTE of the fact that the assigned Defence Counsel, despite the said warning and notice, has not presented herself for the initial appearance of her client on 18 November 1997 in accordance with Rule 62 of the Rules, as requested by the Tribunal;

AFTER HAVING DELIBERATED,

4. The Tribunal, however, has been unable to obtain the necessary co-operation of Ms. Honegger, who has twice caused the suspension of the initial appearance of the accused. For this reason, the Tribunal has been compelled to proceed and arrange for the initial appearance of the accused without the assistance of the Defence Counsel. 5. Prior to formally charging the accused by having the indictment read out to him during the initial appearance, the Tribunal clarified with the accused that his pleading guilty or not guilty to the charges without the presence of his lawyer did not deprive him of his right to counsel and further explained to him that should he fail to plead to the

32 The texts are reproduced here as they appear in the original, except that internal citations are generally omitted.

242 • Defense in International Criminal Proceedings charges, a plea of not guilty will be entered on his behalf. After having satisfied itself that the accused had understood and accepted this, the Tribunal proceeded with the initial appearance. The Tribunal recalls that the accused would, in any event, be entitled to conduct his own defence if he so chose, by virtue of Rule 45 (F) of the Rules. 6. The Tribunal notes that the accused, during his initial appearance, declared that he was satisfied with Ms. Honegger as his lead counsel and that he was prepared to accept the co-counsel suggested by her, Mr. Steven Kay of the United Kingdom. 7. The Tribunal, however, is unable to accept the reasons expressed by Ms. Honegger in her letter of 14 November 1997 to explain her absence during the initial appearance of her client. Making her presence at the Tribunal conditional upon the Tribunal's advance payment of her air ticket and her claims for prior legal services, notably, and awaiting assignment of co-counsel who is unavailable before 26 January 1998, are obviously and clearly insufficient grounds for further postponement of the initial appearance. 8. Finding no reasonable or compelling grounds in the response by the assigned counsel for refusing to be present at the Tribunal for the initial appearance of her client, the Tribunal will give effect to the warning to the Counsel issued on 31 October 1997 according to Rule 46(C) of the Rules, by refusing her further audience before the Tribunal;

FOR THESE REASONS, THE TRIBUNAL FINDS that the conduct of the assigned Defence Counsel, Ms. Marie-Paule Honegger, despite the warning issued to her on 31 October 1997, continues to obstruct the proceedings and remains contrary to the interests ofJustice; DECIDES, therefore, pursuant to Rule 46(C) of the Rules, to refuse further audience to Ms. Honegger before the Tribunal; INSTRUCTS the Registrar to withdraw the assignment of Ms. Honegger as defence counsel for the accused, Alfred Musema, and to immediately assign a new defence counsel to him; FURTHER INSTRUCTS the Registrar to send to the Geneva Bar a copy of this Decision and of the above mentioned Decision of 31 October 1997;

Judgment and Sentence, January 27, 2000

19. Musema's initial appearance had to be rescheduled on two occasions, 16June 1997 and 3 September 1997 respectively. Defence Counsel, Ms Marie-Paule Honegger of the Geneva Bar, failed to attend on both occasions and declined to accept the appointment of alternate counsel. Musema insisted on his right to have his appointed counsel present before entering a plea. After further delays were caused by the Defence Counsel to the scheduling of the initial appearance, the Chamber found that the Defence Counsel's

ICTR • 243 conduct and lack of co-operation was obstructing the proceedings and was contrary to the interests ofjustice. The Chamber thus issued a warning to Ms Honegger, pursuant to Rule 46 (A) of the Rules, that she may be sanctioned by the refusal of further audience before the Chamber if she defaulted in complying with the Chamber's request to represent in person her client during his initial appearance scheduled anew for 18 November 1997, in which case the Chamber would instruct the Registrar to replace her as counsel for Musema under Rule 46(C).

The Prosecutor \t. Akayesu-Issuance ofWarning Against Defence Counsels, Case No. ICTR-96-4, March 19,1998 (Excerpts)

WHEREAS, the ongoing trial ofJean-Paul Akayesu resumed on 9 February 1998 and continued until 13 March 1998 with the presentation of the evidence for the Defence by Lead Counsel, Mr. Nicolas Tiangaye alone, subsequent to which, and in accordance with Rule 86 of the Rules of Procedure and Evidence (the "Rules"), the hearing of the closing arguments of the Prosecutor in the present matter was scheduled for 19 March 1998, at 09.30hrs; WHEREAS, due to failure of Lead Counsel of the Defence, Mr. Tiangaye, and his CoCounsel, Mr. Patrice Monthe, to appear for the scheduled hearing as called for in this case, the Tribunal was compelled to delay the commencement of both the morning and afternoon hearings; WHEREAS it appeared at the session that the accused was surprised at the non-appearance of his Counsels and had not instructed them in this regard; WHEREAS, although endeavours were made, including personal contacts with the two Counsels, throughout the morning and afternoon of 19 March 1998 by the Tribunal through its Registry to ensure their appearance at the scheduled hearings, both Mr. Tiangaye and Mr. Monthe expressly refused to do so, on the basis of alleged problems with the Registry, and only finally presented themselves before the Tribunal very late in the day; WHEREAS Counsels for the Defence failed to submit an acceptable explanation to justify their non-appearance during the morning hearing, or their delayed arrival for the afternoon hearing before the Tribunal; on the contrary, they declared themselves ready to continue to execute their duties in this case only on certain conditions; WHEREAS, pursuant to Rule 46 (A) of the Rules, the Tribunal may issue a warning, after which sanctions may be imposed against a Counsel if, in its opinion, the conduct of Counsel remains offensive or abusive, obstructs the proceedings, or is otherwise contrary to the interests ofJustice; WHEREAS the Tribunal deems the conduct of the two aforementioned Counsels to be not only contemptuous and disrespectful to the Tribunal, but also an obstruction to the proceedings and contrary to the interests ofJustice; WHEREAS, consequently, the Tribunal finds that there are grounds to issue a warning to Defence Counsels, Mr. Tiangaye and Mr. Monthe: furthermore, if this warning is not

244 • Defense in International Criminal Proceedings heeded, and the Defence Counsels fail to appear for the hearing of the Prosecutor's concluding closing arguments, re-scheduled for 23 March 1998, at 09.30hrs, and, if they still wish to present their closing argument in accordance with Rule 86 of the Rules, that of 25 March 1998, at 09.30hrs, the date set down for that purpose, appropriate sanctions, pursuant to Rule 46 of the Rules, may be imposed against both Counsels; FOR ALL THE ABOVE REASONS, THE TRIBUNAL ISSUES a warning, pursuant to Rule 46 of the Rules, to the Defence Counsels in the present case, Messrs. Tiangaye and Monthe; DECLARES, in accordance with the same Rule, that disregard of the warning and failure to appear for the hearing of the Prosecutor's concluding closing arguments, rescheduled for 23 March 1998, at 09.30hrs, and, if they still wish to present their closing argument in accordance with Rule 86 of the Rules, that of 25 March 1998, at 09.30hrs, the date set down for that purpose, appropriate sanctions, pursuant to Rule 46 of the Rules, may be imposed against both Counsels;

The Prosecutor \t. Niyitegeka-Decision onTwo Defense Motions Pursuant to, Inter Alia, Rule 5 of the Rules and the Prosecutor's Motion for Extension ofTime to File the Modified Amended Indictment Pursuant to theTrial Chamber II Order of November 20, 2000; Warning to the Prosecutor's Counsel Pursuant to Rule 46(A), Case No. ICTR-96-14, February 27, 2001

35. In objection to the Prosecutor's Motion, the Defense inter alia highlights the breaches to the Chamber's Orders committed by the Prosecutor and requests that the motion be dismissed. 36. In considering this matter, the Chamber analyses the Prosecutor's conduct, through her Counsel, in the present case, following the Decision of 20 November 2000. Upon being ordered, at para. 46 in the said Decision, to file, within twenty-one days, the New Amended Indictment, as modified pursuant to the said Decision, the Prosecutor requested an extension of that deadline. On the 8 December 2000, the Chamber granted the said request and set a deadline on the 19 December 2000. From that date, to the hearing the Defense's initial Motion on 21 February 2001, the Chamber notes that the Prosecutor has: (i) Failed to seek an extension of the deadline of 19 December 2000; (ii) Filed a document it has entitled the "Prosecutor's Filing in Response to the Trial Chamber II Decision on Defense Motion on Matters Arising from Trial Chamber Decisions and Preliminary Motion Based on Defects in the Form of the Indictment and Lack ofJurisdiction," on 4 January 2001, sixteen days past the deadline on 19 December 2000; (iii) Failed to comply with the Orders, at para. 46 (a) to (g), made in the Decision of 20 November 2000, with its document entitled "Prosecutor's Filing in Response to the Trial Chamber II Decision on Defense Motion on Matters

ICTR • 245 Arising from Trial Chamber Decisions and Preliminary Motion Based on Defects in the Form of the Indictment and Lack ofJurisdiction;" (iv) And only after being prompted by the Chamber at the hearing of 21 February 2001, the Prosecutor made a request to file a Motion requesting the Chamber to file the New Amended Indictment modified pursuant to the Order in the Decision of20 November 2000. (See Transcripts of21 February 2001 at page 50) 37. The Chamber finds that the attitude of the Prosecutor's Counsel in the matter, as described above, qualifies as a Misconduct of Counsel pursuant to Rule 46(A) of the Rules. Consequently, in accordance with the provisions of the said Rule, the Chamber hereby warns the Prosecution Counsel, in the present case that, were their conduct to remain "offensive" or be otherwise considered "abusive," or were they to "obstruct the proceedings" or act "contrary to the interests ofjustice," the Chamber would be obliged to impose sanctions pursuant to that Rule.

FOR ALL THESE REASONS, THE CHAMBER, I. WARNS the Prosecutor's Counsel in the matter that, were their conduct to remain "offensive," or otherwise "abusive" or were they to "obstruct the proceedings," or other wise act "contrary to the interests ofjustice," the Chamber would impose sanctions pursuant to Rule 46 of the Rules.

The Prosecutor \t. Nyiramasuhuko et al.-Decision on the Prosecutor's Allegations of Contempt, the Harmonization ofthe Witness Protection Measures and Warning tothe Prosecutor's Counsel, Cases Nos. ICTR-97-21, 97-29, 96-15, 96-8, July 10, 2001

The Prosecutor's Withdrawn Allegation thatJoseph Biroto Nzabirinda, Investigator of the Defence for Nsabimana, Inter Alia, was "a former member of the Interahamwe" 29. The Chamber has duly noted the Prosecution's withdrawal, in their Reply to the Defence Responses and at the hearing of 25 June 2001, of all allegations pertaining to Joseph Biroto Nzabirinda, member of the Defence for Accused Nsabimana, on the basis of new evidence proving that "an error" was made. 30. The Chamber notes that these allegations, and notably that of his being "a former member of the Interahamwe," may since have been echoed in the Rwandese and international Media, as contended by Counsel for Nsabimana, thus possibly jeopardising the security, if not the life, of the concerned Defence investigator, and thus possibly hampering the defence investigations. 31. The Chamber further notes in this regard that, although acting in good faith so as to urgently act on possible threats to the security of her witnesses, the Prosecutor should have acted more diligently in avoiding disclosure to the public at large of the identity of the members of the Defence teams concerned, so as to avoid such an unfortunate situation as that of Nsabimana's investigator. The Chamber accordingly finds that the

246 • Defense in International Criminal Proceedings attitude of the Prosecution qualifies in this regard as Misconduct of Counsel, within the meaning of Rule 46 (A) of the Rules. 32. Contrary to Counsel for Nsabimana's assertions in this regard, the Chamber did not address a Warning, pursuant to Rule 46 of the Rules, to the Prosecutor's Counsel in the present case during a hearing of 12 August 1999 when, according to the English authoritative version of the transcripts of that date, the Chamber only orally "admonish[ed] the Prosecutor" without having recourse to the specific procedure laid out under Rule 46 of the Rules. 33. The Chamber, having found the Prosecutor's Counsel to have conducted themselves improperly and recklessly in respect of the disclosure of the identity of Defence personnel allegedly in contempt of the Tribunal, consequently warns them in terms of Rule 46(A) of the Rules to desist from such conduct, which is contrary to the interests ofjustice. FOR THE ABOVE REASONS, THE TRIBUNAL

III. WARNS the Prosecutor's Counsel in the present proceedings, pursuant to Rule 46(A) of the Rules.

The Prosecutor \t. Kamuhanda-Decision on Kamuhanda's Motion for Disclosure ofWitness Statements and Sanction ofthe Prosecutor, Case No. ICTR-99-54A, August 29, 2002

20. The Chamber is of the opinion that, following the representations of the Parties, it appears that two persons, Witness ALA and Witness AG, were contacted by an OTP investigator after the Prosecution had received notice that those persons were Defence witnesses, without respecting the procedure laid out in Order 6 of the Decision for Protective Measures for Defence Witnesses of 21 March 2001. The Chamber finds that, given the fact that the Prosecution was on notice that those individuals were Defence witnesses, the Prosecution acted in violation of the Court's Order pertaining to the contacting of Defence witnesses. Moreover, the Chamber is not convinced by the reasons advanced by the Prosecution to justify the contacts made. The Chamber affirms that the letter and the spirit of Decision for Protective Measures for Defence Witnesses of 21 March 2001must be respected and decides, in terms of Rule 46(A) of the Rules, to warn the Prosecution to desist from a conduct that violated a Court's Order, which conduct is contrary to the interests ofjustice.

FOR THE ABOVE REASONS, THE TRIBUNAL

WARNS the Prosecution to desist from a conduct that violated a Court's Order, which conduct is contrary to the interests ofjustice pursuant to Rule 46(A) of the Rules.

ICTR • 247

The Prosecutor \t. Bicamumpaka-Decision on the Defense Motion on a Point of Law, Case No. ICTR-99-50, April 8,2003

19. Accordingly, the Trial Chamber finds that the issues raised by the Defence have been decided upon by this Tribunal, and this motion merely revisits points of law already settled. The Chamber also finds some merit in the Prosecution's submission that this Motion is a disguised attempt to appeal or at least revisit the "Decision on the Defence's Motion for Provisional Release pursuant to Rule 65 of the Rules" specifically rendered in this case by this Trial Chamber on 25 July 2001. FOR ALL THE ABOVE REASONS, THE TRIAL CHAMBER DISMISSES the Defence Motion in all respect. WARNS Counsel for the Defence against the filing of frivolous motions which are contrary to the interests ofjustice pursuant to Rule 46 of the Rules as it could attract sanctions such as the non-payment in whole or in part of fees associated with the Motion and/or costs thereof pursuant to Rule 73 (E) of the Rules.

5.3.3.3.

Rule 73 ofthe Rules of Procedure and Evidence

Because sanctions under Rule 73(F) have been ordered by Trial Chambers on a number of occasions, in the interest of saving space the following extracts focus only on relevant rulings of the Appeals Chamber.

The Prosecutor \t. Bagilishema-Decision on the Respondent's Motion for Extension of Deadlines, Case No. ICTR-95-1A, January 25, 2002

Considering the "Respondent's Motion for Supplementary Time-Limit" ("the Motion") filed on 22 January 2002 by Ignace Bagilishema ("the Respondent") which focussed on the problems he was encountering in forming a 4-man defence team as a result of the difficulties his Co-counsel was facing with the Registry in having his extra hours paid, and thus requesting the Appeals Chamber to grant a two-month extension of the deadline for filing a reply to the Appellant's Brief making a total of three months) reckoning from when the French version of said Brief was served on the Respondent and his Counsel, Considering that the Pre-Hearing Judge and the Appeals Chamber have already been seized of said Motion, both in the "Request [... J for a translation and for an extension of deadlines" filed on 31 October 2001 and in the "Motion for Review of the order of the President of the Appeals Chamber" filed on 12 December 2001; that in the latter Motion cited above, the Respondent further argues that the Defence is "encountering difficulties with the Registry in obtaining a renewal of working hours for his co-counsel;" that the said Motion is under review by the Appeals Chamber,

Considering that the Motion thus amounts to an abuse of process within the meaning of Rule 73 (E) of the Rules,

248 • Defense in International Criminal Proceedings For the foregoing reasons, Dismiss the Motion; Request the Registrar to ensure that payment is stayed with regard to the entire amount of fees charged with regard to the Motion and other related costs.

The Prosecutor \t. Barayagwiza-Decision (Interlocutory Appeal Against the August 27, 2001 Trial Chamber I Oral Decision), Case No. ICTR-99-52, February 1,2002

NOTING that, in the Appeal, the Appellant prayed the Appeals Chamber to seise the "legislator" of the Tribunal for the purpose of settling on a legislative basis the problem of what is a reasonable period for detention on remand but did not challenge the Impugned Decision in relation to the question of provisional release; CONSIDERING that the matters raised by the Appellant in the Appeal are not subject to interlocutory appeal; CONSIDERING in addition that the Appeal is frivolous and constitutes an abuse of process under Rule 73(E) of the Rules read with Rule 107 thereof; FOR THE FOREGOING REASONS, DISMISSES the appeal; DIRECTS the Registrar to retain payment of fees associated with the Appeal and costs thereof.

The Prosecutor \t. Semanza-Decision (Notice and Grounds of Interlocutory Appeal Against the Decision ofTrial Chamber III in "Decision on Defence Motion for Leave to Call Rejoinder Witnesses" and Stay of Proceedings), Case No. 97-20, June 4, 2002

Whereas the Appellant states that he is "dissatisfied" with the Impugned Decision, and whereas he requests the Appeals Chamber to set aside the impugned decision, allow him to call rejoinder witnesses to testify, and order a stay of the Trial proceedings as a matter of urgency; Whereas in its Response, the Prosecution contests the relief sought by the Appellant on the grounds that the Appeal is inadmissible and that the proceedings have already been adjourned until 17 June 2002; Whereas, moreover, the Prosecution requests the Appeals Chamber to rule that the appeal is frivolous, and that it constitutes an abuse of process pursuant to Rules 73(E) and 107 of the Rules, insofar as: (a) the Appeal makes no reference to the relevant provisions pursuant to which an interlocutory appeal may reasonably lie; and (b) the Appellant has not attempted to put forward any arguments to show why his Appeal should be admissible;

ICTR • 249 Considering that Articles 19 and 20 of the Statute, as well as Rules 5, 54 and 85 (A) (iv) of the Rules make no provision for the right to an interlocutory appeal in matters relating to the calling of rejoinder evidence, Considering that in the Impugned Decision, it was rightly noted that the Motion for Rejoinder witnesses was brought under Rule 73(A) of the Rules, and that Rule 73(B) of the Rules stipulates that decisions rendered on motions filed under Rule 73(A) are without interlocutory appeal, Considering that the Motion for Rejoinder Witnesses is not a preliminary motion within the meaning of Rule 72 of the Rules and that, in any event, the arguments advanced by the Appellant in this Motion or in his Notice of Appeal do not disclose an objection based on lack ofjurisdiction in the sense of Rules 72 (D) and 72 (H) of the Rules, Considering that an allegation of miscarriage ofjustice or the fact of being dissatisfied with a decision of the Trial Chamber does not, on its own, confer the right to appeal, Considering that the Appellant does not have the right to appeal in the present matter, Considering, incidentally, that the Appeal constitutes an abuse of process under Rules 73(E) and 107 of the Rules; For the foregoing reasons, Dismiss the Appeal; Orders the Registrar to withhold payment of all the fees associated with the Appeal and costs thereof.

Decision on Defense Objections to the Prosecution's Notice ofAppeal, July 25, 2003

BEING SEISED of the "Defence Objections to the Prosecutions Notice of Appeal," filed on 26 June 2003 ("Motion"), in which the Defence alleges inter alia that the Prosecution's Notice of Appeal is "speculative, ambiguous, and imprecise and does not conform to the requirement Rule 108 of the Rules (sic)" and should therefore be struck out;

BEING SEISED ALSO of the "Defence Application to Strick (sic) Out the Prosecution's Response to 'Defence Objections to the Prosecution's Notice of Appeal' filed on the 3 July 2003," filed on 7 July 2003 ("Application"), which alleges that the Response was filed outside of the time limit;

CONSIDERING that the arguments developed in the Motion are either incomprehensible, patently misleading, or relate to the substance of the appeal on the merits, and that comments relating to the substance of the appeal could be included in the Defence's Respondent's Brief in due course;

250 • Defense in International Criminal Proceedings FINDING that both the Motion and the Application are frivolous within the meaning of Rule 73 (F) of the Rules; FOR THE FOREGOING REASONS, DISMISSES the Motion and the Application and DIRECTS the Registrar, pursuant to Rule 73 (F) of the Rules, not to pay the Defence Counsel any fees or costs associated with the Motion or the Application.

The Prosecutor \t. Nteziryayo-Decision on Requests for Extension of Time, Case No.ICTR·97·

29, August 22,2003

BEING ALSO SEISED OF a "Rcqucte de Alphonse Nteziryayo contre 'Prosecutor's Response to Nteziryayo's demande de delais sur appel dujugement: Decision: in the matter of proceedings under Rule 15bis(D)' pour obtention prcalable de la version francaise de l'acte et de report prcalablc de delai" filed on 8 August 2003 ("Second Motion"), in which the Appellant submits inter alia that he is unable to understand the Prosecutor's Response as it was filed in English and wishes the Appeals Chamber to order the translation in French and the communication to the Appellant of the Prosecutor's Response and to grant him an extension of time to respond to it;

CONSIDERING that the Appellant specifies in his First Motion that his co-counsel "understands and speaks both languages" English and French, that the Appellant filed a Notice of Appeal against the Impugned Decision only available in English and a reply to the Prosecutor's Response to the Notice of Appeal, which was also only available in English, and that therefore he has not shown how his Co-Counsel could not help the Lead Counsel and the Appellant in understanding the Prosecutor's Response comprising of 7 paragraphs; FINDING that the Second Motion is frivolous within the meaning of Rule 73 (F) of the Rules; FOR THESE REASONS DISMISS the First and Second Motions but DIRECT the Registrar:

pursuant to Rule 73 (F) of the Rules, not to pay the Defence Counsel for the Appellant any fees or costs associated with the Second Motion.

ICTR • 251

The Prosecutor \t. Niyitegeka-Decision on the Appellant's Urgent Motion Concerning Defects in the Respondent's Brief, Case No. ICTR-96-14, February 25, 2004

BEING SEISED OF the "Appellants Extremely Urgent Motion Concerning Defects in Prosecutors Response" ("Urgent Motion") filed on 6 February 2004, in which the Appellant submits inter alia that the Appeals Chamber should reject the Respondent's brief as, in its Respondent's brief, the Prosecution "flagrantly defy the Appeals Chamber and intentionally violate the Practice Direction on Respondent's Brief, unilaterally deciding not to comply with mandatory Rule 5, which stipulates 'the statements and arguments must be set out and numbered in the same order as in the Appellants Brief"'; alternatively, the Appeals Chamber should order the Prosecution to re-file its Respondent's brief in compliance with Rule 5 of the Practice Direction on Formal Requirements for Appeals fromJudgement ("Practice Direction"); NOTING the "Prosecution Response to Appellants Extremely Urgent Motion Concerning Defects in Prosecutors Response" filed on 11 February 2004, in which the Prosecution submits that the Urgent Motion should be dismissed because the structure of the Respondent's brief complies with the requirement set out in the Practice Direction, because the manner in which the Appellant presented his arguments in the Appellant's brief made it impossible to precisely follow his presentation, and because, as a result, the Prosecution attempted to make sense of the structure of the argument while maintaining reference to the arguments as set out and numbered in the Appellant' s brief;

CONSIDERING that, by responding to the Appellant's grounds of appeal in a sequence different from that adopted in the Appellant's brief, the Prosecution attempted to present its response to the Appellant's grounds of appeal from the point of view of its case but without disturbing the numbering scheme used in the Appellant's brief; CONSIDERING that this approach, consisting in avoiding unnecessary repetitions and presenting the Prosecution's case in a structured way, does not violate the object and purpose of paragraph 5 of the Practice Direction; FOR THE FOREGOING REASONS, DISMISS the Urgent Motion and FIND that it is frivolous within the meaning of Rule 73 (F) of the Rules of Procedure and Evidence; DIRECT the Registrar, pursuant to Rule 73(F) of the Rules of Procedure and Evidence, not to pay the Defence Counsel any fees or costs associated with the Urgent Motion.

The Prosecutor \t. Karemera et al.-Decision on Counsel's Appeal from Rule 73(F) Decisions, Case No. ICTR-98-44, June 9, 2004

BEING SEISED OF the "Appeal of Lead Counsel from Decisions of Trial Chamber Imposing Sanctions Pursuant to Rule 73 (F)" filed by Peter Robinson, counsel for Joseph Nzirorera ("Mr. Robinson") on 3 February 2004 ("Motion");

252 • Defense in International Criminal Proceedings

NOTING that Mr. Robinson seeks review by the Appeals Chamber of the sanctions imposed on him pursuant to Rule 73(F) of the Rules of Procedure and Evidence ("Rules"), in the following decisions: (i) "Decision on the Defence Motion to Order the Government of Rwanda to Show Cause" issued by Judge Williams, designated by Trial Chamber III pursuant to Rule 73(A), on 4 September 2003 ("4 September Decision"); (ii) "Decision on the Defence Request for Leave to Interview Potential Prosecution Witnesses Jean Kambanda, Georges Ruggiu and Omar Serushago," issued by Judge Vaz, designated by Trial Chamber III pursuant to Rule 73(A), on 29 September 2003 ("29 September Decision"); and (iii) "Decision on the Defence Motion for Disclosure of Exculpatory Evidence," issued by Trial Chamber IlIon 7 October 2003 ("7 October Decision") (together "Impugned Decisions"); NOTING that the 4 and 29 September Decisions pursuant to Rule 73(F) of the Rules sanctioned Mr. Robinson by directing the Registry not to pay any fees or costs associated with the related motions and that the 7 October Decision sanctioned Mr. Robinson by directing the Registry to deny payment of half of the costs associated with the related motion; NOTING Mr. Robinson's request for certification to appeal the 4 September Decision, which was denied by Trial Chamber IlIon 23 September 2003; NOTING Mr. Robinson's requests for reconsideration and for certification to appeal the 29 September Decision, which were denied by Trial Chamber IlIon 10 and 20 October 2003, respectively; NOTING Mr. Robinson's request for review by the President of the International Tribunal of the Impugned Decisions, which was denied on 26 January 2004 on the ground that "neither the Statute nor the Rules confer on the President the competence to review any decision handed down by a Chamber"; NOTING that in the Motion, Mr. Robinson submits, inter alia, that (i) the imposition of sanctions is a serious matter with repercussions which go beyond the imposition of a monetary penalty as what is at stake is his professional reputation and his status at the California Bar and that (ii) "principles of fairness" require the Appeals Chamber, as it did in the Vujin Contempt Appeal, to exercise its inherent power to review the imposition of sanctions imposed on him which, as in the Vujin Contempt Appeal, are of a monetary nature; CONSIDERING that neither the Statute nor the Rules provide for a right of appeal from sanctions imposed pursuant to Rule 73(F) of the Rules; CONSIDERING that a Rule 73(F) sanction is not a criminal sanction and therefore, contrary to what is submitted by Mr. Robinson, the case at hand bears no useful parallel to the Vujin Contempt Appeal; FINDING that, for the foregoing reasons, there is no basis for granting a right of appeal in the present case; HEREBY DISMISSES the Motion.

ICTR • 253

Decision on Interlocutory Appeals Regarding Participation of Ad Litem Judges, June 11, 2004

BEING SEISED OF the "Appeal of decision relative aux requetes de Karemera et Nzirorera aux fins d'invalidation de l'acte d'accusation pour vices de procedure et de forme," filed by counsel for Joseph Nzirorera on 13 April 2004 and the "Appel de la defense d'Edouard Karemera contre la decision de la Chambre de l ere Instance III du 29 mars 2004 relative aux requetes de Karemera et Nzirorera aux fins d'invalidation de l'acte d'accusation pour vices de procedure et de forme," filed by counsel for Edouard Karemera on 14 April 2004 ("Appeals" and "Appellants" respectively), in which the Appellants submit inter alia that

• •

and that the Appeals Chamber should reverse the imposition of sanctions against counsel for Nzirorera, which were imposed by the Trial Chamber pursuant to Rule 73 (F) of the Rules;

CONSIDERING also that, although Trial Chambers should use the power to impose sanctions cautiously, a decision to impose monetary sanctions on counsel for frivolous motions or abuse of process pursuant to Rule 73 (F) of the Rules is not subject to appeal under the Statute of the International Tribunal or the Rules and that, in any event, the certification granted by the Trial Chamber in this case does not cover an appeal from the decision to impose such sanctions; FOR THE FOREGOING REASONS, HEREBY DISMISSES the Appeals.

5.3.3.4.

Rule 77 of the Rules of Procedure and Evidence

The Prosecutor \t. Nahimana-Decision (Interlocutory Appeal of the Decision ofTrial Chamber I Rendered on July5, 2001), Case No. ICTR·96·11, February 1,2001

NOTING the Notice of Appeal filed by Ferdinand Nahimana on 11 July 2001 ("the Appeal" and "the Appellant" respectively) against the "Decision on the Defence motion relating to violation of the witness protection order by the Prosecutor" rendered by Trial Chamber I on 5 July 2001 ("the Impugned Decision"), which rejected the "Rcqucte aux fins de constatation des violations commises par le Bureau du Procureur des mesures de protection des temoins a decharge ordonnees par le Tribunal," filed on 26 June 2001 ("the Motion");

NOTING that in his Motion, the Appellant divided his allegations into two groups:

254 • Defense in International Criminal Proceedings

(1) alleged violations by the Prosecutor of the "Decision relative a la requete de la defense aux fins d'obtenir des mesures de protection de temoins a dechargc'' rendered by Trial Chamber I on 25 February 2000 (the "Decision of 25 February 2000"); (2) alleged intimidation of Defence witnesses; and asked the Trial Chamber to: (a) find that the Office of the Prosecutor is in violation of protective measures for Defence witnesses prescribed by the Decision of 25 February 2000; (b) find and rule that the said violation constitutes a contempt of the Tribunal pursuant to the provisions of Rule 77 (C) of the Rules of Procedure and Evidence (the "Rules"); and (c) apply the sanctions provided under Rule 77 of the Rules;

CONSIDERING that in the Impugned Decision, Trial Chamber I was right in finding that the witnesses in question were not protected under the Decision of 25 February 2000; CONSIDERING that, in any event, this part of the Impugned Decision cannot be subject to interlocutory appeal on the basis of Rule 73 which excludes such appeals; NOTING that the Impugned Decision found also that the Prosecution acted within its powers when it instituted an investigation into the alibi and caused an interview of the witnesses to be undertaken by an independent examining judge in the absence of Counsel for the Defence and the Prosecution; CONSIDERING that the Impugned Decision falls to be construed as rejecting the Appellant's contention that there was intimidation contrary to Rule 77 (C) of the Rules; CONSIDERING that the question asked by the examining judge at the request of the Prosecutor were legitimate as going to credibility and that a question which is otherwise legitimate does not become intimidatory within the meaning of Rule 77 (C) of the Rules by reason of any apprehension which it induces in the witness; CONSIDERING therefore that the Impugned Decision was correct in rejecting the Appellant's contention that there was intimidation contrary to Rule 77 (C) of the Rules;

FOR THESE REASONS, DISMISSES the Appeal.

The Prosecutor \t. Nyiramasuhuko et al.-Decision on the Prosecutor's Allegations of Contempt, the Harmonization of theWitness Protection Measures and Warning to the Prosecutor's Counsel, Cases Nos. ICTR-97-21, 97-29, 96-15, 96-8, July10, 2001

BEING SEIZED, pursuant to Rule 73 of the Rules, of:

ICTR • 255 (i) The "Prosecutor's Extremely Urgent Motion for an Investigation of Contempt of the Tribunal" filed on 14June 2001;

HAVING DELIBERATED, (a) The Prosecutor's Request for Investigations on Allegations of Contempt 1. The Prosecutor alleges that, following disclosures in respect of several of her actual or potential witnesses, on or about 1 to 6 June 2001 in the Butare prefecture, four members of the Defence team for Accused Kanyabashi approached four Prosecution witnesses, at least two of whom will or could be called to testify in the Butare proceedings, and attempted to "mak[e] them change their mind not to testify for the Prosecution." Among these four persons were "Boubou," who appeared to be the leader of the Defence team; a "white man," the alleged son-in-law of Accused Kanyabashi, who, together with the said Boubou, falsely presented himself as a Tribunal investigator; and an interpreter identified, by a witness to whom the pseudonym RO was given, as a Rwandan national, former member of the Interahamwe and neighbour of Kanyabashi's wife, namedJoseph Biroto Nzabirinda. Furthermore, the Prosecutor contends that, on another day, on or about 1 to 6 June 2001, the said Defence representatives falsely represented themselves as Tribunal investigators to the authorities of the Ngoma Commune Office in the said prefecture. These individuals allegedly told the said Commune authorities that the Prefect had given them permission to verify information in a file, which was accordingly released to them. One of the Defence representatives thereupon allegedly tried to steal a document from the Commune Office referring to the particulars of a Prosecution witness. He was, however, forced to return the said document to these authorities, who had seen him take it. 2. According to the Prosecution, these acts amount to Misconduct of Counsel pursuant to Rules 46 of the Rules and Contempt of the Tribunal pursuant to Rule 77 (C) of the Rules for having: (i) Knowingly and falsely presented themselves to third parties as 'ICTR investigators,' without specifying that they were not acting on behalf of the Office of the Prosecutor, and with the intention of using such authority and ascendant on the said third parties; (ii) Intimidated witnesses; and, (iii) Attempted to tamper with evidence. 3. The Chamber agrees with the Prosecutor that investigations in respect of such conduct could fall within the ambit of Rule 54 of the Rules, according to which" [a] t the request of either party or proprio motu, aJudge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial," notably in light of the fundamental necessity to protect the safety and security of witnesses. 5. However, the Chamber bears in mind the gravity of such allegations and the fact that, should the Chamber decide to proceed with the Prosecutor's request for investigations on these issues, a trial would commence within the trial, at the conclusion of which these allegations could result, if proven, notably, in a verdict of Contempt of the Tribunal

256 • Defense in International Criminal Proceedings and in the imposition of "a fine (... ) or a term of imprisonment (... ) ," pursuant to Rule 77 (C) of the Rules. 6. For this reason, and bearing in mind the principle of the presumption of innocence, any allegations of contempt are to be handled with due care. Consequently, the Prosecution is to justify its request for investigations by prima facie satisfying the Trial Chamber that there are reasonable grounds to believe that contemptuous conduct may have taken place, which may be attributable to the alleged contemnor.

7. The Chamber notes in this regard that the requirement of prima facie proof of allegations of contempt is supported by Decisions andJudgements rendered in this matter by the International Criminal Tribunal for the former Yugoslavia (See notably the "Scheduling Order in the Matter of Allegations against Accused Milan Simic and his Counsel," The Prosecutor v. Blagoje Simic et aI., 7 July 1999, in which the IClY Trial Chamber dismissed allegations of contempt made by the Prosecutor against Counsel Pantelic, prior to his being "called upon (... ) to respond to the allegations" and prior to the appearance of any witnesses, on the grounds that "it does not have good reason to believe that Mr. Igor Pantelic may be in contempt of the International Tribunal"; See also the 'Judgment on Appeal by Anto Nobilo Against Finding of Contempt," The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1, 30 May 2001 (the "Aleksovski Appeal Judgment on Contempt"), where, at para. 56, the Appeals Chamber dwells on "the danger of a Chamber [acting proprio motu] being both the prosecutor and the judge in relation to a charge of contempt, and the possibility in such a case that the ordinary procedures and protections for the parties are overlooked," thereby reaffirming the need, when allegations of contempt are raised, "to procee [d] by way of an indictment, with the prosecution bearing the onus of establishing the charge" (our emphasis)). 8. With respect to the present allegations, the Chamber notes: (i) That they lack precision, notably: (1) in respect of the persons allegedly contacted by the Defence representatives and of their being witnesses or not to be called during the joint trial by the Prosecutor, save for Witness RO who is included in the Prosecutor's list of witnesses filed on 30 April 2001; (2) in respect of how many and which of the 4 witnesses contacted were supposedly intimidated; (3) in respect of the relevant dates when such conduct allegedly took place; (4) in respect of the identity and actual status of the individuals having contacted the said persons. The Chamber particularly notes in this regard that the Prosecutor does not "formulat] e] at [this] early stage the nature of the charge with the precision expected of an indictment," as expected for allegations of contempt (See, the Aleksovski Appeal Judgment on Contempt, para. 56); (ii) That, further, to support her allegations, the Prosecutor adduces only hearsay evidence, in the form of an Interoffice Memorandum dated 6June 2001 signed by an Associate Investigator of the Office of the Prosecutor (the "OTP"), and double-hearsay evidence, in the form of an affidavit from a Coordinator of the OTP, which affidavit relies upon the information contained in the above referenced Memorandum of 6 June 2001; The Chamber particularly notes that neither have sworn statements emanating from the witnesses who were allegedly approached been produced, nor any offi-

ICTR • 257 cial statement emanating from the authorities of the Ngoma Commune Office referring to the allegations of tampering with evidence held in their archives. (iii) That, lastly, the Prosecutor's withdrawal, in her Reply to the Defence Responses, of the accusations againstJoseph Biroto Nzabirinda, a member of the Defence for Accused Nsabimana, who was singled out, notably as being "a former member of the Interahamwe," on the sole ground that" [s] ince the filing of her Extremely Urgent Motion, she has new information that there was an error [with respect to the latter] ," without elaborating on the nature of this error or its scope, casts substantial doubt on the overall reliability of the allegations made. 9. For these reasons, the Chamber is not satisfied that the contemptuous conduct alleged may have taken place, and/or may be attributed to the Defence teams concerned, so as to justify an order for investigations. The Prosecutor's request in this regard, at para. 30 (B) of her Motion, is therefore dismissed.

12. This being said, the Chamber, recalling the gravity of allegations of contempt, especially in respect of witnesses, wishes to state that, should any such allegations be brought in the future by a party, this must be done on the basis of properly prepared and substantiated submissions.

The Prosecutor \t. E. Ntakirutimana and G. Ntakirutimana-Decision on Prosecution Motion for Contempt ofCourt and on Two Defense Motions for Disclosure, Cases Nos.ICTR-96-10 and 9617, July 16, 2001

Prosecution Motion for Contempt of Court Submissions of the Parties

5. The Prosecution requests the Chamber to hold the Defence, in particular the two accused persons, in contempt of the Chamber's order of 22 August 2000 relating to witness protection. As a consequence of this alleged violation, the Chamber is requested to vary its order concerning the date for disclosure of the list of Prosecution witnesses, from 15 August to 17 September 2001. Moreover, the Prosecution requests the Chamber to grant it leave during trial to disclose the name of a witness scheduled to testify on a particular date one day before that date instead of weekly witnesses disclosures, which is the normal practice. Finally, the Chamber is requested to grant any other relief this motion may warrant. The Prosecution argues that the Chamber has inherentjurisdiction to punish any person for contempt of its Rules and orders. Reference is made to common law jurisprudence and doctrine. 6. The reason for the Prosecution's requests is that in the appeals proceedings in the case of The Prosecutor v. Alfred Musema Defence Counsel on 19 April 2001 filed a motion under Rule 68 requesting the Prosecution to disclose exculpatory material, namely the statement of Witness II in the Ntakirutimana case. That statement was enclosed to the appellant's motion. According to the motion the appellant had received

258 • Defense in International Criminal Proceedings the statement from another detainee at the UN Detention Facility, who had received it as part of his case papers. According to the Prosecution it is clear that this referred to one or both Accused in the present case. The Prosecution argues that the disclosure of the identity of Witness II to Alfred Musema was wilful, deliberate and an intentional and flagrant violation of the Chamber's witness protection order.

7. In its motion of 8 June 2001 (paras. 1-6) the Defence responds that a witness statement could find its way into the hands of any detainee in a large number of ways. Any person possessing a witness statement which the Prosecution wrongfully withheld has a duty to make the statement available to the convicted person. The Chamber's witness protection order was not intended to protect the Prosecutor from the failure to do her duty. There is no claim by the Prosecution that any witness has been placed in danger as a result of the alleged acts of the Defence. The Defence also points out that the Prosecution does not allege that any disclosure has occurred beyond Alfred Musema and his counsel. 8. The Defence opposes the Prosecution's motion for contempt as an attempt to deny the defendants their rights to prepare and present a defence by withholding Prosecution witness statements and reports until the eve of their testimony when it is too late for the Defence to investigate and prepare to cross-examine the witness. The motion should be denied without further imposition on the time and resources of the Tribunal and the parties. Deliberations

9. The Chamber notes that Witness II's statement of 28 January 2000 falls under the decision for witness protection of 22 August 2000. The available information indicates that the statement, which was appended to the motion in the appeals proceedings in the Musema case, was provided by one of the accused in the present case. Reference is made in particular to the information given by Counsel for Musema in his motion to the Appeals Chamber. The handing over of the statement in its non-redacted form amounts to a breach of para. 4 of the witness protection order. The Chamber stresses the necessity to observe applicable provisions concerning witness protection.

10. The next question is whether the breach is serious enough to be tantamount to contempt. The statement of Witness II is claimed by the Defence for Musema to be exculpatory under Rule 68 of the Rules. Under that provision, the Prosecution must disclose exculpatory evidence to the Defence concerned. In a motion of 5 April 2001 the Prosecution requested variation of witness protection measures for Witness II and expressed the view that the said statement might fall within the scope of Rule 68. The Chamber granted the motion on 6 April 2001 and stated that "the Prosecution is permitted to disclose the non-redacted statement of prosecution Witness II to Mr Steven Kay QC, for the purposes of the appeal in Alfred Musema v. The Prosecutor." Therefore, following the breach of the witness protection order the statement has later been communicated to the Defence of Alfred Musema as a consequence of the Prosecution's own interpretation of Rule 68. There is no evidence that the statement has been made available to any other than Alfred Musema and his Counsel. 11. The Chamber recalls that already during the Status Conference of 2 April 2001 the Prosecution alleged that the witness statement had been disclosed by the Ntakirutimana team to Counsel in the Musema case and voiced strong objections to providing the Defence with the final list of witnesses at an early stage. The Chamber then ordered

ICTR • 259 that the list should be disclosed on 15 August 2001. There is no new information available at the present stage which should lead to a variation of the Chamber's order of 2 April 2001. 12. The handing over of the witness statement to Alfred Musema occurred in a specific context, which was closely connected with Rule 68. This episode does not give a sufficient basis to fear that the two accused persons or members of the Defence team will disregard the protection order in the future. Therefore, the Chamber does not grant the Prosecution's request to postpone the date for disclosure until 17 September 2001, or vary the normal disclosure procedure during the trial. Such measures, if granted, would be disproportionate and seriously curtail the right of the Defence to have adequate time and facilities for preparation.

FOR ALL THE ABOVE REASONS THE CHAMBER DISMISSES the Prosecution's motion for contempt of court and recalls that the list of witnesses the Prosecution intends to call at trial shall be disclosed by Wednesday 15 August 2001;

The Prosecutor \t. Kajelijeli-Decision on Kajelijeli's Motion to Hold Members ofthe Office of the Prosecutor in Contempt ofthe Tribunal, Case No. ICTR-98-44A, November 15,2002

BEING SEIZED of: i. The Defence "Extremely Urgent Motion to Hold Responsible Members of the ICTR Office of the Prosecutor's Staff in Contempt of the Tribunal Pursuant to Rule 77 (C) of the Rules of Procedure and Evidence," filed on 10 October 2002 (the "Defence Motion");

SUBMISSIONS OF THE PARTIES 1. The Defence request the Chamber to hold responsible staff members of the Office of the Prosecutor in Contempt of the Tribunal, pursuant to Rule 77 (C) of the Rules. In the alternative, the Defence request an evidentiary hearing on the issues. The Defence also request an interim order to transfer all detained witnesses for Kajelijeli to Arusha. 2. The Parties are in agreement that on 23 September 2002, Witness RGM was interviewed by a team of Prosecution investigators in Ruhengeri Prison, Rwanda, and that this interview was conducted in violation of the Chamber's Order for Protective Measures for Defence Witnesses which prescribes that the Prosecution notify the Defence prior to contacting one of their protected witnesses. 3. The Defence assert that the Prosecution were aware as early as 30 June 2002 that Witness RGM is an extremely vulnerable Defence Witness who has confessed to Genocide in Rwanda, and who has been subject to threats and intimidation to impli-

260 • Defense in International Criminal Proceedings cate the Accused, and who had previously refused to succumb to these threats. They imply that there exists collusion between the Prosecution and the Rwandan First Deputy Prosecutor Mr. Rukira Wa Muhizi in the visit to the prison by Prosecution Investigators in order to interview Witness RGM. The Prosecution respond that Defence allegations to the effect that staff of the Office of the Prosecutor conspired with Mr. Rukira Wa Muhizi are erroneous and unfounded. 4. The Prosecution claim that on 23 September 2002 their Investigators were unaware that their interviewee was a protected witness for the Defence for Kajelijeli, and that their interviewee stated that he was willing to testify for the Prosecution. Given these circumstances, they claim that the Prosecution Investigators acted in good faith, and lacked the necessary mens rea to be guilty of acting in Contempt of an Order of the Chamber. 5. The Prosecution claim that the breach of the Witness Protection Order was innocently made by their investigators. They provide an affidavit of the Lead Investigator from the investigation in question in support of their contention. The Defence contest the Prosecution's submission that the interview with Witness RGM took place in good faith. They provide an affidavit of Witness RGM in support of their contention. 6. The Defence asserts that the statement taken from Witness RGM was illegally obtained, threatens the integrity of the Tribunal, and should be excluded pursuant to Rule 95 of the Rules. The Prosecution claim that the statement was obtained legally and that there are no grounds for exclusion. DELIBERATIONS

Contempt allegation

8. Rule 77 (C) of the Rules states that: Any person who attempts to interfere with or intimidate a witness may be found guilty of contempt and sentenced in accordance with Sub-Rule (A). 9. The Chamber recalls its reasoning in its "Decision on the Prosecutor's Further Allegations of Contempt" where it found that: [C]ontempt is by its very nature a criminal charge, for which an individual may be sentenced to a fine or a term of imprisonment, if found guilty (Rule 77 (A) of the Rules). As such, the party alleging that such conduct occurred should satisfy the Chamber that the alleged contemnor(s) acted with an intention to commit the crime of contempt [... ] In this sense, Rule 77(C) of the Rules, which refers to interference with a witness as contempt, is to be construed as prohibiting only undue interference with a witness. Undue interference with the prosecution witnesses who were already contacted could have occurred, in the present case, if the individuals concerned acted in knowing and wilful violation of a witness protection order of this court, or if they tried to intimidate witnesses, as specified under Rule 77 (C) of the Rules, or, notably, if they tried to induce them to change their testimony, as the Prosecutor alleges in the present case. 10. In the present case, the Chamber must decide whether or not the Defence has made out a prima facie showing of intention by the Prosecution to violate the Witness Protection Order, or whether the conduct of the Prosecution disparages the dignity of

ICTR • 261 the Chamber. If it were so to find, then an evidentiary hearing for contempt charges would be necessary. 11. The Chamber has considered the submissions of the Parties, together with the affidavits attached thereto, and finds that the Defence have failed to show that the Prosecution Investigators deliberately violated the Witness Protection Order. 12. As regards the Defence's further suggestion of collusion between the Prosecution and the Rwandan Authorities in order to change the testimony of Witness RGM, the Chamber finds these allegations to be unsubstantiated. Statement of Witness RGM taken by the Prosecution

13. Rule 95 of the Rules states that: No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings. 14. The Chamber takes very seriously matters that affect witnesses protected by an Order of the Chamber. The Parties are in agreement that the Prosecution violated the Witness Protection Order. The Chamber has already found that the Defence have failed to make a prima facie showing of contempt requiring an evidentiary hearing. However such violation, whether intentional or not, cannot be tolerated by the Chamber. The integrity of the proceedings is protected by the Chamber by means of the Orders that it issues. Violation of the procedure laid down by the Chamber in an Order with regard to the formalities of contacting protected witnesses for the other side is antithetical to the integrity of, and causes serious damage to, the proceedings. 15. In the circumstances of this case, the Chamber finds that it must remedy the situation by excluding the statement taken by the Prosecutor. This finding is made without prejudice to the statement's admissibility in any other case. FOR THE ABOVE REASONS, THE TRIBUNAL GRANTS the Defence Motion in part, and excludes the statement taken by the Prosecution from Witness RGM on 23 September 2002 from all proceedings affecting the Accused before this Tribunal, pursuant to Rule 95 of the Rules. DENIES the Defence Motion in all other respects.

5.3.3.5.

Article 16 ofthe Directive on the Assignment of Defense Counsel

This general provision sets out the individual instruments which govern counsel in the performance of their duties at the Tribunal. No jurisprudence has developed under this provision, as such.

262 • Defense in International Criminal Proceedings

5.3.3.6.

Article 19of the Directive on the Assignment of Defense Counsel

The Prosecutor \t. Nzirorera-The President's Decision on Review of the Decision of the Registrar Withdrawing Mr. Andrew McCartan as Lead Counsel of the Accused Joseph Nzirorera, Case No. ICTR-98-44, May 13, 2002

(viii) While the Rules made under the authority of the Statute should be considered as having priority over Directives made under the Rules, Rule 46(D) is not expressed in mandatory terms, but is permissive. The Registrar may report the matter but is not obliged to do so. Thus both Rule 46(D) of the Rules and Article 19(A) (iii) give the Registrar a discretion as to how to proceed in the event of a finding of serious breach of the Code of Professional Conduct. (ix) If the Registrar chooses to proceed under Article 19 of the Directive, his decision may be subject to review by the President by virtue of the provisions of Rules 19 and 33(A) of the rules of Procedure and evidence set out above. By virtue of these Rules, the President exercises authority and supervision over the Registrar.

5.3.3.7.

Code of Professional Conduct for Defence Counsel

The Prosecutor \t. Nyiramasuhuko et al.-Decision on the Prosecutor's Allegations of Contempt, the Harmonisation of theWitness Protection Measures and Warning to the Prosecutor's Counsel, Case Nos. ICTR-97-21, 97-29, 96-15, 96-8, July10, 2001

(c) The Prosecutor's Allegations of a Conflict of Interests 20. The Prosecutor contends that one of the four Defence team members alleged to have been in contempt is Kanyabashi's son-in-law. According to her, such a personal relationship between a member of his Defence team and the Accused may give rise to a conflict of interest, pursuant to Article 9(3) (c) (ii) of the Code of Conduct, according to which "( ... ) the Counsel's professional judgement on behalf of the client will be, or may reasonably be expected to be, adversely affected by (... ) the Counsel's own (... ) personal interests (... )." The Prosecutor asserts that there is no advisement of the Accused or written waiver of a conflict of interest. 21. The Chamber notes in this respect that since Lawrence Morgan, according to his affidavit produced by Counsel for Kanyabashi, clearly mentioned on his application form the fact that he was married to Maric-josce Uwimana, daughter of Joseph Kanyabashi, such a personal relationship must not have been considered by the Registrar of the Tribunal as giving rise, per se, to a conflict of interest. 22. Whatever the case may be, the Chamber notes that Lawrence Morgan solemnly declares in the said affidavit that he was a Defence investigator for Kanyabashi for the sole period of 6 December 2000 to 5 March 2001 and that his assignment as a member of the Defence for the Accused ended on 6 March 2001. Since any possible conflict of interests thereafter ceased to exist, the Chamber denies the corresponding Prosecutor's prayers for the following orders:

ICTR • 263 (i) "[T] hat each member of the Defence team of Kanyabashi, and persons in the employ of the Defence, submit sworn affidavits in this matter, an in particular about all of the allegations above, including whether or not any representation was made as to being an official staff member of the Tribunal and/or being the son-in-law of Kanyabashi" (para. 30(E) of her Motion); (ii) "[T] hat each member of the Defence team of Kanyabashi, and persons in the employ of the Defence, submit sworn affidavits to attest to the fact that any member of the Defence team is or is not in any way related, including by marriage, to Kanyabashi" (para. 30 (F) of her Motion); (iii) "[F] or an affidavit of advisement of client of potential conflict of interest if any member of the Defence team, or person in the employ of the Defence, is in any way related, including by marriage, to Kanyabashi" (para. 30 (K) of her Motion); (iv) "[I]f appropriate, that Kanyabashi submit to the Trial Chamber a statement that he was advised by Counsel as to a potential conflict of interest and written waiver of any potential conflict of interest, if a member of the Defence team or person in the employ of the Defence, is in any way related to Kanyabashi, including by marriage" (para. 30 (L) of her Motion). 23. The Chamber further notes that these matters could be addressed administratively by the Registry.

The Prosecutor \t. Nzirorera-The President's Decision on Review ofthe Decision ofthe Registrar Withdrawing Mr. Andrew McCartan as Lead Counsel ofthe Accused Joseph Nzirorera, Case No. ICTR-98-44, May 13, 2002

HAVING RECEIVED an undated application from Mr. Andrew McCartan, received in my office on 1 March 2002, appealing the Registrar's decision of 5 February 2002, which discharged the said Mr. Andrew McCartan as Lead Counsel for the accused;

AND HAVING CONSIDERED the allegations forming the basis of the Deputy-Registrar's Decision as follows: (A)

(i) The first of the two reasons given in the Decision of the Registrar for making of the orders was that Counsel had inflated his bills for October and November 2000. The evidence put forward concerning this allegation is three-fold: first that Counsel asked his Legal Assistant to maximize his fees for November 2000 in a letter to her dated 17 December 2000. In the letter, Mr. McCartan stated that he enclosed a draft of his fees for that month and he asked the Legal Assistant to make alterations to the draft as she considered necessary to maximize payment.

264 • Defense in International Criminal Proceedings (ii) The second evidential basis for the finding of fee-inflation is the assertions of the Legal Assistant, Aurea Mukangabo, about what Mr. McCartan asked her to do in relation to the fees for October and November 2000. (iii) The third evidential basis for this finding is an analysis of the relevant Timesheets and Fee Statements submitted by Mr. McCartan to the Registry and those submitted by the Legal Assistant.

(B)

(i) The second of the two reasons given in the decision of the Registrar for the making of the orders was that Counsel "... did provide his Legal Assistant with pre-signed blank forms for submission and reimbursement of expenses." (a) The Registry asserts that by the same letter dated 17 December 2000, Mr. McCartan recorded his sending to the Legal Assistant of "some signed blank sheets of paper to facilitate approval of your fees and reimbursements." (b) Mr. McCartan's explanation in his letter to the Registry of 31 May 2001 was that he sent the blank forms to the Legal Assistant for her to complete the forms and fax them back to him for checking before submission to the Tribunal. Mr. McCartan did not on this or any other occasion explain why the forms had been pre-signed. On 23 October 2001, the Registry asked Counsel about the use to which the two blank forms had been put. Mr. McCartan replied on 29 October 2001 and, without stating expressly that the blank forms were Work Programmes, asserted that the Legal Assistant "... did not submit any Programme de Travail herself at any time after 17.12.00 using the two blanks. All of her Programme de Travails were submitted by me either on her behalf or via my office, authorized personally by me." After further correspondence on other allegations, the Registry acknowledged receipt of that letter and appears to have assumed, perhaps based on a literal interpretation of the 17 December 2000 letter, that the blank documents were other than work schedules. The Registry wrote to Mr. McCartan on 8 November 2001 to the effect that Counsel had not addressed the issue of blank documents and it assumed from Counsel's letter there were two sets of blank documents involved. On 9 November 2001, Mr. McCartan explained in a letter that he had only sent blank work schedules and that no other blank documents were sent. He further states that the blanks were never used. (c) Although the submission of blank forms was given as a reason for the Decision of the Deputy Registrar, the Response of the Registry does not deal directly with the issue. Paragraph 7 of the Response recites the relevant contents of the 17 December 2000 letter as providing to the Legal Assistant of "... pre-signed blank forms for payment and instructing her to alter his November 2000 draft statements of fees as she considers necessary in order to maximize the payment. This information of dishonesty was forwarded to Mr McCartan for his comments." In its account of what happened, the Registry submission refers to the letter from the Registry dated 23 October 2001, asking Mr. McCartan to answer certain questions

ICTR • 265 relating to the 17 December 2000 letter. The Registry submission then states that: "On 25 October 2001, Mr. McCartan replied to the Registry's letter in which he avoided answering all the questions put to him on 23 October 2000, with an exception to question number 4 relating to certain payments to the legal assistant. The Registry's conclusion was that Mr. McCartan was being evasive." (d) However, reference to the letter of 25 October 2001 from Mr. McCartan shows that it is not a reply to the letter from the Registry but a reply to a fax of a different date. Reference to the letter of 29 October 2001 from Mr. McCartan shows that this letter was the reply to the Registry enquiry of 23 October 2001. (e) The Registry's interpretation of the exchange of correspondence on the subject of the nature of the blank forms is that Mr. McCartan gave two contradictory explanations of what the forms were. In the 17 December 2000 letter and a letter on 31 May 2001, Counsel appeared to be referring to documents that could be used for submission of requests for payments for the Legal Assistant. In other letters, he described them as Work Schedules. The Registry's Response appears to interpret the blank forms as blanks for the submission of Mr. McCartan's fee and expense claims. However, the original letter that started the speculation, the letter of 17 December 2000, stated: "]e joinds aussi, quelquel feuilles de papier signee en blanc pour faciliter les approuvals de tes honoraires et remboursements." ("I enclose also some signed blank sheets of paper to assist in the approval of your fees and expenses." Emphasis is added in French and English.) (f) From Counsel's correspondence, correspondence from the Legal Assistant, and from internal evidence the Registry was entitled to conclude that in addition to the blank forms referred to in the letter of 17 December 2000, Mr. McCartan had sent initialed time sheets that were in part blank. However, the Registry should have put its analysis of the contradictions in correspondence and its conclusions to Mr. McCartan for comment and rebuttal. There is no documentary evidence that the Registry did this. However, for the purposes of the Review, the Registrar's full submissions were forwarded by my office to Mr. McCartan for his response but no response was made. (g) The passing of 'signed' blank forms, of whatever nature, to a team member is said by the Registry to be a breach of Articles 5 and/or 11 of the Code of Professional Conduct for Defence Counsel. The Articles state:

Article 5 Competence and Independence In providing representation to a client, Counsel must: (a)

Act with competence, dignity, skill, care, honesty and loyalty;

(b) Exercise independent professional judgement and render open and honest advice;

266 • Defense in International Criminal Proceedings (c) Never be influenced by improper or patently dishonest behaviour on the part of a client; (d) Preserve their own integrity and that of the legal profession as a whole; (e) Never permit their independence, integrity and standards to be compromised by external pressures.

Article 11 Accounting for time Counsel should account in good faith for the time spent working on a case and maintain and preserve detailed records of time spent. Counsel is under a duty to set his bills and fees with moderation. (h) The Registry does not clarify which part of these Articles the passing of presigned blank forms (of either type) to the Legal Assistant would be breached. I am left to speculate that the passing of such forms might breach the Article 5 duty of care. It might also breach the good faith accounting requirement of Article 11 if the forms provided were to be submitted to the Registry without checking by Counsel. But, if the forms were for the Legal Assistant's Work Programmes, Mr. McCartan stated that the forms were to be sent back to him and checked before submission. The Registry came to the conclusion on the basis of the evidence that Counsel, in submitting pre-signed forms to the Legal Assistant, had arranged to mislead the Registry in that a signature on a document represents to the Registry that the contents have been checked and that the signatory has satisfied himself that the work described therein was performed. Additionally, Mr. McCartan had the recourse of reply to the Registry analysis in this Review process which he did not take up. FINDS, in accordance with the above reasoning, in relation to Mr. McCartan's complaints: (i) that while specific allegations were not made by the Registry to Mr. McCartan that he had instructed his Legal Assistant to inflate his fees, he was made aware and was indeed aware that this was the allegation against him and that it was being investigated. (ii) that the substance of the Legal Assistant's allegation was given to him and he was able to comment on it. (iii) that Counsel was not given sufficient opportunity to comment on the Registry's analysis and conclusions of the discrepancies in the Time Sheets, Fee Statements and other related documentation. (iv) that no specific allegations were put to Counsel for inflating the bill of October 2000. (v) that, while the Registry did not specifically allege particular wrongdoing, their communications made it clear-and Counsel by his responses made it clear that he understood-that he was being investigated for "wrongdoing."

ICTR • 267 (vi) that the allegation of the Legal Assistant was put to him by the OIOS. (vii) that Counsel did not need to be given an oral hearing in respect of administrative decisions that related to the breaches of the Code of Conduct alleged in the Decision. I find that Counsel was given a "hearing" in respect of the matters referred to above in the sense that he was allowed to make comments on the factual issues being considered by the Registry, except in respect of the analysis of the documentation referred to above. In an effort to address the failings observed in paragraphs (iii) and (iv) , Mr. McCartan was afforded an opportunity to respond during the Review process but he did not do so. Furthermore, all of the documents that formed the subject matter of the analysis were known to or were submitted by Mr. McCartan. The analysis cannot be faulted. (viii) that there was no formal putting to Counsel of the allegations against him. I find that generally, in respect of administrative decisions, there is no such requirement. I find that what is required is the giving to Counsel of a sufficient opportunity to meet the allegations against him which must include a detailing of those allegations. In some instances such as those detailed above, the specific allegations were not put to Counsel but were apparent to him from the enquiry as a whole. (ix)

that the part of the Deputy Registrar's decision that found financial dishonesty is punitive in effect. I find, further, that this finding required a high standard of compliance with the requirements of natural justice, and that in the context of this enquiry, that standard was met.

(x)

that while the Registry was bound to make its Decisions in accordance with natural justice, there is no observable or credible basis for Mr. McCartan's complaint that the Registry had to accord him the rights enumerated in Article 20(4) of the Statute.

ACCORDINGL~ I

CONFIRM the Decision of the Deputy Registrar.

The Prosecutor \t. Bagosora et al.-Decision toWithdraw the Assignment ofMr. Jean Yaovi Degli as Defense Counsel for Gratien Kabiligi, Case No. ICTR-98-41 , October 26,2004 THE REGISTRAR of the International Criminal Tribunal for Rwanda (hereinafter ICTR); MINDFUL of Article 16 of the Statute of ICTR, as amended on 30 April 1998; MINDFUL of Articles 10, 19 and 20 of the Directive on the Assignment of Defence Counsel (hereinafter the Directive) and Articles 11 and 20 of the Code of Professional Conduct for Defence Counsel; Factual background

1. Mr.Jean Yaovi Degli was assigned as Defence Counsel for Gratien Kabiligi on 8 August 1997. On his recommendation, the Registry appointed Mrs. Sylvia Olympio as his Legal Assistant on 17 January 1998. Among other documents submitted to the Registry, in

268 • Defense in International Criminal Proceedings support of the candidacy of Mrs. Olympio, was an attestation from the Paris Bar that Mrs. Olympio had been sworn in as an advocate on 15 June 1991 and called to the Bar on 15 June 1993. As Legal Assistant, Mrs. Olympio was paid USD 25 per hour, the applicable rate for legal assistants and investigators, with a ceiling of 100 hours per month. 2. In 1999, Mr. Degli requested the Registry to appoint Mrs. Olympio as his co-counsel, which would have entitled her to an hourly payment of USD 80 with a billing ceiling of 100 to 175 hours per month. The Registry did not grant his request because Mrs. Olympio had only eight years' experience, based on the documents submitted. However, ICTR relevant instruments require a candidate to have at least 10 years' experience before he or she can be appointed as counsel. Mr. Degli then suggested that the Registry upgrade the status of Mrs. Olympio who, in fact, was acting as co-Counsel. He proposed that she be paid an hourly rate of USD 50, and that her monthly billing ceiling be reduced to 150 hours, in return for which he would not hire a co-Counsel, which would have cost the Tribunal more. The Registry accepted this proposal, which took effect from 1 September 1999. On 15 February 2002, Mrs. Olympio could formally satisfy the requirement of 12 years' experience and was appointed co-Counsel on Mr. Degli's recommendation. From this date, she could be entitled to the remuneration applicable to this category of counsel. 3. On 27 April 2003, the Registry received a letter, signed by Mrs. Olympio, in which she pointed out, among other things, that she had never been called to the Bar, and that the relevant attestation was forged. She said that she informed Mr. Degli of this situation only on 26 April 2003, that is, a day before the letter was sent. Mrs. Olympio asked to be withdrawn from the case, and this was done forthwith. 4. In early May 2003, the matter was referred to the Investigations Division of the Office of Internal Oversight Services of the United Nations (IDjOIOS), which opened an investigation. It heard all the parties concerned, including Mr. Degli, Mrs. Olympio, Registry staff in charge of the Lawyers' Section, and the Paris Bar. It received various documents from the parties concerned, as well as from Stanbic Bank in Arusha, by tracing in particular the various transactions operated on Mrs. Olympio's account. 5. Concluding its investigations, IDjOIOS confirmed with the Paris Bar that the attestation submitted on behalf of Mrs. Olympio was indeed forged. Mrs. Olympio explained to the investigators how she used a colour printer to produce the forged attestation. She also explained the nature of her relationship with Mr. Degli in that both families had long friendship ties in Togo. She explained that she met Mr. Degli in 1996. He then suggested that she work in his practice, without being declared, for a monthly salary of USD 2,000 payable in cash. She accepted the offer because this amount was almost more than double the salary her previous employers paid her. As Mr. Degli was aware that she was not a lawyer, he then suggested that she forge the attestation from the Paris Bar in order to be admitted to practice at ICTR. He allegedly assured her that neither the Tribunal nor the Paris Bar would verify that. That is why she gave him the forged attestation and her curriculum vitae to file with the Registry of ICTR. 6. Mrs. Olympio explained that, under pressure from Mr. Degli, she tried to exonerate him in her letter of April 2003. While acknowledging her responsibility in forging the attestation, she explained that, to a large extent, she was only an instrument used by Mr. Degli to swindle the Tribunal of large sums of money.

ICTR • 269

7. She explained to the investigators that Mr. Degli helped her to open an account at Stanbic Bank Arusha to receive the funds transferred by ICTR as payment for fees. Mr. Degli also provided a sample of his signature and had a power of attorney on the account. It was only on 15 April 2003, during a transaction operated on this account, that she was informed by chance that some major transactions (USD 43, 000 and USD 32, 000) had been operated on her account. The said sums had been paid in by the Tribunal and transferred into another account by Mr. Degli, now opened in the name of Felicienne D'Almeida, his spouse. After verifying with the Registry, Mrs. Olympio was informed that the amounts that had been paid in by the Tribunal were fees that were due her, such as certified by Mr. Degli. She immediately revoked the power of attorney given to Mr. Degli over her account. 8. IDjOIOS investigated and confirmed with Stanbic Bank that Mr. Degli had a power of attorney on the said account, that major transactions were operated on the account, and that the power of attorney was revoked. Mrs. Olympio explained to the investigators what she understood Mr. Degli's strategy to be: over-billing co-Counsel's fees at the time of submission of claims to the Registry, and deducting from Mrs. Olympio's account the over-billed amount, which he then transferred to the account opened for his spouse. 9. OIOS investigators showed Mrs. Olympio sixteen bills prepared on her behalf by Mr. Degli. After examining them, she confirmed that they were all forged, and that she had never worked for the hours mentioned therein. She also pointed out to the investigators that she did sign a blank form that she gave to Mr. Degli who, undoubtedly, had photocopied it as many times as necessary to submit the forged bills on her behalf. According to her, the total amount of money that she received from the Tribunal was at most USD 80,000. 10. OIOS investigators heard Mr. Degli, who acknowledged having helped Mrs. Olympio to open her account at Stanbic. He also admitted that he had a power of attorney on the said account, and that Dede Fcicicnne d'Almeida, holder of the account at Stanbic and on whose behalf he made transfers from Mrs. Olympio's account, was indeed his spouse. Mr. Degli also admitted that, as Lead Counsel, he was responsible for certifying bills submitted by members of his team, including Mrs. Olympio. 11. OIOS investigators noted that when asked why he made the transfers from Mrs. Olympio's account to that of his wife, Mr. Degli was very evasive, and seemed to suggest that the money only transited through that account before being given to Mrs. Olympio when he saw her in Paris. The investigators then showed Mr. Degli a cheque of USD 32,000 drawn on Mrs. Olympio's account and paid to Mr. Degli's wife on 7 April 2003. The investigators pointed out to him that on this date Mrs. Olympio was actually in Arusha. Mr. Degli then claimed that this amount was an exceptional reimbursement of a debt that Mrs. Olympio owed him. He did not provide the investigators with any justification for the said debt. The investigators showed him five cheques amounting to a total ofUSD 119,265.63 drawn on Mrs. Olympio's account between April 2002 and April 2003. Mr. Degli replied that these were debts for which he did not keep any relevant documentary evidence. 12. Mr. Degli explained to the investigators that he was informed that Mrs. Olympio had usurped the qualification of a lawyer only on 20 April 2003 when he went to the Paris Bar to enquire about professional liability insurance relating to two cases that Mrs. Olympio had poorly handled. Mrs. Olympio reiterated the confessions she made on 26

270 • Defense in International Criminal Proceedings April 2003 in the presence of a witness called d'Almeida (the brother of Mr. Degli's spouse) regarding her usurpation of the qualification of a lawyer. The investigators reminded Mr. Degli that in the written application of 4 November 1997 that he had sent to the Tribunal for the appointment of Mrs. Olympio as a Legal Assistant, he had pointed out that she used to work in his practice and that he was quite aware that she was conversant with legal work. However, in Mrs. Olympio's CV, which he had filed for her appointment as co-Counsel, this fact had changed. Mrs. Olympio was presented therein as having worked for the law firm Campbell & Labruinie from March 1996 to May 1999. Mr. Degli responded that he was not aware of that change. Questioned by the investigators as to the checks that he had to carry out with the Paris Bar before hiring Mrs. Olympio, Mr. Degli responded that he never carried out such checks. He also told the investigators that he was not aware of the startling difference between the signature at the bottom of the attestation allegedly provided by the Paris Bar to Mrs. Olympio and that on his personal attestation, presumably of the same person, Mr. Loup Monnot de Angles. 13. Questioned on the revocation by Mrs. Olympio of the power of attorney on her account, Mr. Degli explained to the investigators that it was because he had discovered that Mrs. Olympio was usurping the qualification of a lawyer. The investigators then pointed out to him that he had previously explained that he was informed of the forgery only on 20 April 2003, whereas the revocation was made at least three days prior to that date. The investigators noted that Mr. Degli prevaricated before changing his account, explaining that Mrs. Olympio got angry when she learned that USD 32,000 had been withdrawn from her account, which caused her to revoke the power of attorney. 14. The investigators then showed Mr. Degli different bills that were suspected of being inflated. For example, they drew his attention to the September 2002 bill in which Mrs. Olympio pointed out that she had worked for 64 hours and 50 minutes. However, the bill that he had certified and submitted to ICTR showed that she had worked for 185 hours and 35 minutes. For the weekend of 14 to 15 September 2002 alone, he had certified 18 hours and 20 minutes. Mr. Degli admitted before the investigators that the number of hours reported were not plausible, and that he should have been more careful. However, he claimed that such over-billing was due to error, and, in any case, did not benefit him as the money was actually paid to his colleague. After this hearing, Mr. Degli spontaneously appeared anew before the investigators to explain that there was indeed over-billing. He explained that such over-billing enabled other persons, who had done the work that Mrs. Olympio had not done, to be paid. Mr. Degli did not reveal the identity of such persons to the investigators. 15. The sums transferred to Mrs. Olympio's account during the time she rendered legal services at ICTR amounted to USD 380,266.90. Mrs. Olympio stated that of that amount, she received no more than USD 80,000. The difference, that is more than USD 300,000, would be the amount of money that Mr. Degli misappropriated. Procedure

16. The Registrar received the OIOS report in August 2004. He carried out broad-based consultations with a view to sanctioning any abuse of the legal aid scheme if such abuse is established, while also making sure not to abruptly interrupt the course ofjustice. The Registrar was equally keen to fully respect the adversarial principle by affording the counsel concerned an opportunity to freely make precise representations on the for-

ICTR • 271 gery and subsequent misappropriation of funds of which he is suspected to be the kingpin. Thus, when OIOS informed the Registrar that it was neither necessary nor usual to share its report with persons other than the few people who had received copies'f thereof, the Registrar did everything he could to produce a summary of the said report stating the specific acts imputed to Counsel, after expunging therefrom issues alien to the case. The summary was served on Mr. Degli on 15 October 2004; in the summary, Mr. Degli was invited to make his observations and defence within 8 (eight) days. 17. In his response dated 18 October 2004, but received at the Registry only on 22 October 2004, Mr. Degli dwelled at length on issues that were completely alien to the facts he had been requested to explain. He speaks of a conspiracy against him, a phrase that invariably occurs in all his letters to the Registry since the beginning of investigations into this matter. However, the response bears some indications as to Mr. Degli's stand. In paragraph 9 of the said response, he states that he can provide an adequate response only if the complete report, and not a summary thereof, is communicated to him. The request for the complete report is reiterated in paragraphs 10, 11 and 12 of his response. He, however, mentioned that he would reserve his response for other authorities because "the Registry and its head [are] highly interested parties in this case." In conclusion, he called on the Registry to make its decision as soon as possible to enable him to appeal. 18. The Registrar takes cognizance of Mr. Degli's stand as expressed in his response of 18 October 2004. The Registrar believes that he gave him ample opportunity and time to defend himself by informing him of the specific acts with which he is charged. The information is as complete as any report he could have received from OIOS. Mr. Degli chose not to respond to it. Moreover, by asserting in his response that the Registry is, in his own words, an interested party in this matter and that he reserves his defence arguments for "the next step of the proceedings in this case," Mr. Degli clearly shows that his refusal to provide a response on the merits is driven by personal motives which, in any case, have nothing to do with the disclosure of charges. Reasons for the Decision

19. Article 19 (A) (iii) of the Directive provides that the Registrar may withdraw the assignment of Counsel in the case of a serious violation of the Code of Professional Conduct. Article 11 of the said Code requires Counsel to set his bills and fees with moderation and to account in good faith for the time spent working on a case. Article 20(c) of the same Code provides that conduct involving dishonesty, fraud, deceit or misrepresentation shall amount to professional misconduct by Counsel. 20. In the light of the facts described above, there is overwhelming evidence that Mr. Degli played a major role in what appears to be a veritable fraud scheme that was well planned, orchestrated and carried out. In fact, he has not contested the reality of the fraudulent acts which, moreover, are established through documentary evidence. By helping Mrs. Olympio to open an account with Stanbic Bank, by requesting and obtaining a power of attorney on the account, by opening another account in his spouse's 33 The alas report is an internal document intended for the exclusive use of the UN decision makers. He was heard whenever necessary, including at his request. He disclosed to the investigators documents he deemed favourable to his case, particularly the written confessions of Mrs. Olympio made in the presence of his brother-in-law.

272 • Defense in International Criminal Proceedings

name with the same bank and with the same powers on this account, even though his wife is neither resident in Arusha nor linked to the Tribunal by any contract whatsoever, by systematically transferring into his wife's account huge sums of money transferred by the Tribunal into Mrs. Olympio's account, Mr. Degli was carefully and knowingly putting together the various parts of a very elaborate, fraud mechanism. These undisputed facts are consistent with Mrs. Olympio's account with respect to over-billing-an act by which Mr. Degli swindled the Tribunal out of its resources before making use of the bank device that he set up in order to withdraw the said sums. Moreover, Mr. Degli eventually admitted before OIOS investigators, who had even confounded him, that he indulged in over-billing, which he sought to justify by advancing a false claim that it was aimed at paying persons who did the work Mrs. Olympio was supposed to do. It is obvious that such ajustification, even if established, would be unacceptable. Mr. Degli cannotjustify the unlawful practice of over-billing by the need to pay people who were alien and unknown to the Tribunal. 21. In the final analysis, the only unlawful activity to which Mr. Degli vehemently objects being associated with is that he prepared and subsequently used a false attestation of the Paris Bar Association. However, here gain, his bad faith is established, for this initial unlawful act appears to be the cornerstone of the fraudulent device that he set up subsequently. Moreover, the investigators found numerous inconsistencies in Mrs. Olympio's CV that Mr. Degli himself filed with the Registry and wherein he himself acknowledged to have worked with her. Besides, Mr. Degli cannot claim to have shown good faith after admitting that he employed Mrs. Olympio in his Law Chambers without declaring it, thereby acting outside the purview of French law and of the rules and regulations of his Bar Association. An advocate cannot be an undeclared employee. In any case, after taking the risk of hiring an advocate without declaring her, Mr. Degli cannot subsequently plead good faith as to his not knowing her real status. In the circumstances, OIOS investigators were not impressed by the written confessions of Mrs. Olympio made in the doubtful presence of Mr. Degli's brother-in-law, and exonerating Mr. Degli from having had prior knowledge of usurpation. The Registrar, for his part, also declines to credit that assertion, and is rather inclined to believing that it was obtained under duress, then subsequently retracted before OIOS investigators. 22. It appears from the foregoing that Mr. Degli was engaged in conduct involving dishonesty, fraud and deceit, in violation of Article 20 (c) of the Code of Professional Conduct. It is also established that he did not account in good faith for the time spent by his defence team on the Gratien Kabiligi case, in violation of Article 11 of the Code of Professional Conduct. These serious breaches of the Code of Professional Conduct justify the withdrawal of the assignment of Mr. Degli, pursuant to Article 19 (A) (iii) of the Directive, all of these without prejudice to any other action that may be instituted for the recovery of the misappropriated sums. For these reasons •

Orders the withdrawal of the assignment of Mr. Jean Yaovi Degli;

•

Finds Mr. Degli no longer eligible as Counsel within the framework of the Tribunal's legal aid scheme and orders his withdrawal from the list;

•

Orders that Mr. Jean Yaovi Degli deliver to Accused Gratien Kabiligi or to his co-Counsel, Rene Saint Leger, within fifteen days of notification of the present decision, all the original documents in the file which are in his possession;

ICTR • 273 •

Orders notification of this decision to the Accused, Gratien Kabiligi;

•

Orders notification of this decision to the Bar Associations of Paris and Togo;

•

Invites the accused, Gratien Kabiligi, to submit, without delay, a list of 3 (three) names of Counsel whose names appear on the list of counsel that may be assigned by the Tribunal;

5.3.4.

Materials

Michael Bohlander, "International Criminal Tribunals and their Power to Punish Contempt and False Testimony," 12 Crim. L.F. 91-118 (2001).

5.3.5. 5.3.5.1.

Commentary Regulatory Framework

Rule 44(B) of the Rules of Procedure and Evidence defines the broad contours of the regulatory framework addressed to professional ethics of counsel appearing before the Tribunal. This is reiterated in Article 19 of the Directive on the Assignment of Defense Counsel. Pursuant to these provisions, in the performance of their duties, counsel are subject to the rules and regulations imposed by the Tribunal as well as other professional and ethical obligations that may be incumbent upon them, such as the codes of practice and ethics governing the practice of law in their home jurisdictions. However, in their practice before the Tribunal, counsel are required to observe, in the first place, the relevant regulations prescribed by the Tribunal. Therefore, in circumstances where the Tribunal's Code of Professional Conduct for Defense Counsel and another Code would impose inconsistent obligations upon a counsel, the counsel is bound to follow the obligations prescribed in the Tribunal's Code.>'

5.3.5.2. Counsel Misconduct As the foregoing collection ofjurisprudence reflects, the primary judicial vehicle for disciplining counsel is Rule 46 of the Rules of Procedure and Evidence, which is addressed to misconduct of counsel. Unlike the Code of Professional Conduct, the provisions of Rule 46 expressly apply to lawyers for the defense as well as the prosecution and the excerpted jurisprudence shows this to be the case in practice. This Rule is a natural corollary to the inherent power of the Tribunal to control the proceedings before it. When, in the view of a Chamber of the Tribunal, a counsel's conduct is offensive or abusive, obstructs the proceedings or is contrary to the interests ofjustice, the Chamber is entitled to warn such counsel. If the counsel persists in the offensive conduct, pursuant to Rule 46(A), the Chamber may impose sanctions. The Rule itself does not set out a list or a range of sanctions, other than indicate in paragraph B that counsel's misconduct may be communicated to the body regulating the counsel's professional conduct in his or her home jurisdiction, if admitted to the practice of law, or to the governing body of his or her university, if a professor. Additionally, paragraph C envisions that the sanction may include refusal of audience, 34

See Code of Professional Conduct for Defense Counsel, Article 19.

274 • Defense in International Criminal Proceedings

effectively terminating the counsel's practice before the Tribunal. In the event the counsel sanctioned with a refusal of audience is a defense counsel who has been assigned by the Tribunal to represent an indigent accused, Article 19 of the Directive on the Assignment of Defense Counsel mandates the Registrar to withdraw his or her assignment and notify his or her professional or governing body of such withdrawal. Additionally, pursuant to Article 19 (A) (iii) of the Directive, the Registrar is empowered to withdraw the assignment of counsel in the case of a serious violation of the Code of Professional Conduct." As could be expected, most instances ofjudicial discipline involve an issuance of a warning by a Chamber to the offending counsel. The Akayesu, Niyitegeka, Niyramasuhuko, Kamuhanda and Bicamumpaka decisions excerpted above in Section 5.3.3.2 show an imposition of a warning in instances in which a Chamber perceived counsel misconduct. The misconduct, which attracted the sanction of a warning, included failure to comply with orders of the Trial Chamber.v' raising issues already decided.t? making improper comments'" and counsel's failure to appear before the Chamber/'? In the isolated case where counsel failed to heed a prior warning of a Trial Chamber, the Chamber, in the Musema case, decided to impose the sanction of refusal of audience (see Section 5.3.3.2). In that case, the assigned defense counsel failed to appear before the Tribunal on two scheduled occasions to represent her client in an initial appearance. The Trial Chamber concluded that the counsel's failure to appear obstructed proceedings and was contrary to the interests ofjustice and warned the counsel that should she fail to appear to represent her client when requested by the Tribunal, she would be denied further audience. Despite this, the counsel did not appear for the third scheduled initial appearance. She presented the Tribunal with written reasons for her absence, namely that her presence was conditional upon the Tribunal's advance payment of her air ticket and payment for prior legal services. The Tribunal found these to be insufficient reasons for the counsel's absence and for further postponement of the initial appearance of the accused. Although the accused declared that he was satisfied with his counsel, the Trial Chamber gave effect to its earlier warning and, according to Rule 46 (C), refused the counsel further appearance before the Tribunal. Additionally, the Trial Chamber instructed the Registrar to withdraw the assignment of the counsel and to communicate the sanction to the counsel's bar association. 35 See The Prosecutor v. Bagosora et al., Case No. ICTR-98-41, Decision to Withdraw the Assignment of Mr. Jean Yaovi Degli as Defense Counsel for Gratien Kabiligi (The Registrar), Oct. 26, 2004. 36 The Prosecutor v. Niyitegeka, Case No. ICTR-96-14, Decision on Two Defense Motions Pursuant to, Inter Alia, Rule 5 of the Rules and the Prosecutor's Motion for Extension of Time to File the Modified Amended Indictment Pursuant to the Trial Chamber II Order of Nov. 20, 2000; warning to the Prosecutor's Counsel Pursuant to Rule 46(A) (Trial Chamber), Feb. 27, 2001; The Prosecutor v. Kamuhanda, Case No. ICTR-99-54A, Decision on Kamuhanda's Motion for Disclosure of Witness Statements and Sanction of the Prosecutor (Trial Chamber), Aug. 29, 2002. 37 The Prosecutor v. Bicamumpaka, Case No. ICTR-99-50, Decision on the Defense Motion on a Point of Law (Trial Chamber), Apr. 8, 2003. 38 The Prosecutor v. Nyiramasuhuko et al., Cases Nos. ICTR-97-21, 97-99, 96-15, 96-8, Decision on the Prosecutor's Allegations of Contempt, the Harmonization of the Witness Protection Measures and Warning to the Prosecutor's Counsel (Trial Chamber), July 10, 2001. 39 The Prosecutor v. Akayesu, Case No. ICTR-96-4, Issuance of Warning against Defense Counsels (Trial Chamber), Mar. 19, 1998.

ICTR • 275

5.3.5.3.

Frivolous Motions and Abuse ofProcess

The most frequently employed means of discipline at the Tribunal is the non-payment of fees for motions the filing of which is deemed to be frivolous or an abuse of process by a Chamber acting under Rule 73 (F) of the Rules of Procedure and Evidence. Because the Chambers have levied this sanction on counsel in numerous instances, the excerpted jurisprudence includes only the relevant practice before the Appeals Chamber (see Section 5.3.3). This practice reveals both, the Appeals Chamber itself acting under Rule 73 (F) to sanction counsel for the filing of a frivolous motion, and the Appeals Chamber considering an appeal from the imposition of a Rule 73 (F) sanction by a Trial Chamber. The Bagilishema, Barayagwiza, Semanza, Nteziryayo and Niyitegeka decisions excerpted above in Section 5.3.3.3. show instances in which the Appeals Chamber sanctioned counsel by denial of fees in cases where it considered the filing of motions to be frivolous or an abuse of process. In respect of appeals from sanctions under Rule 73 (F), the jurisprudence is unequivocal that such sanctions are not subject to appeal. Illustrative of this is the recent decision in the Karemera et al. case considering an appeal from defense counsel complaining that a Trial Chamber denied his fees, in total, for two motions and half the fees for the filing of another motion.!" The counsel in the case argued, as summarized by the Appeals Chamber, that "the imposition of sanctions is a serious matter with repercussions which go beyond the imposition of a monetary penalty as what is at stake is his professional reputation and his status at the California Bar."41 The Appeals Chamber was not moved by this argument. It found that neither the Statute nor the Rules provide for a right of appeal from sanctions imposed under Rule 73 (F), distinguishing it from the criminal sanction of contempt under Rule 77.42 The Appeals Chamber confirmed this finding in yet another appeal arising in the same case where it held as follows: "although Trial Chambers should use the power to impose sanctions cautiously, a decision to impose monetary sanctions on counsel for frivolous motions or abuse of process pursuant to Rule 73(F) of the Rules is not subject to appeal."43

5.3.5.4.

Contempt

The ultimate expression of the Tribunal's inherent power to control the proceedings before it is the power to hold in contempt those who knowingly and willfully interfere with its administration ofjustice. This power is expressed in Rule 77 of the Rules of Procedure and Evidence, which was significantly enhanced in July 2002. Although this rule is not specifically addressed to counsel, conduct of counsel can, and has, come under scrutiny under its terms (see Section 5.3.3.4). Paragraph I of the Rule refers to counsel and provides that if a counsel is found guilty of contempt, he or she may also be found to be ineligible to represent a person before the Tribunal. Contempt may also constitute misconduct within the meaning of Rule 46. 44

40 The Prosecutor v. Karemera et al., Case No. ICTR-98-44, Decision on Counsel's Appeal from Rule 73(F) Decision (Appeals Chamber), June 9, 2004. 41 Id. 42 Id. 43 The Prosecutor v. Karemera et al., Case No. ICTR-98-44, Decision on Interlocutory Appeals Regarding Participation of Ad Litem Judges, June 11, 2004. 44 Rules of Procedure and Evidence, Rule 77 (I).

276 • Defense in International Criminal Proceedings Rule 77 as well as the attendant practice reflects the fact that contempt is a grave matter in the administration ofjustice. Because a finding of contempt constitutes a criminal conviction, which can result in relatively severe penalties, including imprisonment of up to five years or a fine of up to $10,000,45 persons accused of contempt are afforded due process rights, including the rights to counsel and appcal.i" This may be contrasted with the application of Rule 46 regarding misconduct of counsel in respect of which the President has held that the rights granted to accused persons under Article 20 ( 4) of the ICTR Statute need not be accorded to counsel in disciplinary proceedings.'? In its practice, the Tribunal has set the prima facie standard as the threshold to be surmounted before contempt proceedings under Rule 77 may begin. The following passage from the Nyiramasuhuko et al. case is representative of the position taken by the Chambers on this point: 5. However, the Chamber bears in mind the gravity of such allegations and the fact that, should the Chamber decide to proceed with the Prosecutor's request for investigations on these issues, a trial would commence within the trial, at the conclusion of which these allegations could result, if proven, notably, in a verdict of Contempt of the Tribunal and in the imposition of "a fine (... ) or a term of imprisonment (... )," pursuant to Rule 77(C) of the Rules. 6. For this reason, and bearing in mind the principle of the presumption of innocence, any allegations of contempt are to be handled with due care. Consequently, the Prosecution is to justify its request for investigations by prima facie satisfying the Trial Chamber that there are reasonable grounds to believe that contemptuous conduct may have taken place, which may be attributable to the alleged contemnor."

5.4. ATTORNEY-CLIENT PRIVILEGE* 5.4.1.

Introduction

ICTR's Rules and regulations guarantee the principle of lawyer-client privilege. This principle is also fully upheld in its jurisprudence. As illustrated below, lawyer-client privilege may only be disregarded when its principal beneficiary-the accused-waives it formally or tacitly. Counsel may also breach it when it is essential for him to do so to dissociate himself with his client's unlawful activities or for the need to defend himself against criminal or disciplinary charges. The privilege is also accommodated in such a way not to sacrifice the security and safety of the Detention facility. See also Section 5.5 (communication with a client in custody) for the definition of counsel who may claim the privilege Rules of Procedure and Evidence, Rule 77(G). Rules of Procedure and Evidence, Rule 77 (F) and (J). 47 See The Prosecutor v. Nzirorera, Case No. ICTR-98-44, The President's Decision on Review of the Decision of the Registrar Withdrawing Mr. Andrew McCartan as Lead Counsel of the Accused Joseph Kanyabashi, May 13, 2002. 48 The Prosecutor v. Nyiramasuhuko et al., Case Nos. ICTR-97-21, 97-99, 96-15, 96-8, Decision on the Prosecutor's Allegations of Contempt, the Harmonization of the Witness Protection Measures and Warning to the Prosecutor's Counsel (Trial Chamber), July 10, 2001, paras. 5, 6. * Section 5.4 was written by Marne Mandiaye Niang. 45 46

ICTR • 277

5.4.2. Statutes, Rules and Official Documents 5.4.2.1.

Rules of Procedure and Evidence

Rule 95: Exclusion of Evidence on the Grounds ofthe Means by Which ItWas Obtained No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage the integrity of the proceedings.

Rule 97: Lawyer-Client Privilege All communications between lawyer and client shall be regarded as privileged, and consequently disclosure cannot be ordered, unless: (i) The client consents to such disclosure; or (ii) The client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.

5.4.2.2.

Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal orOtherwise Detained on the Authority ofthe Tribunal Legal Assistance Rule 9

All information concerning detainees shall be treated as confidential and made accessible only to the detainee, his counsel and persons authorized by the Registrar. The detainee shall be informed of this fact upon his arrival at the Detention Unit.

Rule 61

(ii) All visitors must comply with the separate requirements of the visiting regime of the host prison. These restrictions may include personal searches of clothing and X-ray examination of possessions on entry to either or both of the Detention Unit and the host prison. Any person, including Defence Counsel for a detainee or a diplomatic or consular representative accredited to the Host State, who refuses to comply with such requirements, whether of the Detention Unit or of the host prison, may be refused access.

Rule 65 Each detainee shall be entitled to communicate fully and without restraint with his Defence Counsel, with the assistance of an interpreter where necessary.... Unless such Counsel and interpreter have been provided by the Tribunal on the basis of the indigence of the detainee, all such communications shall be at the expense of the detainee. All such correspondence and communications shall be privileged. All visits shall be made by prior arrangement with the Commanding Officer as to the time and duration of the visit and shall be subject to the same security controls as are imposed under Rule 61. The Commanding Officer shall not refuse a request for such a visit without reasonable grounds. Interviews with legal Counsel and interpreters shall be conducted in the sight but not within the hearing, either direct or indirect, of the staff of the Detention Unit.

278 • Defense in International Criminal Proceedings

5.4.2.3.

Code of Professional Conduct for Defense Counsel Article 8 Confidentiality

(1) Whether or not the relation of Counsel and client continues, Counsel must preserve the confidentiality of his client's affairs and, subject to sub-article (2), must not reveal to any other person, other than to any assistants who need to know it for the performance of their duties, information which has been entrusted to him in confidence or use such information to his client's detriment or to his own or another client's advantage. (2) Notwithstanding sub-article (1), and subject to Article 19 ("Conflicts"), Counsel may reveal information which has been entrusted to him in confidence in anyone of the following circumstances: (a) When the client has been fully consulted and knowingly consents; or (b) When the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure; or (c) When essential to establish a defence to a criminal or disciplinary charge or civil claim formally instituted against Counsel; or (d) To prevent an act which Counsel reasonably believes: (i) Is, or may be, criminal within the territory in which it may occur or under the Statute or the Rules; and (ii) May result in death or substantial bodily harm to any person unless the information is disclosed. (3) For the purposes of this Article, Counsel includes employees or associates of Counsel and all others whose services are used by Counsel.

5.4.2.4.

Regulations to Govern the Supervision ofVisits toand Communication With Detainees

(Established by the Registrar in May 1996) Issued by the Registrar of the Tribunal and the Commanding Officer pursuant to Rules 59 and 69 of the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal Detained on the Authority of the Tribunal ("Rules of Detention ") These Regulations are subject to the provision of the Rules of Detention of the Tribunal and, where applicable, to its Rules of Procedure and Evidence. In particular, the rights of a detainee in respect of visits or communications are subject to any order prohibiting contact between the detainee and any other person made pursuant to Rule 64 of the Rules of Detention.

Correspondence Rule No.1 A detainee has the right to send and receive mail to or from any person, subject to the following Regulations.

ICTR • 279

Rule No.2 All mail entering or leaving the detention unit shall be inspected for explosives or irregular material by using X-ray and metal and explosives detectors.

Rule No.3 Incoming mail will be inspected on delivery at the United "Nations Tribunal Headquarters.

Rule No.7 The Commanding Officer shall forward all incoming and outgoing mail to or from a detainee, other than that addressed to or from counsel for the detainee, the Tribunal, the Inspecting Authority or the diplomatic or consular representative accredited to the Host State or the State to which the detainee belongs or which takes charge of his interests, to the Registrar. A log of all such mail shall be kept by the Commanding Officer with details of the name of the detainee, the name of the sender (if known) or of the addressee and the date on which it was sent to the Registrar-A copy of each entry shall be given to the detainee in a language he understands.

Rule No.8 The Registrar shall, within twenty-four hours of receipt, open and read, or have read, each item of mail. Any item of opened mail which is not in breach of the Rules of Detention, or of these Regulations, or of an Order of the Tribunal, or gives no reasonable grounds otherwise to the Registrar to believe that the detainee may be attempting to arrange escape, interfere with or intimidate a witness, interfere with the administration ofjustice or otherwise disturb the security and good order of the detention unit, shall be delivered to the detainee or posted to the addressee immediately thereafter and the detainee informed accordingly.

Rule No. 11 Correspondence addressed to or from counsel for the detainee shall not be interfered within any manner unless the Commanding Officer or the Registrar has reasonable grounds for believing that this facility is being abused in an attempt to arrange escape, interfere with or intimidate a witness or otherwise disturb the good order of the detention unit. In any such case, the Commanding Officer shall immediately forward the item in question to the Registrar, unopened, and shall enter details of the intercepted correspondence in the log referred to above and notify the detainee accordingly. The Registrar will then contact the counsel to whom the item is addressed or by whom it was sent and request counsel to open the item in his presence. Counsel may be required to explain to the Registrar, in one of the working languages of the Tribunal, the nature of the item and to hand over any offending item or enclosure.

Rule No. 12 Any item which is copied or confiscated under these regulations shall be retained by the Registrar. It shall not be handed over to the Prosecutor as evidence of contempt of

280 • Defense in International Criminal Proceedings the Tribunal pursuant to Rule 77 (C) of the Rules of Procedure and Evidence without prior notice and disclosure to counsel for the detainee.

Rule No. 13 A detainee whose mail has been intercepted or confiscated may make a formal complaint in accordance with the Complaints Procedure.

Telephone Calls Rule No.6 Telephone conversations will not be recorded or monitored unless the Commanding Officer or the Registrar has reasonable grounds for believing that the detainee may be attempting to arrange escape, interfere with or intimidate a witness or otherwise disturb the maintenance of good order in the detention unit or where an Order for nondisclosure has been made by aJudge or a Chamber pursuant to Rule 75 of the Tribunal's Rules of Procedure and Evidence.

Rule No.7 In such cases, the Registrar may order all telephone calls to and from that detainee, other than with counsel, to be monitored for a period not exceeding one month. Renewal or extension of period shall be reported to the President. The detainee shall be notified of the Registrar's decision within twenty-four hours.

Rule No. 13 Any item which is transcribed under these Regulations shall be retained by the Registrar. It shall not be handed over to the Prosecutor as evidence of contempt of the Tribunal pursuant to Rule 77 (C) the Rules of Procedure and Evidence without prior notice and disclosure to counsel for the detainee.

Visits Rule No.1 The Commanding Officer shall, in consultation with the Registrar, fix the daily visiting hours for all visitors other than counsel, taking into account the reasonable demands of the early schedule of the detention unit and the facilities available.

Rule No.2 Subject to the provisions below, counsel may make arrangements by telephone with the Commanding Officer to visit a detainee at any time from 9.00 a.m.-5.00 p.m. A detainee may request a visit from his counsel outside these hours. Such a request shall be granted at the sole discretion of the Commanding Officer.

Rule No.3 The Registrar shall automatically issue defence counsel with a written permit for unlimited visits as soon as such counsel is entered on the record or assigned by the Tribunal. The Registrar may issue permits to counsel for individual visits prior to the initial appear-

ICTR • 281 ance of the detainee based on a written request from the detainee, identifying the counsel in question.

Rule No. 10 All persons, including defence counsel and diplomatic representatives, are subject to the security requirements of the host prison, including personal searches of clothing and X-ray examination of possessions on entry, pursuant to the Agreement on Security and Order.

Rule No. 11 All persons, including defence counsel and diplomatic representatives, are also subject to personal searches of clothing and X-ray examination of counsel shall not extend to reading or copying documents brought to the detention unit by defence counsel.

Rule No. 12 No visitor, other than counsel, may pass any item to a detainee during a visit. Any items intended for a detainee must be handed to the staff of the detention unit on entry and shall be dealt with as provided for in Rule 17 and 78 of the Rules of Detention.

Rule No. 13 Counsel may pass papers to and from a detainee during a visit. Any quantity of documents which is too large to be physically passed over by counsel to the detainee at the visiting facility shall be handed to the Commanding Officer who shall pass them unopened and unread to the detainee. All such documents shall be treated as mail for the purposes of these regulations and, in particular, Regulation 11 concerning incoming mail shall apply.

Rule No. 14 If the Commanding Officer believes that he has reasonable grounds for intervention, or that these Regulations are being breached in any way, he may immediately terminate the visit and advise the detainee and the visitor of his reasons for so doing. The visitor may be required to leave the detention unit and the Commanding Officer shall report the matter to the Registrar. This provision applies equally to visits by defence counsel.

Rule No. 15 All visits shall be conducted within the sight of the staff of the prison unit. Discussions between the detainee and the visitor shall not be recorded unless the Commanding Officer has reasonable grounds for believing that the detainee may be attempting to arrange escape, interfere with or intimidate a witness or otherwise disturb the maintenance of good order in the detention unit or where an Order for non-disclosure has been made by a Judge or a Chamber pursuant to Rule 75 of the Tribunal's Rules of Procedure and Evidence.

282 • Defense in International Criminal Proceedings Rule No. 16 In such cases, the Registrar may, at the request of the Commanding Officer or otherwise, order that all visits to that detainee, other than by counsel, be recorded for a period not exceeding seven days. Renewal or extension of the period shall be reported to the President. The detainee shall be notified of the request and of the Registrar's decision within twenty-four hours.

Rule No. 21 Any item which is transcribed under these Regulations shall be retained by the Registrar. It shall not be handed over to the Prosecutor as evidence of contempt of the Tribunal pursuant to Rule 77 (C) the Rules of Procedure and Evidence without prior notice and disclosure to counsel for the defence.

Rule No. 22 A detainee whose visits have been recorded by order of the Registrar may make a formal complaint in accordance with the Complaints Procedure.

5.4.2.5.

Brief to All Other Persons Regarding Visits to Detainees

The following guidelines must be adhered to by all persons wishing to visit a detainee at the United Nations Detention Facility. The relevant reference document is the "Regulations to Govern the Supervision of Visits to and Communications With the Detainees." (1) Rule 1, of the section relating to Visits, of the above mentioned Regulations states that the Commanding Officer shall, in consultation with the Registrar, fix the daily visiting hours for all visitors other than counsel, taking into account the reasonable demands of the early schedule of the detention unit and the facilities available. Therefore permission to visit a detainee will only be granted provided that there is sufficient space to accommodate the visitor. (2) Rule 4 of the Regulations stipulates that all visitors to the detention unit shall first apply to the Registrar for permission to visit a named detainee. All visitors must contact the Tribunal no less than 48 hours prior to the intended visit to allow time for an investigation to be made. This investigation will confirm the information given by the proposed visitor. Any visitor failing to give at least 48 hours notice will be denied the right to visit a detainee. (3) Permission for such visits will be granted unless the Registrar or the Commanding Officer has reasonable grounds for believing that the detainee may be attempting to arrange escape, interfere with or intimidate a witness or otherwise disturb the maintenance or good order in the detention unit. This is in accordance with Rule 5 of the Regulations. (4) On arrival at the Detention Facility all visitors must be prepared to adhere to the Regulations to Govern the Supervision of Visits to and Communications With the Detainees. Any failure to follow the guidelines will result in a refusal, by the Commanding Officer, to allow the visitor to meet with his or her named detainee, and the submission, to the Registrar, of a written report concerning the incident.

ICTR • 283 (5) As provided for in Rule 10 of the Regulations, all visitors to the Detention Facility must provide the written permission of the Registrar along with some official identification bearing a current photograph in order to gain access to the premises of the Detention Unit. Failure to provide such documents will result in a refusal of entrance to the Detention Facility. (6) All visitors to the premises will be subject to an X-Ray examination of possessions on entry into the Detention Facility, as provided for in Rule 10 of the Regulations. In addition, visitors may be subjected to personal searches of clothing. Failure to submit to the above security checks will result in the visitor being asked to leave the premises and the Commanding Officer shall report the matter to the Registrar. (7) According to Rule 12 of the Regulations no visitor may pass any item to a detainee during a visit. Any items intended for a detainee must be handed to the staff of the Detention Facility on entry.

(8) Rule 14 stipulates that if the Commanding Officer believes that he has reasonable grounds for intervention, or that these Regulations are being breached in any way, he may immediately terminate the visit and advise the detainee and the visitor of his reasons for doing so. The visitor may be required to leave the Detention Facility and the Commanding Officer shall report the matter to the Registrar. (9) All visits shall be conducted in the visitors' booths within the sight of the staff of the prison unit. Discussions between the detainee and the visitor will be monitored at all times, however they shall not be recorded unless the Commanding Officer has reasonable grounds for believing that the detainee may be attempting to arrange escape, interfere with or intimidate a witness or otherwise disturb the maintenance or good order in the detention unit. This is provided for in Rule 15 of the Regulations.

5.4.3.

Case Law and Practice

The Prosecutor \t. Hassan Ngeze-Decision on the Accused's Request for Withdrawal of His Counsel, Case No. ICTR-97-27, March 29,2001

CONSIDERING the Accused's motion for withdrawal of his counsels filled on 17 February 2001, through a letter addressed to the President; NOTING that the Accused and his Counsel were heard at a hearing on 19 February 2001. Arguments by the Accused

The accused applied for the withdrawal of his assigned lead counsel, Mr. John Floyd III and co-counsel Mr. Rene Martel, on the basis that he no longer has confidence in their competence to represent him. He set out his reasons in a letter dated 17 February 2001 addressed to the President of the Tribunal, which he read out at the hearing before the Chamber on 19 February 2001. The reasons are: (i) Failure to hold consultations with him The accused avers that since the resumption of trial sessions on the 5 February 2001, his counsel met him on one occasion whereas the trial had been under way for two weeks.

284 • Defense in International Criminal Proceedings (ii) Motion for Dismissal of the Indictment The accused complains that he wanted the motion heard in limine litis; instead it was adjourned at the request of his counsel. He also objects to the withdrawal by his counsel of affidavits prepared by his investigators and filed in support of the motion. (iii) Translation of Kangura The accused requires that all 71 issues of Kangura journal be translated from Kinyarwanda into French and English, as they comprise the "spine bone" of the charges against him. He accused his counsel of incompetence in not succeeding in convincing the Registry and the Tribunal to get the translations done. He claims that nothing has been done and for that and other reasons he decided not to attend the current trial sessions. (iv) The dismissal of the three investigators and legal assistant The accused avers that his counsel fired his two investigators and assistant who were experienced with his case and his witnesses and in whom he had great trust, without reason and without prior consultation with him. He further states that no arrangements were made for the handing over to him of sensitive documents in the possession of the dismissed team members. Deliberations

After hearing the accused and lead counsel on 19/2/01, 20/2/01 and 20/3/01, the Chamber makes the following determinations:(i) Attorney Client Consultations: The accused complains that there has only been a single consultation since 5 February 2001, and yet at the same time he acknowledges ongoing consultations: He alluded to these in his address. The Chamber has observed counsel and client communicate with one another in the courtroom and on several occasions requests for time for consultations prior to crossexamination of witnesses were made and granted by the Chamber. The accused, when present in the court, actively participated in his defence and his counsel appear to be mounting a vigorous defence on his behalf. In light of this, the Chamber concludes that there is no basis for this complaint.

(iv) The Dismissal of the Investigators and Assistant Mr. Floyd informed the Chamber that he had not in fact fired the four persons but only two of the investigators; the third investigator left of his own accord. The contract of the Assistant, Mr. Bemba was ended by the Registry's Lawyers and Detention Facilities Management Services (LDFMS). Mr. Floyd was prepared to accept the one investigator who had left on his own. Mr. Floyd stated that he had had long hours of consultation with the accused over the action he had taken and that the accused was aware of the reasons. Counsel was reluctant to make the reasons known to the Chamber in the interests of protecting his client from the exposure of confidential material to the prosecutor and the triers of fact that might be detrimental to the accused. He furthermore did

ICTR • 285 not wish to act in breach of the attorney client privilege provisions of Article 8 of the Tribunal's Code of Professional Conduct for Defence Counsel. When pressed by the Chamber to disclose the reasons, Mr. Floyd indicated that his decision to dismiss the investigators and to withdraw the affidavits from the Motion was taken in consultation with the LDFMS and was made on ethical considerations relating to honesty and professionalism. He reminded the Chamber that as lead counsel he was responsible for signing vouchers for money and that the head of the LDFMS was going to deduct money or would not approve certain vouchers under certain things. The Chamber notes that the responsibility referred to by Mr. Floyd flows from Article 15 of the Directive on Assignment of Counsel, which entitles an accused person to have one counsel assigned to him and that counsel "shall deal with all stages of procedure and all matters arising out of the representation of the suspect or accused or the conduct of the defence." He has the "primary responsibility" within the defence team. Moreover, according to Article 17 of the Directive, Lead Counsel is responsible for the submission of claims and vouchers for costs and expenses relating to investigative steps and ascertainment of facts. The appointment of co-counsel, assistants and investigators are administrative matters falling within the powers and discretion of the Registrar. Lead counsel must initiate requests for such appointments, and he is held responsible for complying with the practice directions of the LDFMS. It is clear that the accused is not entitled as of right to have co-counsel, investigators and assistants appointed; nor can he assert the right of decision over the appointment or termination of their contracts. As stated above, these are matters for Lead Counsel. There is a presumption that counsel will act in the best interest of providing an effective defence for his client. In the event that an accused person is aggrieved by an administrative decision, he has recourse to certain remedies namely, to make representations to the LDFMS and if he is unsuccessful, to appeal to the Registrar whose decision in turn is subject to review by the President of the Tribunal. The accused is clearly aware of the remedies available to him because he has set in motion an administrative inquiry. By letter dated 18 February 2001, addressed to Mr. Allessandro Caldarone, Chief of LDFMS, which he read out at the hearing before the Chamber, he has applied for the reinstatement of the three investigators and one assistant. The accused identifies Mr. Bemba, the assistant, as the "Brain" of his entire defence team. Removing him, he states, is like taking the yolk out of an egg. It was not Counsel, but the LDFMS, which took the decision to terminate Mr. Bernba's contract. While awaiting the outcome of his request and before exhausting his remedies, the accused seeks adjudication by the Chamber of the very same issues under the rubric of lack of confidence. In our view, the accused has not represented accurately the facts of the departure of the four persons, wrongly attributing all as "dismissals" and as acts of the lead counsel. The Chamber is, of course, mindful of the need to ensure efficient representation of the accused. However, the accused has not placed any reliable information before us which suggests that his right is encroached. Counsel has indicated why he fired two of the investigators and also why he is under an ethical obligation not to give further information. At the most, it can be said that there is disagreement between counsel and client on the dismissal of the two investigators. Consequently, the Chamber sees no need to pursue this matter. Counsel had the professional and legal competence to decide the matter.

286 • Defense in International Criminal Proceedings With regard to the accused's complaint that counsel had not arranged for sensitive documents to be taken from the investigators before their departure, the Chamber noted from the court transcripts that the situation appears to have been orchestrated by the accused himself. The accused was requested orally and subsequently by letter from the Chief of the UNDF, to remove defence documents left in the consultation booth. Upon his persistent refusal to do so, UNDF summoned counsel, who then uplifted the documents.

For the reasons set out above, the Chamber is satisfied that no good cause has been shown, nor do exceptional circumstances exist for the order sought by the accused. The accused stated at the hearings that Mr. Floyd was appointed as counsel by his choosing, "They are my friends" ... , "I like my counsel." He is willing to retain his counsel provided they cooperate with him and accept his assistant and investigators. If this is his difficulty with his present counsel then it stands to reason that he would have similar difficulty with future counsel assigned to him, who, for professional and ethical considerations do not accept his condition. The accused has threatened to boycott court sessions as long as he does not get his way with regard to his assistant and investigators and the Kangura translations.

DENIES the motion by the Accused for the withdrawal of his assigned Counsels. The oral decision was rendered on 22 March 2001, in the presence of all the Parties. The written decision is signed this 29 March 2001. Judge Asoka de Zoysa Gunawardana appends a Dissenting Opinion to this Decision. I regret that I can not agree with the decision of the majority, to dismiss the Motion of the accused Hassan Ngeze, for the withdrawal of his assigned Lead Counsel, Mr. John Floyd III, and his Co-Counsel Mr. Rene Martel, on the basis that they are not acting in his best interest and thereby he has lost confidence in them. The Main Grounds Urged in Support of the Motion The principle grounds inter alia urged in support of the said motion are twofold, (i) that the Counsel failed to hold adequate consultations with the accused, (ii) that the Lead Counsel dismissed the Investigators and the Legal Assistant, against the accused wishes and without consultation with the accused. Alleged Failure of the Counsel to hold Adequate Consultations

The accused alleged that both his Counsel have failed to adequately consult him at this crucial stage of the trial, when the witnesses are giving evidence directly implicating him. He asserted that the Counsel do not visit him at the UN Detention Facility, so as to enable him to discuss the evidence of the ongoing witnesses and to give specific instructions. He pointed out that he had only one consultation since 5th February 2001. This allegation was repeated several times in Court when this Motion was taken up for hearing. In this regard it may be noted in passing that, on 20th March 2001, when the accused made an application in open Court to speak with his Lead Counsel for five minutes, the Lead Counsel did not accede to his request, stating that he had had consul-

ICTR • 287 tations earlier and it would serve no purpose. It was also observed on some occasions that the accused was instructing the Counsel in open Court, which may suggest that he had insufficient time to instruct the Counsel outside Court. In response to the allegations by the accused that he did not adequately consult his client, the Lead Counsel stated that he had in fact regularly consulted the client, at the UNDF and in Court. However, the Counsel did not substantiate his assertion that he had adequately consulted the client with any documentary evidence or other information, with the result that the Court is starved of relevant evidence to adjudicate on this issue. It may be observed that the information relating to the consultations with the accused could have been disclosed to the Court without any breach of confidentiality, because what Counsel was required to furnish was not the contents of the consultations but rather the extent and the duration. It must be emphatically stated here, that a Defence Counsel has a duty to provide an adequate opportunity for the client to hold consultations with him. Therefore, the failure to do so would be a serious violation of the duty of the Defence Counsel. Although the accused himself has admitted that he had a total of 72 hours of consultations with Mr. Floyd, this does not necessarily mean that the consultations were ongoing or adequate. In the circumstances, I am of the view that the information available as at present, is insufficient to make a determination on the truth or falsity of the allegation made by the accused, that he had no opportunity to have adequate consultations with his Counsel. Therefore, I would hold that Defence Counsel be required to substantiate his assertion by some sustainable evidence. Alleged Unreasonable Dismissal of the Investigators and the Legal Assistant

The accused has stated that the Lead Counsel has dismissed his Investigators and the Legal Assistant against his wishes and without prior consultation with him. He alleged that this action was not in his best interest, and hampered the progress of the trial. He pointed out that the Investigators had a thorough knowledge about his case, as they were working on the case since its inception. He added that, some of them were lawyers and were well acquainted with the background and conditions prevalent in Rwanda. The accused specifically denied that the Investigators were related to him in any way. He stated that he had full confidence in their competence, and went on to quote a remark made by the Lead Counsel in Court, admitting their competence. In response, the Lead Counsel pointed out that the reasons for the dismissal of the Investigators were ethical and professional. He stated that they were not competent to do the work assigned to them. He also hinted at his inability to certify vouchers submitted by the Investigators, due to the suspicions he entertained about their irregularities and/ or genuineness. The Lead Counsel reminded the Chamber of the responsibilities he is vested with under Article 15 (e) on the Directive on the Assignment of Defence Counsel, wherein the Lead Counsel is required to sign all documents submitted to the Tribunal. The Lead Counsel informed the Court that he had not dismissed four persons, but had dismissed only two Investigators. He added that the Registry officials have terminated the contract of the Legal Assistant and the third investigator had left on his own accord in protest of the dismissal of the other two. According to the Lead Counsel the accused was fully aware of the reasons for the action he had taken with regard to the

288 • Defense in International Criminal Proceedings Investigators. However, the Lead Counsel declined to give the reasons to the Court on the basis of protecting the interests of his client, by non-disclosure of confidential material to the Prosecutor and to the Judges, who are the triers of fact. He added that disclosing such information might put him in breach of the provisions relating to the lawyer client relationship, as envisaged under Article 8 of the Tribunal's Code of Professional Conduct for Defence Counsel. In deference to matters urged by the Lead Counsel for non-disclosure, the Court suggested to the Lead Counsel that he should submit a confidential note to the Chambers, stating the grounds on which he terminated the services of the Investigators. The Lead Counsel declined to do so, mainly on the basis that it would prejudice the lawyer client relationship and that it would not be in the best interest of his client. Although there is a presumption that the lawyer acts in the best interest of his client, whether that presumption is applicable in the present context is also an issue that needs consideration. When this matter came up for consideration at different times, on no less than three occasions during the proceedings in Court, the accused informed the Court that he has lost confidence in his Counsel, that he is not afforded adequate opportunity for consultation, and that his Counsel are not acting in his best interest. Thus there is a clear indication by the accused that his Counsel are not acting in his best interest, and that he wants to terminate the lawyer client relationship. Since the allegations are made personally against the lawyers it is relevant to know what exactly is the situation in regard to the matters urged against the lawyers by the accused. This can not be ascertained without some evidence of the factual matters and circumstances relating to the allegations made. The question also arises for consideration, whether in fact the right to preserve the confidentiality really exists, in regard to the information relating to the allegations against the Investigators, as alleged by the Lead Counsel. The allegations hinted at by Counsel against the Investigators seem to suggest some fraudulent activity on their part. The Lead Counsel relied on Article 8 (1) of the Code of Professional Conduct for Defence Counsel, for the preservation of the confidentiality of his client's affairs. It is hard to discern from the allegations hinted at against the Investigators, that they would require the disclosure of information that would affect the confidentiality of the client's affairs. In any event, the said allegations seem to implicate the Investigators for acts akin to criminal offences. As such, the provisions of Article 8 (2) specifically provide for revelation of such information. To wit, Article 8(2) Notwithstanding sub-article (1), and subject to Article 19 ("Conflicts"), Counsel may reveal information which has been entrusted to him in confidence in any one of the following circumstances: [ ... ]

(d) To prevent an act which Counsel reasonably believes: (i) Is, or may be, criminal within the territory in which it may occur or under the Statute or the Rules; ... Hence, I am of the view that the Lead Counsel would not be able to rely on the provisions of Article 8 not to reveal the facts and circumstances upon which he terminated the services of the Investigators.

ICTR • 289 For the reasons stated above, I hereby order the Lead Counsel to provide to the Bench the evidence available to him to counter the allegations made by the accused against the Counsel in regard to the inadequacy of opportunity for consultations. Further, I make order that the Lead Counsel should reveal to the Chamber the facts and circumstances upon which he dismissed the two Investigators, in order that this Court may make an informed decision in regard to the said allegations.

Author's Note: See also cases reported in Section 5.5 of this chapter (Communication With a Client in Custody), which are all relevant to the attorney-client privilege.

5.4.4.

Commentary

As seen above, the privilege surrounding the information shared between counsel and his or her client is guaranteed insofar as it is compatible with the security and safety of the Detention Facility and the lawful disposition of the accused's rights. The privilege may not also compromise Counsel's ability to defend himself or herself when personally subjected to criminal or disciplinary charges. ICTR practice has even gone further in upholding the attorney-client privilege. Although this privilege does not extend to Counsel's aids (legal assistant and investigators), ICTR used to provide them in practice with the same facilities. However, having suspected abuses of this courtesy, the Registry had come back to the letter of the texts by restricting access of defense legal assistants and investigators to the detainees, treating them as mere private visitors unless they carry a parcel sealed and marked as coming from counsel; in which case the privilege applies ... to the parcel. Counsel were also subjected to physical search as permitted by the Rules governing the detention.f? This change was badly felt and lived by defense teams already accustomed to a relaxed enforcement of the detention regulations. The environment of conflict generated by several restrictions, in addition to a tighter control of the defense bills, culminated in a defense strike in early 2004. Among the measures proposed by the Registrar to bring back an atmosphere of trust, was to order that the physical searches no longer be carried out on counsel, unless the walk-through metal detector raises an alarm when counsel pass it. As a compensatory measure, the Registrar drew up a list (not exhaustive) of forbidden items, which counsel were recommended not to bring with them when visiting the Detention Facility. The Registrar also agreed that whenever the particular circumstances of a case so warrant, a legal assistant may be permitted to hold working sessions with the accused in the absence of counsel and in the same privileged conditions afforded to counsel. The Ngeze case reported above (Section 5.4.3) also illustrates the judges' sensitivity when a potential breach of lawyer-client privilege is at stake. The dissenting judge was technically right in holding that counsel would not be in breach of lawyer-client privilege by supplying to the bench the information requested, which could enable him to better defend himself against the accusations proffered by the accused. However, the majority made a wise decision in not further pressing counsel who refrained from supplying the information, which he knew was detrimental to the accused. The majority did so because they knew that they could get around the difficulty while reaching the same conclusion. They had also certainly in mind-albeit not spelling it out in their 49

Rule 61.

290 • Defense in International Criminal Proceedings decision-that it could be difficult for triers of fact, even professional judges, to wipe out of their minds unfavorable evidence received in the context of incidental proceedings having nothing to do with the prosecution case. The position of the dissenting judge would certainly better suit a jury trial situation. ICTR has not yet experienced a situation where information obtained in breach of lawyer-client privilege is tendered as evidence before a Charnberi'' Pending new developments in this area, one is just left to speculate as to what would be the fate of such evidence, in view of Rule 95 of the Rules. This disposition bars from admission any evidence "if its admission is antithetical to, and would seriously damage the integrity of the proceedings." One may however draw a parallel with situations addressed by the Chambers and in which a piece of evidence was obtained in circumstances calling into question the legality of its use. A Chamber has recently denied admission of a statement of an accused taken while he was a suspect, although the person in question expressly waived his rights to be assisted by counsel during the questioning. The Chamber felt that the conditions of the waiver raised doubt as to its unfettered character;"! The Appeals Chamber had adjudicated earlier over a similar issue and had held the opposite view. It gave, in its decision, a lot of weight to the high profile of the accused to uphold the validity of his confession and subsequent guilty plea. The accused contended that his confession was not free from pressure and that he was also not effectively assisted by counsel. 52 This parallel illustrates the difficulty in predicting what reception the Chambers will accord to evidence allegedly tainted by a breach of the attorney-client privilege.

5.5. COMMUNICATIONS WITH A CLIENT IN CUSTODY* 5.5.1.

Introduction

In furtherance of the accused person's right to defend himself or herself, the Tribunal's law guarantees to the accused free and confidential communication with defense counsel. Neither the statutory provisions nor the jurisprudence, however, extend this guarantee to communications with investigators or others assisting counsel in the preparation of the defense.

50 The issue could have arisen in one case where the information purported to be tendered was privileged according to the defense. However, there was a preliminary issue of admissibility of the evidence to be addressed beforehand. The Chamber ruled against the admission of the evidence without getting to the issue of privileged information. See Prosecutor v. Thconcste Bagosora et al., Case No. ICTR-98-41-T, Decision on the Prosecutor Motion to Recall Witness Nyanjwa, Sept. 29, 2004. 51 The case is reported under Section 5.1.3.1: The Prosecutor v. Bagosora et al. Case No. ICTR-98-41-T, Decision on the Prosecutor's Motion for the Admission of Certain Materials Under Rule 89 (C), Oct. 14, 2004. 52 Jean Kambanda v. The Prosecutor; Case No. ICTR-97-23-A) Appeals Chamber Judgment of Oct. 19, 2000. See paras. 47 and 62. * Section 5.5 was written by Roman Boed.

ICTR • 291

5.5.2. 5.5.2.1.

Statutes, Rules and Official Legal Documents Statute Article 20: Rights ofthe Accused

[ ... ]

4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(b) To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing;

5.5.2.2.

Rules of Procedure and Evidence Rule 97: Lawyer-Client Privilege

(A) All communications between lawyer and client shall be regarded as privileged, and consequently disclosure cannot be ordered, unless: (i) The client consents to such disclosure; or (ii) The client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. (B) Nothing in this rule shall be interpreted as permitting the use of confidentiality between Counsel and Client to conceal the participation of Counsel in illegal practices such as fee-splitting with client.

5.5.2.3.

Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal orOtherwise Detained on the Authority ofthe Tribunal Rule 10

As soon as practicable after admission, each detainee shall be provided with information concerning legal, diplomatic and consular representation available to him. The detainee shall be given the opportunity at this time to notify, within reason, his family, his Counsel, the appropriate diplomatic or consular representative and, at the discretion of the Commanding Officer, any other person, of his whereabouts, at the expense of the Tribunal. ...

Rule 59 All correspondence and mail, including packages, shall be inspected for explosives or other restricted materials. The Commanding Officer, in consultation with the Registrar,

292 • Defense in International Criminal Proceedings shall lay down conditions as to the inspection of correspondence, mail and packages in the interests of maintaining order in the Detention Unit and to obviate the danger of escape.

Rule 61

(ii) All visitors must comply with the separate requirements of the visiting regime of the host prison. These restrictions may include personal searches of clothing and X-ray examination of possessions on entry to either or both of the Detention Unit and the host prison. Any person, including Defence Counsel for a detainee or a diplomatic or consular representative accredited to the Hose State, who refuses to comply with such requirements, whether of the Detention Unit or of the host prison, may be refused access.

Rule 65 Each detainee shall be entitled to communicate fully and without restraint with is Defence Counsel, with the assistance of an interpreter where necessary. Unless such Counsel and interpreter have been provided by the Tribunal on the basis of the indigence of the detainee, all such communications shall be at the expense of the detainee. All such correspondence and communications shall be privileged. All visits shall be made by prior arrangement with the Commanding Officer as to the time and duration of the visit and shall be subject to the same security controls as are imposed under Rule 61. The Commanding Officer shall not refuse a request for such a visit without reasonable grounds. Interviews with legal counsel and interpreters shall be conducted in the sight but not within the hearing, either direct or indirect, of the staff of the Detention Unit.

5.5.2.4.

Regulations to Govern the Supervision ofVisits to and Communications With Detainees 53

Issued by the Registrar of the Tribunal and the Commanding Officer pursuant to Rules 59 and 69 of the Rules Governing the Detention ofPersons Awaiting Trial or Appeal before the Tribunal Detained on the Authority of the Tribunal ("Rules ofDetention ").

These Regulations are subject to the provision of the Rules of Detention of the Tribunal and, where applicable, to its Rules of Procedure and Evidence. In particular, the rights of a detainee in respect of visits or communications are subject to any order prohibiting contact between the detainee and any other person made pursuant to Rule 64 of the Rules of Detention. Correspondence

1. A detainee has the right to send and receive mail to or from any person, subject to the following Regulations. 2. All mail entering or leaving the detention unit shall be inspected for explosives or irregular material by using X-ray and metal and explosives detectors.

53

Established by the ICTR Registrar in May 1996.

ICTR • 293 3. Incoming mail will be inspected on delivery at the United Nations Tribunal Headquarters. 4. The Commanding Officer may confiscate any item which, in his opinion, constitutes a threat to the security or good order of the detention unit or the host prison, or to the health or safety of any person therein. Any such item confiscated by the Commanding Officer shall be retained or disposed of in accordance with Rule 12 of the Rules of Detention. 5. Materials for outgoing mail, including postage, shall be for the cost of the detainee or, in the case of an indigent detainee, shall be provided upon confirmation from the Registrar that such costs shall be borne by the Tribunal. The Registrar may impose reasonable limits on the amount and weight of correspondence sent by any indigent detainee. An indigent detainee may at any time request the President to vary any such restrictions imposed by the Registrar. 6. All incoming and outgoing mail, other than items addressed to or sent by counsel for the detainee, the Tribunal, the Inspecting Authority or the diplomatic or consular representative accredited to the Host State or the State to which the detainee belongs or which takes charge of his interests, shall be subject to review by the Registrar.

7. The Commanding Officer shall forward all incoming and outgoing mail to or from a detainee, other than that addressed to or from counsel for the detainee, the Tribunal, the Inspecting Authority or the diplomatic or consular representative accredited to the Host State or the State to which the detainee belongs or which takes charge of his interests, to the Registrar. A log of all such mail shall be kept by the Commanding Officer with details of the name of the detainee, the name of the sender (if known) or of the addressee and the date on which it was sent to the Registrar-A copy of each entry shall be given to the detainee in a language he understands. 8. The Registrar shall, within twenty-four hours of receipt, open and read, or have read, each item of mail. Any item of opened mail which is not in breach of the Rules of Detention, or of these Regulations, or of an Order of the Tribunal, or gives no reasonable grounds otherwise to the Registrar to believe that the detainee may be attempting to arrange escape, interfere with or intimidate a witness, interfere with the administration ofjustice or otherwise disturb the security and good order of the detention unit, shall be delivered to the detainee or posted to the addressee immediately thereafter and the detainee informed accordingly. 9. If the Registrar finds there to have been a breach of these Regulations or of an Order of the Tribunal, the offending item of outgoing mail will be returned to the detainee together with a note from the Registrar, in a language the detainee understands, giving the reasons for refusal to post the offending item. The detainee shall then be given the opportunity to rewrite the item omitting the offending part. An offending item of incoming mail shall, in the sole discretion of the Registrar, either be returned to the sender or retained by the Registrar and the detainee shall be informed accordingly. A copy shall be kept by the Registrar of all offending items and any offending enclosure may be confiscated. The Registrar may also notify the Prosecutor, the Commanding Officer and, if deemed necessary, the Tanzanian authorities of the breach and the nature of the offending item.

294 • Defense in International Criminal Proceedings 10. A detainee may at any time request the President to reverse any such decision by the Registrar. 11. Correspondence addressed to or from counsel for the detainee shall not be interfered within any manner unless the Commanding Officer or the Registrar has reasonable grounds for believing that this facility is being abused in an attempt to arrange escape, interfere with or intimidate a witness or otherwise disturb the good order of the detention unit. In any such case, the Commanding Officer shall immediately forward the item in question to the Registrar, unopened, and shall enter details of the intercepted correspondence in the log referred to above and notify the detainee accordingly. The Registrar will then contact the counsel to whom the item is addressed or by whom it was sent and request counsel to open the item in his presence. Counsel may be required to explain to the Registrar, in one of the working languages of the Tribunal, the nature of the item and to hand over any offending item or enclosure. 12. Any item which is copied or confiscated under these regulations shall be retained by the Registrar. It shall not be handed over to the Prosecutor as evidence of contempt of the Tribunal pursuant to Rule 77 (C) of the Rules of Procedure and Evidence without prior notice and disclosure to counsel for the detainee. 13. A detainee whose mail has been intercepted or confiscated may make a formal complaint in accordance with the Complaints Procedure. 14. A detainee may receive parcels which will also be intercepted in accordance with these Regulations. Limits may be imposed by the Registrar as to the quantity and weight of parcels received. Parcels containing items that, in the sole discretion of the Commanding Officer, pose a threat to the safety and good order of the detention unit shall be confiscated and their contents retained or disposed of in accordance with Rule 12 of the Rules of Detention and the detainee informed accordingly. Telephone Calls

1. The Commanding Officer may, in consultation with the Registrar, place such restrictions upon the time that a detainee may spend on anyone telephone call as are reasonable for the good order of the detention unit. 2. All incoming calls for a detainee shall be received by the Commanding Officer or a member of the staff of the detention unit. Details of the call, including the name and contact telephone number of the caller and the time and date of the call shalll be noted by the Commanding Officer or member of staff and passed to the detainee. The Commanding Officer may, at his sole discretion, permit a detainee to receive an incoming call in an emergency. 3. Outgoing calls may be made by a detainee, on request to the Commanding Officer, between 9.00 a.m.-5.00 p.m., subject to the reasonable demands of the schedule of the detention unit. In exceptional circumstances, the Commanding Officer, at his sole discretion, may permit a detainee to make calls outside these times, unless the calls of the detainee are being monitored by order of the Registrar made in accordance with paragraph 7 of these Regulations. 4. Outgoing calls shall be for the expense of the detainee or, in, case of an indigent detainee, upon confirmation from the Registrar that such costs shall be borne by the Tribunal. The Registrar may impose reasonable limits on the number and duration of

ICTR • 295 calls made by any indigent detainee. An indigent detainee may at any time request the President to vary any such restrictions imposed by the Registrar. 5. If the Commanding Officer believes that he has reasonable grounds for intervention, he may immediately terminate a call and advise the detainee of his reasons for so doing. The Commanding Officer shall also report the matter to the Registrar. 6. Telephone conversations will not be recorded or monitored unless the Commanding Officer or the Registrar has reasonable grounds for believing that the detainee may be attempting to arrange escape, interfere with or intimidate a witness or otherwise disturb the maintenance of good order in the detention unit or where an Order for nondisclosure has been made by aJudge or a Chamber pursuant to Rule 75 of the Tribunal's Rules of Procedure and Evidence.

7. In such cases, the Registrar may order all telephone calls to and from that detainee, other than with counsel, to be monitored for a period not exceeding one month. Renewal or extension of period shall be reported to the President. The detainee shall be notified of the Registrar's decision within twenty-four hours. 8. The detainee may at any time request the President to reverse any such decision by the Registrar. 9. A log of all such cans shall be kept by the Commanding Officer, with details of the name of the detainee, the number called, the name of the other party if known, the reason for monitoring and the date on which the Registrar made the relevant order. A copy of each entry shall be given to the detainee in a language he understands. 10. Details of all monitored calls shall be forwarded to the Registrar within twenty-four hours, who shall make a determination whether to listen to, or have transcribed and read, each individual recorded call. 11. If, having reviewed a call, the Registrar determines that there has been no breach of the Rules of Detention or of these Regulations and the call does not provide any other reason for further action, the tape recording of the call shall be erased within forty-eight hours. 12. If the Registrar finds there to have been a breach of the Regulations or of an Order of the Tribunal, the offending call will be transcribed by the Registry and, where necessary, translated into one of the working languages of the Tribunal. The Registrar may notify the Prosecutor, the Commanding Officer and, if deemed necessary, the Tanzanian authorities of the nature of the breach. 13. Any item which is transcribed under these Regulations shall be retained by the Registrar. It shall not be handed over to the Prosecutor as evidence of contempt of the Tribunal pursuant to Rule 77 (C) the Rules of Procedure and Evidence without prior notice and disclosure to counsel for the detainee. 14. A detainee whose calls have been monitored may make a formal complaint in accordance with the Complaints Procedure. Visits

1. The Commanding Officer shall, in consultation with the Registrar, fix the daily visiting hours for all visitors other than counsel, taking into account the reasonable demands of the early schedule of the detention unit and the facilities available.

296 • Defense in International Criminal Proceedings 2. Subject to the provisions below, counsel may make arrangements by telephone with the Commanding Officer to visit a detainee at any time from 9.00 a.m.-5.00 p.m. A detainee may request a visit from his counsel outside these hours. Such a request shall be granted at the sole discretion of the Commanding Officer. 3. The Registrar shall automatically issue defence counsel with a written permit for unlimited visits as soon as such counsel is entered on the record or assigned by the Tribunal. The Registrar may issue permits to counsel for individual visits prior to the initial appearance of the detainee based on a written request from the detainee, identifying the counsel in question. 4. All visitors to the detention unit, other than the counselor a representative of the Tribunal, shall first apply to the Registrar for permission to visit a named detainee. Permission may be applied for in writing in one of the working languages of the Tribunal, or application may be made in person to the Registrar not later than the working day prior to which the visit is requested. 5. Permission shall be granted for such visits unless the Registrar or the Commanding Officer has reasonable grounds for believing that the detainee may be attempting to arrange escape, interfere with or intimidate a witness or otherwise disturb the maintenance of good order in the detention unit. The Commanding Officer shall be given a copy of all permits issued. 6. Both the detainee and the visitor shall be notified in writing, by the Registrar, of any request for permission to visit which is denied, giving reasons for such refusal. 7. Either the detainee or the visitor may request the President to reverse any such decision by the Registrar. 8. The detainee must be informed of the identity of each visitor and may refuse to see any visitor other than a representative of the prosecutor. 9. The written permission of the Registrar, together with some official identification bearing a current photograph, must be produced by all visitors in order to gain access to the premises of the host prison and of the detention unit. 10. All persons, including defence counsel and diplomatic representatives, are subject to the security requirements of the host prison, including personal searches of clothing and X-ray examination of possessions on entry, pursuant to the Agreement on Security and Order. 11. All persons, including defence counsel and diplomatic representatives, are also subject to personal searches of clothing and X-ray examination of counsel shall not extend to reading or copying documents brought to the detention unit by defence counsel. 12. No visitor, other than counsel, may pass any item to a detainee during a visit. Any items intended for a detainee must be handed to the staff of the detention unit on entry and shall be dealt with as provided for in Rule 17 and 78 of the Rules of Detention. 13. Counsel may pass papers to and from a detainee during a visit. Any quantity of documents which is too large to be physically passed over by counsel to the detainee at the visiting facility shall be handed to the Commanding Officer who shall pass them unopened and unread to the detainee. All such documents shall be treated as mail for the purposes of these regulations and, in particular, Regulation 11 concerning incoming mail shall apply.

ICTR • 297 14. If the Commanding Officer believes that he has reasonable grounds for intervention, or that these Regulations are being breached in any way, he may immediately terminate the visit and advise the detainee and the visitor of his reasons for so doing. The visitor may be required to leave the detention unit and the Commanding Officer shall report the matter to the Registrar. This provision applies equally to visits by defence counsel. 15. All visits shall be conducted within the sight of the staff of the prison unit. Discussions between the detainee and the visitor shall not be recorded unless the Commanding Officer has reasonable grounds for believing that the detainee may be attempting to arrange escape, interfere with or intimidate a witness or otherwise disturb the maintenance of good order in the detention unit or where an Order for nondisclosure has been made by aJudge or a Chamber pursuant to Rule 75 of the Tribunal's Rules of Procedure and Evidence. 16. In such cases, the Registrar may, at the request of the Commanding Officer or otherwise, order that all visits to that detainee, other than by counsel, be recorded for a period not exceeding seven days. Renewal or extension of the period shall be reported to the President. The detainee shall be notified of the request and of the Registrar's decision within twenty-four hours. 17. The detainee may at any time request the President to reverse any such decision by the Registrar. 18. A log of all such visits shall be kept by the Commanding Officer, with details of the name of the detainee, the name and address of the visitor, the reason for monitoring and the date on which the Registrar made the relevant order. A copy of each entry shall be given to the detainee in a language he understands. 19. Every forty-eight hours, the Registrar, taking into account the status and identity of the other party (where known), the security risk posed by the detainee and the stated reasons for monitoring, shall make a determination whether to listen to, or have transcribed and read, the record of each individual visit. 20. If the Registrar finds there to have been a breach of the Regulations or of an Order of the Tribunal, the offending conversation will be transcribed by the Registry and, where necessary, the Tanzanian authorities will be informed of the nature of the breach. 21. Any item which is transcribed under these Regulations shall be retained by the Registrar. It shall not be handed over to the Prosecutor as evidence of contempt of the Tribunal pursuant to Rule 77 (C) the Rules of Procedure and Evidence without prior notice and disclosure to counsel for the defence. 22. A detainee whose visits have been recorded by order of the Registrar may make a formal complaint in accordance with the Complaints Procedure. BRIEF TO ALL OTHER PERSONS REGARDING VISITS TO DETAINEES The following guidelines must be adhered to by all persons wishing to visit a detainee at the United Nations Detention Facility. The relevant reference document is the "Regulations to Govern the Supervision of Visits to and Communications With the Detainees." (1) Rule 1, of the section relating to Visits, of the above mentioned Regulations states that the Commanding Officer shall, in consultation with the Registrar, fix the daily vis-

298 • Defense in International Criminal Proceedings iting hours for all visitors other than counsel, taking into account the reasonable demands of the early schedule of the detention unit and the facilities available. Therefore permission to visit a detainee will only be granted provided that there is sufficient space to accommodate the visitor. (2) Rule 4 of the Regulations stipulates that all visitors to the detention unit shall first apply to the Registrar for permission to visit a named detainee. All visitors must contact the Tribunal no less than 48 hours prior to the intended visit to allow time for an investigation to be made. This investigation will confirm the information given by the proposed visitor. Any visitor failing to give at least 48 hours notice will be denied the right to visit a detainee. (3) Permission for such visits will be granted unless the Registrar or the Commanding Officer has reasonable grounds for believing that the detainee may be attempting to arrange escape, interfere with or intimidate a witness or otherwise disturb the maintenance or good order in the detention unit. This is in accordance with Rule 5 of the Regulations. (4) On arrival at the Detention Facility all visitors must be prepared to adhere to the Regulations to Govern the Supervision of Visits to and Communications With the Detainees. Any failure to follow the guidelines will result in a refusal, by the Commanding Officer, to allow the visitor to meet with his or her named detainee, and the submission, to the Registrar, of a written report concerning the incident. (5) As provided for in Rule 10 of the Regulations, all visitors to the Detention Facility must provide the written permission of the Registrar along with some official identification bearing a current photograph in order to gain access to the premises of the Detention Unit. Failure to provide such documents will result in a refusal of entrance to the Detention Facility. (6) All visitors to the premises will be subject to an X-Ray examination of possessions on entry into the Detention Facility, as provided for in Rule 10 of the Regulations. In addition, visitors may be subjected to personal searches of clothing. Failure to submit to the above security checks will result in the visitor being asked to leave the premises and the Commanding Officer shall report the matter to the Registrar. (7) According to Rule 12 of the Regulations no visitor may pass any item to a detainee during a visit. Any items intended for a detainee must be handed to the staff of the Detention Facility on entry.

(8) Rule 14 stipulates that if the Commanding Officer believes that he has reasonable grounds for intervention, or that these Regulations are being breached in any way, he may immediately terminate the visit and advise the detainee and the visitor of his reasons for doing so. The visitor may be required to leave the Detention Facility and the Commanding Officer shall report the matter to the Registrar. (9) All visits shall be conducted in the visitors' booths within the sight of the staff of the prison unit. Discussions between the detainee and the visitor will be monitored at all times, however they shall not be recorded unless the Commanding Officer has reasonable grounds for believing that the detainee may be attempting to arrange escape, interfere with or intimidate a witness or otherwise disturb the maintenance or good order in the detention unit. This is provided for in Rule 15 of the Regulations.

ICTR • 299

5.5.3.

Case Law and Practice 54

The Prosecutor \t. Rutaganda-Decision on the Defense's Motion Requesting Permission for its Investigator toVisit the Accused in the Detention Facilities, Case No. ICTR-96-3, June 11, 1997

HAVING BEEN SEIZED by a motion of 17 February 1997 filed by the Defence pursuant to Rule 54 of the Rules of Procedure and Evidence, requesting that the accused, Georges A. N, Rutaganda, while detained at the Tribunal's Detention Facilities in Arusha, should be permitted to receive visits by one Phillip Sherman Taylor, who is alleged to be employed by the Defence Counsel as an investigator and who has been denied access at several occasions by the Commanding Officer to the premises of the Tribunal's Detention Facilities for lack of any documentation of his employment issued by the Tribunal;

AFTER HAVING DELIBERATED, WHEREAS Rule 61 of the Rules of Detention does allow the detainees to receive visits from "family, friends and others," subject only to the provisions of Rule 64 of the said Rules and to such restrictions and supervision as the Commanding Officer may impose in consultation with the Registrar; WHEREAS only visits to the detainees by their Defence Counsels and by representatives of the Prosecutor can be rendered without any restriction or supervision, subject to prior consultation with the Commanding Officer; WHEREAS, in contrast, all other visits to a detainee by his "family, friends and others" would have to be granted in each case and monitored by the Commanding Officer according to Rule 61 of the Rules of Detention, subject to the standard restrictions and measures of supervision imposed by the Commanding Officer after consultation with the Registrar; WHEREAS, for this purpose, the Commanding Officer, with the agreement of each accused, keeps a record of the identity of those family members, friends and others who may request permission to visit each accused, to the effect that persons whose names do not appear on this list will have to be scrutinized by the Commanding Officer before any decision is taken on whether or not they can be granted the visit; WHEREAS, furthermore, a private investigator employed by a Defence Counsel can only meet with the accused without any such restrictions or measures of supervision imposed by the Commanding Officer if he is accompanied by the Defence Counsel in person; WHEREAS, consequently, all visits rendered by a private investigator to the accused without being accompanied by the Defence Counsel shall be granted by the Commanding Officer upon documentation issued by the Registrar confirming the proper engagement as an investigator by the Defence, and subject to the restrictions and measures of supervision normally applied to visits by "others" within the meaning of Rule 61 of the Rules of Detention. 54 The texts are reproduced here as they appear in the original, except that internal citations are generally omitted.

300 • Defense in International Criminal Proceedings FOR THESE REASONS, THE TRIBUNAL DECIDES to grant relief to the motion filed by the Defence in order to allow the private investigator Phillip Sherman Taylor hired by the Defence Counsel in this case to meet with the accused Georges A.N. Rutaganda in the Tribunal's Detention Facilities upon documentation issued by the Registrar confirming the proper engagement as an investigator by the Defence, and subject to the restrictions and measures of supervision normally applied to visits by the accused's family, friends and "others" within the meaning of Rule 61 of the Rules of Detention.

The Prosecutor \t. Mugiraneza et al.-Decision on the Defense Urgent Motion for Relief Under Rule 54 to Prevent the Commandant ofthe UNDF From Obstructing the Course of International Criminal Justice, Case No. ICTR-99-50, September 19, 2001

BEING SEIZED of the "Urgent Motion for Relief under Rule 54 to Prevent the Commandant of the UNDF from Obstructing the Course of International Criminal Justice" (the "Motion") filed by Counsel for Prosper Mugiraneza on 20 March 2001;

HAVING DELIBERATED, 1. The Chamber, having identified several issues arising from the Parties' submissions, will review them and decide upon them in the following order: (a) the principles applicable to Defence Investigators in respect of communication from Counsel to Accused; (b) the alleged incident of 12 March 2001; (c) the alleged incident of 14 March 2001. (a) Principles Applicable to Defence Investigators in Respect of Communication from Counsel to Accused

2. The Defence submits that Defence Investigators should be granted the same privileges as Defence Counsel in regard to visits to the Accused at the United Nations Detention Facility (the "UNDF"), and notably that: (i) Defence Investigators should be authorised to personally hand over communications from Counsel to Accused; and (ii) The contents of such privileged correspondence should never be inspected by the UNDF Security Officers, including when brought by the Investigators. Rights ofDefence Investigators in Respect of Transmission of Privileged Correspondence between Counsel and Accused

3. In respect of the Defence submissions, the Trial Chamber notes, as recalled by the Registrar, that Trial Chamber I of the Tribunal held in the "Decision on the Defence Motion Requesting Permission for Its Investigator to Visit the Accused in the Detention Facilities" rendered on 11 June 1997 in Prosecutor v. Rutaganda (Case No. ICTR-96-3T), that Defence investigators do not have the same privileges as Defence Counsel with regard to visits to detainees. The Chamber indeed ruled in the said Decision that "only

ICTR • 301 visits to the detainees by their Defence [Counsel] [... ] can be rendered without any restriction or supervision, subject to prior consultation with the Commanding Officer" and that Defence Investigators may only visit detainees at the UNDF "subject to the restrictions and measures of supervision normally applied to visits by the accused's family, friends and 'others' within the meaning of Rule 61 of the Rules of Detention." 4. The Chamber however held, in the said Decision, that" [an] investigator employed by a Defence Counsel can [... ] meet with the accused without any such restrictions or measures of supervision imposed by the Commanding Officer if he is accompanied by the Defence Counsel in person." 5. Pursuant to the said Rule, "[d]etainees shall be allowed ... to receive visits from their family and friends [... ] under such restrictions and supervision as the Commanding Officer, in consultation with the Registrar, may deem necessary" (Emphasis ours). Adopted under the authority of Rule 61 of the Rules of Detention, Regulation 40(A) of the Regulations further provides that" [n] 0 visitor, other than counsel, may pass any item to a detainee during a visit" and Regulation 40 (B) of the Regulations that" [a] ny items intended for a detainee must be handed to the staff of the detention unit on entry [ ... ]."

6. The Chamber therefore recalls that under Regulation 40 of the Regulations, transmission of any item to the Accused, including privileged correspondence from Counsel, is to be carried out by the Registry, following the applicable procedure in this respect. Transmission of any item directly to the Accused is only allowed when Counsel in person brings such items.

7. The Chamber recalls in this respect that Regulation 11 of the Regulations protects in any event the confidentiality of communications between Counsel and detainee in stating that, as a matter of principle, "[c]orrespondence addressed to or from Counsel for the detainee shall not be interfered with in any manner (... )." Confidentiality of Correspondence or Communications from Counsel to Accused Carried by Members of the Defence Teams other than Counsel

8. The Chamber acknowledges, as submitted by the Defence, that the right to communicate freely and confidentially with Counsel is a fundamental right with respect to the preparation of an accused's defence and the fairness of the proceedings before the Tribunal, notably pursuant to Articles 19 and 20 of the Statute. It is therefore in the light of the fundamental rights of the Accused that Rule 65 of the Rules of Detention provides that "[e]ach detainee shall be entitled to communicate fully and without restraint with his Defence Counsel" and that" [a] 11 such correspondence and communications shall be privileged," so that its contents shall not be inspected by the Security Officers, and further, so that such correspondence shall not be retained by the said Security Officers. 9. The Registrar submits in respect of such privileged correspondence, when brought by Investigators, that "it is far from clear that the Registry can or should repose the same degree of trust in the Investigators [as in Counsel]. They are not members of a profession which can regulate their behaviour or sanction it if necessary." The Defence replies that the detainee's Investigator, Mr. Ignace Rudahunga, is a member of the Bar of Mozambique and is appointed as an Investigator by the Registrar of the Tribunal.

302 • Defense in International Criminal Proceedings 10. The Chamber, in any case, notes that Rule 65 of the Rules of Detention only applies to communication between detainee and Defence Counsel, as opposed to communication between detainees and Investigators of the Defence team. It is the Chamber's view indeed that this Rule, which is self-explanatory, does not entitle a detainee to communicate fully and without restraint with any other person than his Defence Counsel, including, for that matter, with a Defence Investigator. 11. In view of the above, the Chamber does not agree with the Defence submission, relying on the definition of the term "Counsel" laid out in Article 8(3) of the Code ("Counsel includes employees or associates of Counsel and all others whose services are used by Counsel"), that such broad definition should be applied to Defence Investigators carrying alleged communications from Counsel to the Accused. The Chamber indeed notes that this definition only applies, as stated in Article 8(3) of the Code, "[f]or the purposes of [the said] Article"; that is, in respect of the duty made to Counsel to "preserve the confidentiality of his client's affairs" (Article 8 (1) of the Code). For the same reasons, the Chamber does not accept the Defence submission that Mr. Rudahunga, because he is a member of the Bar of Mozambique and is appointed by the Registrar of the Tribunal as an investigator, should have the same privileges as Counsel. 12. Therefore, should correspondence or communications from Counsel to the Accused be brought by a member of a Defence team other than Counsel, such correspondence or communications, regardless of format, shall be considered privileged pursuant to Rule 65 of the Rules of Detention, and their contents neither examined nor censored, only if the correspondence is clearly identified as emanating from Counsel, and secured in such a manner as to prevent persons other than the intended recipient from seeing the contents of the communication or correspondence. 13. A contrario however, the Security Officers may inspect the content of any communication that is not clearly identified as falling under lawyer-client privilege, regardless of format, when such communication is brought by members of a Defence team other than Counsel. 14. Having thus recalled, for the sake of clarity, the principles in force, the Chamber now turns to their application to the present case. (b) The Alleged Incident of 12 March 2001

15. The Defence submits that on or about 12 March 2001, Mr. Ignace Rudahunga, an investigator, who was part of their Defence team, was searched and subsequently forbidden to take into the UNDF a computer diskette containing confidential information related to the Accused's case which he intended to deliver to the detainee Prosper Mugiraneza. According to the Defence, this constitutes a violation of the Accused's individual rights, notably in respect of Articles 19 (1) and 20 (2) of the Statute. It is not disputed by the Registrar that an incident took place on 12 March 2001. 16. The Chamber notes that the Defence does not submit that Investigator Rudahunga presented himself at the UNDF in the company of Counsel on 12 March 2001. Neither does the Defence submit, in their Motion, that the diskette carried by Investigator Rudahunga on 12 March 2001 was identified as containing correspondence to the Accused from Counsel, as opposed to the two diskettes brought on 14 March 2001, which they specify in the Motion "were marked 'Confidential Material from/to Counsel'."

ICTR • 303 17. In his further Representations, the Registrar indicates that the diskette brought on 12 March 2001 by the Defence Investigator "was not marked in any way." The Defence however replies, in the Response, that Counsel personally marked the diskettes and that the Registrar's assertion therefore is "simply untrue." 18. The Chamber notes in this regard that the Defence did not originally submit, in the Motion, that the diskette carried by Investigator Rudahunga on 12 March 2001 was identified as containing correspondence to the Accused from his Counsel, whereas they specified, in the said Motion, that the two diskettes brought on 14 March 2001 "were marked 'Confidential Material to/from Counsel'." 19. Considering this discrepancy between the Defence submissions in the Motion and the Response, as opposed to the firm refutation in this respect by the Registrar, the Chamber is not satisfied that the diskette brought on 12 March 2001 was properly identified as containing privileged communication from Counsel to the Accused. 20. In view of the principles referred to above, the Chamber therefore concludes that, on 12 March 2001, the UNDF Security Officer in charge acted lawfully as submitted by the Registrar and as not disputed by the Defence as follows, in: (i) Searching the Investigator, upon which search a computer diskette was found in the Investigator's briefcase; (ii) Proposing to the Investigator to leave the diskette at the Security Desk "for subsequent handling over to detainee Prosper Mugiraneza, following censorship" (Registrar's further Representations) "with a view to [the Commanding Officer's] checking whether the contents were materials relating to the detainee's defence" (Registrar's Representations); which proposition appears to have been at first accepted by the Defence Investigator; (iii) Refusing to hand over the diskette when the Defence Investigator thereupon returned to the security desk and requested the diskette in order to hand it over to the Accused; the Defence Investigator thereafter retrieved the diskette from the Security Officer in charge, and placed it back in to his briefcase; (iv) Returning the briefcase to the Defence Investigator, the diskette contained therein, upon the latter's departure from the UNDF, after his meeting with the Accused. 21. For the above reasons, the Chamber dismisses, in respect of the events of 12 March 2001, the prayers for Orders made by the Defence: (i) "That the Commandant of [the UNDF] shall forthwith cease to obstruct the course of international criminaljustice"; (ii) That the Defence investigator be allowed to enter the UNDF with computer diskettes containing documents in electronic format (. . .)"; (iii) "That it be declared that the conduct of the said Commandant [of the UNDF] was [... ] unlawful"; (iv) "That the Commandant be required to appear before the Trial Chamber [... ] so that an inquiry may be conducted into whether his act or acts constitute a contempt of the Tribunal [... ] or whether the acts of any of his subordinates or of any other person who has participated in such act or acts constitute a contempt of the Tribunal [... ]";

304 • Defense in International Criminal Proceedings (c) The Alleged Incident of 14 March 2001

22. The Defence submits that, on or about 14 March 2001, Defence Investigator Ignace Rudahunga, upon being searched, was forbidden to enter the UNDF with two computer diskettes, so as to hand them over to the Accused. The Defence, in addition, submits that, even though the said diskettes contained confidential information pertaining to the case of Prosper Mugiraneza and were marked as "Confidential Material from/to Counsel," they were examined. 23. The Chamber notes that the Registrar's first Representations acknowledged that incidents had taken place "on the two dates [of 12 and 14 March 2001] ." According to the Registrar in his further Representations however, "[ t] 0 the best knowledge of the Commanding Officer [of the] UNDF no incident took place on 14 March." The Chamber regrets this discrepancy and recalls to the Registrar and all members of the Registry the necessity to be complete and accurate in their representations when acting as officers of the Tribunal. 24. The Defence explicitly submits that an incident did take place at the UNDF on 14 March 2001 and replies that the Registrar's representation is "untrue." In view of the said discrepancy between the Registrar's Representations and his further Representations, the Chamber is not in a position to conclude whether or not an incident took place on or about 14 March 2001. 25. In any case, even if an incident took place on 14 March 2001, the Chamber notes that the UNDF Security Officer in charge would have acted in accordance with the principles referred to above, by allegedly: (i) Searching the Investigator, upon which search two computer diskettes were found; (ii) Refusing to hand over the diskettes to the Accused. 26. The Chamber however notes that the Defence submits that the diskettes were examined, even though marked as "Confidential Material from/to Counsel." Such an act would be in breach of the principle that correspondence for the detainee addressed to or from Counsel shall not be interfered with in any manner. The Chamber nevertheless is not satisfied by the Defence submission that the Security Officer in charge may have examined or censored the diskettes with respect to their contents thereby acting unlawfully. 27. The Chamber therefore dismisses, in respect of the alleged events of 14 March 2001, the prayers for Orders made by the Defence: (i) "That the Commandant of [the UNDF] shall forthwith cease to obstruct the course of international criminaljustice"; (ii) That the Defence investigator be allowed to enter the UNDF with computer diskettes containing documents in electronic format (. . .)"; (iii) "That it be declared that the conduct of the said Commandant [of the UNDF] was [... ] unlawful"; (iv) "That the Commandant be required to appear before the Trial Chamber [... ] so that an inquiry may be conducted into whether his act or acts constitute a

ICTR • 305 contempt of the Tribunal [... J or whether the acts of any of his subordinates or of any other person who has participated in such act or acts constitute a contempt of the Tribunal [... J." FOR THE ABOVE REASONS, THE TRIBUNAL DISMISSES the Urgent Defence Motion for Relief under Rule 54 of the Rules.

The Prosecutor \t. Nahimana etal.-Decision on the Defense Motion for Declaratory Relief From Administrative Measures Imposed on Hassan Ngeze at the UNDF, Case No. ICTR-99-52, May 9, 2002

BEING SEIZED OF a Defence motion dated 16 April 2002 filed on 17 April 2002 by Counsel for Hassan Ngeze opposing the policies and practices of the Registrar's office that are interfering with the Rights of Hassan Ngeze. The Defense requests that the Chamber take whatever action they deem appropriate to protect Mr. Ngeze's right to Counsel, which includes the Right of Attorney-Client Privilege;

SUBMISSIONS OF THE PARTIES Submissions of the Defence

The Defence submits that the Registrar is acting in violation of Article 20 of the Statute and Rule 97 of the ICTR Rules: firstly, by intercepting a package addressed to lead Counsel by Hassan Ngeze and proposing to inspect the same in the presence of Counsel. Secondly, by denying access to Hassan Ngeze by the Defence Assistant and Investigator. The Defence complains that attorney / client privilege is being breached by the Registrar and Hassan Ngeze's right to freely communicate with his Counsel is obstructed. The Defence requests that the package be either sent or returned unopened to Hassan Ngeze or deposited with the Chamber. The Defence also requests that the Chamber issue an order allowing Ms. Leblanc andJoseph Nzakunda or any other duly appointed Assistant or Investigator to visit with Mr. Ngeze.

Registrar's Response

The Registrar submits that the motion is not admissible for the reason that the Accused did not use the proper procedure to settle the issues addressed in his motion. With regard to the interception of his package by the UNDF management, the Accused should have followed Rule 82 and 83 of the Detention Rules. Instead the Accused directly seized the Trial Chamber without submitting a written complaint to the Commanding Officer. The Registrar submits that the package was intercepted at the UNDF under the applicable rules and regulations upon reasonable belief that the contents might be violative of the said rules, the reasons for which are set out in some detail in the response. The Registrar believes that Regulation 11 of Detainees Visiting Regulations should be imple-

306 • Defense in International Criminal Proceedings mented and that the package be opened in the presence of the Counsel. Furthermore, in view of Mr. Ngeze's letter dated 3rd April 2002, it would be against public policy to allow Mr. Ngeze to use Rule 97 of the Rules in order to circumvent the Detention rules and regulations intended for the good administration of the Detention Unit. Regarding the Lawyer/Client privilege issue, this privilege cannot be extended to Assistants and Investigators at the UNDF. Pursuant to Article 8 (2) (b) of the Code of Conduct, the right to lawyer-client privilege is affected where the contents of the communication have been disclosed to a third party. In this particular instance, Hassan Ngeze disclosed the information in a letter dated 3 April 2002, to the Registrar.

DELIBERATIONS

On the merits of the motion, the Chamber considers Rule 59 of the Detention Rules, which provides that: "All correspondence and mail, including packages, shall be inspected for explosives or other restricted materials. The Commanding Officer, in consultation with the Registrar, shall lay down conditions as to the inspection of correspondence, mail and packages in the interests of maintaining order in the detention unit and to obviate the danger of escape." In accordance with this Rule, The Commanding Officer established the Detainees Visiting Regulations. In particular, Regulation 11 is pertinent to the issue before the Chamber. It stipulates that: "Correspondence addressed to or from counsel for the detainee shall not be interfered within any manner unless the Commanding Officer or the Registrar has reasonable grounds for believing that this facility is being abused in an attempt to arrange escape, interfere with or intimidate a witness or otherwise disturb the good order of the detention unit. In any case, the Commanding Officer shall immediately forward the item in question to the Registrar, unopened." Having regard to the background information included in the Registrar's submission, the Commanding Officer of the Detention Facility had "reasonable grounds to suspect abuse of facility to disturb the good order of the Detention Unit." In the letter dated 3 April 2002 addressed to the Registrar, the accused stated, "What I assure you is that all these mails 37 letters will be sent to the addresses using Registry cost of course and you will never know." Accordingly, it is the view of the Chamber that the action taken by the Registry is authorized under the Rules and Regulations. The Chamber agrees with the Registrar's submission that the Attorney/client privilege, in this instance, was waived by the accused when he communicated to persons other than his counsel, the content and nature of the documents. In respect of the accused's access to the Assistant and Investigator, the Chamber notes that Rule 65 of the Detention Rules provides that each detainee shall "be entitled to communicate fully and without restraint with his Defence counsel [-]. The Commanding Officer shall not refuse a request for such a visit without reasonable grounds." The Rule refers to Defense Counsel and not to

ICTR • 307 Counsel's Assistant or his Investigator. The Chamber recalls the Tribunal's Decisions in The Prosecutor v. Georges Rutaganda and The Prosecutor vs. Mugiraneza where the Tribunal clearly ruled that even if the assistant is a lawyer, he does not have the same rights and privileges as Counsel. The Chamber agrees with the reasoning in those cases.

FOR THE FOREGOING REASONS THE CHAMBER: 1. DISMISSES the Defence motion. 2. DIRECTS Lead Counselor Co-Counsel to comply with the measures put in place by the Registrar with regard to the intercepted package, before the resumption of the media trial.

The Prosecutor \t. Bizimungu-Decision on the Defense Motion to Protect the Applicant's Right to Full Answer and Defense, Case No. ICTR-99-50, November 15, 2002

ARGUMENTS OF THE PARTIES AND SUBMISSIONS OF THE REGISTRAR The Defence

1. The Defence submits that on or around 15 March 2002, the United Nations Detention Facility (the "UNDF") authorities refused to allow Mr. Ephrem Munyankaka, an investigator of the Defence team, to have a working visit with the Accused, instead permitting the investigator to have a I5-minute private visit.

2. The Defence requests that the Chamber reinstate the visiting rights of the investigator and legal assistant who are members of the Accused's Defence team. The Defence alleges, inter alia, that preventing members of the Defence team from conducting privileged meetings with the Accused: a.

Violates the Accused's rights to "adequate time and facilities for the preparation of his or her defence and to communicate with Counsel of his or her choosing," pursuant to Article 20 of the Statute;

b.

Violates the Accused's right to privileged communication with Defence Counsel pursuant to Rule 65 of the Rules of Detention;

c.

Is contrary to purpose and objective of the Rules of Detention;

d.

Makes it impossible for Defence Counsel to fulfil her duty of representing the Accused "at reasonable cost"; and

e.

Increases costs to the Tribunal.

3. The Defence further argues that investigators should be granted the same privileges as Counsel under Rule 65 of the Rules of Detention. The Defence argues that investigators and assistants work under the supervision of Counsel, that Counsel is answerable for the acts of Defence team members and that Defence Counsel can be sanctioned for the improper actions of an investigator by the bar and the Tribunal, pursuant to Rule

308 • Defense in International Criminal Proceedings 46 of the Rules. The Defence cites the obligations of Defence Counsel to supervise the Defence team under Article 8 of the Code of Conduct, and cites English legal doctrine supporting the right to confidentiality of communications between accused and agents of Defence Counsel. 4. The Defence further calls the Chamber's attention to a Memorandum sent on 20 March 2002 to all Defence Counsel from the LDFMS, which stated that all visits of assistants and investigators to accused persons shall be granted "under such restrictions and supervision the Commanding Officer may deem necessary." Citing the Tribunal's Decisions in Rutaganda and Mugiraneza, the Memorandum asserted that visits by investigators fall under the provisions of Rule 61 of the Rules of Detention. 5. The Defence adds that the Rutaganda Decision, denying a private investigator unrestricted visits to an accused, distinguishes between private investigators hired by Defence Counsel and those recognised by the Registrar. 6. The Defence argues that the Mugiraneza Decision denying privileged visits to an authorised investigator incorrectly relied on the Rutaganda Decision's analysis of Rule 61 of the Provisional Rules of Detention, governing visits by "family, friends and others." The Defence notes that at the time of the Mugiraneza Decision, the Provisional Rules of Detention were no longer in effect, and that the new Rule 61 omitted the words "and others." The Defence submits that since legal assistants and investigators are not family or friends, the Tribunal in the Mugiraneza Decision erred in ruling that Rule 61 governs their visits. The Defence further notes that Rule 61 appears under the section of the Rules entitled "Rights of Detainees," and should not be interpreted to limit a detainee's rights.

7. The Defence submits that the Rules of Detention are meant to safeguard the security and good administration of the UNDF, and not to supervise the management of the Defence case. The Defence argues that the interpretation of Rule 65 of the Rules of Detention espoused by the Registrar and articulated in the Mugiraneza Decision unfairly prejudices the Accused's ability to prepare an adequate defence. 8. The Defence notes its own obligation under the Code of Professional Conduct to represent the Accused "effectively, diligently and at reasonable cost" and that in order to discharge this obligation Counsel must delegate tasks to assistants, including investigators. 9. The Defence argues that allowing investigators and assistants to meet directly with their clients would save the Tribunal significant costs in transportation, per diem and fees. The Defence points out that in the instant case, the investigator resides in Africa, and notes that if the Tribunal prohibits the investigator from meeting directly with the Accused, Lead Counsel will be obliged to personally file requests for both her and the investigator seeking authorisation to meet the client, resulting in increased fees. 10. The Defence notes that in practice, before March 2002, the Registrar had authorised assistants and investigators to meet the Accused under the same conditions as Counsel.

ICTR • 309 The Prosecution

11. The Prosecution has no objection to the Motion. The Registrar's Representation Pursuant to Rule 33 (B) of the Rules

13. The Registrar submits that investigators and legal assistants do not have the status of Counsel and that therefore lawyer-client privilege does not extend to meetings between an accused detainee and investigators and/or assistants. 14. The Registrar submits that Article 8(3) of the Code applies only to Counsel's duty towards a client. The Registrar asserts that investigators and legal assistants, while bound to preserve the confidentiality of their clients, do not benefit from privilege and, therefore, their visits fall within the ambit of Rule 61 of the Rules of Detention. 15. The Registrar, citing the Mugiraneza Decision, submits that whether or not the investigator is a lawyer or appointed by the Registrar is irrelevant. 16. The Registrar asserts that "for good administration ofjustice as well as good administration of the detention unit," Defence Counsel must meet directly with the detainee, and, if necessary, give instructions to other members of the Defence team. 17. The Registrar argues that it is in the best interests of an accused to obtain legal representation solely from lawyers meeting the requirements of Rule 44(A) of the Rules and Article 13 of the Directive. The Registrar asserts that the current policy is necessary to "limit the potential for members of the Defence teams to meet and exchange communications with the Accused without the express permission or even knowledge of Counsel." 18. The Registrar further recalls that, pursuant to Rule 45 ter of the Rules, Defence Counsel for an indigent accused is obliged "to be available at all time as specified by the Registrar," that "any derogation" is grounds for withdrawal, and that "the request of Counsel [... J has not referred to any rule that allow them to flout their undertaking under Rule 45 ter of the Rules." 19. Nonetheless, the Registrar notes that the Tribunal's practice allows for communication between the Defence team and an accused to benefit from privilege in "certain very exceptional circumstances." The Registrar further asserts that it is "incumbent on Counsel to demonstrate the existence of such exceptional circumstances to the satisfaction of the Registry." 20. The Registrar recalls that the confidentiality of documentation and materials sent to an accused detainee by Counsel will be respected if clearly marked. 21. The Registrar asserts that allowing detainees to meet with legal assistants and investigators who then report to Lead Counsel "leads to duplication of work and double payment." The Registrar recalls that he is under the obligation to administer the Legal Aid Fund from which these legal fees are paid. 22. Finally, the Registrar submits that the proper way for the Defence to proceed is to seek an "amendment of the relevant rules" at the next Plenary Session ofJudges.

310 • Defense in International Criminal Proceedings HAVING DELIBERATED

24. The Chamber acknowledges that the right of an accused to communicate freely and confidentially with Counsel is a fundamental right with respect to the preparation of an accused's defence and to the fairness of the proceedings before the Tribunal, pursuant to Articles 19 and 20 of the Statute. It is in consideration of these rights that Rule 65 of the Rules of Detention provides that "[e]ach detainee shall be entitled to communicate fully and without restraint with his Defence Counsel" and that" [a] 11 such correspondence and communications shall be privileged." 25. The Chamber holds that Rule 65 of the Rules of Detention only applies to communication between a detainee, lead Counsel and co-Counsel. It does not apply to meetings between a detainee and an investigator or a legal assistant. As this Chamber has previously held in the Mugiraneza Decision, Rule 65, "which is self-explanatory, does not entitle a detainee to communicate fully and without restraint with any other person than his Defence Counsel, including, for that matter, with a Defence Investigator." The Tribunal has since followed this interpretation of the above mentioned Rule in the Nahimana Decision. 26. The Chamber notes that both the lead Counsel and the co-Counsel have a duty to be available whenever they are needed to enable them to represent the Accused pursuant to Rule 45 ter of the Rules.

27. The Chamber reiterates the position in the Mugiraneza Decision that the definition of "Counsel" in Article 8(3) of the Code ("Counsel includes employees or associates of Counsel and all others whose services are used by Counsel"), applies only to the duty of members of the Defence team to preserve the confidentiality of the client's affairs pursuant to Article 8 (1) of the Code, and does not make a conversation between an investigator and an accused detainee at the UNDF a privileged exchange. Neither the fact of an investigator's appointment by the Registry nor the obligation of Lead Counsel to supervise the work of the Defence team has bearing on the applicability of this privilege. The Chamber notes that Defence investigators and assistants may visit a detainee in the presence of Counsel and that such visits will be covered by the confidentiality provisions of Rule 65 of the Rules of Detention. Legal assistants and investigators can also meet an accused outside the presence of Counsel subject to the requirements set forth by the UNDF, which fall under the administrative authority of the Registry. Furthermore, Regulation 11 of the Regulations protects the confidentiality of" [c] orrespondence addressed to or from Counsel" for the detainee. 28. The Chamber further notes the Registrar's submissions that "in certain very exceptional circumstances [when] counsel and co-Counsel are unavoidably absent from Arusha, yet need to be able to communicate with the Accused on a confidential basis for the continued preparation of the Defence," the Registrar will allow for visits by nonCounsel members of the Defence team. 29. While the Chamber reiterates its ruling in Mugiraneza that Rule 65 applies only to counsel, the Chamber considers to be in the interests of justice the practice of the Registrar to authorise meetings between an accused and members of the Defence team where inter alia, Defence Counsel can demonstrate that he cannot access his client for an essential purpose without an unreasonable delay or expenditure of funds.

ICTR • 311 30. The Chamber considers that the current procedures and safeguards under the Rules of Detention and the Regulations adequately protect an accused's right to confidential communication with Counsel. In the instant case, the Chamber does not find that the Defence has shown that the enforcement of UNDF rules and regulations has in any way prejudiced the Accused's rights. 31. In conclusion, the Chamber reiterates that visits by Defence investigators and assistants are not covered by the privilege of Rule 65 of the Rules of Detention, which is reserved for Defence Counsel, but notes that the Registrar may permit such confidential communication in "exceptional circumstances." FOR ALL THE ABOVE REASONS, THE TRIAL CHAMBER DISMISSES the Motion.

The Prosecutor \t. Nyiramasuhuko et al.-Decision on the Defense Motion for Access for Investigators and Assistants to the Accused in the Absence of Counsel, Cases Nos. ICTR-97-21 , 98-42, November 20, 2002

SUBMISSIONS OF THE PARTIES 1. The Defence submits that there is a problem of access to the UNDF for the investigators and the assistants working with the defence teams as the current rules require that they be accompanied by counsel when meeting with their client. 2. The Defence alleges that this practice raises problems of availability of counsel for the preparation of the case as well as budgetary issues of paying for two people to be present when, for instance, a conversation is taking place between the investigator and the client in Kinyarwanda, a language that counsel does not understand. 3. The Defence further argues that investigators, whose work programmes are approved by counsel, live primarily within the African continent and need to directly report back to the Accused, whereas counsel come from the North American continent, further away. 4. Consequently, the Defence requests, with immediate effect that assistants and investigators be allowed access to their client at the UNDF during allocated hours without the presence of counsel. 5. Counsel for Nsabimana, Counsel for Nteziryayo and Counsel for Ntahobali supported the Motion. Mr. Marchand, lead-counsel for Kanyabashi supported and added to the Motion. Mr. Marchand informed the Chamber that his co-counsel was absent because of illness and asked for permission for his assistant, a counsel in Quebec, to meet with the Accused Kanyabashi in the absence of lead counsel, to assist in the preparation of cross-examination. Counsel for Kanyabashi indicated that the Registry had rejected this request this request. Counsel for Ndayambaje supported the Motion and added that if assistants and investigators were to be granted such access, they should be allowed to bring along their working equipment, such as computers.

312 • Defense in International Criminal Proceedings

6. Counsel for the Prosecutor acknowledged that those points seemed to be valid but that, concerning the rationale behind the implementation of the Rules, he suggested that the Chamber hear a representative of the Registry. Nonetheless, with respect to the situation described by Counsel for Kanyabashi, Counsel indicated that it seems unreasonable that his assistant should not be able to visit that accused at the UNDF in the circumstances outlined.

7. Pursuant to Rule 33 of the Rules, Mr. Preira representing the Registry recalled that the registry had informed all counsel by a letter-circular dated 26 March 2002 of principles governing access to detainees under Rules 61 and 65 of the Rules Governing Detention as well as the jurisprudence of the Tribunal and the International Criminal Tribunal for ex-Yugoslavia. Mr. Preira indicated that, in the past, there had been some leniency in allowing investigators and assistants access to the accused to facilitate the tasks of the Defence. However, due to abuses of the judicial assistance programme, the Registry had returned to a strict application of the Rules. 8. Mr. Preira emphasised that when clear circumstances were submitted by counsel, in specific cases, such strict provisions could be set aside if necessary. It was also recalled that it is the responsibility of counsel to represent his or her client under the seal of confidentiality and thereafter transmit the instructions from the client to assistants or to investigators. HAVING DELIBERATED 9. The Chamber acknowledges the fundamental right of an accused to communicate freely and confidentially with counsel with respect to the preparation of an accused's defence, pursuant to Articles 19 and 20 of the Statute and to Rule 65 of the Rules of Detention which provides that "[e]ach detainee shall be entitled to communicate fully and without restraint with his Defence Counsel" and that" [a] 11 such correspondence and communications shall be privileged." The Chamber noted in the Bizimungu Decision, that both lead counsel and co-counsel have a duty to be available whenever they are needed, to enable them to represent the accused, pursuant to Rule 45 ter of the Rules. 10. The Chamber has held in the Mugiraneza Decision that Rule 65, "which is selfexplanatory, does not entitle a detainee to communicate fully and without restraint with any other person than his Defence Counsel, including, for that matter, with a Defence Investigator." The Tribunal has since followed this interpretation of the above mentioned rule in the Nahimana Decision and in the Bizimungu Decision. 11. The Chamber notes statement made by Mr. Preira, the Registry's representative, that visits by assistants and investigators to an accused fall within the ambit of Rule 61 of the Rules of Detention and that, under clear circumstances, a strict application of the Rules may be set aside. 12. The Chamber reiterates that visits by investigators and assistants are not covered by the privilege of Rule 65 of the Rules of Detention, which is reserved for Defence Counsel. Nonetheless, recalling its position in the Bizimungu Decision, "the Chamber considers to be in the interests ofjustice the practice of the Registrar to authorise meetings between an accused and members of the Defence team where inter alia, Defence Counsel can demonstrate that he cannot access his client for an essential purpose without an unreasonable delay or expenditure of funds."

ICTR • 313 13. The Chamber considers that the procedures authorised under the Rules of Detention and the Regulations adequately protect the accused's right to confidential communication with Counsel. In the instant case, the Chamber does not find that the Defence is prejudiced by the enforcement of the above mentioned rules and regulations. FOR THE ABOVE REASONS, THE TRIBUNAL, DISMISSES the Defence Motion.

5.5.4.

Commentary

The accused person's right to communicate freely with counsel is guaranteed by the Statute of the Tribunal in Article 20 (4) (b) and has been repeatedly confirmed in the Tribunal's jurisprudence.v The full enjoyment of this right is additionally protected by Rule 97 of the Rules of Procedure and Evidence, which provides that all communications between counsel and his or her client facing the Tribunal shall be privileged and, consequently, secure from disclosure, unless the client consents to disclosure or waives the privilege. 56 To facilitate the exercise of the right to communication with counsel, Rule 10 of the Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal ("Rules Covering Detention") grants detainees the opportunity to notify their counsel of their whereabouts. Pursuant to Rule 65 of the Rules Covering Detention, Counsel's visits are to be pre-arranged with the Commanding Officer of the detention facility. Like all visitors to the detention facility, in accordance with Rule 61 of the Rules Covering Detention, defense counsel are subject to personal searches of clothing and X-ray examination of their possessions at the time of entry into the facility. Once counsel is meeting with his or her client, however, the lawyer-client privilege applies and detention unit staff may not hear, but may visually observe, the interview.''? Jurisprudence reflects that the privilege afforded to communication between counsel and his or her client does not extend to investigators or others assisting the counsel in the preparation of the defense. This position was expressed unambiguously by a Trial Chamber in the case of The Prosecutor v. Mugiraneza et al.: "The Chamber, in any case,

55 See, e.g., The Prosecutor v. Mugiraneza, Case No. ICTR-99-50, Decision on the Defense Urgent Motion for Relief Under Rule 54 to Prevent the Commandant of the UNDF from Obstructing the Course of International Criminal Justice (Trial Chamber), Sept. 19,2001, para. 8; The Prosecutor v. Bizimungu, Case No. ICTR-99-50, Decision on the Defense Motion to Protect the Applicant's Right to Full Answer and Defense (Trial Chamber), Nov. 15,2002, para. 24; The Prosecutor v. Nyiramasuhuko et al., Cases Nos. ICTR-97-21, 98-42, Decision on the Defense Motion for Access for Investigators and Assistants to the Accused in the Absence of Counsel (Trial Chamber), Nov. 20, 2002, para. 9. 56 See The Prosecutor v. Nahimana et al., Case No. ICTR-99-52, Decision on the Defense Motion for Declaratory Relief from Administrative Measures Imposed on Hassan Ngeze at the UNDF (Trial Chamber), May 9, 2002 (holding that the client's disclosure of contents of privileged communication constitutes waiver of the lawyer-client privilege set forth in Rule 97). 57 See Rules Covering Detention, Rule 65.

314 • Defense in International Criminal Proceedings

notes that Rule 65 of the Rules of Detention only applies to communication between detainee and Defence Counsel, as opposed to communication between detainees and Investigators of the Defence team. It is the Chamber's view indeed that this Rule, which is self-explanatory, does not entitle a detainee to communicate fully and without restraint with any other person than his Defence Counsel, including, for that matter, with a Defence Investigator."58 It is only when persons assisting the counsel are in his or her presence that they may meet with the detained person in a privileged environment.w In other instances, such persons may visit detainees under the same conditions and with such restrictions as apply to visits by "others" under Rule 61 of the Rules Covering Derenrion.v" Notably, this means that investigators and assistants of the counsel are not entitled to meet with the detained person outside the hearing of detention unit staff supervising the visit. Moreover, while counsel may pass items such as documents or diskettes to their clients during their meetings, investigators and assistants cannot exercise this facility. 61 Therefore, where a defense investigator was searched and subsequently forbidden to take into the detention facility a computer diskette containing confidential information about a detainee's case, a Trial Chamber of the Tribunal held that the involved detention facility security officer acted lawfully.v? Material, which is marked as a confidential transmission from or to counsel, however, cannot be interfered with in any way, such as by censoring at the detention facility, even if it is not carried by counsel pcrsonally.v'' There are two exceptions to this rule. The first exception is based on the need to maintain order in the detention facility. Pursuant to Rule 59 of the Rules Covering Detention,

58 The Prosecutor v. Mugiraneza, Case No. ICTR-99-50, Decision on the Defense Urgent Motion for Relief Under Rule 54 to Prevent the Commandant of the UNDF from Obstructing the Course of International Criminal Justice (Trial Chamber), Sept. 19, 2001, para. 10. See also The Prosecutor v. Nahimana et al., Case No. ICTR-99-52, Decision on the Defense Motion for Declaratory Relief from Administrative Measures Imposed on Hassan Ngeze at the UNDF (Trial Chamber), May 9, 2002; The Prosecutor v. Bizimungu, Case No. ICTR-99-50, Decision on the Defense Motion to Protect the Applicant's Right to Full Answer and Defence (Trial Chamber), Nov. 15,2002, para. 25; The Prosecutor v. Nyiramasuhuko et al., Cases Nos. ICTR-97-21, 98-42, Decision on the Defense Motion for Access for Investigators and Assistants to the Accused in the Absence of Counsel (Trial Chamber), Nov. 20, 2002, para. 10. 59 The Prosecutor v. Rutaganda, Case No. ICTR-96-3, Decision on the Defense's Motion Requesting Permission for its Investigator to Visit the Accused in the Detention Facilities (Trial Chamber), June 11, 1997. 60 The Prosecutor v. Rutaganda, Case No. ICTR-96-3, Decision on the Defense's Motion Requesting Permission for its Investigator to Visit the Accused in the Detention Facilities (Trial Chamber), 11 June 1997; The Prosecutor v. Bizimungu, Case No. ICTR-99-50, Decision on the Defense Motion to Protect the Applicant's Right to Full Answer and Defence (Trial Chamber), Nov. 15, 2002, para. 27. 61 The Prosecutor v. Mugiraneza, Case No. ICTR-99-50, Decision on the Defense Urgent Motion for Relief Under Rule 54 to Prevent the Commandant of the UNDF from Obstructing the Course of International Criminal Justice (Trial Chamber), Sept. 19, 2001, para. 6 ("Transmission of any item directly to the Accused is only allowed when Counsel in person brings such items."). 62 See Prosecutor v. Mugiraneza, Case No. ICTR-99-50, Decision on the Defense Urgent Motion for Relief Under Rule 54 to Prevent the Commandant of the UNDF from Obstructing the Course of International CriminalJustice (Trial Chamber), Sept. 19,2001, para. 20. 63 Id.

ICTR • 315 all correspondence is to be inspected for explosives or other restricted materials. As explained by a Trial Chamber in the Nahimana et al. case.v! Regulation 11 of the Regulations to Govern the Supervision of Visits To and Communication With Detainees elaborates on Rule 59 and stipulates that" [c] orrespondence addressed to or from counsel for the detainee shall not be interfered within any manner unless the Commanding Officer or the Registrar has reasonable grounds for believing that this facility is being abused in an attempt to arrange escape, interfere with or intimidate a witness or otherwise disturb the good order of the detention unit. In any such case, the Commanding Officer shall immediately forward the item in question to the Registrar, unopened, and shall enter details of the intercepted correspondence in the log referred to above and notify the detainee accordingly. The Registrar will then contact the counsel to whom the item is addressed or by whom it was sent and request counsel to open the item in his presence. Counsel may be required to explain to the Registrar, in one of the working languages of the Tribunal, the nature of the item and to hand over any offending item or enclosure." The second exception, as already noted above, is based on waiver of the lawyer-client privilege by the protected person.v-

5.6. DEFENSE ACCESS TO WITNESSES* 5.6.1. Introduction Written and documentary evidence are hardly available in the context of the Rwandan genocide. Witness testimonies, important in every criminal trial become, therefore, in this particular context, much more critical to a party's success in trial. Fortunately, the ICTR's Statute provides strongly for the accused right to access to witnesses. It does so by reciting Article 14 of the International Covenant for Civil and Political Rights. As shown below, this access is twofold: (1) The accused has the right to cross-examine the prosecution witnesses. A full enforcement of this right requires, in turn, a timely disclosure of the prior statements and identities of those witnesses, and access to them for interview; all of which are fully guaranteed in the Rules of procedure and evidence. (2) The accused has the right to call his or her own witnesses. The accused right to access to witnesses may however be fettered by other considerations revolving around the need to protect the safety, security and well-being of witnesses, the need to avoid jeopardizing the prosecution's ongoing investigations or to protect sensitive information as well as their supplier and, lastly, judicial economy. As shown below, ICTR's rules and its case law endeavor to strike the balance between these competing interests.

64 The Prosecutor v. Nahimana et al., Case No. ICTR-99-52, Decision on the Defense Motion for Declaratory Relief from Administrative Measures Imposed on Hassan Ngeze at the UNDF (Trial Chamber), May 9, 2002. 65 Id. * Section 5.6 was written by Marne Mandiaye Niang.

316 • Defense in International Criminal Proceedings

5.6.2. 5.6.2.1.

Statute, Rules ofProcedure and Evidence, Other Regulations and Case Law Statute Article 20: Rights ofthe Accused

4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;

Article 21 : Protection ofVictims and Witnesses The International Tribunal for Rwanda shall provide in its Rules of Procedure and Evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity.

Article 28: Cooperation ofStates 2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including but not limited to: (a) The identification and location of persons; (b) The taking of testimony and the production of evidence

5.6.2.2.

Rules of Procedure and Evidence Section 2: Orders and Warrants Rule 54: General Provision

At the request of either party or proprio motu, aJudge or a trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.

Section 3: Production of Evidence Rule 66: Disclosure of Materials by the Prosecutor Subject to the provisions of Rules 53 and 69; (A) The Prosecutor shall disclose to the Defence:

ICTR • 317

(ii) No later than 60 days before the date set for trial, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial; upon good cause shown a Trial Chamber may order that copies of the statements of additional prosecution witnesses be made available to the defence within a prescribed time.

(C) Where information or materials are in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from the obligation to disclose pursuant to Sub-Rule (A) and (B). When making such an application the Prosecutor shall provide the Trial Chamber, and only the Trial Chamber, with the information or materials that are sought to be kept confidential.

Rule 67: Reciprocal Disclosure of Evidence Subject to the provision of Rules 53 and 69: (A) As early as reasonably practicable and in any event prior to the commencement of the trial: (i) The Prosecutor shall notify the defence of the names of the witnesses that he intends to call to establish the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with Sub-Rule (ii) below;

(D) If either party discovers additional evidence or information or materials which should have been produced earlier pursuant to the Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or information or materials.

Rule 68: Disclosure of Exculpatory Evidence (A) The Prosecutor shall, as soon as practicable, disclose to the Defence any material, which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence.

(C) The Prosecutor shall take reasonable steps, if confidential information is provided to the Prosecutor by a person or entity under Rule 70(B) and contains material referred to in paragraph (A) above, to obtain the consent of the provider to disclosure of that material, or the fact of its existence, to the accused. (D) The Prosecutor shall apply to the Chamber sitting in camera to be relieved from an obligation under the Rules to disclose information in the possession of the Prosecutor, if its disclosure may prejudice further or ongoing investigations, or for any other reason may be contrary to the public interest or affect the security interests of any

318 • Defense in International Criminal Proceedings

State, and when making such application, the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential. (E) Notwithstanding the completion of the trial and any subsequent appeal, the Prosecutor shall disclose to the other party any material referred to in paragraph (A) above.

Rule 69: Protection ofVictims and Witnesses (A) In exceptional circumstances, either of the parties may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk, until the Chamber decides otherwise. (B) In the determination of protective measures for victims and witnesses, the Trial Chamber may consult the Victims and Witness Support Unit. (C) Subject to Rule 75, the identity of the victim or witness shall be disclosed within such time as determined by Trial Chamber to allow adequate time for preparation of the Prosecution and the Defence.

Rule 70: Matters Not Subject to Disclosure (A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under the aforementioned provisions. (B) If the Prosecutor is in possession of information which has been provided to him on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused. (C) If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber, notwithstanding Rule 98, may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance. (D) If the Prosecutor calls as a witness the person providing or a representative of the entity providing information under this Rule, the Trial Chamber may not compel the witness to answer any question the witness declines to answer on grounds of confidentiality. (E) The right of the accused to challenge the evidence presented by the Prosecution shall remain unaffected subject only to limitations contained in Sub-Rules (C) and (D). (F) Nothing in Sub-Rule (C) or (D) above shall affect a Trial Chamber's power under Rule 89 (C) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.

ICTR • 319

Section 4: Depositions Rule 71 : Depositions (A) At the request of either party, a Trial Chamber may, in exceptional circumstances and in the interests of justice, order that a deposition be taken for use at trial, and appoint, for that purpose, a Presiding Officer. (B) The motion for the taking of a deposition shall be in writing and shall indicate the name and whereabouts of the witness whose deposition is sought, the date and place at which the deposition is to be taken, a statement of the matters on which the person is to be examined and of the exceptional circumstances justifying the taking of the deposition. (C) If the motion is granted, the party at whose request the deposition is to be taken shall give reasonable notice to the other party, who shall have the right to attend the taking of the deposition and cross-examine the witness. (D) The deposition may also be given by means of a video-conference. (E) The Presiding Officer shall ensure that the deposition is taken in accordance with the Rules and that a record is made of the deposition, including cross-examination and objections raised by either party for decision by the Trial Chamber. He shall transmit the record to the Trial Chamber.

Rule 75: Measures for the Protection ofVictims and Witnesses (A) AJudge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Support Unit, order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are consistent with the rights of the accused. (B) A Chamber may hold an in camera proceeding to determine whether to order notably: (i) Measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with him by such means as: (a) Expunging names and identifying information from the Tribunal's public records; (b) Non-disclosure to the public of any records identifying the victim; (c) Giving of testimony through image- or voice-altering devices or closed circuit television; and (d) Assignment of a pseudonym; (ii) Closed sessions, in accordance with Rule 79; (iii) Appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television. (C) The Victims and Witnesses Section shall ensure that the witness has been informed before giving evidence by the party calling that witness that his testimony and his identity may be disclosed at a later date in another case, pursuant to Rule 75 (F).

320 • Defense in International Criminal Proceedings (D) A Chamber shall control the manner of questioning to avoid any harassment or intimidation. (E) When making an order under paragraph (A) above, aJudge or a Chamber shall wherever appropriate state in the order whether the transcript of those proceedings relating to the evidence of the witness to whom the measures relate shall be made available for use in other proceedings before the Tribunal. (F) Once protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the "first proceedings"), such protective measures: (i) shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the "second proceedings") unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule; but (ii) shall not prevent the Prosecutor from discharging any disclosure obligation under the Rules in the second proceedings, provided that the Prosecutor notifies the Defence to whom the disclosure is being made of the nature of the protective measures ordered in the first proceedings. (G) A party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply: (i) to any Chamber, however constituted, remaining seized of the first proceedings; or (ii) if no Chamber remains seized of the first proceedings, to the Chamber seized of the second proceedings. (H) Before determining an application under paragraph (G) (ii) above, the Chamber seized of the second proceedings shall obtain all relevant information from the first proceedings, and shall consult with any Judge who ordered the protective measures in the first proceedings, if that Judge remains a Judge of the Tribunal. (I) An application to a Chamber to rescind, vary or augment protective measures in respect of a victim or witness may be dealt with either by the Chamber or by a Judge of that Chamber, and any reference in this Rule to "a Chamber" shall include a reference to "aJudge of that Chamber."

Rule 85: Presentation of Evidence (A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests ofjustice, evidence at the trial shall be presented in the following sequence: (i) Evidence for the prosecution; (ii) Evidence for the defence; (iii) Prosecution evidence in rebuttal; (iv) Defence evidence in rejoinder; (v) Evidence ordered by the Trial Chamber pursuant to Rule 98.

ICTR • 321 (vi) Any relevant information that may assist the Trial Chamber in determining an appropriate sentence, if the accused is found guilty on one or more of the charges in the indictment. (B) Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine him in chief, but ajudge may at any stage put any question to the witness. (C) The accused may, if he so desires, appears as a witness in his own defence.

Rule 90: Testimony ofwitnesses

(i) Cross-examination shall be limited to the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject-matter of the case. (ii) In the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness. (iii) The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters.

Rule 90 bis: Transfer ofa Detained Witness (A) Any detained person whose personal appearance as a witness has been requested by the Tribunal shall be transferred temporarily to the Detention Unit of the Tribunal, conditional on his return within the period decided by the Tribunal. (B) The transfer order shall be issued by aJudge or Trial Chamber only after prior verification that the following conditions have been met: (i) The presence of the detained witness is not required for any criminal proceedings in progress in the territory of the requested State during the period the witness is required by the Tribunal; (ii) Transfer of the witness does not extend the period of his detention as foreseen by the requested State; (C) The Registry shall transmit the order of transfer to the national authorities of the State on whose territory, or under whose jurisdiction or control, the witness is detained. Transfer shall be arranged by the national authorities concerned in liaison with the host country and the Registrar. (D) The Registry shall ensure the proper conduct of the transfer, including the supervision of the witness in the Detention Unit of the Tribunal; it shall remain abreast of any changes which might occur regarding the conditions of detention of the witness in the Detention Unit and, as promptly as possible, shall inform the relevant Judge or Chamber.

322 • Defense in International Criminal Proceedings

(E) On expiration of the period decided by the Tribunal, for the temporary transfer, the detained witness shall be remanded to the authorities of the requested State, unless the State, within that period, has transmitted an order of release of the witness, which shall take effect immediately. (F) If, by the end of the period decided by the Tribunal, the presence of the detained witness continues to be necessary, aJudge or a Chamber may extend the period, on the same conditions stated in the Sub-Rule (B).

Rule 92 bis: Proof of Facts Other Than by Oral Evidence (A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment. (i) Factors in favour of admitting evidence in the form of a written statement include, but are not limited to, circumstances in which the evidence in question: (a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;

(c) relates to relevant historical, political or military background; (d) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates; (e) concerns the impact of crimes upon victims; (f) relates to issues of the character of the accused; or (g) relates to factors to be taken into account in determining sentence. (ii) Factors against admitting evidence in the form of a written statement include whether: (a) there is an overriding public interest in the evidence in question being presented orally; (b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or (c) there are any other factors which make it appropriate for the witness to attend for cross-examination. (B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person's knowledge and belief and (i) the declaration is witnessed by: (a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or (b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and

ICTR • 323 (ii) the person witnessing the declaration verifies in writing: (a) that the person making the statement is the person identified in the said statement; (b) that the person making the statement stated that the contents of thewritten statement are, to the best of that person's knowledge and belief, true and correct; (c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and (d) the date and place of the declaration. The declaration shall be attached to the written statement presented to the Trial Chamber. (C) A written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber: (i) is so satisfied on a balance of probabilities; and (ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability. (D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused. (E) Subject to any order of the Trial Chamber to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination.

Rule 94: Judicial Notice (A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof. (B) At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to the matter at issue in the current proceedings.

Rule 94 bis:Testimony of Expert Witnesses (A) Notwithstanding the provisions of Rule 66 (A) (ii), Rule 73 bis (B) (iv) (b) and Rule 73 ter (B) (iii) (b) of the present Rules, the full statement of any expert witness called by a party shall be disclosed to the opposing party as early as possible and shall be filed with the Trial Chamber not less than twenty-one days prior to the date on which the expert is expected to testify.

324 • Defense in International Criminal Proceedings

(B) Within fourteen days of filing of the statement of the expert witness, the opposing party shall file a notice to the Trial Chamber indicating whether: (i) It accepts or does not accept the witness's qualification as an expert; (ii) It accepts the expert witness statement; or (iii) It wishes to cross-examine the expert witness. (C) If the opposing party accepts the statement of the expert witness, the statement may be admitted into evidence by the Trial Chamber without calling the witness to testify in person.

Rule 95: Exclusion of Evidence on the Grounds ofThe Means by Which Itwas Obtained No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.

Rule 96: Rules of Evidence in Cases ofSexual Assault In cases of sexual assault: (i) Notwithstanding Rule 90 (C), no corroboration of the victim's testimony shall be required; (ii) Consent shall not be allowed as a defence if the victim: (a) Has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression; or (b) Reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear. (iii) Before evidence of the victim's consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible; (iv) Prior sexual conduct of the victim shall not be admitted in evidence or as defence.

Rule 98: Power ofChambers to Order Production ofAdditional Evidence A Trial Chamber may proprio motu order either party to produce additional evidence. It may itself summon witnesses and order their attendance.

5.6.2.3.

Other Regulations-Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority ofthe Tribunal Article 64

The Prosecutor may request the Registrar or, in cases of emergency, the Commanding Officer, to prohibit, regulate or set conditions for contact between a detainee and any other person if the Prosecutor has reasonable grounds for believing that such contact is for the purposes of attempting to arrange the escape of the detainee from the Detention Unit, or could prejudice or otherwise affect the outcome of the proceedings

ICTR • 325 against the detainee, or of any other investigation, or that such contact could be harmful to the detainee or any other person or may be used by the detainee to breach an order for non-disclosure made by ajudge or a Chamber pursuant to Rule 53 or Rule 75 of the Rules of Procedure and Evidence. If the request is made to the Commanding Officer on grounds of urgency, the Prosecutor shall immediately inform the Registrar of the Request, together with the reasons therefor. The detainee shall immediately be informed of the fact of any such request. A detainee may, at any time, request the President to deny or reverse such a request for prohibition of contract.

5.6.2.4.

Case Law

The Prosecutor \t. Casimir Bizimungu et al.-Decision on Prosper Mugiraneza's Motion to Require the Registrar to Allow Access to aWitness, Case No. ICTR-99-50-1, October 2, 2003

BEING SEIZED of: (i) "Prosper Mugiraneza's Motion to Require the Registrar to Allow Access to a Witness" filed on 28 February 2004 (the "Motion");

CONSIDERING the Statute of the Tribunal (the "Statute"), and the Rules of Procedure and Evidence (the "Rules"), particularly Article 20 (4) (e), and Article 21 of the Statute which read:

Article 20(4)(e) In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: To examine, or have examined; the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;

Article 21 The International Tribunal for Rwanda shall provide in its Rules of Procedure and Evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim's identity. NOW CONSIDERS the matter solely on the basis of the written briefs of the Parties, pursuant to Rule 73 (A) of the Rules. SUBMISSIONS OF THE PARTIES The Initial Submissions The Defence Motion and the Registrar's Response

1. The Defence requests the Chamber to require the Registrar to allow access to a potential witness, jean Kambanda, the former Prime Minister of the Interim Government of Rwanda, who is serving a life sentence after pleading guilty before the Tribunal. The

326 • Defense in International Criminal Proceedings Defence further specifies the conditions under which they wish to interview Mr. Kambanda. 2. The Defence states that in December 2002, the Lead Prosecutor acting for the Prosecution in this trial (at that time Marks Moore, Senior Trial Attorney) informed Defence Counsel that Mr. Kambanda would testify for the Prosecution in the trial of this case. Defence Counsel contacted Mr. Kambanda through an intermediary, who was instructed to inform Mr. Kambanda that the Defence Counsel wanted to talk to him. The Defence maintains that Mr. Kambanda is willing to be interviewed by Defence Counsel. Since Mr. Kambanda was at that time detained in The Hague with cooperation from the IClY Registry, so that the Prosecution could interview him, the Defence contacted the acting chief of the IClY Office of Legal Assistance and Detention (OLAD) asking for an interview to be arranged. The Defence claims to have received an email from OLAD stating that it could not interview Mr. Kambanda because the ICTR Registry sent a memorandum to the IClY Registry denying permission for the interview. 3. The Registrar denies that he ever sent a memorandum to the IClY blocking the interview as the Defence has alleged. Rather, the Registrar expressed some reservations on the difficulty in executing a Decision of the Tribunal, which in his opinion was likely to create ajudicial precedent that the Parties would be tempted to rely on for remedies other than those provided in Rule 90bis. 4. The Defence submits that in order to provide effective counsel, the Defence should be able to interview witnesses for the Prosecution, so long as those witnesses are willing to be interviewed, and consent to having the interview recorded. Furthermore, the Defence submits that it would be unethical for an attorney to deprive their opponent access to evidence, including instructing a fact witness not to talk to the opposing counsel. 5. In relation to the duties of the Prosecution, the Defence submits that the Prosecution has the additional duty to inform the Defence Counsel of exculpatory evidence and should not restrict the Defence's ability to gather and present such evidence, as the denial of this deprives the accused of his right to effective counsel. In relation to the duties of the Registry, the Defence submits that it is a denial of fundamental fairness for a neutral arm of the Tribunal, such as the Chambers or the Registry, to deprive the Defence the ability to interview willing potential witness. 6. The Defence submits that Mr. Kambanda is a potential witness for the Defence, who is believed to possess exculpatory information, a fact that the Defence will have to interview the Witness in order to verify.

7. The Registrar notes that, in his opinion, Mr. Kambanda is a potential prosecution witness; therefore it is for the Prosecution to reply to the Defence" Motion, and specify the requirements under which the Defence can interview Mr. Kambanda. The Registrar submits that there is no provision in the basic rules of the ICTR that authorizes the Registrar to allow a party to have access to the potential witnesses of another party. Furthermore, in relation to the outcome of this Decision, the Registrar submits that the does not have a legal opinion to express. 8. The Defence reiterates that while Mr. Kambanda is a potential prosecution witness, he is also a potential defence witness who has expressed a desire to speak to the Defence. The Defence seeks equal treatment and submits that it is not the place of the

ICTR • 327 Prosecution to either grant or deny the Defence access to a potential defence witness, as this would give the Prosecution control over the Defence's access to evidence. Furthermore, the Defence submits that, since in its opinion the Registry has control over access to Mr. Kambanda, directly-or indirectly by cooperation with the ICTY Registry-the Registry must either have directly or impliedly given authorization for access by the Prosecution. The Defence emphasizes the reasons why, as a neutral organ of the Tribunal, the Registry must have the trust of all those involved. 9. The Defence argues that the Registrar's view that access to Mr. Kambanda is governed by Rule 90bis is incorrect, as this rule concerns only the physical transfer of a detained person from national authorities to the Tribunal, and has nothing to do with access to a potential witness. 10. The Defence reiterates that it is not asking the Trial Chamber to compel Mr. Kambanda to submit to an interview, as it lacks the power to do so, thus an interview with Mr. Kambanda would be voluntary and subject to the conditions Mr. Kambanda desires. The Prosecution Response

11. The Prosecution argues that on the basis of the status quo of Mr. Kambanda as a prosecution witness, and the timing of the Defence motion, the Chamber should not allow the Defence access to an interview of Mr. Kambanda as it will prejudice on going investigations and may endanger other potential witnesses. 12. The Prosecution relies on Article 15 of the Tribunal's Statute, which mandates it to investigate and prosecute crimes within the jurisdiction of this court. Under Rule 39 of the Tribunal's Rules of Procedure and Evidence, the Prosecution is empowered to question witnesses and take all measures to provide for the safety of potential witnesses and informants. 13. The Prosecution relies on the jurisprudence of this Tribunal and also that of the ICTY to restrict pre-trial interviews by either party of the other party's witnesses. On the basis of this jurisprudence the Prosecution argues that each party must be allowed to freely carry out pretrial investigations without interruptions, and to ensure that potential witnesses are not placed in danger. 14. The Prosecution wishes to bring to the attention of the Trial Chamber that, in line with the dicta in Kovacevic, Mr. Kambanda's legal representatives have orally indicated to the Prosecution that Mr. Kambanda does not wish to speak to the Defence. 15. The Prosecution submits that the Tribunal's Rules of Detention extend to any person "otherwise detained on the authority of the Tribunal" even though such person may be physically absent from the Detention Unit at Arusha. The Prosecution argues that these Rules lay down the circumstances under which contact with detainees maybe restricted. Under Rule 64 of the Rules of Detention, the Prosecution may request the Registrar to prohibit, regulate or set conditions for the contact between a detainee and any other person if there are reasonable grounds to believe that such contact could prejudice investigations. 16. The Prosecution submits that is aware of its disclosure obligations, including a duty to disclose to the Defence any exculpatory material in its possession, in accordance with Rule 68. Furthermore, the Prosecution submits that the transcripts of the interviews conducted with Mr. Kambanda for the purpose of his trial have been disclosed to the

328 • Defense in International Criminal Proceedings Defence, and the Prosecution gives an assurance that it will disclose other such materials that may come into its possession. Defence Reply to Prosecutor

17. The Defence argues that the fallacy of the Prosecutor's respol1seis that it presumes that once a party designates a witness, he or she cannot also be a witness for the opposing party. The Defence argues that this position is in conflict with Article 20 (4) (d) of the Statute of the Tribunal, which guarantees the right to effective counsel, and also Article 20 (4) (e), which guarantees the defence the right to obtain the attendance of witnesses under the "same conditions as the witnesses against him or her." The Defence also relies on Article 20 (4) (b), which guarantees the defence adequate time and facilities to prepare a defence. 18. The Defence submits that the Prosecution has misinterpreted the three decisions that it relied on in its Response. It argues that the key relevant Decision is Prosecutor v. Delalic et al, which states that the right to cross-examination, guaranteed by Article 21 of the IClY Statute, is more than a "blind confrontation in the courtroom," but also includes prior out-of court investigation. In this case, the Trial Chamber did not hold that the Defence had no right to conduct pre-trial interviews; rather it held that the Prosecution could not be forced to reveal the witness's current address. The Defence notes that in Prosecutor v. Milan Kovacevic the Chamber also held that prosecution witnesses could not be forced to submit to interviews by the Defence. The Defence interprets the Decisions in Celibici, Kovacevic and Kajelijeli as simply stating that witnesses for one party can not be forced to submit to interviews by the opposing party. 19. The Defence reiterates that there is good cause to interview Mr. Kambanda based on the discovery provided by the Prosecutor, giving the Defence a good faith basis for believing that Mr. Kambanda could be called as a defence witness. The Defence argues that denying the opportunity to interview a potential defence witness until the Prosecution has completed investigation directly affects the Accused's right to a speedy trial. The Further Submission of the Parties

20. In the Addendum, the Defence represents to the Chamber that it has received information to the effect that Mr. Kambanda has now refused to testify for the Prosecution, and also that he has now been transferred from the Detention Centre at The Hague to another location. In its submission, this removes the main basis for the Prosecution's objection to the granting of the Defence Motion, because he is no longer a potential prosecution witness, and that investigations are no longer being carried out by interviewing Mr. Kambanda as he is no longer at The Hague. 21. The Prosecution replies to this charge by stating that "it remains the intention of the Prosecution to callJean Kambanda as a prosecution witness." The Prosecution claims that Mr. Kambanda's legal representatives have indicated that he does not wish to talk to the Defence. It further claims that the Defence had plenty of opportunity to interview Mr. Kambanda before he was designated as a prosecution witness, and, in essence, new it is tee late for the Defence to do so. 22. The Defence draws the attention of the Chamber to vague wording in the Prosecution Response, specifically highlighting that the Prosecution does not deny that Mr. Kambanda has refused to be a witness for the Prosecution, nor that he has been transferred back to Mali to continue serving his sentence. The Defence does not dis-

ICTR • 329 pute that the Prosecution still intends to call Mr. Kambanda as its Witness; however, it submits that it may be against his will. The Defence seeks now to be given the opportunity to attempt to interview Mr. Kambanda, and if he refuses to be interviewed then so be it. 23. The Defence challenges the Prosecution's assertion that the Defence had plenty of opportunity to interview Mr. Kambanda before he was named as a potential prosecution witness. It gives a chronology of events leading up to the time when Mr. Kambanda was nominated as a potential prosecution witness, demonstrating that in fact there was little opportunity for interviewing Mr. Kambanda, not plenty as the Prosecution claims. HAVING DELIBERATED 24. The Chamber has considered all the submissions of the Parties, including the representations made by the Registrar. The Chamber is not convinced by the Prosecution argument that due process is protected by preventing the Defence from gaining access to Mr. Kambanda. The Chamber is not satisfied that the Prosecution's ongoing investigations will be hampered by allowing the Defence to interview Mr. Kambanda. 25. The Chamber notes that as of the date of this Decision, the Prosecution acting in this case has yet to file any details of potential witnesses with the Registry for the purpose of putting protective measures in place for prosecution witnesses or potential prosecution witnesses. However, the Chamber accepts that Mr. Kambanda has been adequately nominated by one of the Parties (in this instance the Prosecution) as its potential Witness. This entails that a certain procedure should be followed by the other Party (in this instance the Defence) who wishes to interview that Witness. 26. The Chamber notes the Decision of Trial Chamber III of 29 September 2003 in the case of Prosecutor v.Joseph Nzirorera where a similar request was made by the Defence to interview potential prosecution witnesses who are also convicts of this Tribunal. The Chamber particularly notes a passage of obiter dictum in that Decision whereby it is stated that "any interview of that kind should take place in the presence of a representative of the opposing party to protect the integrity of the process." The Chamber approves of this reasoning, and also observes that such procedures are recommended in some nationaljurisdictions, where it is seen as proper to interview a witness in the presence of a party from the opposing side, in order to avoid any allegations that may arise in relation to tampering with evidence. The Chamber feels that in this case such procedures are appropriate to protect the integrity of the proceedings, including the transparency of that integrity. Thus, a representative of the opposing side should be permitted to attend such interview.

27. In its submissions the Defence allows that any interview with Mr. Kambanda should be voluntary on his part. The Chamber finds that this should be so. Accordingly, the Registrar, prior to facilitating the interview must determine whether or not Mr. Kambanda is willing to be interviewed by the Defence. If he is not willing to be interviewed by the Defence, then that is the end of the matter. FOR THE ABOVE REASONS, THE TRIBUNAL 28. GRANTS the Defence Motion in the following terms: (a) The Parties shall arrange between themselves a suitable time for the Defence to interview Mr. Kambanda, when a representative of the Prosecution may be present. There must be no unreasonable delay in the facilitation of this interview.

330 • Defense in International Criminal Proceedings (b) The Registry shall facilitate the interview according to its established procedures, and also according to the laws and procedures of the host country. However: (c) Before the interview can take place, the Registrar should satisfy himself that Mr. Kambanda is indeed willing to be interviewed by the Defence. Should he not be satisfied on this point, the interview shall not proceed, and the Registrar shall inform the Parties and the Chamber accordingly.

Decision on Prosper Mugiraneza's Motion to Vary Restrictions in theTrial Chamber's Decision of October 2, 2003 Related to Access Jean Kambanda, August 24, 2004

BEING SEIZED of "Prosper Mugiraneza's Motion to Vary Restrictions in the Trial Chamber's Decision of 2 October 2003 Related to Access Jean Kambanda" filed on 12 December 2003, (the "Motion"); NOTING the "Prosecutor's Response to Prosper Mugiraneza's Motion to Vary Restrictions in the Trial Chamber's Decision of 2 October 2003 Related to Access Jean Kambanda" filed on 26 January 2004, (the "Response"); NOTING "Prosper Mugiraneza's Reply to the Prosecutor's Response to Prosper Mugiraneza's Motion to Vary Restrictions in the Trial Chamber's Decision of 2 October 2003 Related to Access Jean Kambanda" filed on 28 January 2004, (the "Reply");

ARGUMENTS OF THE PARTIES Defence Submissions

1. The Defence for Prosper Mugiraneza seeks to modify the Trial Chamber's Decision of 2 October 2003 stating that the Defence could interview Jean Kambanda "when a representative of the Prosecutor may be present." The Defence interprets the Decision as permitting the Prosecutor to demand that an OTP representative be present at any interview with Jean Kambanda and requests that the Trial Chamber permit such an interview without a representative of the Prosecutor present, if those are the conditions under which Jean Kambanda consents to an interview. 2. The Defence for Prosper Mugiraneza also seeks to have the Trial Chamber strike Jean Kambanda from the Prosecutor's witness list because of the Prosecutor's lack of compliance with the Presiding Judge's Request of 3 February 2004 and the Trial Chamber's Order of 6 May 2004 to inform the Trial Chamber whether Jean Kambanda is still a Prosecution Witness. 3. Based on the 3 December 2003 Letter from Jean Kambanda,' Defence Counsel for Prosper Mugiraneza submits thatJean Kambanda has agreed to meet with him, but only without a representative of the Prosecutor present Therefore, the Defence argues, it is impossible for the Defence to interview Jean Kambanda under the conditions set out by the Trial Chamber in its Decision. 4. The Defence for Prosper Mugiraneza gives two reasons why it should be permitted to interview Jean Kambanda under the conditions stipulated by him in his Letter.

ICTR • 331 (a) The Defence for Prosper Mugiraneza states that "no party has a property interest in a witness." The Defence submits that the Rules of Procedure and Evidence of the Tribunal (the "Rules") do not prevent a party from interviewing any willing witness, absent a protection order. Thus, the Defence argues that meeting with Jean Kambanda should be possible as Jean Kambanda is not a protected witness, is in the constructive custody of the Registrar, and is willing to meet with the Defence under the conditions specified in his Letter. (b) The Defence for Prosper Mugiraneza argues that denying the Defence of the right to interview Jean Kambanda, when he consented to the interview, would deprive Prosper Mugiraneza of his right to a fair trial, his right to present a defence, and his right to effective assistance of Counsel. 5. The Defence for Prosper Mugiraneza challenges the assertion thatJean Kambanda will appear as a Prosecution witness. According to the Defence, if Jean Kambanda is not a Prosecution witness, a representative of the Prosecutor is not needed in a Defence interview ofJean Kambanda in order to protect the Trial Chamber's concerns over the integrity and transparency of the proceedings. Further, the Defence submits that if Jean Kambanda will not appear as a Prosecution Witness, the Prosecutor should have no interest in whether or not the Defence interviews him. 6. Alternatively, the Defence for Prosper Mugiraneza submits that even if Jean Kambanda does appear voluntarily as a Prosecution witness, it should be allowed to interviewJean Kambanda because he possesses exculpatory information and remains a potential Defence witness. The Defence argues that the Prosecutor is contesting the Defence's access to Jean Kambanda as one of many attempts to deny the Defence access to exculpatory information, and this attempt would be considered improper in other jurisdictions.

7. The Defence submits that it should be entitled to a presumption of ethical conduct that permits them to interview Jean Kambanda without a representative of the Prosecutor present. However, the Defence for Prosper Mugiraneza states that although it considers such measures unnecessary, in order to ensure the lack of improper influence on Jean Kambanda, it will accept "reasonable conditions" on an interview with Jean Kambanda, other than the required presence of a representative of the Prosecutor. 8. The measures suggested by the Defence for Prosper Mugiraneza include recording the interview, permitting the presence of a neutral party such as a member of the Registry or of Chambers, permitting an official translator to report improper actions to the Trial Chamber, or ordering a recording of the interview to be filed under seal with the Trial Chamber or other neutral party. 9. The Defence for Prosper Mugiraneza submits that the Prosecutor's Response to the Trial Chamber Order was not sufficient as it relied on statements from Jean Kambanda's Counsel, not Jean Kambanda himself. The Defence argues that the Prosecutor has intentionally delayed compliance to deny the Defence access to Jean Kambanda and questions whether the administrative arrangements noted by the Prosecutor are needed for Jean Kambanda to appear in court, since he is already a prisoner in the Registrar's custody.

332 • Defense in International Criminal Proceedings Prosecutors Submissions

10. The Prosecutor admits that Jean Kambanda's Letter stated that he was willing to meet with the Defence for Prosper Mugiraneza without any representative of the Prosecutor present. 11. However, in response to the Trial Chamber's Order, the Prosecutor submits that Jean Kambanda is a Prosecution Witness and has reconfirmed his willingness to testify through his attorney's contact with Prosecutor Hassan Bubacar Jallow. The Prosecutor previously submitted that the Defence arguments on this matter were based only on inference from Jean Kambanda' s letter, and no clear showing ofJean Kambanda's refusal to appear as a Prosecution Witness. The Prosecutor submitted that unless the Defence could make a stronger argument, it lacked a legal basis to request the Trial Chamber to vary its Decision. 12. The Prosecutor argues that by contactingJean Kambanda through his lawyer, rather than directly, he has complied with the terms of the Trial Chamber's Order. The Prosecutor submits that any information fromJean Kambanda's lawyer should be considered from Jean Kambanda. 13. The Prosecutor also submits that the Prosecutor of the Tribunal, Mr. Jallow, has prioritized the arrangements for Jean Kambanda's testimony, and he expects they will be finalized soon. The Prosecutor asserts that such arrangements require "meticulous administrative arrangements" and must take into account not only transportation, but also, among other things, Jean Kambanda's concerns about legal counsel and security. 14. The Prosecutor states that if the Trial Chamber deems it necessary, he will make oral submissions in closed session to explain in detail the progress of these arrangements. 15. The Prosecutor states that he has left the Defence for Prosper Mugiraneza further time to carry out any interviews or other investigations because on 12 December 2002 he disclosed to the Defence interviews ofJean Kambanda, and anticipates calling Jean Kambanda to testify near the end of the case. DELIBERATIONS 16. As a preliminary matter, the Trial Chamber considers that the Prosecutor has complied with the Trial Chamber's Order of 6 May 2004 by contactingJean Kambanda through his lawyer and is satisfied thatJean Kambanda will appear as a Prosecution witness. 17. The Trial Chamber recalls its Decision that Prosper Mugiraneza's Defence team has the right to interview Jean Kambanda, with his consent. The Trial Chamber is of the view that this right exists whether or notJean Kambanda is to testify for the Prosecution or for the Defence. 18. This Decision is consistent with the Appeals Chamber's finding that "witnesses to a crime are the property of neither the Prosecutor nor the Defence; both sides have an equal right to interview them ... [mere fact that the person has agreed to testify for the Defence does not preclude the Prosecutor from interviewing him provided of course that there is no interference with the course ofjustice." 19. The Trial Chamber permitted in its Decision of 2 October 2003 that a Prosecutor's representative "may and not shall attend any Defence team's interview of Jean Kambanda, in order to "protect the integrity of the proceedings." If the Prosecutor's

ICTR • 333 attendance would damage the Accused's right to a fair trial, such discretionary attendance must be abandoned in the interests ofjustice. Given thatJean Kambanda is not a protected witness, the Trial Chamber is of the view that any fair trial considerations are not subject to any special witness protection considerations. 20. As it is clear from Jean Kambanda's letter that he only consents to be interviewed by the Defence for Prosper Mugiraneza without a Prosecutor's representative present, the Trial Chamber is of the view that insistence by the Chamber on such presence could render the interview impossible which in turn might prejudice Prosper Mugiraneza' s right to a fair trial. Such a requirement could deny the Accused access to exculpatory evidence or prevent him from examining a witness against him as fully as those for him. 21. The Trial Chamber therefore concludes that, in the particular circumstances of this application, the Defence may interview Jean Kambanda in the absence of a representative of the Prosecutor. However, as suggested by the Defence and in order to avoid any possible allegation of improper conduct against any party involved in this process, the Trial Chamber is of the view that this interview shall take place in the presence of a neutral and third party, namely a representative of the Registrar. FOR THE ABOVE REASONS, THE TRIAL CHAMBER DENIES the Defence request to have Jean Kambanda removed from the Prosecutor's witness list. GRANTS the Defence request to vary its Decision of 2 October 2003 in the following terms: ORDERS that the Defence for Prosper Mugiraneza be allowed to interview Jean Kambanda without a representative of the Office of the Prosecutor being present. INSTRUCTS the Registrar to make all necessary arrangements for the interview ofJean Kambanda by the Defence for Prosper Mugiraneza and to designate a representative who will attend the interview.

The Prosecutor \t. Pauline Nyiramasuhuko et al.-President's Decision on the Appeal ofthe Registrar's Decision of April 13, 2005 With Regard to Mr. Edmond Babin, Case No. ICTR-97-21-T, ApriI 18, 2005

INTRODUCTION 1. Pauline Nyiramasuhuko and Arsene Shalom Ntahobali are currently being tried for genocide, complicity in genocide, crimes against humanity and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. Both Accused have been found to be indigent and the costs of their defence are funded through the Tribunal's legal aid system. 2. On 13 April 2005, Trial Chamber II ruled that Mr. Edmond Babin, a witness tendered by both Nyiramasuhuko and Ntahobali, did not qualify as an expert in crime scene analysis. He may, however, testify as a factual witness. Following this ruling, the Registry declined to honour the contract between Mr. Babin and the Tribunal. Nyiramasuhuko and Ntahobali have now filed an appeal against this decision.

334 • Defense in International Criminal Proceedings

SUBMISSIONS 3. Nyiramasuhuko and Ntahobalijointly submit that on 3 December 2004, the Registrar agreed that Mr. Babin will be regarded as an expert witness for the purposes of preparation of his report, which was subsequently formalised in a contract signed by both parties on 13 and 14 January 2005. Following the decision of the Trial Chamber, the Registrar took the view that the contract is null and void. According to Nyiramasuhuko and Ntahobali, the decision of the Trial Chamber has no retroactive effect. Payment as specified in the contract for work done in the form of a report and testimony rendered before the Trial Chamber is not conditional on the Chamber's decision as to the qualification of the witness as an expert. 4. The Registry submits that, on the basis of representations made by Counsel for Nyiramasuhuko and Ntahobali, Mr. Babin had the kind of expertise that was envisaged in these proceedings. On the assumption that such representation was correct, the Victims and Witnesses Support Section made a representation to the Chief of Human Resources to engage Mr Babin as an expert witness. The remuneration of Mr. Babin was to be charged to an account specifically intended for expert witnesses' fees. The generic term for short term contracts are fashioned under the style "consultant agreement." This does not detract from the fact that remuneration arising from this agreement will be paid from the account intended for expert witnesses. Paragraph 3 of the consultant agreement mandates the Registry to pay the consultant only upon certification that the services have been satisfactorily performed. These services are those of an expert witness. In the present case, the services purported to be those of an expert, have been rejected by the Trial Chamber, and Mr Babin has only been allowed to testify as a factual witness. The contract offered to Mr Babin was that of an expert witness for the purposes of these proceedings. Since Mr Babin does not qualify as an expert witness, the contract cannot be honoured as the substratum on which this contract is founded is no longer there. 5. The Registry concedes that in two other cases expert witnesses were paid for work done even though they were rejected as experts by the Trial Chambers. On reflection, the Registry sees the problem that payments in these circumstances may cause. A wrongful act does not cease to be wrongful by mere repetition. The Registry is under a duty to examine past mistakes and seek corrective measures or guidance from the President. DELIBERATION 6. There are no provisions either in the Statute or the Rules that confer on a party the standing to file an appeal before the President against decisions made by the Registrar. It therefore follows that this appeal is inadmissible. Although Nyiramasuhuko and Ntahobali have not alternatively requested a review of the Registrar's decision, the Tribunal will nevertheless consider whether it could be the subject of review.

7. Rules 19 and 33 (A) of the Rules of Procedure and Evidence confer on the President the authority to review decisions taken by the Registrar, in appropriate cases. While the Registrar has the responsibility of ensuring that all decisions are procedurally and substantially fair, not every decision taken by him can be the subject of review. The Registrar must be free to conduct the business of the Registry without undue interference by Presidential review.

ICTR • 335 8. According to the Tribunal's jurisprudence, an application for review of the Registrar's decision by the President on the basis that it is unfair procedurally or substantively, is admissible under Rules 19 and 33 (A) of the Rules, if the Applicant has a protective right or interest, or if it is otherwise in the interests ofjustice in the case of the Applicant. 9. Article 20(4) (e) of the Statute guarantees an accused the right to obtain the attendance and examination of witnesses on his or her behalf. In the present case, the Trial Chamber has ruled that Mr. Babin does not qualify as an expert in crime scene analysis, and he as therefore been precluded from testify as an expert witness. However, the Chamber permitted Mr Babin to testify as a factual witness. 10. The Registrar's decision has not infringed on the rights of Nyiramasiuhuko and Ntahobali to call Mr. Babin as a factual witness. Furthermore, Mr Babin has not indicated that his desire to testify as a factual witness is dependent on whether or not he is paid for work that he had undertaken in relation to the preparation of his report and anticipated testimony as an expert witness. It should be noted that factual witnesses are not paid by the Tribunal. 11. In light of the above, the Tribunal finds that Nyiramasuhuko and Ntahobali do not have a protective right or interest in the present case that warrant a review of the Registrar's decision. Furthermore, the issues raised by these Applicants do not threaten the interests ofjustice in their case. 12. This being said, it is apparent from the face of the contract between the Registry and Mr. Babin that it is not conditional on Mr. Babin being accepted as an expert witness by the Trial Chamber. In two previously similar cases, the Registry honoured those contracts. It may therefore wish to reconsider its position with regard to Mr. Babin, in fairness to him. More generally, there is a need for the Registry to clarify its position with regard to proposed expert witnesses who are not accepted as such by a Trial Chamber, in order to avoid similar problems in the future. For instance, this position could be conveyed in future contracts with proposed expert witnesses. FOR THE ABOVE MENTIONED REASONS, THE TRIBUNAL DISMISSES: (a) The appeal of 14 April 2005 filed by Pauline Nyiramasuhuko and Arsene Shalom Ntahobali against the Registry's decision of 13 April 2005; (b) A review of the Registry's decision of 13 April 2005;

The Prosecutor \t. Aloys Simba-Decision on the Defense Request for the Cooperation of Rwandan Government Pursuant to Article 28, Case No. ICTR-01-76-T, October 28, 2004

BEING SEIZED OF the "Rcquetc Urgente de la Defense en Vue d'Ordonner a I'Etat Rwandais Communication de I'Entier Dossier ]udiciaire du Temoin KDD," filed on 27 October 2004;

336 • Defense in International Criminal Proceedings

HAVING HEARD the parties on 27 October 2004; HEREBY DECIDES the motion. INTRODUCTION 1. The Defence seeks the entirejudicial dossier of Prosecution Witness KDD. According to the parties, the witness is a detained witness who has been condemned to death in Rwanda. The Chamber has previously ordered the Prosecution to request the judicial records of its detained witnesses from the Rwandan authorities. The Prosecution disclosed the records it obtained to the Defence on 3 August and 1 September 2004. Two of these documents related to Witness KDD have been translated from Kinyarwanda into French and provided to the Defence, including a Pro Justitia statement dated 17 August 2001 and the record of the witness's guilty plea dated 26 January 2001. SUBMISSIONS 2. The Defence argues that it does not have any documentation relating to Witness KDD's death sentence, which prevents the full appreciation of the witnesses testimony. The Defence indicated without further detail that it explained its various efforts to obtain these documents during the status conference of 13 May 2004. The Defence indicated that the witnesses testimony should be postponed until these records are obtained. 3. The Prosecution states that it has complied the Chamber's order to request judicial records of its witnesses from the Rwandan authorities and that all the judicial records it received from them were disclosed to the Defence. The Defence has not adequately demonstrated that it has made its own good faith efforts to obtain the documents prior to making its request. DELIBERATIONS 4. The Chamber has previously recognized that Rwandan judicial records are important for the preparations of the Defence given their relevance to credibility. The Chamber recently stated in this case: •

As is the general practice in the Tribunal, the Defence must first make its own independent efforts to secure evidence it wishes to use at trial other than exculpatory material in the possession of the Prosecution. Once the Defence demonstrates its inability to obtain relevant material despite its good faith efforts, it may then seize the Chamber and request appropriate judicial assistance pursuant to Article 28 of the Statute.

5. The Chamber has reviewed the transcript from the 13 May 2003 status conference, which documents only the Defence's need for judicial documents, not their efforts to obtain them. Consequently, in the Chamber's view, the Defence has not adequately demonstrated the efforts that it has undertaken to obtain the requested documents. Absent such a showing, the Defence's request for cooperation is premature. 6. The request for the adjournment of the testimony of the witness until the Defence obtains the fulljudicial dossier is also denied. The Defence may draw the Chamber's attention to inconsistencies between the testimony of the witness before this Chamber and any declaration or record obtained subsequently. If prejudice can be shown from its inability to put these inconsistencies to the witness, the Defence may submit a motion for his recall. FOR THE ABOVE REASONS, THE CHAMBER DENIES the Defence's motion.

ICTR • 337

Decision on Matters Related toWitness KDD's Judicial Dossier, November 1,2004 BEING SEIZED OF the Defence's oral motion for interpretation of the Trial Chamber's Decision on the Defence Request for the Cooperation of Rwandan Government Pursuant to Article 28, made on 28 October 2004; HAVING HEARD the parties on 28 and 29 October 2004; HEREBY DECIDES the motion. INTRODUCTION 1. On 10 May 2004, the Defence filed a motion pursuant to Article 28 of the Statute and Rules 66 and 73 of the Rules of Procedure and Evidence ("the Rules"), requesting the Chamber to order the Rwandan authorities to provide the Prosecution with the judicial dossiers of seventeen anticipated detainee witnesses, including Witness KDD, for disclosure to the Defence. In its motion, the Defence noted that it had made previous requests to the Prosecution for these documents, but made no mention of its own efforts to obtain them. On 14July 2004, the Chamber denied the Defence's request as premature and noted that the Prosecution had already indicated that it was in the process of trying to obtain the records for the Defence. The Chamber consequently instructed the Prosecution to make all efforts to obtain the criminal records of its detained witnesses by 2 August 2004. 2. The Prosecution disclosed a number ofjudicial documents in Kinyarwanda related to anticipated witnesses on 2 August 2004. On 1 September 2004, it made a second disclosure ofjudicial documents in Kinyarwanda, which contained a document from 1997 relating to Witness KDD. Two other judicial documents concerning Witness KDD had been previously disclosed in connection with his statement to investigator dated 30 November 2001, a Pro Justitia statement in Kinyarwanda, and a letter to the Gikongoro prison governor, in Kinyarwanda, French, and English. The two Kinyarwanda documents were sent for translation into French and disclosed to the parties on 22 October 2004. 3. On 27 October 2004, the Defence filed an urgent request under Article 28 to order the Rwandan authorities to communicate the entire judicial dossier of Witness KDD and to postpone his testimony until it was received. The Chamber denied the request on 28 October 2004 and stated: •

The Chamber has reviewed the transcript from the 13 May 2003 status conference, which documents only the Defence's need for judicial documents, not their efforts to obtain them. Consequently, in the Chamber's view, the Defence has not adequately demonstrated the efforts that it has undertaken to obtain the requested documents. Absent such a showing, the Defence's request for cooperation is premature.

•

The request for the adjournment of the testimony of the witness until the Defence obtains the full judicial dossier is also denied. The Defence may draw the Chamber's attention to inconsistencies between the testimony of the witness before this Chamber and any declaration or record obtained subsequently. If prejudice can be shown from its inability to put these inconsistencies to the witness, the Defence may submit a motion for his recall.

338 • Defense in International Criminal Proceedings 4. At the end of Witness KDD's examination-in-chief on 28 October 2004, the Defence requested an interpretation of the Chamber's decision delivered earlier on that day. SUBMISSIONS 5. The Defence explained that the Chamber's witness protection order precluded it from conducting the necessary investigations. It was also noted that the Chamber had previously ordered the Prosecution to obtain the documents and now was shifting the burden to the Defence. If the Prosecution was unable to obtain the documents, then as a corollary the Defence could not obtain them. According to the Defence, Rule 68 compels the Prosecution to provide all documents relating to the credibility of its witnesses. The Defence also drew the Chamber's attention to the fact that the only documents it received concerning KDD related to proceedings after his death sentence. 6. The Prosecution argued that the Chamber's decision was clear and that the Defence had not demonstrated due diligence as required by Article 28. It further noted that many Defence teams obtainjudicial documents on their own. DELIBERATIONS

7. In its decision of 14 July 2004, the Chamber stated: •

The Trial Chamber notes that the Prosecutor has undertaken to redouble efforts and contacts with judicial authorities to obtain the criminal records of the detained witnesses he intends to call. Further the Trial Chamber takes into account the Prosecutor's assertion that "nothing in [his] contacts with the said authorities indicates to [him] a refusal to provide the information requested." The Trial Chamber thus considers that the Defence request to order the Rwandan Authorities to provide the documents would not be justified by the circumstances of this case.

•

Therefore, the Trial Chamber is of the view that the Motion is premature at this date and should be denied. However, considering that the trial is scheduled to start on 16 August 2004, the Trial Chamber acknowledges the Defence concerns and instructs the Prosecutor to make all necessary efforts to obtain the criminal records of the detained Prosecutor's witnesses and to disclose them to the Defence as soon as he receives them. Further, the Trial Chamber instructs the Prosecutor to inform the Trial Chamber of any difficulty or delay he may encounter in the request of such records with the Rwandan Authorities.

8. The Chamber's order of 14July 2004 to the Prosecution was not based on Article 28 of the Statute. Although it was not expressly stated, the decision clearly relied on the Chamber's authority under Rule 98 of the Rules to order proprio motu a party to produce evidence. This provision may be relied on when a Chamber deems it appropriate to facilitate the production ofjudicial documents. 9. A clear distinction must be made between the Chamber's authority to order the production of evidence based on Article 28 and Rule 98, respectively. Article 28 embodies the Chamber's authority to compel cooperation based on a state's obligations under Chapter VII of the United Nations Charter. This authority should not be invoked lightly. As such, a party seeking an order pursuant to Article 28 must demonstrate that it has made reasonable attempts to achieve the object of its request and has been unsuccessful. In addition, it must set forth the nature of the evidence sought with particularity and the relevance of that evidence to the trial.

ICTR • 339 10. To date, the Defence has not been able to satisfy the threshold requirement that it first must have made reasonable efforts. No documentation or precise submissions have been provided. The Chamber's witness protection order does not impede the Defence's ability to request files from a domestic tribunal or prosecutor. Experience shows that Defence teams have been able to obtain Rwandan judicial documents. Furthermore, the Defence is not relieved of its obligation because the Prosecution has not yet been successful. In view of the threshold requirement under Article 28 the Chamber cannot, based on the information presently provided by the Defence, issue an order under that provision. This does not mean, as argued by the Defence, that the burden is shifted from the Prosecution to the Defence but is simply an application of principles developed in consistent case law. 11. The Trial Chambers have in the past ordered, pursuant to Rule 98, the Prosecution to use its good offices to request the Rwandan judicial records of detained witnesses. This is a different avenue of relief than Article 28 and does not necessarily require the same showing, given that the Chamber is issuing an order to a party and not a state. With respect to the judicial records of detained witnesses, Rule 98 may be invoked to expedite the proceedings given the importance of these records to the preparation of the parties and given the familiarity of the Prosecution with its witnesses. This explains why the Chamber made its order to the Prosecution on 14July 2004 to obtain the judicial records of its witnesses even though the Defence had not yet made sufficient independent efforts. 12. The Defence is not correct when it asserts that the production ofjudicial documents falls within the Prosecution's obligation under Article 68. As this Chamber recently stated in the present case: •

The Prosecution's obligation pursuant to Rule 68 is to disclose exculpatory evidence or evidence which may affect the credibility of Prosecution evidence, where such evidence is in its possession. It is not disputed that the requested documents are not within the Prosecution's possession. Thus, the motion must be dismissed. The Prosecution's disclosure obligations under the Statute and the Rules do not extend to pursuing every possible avenue of investigations into a witness's credibility on behalf of the Defence.

13. Following these clarifications, the Chamber now turns to some additional observations. In its decision of 14 July 2004, the Chamber issued an additional instruction for the Prosecution to file a report with details as to which criminal records it had obtained, the criminal records it was about to obtain, and the ones it was unable to obtain. The Prosecution has not identified the full extent of its previous efforts. The Defence and the Chamber received only the documents and some indication to which witness they referred. 14. Witness KDD testified after the Chamber's decision of 28 October 2004. During his testimony, the witness indicated that he was arrested in 1994, initially convicted in 1998, and subsequently lodged an appeal. He also testified that after his conviction he pleaded guilty to other crimes. The only document from the time period of the arrest, initial plea and conviction and appeal is a letter from 1997. Hence, a review of the disclosure concerning Witness KDD and his in court testimony reveals that there may be additional documents.

340 • Defense in International Criminal Proceedings 15. The Chamber order of 14July 2004 to the Prosecution related to a number of witnesses. It is possible that some documents concerning Witness KDD may not have been identified given the general nature of the initial request. Based on the witness's testimony, the Chamber now acts on its own motion and makes a specific order under Rule 98. The Prosecution is requested to make additional efforts to obtain the judicial dossier of Witness KDD relating to his 1998 conviction, the subsequent appeal, and any guilty pleas. The Prosecution should disclose any records it obtains to the Defence and the Chamber by Friday 5 November 2004. If the Prosecution is unable to obtain any additional records, the Chamber requests that it document all its efforts and indicate any reasons for its inability to obtain further documents. 16. The Chamber's present decision implies that the remaining examination of Witness KDD has to be postponed to a later date within the present trial segment. Meanwhile, the Chamber will hear the testimony of two Prosecution witnesses that are presently available and ready to testify in Arusha. FOR THE ABOVE REASONS, THE CHAMBER ORDERS the Prosecution to make additional efforts to obtain the judicial dossier of Witness KDD relating to his 1998 conviction, the subsequent appeal, and any guilty pleas, and to report on the results of its efforts by Friday 5 November 2004.

The Prosecutor \t. Protais Zigiranyirazo-Request for the Cooperation of the Government of Rwanda, Case No. ICTR-2001-73-A28, May 6, 2005

CONSIDERING that, with regard to the preparation of the trial, the Defence has raised during the Status Conference held on 4 May 2005 that it has failed to access some witnesses and resources persons in the Rwandan prisons since September 2004, and that the Government of Rwanda has not been cooperating to assist it; HAVING HEARD the Prosecutor's submissions on the issue during the Status Conferences held on 4 and 6 May 2005, and the Defence Reply made orally on 6 may 2005; BEING SEIZED of the Defence "Urgent Motion to Request the Cooperation of the Government of Rwanda" filed on 5 May 2005, providing the details of the failure to access those witnesses and other persons in Rwandan prisons, and the different attempts to get the assistance of the Government of Rwanda; CONSIDERING that the cooperation of the Government of Rwanda is necessary in order for the Defence to prepare its case; THE CHAMBER, HEREBY I. REQUESTS the cooperation of the Government of Rwanda in assisting the Defence Team composed ofJohn Philpot, Peter Zaduk, Dick Prudence Munyeshuli and Donatien Tuyisenge, to have access to Rwandan prisons for the purpose of its investigations, noting that nay interview shall take place in the presence of one of the Counsel; II. INVITES the Government of Rwanda to make any submission it may wish in relation to the Defence Motion, not later than 23 May 2005, in order to assist the Chamber to determine whether any further measures required to be taken; DIRECTS the

ICTR • 341 Prosecutor to make any further submission in relation to the Defence Motion before 23 May 2005, and INVITES the Defence to reply to those submissions not later than 27 May 2005; III. DIRECTS the Registrar to serve this request for cooperation to the Government of Rwanda, accompanied by the Defence Motion.

The Prosecutor \t. Aloys Simba-Decision on Defense Request for Subpoenas, Case No. ICTR-01-76-T, May 4, 2005

INTRODUCTION 7. The Defence requests the Chamber to issue subpoenas to Witnesses BJK1 and HBK. The witnesses have refused to testify, as originally scheduled, citing security concerns. Article 20 (4) (e) of the Statute guarantees an accused the right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. To these ends, the Chamber may issue a subpoena if a witness refuses to appear voluntarily and if the proposed evidence is relevant. DELIBERATIONS 8. The Prosecution argues that the request should be denied because the Defence did not adequately substantiate the threats against the witnesses. However, the Defence must only show that it has made reasonable efforts to obtain the witnesses' voluntary cooperation and was unsuccessful. The Tribunal's Witness and Victims Support Section (WVSS) has confirmed that both Witness BJK1 and HBK are no longer willing to voluntarily appear in this case. 9. The Prosecution also asserts that the evidence of these witnesses are not necessary because it would be cumulative of other evidence already on record. The Chamber notes that Witness BJK1's proposed testimony is relevant because he accompanied the Accused from 7 April until July 1994. As the Prosecution submits, a number of other witnesses have also testified in relation to the Accused's alibi. Nonetheless, Witness BJK1 is the only witness whose testimony allegedly provides first-hand corroboration for the entirety of the alibi. Also, Witness HBK's anticipated testimony is relevant to the proceedings. The Chamber notes that much of his proposed testimony is second-hand and may be cumulative of other evidence on the record. However, he has been implicated as a co-author of the crimes charged against the Accused. Consequently, his testimony may be of interest. 10. The Registry shall prepare subpoenas addressed to these witnesses to give evidence in this case on a date to be determined after further consultations with the parties. The timing for the hearing of the evidence of these witnesses does not alter the deadlines for the submission of the final trial briefs on 22June 2005 or closing arguments on 7-8 July 2005. Statements for these witnesses have already been disclosed. The Prosecution has also already interviewed Defence Witness BJK1. Therefore, the prospective evidence of these witnesses may be fully discussed during oral arguments. 11. Witness BJK1 has indicated that he has received death threats related to his anticipated testimony before the Tribunal. Consultations with WVSS indicate that the witness's subjective fear is genuine. The Chamber also notes that two witnesses, detained

342 • Defense in International Criminal Proceedings

with Witness HBK, recounted harassment by local officials in connection with their testimony. Following instructions from the Chamber, WVSS has conducted investigations and brought this to the Rwandan government's attention so that it can make further inquiries and take appropriate action, if necessary. The Chamber requests the Rwandan government to take all necessary measures to ensure the safety of Witnesses BJKl and HBK. The WVSS is requested to keep the Chamber appraised of any information relevant to the witnesses' safety that might be implicated by the execution of this decision. FOR THE ABOVE REASONS, THE CHAMBER GRANTS the Defence request to issue subpoenas to Witnesses BJKl and HBK; ORDERS the Registry to prepare two subpoenas in accordance with this decision, addressed to Defence Witnesses BJKl and HBK, and to communicate the subpoenas, with a copy of the present decision, to the relevant Rwandan authorities; REQUESTS the Rwandan authorities to serve the subpoenas on Witnesses BJKl and HBK as soon as possible, to take all appropriate measures to ensure their protection, and to provide any other assistance that may be requested by the Registry to facilitate their attendance at trial.

The Prosecutor \t. Elizeyer Niyitegeka-Judgment, Case No. ICTR-96-14-A, July 9,2004

III. Disclosure of statements, matters not subject to disclosure, and retention of information (grounds of appeal 11, 13, 16, 17, 62) 1. The Appellant submits that the Trial Chamber erred in law when it permitted the Prosecutor to rely upon Rule 70 of the Rules to claim privilege over the first-made records of the questions that Prosecution investigators put to witnesses and of the answers given. The Appellant pleads that in order to be able to challenge the testimony of witnesses against him fully, in accordance with the fair trial requirements of Articles 19 and 20 of the Statute, he should have had access to the investigators' notes. 2. The Appellant also submits that the Trial Chamber erred in law in permitting the Prosecution to call witnesses in circumstances where no reasonable explanation was given for the unavailability of the original statements made by the witnesses to the Prosecution investigators. The Appellant claims that the unavailability of the original statements deprived him of the opportunity to cross-examine the witnesses effectively. 3. Finally, the Appellant argues that the Trial Chamber erred in law in convicting and sentencing him when on 27 February 2001 it issued an order directing the Prosecution to make a full disclosure, which in the Appellant's view has not been made. 4. The Appellant cites cases from the European Court of Human Rights ("ECourtHR") as well as the Trial Judgement in the case of Prosecutor v. Kayishema and Ruzindana in support of the contention that "documentary material created at the time of the interview of Prosecution witnesses is relevant material that the Prosecution has an obligation to obtain, secure and make available to the Defence." 5. The Prosecution responds that the factual circumstances of those cases from the ECourtHR cited by the Appellant are not relevant to the present case. The Prosecution

ICTR • 343 submits that none of the cases cited by the Appellant support the contention that the principle of equality of arms and the right to a fair trial are infringed by not disclosing handwritten notes taken by an investigator. The Prosecution further submits that, on the contrary, an accused's right to disclosure is not absolute and that in any criminal trial there will be competing interests at stake which must be weighed against the rights of the accused. 6. A review of the cited jurisprudence reveals that the cases from the ECourtHR are not on point and that nothing in the Kayishema and Ruzindana Trial Judgement supports the Appellant's contention. Nowhere in the relevant passages in that case did the Trial Chamber state that the Prosecution has an obligation to obtain, secure or make available to the Defence its own internal material created at the time of the interview. 7. Pursuant to Rule 66(A) (ii) of the Rules, the Prosecutor has a duty, inter alia, to make available to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial. The Appeals Chamber notes that neither the ICTR nor IClY has provided a clear definition of the term "statement." In particular, the jurisprudence has not made a clear distinction between "statements" and "internal documents prepared by a party (which( are not subject to disclosure or notification" under Rules 66 and 67 of the Rules. 8. A record of a witness interview, ideally, is composed of all the questions that were put to a witness and of all the answers given by the witness. The time of the beginning and the end of an interview, specific events such as requests for breaks, offering and accepting of cigarettes, coffee and other events that could have an impact on the statement or its assessment should be recorded as well. 9. Such an interview must be recorded in a language the witness understands. As soon as possible after the interview has been given, the witness must have the chance to read the record or to have it read out to him or her and to make the corrections he or she deems necessary and then the witness must sign the record to attest to the truthfulness and correctness of its content to the best of his or her knowledge and belief. A co-signature by the investigator and interpreter, if any, concludes such a record. 10. Records of questions put to witnesses by the Prosecution and of the answers given constitute witness statements pursuant to Rule 66 (A) (ii) of the Rules. It is necessary to disclose the questions put to the witness in order to make the statement intelligible. This obligation also follows from the fair trial guarantees stipulated in Articles 19 and 20 of the Statute. Furthermore, an accused must have access to the questions put to the witness in order to be able to prepare for cross-examination properly. At times, it may be impossible to assess the probative value of the witness's answer without juxtaposing it with the relevant question. This may also affect a Chamber's assessment of the credibility of the witness and the reliability of a testimony in its development. The record of the first interview with a witness is of the highest value because it is most likely to capture the witness's recollection accurately, being closest in time to the events and less vulnerable to any subsequent influence. 11. Questions that were put to a witness-thus being part of the witness statementhave to be distinguished from "internal documents prepared by a party," which are not subject to disclosure under Rule 70 (A) of the Rules, as an exception to the general disclosure obligation pursuant to Rule 66(A) (ii) of the Rules. A question once put to a witness is not an internal note any more; it does not fall within the ambit and thereby

344 • Defense in International Criminal Proceedings

under the protection of Rule 70 (A) of the Rules. If, however, counselor another staff member of the Prosecution notes down a question prior to the interrogation, without putting this question to the witness, such a question is not subject to disclosure. Similarly, any note made by counselor another staff member of the Prosecution in relation to the questioning of the witness is not subject to disclosure, unless it has been put to the witness. 12. The fact that a particular witness statement does not correspond to the standard set out above does not free a party from its obligation to disclose it to the other party pursuant to Rule 66 (A) (ii) of the Rules. Furthermore, a witness statement which does not correspond to the standard set out above does not necessarily render the proceedings unfair. The Prosecution is obliged to make the witness statement available to the Defence in the form in which it has been recorded. However, something which is not in the possession of or accessible to the Prosecution cannot be subject to disclosure: nemo tenetur ad impossibile (no one is bound to an impossibility). 13. Also, a statement not fulfilling the ideal standard set out above is not inadmissible as such. Pursuant to Rule 89(C) of the Rules, a Chamber may admit any relevant evidence which it deems to have probative value. However, any inconsistency of a witness statement with the standard set out above may be taken into consideration when assessing the probative value of the statement, if necessary. 14. In the present case, the Appellant has not sufficiently demonstrated that additional records exist that have not been disclosed to the Defence. Without a showing of the availability of such records it has not been established that the Prosecution did not fulfil its duty to disclose pursuant to Rule 66 (A) (ii) of the Rules. On the contrary, as discussed above, the Senior Trial Attorney confirmed that the Prosecution has no such documents in its possession, and the Appellant has shown no reason to doubt this representation. 15. Furthermore, the Defence has not in concreto demonstrated that the Appellant has suffered prejudice by the way statements have been disclosed to him. The Appeals Chamber notes in this context that neither during the trial nor during the appeals proceedings has the Appellant tried to call an investigator as a witness to testify to the full content of a first-made statement in order to try to show such prejudice. 16. The Trial Chamber also did not err in law when it permitted the Prosecution to call witnesses for whom first-made records were unavailable. Furthermore, the Appellant did not demonstrate that he has suffered prejudice. 17. The related grounds of appeal on this point are therefore dismissed.

The Prosecutor \t. Theoneste Bagosora et al.-Decision on the Prosecution Motion for Special Protective Measures forWitness"A" Pursuant to Rules 66(C), 69(A) And 75 of the Rules of Procedure and Evidence, Case No. ICTR-98-41-T, June 5, 2002

BEING SEIZED OF the Prosecution Motion For Special Protective Measures For Witness A, filed on 28 December 2001, to which is attached Annexes A, AA, and BB, containing, respectively: the "Confidential" Affidavit of Gilbert Morissette, Investigator with the Office of Prosecutor in Kigali, Rwanda; A Summary of Transcripts of Witness Interviews, which provide a precise of Witness A's anticipated testimony; and a handwritten decla-

ICTR • 345 ration from Witness A indicating that the contents of the transcripts of his testimony are accurate and indicating his intention to testify if appropriate security measures are implemented for him and his family (collectively, hereinafter the "Motion"). CONSIDERING Nsengiyumva's Defence Response to the Prosecution Motion for Special Protective Measures for Witness, filed on 21 January 2002 together with the Defence Book of Authorities In Support of Defence Response to the Motion, filed on 31 January 2002 (collectively, hereinafter, the "Nsengiyumva Response"); and the Defence Motion for Leave to Rely on the Nsengiyumva Response, filed on 19 February 2002; CONSIDERING the Response of the Defence for Aloys Ntabakuze to the Prosecutor's Motion Entitled: "Prosecution Motion for Special Protective Measures for Witness A," filed on 29 January 2002 (hereinafter, the "Ntabakuze Response"); CONSIDERING the Brief in Response filed on 6 February 2002 on behalf of the Accused Bagosora (hereinafter, the "Bagosora Response"); CONSIDERING Kabiligi's Brief in Response to the Prosecutor's Motion to Obtain Exceptional Protective Measures for Witness A, filed on 18 February 2002 (hereinafter, the "Kabiligi Response") NOW DECIDES the matter pursuant to Rule 73 (A) on the basis of the written briefs of the parties.

A. SUBMISSIONS OF THE PROSECUTOR 1. The Prosecutor brings the instant Motion to obtain special protective measures for a witness she wishes to refer to by the pseudonym "Witness A." The Prosecutor requests the following fourteen measures of protection: (a) assignment of the pseudonym "A" to the witness; (b) leave to refer to the witness as "A" in all proceedings before the Tribunal and in communications among the parties; (c) leave to communicate the Morissette Affidavit, which delineates the particulars of Witness A's current whereabouts and security situation and the circumstances warranting the additional protective measures, in camera and to withhold it from disclosure to the Defence; (d) leave to withhold from the Defence the disclosure of the redacted transcripts of Witness A's statement until thirty-five days before the witness is to appear at trial; (e) leave to withhold the disclosure of the unredacted relevant portions of the witness's transcript statement until fifteen days before the witness is to appear at trial (f) leave to communicate to the Chamber in camera, the portions of Witness A's transcript statement for which protection from disclosure is sought pursuant to Rule 66(C), without having to disclose same to the Defence (g) exclusion of the public at all hearings wherein protective measures for the witness are to be considered; (h) leave to withhold from disclosure to the public any records that identify Witness A; (i) leave to present Witness A's testimony via two-way closed circuit television; G) an injunction prohibiting the recording of the witness's image on video; (k) an order closing to the public all portions of the trial proceeding where the testimony may reveal his identity or that of his relatives or compromise the security of any ongoing investigations; (1) leave to withhold from disclosure Witness A's identity until fifteen days before he is to testify; (m) leave to forever withhold from disclosure the witness's present whereabouts and personal particulars; and (n) an oral hearing of the Motion in camera. The Prosecutor contends that the "additional" protective measures are necessary to assuage the fears of Witness

346 • Defense in International Criminal Proceedings

A, whose fear of retribution including physical injury and death to his family members would prevent him from testifying. 2. As the legal basis for the relief sought, the Prosecutor relies on Rules 66(C), 69 (A) , and 75 of the Tribunal's Rules of Procedure and Evidence. The Prosecutor invokes Rule 66 (C) in stating that in light of the exigencies, it would violate public interest and prejudice her ongoing investigations "of other persons" if the identifying data about Witness A were revealed. The Prosecutor incants the five-variable balancing test pronounced by the International Tribunal for the Former Yugoslavia in the matter of the Prosecutor v. Tadic, IT94-1, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses (10 August 1995). The Prosecutor submits that the circumstances regarding Witness A qualify him for the special protective measures sought in the Motion. Witness A, who currently enjoys "special protective measures of the Office of the Prosecutor," would likely be exposed to "serious danger, including the strong possibility that he and members of his family may be killed," if his co-operation with the Office of the Prosecutor were to be disclosed. 3. Considering the five variables pronounced in Tadic, the Prosecutor submits the following factual predicate in support of the additional protective measures she seeks. First, citing to an ongoing conflict between the present government of Rwanda and elements of its former government, the Prosecutor expostulates that there is real fear regarding the safety of Witness A and that of his family members. Second, Witness A's testimony is of such estimable relevance and importance to the Prosecutor's case that it would be "unfair" for the Chamber to require that the Prosecutor dispense with his testimony. Third, there is no primafacie evidence suggesting that Witness A is untrustworthy. Fourth, there is no effective long term witness protection program in place in Arusha, Tanzania, as would ensure the safety of Witness A and that of his family. Fifth, and finally, the special protective measures the Prosecutor seeks do not go beyond what is strictly necessary to address the exigencies in this case and will visit no prejudice upon the Accused. B. SUBMISSIONS OF THE DEFENCE FOR NSENGNUMVA 4. In the Nsengiyumva Response, the Defence challenges the legal and factual basis for the Motion. First, the Defence stresses that Rule 69 (A) permits the non-disclosure of a witness's identity only upon demonstration of the existence of "exceptional circumstances," provided, of course, pursuant to Rule 69(C), the witness's identity is nevertheless disclosed to the Defence in sufficient time in advance of trial to afford it adequate time to prepare its case. The Defence also states that the Prosecutor's reliance on Rule 75 is similarly misplaced because the Rule requires that any protective measures granted be consonant with the rights of the Accused. Finally, in this regard, the Defence maintains that Article 19 of the Tribunal's Statute dictates that "the rights of the accused must always prevail over witness protection." 5. Second, the Defence contends that the Motion must fail because the Prosecutor has not provided any evidence substantiating the existence of exceptional circumstances as would justify the exotic relief she now seeks. Notably in this regard, the Defence indicates that any threats to the safety of Witness A must be established in detail, including the nature of the threats and their source, so as to accord the Accused Nsengiyumva a fair opportunity to distance himself from such allegations. The disclosure to the Defence of the particulars of the circumstances causing Witness A's alleged fears would not fur-

ICTR • 347 ther compromise his security situation since the Defence does not know his identity. At the very least, argues the Defence, they must be given an opportunity to inspect any affidavits submitted in support of the Motion. Indeed, argues the Defence, the Prosecutor has not made any allegation connecting the Accused Nsengiyumva to the unsubstantiated allegations of instability in Rwanda, which she tenders as the justification for the reinforced and extraordinary protective measures she seeks. Similarly, the Prosecutor fails to substantiate her conclusory claim that disclosure of the unredacted version of the statement of Witness A will necessarily jeopardise her ongoing investigations. 6. The Defence further claims that the Motion is merely an attempt by the Prosecutor to appease the paranoid fears of Witness A, a difficult witness who is holding the Prosecutor and the Accused to ransom on the basis of imagined threats with no grounding in objective facts. Referring to the ICTY 3 June 2000 Decision on Motion by the Prosecutor for Protective Measures in the matter of Prosecutor v. Brdanin and Talic, the Defences stresses that in order to warrant the extraordinary protective measure of anonymity, the Prosecutor must demonstrate that the witness is either in real danger or that there is a genuine risk to the witness's security. In this respect, any subjective fear expressed by the potential witness himself are not by themselves sufficient to establish the necessary predicate for the granting of exceptional protective measures pursuant to Rule 69.

7. Moreover, the Defence examines each of the five variables pronounced in Prosecutor v. Tadic, and finds that the Prosecutor has failed to demonstrate the required factual elements as would warrant the grant of the exotic relief she seeks in the Motion. Among other palpable lacunae in the Motion, the Defence notes that the Prosecutor's mere incantation of the "ongoing conflict" between present and former Rwandan government factions falls far short of demonstrating an objective and real basis for fearing for the safety of Witness A. Similarly, the Defence contends that the Prosecutor is being disingenuous when she states that Witness A will provide highly relevant and important testimony that is indispensable to her case since it is not known at this stage whether other witnesses can testify about the same events. Therefore, claims the Defence, the Motion should be dismissed as premature. Moreover, the Defence contends that the Prosecutor's conclusion about the inadequacy of the current protective measures and of the witness protection regime in general, is of no legal moment because to date there have been no reported cases of witnesses suffering any harm as a result of testifying before the Tribunal. 8. Moreover, the Defence argues that facts precipitating the Tribunal's decisions in the matters of the Prosecutor v. Nahimana et aI., ICTR-96-11-T and Prosecutor v. Musema, ICTR-96-13-1 are distinguishable from the present circumstances in one important respect; the Prosecutor in those cases demonstrated the materiality and significance of the potential witness's testimony and presented evidence of objective facts supporting the witnesses' fears of reprisals for testifying in documents that were disclosed to the Defence. The Prosecutor's request that the material supporting the Motion remain veiled from the Defence, is tantamount to an ex-parte proceeding in derogation of the fundamental due process rights of the Accused guaranteed pursuant to Articles 19(1) and 20 (4) of the Tribunal's Statute. More important, the request that the Prosecutor continue to withhold from the Defence the full, unredacted statements and transcripts of Witness A beyond the already severely truncated period of thirty-five days prior to testimony as prescribed in the Chamber's extant Decision on witness protection, works grave prejudice on the Defence's right to effectively prepare for cross-examination.

348 • Defense in International Criminal Proceedings

9. In their concluding arguments, the Defence raises the spectre that the alleged trend of sacrificing the fundamental rights of the accused to a fair and public trial on the altar of witness protection where the Prosecutor is permitted to rely on the testimony of anonymous witnesses, threatens to eviscerate any notion of the fair administration of justice at the Tribunal. 10. In the Nsengiyumva Motion for Leave, the Defence requests that the Chamber permit it to rely upon the submission made in the Nsengiyumva Response notwithstanding that it was filed 21 January 2002, i.e., beyond the five day period prescribed in Rule 73 (D), owing to delays in receiving the translation of the Motion. C. SUBMISSIONS OF THE DEFENCE FOR NTABAKUZE 11. Reiterating many of the same legal and factual arguments advanced in the Nsengiyumva Response, the Ntabakuze Response makes the following additional submissions. First, and most significantly, contends the Defence, the Prosecutor has failed to meet her obligation under Rule 69 (C) of proving that the disclosure of Witness A's unredacted statement is contrary to the interests ofjustice. 12. Equally alarming, claims the Defence, is that it is impossible to intelligently respond to the Motion without the benefit of the transcripts of the witness's statements and the supporting affidavits describing circumstances regarding the basis for Witness A's security concerns. In this vein, the Defence concludes that what scarce factual allegations that the Prosecutor provides in support of the Motion are nothing more than conjecture. The generalised and subjective fears expressed by the Witness are no different from those harboured by all witnesses coming before this Tribunal and throughout the world. Such nondescript fears cannot, therefore, form the basis for the unprecedented protective measures the Prosecutor seeks in order to allegedly facilitate the appearance of Witness A. 13. The Defence also contests what they perceive as the Prosecutor's unfair attempt to insinuate, on the barest allegations, that the Accused are somehow malevolent and dangerous. 14. The Defence believes that this Tribunal's decisions in the matter of the Prosecutor v. Nahimana, on which the Prosecutor relies, are inapposite and therefore not instructive in the instant circumstances. Notably, the Chamber in the Nahimana case ordered the Registry to provide it with clarifications about its capacity to provide adequate protection measures for the witnesses at issue. In this, regard, the Defence requests that the Chamber order the Registry to appear before it to provide specific information about its capacity to provide protection to Witness A. 15. Finally, remonstrates the Defence, if the Prosecutor's allegation that Witness A will provide critical eyewitness testimony about highly relevant matters is to be taken at face value, it is all the more imperative for the Defence to receive his unredacted statement at the very earliest opportunity so as to mount an effective cross-examination. Given the alleged importance of Witness A's testimony, it would visit unjust and irreparable prejudice on the Defence to be denied the right to receive his unredacted statement until fifteen days before his testimony. Moreover, contends the Defence, the Prosecutor provides no insight as to how and why the additional twenty days of delayed disclosure to the Defence of Witness A's full statements will provide any additional measure of protection. Accordingly, the Prosecutor has failed to show that the extraordinary additional

ICTR • 349 protective measures she seeks are strictly necessary, i.e., will not unduly restrict the rights of the Defence based upon the whim of a reluctant witness or upon the arbitrary judgement of the Prosecutor. D. SUBMISSIONS OF THE DEFENCE FOR BAGOSORA 16. Joining its voice to the chorus of many of the arguments advanced by the Defence for Nsengiyumva and Ntabakuze, the Bagosora Defence also makes the following additional submissions. First, the Defence protests that the manner in which the Motion was brought, depriving the Defence of disclosure of the very affidavits by which it can determine the propriety of the additional protective measures sought for Witness A, strips of the ability to respond to the Motion on its factual and substantive merits. In essence, the Motion invites the Defence to engage in an illusory role since the essential part of the Motion has not been disclosed to the Defence. The Prosecutor has enfeebled if not completely obviated the participation of the Defence. Consequently, the Defence will be relegated to a purely "fictional" role in the proceedings. 17. This exotic process whereby the Defence is deprived of the very information it needs to address the Motion, threatens to place into question any notions of a just or equitable trial. Furthermore, the Defence fears that the Prosecutor is embarking on a dangerous course whereby she will only disclose to the Defence the portions of her witnesses' statements she wishes to disclose. The Prosecutor has placed the Defence in a factual desert without the means to determine whether there exist "exceptional circumstances" with regard to Witness A and whether the measures she seeks are strictly necessary in light of those factual circumstances. In any event, the Defence strenuously contests the existence of exceptional circumstances warranting such far-reaching curtailment of the rights of the Accused to a fair and equitable trial. 18. The Bagosora Defence stresses that there has not been a single reported case since the establishment of the Tribunal in which witnesses for the Prosecutor have been injured or killed as a result of testifying before the Tribunal. In significant contrast, the Defence notes that defence witnesses, including the brother and sister of the Accused Bagosora, were assassinated in Cameroon and Belgium, and a witness in the matter of the Prosecutor v. Ruzindana, was killed several days before he was to give testimony on behalf of the defence. Against such a factual backdrop, the Chamber has no objective facts to give credence to the subjective fears expressed by the Prosecutor's witness upon which the request for extraordinary protective measures is based. 19. The Defence further decries the protective measures the Prosecutor now seeks as a further abrogation of the rights of the Accused in this cases, which rights had already been severely limited by reason of this Chamber's decisions of 29 November 2001 and 5 December 2001 by permitting the Prosecutor to withhold disclosure of the full statements of her witnesses up until thirty-five days before their appearance at trial. By requesting to withhold unredacted statement of Witness A even beyond the thirty-five days prescribed by the previous decisions to a mere fifteen days before testimony will effectively prevent the Defence from mounting any real cross-examination of the witness. E. SUBMISSIONS OF THE DEFENCE FOR KABILIGI 20. The Defence for Kabiligi levels primarily the same arguments advanced by his other colleagues against the Motion. First, after reciting the language of the various Rules upon which the Motion purports to be based, the Defence notes the palpable absence

350 • Defense in International Criminal Proceedings of allegations supporting the Prosecutor's expedient conclusion that "exceptional circumstances" exist with respect to Witness A warranting the unprecedented measures of additional protection she seeks. The Defence further notes that the Chamber's Decision of 5 December 2001 was rendered without the benefit of a principled finding that "exceptional circumstances" existed to warrant the grant of delayed disclosure of the identities and unredacted statements of all the witnesses for the prosecution. 21. The Defence further expresses surprise at the Prosecutor's bald claim pursuant to Rule 66(C) that, more than five years after the arrest of the Accused, she continues to lead an investigation with respect to the same matter. The Defence contends that the Prosecutor's claim does not stand examination given that in all national jurisdictions all criminal investigations have a beginning and an end, which end is ordinarily marked by the commencement of the trial proceedings. In addition, the Defence protests that it is unfair for the Prosecutor to continue her investigations in this case after the commencement of trial.

DELIBERATIONS 22. Rule 75(A) empowers the Chamber to limit the time when disclosure of witness statements and identity is to be made to the opposing party. At the outset, the Chamber notes that the following provisions of the Tribunal's Statute and Rules are applicable to the determination of the propriety of the additional measures of Protection the Prosecutor seeks in the Motion in respect to Witness A: Articles 19 (1), 20 (4) (b) and 21 of the Statute; and Rules 66, 69 and 75. The Chamber is mindful of its previous decision, namely, Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, dated 5 December 2001, wherein it determined, among other things, that adequate protection would be afforded to the prosecution's protected witnesses if the Prosecutor were allowed to withhold the disclosure to the Defence of their unredacted statements and other identifying data until thirty-five days in advance of a given witness's testimony. 23. Some of the additional protective measures sought on behalf of Witness A are not, strictly speaking, "special" in that they are part of the ordinary compliment of protection measures accorded to all vulnerable witnesses for whom there has been a showing of "exceptional circumstances" pursuant to Rule 69 (A). Indeed, by reason of this Chamber's Decision of29 November 2001, the following four types of protective measures denominated by the letters (a), (b), (h), and (m) in paragraph No.1 of the Prosecutor's submissions above are already in place with respect to Witness A. Accordingly, there is no necessity for the Chamber to consider them anew. Similarly, there is no necessity for the Chamber to consider the propriety of the protective measures sought in items bearing the letters (g), G) and (k), since all of these measures are implicit in or inevitably follow from the measures already in place. Finally, the order sought in item (n) in paragraph No.1 above, is moot because the Chamber is not hearing oral argument of this Motion, thus obviating the need for an in camera proceeding. 24. In essence, there are only six measures of relief sought by the Prosecutor which legitimately merit consideration as "additional" or "special" measures of protection in regard to Witness A, namely, measures enumerated at (c); (d); (e); (f); (i); and (1) in paragraph No.1 above. The Chamber will address the propriety of each of these additional measures in turn.

ICTR • 351 25. Whereas to the Prosecutor's prayer that the contents of the Morissette Affidavit, including, the whereabouts of Witness A, remain forever confidential and not be disclosed to the Defence, in item (c) above, the Chamber is satisfied that the current security situation of Witness A as indicated in the Affidavit of Investigator Morissette provides sufficient basis upon which the relief may be granted. Witness A's fears of reprisals for his anticipated testimony in this case as well as for the assistance he provided and hopes to provide to the Prosecutor in respect to ongoing investigations require that his whereabouts remain forever inviolate as against the Defence and the public. Lack of knowledge about the current whereabouts of the witness can in no way hamper the preparation of cross-examination of the witness. What is important are the substantive matters to which the witness will testify. 26. With respect to measure (c) in the Prosecutor's list of requested relief, although the Defence is eloquent in its arguments that the Prosecutor must disclose the confidential contents of the Affidavit submitted in support of the Motion, the unequivocal provisions of Rule 66(C) militate in favour of the opposite conclusion. As a threshold matter, the Chamber notes that Rule 66(C) permits the Prosecutor to withhold from disclosure to the Defence and provide to the Chamber on an ex parte basis, information she believes "may prejudice further or ongoing investigations." The Chamber believes that the contents of the Affidavit of Investigator Morissette adequately provide the factual predicate for the granting of the requested relief by demonstrating the unique position and significance of the information Witness A has already provided and will continue to provide in respect to several ongoing investigations by the Office of the Prosecutor into allegations of crimes falling within the subject matter jurisdiction of this Tribunal. The Chamber therefore rejects the Defence contention that nondisclosure of the confidential contents of the supporting Affidavit, which is likely to compromise the viability of the Prosecutor's ongoing investigations, will deprecate the integrity of this Tribunal in providing a fair and equitable trial to the Accused or relegate the Defence to playing a merely illusory role in these trial proceedings. 27. The Prosecutor seeks in item (d) to disclose the redacted version of Witness A's transcript statement thirty-five days before he is to appear at trial. As a related order, the Prosecutor seeks in item (e) to communicate the unredacted statement of Witness A no earlier than fifteen days before trial. These are the most contentious of the measures sought. The additional facts provided in the Motion do no present any cogent arguments or factual justification for extending the period during which Witness A is to remain anonymous to the Defence. Significantly in this regard, the Prosecutor does not advance any factual or legal support for her request that the period of non-disclosure should be extended beyond the thirty-five days before testimony prescribed in the Decision of 5 December 2001. In particular, the Prosecutor does not indicate how or why the additional period of twenty days of anonymity is strictly necessary to ensure more effective protection of Witness A. See Prosecutor v. Dusko Tadic, IT-94-1, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses (10 August 1995). This lacunae in the Prosecutor's arguments is particularly troubling when one considers that she is asking for extraordinary measures of witness protection with respect to a witness she believes will provide unique and significant testimony at trial. 28. Under Articles 19,20, and 21 of the Statute, the Tribunal must safeguard the rights of the Accused to a fair and equitable trial, including the right to be provided adequate time and facilities to prepare effective cross-examination of the witnesses against him.

352 • Defense in International Criminal Proceedings Accordingly, the Chamber declines to grant the additional measure of anonymity because the Prosecutor has provided no justification demonstrating that such additional measures are strictly necessary to ensure the security of Witness A. The Prosecutor shall be required to abide by the previous order, requiring her to disclose the unredacted version of Witness A's statements no later than thirty-five days before the witness is scheduled to appear to give testimony, save the present address and location of the witness. 29. Finally, with regard to item (i), the Chamber is convinced, on the basis of the confidential contents of the Affidavit, that given the absence of a fully-fledge witness protection program at the seat of the Tribunal in Arusha, Tanzania, the current security circumstances of Witness A, including real and objectively substantiated threats on his life, eminently entitle him to the additional protection that can be accorded to him by permitting him to testify via satellite on closed circuit television from the Hague, where the security facilities are more conducive to assuring the safety of the witness. The Chamber's Decision of 5 December 2001 determined the threshold level of protective measures to which the prosecutor's protected witnesses were entitled based upon a showing of exceptional circumstances. In the instant Motion, the Prosecutor, through the Affidavit and confidential supporting materials demonstrates further specific factual circumstances which purportedly entitle Witness A to an enhanced period during which his identity will not be disclosed to the Defence. The Chamber finds that the Affidavit supporting the Motion provides objective facts substantiating the basis of Witness A's fear for his safety and that of his family. 30. While the Chamber notes that Rule 73 arguably requires parties to file their response to motions no later than five days after receiving same, however, the Chamber is sensitized to the systemic delays the parties experience in receiving translations. Accordingly, in the exercise of its discretion, the Chamber will grant the Defence Motion for Leave to Rely on the Nsengiyumva Response. In addition, this relief permitting Nsengiyumva to rely on the untimely filed submissions will be extended to benefit all other Defendants. 31. Accordingly, for the foregoing reasons the Tribunal GRANTS the Defence Motion For Leave to Rely on the Nsengiyumva Response, and further extends the application of this Order to the benefit of the other Defendants in this case. GRANTS the Prosecutor's Motion to the following limited extent: a.

Pursuant to Rule 66(C) the Prosecutor shall have the right to withhold from disclosure the Affidavit of Investigator Morissette which was tendered in support of the instant Motion;

b.

Pursuant to 69 (A) the Prosecutor shall be permitted to introduce the testimony of Witness A via two-way closed circuit television from the Hague to be broadcast live to the seat of the Tribunal in Arusha, Tanzania in the presence of all the parties;

c.

Pursuant to the Decision on the Prosecution Motion for Harmonisation and Modification of Protection Measures for Witnesses, dated 5 December, and Rule 66(C) the Prosecutor shall disclose to the Defence in a language they understand the transcripts of the statements of Witness A, redacting out only those portions of the transcripts that are susceptible of revealing the whereabouts of

ICTR • 353 Witness A or of compromising the ongoing investigations in which Witness A is providing assistance to the Prosecutor, no later than thirty-five (35) days before the date that Witness A is scheduled to give testimony via closed circuit television; d.

All hearings where Witness A is to present testimony that is likely to compromise the security of the ongoing investigations of the Prosecutor shall be closed to the public;

e.

Pursuant to Rules 75 and 66 (C) the whereabouts of witness A shall never be disclosed to the public, the Defence or the Accused.

DENIES the Motion in all other respects.

Decision on the Prosecution Motion for Special Protective Measures for Witnesses ZA, ZF, and ZZ Pursuant to Rules 66(c), 69(A) and 75 ofthe Rules ofProcedure and Evidence, July 10, 2002

BEING SEISED OF the Prosecution Motion For Special Protective Measures For witnesses ZA, ZF and ZZ filed on 12 February 2002, to which are attached the supporting Affidavits of Investigators Kadri, Fay and Sanogo, which were provided for in camera review only. (Collectively, hereinafter the "Motion"); CONSIDERING the Defence Response to the Motion, filed by Counsel for Nsengiyumva on 19 February 2002, in which the Defence adopts the legal authorities cited and submission made in the "Defence Response to the Prosecution Motion for Special Protective Measures for Witness A," filed on 21 January 2002; and the Defence Supplementary Book of Authorities in Support of the Defence Response to the Motion, filed 5 March 2002 (collectively hereinafter, the "Nsengiyumva Response"); CONSIDERING the Reponse de la Defense de Aloys Ntbakuze a la Requete du Procureur Intitulee "Prosecutor Motion for Special Protection Measures for Witnesses ZA, ZF, et ZZ," filed on 6 March 2002 (hereinafter, the "Ntabakuze Response"); CONSIDERING the Memoire en Repliquc, filed by the Defence for Bagosora on 19 March 2002 (hereinafter the "Bagosora Response"'); CONSIDERING the Brief in Reply to the Prosecution Motion for Special Protective Measures for Witnesses ZA, ZF, and ZZ, filed by the Defence for Kabiligi on 19 March 2002 (hereinafter, the "'Kabiligi Response"); RECALLING the Chamber's Decision on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, dated 29 November 2002 (hereinafter the "Decision of 29 November 2001); and the Chamber's Decision and Scheduling Order On the Prosecution Motion For Harmonisation and Modification of Protective Measures For Witnesses, dated 5 December 2001, wherein the Chamber ordered the Prosecutor to disclose unredacted statements of all her protected witnesses no later than thirty-five days in advance of any given witness's date of testimony (hereinafter the "Decision of 5 December 2001"). NOW DECIDES the matter pursuant to Rule 73 (A) on the basis of the written briefs of the parties.

354 • Defense in International Criminal Proceedings

A. SUBMISSIONS OF THE PROSECUTOR 1. The Prosecutor filed the instant Motion requesting that the following eleven special protective measures be applied with respect to her protected witnesses known by the pseudonyms ZA, ZF and ZZ. The Motion requests the following eleven orders: (a) of non-disclosure of the affidavits of Investigators Kadri, Foy, and Sanogo, which describe the security circumstances of the witnesses and to which are attached the respective unredacted versions of the witnesses' statements: (b) not requiring the Prosecutor to produce the redacted versions of the witnesses' statements in a form Other than how they have already been disclosed: (c) permitting the Prosecutor to disclose the unredacted versions of the statements of the witnesses fifteen days before they are to give testimony in this case: (d) permitting the Prosecutor to withhold the disclosure of the identity of the witnesses until fifteen days before testimony: (e) enjoining the disclosure of the witnesses' current whereabouts and their particulars forever: (f) closure to the public of all proceedings where the protective measures for the witnesses are to be discussed: (g) closure to the public of all court proceedings wherein the witnesses give testimony that is likely to reveal either their own identities or that of their relatives: (h) closure to the public of all proceedings where the testimony of the subject witnesses may reveal information that may compromise the ongoing investigations of the Prosecutor: (i) concealment from the public of all records containing the identity of the witnesses: U) prohibiting the recording of the images of the witnesses during the proceedings: and (k) an oral hearing of the Motion. 2. The Motion is founded upon the legal authority of Rules 66(C), 69 (A) and 75. The Prosecutor contends that extra measures of protection, particularly, the request for extended period of anonymity, are necessary to secure the safety of the witnesses and integrity of her ongoing investigations. 3. As the factual basis for the relief she seeks in the Motion, the Prosecutor recites the following facts. First the Prosecutor expostulates that the Chamber's Decision of 5 December 2001 necessitated the additional protective measures with respect to the above mentioned witnesses because it replaced the disclosure time periods prescribed in the Rules and in the protective measure orders which were harmonised and supplanted by the Decision. Second, claims the Prosecutor it was necessary to submit the statements of Witnesses ZA, ZF, and ZZ to an extraordinarily high degree of redaction to ensure their security and safety and to preserve the soundness of her ongoing investigations in this case and in other matters. The Prosecutor concedes that as a result of the necessarily high degree of redaction it is not surprising that the Defence finds the statements of these witnesses incomprehensible. 4. The Prosecutor indicates that in the current security circumstances, where the witnesses are afforded a limited measure of protection by the Office of the Prosecutor, primarily in the form of anonymity, the disclosure of the witnesses' identities or of their participation in the investigations conducted by the Prosecutor, will expose them to "serious danger and intimidation, including the strong possibility that they or members of their families may be killed." Without an order guaranteeing their extended anonymity, maintains the Prosecutor, the witnesses are "unlikely" to testify. Moreover, asserts the Prosecutor, the witnesses are entitled to the extended measure of anonymity because they qualify for such protection pursuant to the five-pronged test pronounced by the International Criminal Tribunal for the Former Yugoslavia in the matter of Prosecutor v. Tadic, IT-94-1, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses (10 August 1995).

ICTR • 355 5. Applying the Tadic factors, first the Prosecutor contends that the witnesses concerned suffer from real and justified fear that they or their families will be subject to retribution if their identity is revealed. Second, the Prosecutor asserts that the testimony of the witnesses here at issue bears sufficient indicia of relevance and importance to the Prosecutor's case so as to render it unfair to compel the Prosecutor to proceed without the benefit of their testimony. In this vein, the Prosecutor posits that the witnesses will bring eye witness testimony about the activities of the Accused that are directly relevant to the charges in the Indictments. More important, the Prosecutor submits that she may not be able to adduce sufficient evidence in support of one or more counts of the Indictments if she must proceed without the "crucial" evidence that Witnesses ZA, ZF and ZZ possess. Third, the Prosecutor avers that she is not aware of any prima facie evidence impugning the trustworthiness of the subject witnesses. Fourth, the inherent limitations of the protection afforded by the Witness and Victims Service Section of the Tribunal militates in favour of granting the relief she seeks. Fifth, and finally, the Prosecutor claims that the relief she seeks, i.e. the extended period where she would be allowed to withhold the disclosure of the identity to the Defence, is "strictly necessary," "minimally intrusive" and constitutes a "legitimate balancing" of the rights of witnesses and the rights of the Accused in the interest ofjustice. Since no other means exists to ensure the safety of the witnesses and to protect the integrity of her investigations, the Prosecutor claims that the Accused will suffer no undue or avoidable prejudice to their rights to a fair trial. 6. To provide further precedential support for the relief she seeks the Prosecutor relies on and provides for the Chamber a copy of the decision of Chamber I of this Tribunal in the matter of The Proseutor v. Nahimana, Ngeze and Barayagwiza, ICTR-99-52-1, Decision on the Prosecutor's Application to Add Witness X to Its List of Witnesses and for Protective Measures (14 September 2001), in which the same relief was granted to the Prosecutor as is now sought in the instant Motion.

7. The Prosecutor also prays that the Chamber review in camera the supporting affidavits of Investigators Kadri, Foy and Sanogo and that they not be disclosed to the Defence because they contain the details of the whereabouts and current security situations of protected witness ZA, ZF and ZZ. B. SUBMISSIONS OF THE DEFENCE FOR NSENGNUMVA 8. In the Nsengiyumva Response, Counsel for the Accused first remonstrate that the Prosecutor has failed to disclose to the Defence the full statement for one of the subject witnesses, namely, ZA, as required by the provisions of Rule 66(A) (ii). For this reason, contends the Defence they are not disposed to prepare an adequate defence to the Motion. With respect to Witness ZF, the Defence claims that the statement has been so overly redacted that its disclosure to the Defence constitutes a violation of the Tribunal's process as well as an abrogation of Article 20(4) (b) of the Statute and Rule 66(A) (ii). Finally, the Defence asserts that statement of Witness ZZ has yet to be disclosed to Counsel for the Accused Nsengiyumva despite the expiry of the time limit prescribed for such disclosure in Rule 66 (A) (ii). For these reasons, the Defence maintains, that the Prosecutor cannot be said to have fulfilled her disclosure obligations. Consequently, submits the Defence, the Chamber in upholding its mandate to ensure a fair trial, should disregard the statements of the subject witnesses and deem them inadmissible. 9. The Defence further claims, as a matter of overall policy, that the Chamber should not countenance the disclosure by the Prosecutor of statements in a form that is unin-

356 • Defense in International Criminal Proceedings

telligible, incomplete, and useless to the Defence in the preparation of their cases. To permit such disclosures with an "exceptionally high degree of redaction" which are not justified, would substantially prejudice the integrity of the proceedings in this Tribunal. 10. Similarly, the Defence contends that the Prosecutor has advanced no cogent reason why she should be permitted to withhold from the Defence the affidavits of the Investigators. Kadri, Foy and Sanogo, which describe the current security and safety circumstances of the subject witnesses, particularly when such affidavits provide the very factual basis for the relief she seeks in the Motion. Failure to disclose the supporting affidavits flouts principles of natural justice as subsumed in Article 20(4) (a) of the Statute of the Tribunal, which requires that an accused be informed of the nature and cause of charges against him. Adherence to naturaljustice does not countenance that a court may receive evidence or hear representations of one party on an ex parte basis. Accordingly, any information that is to be used as the basis for this Chamber's adjudication on the issues raised in the Motion must necessarily be disclosed to the Defence to afford it a fair opportunity to comment upon it or to present contradicting information. 11. In further support of its contentions that the Prosecutor should not be allowed to withhold from the Defence the affidavits submitted in support of the Motion, the Defence invokes Rule 69(C), which obliges the Prosecutor to demonstrate to the Chamber and to the Defence the "exceptional circumstances" warranting the protective measures she seeks. In this vein, the Defence demurs that the Prosecutor has failed to tender any factual evidence in support of her bare conclusion that the subject witnesses may be killed if their co-operation in her investigations were to be revealed. The Defence dismisses the Prosecutor's conclusion as lacking basis in fact, alarmist, and sensational. C. SUBMISSION OF THE DEFENCE FOR ABAKUZE 12. In the Ntabakuze Response, the Defence contends that it is left bereft of means to respond to the Motion without knowing the "circumstances" of the subject witnesses as they are explained in the supporting affidavits. In this connection, the Defence argues that the Prosecutor's claims about the fears and present precarious security circumstances of the witnesses are nothing more than pure conjecture, supposition and hypothesis. In addition, the Defence contends that the legal arguments the Prosecutor has invoked in support of her motion similarly lack specificity and are inapposite. For example, the Defence remonstrates that the two decisions in the matter Nahimana, et aI., are inapposite, because in that case the Chamber first conferred with the section for the protection of victims and witnesses to determine what measures of special protection were "strictly necessary," to ensure the safety of the witnesses concerned. In essence, claims the Defence, the conclusion and the relief sought by the Prosecutor would render the proceedings inequitable. In like manner, the Defence contends that the Prosecutor's reliance on Rule 66(C) is misplaced because once the trial date is fixed it is presumed that all investigations in the matter of Ntabakuze terminated. 13. Invoking Articles 20(4) (a) and (b) of the Statute, the Defence further warns that, if the Chamber were to grant the measures the Prosecutor seeks it would deprive the Defence of the tools necessary to exercise its fundamental right to have the means and time necessary to mount an effective cross-examination of the Witnesses ZA, ZF, and ZZ. This would transform the proceedings into a "trial by ambush," because the Defence would not be able, in the short time allotted, to conduct the necessary investigations to uncover information that may be used to impeach the credibility of witnesses, particu-

ICTR • 357 larly where the Prosecutor purports they are indispensable to her case. In this connection, the Defence protests what it perceives as the complete lack of logic in the arbitrary request of the Prosecutor that she be permitted to withhold the disclosure of unredacted witness statements and identifying information until fifteen days before testimony. 14. Finally, at several passages the Defence level arguments revisiting and challenging the Chamber's previous decision which permitted the Prosecutor to withhold the unredacted statements of her witnesses from a date measured not from sixty days before the commencement of trial as required by Rule 69 (C), but from the anticipated date that the witness is to appear to testify. The Defence continues to maintain that it must have disclosure of unredacted witness statements before trial, as required by law, otherwise, claims the Defence, the trial proceedings will be inequitable. D. SUBMISSION OF THE DEFENCE FOR BAGOSORA 15. In the Bagosora Response. Counsel for the Accused indicates that his arguments in opposition to the instant Motion are the same as those he levelled against the Prosecutor's Motion with respect to Witness A. Reiterating several of the same arguments of the Defence for Nsengiyumva and Ntabakuze. the Defence for Bagosora adds the following principal arguments. 16. First the Defence remonstrates that none of the factual allegations the Prosecutor makes in support of the Motion are verifiable because the Prosecutor has not disclosed to the Defence the materials upon which the allegations are founded. Moreover, the Defence notes that there is a complete failure by the Prosecutor to demonstrate the "exceptional circumstances," as required under Rule 69(C) which could justify the extraordinary measures of protection she seeks. In this vein, the Defence notes that the Prosecutor neglects to substantiate the allegation of the existence of the state of armed conflict in Rwanda or of how such a situation justifies the fears of the witnesses or how the measures she seeks will address these concerns. 17. Finally, the Defence for (Bagosora adds that the Chamber by virtue of its decisions of 29 November and 5 December 2001 has already restricted the rights of the Accused wherein the Prosecutor is permitted to disclose the complete statements of her protected witnesses thirty-five days before the testimony of a given witness. The Defences posits that no legitimate interest would be served by permitting the Prosecutor to further withhold disclosure of the identity of Witnesses ZA, ZF, and ZZ until fifteen days before testimony. Notable in this regard is the Prosecutor's failure to indicate how the fifteen-day disclosure measure would foster greater safety of the witnesses. Such an order, expostulates the Defence, would accomplish nothing other than depriving the Defence of the time necessary to prepare its cross-examination of the subject witnesses. E. SUBMISSION OF THE DEFENCE FOR KABILIGI 18. The Defence for Kabiligijoins in several of the arguments advanced by his colleagues representing the other three co-Accused. In addition the Defence advances the following arguments and observations. 19. Complaining about the Chambers Decisions of29 November and 5 December 2001, the Defence decries what they perceive as an attempt by the Prosecutor to carve out yet another exception to the strict application of the requirements of Rule 69, which obligates her to disclose to the Defence unredacted statements for her protected witnesses

358 • Defense in International Criminal Proceedings

before the commencement of trial. By interposing the instant Motion, the Defence contends, the Prosecutor seeks nothing less than an absolute change in the rules regulating trial in favour of a trial by dissimulation, a game of "hide and go seek." 20. Addressing the Prosecutor's contention that it is necessary to conceal the identity of the witnesses from the public pursuant to Rule 66(C), the Defence expresses some surprise that five years after the arrest of the Accused Kabiligi the Prosecutor has not yet terminated her investigation on the matter. This, states the Defence, throws into question the basis for the Indictment and causes some concern about the conditions under which Kabiligi will be judged since these continuing investigations may uncover las t-minute-wi tnesses. 21. The Defence also adds that the Prosecutor never served it with copies of the redacted statements of ZA and ZF and that they have only recently, i.e., on 26 February 2002, received the redacted statement of ZZ.

DELIBERATIONS 22. As a threshold matter. the Chamber notes that some of the "special" protective measures sought on behalf of Witnesses ZA, ZF, and ZZ are not, in fact, extraordinary in that they are part of the ordinary compliment of protection measures accorded to all vulnerable witnesses for whom there has been a showing of "exceptional circumstances" pursuant to Rule 69 (A). The Tribunal has on previous occasions accorded to all of the Prosecutor's protected witnesses the following protective measures either by explicit order or by implication from an order: (f) closure to the public of all hearings where the protective measures are to be considered; (g) closure to the public of all trial proceedings where the protected witnesses are to give testimony that is susceptible to revealing their identities or that of their families; (i) non-disclosure to the public of all Tribunal records disclosing any identifying data; and U) injunction preventing the recording of the witnesses' image on video tape. These measures are already in place with respect to all protected, witnesses of the Prosecutor by reason of previous orders of this Chamber. See Decision of 29 November 2001. 23. Accordingly there remain only seven protective measures sought by the Prosecutor which merit consideration as "special" measures of protection in regard to protected Witnesses ZA, ZF and ZZ namely: (a) the request that the Defence never be made privy to the confidential contents of the affidavits of Investigators Kadri, Foy and Sanogo submitted in support of the Motion, which recites, among other information, the personal particulars of the witnesses current whereabouts and security situation and the exceptional circumstances warranting extended anonymity; (b) that the Prosecutor be not required to disclose another version of the redacted statements of the subject witnesses and (c) the prayer that the Prosecutor be permitted to withhold the unredacted versions of the witnesses' statements until fifteen days in advance of the scheduled date that the subject witnesses are to appear to give testimony: and (d) permitting the Prosecutor to withhold until fifteen days before testimony the identity of the witnesses; (e) forever enjoining the revelation to the public and to the Defence the current whereabouts and personal particulars about the witnesses; (h) closure to the public of all proceedings wherein the testimony of the witnesses may prejudice ongoing investigations; and (k) an oral hearing of the Motion. The Chamber will address, in turn, the propriety of each of these additional measures of protection.

ICTR • 359 24. Rule 75(A) empowers the Chamber to limit the time when disclosure of witness statements and identity is to be made to the opposing party. 25. With respect to item (a) in the Prosecutor's list of requested relief, although the Defence maintain that dictates of natural justice and Article 20(4) (a) of the Tribunal's Statute mandate that the Prosecutor must disclose the contents of the affidavits of the investigators submitted in support of the Motion, adherence to the object and purpose of provisions of Rule 66(C) calls for the contrary result. Rule 66(C) permits the Prosecutor to withhold from disclosure to the Defence and provide to the Chamber on an ex parte basis information she believes "may prejudice further or ongoing investigations...." Although the affidavits of the investigators do not. strictly speaking, fall within the category of documents described in Rule 66(A) or 66(B), the Chamber believes that the facts contained within them qualify for protection under Rule 66(C). Accordingly, the Chamber is satisfied, for the time being, that the contents of the affidavits of Investigators Kadri, Foy and Sanogo, insofar as they disclose information that may compromise both the safety of the witnesses concerned and the integrity of the Prosecutor's ongoing investigations, adequately qualify for the application of the relief envisioned in Rule 66 (C). In order to be entitled to the relief provided under Rule 66(C) the Prosecutor must specifically demonstrate to the Chamber how the matters she seeks to withhold from disclosure to the Defence will compromise her ongoing investigations. 26. In the instant case the Prosecutor has made only a generalised showing that the information contained in the statements of Witnesses ZA, ZF AND ZZ, may imperil her ongoing investigations. However, to the extent that the Prosecutor has not specifically demonstrated how her proposed redactions to the witnesses statements will ensure the integrity of her investigations, the Chamber invites the Prosecutor to submit the information contained in the redacted, portions of the three witness statements to the Chamber for consideration in camera to determine the propriety pursuant to Rule 66(C) of withholding the redacted matters from the Defence. In this connection, the Chamber also notes with some concern that it appears that the Prosecutor may have unilaterally redacted from the statements information she believes may endanger her ongoing investigations. Such redactions should only have been made with the prior leave of the Chamber pursuant to the mandates of Rule 66(C). 27. For similar reasons, the Chamber finds that it is appropriate to grant the related relief requested in item (h) above, closing to the public proceedings where the witnesses testify about information that is likely to compromise the Prosecutor's ongoing investigations. Parenthetically, the Chamber notes that Rule 79 (A) (iii) preserves for the parties the right to request such relief at the appropriate time during the course of the proceedings. 28. As regards item (b) in the list above, the Prosecutor submits and the sworn Affidavits of Investigators Kadri, Sanogo and Foy aver that no lesser degree of redaction would ensure the continued safety of the witnesses and the integrity of ongoing investigations. As conceded by the Prosecutor, the Chamber finds that the redacted versions of the statements of these witnesses in the form already disclosed to the Defence reveals large portions of missing text. Although the exigencies of the witnesses' current situation may require some degree of redaction to the witnesses' statements to ensure their anonymity and continued safety as well as to protect the integrity of ongoing investigations in which these witnesses are co-operating, the Prosecutor has not satisfied the Chamber that such

360 • Defense in International Criminal Proceedings a high degree of redaction is strictly necessary to achieve those objectives. Accordingly, pursuant to Rules 75 and 66(C), the Prosecutor shall submit to the Chamber the unredacted versions of the witness statements indicating those portions she believes should be redacted in the interest of protecting the witnesses' safety and preserving the integrity of her ongoing investigations. Pending the receipt of the Prosecutor's proposed redactions together with an explanation of why such redactions are necessary, the Chamber is constrained to hold in abeyance the Defence request to receive a more integral copy of the witnesses statements in advance of the thirty-five days prescribed by this Chamber in the Decision of 5 December 2001. 29. With respect to Witness ZZ, the Chamber orders the immediate disclosure to the Defence for Nsengiyumva of this witness statement in its currently redacted form. Moreover, the Prosecutor is to forthwith, if he has not already done so, disclose the redacted copies of the statements of ZA and ZF in their current forms to the Defence for Kabiligi. To the extent the Chamber finds that there is no reason excusing the failure of the Prosecutor to make this disclosure on a timely basis as required by the provisions of Rule 66(A) (ii), the Chamber censures the Prosecutor for that lapse. 30. Moreover, in connection with the requested relief in item (e) above, the Chamber is satisfied, on the basis of the confidential contents of the affidavit of Investigator Sanogo, the current security circumstances of Witnesses ZF, including threats on his life and that of his family members, which are stated in the Investigator's affidavit, eminently quality him for the additional protection in the form of forbidding disclosure to the Defence and to the public of his current whereabouts and personal particulars. The Defence has advanced no satisfactory claim that the absence of such information will hinder them in preparing effective cross-examination of the subject witness. Witness ZF's fear of reprisal for his anticipated testimony in this case as well as for his co-operation with the Prosecutor in respect to ongoing investigations strictly require that his current whereabouts remain forever inviolate as against the Defence and the public. However, such extraordinary measures of protection are not justified with respect to Witnesses ZA and ZZ. Other than making bare claims that the witness's fear for his safety, the sworn Affidavits of Investigators Kadri and Foy, respectively, set forth no objective facts substantiating the seemingly subjective fears of witnesses ZA and ZZ. 31. Under Articles 19, 20 and 21 of the Statute, the Tribunal has a mandate to safeguard the rights of the Accused to a fair and equitable trial, including the right to be provided adequate time and facilities to prepare effective cross examination of the witnesses against them. In its Decision of 5 December 2001, the Chamber determined that thirty-five days in advance of testimony was the measure of anonymity that was strictly necessary to provide adequate protection to the Prosecutor's protected witnesses as a general matter. In the Motion, the Prosecutor adduces additional and more specific information about the current security and safety situations with respect to Witnesses ZA, ZF and ZZ. The additional facts do not, per se.justify extending the period wherein the witnesses are to remain anonymous to the Defence as requested in items (c) and (d) above. Notably 10 this vein, the Prosecutor does not submit a single argument demonstrating how or why an extension of the period of anonymity from thirty-five days to fifteen days in advance of testimony will provide some additional and strictly necessary measure of safety or security to the subject witnesses. See Prosecutor v. Dusko Todic, IT-94-1, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses (10 August 1995). Accordingly, the Chamber shall not vary its existing

ICTR • 361 order requiring the Prosecutor to disclose the unredacted version of statements of the subject witnesses no later than thirty-five days before the witness is to testify, See Decision of 5 December 2001. 32. Finally, the Chamber finds that the written submissions of the parties with respect to the Motion provide a sufficient basis upon which it may be decided. In accordance with Rule 73 (A), the Prosecutor's request for an oral hearing of the Motion is denied. 33. Accordingly, for the foregoing reasons the Tribunal GRANTS the Motion to the following limited extent: a.

Pursuant to the Decision of 5 December 2001 and Rule 66(C) and Rule 75(A). within five (5) days of receiving notice of this Decision, the Prosecutor shall file with the Chamber the "unredacted" versions of the statements of Witnesses ZA, ZF and ZZ, indicating where she proposes to redact those portions of the transcripts or statements that are susceptible of revealing the current whereabouts of Witness ZF only, or of compromising the ongoing investigations in which Witnesses ZA, ZF and ZZ are providing assistance to the Prosecutor, and indicating for each of her proposed redactions how the information may compromise her further or ongoing investigations.

b.

Pursuant to Rule 66(C) The Prosecutor shall have the right to withhold from disclosure the Affidavit of Investigators Kadri, Foy and Sanogo that were tendered in support of the instant Motion until further orders of the Chamber;

DENIES the Motion in all other respects; and further ORDERS the Prosecutor to Disclose to the Defence the redacted version of the statements of Witness ZZ to the Defence for Nsengiyumva and the redacted statements of witnesses ZA and ZF to the Defence for Kabiligi no later than five (5) days of the receiving notice of this Decision.

The Prosecutor \t. Aloys Simba-Decision on the Admissibility of Evidence of Witness KDD, Case No.ICTR-01-76-T, November 1,2004

INTRODUCTION 1. During the proceedings on 28 October 2004, the Defence raised a general challenge to the Prosecution's use of a will-say statement in connection with the evidence of Witness KDD as well as several specific objections to his testimony based on that statement. 2. Witness KDD was interviewed by ICTR investigators on 30 November 2001 and 18 November 2003. The Prosecution disclosed the statements in redacted form on 10 May 2002. Unredacted statements were disclosed on 6 April 2004. On 29 August 2004, the Prosecution filed a will-say statement in English in connection with the anticipated testimonies of Witnesses KDD and KSU. During the status conference on 2 September 2004, Defence objected that the will-say statements had not been provided in French. The Prosecution provided the Defence with an unofficial French translation of both will-say statements on 2 September 2004. It has later been discovered that the Prosecution failed to translate the last point in Witness KDD's will-say statement.

362 • Defense in International Criminal Proceedings 3. On 7 September 2004, the Defence made an oral application to have the will-say statements of KSU and KDD withdrawn in their entirety. The Chamber noted that the Defence's concerns would be dealt with at an opportune moment. On 8 September 2004, while discussing the anticipated testimony of Witness KSU, the Chamber noted that the Defence would be raising issues in relation to that witness's will-say statement. The Chamber emphasised that there was nothing novel about the use of will-say statements in the Tribunal's practice. It explained to the parties that the usual procedure was for the Prosecution to begin its examination and asked the Prosecution to wait with the disputed matters to the end of the examination. The Chamber would then decide the matter after hearing both parties. 4. The direct examination of Witness KSU proceeded on 10 September 2004 according to the procedure outlined by the Chamber on 8 September. The Prosecution reserved the matters mentioned in the will say-statement to the end of its examination and ultimately declined to pursue them, thereby rendering any objections relating to Witness KSU moot. 5. On 28 October 2004, the Prosecution conducted its examination-in-chief of Witness KDD, the second of the two witnesses with will-say statements. At the commencement of the proceedings, the Defence stated that it was not prepared to proceed with the witness because it had made a motion to exclude Witness KDD's will-say statement, which the Chamber had not yet decided. The Chamber again emphasised that the practice related to will-say statements was for the Defence to raise objections when the issue arises during the examination-in-chief. The Prosecution was requested to lead evidence on the will-say issues to the extent possible at the end of its examination but stated that this could not be done because the witness's testimony was indivisible. The Chamber then explained to the parties that it would consider the disputed issues as they arose during the testimony. During the witness's examination, the Defence made several objections to specific evidence being led. In relation to objections concerning two alleged incidents on 11 April and on 26 or 29 April 1994, the Chamber postponed any further examination until it had fully considered the matter. The Prosecution concluded its direct examination subject to the Chamber's present ruling during the trial session of 28 October 2004. SUBMISSIONS 6. The Defence made a general objection to the use of will-say statements. In addition, it specifically objected to evidence being led concerning two events that allegedly took place on 11 and on 26 or 29 April 1994. It was argued that these events are not alleged in the Indictment and that a will-say statement is not a proper method for giving notice.

7. The Prosecution asserted that the use of will-say statements is an accepted practice in the Tribunal and that the Defence had notice that the evidence would be led. It conceded that the two events in question were not specifically mentioned in the Indictment. The Prosecution stated that it was not seeking to convict the Accused on the basis of the alleged events on 11 April 1994, but to use them to establish preparation or mens rea. According to the Prosecution, the Accused had notice of the alleged event on 26 or 29 April because it was mentioned in Witness KDD's statement to ICTR investigators as well as in the will-say statement. The Prosecution argued that jurisprudence requires that the material facts be pleaded, not necessarily all the specific evidence which will be presented in support of them.

ICTR • 363 DELIBERATIONS 8. At the outset, the Chamber observes that according to the record there was no pending motion, oral or written, concerning the will-say statement of Witness KDD. The Chamber clearly explained the will-say practice to the parties during the proceedings on 7 September 2004 and noted that objections would be considered only at the time the Prosecution sought to lead evidence on a disputed matter. This practice was followed during the testimony of Witness KSU on 10 September 2004. The Defence objection to Witness KDD's will-say statement only became timely when the Prosecution sought to lead such evidence on 28 October 2004. 9. A will-say statement is a communication from one party to the other party and the Chamber anticipating that a witness will testify about matters that were not mentioned in previously disclosed witness statements. They are generally communicated by Counsel immediately after learning of them during the preparation of the witness for examination. The Prosecution's use of will-say statements is different from the normal method of giving notice through a written and signed statement disclosed in conformity with Rule 66 of the Rules of Procedure and Evidence ("the Rules"). The practice is well established and has been sanctioned by Tribunaljurisprudence. It has evolved as a response to the reality previously described by this Chamber in Bagosora et al.: •

The Chamber accepts and understands that witness statements from witnesses who saw and experienced events over many months which may be of interest to this Tribunal, may not be complete. Some witnesses only answered questions put to them by investigators whose focus may have been on persons other than the accused rather than volunteering all the information of which they are aware.

10. Will-say statements compliment the Prosecution's duties under Rule 67(D) which require the parties to promptly notify the Chamber and each other of additional evidence, information or materials that should have been previously disclosed under the Rules. Such statements reduce the element of surprise to the Defence. The Chamber therefore does not accept the Defence's general complaint about the use of will-say statements. 11. Anticipated evidence in the will-say statement which only supplements or elaborates on information that has previously been disclosed does not generally raise any problems. However, new information in will-say statements may raise issues in relation to an accused's right to notice reflected in Article 20 of the Statute and Rule 47 of the Rules. In Kupreskic, the Appeals Chamber articulated clear principles on what constitutes fair notice within the meaning of the Statute and the Rules as well as the possible remedy in situations where there is a lack of notice: •

88. An indictment shall, pursuant to Article 18 (4) of the Statute, contain "a concise statement of the facts and the crime or crimes with which the accused is charged." Similarly, Rule 47 (C) of the Rules provides that an indictment, apart from the name and particulars of the suspect, shall set forth "a concise statement of the facts of the case." The Prosecution's obligation to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 21 (2) and (4) (a) and (b) of the Statute. These provisions state that, in the determination of any charges against him, an accused is entitled to a fair hearing and, more particularly, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence. In the jurisprudence of the

364 • Defense in International Criminal Proceedings

Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven. Hence, the question whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence. •

89. The Appeals Chamber must stress initially that the materiality of a particular fact cannot be decided in the abstract. It is dependent on the nature of the Prosecution case. A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused. For example, in a case where the Prosecution alleges that an accused personally committed the criminal acts, the material facts, such as the identity of the victim, the time and place of the events and the means by which the acts were committed, have to be pleaded in detail. Obviously, there may be instances where the sheer scale of the alleged crimes "makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes."

•

90. Such would be the case where the Prosecution alleges that an accused participated, as a member of an execution squad, in the killing of hundreds of men. The nature of such a case would not demand that each and every victim be identified in the indictment. Similarly, an accused may be charged with having participated as a member of a military force in an extensive number of attacks on civilians that took place over a prolonged period of time and resulted in large numbers of killings and forced removals. In such a case the Prosecution need not specify every single victim that has been killed or expelled in order to meet its obligation of specifying the material facts of the case in the indictment. Nevertheless, since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.

•

92. It is of course possible that an indictment may not plead the material facts with the requisite degree of specificity because the necessary information is not in the Prosecution's possession. However, in such a situation, doubt must arise as to whether it is fair to the accused for the trial to proceed. In this connection, the Appeals Chamber emphasises that the Prosecution is expected to know its case before it goes to trial. It is not acceptable for the Prosecution to omit the material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds. There are, of course, instances in criminal trials where the evidence turns out differently than expected. Such a situation may require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded as not being within the scope of the indictment.

•

114. The Appeals Chamber notes that, generally, an indictment, as the primary accusatory instrument, must plead with sufficient detail the essential aspect of the Prosecution case. If it fails to do so, it suffers from a material defect. A defective

ICTR • 365 indictment, in and of itself, may, in certain circumstances cause the Appeals Chamber to reverse a conviction. The Appeals Chamber, however, does not exclude the possibility that, in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category. 12. These principles reflect the importance of pleading all material facts in the indictment with as much specificity as reasonably possible. The Appeals Chamber, however, also acknowledged the reality that evidence may sometimes turn out differently than originally anticipated. When faced with such a situation, the Appeals Chamber has instructed the Trial Chambers to take one or more of the steps envisioned in Kupreskic, namely adjournment, exclusion of the evidence as outside the scope of the indictment, or ordering the Prosecution to amend the indictment. 13. In certain circumstances, a defective indictment and consequently an accused's lack of notice may be cured "with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her." The Appeals Chamber in Niyitegeka has outlined several considerations in this respect: •

Whether the Prosecution cured a defect in the indictment depends, or course, on the nature of the information that the Prosecution provides to the Defence and on whether the information compensates for the indictment's failure to give notice of the charges asserted against the accused. Kupreskic considered that adequate notice of material facts might be communicated to the Defence in the Prosecution's pretrial brief, during disclosure of evidence, or through proceedings at trial. The time of such communications, the importance of the information to the ability of the accused to prepare his defence, and the impact of the newly-disclosed material facts on the Prosecution's case are relevant in determining whether subsequent communications make up for the defect in the indictment. As has been previously noted, "mere service of witness statements by the Prosecution pursuant to the disclosure requirements" of the Rules does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.

14. Moreover, the Appeals Chamber has also recently explained that the Trial Chamber's authority pursuant to Rule 89(C) to admit any relevant evidence which it deems to have probative value nonetheless grants it the discretion to admit evidence even where it is not possible to convict an accused on an allegation due to lack of notice: •

However, whilst it may be the case that the allegation of witness RV in relation to Nyiramasuhuko's presence at the installation of Ndayambaje in Muganza commune is not specifically pleaded in the indictment, this alone does not render the evidence inadmissible.

•

Indeed, pursuant to Rule 89 (C) of the Rules, the Trial Chamber may admit any relevant evidence which it deems to have probative value. It should be recalled that admissibility of evidence should not be confused with the assessment of weight to be accorded to that evidence. Consequently, although on the basis of the present indictment it is not possible to convict Nyiramasuhuko in respect of her presence at the installation of Ndayarnbaje, evidence of this meeting can be admitted to the extent that it may be relevant to the proof of any allegation pleaded in the Indictment.

366 • Defense in International Criminal Proceedings

•

The Appeals Chamber considers therefore that the Trial Chamber acted within its discretion in dismissing the Appellants' request to declare the evidence of witness RV inadmissible.

15. Exclusion of evidence is only one of several possible remedies and not the exclusive one, as suggested by the Defence. The selection of an appropriate remedy is well within the Trial Chamber's discretion mindful of these principles and taking into consideration the particular circumstances of the case. 16. Based on these general principles, the Chamber has considered whether the two disputed events involving 11 April and 26 or 29 April 1994 implicate the Accused's right to notice. There is no mention of the alleged events of 11 April 1994 in the Indictment, the Pre-Trial brief, or the witness's statements to investigators. Neither is there any reference to the Accused's involvement with roadblocks in the Indictment, and only a general reference to the Accused's involvement with them in the statement of 18 November 2003. The same is true with respect to the events allegedly occurring on 26 or 29 April 1994. There is, however, a reference to a meeting occurring on 29 April 1994 in the witness's 30 November 2001 statement. The Prosecution to some degree concurs that the events are not specifically pleaded in the Indictment and concedes that the alleged events on 11 April 1994 may not in and of itself be the basis for a conviction. 17. If new material emerges, one appropriate remedy is to allow additional time to prepare. The Chamber observes that the will-say statement for Witness KDD was provided in English to the Defence on 29 August 2004. Co-counsel has English as her mother tongue, and Lead Counsel has good command of English. Following a request of the Defence to have the document translated into French, the Prosecution disclosed an unofficial (albeit materially incomplete) translation on 2 September 2004. The Defence team did not raise any objections to the quality of the translation and its lack of familiarity with the un-translated portion of the document until 28 October 2004. Given that more than two months have elapsed since the initial disclosure, a period similar to the period of notice provided for in Rule 66, the Chamber finds that the Defence had adequate time to prepare for the allegations. An official French translation was made available on the morning of 1 November 2004. 18. At this stage of the case, the Chamber is not in a position to fully appreciate the evidentiary value of all aspects of Witness KDD's anticipated testimony. Moreover, the potential inconsistencies between his anticipated testimony and prior statements may bear on his credibility. Thus, the Chamber will hear Witness KDD and reserves its decision on the weight to accord to the evidence as well as whether to ultimately consider the evidence at all in its final deliberations. This approach is consistent with the Chamber's previous decision on the Defence's motion to exclude the testimony of Witness KSM. 19. The Defence has objected to the admission of the disputed areas of testimony as with other evidence based on lack of notice in the Indictment. The Appeals Chamber in Niyitegeka has confirmed that this preserves the issue for later consideration. The burden of proof will fall on the Prosecution to demonstrate the Accused's ability to prepare his defence was not materially impaired. The parties should address these issues in their closing briefs. This practice has been followed in many other cases. FOR THE ABOVE REASONS, THE CHAMBER DENIES the Defence's motion; DIRECTS the parties to make further submissions in their closing briefs.

ICTR • 367

The Prosecutor \t. Aloys Simba-Decision on Defense Motion to Obtain Judicial Records Pursuant to Rule 68, Case No. ICTR-01-76-T, October 4, 2004

BEING SEIZED OF the "Defence Motion to Obtain All the Prior Statements and/or Judicial Records which Witnesses KSS and KEH Gave to Authorities in Rwanda," filed on 24 September 2004, and the oral request for the disclosure of the judicial records of E. R., made on 18 August 2004; CONSIDERING the Prosecution's response, filed on 24 September 2004, and the Defence's reply, filed on 29 September 2004; HEREBY DECIDES the motion and oral request. INTRODUCTION

12. The Defence written motion raises the issue of the scope of the Prosecution's disclosure obligations pursuant to Rule 68 with respect to Rwandan judicial documents pertaining to Witnesses KEH and KSS. 13. Witness KEH testified before the Chamber on 31 August and 1 September 2004. During his testimony, he indicated that he had testified in judicial proceedings in Gikongoro, but added that these proceedings did not in anyway involve Aloys Simba or the events at the Murambi Technical school. Rather, the proceedings involved local people who had torched houses and killed livestock in his sector. The Defence made an oral request for the Prosecution to obtain any judicial documents pertaining to Witness KEH during the status conference on 1 September 2004. 14. Witness KSS testified before the Chamber on 14 September 2004. During his testimony, Witness KSS indicated that he had given statements about events to the police and Public Prosecutor in Rwanda other than those he discussed in his testimony. 15. On 13 and 14July 2004, the Prosecution disclosed to the Defence the French and English versions of the Rekeraho judgement as a prospective exhibit. On 18 August 2004, the Defence made an oral request pursuant to Rule 68 for the disclosure of the judicial dossier of Rekeraho. The Prosecution stated that it was under no obligation to produce the file because the dossier was not in its possession and it did not intend to call Rekeraho as a witness. The Prosecution has previously noted that the document would be introduced at trial by its investigator. In addition, the Prosecution has stated that it formed part of the materials that Alison Des Forges consulted in order to form her expert opinion. SUBMISSIONS 16. The Defence motion requests the Chamber to instruct the Prosecution, pursuant to Rule 68, to obtain Rwandan judicial documents related to proceedings involving Witnesses KEH and KSS. The Defence argues that the Prosecution has an obligation pursuant to Rule 68 to provide it with witnesses' prior statements concerning the same events about which they testify. 17. The Prosecution argues that it has no obligation under Rule 68 to provide the Defence with copies of Rwandan judicial documents pertaining to Witnesses KEH and KSS. In support of this position, it points to the Defence's concession that the requested

368 • Defense in International Criminal Proceedings

documents are not in the possession of the Prosecution, but rather the Rwandan authorities. The Prosecution also asserts that the Defence has not demonstrated that the requested material is exculpatory or even potentially exculpatory, noting that the witnesses in cross-examination stated that the domestic proceedings in which they were involved were not related to the Accused. Moreover, the Prosecution highlights the Defence's failure to demonstrate that it has diligently searched and failed to obtain the requested material before filing its motion. DELIBERATIONS 18. The Chamber is seized with a written motion to order the Prosecution to obtain the judicial records pertaining to Witnesses KEH and KSS. Moreover, the Defence has orally requested the Chamber to order the Prosecution to obtain the judicial dossier of R ... As this request raises similar issues as the motion, the Chamber considers it expedient to address also oral request in the present decision. 19. The Prosecution's obligation pursuant to Rule 68 is to disclose exculpatory evidence or evidence which may affect the credibility of Prosecution evidence, where such evidence is in its possession. It is not disputed that the requested documents are not within the Prosecution's possession. Thus, the motion must be dismissed. The Prosecution's disclosure obligations under the Statute and the Rules do not extend to pursuing every possible avenue of investigation into a witness's credibility on behalf of the Defence. 20. That being said, this Chamber has in the past ordered, pursuant to Rule 98, the Prosecution to use its good offices to request the Rwandanjudicial records of detained witnesses. The Chamber has previously recognized that these documents are important for the preparation of the Defence given their relevance to credibility. However, Witnesses KEH and KSS are neither detained nor alleged accomplices. The Chamber is reluctant to issue a similar order in this case where, from the testimony of these witnesses, the materials requested by the Defence do not appear to directly relate to the credibility of any allegations against the Accused. 21. In addition, at this stage it is not entirely clear whether or for what purposes the R ... judgement will be used at trial. Without a greater showing as to the relevance of this document and the need for challenging its credibility, the Chamber declines to order the Prosecution to request his judicial records, particularly where he will not be appearing as a witness. 22. As is the general practice in the Tribunal, the Defence must first make its own independent efforts to secure evidence it wishes to use at trial other than exculpatory material in the possession of the Prosecution. Once the Defence demonstrates its inability to obtain relevant material despite its good faith efforts, it may then seize the Chamber and request appropriate judicial assistance pursuant to Article 28 of the Statute. Absent such a showing, the Defence motion is premature. FOR THE ABOVE REASONS, THE CHAMBER DENIES the Defence motion and oral request.

ICTR • 369

The Prosecutor \t. Casimir Bizimungu etal.-Decision on Prosper Mugiraneza's Motion to Order aWitness to Be Returned for Further Cross-Examination or in the Alternative toStrike His Testimony Based Upon Late Disclosure of Rule 68 Material, Case No. ICTR-99-50-T, May 6, 2005

BEING SEIZED of "Prosper Mugiraneza's Motion to Order Witness GKJ Returned fro Further Cross-Examination or, to Strike Out His Testimony in Whole Based on the Failure of the Prosecutor to Timely Disclose Rule 68 Material" filed on 7 April 2005 (the "Motion"); CONSIDERING (i) "Confidential Annex to Prosper Mugiraneza's Motion to Order Witness GKJ Returned for Further Cross-Examination or, to Strike Out His Testimony in Whole Based on the Failure of the Prosecutor to Timely Disclose Rule 68 Material" filed together with the Motion on 7 April 2005; (ii) the "Brief from Casimir Bizimungu in Support of Prosper Mugiraneza's Motion to Order Witness GKJ Returned for Further Cross-Examination or, to Strike Out His Testimony in Whole Based on the Failure of the Prosecutor to Timely Disclose Rule 68 Material" filed on 12 April 2005 (the "Bizimungu Response"); (iii) the "Prosecutor's Response to Prosper Mugiraneza's Motion for the Recall of Witness GKJ or to Strike Out GKJ's Testimony Because of the Untimely Disclosure of Rule 68 Material, and Casimir Bizimungu's Brief in Support Thereof' filed on 12 April 2005 (the ("Response"); (iv) "Prosper Mugiraneza's Reply to the Prosecutor's Response to Prosper Mugiraneza's Motion to Order Witness GKJ Returned for Further Cross-Examination or, to Strike Out His Testimony in Whole Based on the Failure of the Prosecutor to Timely Disclose Rule 68 Material" filed on 13 April 2005 (the "Reply"); CONSIDERING the Rules of Procedure and Evidence (the "Rules"), particularly Rules 66 and 68 of the Rules; SUBMISSIONS 1. The Defence wants the Chamber to make an order for the recall of Witness GKJ for further cross-examination. This request arises out of the late disclosure of a statement of the Witness, being the recording and transcript of a radio interview in which he took part. According to the Defence, the Prosecution disclosed this statement seven months after he testified, and even then, only in Kinyarwanda. Alternatively, the Defence seeks that the testimony of the witness be stricken from the record. The Defence for Casimir Bizimungujoins the Defence for Prosper Mugiraneza in its request.

2. The Prosecution agrees that Witness GKJ should be returned to the stand, with two conditions. First, that he be returned for cross-examination strictly on the point of the newly disclosed material. Second, that he is given the newly disclosed material prior to his cross-examination, so that he is aware of the reason for his recall prior to his crossexamination. 3. In reply, the Defence submits that if Witness GKJ is returned to the stand, his testimony should properly be treated as a continuation of his earlier testimony, and thus he should not be forewarned of the reason for his return to Arusha. Had the Prosecution been diligent in its work and disclosed the statement on time, the Witness would not have been warned of the broadcast prior to his testimony. Therefore, a proper remedy of the situation requires that he should not be forewarned.

370 • Defense in International Criminal Proceedings DELIBERATIONS 4. The Chamber is persuaded by the submissions of the Parties, who are in agreement on the matter, that the interests ofjustice require that the Chamber grant the request to return Witness GKJ to the stand for cross-examination on the statement, which was disclosed late by the Prosecution. 5. However, this witness has already given his evidence, and this will not be an opportunity to introduce new matters. This witness in being returned to the stand solely to deal with the issue of the prior statement identified by the Parties 6. This witness need not be forewarned of the reason for his return. The reason will be disclosed in court.

7. In the event that Witness GKJ is not brought back for further cross-examination, the Chamber does not see any justification for striking out from the record his entire testimony because of the Prosecutor's late disclosure under Rule 68. However, in assessing his entire testimony, the Chamber would take into account the late disclosure of the Witness's prior statement and the fact the Defence did not have an opportunity to crossexamine the Witness on this statement. FOR THE ABOVE REASONS, THE TRIAL CHAMBER GRANTS the Motion in the following terms: ORDERS that Prosecution Witness GKJ be returned to Arusha for cross-examination on his prior statement, identified above.

Prosecutor \t. Theoneste Bagosora- Decision on the Prosecution Motion for Harmonization and Modification ofProtective Measures for Witnesses, Case No. ICTR-98-41-1, November 29, 2001

I. SUBMISSIONS

A. SUBMISSIONS OF THE PROSECUTOR 1. In the Motion, the Prosecutor seeks to harmonise the time frame within which she must disclose to the Defence unredacted statements and identification data of protected prosecution witnesses. The Prosecutor proposes that the Chamber replace the relevant sections of the three Extant Orders with a harmonised measure that requires her to make such disclosure "when the witness has been brought under the protection of the Tribunal or at least twenty one (21) days before the witness is to testify at trial, whichever is the soonest." In support of this proposition, the Prosecutor underscores that this disclosure period is currently in place in the Kabiligi-Ntabakuze Decision. Moreover, submits the Prosecutor, such a disclosure period is also consistent with recent witness protection orders imposed in other cases. The Prosecutor also submits that the proposed modification would not prejudice the Accused in the preparation of their defence because the proposal for modification is being made well in advance of trial. 2. Further, the Prosecutor expostulates that Rule 69 of the Rules of Procedure and Evidence (the "Rules") strikes a balance between the rights of an Accused and the safety and security of witnesses. That balance, posits the Prosecutor, is best achieved by applying the five-pronged test pronounced in the matter of Prosecutor v. Tadic (IT-94-1-T),

ICTR • 371 Decision on the Prosecutor's Motion requesting Protective Measures for Victims and Witnesses, (10 August 1995). Relying on a report by the Chief of the Witness and Victims Support Section Prosecution (the "WVSS-P"), prepared in the context of the so-called Butare Case, currently being tried before Trial Chamber II (judge Sekule Presiding), the Prosecutor submits that the witnesses suffer from a real and objective fear. The Prosecutor contends moreover that her witnesses are vulnerable and "not easily encouraged to testify in court." She also invites the Chamber to take judicial notice of the present state of armed conflict in Rwanda. 3. The Prosecutor indicates that she intends to call more than 200 witnesses in her case in-chief during the trial proceedings. In response to the Defence arguments that the twenty one-day before testimony disclosure period does not afford them adequate time to place in context such a large number of witnesses, Prosecutor remonstrates that the redacted witness statements she has already disclosed afford the Defence sufficient insight into the global context of her case against the Accused. 4. The Prosecutor also seeks to modify the three Extant Orders by adding a provision requiring the Defence to make a written request to the Trial Chamber, on prior notice to the Prosecution, before contacting prosecution witnesses. 5. Finally, the Prosecutor requests that the Chamber not make any more harmonizing provisions than those she has proposed because it would be "confusing and unwieldy to replace the existing orders in their entirety by a new single harmonised order." Moreover, the Prosecutor argues that more extensive harmonisation would prejudice parties who have relied on or implemented the earlier orders. B. SUBMISSIONS OF THE DEFENCE 6. During the hearing, Counsel for Kabiligi made an oral submission that the Accused Kabiligi be afforded the same disclosure conditions for unredacted witness statements as enjoyed by the Accused Bagosora and Nsengiyumva. 1. Timing ofDisclosure of Witnesses' Identity

7. The Defence submits that the identity and unredacted witness statements of all protected witnesses must be revealed before the commencement of trial. Any other provision, i.e., one measured from the date of testimony of a particular witness would result in substantial prejudice to the rights of the Accused to be accorded sufficient time to adequately prepare their defence. In support of this contention the Defence, invokes the provisions of Article 20 of the Statute, Rules 66, 67, 69, and 75 of the Rules of Evidence and Procedure and the practice under the civil code or the common law in the national jurisdictions. More significantly, the Defence argues that the harmonisation and modification sought by the Prosecutor, as well as the earlier case law pronouncing similar orders, is inconsistent with Rule 66 (A) (ii) and 69 (C) and Article 20 (4) (b) of the Statute because these provisions require that the Prosecutor make disclosure of witness identifying data before trial. The Defence also stresses that pursuant to Rule 69, the imposition of protective measures is reserved for "exceptional circumstances." Consequently, argues the Defence, the Prosecutor cannot legitimately withhold disclosure of witness identification data for all the witnesses she intends to call at trial. 8. Addressing themselves to the practicalities, the Defence maintains that the Chamber should carefully consider the particular factual predicate of this case, in which the Prosecutor intends to call more than 200 witnesses in her case in chief. Such an unwieldy

372 • Defense in International Criminal Proceedings number of witnesses and the length and complexity of witness statements are factors which should be considered when determining a reasonable time frame for disclosure of witness identifying information. In this regard, the Defence indicates that they have already received 872 witness statements in redacted form. Some of the witnesses' statements have been so overly redacted, rendering them effectively incomprehensible and useless in the preparation of the Defence. Consequently, the Defence' contends, it will be necessary to consider the unredacted versions of all witness statements simultaneously in order to fairly glean an understanding of the gestalt of the Prosecutor's case against each of the Accused. In this manner, notes the Defence, the factual circumstances in this case are eminently distinguishable from others in which there is only one Accused involving a far more modest number of Prosecution witnesses. 9. Furthermore, in this regard, the Defence submits that it is veritably impossible to cross-examine a particular witness without having recourse to the complete, unredacted statements of all the other witnesses with respect to a particular issue or incident. Therefore, contends the Defence, the Prosecutor must be directed to provide unredacted witness statements and to disclose the identities of witnesses before the commencement of trial so as to afford the Defence a fair opportunity to assess and investigate each witness' credibility, bearing in mind the interrelationship between the various claims in all witnesses' unredacted statements. 10. During the Hearing, Counsel for Bagosora provided further practical insight by describing the manner in which the Defence exploits the unredacted witness statements. Once disclosed by the Prosecutor, an unredacted statement is carefully studied by the entire Defence team, including the lawyers, the legal assistants, investigators, and then by the Accused. Thereafter, the contents of each statement must be compared with the charges in the Indictment and with the statements of other witnesses. Based upon this extensive review, Counsel and the Accused discuss and prepare the battery of crossexamination questions. This involved process, notes the Defence, will necessarily require that the Prosecutor disclose unredacted witness statements more than twenty-one days in advance of a particular witness' testimony. 11. The Defence of Nsengiyumva submits that in the context of a criminal trial, when balancing the rights of the Accused and the interests of the witnesses who wish to temporarily conceal their identities, the rights of the Accused must be deemed superior. In this vein, the Defence observes that neither the Accused, who is detained at the Tribunal's detention facility, nor any member of the Defence teams pose any danger to the Prosecutor's witnesses. Therefore, argues the Defence, the Prosecutor's witnesses' fears are purely subjective, with no basis in objective facts. Notably, the Defence contends that in other cases the Prosecutor was required to disclose unredacted witness statements sixty days prior to the trial, with no resulting difficulties. Moreover, stresses the Defence, witnesses in the national courts of Rwanda and Belgium testify publicly in open court without the benefit of any protective measures. 12. In response to the Prosecutor's submissions, Counsel for Bagosora reminds the Chamber that the Extant Orders already strike a correct balance between the interests of the Accused and the interest of the protected witnesses. Counsel suggests that the provisions of the Extant Orders and respect for the rights of the Accused militate in favour of harmonizing witness protective measures to conform to the more liberal and least restrictive measures among the Extant Orders. The Defence submits that the Prosecutor should be required to disclose unredacted witness statements within a shorter

ICTR • 373 delay period, thereby affording all Accused the benefit of the adequate time to prepare their defence. 13. All Defence Counsel indicated that they would be agreeable to a harmonised order in conformity with the Rules requiring the Prosecutor to disclose the unredacted statements of her protected witnesses at least sixty days before trial. Moreover, Counsel for Bagosora conceded that if disclosure of unredacted witness statements were made sixty days before trial, the Prosecutor could be permitted to disclose the identity of the witness at some later date. 2. The No-Contact Order

14. The Defence of Kabiligi, the sole Counsel to address the specifics of Prosecutor's proposed modifications with respect to an injunction requiring the Defence to obtain leave of the Chamber and give prior notice to the Prosecutor before contacting the Prosecutor's protected witnesses, submits that the requested order presents a practical absurdity. In this regard, argues the Defence, they can hardly be asked to refrain from contacting protected witnesses whose identities have not been disclosed to or known by the Defence.

II. DELIBERATIONS A. INTRODUCTION 15. The Prosecutor has requested the harmonisation of two measures in the Extant Orders, arguing that it would be unwieldy and prejudicial to harmonise all the witness protection provisions. The Chamber finds that harmonisation of the witness protection orders in a joint trial is in the best interests of the parties and of justice. It would be totally impractical and illogical for the Chamber to proceed with the trial of the Accused in ajoint trial where the disclosure orders differ from one Accused to the next. The extent to which the Chamber may properly modify the Extant Orders, however, is limited by operation of the provisions of Rules 69 and 75. While the Tribunal may order appropriate witness protection measures pursuant to Rule 75 proprio motu, the parties must affirmatively request any relief pursuant to Rule 69. Consequently, the Chamber is constrained by Rule 69 to consider only that very circumscribed measure of relief sought by the Prosecutor with respect to the temporary nondisclosure of witnesses' unredacted statements and other identifying data. With respect to the Prosecutor's proposal for the modification of the Extant Orders to control contact of her witnesses by the Defence, the Chamber is free pursuant to Rule 75 to fashion relief sua sponte, unencumbered by the relief sought by the Prosecutor. 16. The protection of witnesses who appear before the Tribunal is governed by Article 21 of the Statute and Rules 69 and 75. In view of the statutorily guaranteed rights of the Accused under Article 20(1), (4) (a) to a fair and public trial and to be afforded adequate time to prepare their Defence, the Motion calls upon the Chamber to engage in a delicate balancing process, weighing the rights of the Accused against the mandate of the Tribunal to provide effective protection measures for victims and witnesses. 17. Stated in its most simple terms, the instant Motion fundamentally thrusts the Chamber into resolving the main polemic on which there is a seemingly irreconcilable difference of opinion between the Defence and the Prosecution: Which method of calculating the disclosure period of unredacted witness statements and other identifying data is most consonant with the letter and spirit of Article 21 of the Statute and Rule

374 • Defense in International Criminal Proceedings

69-one measured from the date of trial or one measured from the date a particular protected witness is to give testimony before the Trial Chamber? Also, implicit in the foregoing dialectic is the following issue. Assuming one measures the Prosecutor's disclosure obligation from the expected date of testimony of a particular protected witness, does Rule 69 (or any other Rule for that matter) permit the Chamber to make a rolling disclosure order or does it only countenance that disclosure is to be made before the commencement of trial? B. TIMING OF DISCLOSURE OF WITNESSES' IDENTITIES 18. Each of the three Extant Orders contains an order permitting the Prosecutor to delay the disclosure of the identity and related identifying information of her witnesses to the Defence. The specific provisions are reproduced as follows (with added emphasis): (a) The Nsengiyumva Decision:

(6) The Prosecutor is authorised to withhold disclosure to the Defence of the identity of the victims and witnesses and to temporarily redact their names and addresses in the written statements, until such time as the said victims or witnesses are brought under the protection of the Tribunal. (7) Subject to the provisions in Rules 69(A) and 69(C) of the Rules and to paragraph 6 above, the Prosecutor is ordered to disclose to .the Defence the identity of the said protected victims and witnesses as well as their nonredacted statements within sufficient time prior to the trial in order to allow the Defence a sufficient amount of time to prepare itself.

(b) The Bagosora Decision: In the body of the Decision, the Tribunal explains "the trial chamber is of the considered opinion that the Prosecutor should disclose the identity of its witnesses in sufficient time prior to the trial to allow the defence to rebut any evidence that prosecution witnesses may raise." The Order reads, "the names addresses and other identifying information of the victims and witnesses, as well as their locations, shall be kept under the seal of the Tribunal and shall not be disclosed to the defence until further orders." (c) The Kabiligi and Ntabakuze Decision: Prohibiting the disclosure, in advance, to the Defence of the names, addresses, whereabouts of, and any other identifying data, including any information in the supporting material on file with the Registry, which would reveal the identities of the Protected Persons, and requiring the Prosecutor to make such a disclosure, including of any material provided earlier to the Defence in a redacted form, not later than 21 days before the protected witness is to testify at trial, unless the Trial Chamber decides otherwise pursuant to Rule 69 (A) of the Rules. 19. The Tribunal must determine the appropriate timing of disclosure and in doing so, must reassess what is "strictly necessary" for the protection of witnesses in the circumstances of the joint trial. Such an evaluation must be made on a case-by-case basis. There has been a recent trend in some other cases allowing the Prosecutor to with-

ICTR • 375 hold the identity of witnesses until twenty-one days prior to the date on which the witness is scheduled to testify. However, disclosure of identity is of heightened importance in this case, given the size of the Prosecution's case and in particular the expected number of witnesses. 20. It is the Chamber's considered belief that deliberation about the foregoing issues cannot be done in a factual vacuum. Rather, the Chamber must approach these issues with a reasoned appreciation of the practicalities of implementing any resulting order and an understanding of the idiosyncratic factual circumstances of this particular case. First, it is important to recall that this case involves four Accused who are to be tried jointly. Second, in the context of this case in which the Prosecutor intends to call more than 200 witnesses and has already produced 872 redacted witness statements, the Chamber is mindful of its statutory duty to provide effective protection to witnesses who are considered to be vulnerable. It is anticipated that the trial of this matter may take upwards of one to two years. Moreover, the Chamber must take into account the importance and high profile and influence of the four Accused in this case and their possible connections and influences notwithstanding the fact that they are confined at the Tribunal's Detention Facility. Rule 69 (C) sanctions such considerations inasmuch as it envisioned exceptional circumstances that would warrant the temporary non-disclosure of the identities of witnesses to the Defence. 21. The Chamber must consider how long a period of temporary non-disclosure of the witnesses' unredacted statements and identification data is strictly necessary to protect vulnerable witnesses. This consideration also entails the concomitant determination of how much advance disclosure is necessary to fairly avail the Defence of sufficient time to adequately and effectively prepare their respective cross-examination of the Prosecutor's protected witnesses. No consideration of witness protective measures is complete without an understanding of the capabilities and resource-imposed limitations of the Witness and Victims Services Section. 22. Consideration of the foregoing peculiar factual circumstances militates in favour of harmonising the Extant Orders to conform with the least restrictive or more liberal order among them, namely the order now in place in the matter of the Prosecutor v. Bagosora (ICTR-96-7-I), Decision on the Prosecutor's Motion for the Protection of Victims and Witnesses (31 October 1997 (orally) and 26 November 1997 (written) (judges Sekule, (Presiding), Ostrovsky and Khan). Mindful of its obligation to provide meaningful protection to vulnerable witnesses and to protect the interests of the Accused to receive disclosure of the unredacted statements and identities of protected Prosecution witnesses in sufficient time to make effective use of them in preparing a Defence, the Chamber finds that it is in the interest ofjustice to harmonise the Extant Orders to conform to the order now in operation in the Bagosora Decision. Thus, the witness protection orders in the other two cases, i.e., Prosecutor v. Nsengiyumva and Prosecutor v. Kabiligi and Ntabakuze, shall be harmonised to conform to the Bagosora Decision. 23. To recall, the entire order with respect to disclosure of witness identifying data to the Defence in the Bagosora Decision reads as follows: •

The names, addresses and other identifying information of the victims and witnesses, as well as their locations, shall be kept under the (sic) seal of the Tribunal and shall not be disclosed to the Defence (sic) until further orders.

376 • Defense in International Criminal Proceedings

24. In addition, in the deliberations portion of the Bagosora Decision (at para. (ii) of the Deliberations) the Chamber, comprised ofJudges Sekule, Presiding, Ostrovsky, and Khan, reiterated the words of the Rule 69 (C) as follows: •

The Trial Chamber is of the considered Opllll0n that the Prosecutor (sic) should disclose the identity of the witnesses in sufficient time prior to the trial to allow the defence (sic) to rebut any evidence that the prosecution witnesses may raise[.]

25. Harmonising the Extant Orders to conform to the one in the Bagosora Decision has several advantages. Notably, it provides the fluidity necessary to reassess the practicalities at every instance so as to modify the order to address unexpected difficulties the WVSS-P invariably encounters in locating and providing protection to a large number of prosecution witnesses. Secondly, adopting the Bagosora Decision has the added advantage of forestalling any argument of prejudice that may be raised by the Accused Bagosora and Nsengiyumva, who were heretofore the beneficiaries of the more liberal orders. The orders in those cases are based on the language of Rules 69 (A) and 69 (C), leaving the Chamber free to impose an appropriate specific deadline for the Prosecutor to disclose witness-identifying data by a subsequent order. 26. It is equally imperative that the Chamber considers the limits of the abilities of the WVSS-P in providing protective measures for the witnesses because it is only after a witness comes under the protection of the Tribunal that any disclosure of the witness-identifying data may be made to the Defence. The resources and staffing of the WVSS-P are not limitless. In addition, those resources are strained even further when all three of the Tribunal's Trial Chambers are engaged in trial proceedings, all trying two or more cases simultaneously. The Chamber would be remiss if it failed to consider these practicalities and their attendant repercussions thereby reducing "witness protection" to hollow words. 27. It is not desirable for the Chamber to make a more specific order at this juncture without a fair understanding of the workings and capacities of the WVSS-P. Consequently, the Chamber refrains from making an order as proposed by the Defence, directing the Prosecutor to make disclosure of unredacted witness statements and other identification data sixty days before the commencement of trial. Moreover, the Chamber notes that it is not desirable to adopt the proposal of the Defence for Bagosora requiring the Prosecutor to disclose unredacted statements sixty days in advance of trial but permitting her to withhold the identity of witnesses until some later date. This proposal is not feasible because the very detailed information in the unredacted statements may very well be used to determine the identity of protected witnesses. 28. In order to make a more concrete and informed determination of the number of days in advance of trial or testimony that the Prosecutor must disclose unredacted witness statements and identities, it will be necessary for the Chamber to consult with the WVSS-P pursuant to Rule 69(B) to assess its capacity to place witnesses under the protection of the Tribunal and in what time frame such protection can be put in place. Rule 69 (B) provides, "In the determination of protective measures for victims and witnesses, the Trial Chamber may consult the Victims and Witnesses Support Unit." Upon consulting with the WVSS-P and making an assessment of its capacity to place the protected witnesses under protection, the Chamber shall then issue, no later than 11 December 2001, another order specifying when the Prosecutor is to disclose the witness statements and whether such disclosure will be made in a disclosure in advance

ICTR • 377 of trial or on a rolling disclosure basis measured from the date of testimony of particular witnesses. 29. The Prosecutor relies heavily upon some previous jurisprudence of the various Trial Chambers of this Tribunal finding that requiring the Prosecutor to disclose unredacted witness statements and other identifying data twenty-one days in advance of testimony adequately addressed and reconciled the concerns of the Accused and those of the protected witnesses. The Chamber finds, however, that there is no talismanic magic attached to the twenty-one-day in advance of testimony disclosure measure in place in the Kabiligi and Ntabakuze Decision. The twenty-one-day figure does not derive from the letter of Rule 69 (C). Rather, it is a discretionary measure fashioned out of consideration of the particular factual circumstances as they existed at the time those particular decisions were rendered. 30. Mindful of its obligation to provide meaningful protection to vulnerable witnesses and to protect the interests of the Accused to receive disclosure of the unredacted statements and identities of protected Prosecution witnesses in sufficient time to make effective use of them in preparing a Defence, the Chamber finds that it is in the interest of justice to harmonise the Extant Orders to conform to that now in operation in the Bagosora Decision. Accordingly, the following order, borrowed verbatim from the Bagosora Decision shall become effective immediately with respect to this joinder case, comprising the cases of the four Accused, Bagosora, Nsengiymva, Kabiligi and Ntabakuze: "The names, addresses and other identifying information of the victims and witnesses, as well as their locations, shall be kept under the (sic) seal of the Tribunal and shall not be disclosed to the Defence until further orders." C. CONTROLLED CONTACT ORDER 31. The Prosecutor seeks to add what she considers to be a new measure to each of the Extant Orders. The Chamber finds that two of the three Extant Orders already contain a controlled contact provision. The Bagosora Decision provides that "the defence or its representatives who are acting pursuant to their instructions shall notify the Prosecutor of any request for contacting the prosecution witnesses, and the Prosecutor shall make arrangement for such contacts." Similarly, the Kabiligi-Ntabakuze Decision also requires the Defence to: •

Make a written request on reasonable notice to the Prosecution, to the Trial Chamber or aJudge thereof, to contact any Protected Person or any relative of such person. At the direction of the Trial Chamber or aJudge thereof, and with the consent of such Protected Person or the parents or guardian of that person if that person is under the age of 18, to an interview by the Defence, the Prosecution shall undertake the' necessary arrangements to facilitate such contact.

32. Regardless of the characterisation of this measure, the Tribunal finds that it is equitable to harmonise the existing provisions so that all Defence teams will be operating under the same clear constraints concerning contact with Prosecution witnesses. The Chamber is, however, mindful of the arguments of the Defence that such an order can logically operate only after the Defence has been informed of the identities of the protected witnesses. Prior to such time, the Defence could not fairly know whether or not their representatives were approaching a protected person. 33. The Chamber also finds that it is not necessarily practicable that the Defence seek permission of the Chamber each time they wish to contact one of the 200 witnesses the

378 • Defense in International Criminal Proceedings

Prosecutor has indicated she intends to call at trial. The Chamber also recognises that there are likely to be more requests for contact with witnesses in ajoint trial with multiple defendants. Such requests for contact should be initially arranged between the parties in consultation with the Registry. Only upon the failure of such co-operative efforts would either party be authorised to seek the intervention of the Chamber to obtain appropriate relief. D. MEASURES TO PROTECT WITNESSES' IDENTITIES FROM PUBLIC AND MEDIA 34. A number of measures in the Extant Orders, granted pursuant to Rule 75, are designed to prevent the public and media from discovering the identity of protected witnesses. These measures are generally awarded to both Prosecution and Defence witnesses appearing before this Tribunal in recognition of the special risks to privacy and security of the protected witnesses. Although such measures impact on the right of the Accused to a public trial, these measures have been viewed to be appropriate limits on the rights of the accused in response to the potential risks facing the protected witnesses. All three Extant Orders contain strikingly similar provisions, and the harmonisation of the measures into a single Order, proprio motu, will serve to simplify the proceedings. E. NOTIFICATION OF THE WVSS-P 35. Two of the Extant Orders, namely the Bagosora Decision and the Nsengiyumva Decision, contain provisions requiring the Prosecutor to communicate the names and particulars of witnesses to the Witnesses and Victims Support Section in order to initiate protective measures. The Bagosora Decision requires that the Prosecutor furnish these details while the Kabiligi-Ntabakuze Decision orders the Registry to take these steps. The Tribunal finds that this measure is superfluous, as the Prosecutor is free to communicate this information to the Registry, when and if the witnesses are selected to testify at Trial. The Prosecutor should take these steps at the earliest opportunity in order to facilitate the work of the WVSS and to ensure that the witnesses come under the protection of the Tribunal in advance of the disclosure of their identities to the Defence. F. PROHIBITION ON REVEALING WITNESSES' IDENTITIES 36. Two of the Extant Orders prohibit the Defence from revealing the identity of the protected witnesses. The Bagosora Decision is very specific and operates only after the information has been disclosed to the Defence: (v) The defence shall not reveal to anyone except to their immediate team, the names addresses, whereabouts of the prosecution witnesses and any other information identifying them once such information has been revealed to it by the prosecution. The Kabiligi-Ntabakuze Decision, in contrast, is very broad: (g) Prohibiting the immediate Defence team and the Accused from sharing, discussing or revealing, directly or indirectly, any document or any information contained in any document, or any other information which could lead to the identification of any Protected Person to any person or entity other than the Accused, assigned Counselor other persons working on the immediate defence team, as designated by the assigned Counselor the Accused. 37. The Chamber observes that the wording of this measure in the Kabiligi-Ntabakuze Decision is overly broad and unenforceable. Even the most cautious defence investiga-

ICTR • 379 tion might incidentally or indirectly reveal information that could somehow lead to the identification of potential prosecution witnesses. 38. The Chamber recalls, however, that witness protection measures are binding, inter alia, on both the Prosecution and the Defence. Therefore, the names, addresses and other protected identifying information which could reveal the identities of the witnesses cannot be disclosed to the public or to the media by any person including the Defence and the Accused. 39. Relying on the recent decision of the Appeals Chamber in Prosecutor v. Musema (ICTR-96-13-A), Decision on Extremely Urgent Motion for Protective Measures for Witnesses (22 May 2001), the Chamber recognizes an implicit exception to this general rule for the limited sharing of general information by the Defence Counsel and the immediate Defence team acting pursuant to the request of Counsel to individual members of the public where necessary to prepare the defence. Such exception applies only where the disclosure is limited to what is necessary and is done in such a way as to minimize the risk of the information being divulged further. G. INDEPENDENT INVESTIGATION OF WITNESSES' IDENTITIES 40. The Kabiligi-Ntabakuze Decision also contains a measure prohibiting the Defence from "attempting to make an independent determination of the identity of any Protected Person or encouraging or otherwise facilitating any person to attempt to determine the identity of any such person." While the other Extant Orders do not contain such a provision, the Chamber observes that any such independent investigation into the identity of a protected person would violate the object and spirit of all witness protection measures. 41. It is unclear whether this measure in the Kabiligi-Ntabakuze Decision was granted pursuant to Rule 69 or pursuant to Rule 75. It appears that its purpose is two-fold: to ensure the integrity of the non-disclosure of identity to the Defence and to ensure that protected information is not passed on to the public in an attempt by the Defence to circumvent the non-disclosure order. Since Rule 69 deals only with non-disclosure by one party to the other, the Chamber finds that the Order preventing the Defence from conducting an independent investigation of identity must have been granted as an auxiliary measure pursuant to Rule 75 (A) to protect the witnesses from the public and media. As such, the Chamber has the power to vary this measure proprio motu. 42. Such a measure might be a desirable clarification of the ethical obligations of the parties. However, any attempt to directly ascertain the identity of a prosecution witness from the information, statements or other evidence disclosed by the Prosecutor would fall afoul of other witness protection measures. While the Defence is prohibited by the other Extant Orders from disclosing protected information to the public or to the media, the Defence cannot be prevented from making legitimate investigations and inquiries into the circumstances surrounding the events alleged by the Prosecutor. H. NOTIFICATION OF DEFENCE TEAM MEMBERS 43. The final provision that is unique to the Kabiligi-Ntabakuze Decision requires the Defence "to provide to the Registrar a designation of all persons working on the immediate Defence team who will have access to any information which might disclose identifies, or could lead to the identification of, any protected Person and to advise the Registrar in writing of any change in the composition of this team" and an "Order

380 • Defense in International Criminal Proceedings Requiring Defence Counsel to ensure that any member departing from the Defence team has remitted all materials that could lead to the identification of the Protected Persons." 42. Pursuant to Rule 75, for the purpose of ensuring diligence in the handling of protected materials, the Tribunal finds that it is prudent to require Defence Counsel of all teams in this case to notify the Chamber in writing of any person leaving the Defence team and to confirm in writing that Counsel has ensured that all confidential materials dealing with protected witnesses have been remitted to Counsel. 43. The Chamber therefore grants in part the Prosecutor's request for harmonization of witness protective measures. Pursuant to the Prosecutor's request and proprio motu the Chamber: (a) ORDERS that this Decision replace the three Extant Orders: Prosecutor v. Nsengiyumva, Decision on the Prosecutor's Motion for the Protection of Victims and Witnesses, ICTR-96-12-T, 26 June 1997; Prosecutor v. Bagosora, Decision on the Prosecutor's Motion for the Protection of Victims and Witnesses, ICTR96-7-1,31 October 1997; and Prosecutor v. Kabiligi and Ntabakuze, Decision on Motion by the Office of the Prosecutor for Orders for Protective Measures for Victims and Witnesses," ICTR-97-34-1, 19 May 2000; (b) ORDERS that the Prosecution designate a pseudonym for each protected witness that shall be used whenever referring to such witness in Tribunal proceedings, communications and discussions between the parties and the public; (c) ORDERS that the names, addresses, whereabouts and other identifying information of the protected witnesses ("identifying information") be sealed by the Registry and not included in any public records of the Tribunal; (d) ORDERS that any identifying information relating to the protected witnesses that is contained in existing records of the Tribunal be expunged; (e) ORDERS that the disclosure to the public or to the media of any identifying information relating to the protected witnesses prior to, during and after the trial is prohibited; (f) ORDERS that the names, addresses and other identifying information of the protected victims and witnesses, as well as their locations, shall be kept under seal of the Tribunal and shall not be disclosed to the Defence until further orders; (g) ORDERS that the Defence make a written request to the Prosecutor if it wishes to contact any protected prosecution witnesses, and that if the witness consents then the Prosecutor shall facilitate such contact; (h) ORDERS Defence Counsel to notify the Chamber in writing of any person leaving the Defence team and to confirm in writing that Counsel has ensured that all confidential materials dealing with protected witnesses have been remitted to Counsel; (i) GRANTS the oral request of Kabiligi;

U)

DISMISSES the Prosecutor's Motion in all other respects.

ICTR • 381

Decision and Scheduling Order on the Prosecution Motion for Harmonization and Modification of Protective Measures for Witnesses, December 5, 2001

BEING SEIZED OF the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses dated 5 July 2001 and filed on 10 July 2001 (the "Motion"); RECALLING the Chamber's Decision on the Prosecution Motion for Harmonisation and Modification of Protective Measures issued on 29 November 2001 in which the Chamber indicated that it would make a scheduling order no later than 11 December 2001 specifying a deadline by which the Prosecutor is to disclose unredacted statements and other identifying data for her protected witnesses pursuant to Rule 69(C) of the Tribunal's Rules of Procedure and Evidence (the "Harmonisation Decision"); RECALLING the Chamber's consultation with the Chief of the Witnesses and Victims Support Section for the Prosecution ("WVSS-P") pursuant to Rule 69(B) on 26 November 2001;

1. In the Harmonisation Decision, the Chamber reserved making a specific order indicating a deadline by which the Prosecutor was to disclose copies of unredacted statements and other witness-identifying data to the Defence pursuant to Rule 69 (C) of the Tribunal's Rules of Procedure and Evidence (the "Rules"). In the instant decision the Chamber answers the question it reserved in the Harmonisation Decision: Which method of calculating the disclosure period of unredacted witness statements and other identifying data is most consonant with the letter and spirit of Articles 20 and 21 of the Statute and Rule 69-one measured from the date of the commencement of trial or one measured from the date a particular protected witness is to give testimony before the Trial Chamber? After resolving the foregoing question, the Chamber will address itself to the task of determining what length of non-disclosure is strictly necessary to facilitate the protection of victims and witnesses while respecting the rights of the Accused to receive identifying-data in sufficient time to mount an effective cross-examination of the witnesses against them. 2. In fashioning an order that is consistent with Rule 69(C), the Chamber must first interpret the Rule, employing well settled and widely recognised canons of construction in national jurisdictions practising under the common law and the civil code. The starting point of all interpretation of rules and statutes is the language of the rule or statute itself. Moreover, when interpreting the words of a rule a court is charged with according the words their common and ordinary meaning to give full effect to its provisions. In addition, proper interpretation mandates that a court must never construe words of a rule in isolation nor must it interpret a rule apart from its place within the regulatory scheme. See, by analogy, the Vienna Convention on the Law of Treaties Article 31, U.N. Doc. A/CONF. 39/97 (indicating that treaties are to be interpreted according to the plain meaning of words employed within the context of the object and purpose of the treaty). Finally, where the words of a rule or statute are unambiguous, a court may look beyond the plain language of the rule only if application of its plain meaning would lead to an absurd result or one which is contrary to a clear legislative intent.

382 • Defense in International Criminal Proceedings A. THE PLAIN LANGUAGE OF RULE 69 (A) AND RULE 69(C) 3. Any principled analysis of a rule must commence with an interpretation of the plain words of the rule, according them an ordinary meaning. Thus, the point of departure is Rule 69, which provides: Rule 69: Protection of Victims and Witnesses

(A) In exceptional circumstances, either of the parties may apply to a Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk, until the Chamber decides otherwise. (B) In the determination of protective measures for victims and witnesses, the Trial Chamber may consult with the Victims and Witnesses Support Unit. (C) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the prosecution and the defence. (Emphasis added). 4. First, it is important to note that Rule 69(A) contains in substance, if not verbatim, the words of our previous order derived from the Bagosora Decision. Thus, we ordered that the Prosecutor not disclose the identity of her protected witnesses "until further order." In this manner, the previous order is eminently consistent with the letter and spirit of Rule 69 (A). Whereas Rule 69 (A) permits the Chamber to exercise its discretion to delimit a proper deadline for the disclosure of witness identities, Rule 69 (C) restrains the Chamber's discretion in this regard by mandating that the identity of witnesses must be disclosed in sufficient time prior to trial to permit an accused a fair opportunity to adequately prepare his defence. 5. All of the Defence teams indicated that the Rule 69(C) obligates the Prosecutor to disclose all unredacted witness statements and other witness-identifying data before the commencement of trial. The Prosecutor, however, stressed that disclosure should be made on a rolling basis, measured from the date that a particular witness is scheduled to testify. 6. The plain language of Rule 69(C) calls upon the Chamber to make an order requiring the Prosecutor to disclose all protected witnesses' identifying data before the commencement of trial. Such an application of the strict letter of the Rule, without regard for its object and purpose, however, would render nugatory the remainder of the provisions of Rule 69 (C), which provides the "raison d' etre" of the provision, i.e., "to allow adequate time for preparation of ... the defence." It is this purpose that drives the provision and which must guide the Chamber in assessing what amount of advance disclosure of witness-identifying data is necessary to fulfil its obligations to assure and make effective the Accused's statutorily guaranteed right to cross-examination and the Chamber's statutory mandate to protect victims and witnesses. Neither of these mandates can be sacrificed in service of the other. Rather, a proper balance must be struck to determine what amount of advance disclosure is strictly necessary to serve the twin aims of Rule 69.

7. More important, an interpretation according force to the letter of Rule 69(C) would divest the Chamber of the broad discretion at its disposal pursuant to Rule 69 (A).

ICTR • 383 B. LEGISLATIVE HISTORY OF RULE 69 8. The jurisprudence of the Yugoslavia Tribunal interpreting the Rules and Statute is instructive to this Tribunal. See Prosecutor v. Tadic, (IT-94-1-I), Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, at paras. 23,24. (August 10,1995); Prosecutor v. Tadic, (IT-94-1-T) Judgement (7 May 1997). 9. In light of the existence of the exceptional circumstance, the Chamber finds that it is necessary to prevent the wholesale disclosure of witnesses names and addresses before trial because to do otherwise would be against the intent of the drafters of Rule 69 and the other Rules aimed at providing protection to victims and witnesses. Moreover, since it was the generally declared intent of the drafters that the Rules have some elasticity to permit the Chambers to make determinations, where warranted, on a case-by-case basis to address specific concerns, the Chamber believes that it is unreasonable under the particular circumstances of this case to give effect to the literal words of Rule 69 (C) which require disclosure of all protected witness identities before trial. To make an order effectuating the letter of Rule 69(C) is ill advised because it would unnecessarily tax any real notion of witness protection without advancing the Accused's right to effective crossexamination in any meaningful way. C. RULE 69 WITHIN THE OVERALL SCHEME OF THE STATUTE AND RULES 10. The exegesis of the overall scheme of the Statute and of the Rules makes plain the intent of the Judges who drafted the Rules regarding protection for victims and witnesses. There are no less than four rules and an article in the Statute specifically aimed at facilitating the appearance and testimony of witnesses before the Tribunal. The analysis of the International Tribunal for the Former Yugoslavia in the matter Prosecutor v. Tadic (IT-94-1-T) in its Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses (10 August 1995) is instructive in this regard •

In drafting the Rules ... the Judges of the International Tribunal endeavoured to incorporate rules that addressed issues of particular concern, such as the protection of victims and witnesses, thus discharging the mandate of Article 22 of the Statute. (Annual Report, supra, para. 75). Provision are made for the submission of evidence by way of deposition, i.e., testimony given by a witness who is unable or unwilling to testify in open court (Rule 71). Another protection is that arrangements are made for the identity of witnesses who may be at risk not to be disclosed to the accused until such time as the witness is brought under the protection of the International Tribunal (Rule 69). Additionally appropriate measures for the privacy and protection of victims and witnesses may be ordered including, but not limited to, protection from public identification by a variety of methods (Rule 75). Also relevant is the establishment of the Victims and Witnesses Unit within the Registry to provide counselling and recommend protective measures (Rule 34).

11. So significant was the concern for the protection of witnesses that it is specifically mentioned in Article 14 of the Statute which engages the Judges of the Tribunal to adopt Rules of Procedure and Evidence for the conduct of all proceedings, including rules governing the protection of victims and witnesses. Moreover, Article 19 (1) of the Statute, which governs the commencement and conduct of trial proceedings provides: •

The Trial Chambers shall ensure that a trial is fair and expeditious and that the proceedings are conducted in accordance with the [Rules], with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

384 • Defense in International Criminal Proceedings

•

(Emphasis added).

12. Article 21 of the Statute of this Tribunal, which is identical to Article 22 of the Yugoslavia Tribunal's Statute, provides: •

The [Tribunal] shall provide in its Rules of Procedure and Evidence for the protection of victims and witnesses. Such protection shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of a victim's identity.

13. Read together the various articles of the Statute and the Rules charge the Chamber with assuring the protection of victims and witnesses and vest it with broad discretionary authority in discharging this momentous mandate. See Rule 69 (A). 14. This mandate to protect witnesses does not stand alone; rather it stands along side the Tribunal's obligation to ensure fair proceedings, in conformity with the rights of the accused. See Article 20. Among the rights which the accused enjoys is a minimum guarantee "[t]o examine, or have examined the witnesses against him or her ... " as provided under Article 20 (4) (e). However, this right seemingly unfettered and absolute at first blush has an explicit limitation in the form of Article 20(2) which provides: "In the determination of charges against him or her, the accused shall be entitled to a fair and public hearing, subject to Article 21 of the Statute." The Statute and the Rules envisioned therefore that the rights of the accused to a fair trial included the right of the Chamber to control the exercise of that right to a certain prescribed degree in service of the obligation to provide protection to victims and witnesses. 15. No one questions the potential value of unredacted statements and other witnessidentifying data in the preparation of a defence. The point of departure for an effective cross-examination often involves asking the witness questions about his or her identity and where she or he lived or lives. Thus, if the Accused is to make effective use of his or her right to cross-examine witnesses against him he must be aware of the identity of the person he seeks to question, otherwise he is deprived of the very facts that would enable Defence Counsel to demonstrate that a witness is hostile, prejudiced, or otherwise unreliable so as to impugn the witness's credibility. All of this identifying data opens valuable avenues for in-court cross-examination and out-of-court investigation before the witness is to appear to testify. 16. The question remains therefore, what amount of advance disclosure is strictly necessary to serve the rights of the defence and preserve protection of victims and witnesses. What is truly in the balance is not the Accused's right to a fair trial against the safety of victims and witnesses. There is nothing within the Statute that indicates that an accused's right to a fair trial is somehow hampered or compromised in service of witness protection. The concepts of protective measures for witnesses, including delayed disclosure of identity, did not streak like a meteor across the existing statutory and regulatory landscape of the accused's right to a fair trial and effective cross-examination. Rather, it was an integral part of this Tribunal's procedures from its inception. Both concepts, fair trial for the accused and witness protection, were preoccupations of equal importance in the minds of the drafters of the Statutes and Rules. See Tadic, Protective Measures Decision, supra, at para. 25. It is not surprising therefore that several of the Tribunals Statutes and Rules speak of witness protection and the rights of the accused in the same breath. For example, Article 20 (2) of the Statute contains a significant "subject to" clause: "In determination of the charges against him the accused shall be entitled to a

ICTR • 385 fair and public hearing, subject to Article 21 of the Statute." Similarly, Rule 75 which deals with the measures aimed at protecting the disclosure of witness-identifying data to the public and media, is bounded by the explicit requirement that any measures imposed pursuant must nevertheless be "consistent with the rights of the accused." 17. To give effect to only that part of the provisions of Rule 69 (C) which indicates that disclosure is be to made before trial, without consideration of the object and purposes of such advance disclosure would do violence to the very intent of the drafters in making the provision: (i) to provide witness protection in "exceptional cases" and (ii) to provide sufficient notice to the accused so that he may effectively exploit his right to cross-examination of the witnesses against him. D. CAVEAT: MUST AVOID RESULTS REPUGNANT TO INTENT OF RULEMAKERS: SOME PRACTICAL CONSIDERATIONS 18. On 26 November 2001, the Chamber consulted with the WVSS-P pursuant to Rule 69 (B) to learn about the limits, if any, on its capacity and resources to place witnesses under the protection of the Tribunal. During our consultation, we learned that the WVSS-P lacks the capacity and resources to place under its protection more than 200 witnesses before the commencement of the trial proceedings in the instant case under logistical time constraints imposed by the workings of the Office of the Prosecutor. The manner in which the WVSS-P must operate permits it to place under protection only a limited number of witnesses at any given time. In addition, this capacity is further limited by the fact that each of the three Trial Chambers is engaged in at least two trial requiring the protection and subsequent production of a large number of protected witnesses. For example in the so-called Butare Case, Prosecutor v. Nyramasuhuko et aI., ICTR-98-42-T, the Prosecutor intends to call more than 100 witnesses, each of whom must be placed under the Tribunal's protection before his or her identification data is disclosed to the Defence. It is also critical to recall in this regard that once a witness comes under the protection of the Tribunal he or she continues to be under protection until the conclusion of the mandate of this Tribunal. The list of witnesses that the WVSS-P must maintain under its protection is therefore growing with the commencement of each new trial. Against such a factual backdrop, any order requiring the Prosecutor to disclose the identity of the more than 200 protected witnesses expected to testify in her case-in-chief in this case, would place an untenable burden on the already strained resources of the WVSS-P. 19. It is not desirable for a Chamber to make an order that cannot effectively be implemented. Consequently, the Chamber refrains from making an order as proposed by the Defence, directing the Prosecutor to make one single omnibus disclosure of unredacted witness statements and other identification data sixty days before the commencement of trial. Although such an order would track the letter of Rule 69 (C), it neglects to respect the spirit of Article 21 of the Statute, which mandates that the Chamber provides witness protective measures. 20. In addition, even if the WVSS-P had the capacity to place under its protection all the witnesses in advance of trial, the Chamber would nevertheless be constrained not to make an order requiring disclosure of all unredacted statements and identities before trial. In this respect, the Chamber is mindful that the trial of this matter may take a year or more. If the names of all witnesses, irrespective of the anticipated date of their testimony, were revealed to the Defence, such unwarranted advance disclosure may severely

386 • Defense in International Criminal Proceedings

compromise the safety and security of protected witnesses who may in the interim become targets for coercion or other threats which would prevent or at least discourage them from testifying at trial. Moreover, the Chamber gives due regard to the fact that the WVSS-P is not equipped to provide full-fledged witness protection on the order of what is available in some more developed nationaljurisdictions. As such, temporary anonymity is a critical measure used by the WVSS-P to maintain the confidentiality and safety of the protected victims and witnesses. No one can justifiably argue that an effective defence requires the disclosure of unredacted statements a year or more in advance of the date of a particular witness's testimony. 21. Were the Chamber to grant the measure advocated by the Defence, i.e., sixty day in advance of trial, which in effect might amount to one year or more before a particular witness might be called to testify, it would be abdicating its statutory duty to provide measures for the protection of witnesses and victims with no corresponding advancement of the Defence's right to a fair trial and effective cross-examination. More important, an order requiring wholesale disclosure of unredacted statements and other identifying data would result in an absurd and unintended compromise of the safety of the overwhelming majority of the protected victims and witnesses. Such an eventuality could not be more repugnant to the intent of the drafters of the Statute and Rules of the Tribunal. Rule 69 exists because it was anticipated that there are potential sources of risk to the safety of prosecution witnesses. It is for this reason that the Rule permits the temporary non-disclosure of witness identities to the defence upon a finding of the existence of exceptional circumstances. 22. Giving due consideration to the particular facts of this case, the Chamber is persuaded by the arguments of the Prosecutor that the deadline for disclosure of witness statements should be done on a rolling basis measured from the anticipated date a particular witness is expected to testify. The Chamber does not, however, subscribe to the notion that twenty-one days under the particular circumstances of this case is a sufficient period of advance disclosure to provide the Defence with a fair opportunity to effectively exploit the witnesses' unredacted statements and identification data to formulate an effective cross-examination. The exigencies of this particular case require that the Prosecutor make the relevant disclosures at least thirty-five days before the testimony of a given witness. Recalling the manner in which the Defence described it would use the data, the Chamber believes that the rights of the accused to a fair trial, complete with the right tools for effective cross-examination, will be adequately served. E. CONCLUSION 23. For all the foregoing reasons, the Chamber concludes that the terms "sufficient time prior to trial" must be informed and interpreted through the filter of the main object and purpose of Rule 69 and of the overall scheme of the Tribunal's Statute to equally serve the rights of the accused to a fair trial, including the right to be provided information for effective cross-examination of the witnesses against him, and the mandate of the Tribunal to provide meaningful protection for vulnerable victims and witnesses. Deference to the fundamental rules of statutory construction requires that the Chamber refrain from making an order, which although consistent with the unambiguous letter of Rule 69 (C), does violence to its spirit by resulting in a practical situation that is repugnant to the object and purpose of the relevant Statutes and Rules of the Tribunal.

ICTR • 387 24. Accordingly, the Prosecutor shall be required to disclose unredacted statements and other witness-identifying data, including name, address, age, ethnicity, etc., on a rolling basis to be measured from the date of the scheduled date on which a witness is to appear before the Tribunal to testify, The Prosecutor shall provide such information no later than thirty-five days before the date of testimony of a particular witness, or when the witness comes under the protection of the Tribunal, whichever is earlier. 25. In making this order, where disclosure is done on a rolling basis measured from the date of testimony rather than in advance of trial, the Chamber is acutely aware that it has departed from the strict letter of Rule 69 (C). Such a departure is eminently justified when it is done to avoid a result that is repugnant to the intent of providing meaningful protection for victims and witnesses, which intent was the subtonic of the drafters of the Statute and Rules of the Tribunal concerning witness protection. Such an order in no way abrogates the Accused's right to a fair trial. Rather, it invigorates the Chamber's broad discretion under Rule 69 (A) to strike the right balance, respecting the right of the accused to effective cross-examination of the witnesses against him, while providing protection to vulnerable witnesses, some of whom might not testify absent this very limited protection in the form of delayed disclosure of their identities. 26. Accordingly it is 27. ORDERED that the Prosecutor disclose to the Defence the identity of her protected victims and witnesses as well as their non-redacted statements, no later than thirty-five days before the protected witness is expected to testify at trial, or until such time as the said protected victims or witnesses are brought under the protection of the Tribunal, whichever is earlier. 28. The foregoing constitutes the decision and order of the Chamber. 29. Judge Dolenc dissents from the decision and order of the Chamber and appends his separate opinion. SEPARATE DISSENTING OPINION OFJUDGE PAVEL DOLENC ON THE DECISION AND SCHEDULING ORDER ON THE PROSECUTION MOTION FOR HARMONISATION AND MODIFICATION OF PROTECTIVE MEASURES FOR WITNESSES 1. I have had the opportunity to review the Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses issued by the Majority of Trial Chamber III (the "Scheduling Order"), and respectfully dissent. 2. In the Harmonisation Decision of 29 November 2001, Trial Chamber III ruled that the identifying data of protected prosecution witnesses should not be disclosed to the Defence until further order. In the Scheduling Order, the Majority of the Chamber modifies the Harmonisation Decision, deciding that the Prosecutor shall disclose to the Defence the identity of its protected witnesses and their non-redacted statements not later than 35 days before the date of expected testimony or until the witnesses are brought under the protection of the Tribunal, whichever is earlier. 3. The Scheduling Order departs from the language of Rule 69(C), which requires that the identity of the protected prosecution witnesses shall be disclosed prior to trial. The Majority reasons that departure from the letter of this provision is justified by the specific circumstances of this case and that the application of the plain language of Rule

388 • Defense in International Criminal Proceedings 69 (C) would unreasonably compromise the safety and security of witnesses without advancing the Accused's rights. In the view of the Majority, the appropriate interpretation of the Statute and the Rules requires a balancing of two equally important aims: the Accused's right to a fair trial and specifically to a full cross-examination; and the effective protection of victims and witnesses. This balancing of the two interests results in the Majority's conclusion that disclosure may be delayed until after commencement of trial. 4. I respectfully disagree with this interpretation and application of the Statute and Rules. It is my further view that the Majority's conclusion, that disclosure of the identity of all witnesses prior to trial would render witness protection ineffective, is incorrect. 5. Finally, in my opinion, the Scheduling Order is inconsistent with Rule 82 (A) and runs contrary to the Chamber's assertion at paragraph 25 of the Harmonisation Decision that the Accused would not be prejudiced by harmonisation. This was the basis upon which I agreed to the Harmonisation Decision. That Decision did not prejudice the existing rights of the Accused and did not adversely affect the preparation of the Defence. Pursuant to the Harmonisation Decision, each of the Accused would have received disclosure at the same time or earlier than if he were being tried separately. The Majority Decision reverses this situation, as two of the Accused will now be receiving disclosure later than they could have expected it prior to joinder. 6. An Accused's right to the minimum procedural guarantees, which are enshrined in Article 20 (4) of the Statute and which constitute part of a fair trial, must be afforded more legal significance than the protection of victims and witnesses. Moreover, the Accused's minimum rights may not be "balanced" against the interests of witness protection as proposed in paragraphs 6 and 16 of the Scheduling Order.

7. In this dissent, I will explain my understanding of the applicable provisions of the Statute and Rules. I will give the terms their ordinary meaning, considered within the context of the object and purpose of the Statute and Rules. In my view, the resulting interpretation is neither ambiguous nor obscure; nor does it lead to an unreasonable result. I will then apply supplementary methods of interpretation to confirm the meaning derived from the grammatical and teleological interpretation. 8. This separate opinion is limited to the question of the disclosure of the identity of protected victims and witnesses, since this is the scope of Rule 69 (C). However, the same reasoning necessarily applies to the order for disclosure of witnesses' unredacted statements, which inevitably contain identifying information. The Statute 9. The Statute both guarantees the rights of the Accused and provides for the protection of witnesses. A full understanding of the relationship between these two objectives must be based on an analysis of Articles 19, 20, and 21 of the Statute. 10. Pursuant to Articles 19 (1) and (4) and Article 20(2), a Trial Chamber must assure a fair, public, and expeditious trial. These rights of the Accused are developed in Articles 20 (4) (b) and (e), which require that the Accused have the right to adequate time to prepare his defence and the right to examine the witnesses against him. 11. Article 19 (1) states that the Tribunal "shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the [Rules]." In doing so, the

ICTR • 389 Trial Chamber is obliged to pay "full respect" to the rights of the Accused and "due regard" to the protection of victims and witnesses. This language indicates that the rights of the Accused must prevail over the protection of witnesses. 12. Article 21 of the Statute directs the Tribunal to create Rules for the protection of victims and witnesses. There are no specific witness protection provisions in the Statute itself. Rather, the Statute instructs the Tribunal to adopt rules, inter alia, for the conduct of in camera proceedings and for the protection of a victim's identity. This broad instruction to create rules stands in stark contrast to the detailed provisions guaranteeing the rights of the Accused in Article 20 of the Statute. The distinction lends further support to the interpretation, derived from the language of Article 19(1), that the rights of the Accused are paramount. 13. The interrelationship between the rights of the Accused and the protection of witnesses is also apparent in Article 20(2), which expressly states that the right to a fair and public hearing is subject to Article 21. It is easy to envisage how witness protection measures may infringe the Accused's right to a public trial. Indeed, such exceptions are consistent with Article 21, which requires the Tribunal to create Rules for the conduct of in camera proceedings and for the protection of victim's identities, and with Article 19 (4), which permits closed-session proceedings in accordance with the Rules. Moreover, it is generally accepted in both international and national criminal law that the public nature of the trial may sometimes be compromised, inter alia, to protect victims of crime. 14. However, the Accused's right to a fair trial may not be limited for reasons of witness protection. Indeed, the Tribunal has an affirmative obligation, pursuant to Article 19 (1), to ensure a fair trial with "full respect for the rights of the Accused." Moreover, Article 20 (3), which assures the presumption of innocence and Article 20(4), which sets out other minimum guarantees, are strikingly unencumbered by any reference to witness protection. These minimal guarantees are non-negotiable and cannot be balanced against other interests. The use of the word "minimum" demonstrates that these enumerated rights are an essential component of every trial. 15. It is therefore logical to conclude that while measures designed to protect witnesses may limit the Accused's right to a public trial, witness protection measures cannot encroach on the minimal guarantees of fair trial enumerated in Articles 20 (3) and (4). The Rules

16. Rules 69 and 75 were developed pursuant to the direction in Article 14 and 21 that the Tribunal adopt Rules for the protection of victims and witnesses. Rule 69 deals specifically with witness protection in relation to the disclosure of witness identity to the Accused, while Rule 75 is concerned generally with the protection of victims and witnesses. 17. Rule 75 grants the Chamber the power to order appropriate measures to safeguard the privacy and security of victims and witnesses, provided that the measures are "consistent with the rights of the Accused." While Rule 75 (A) is broadly framed, its focus is apparent from the enumerated measures in Rules 75 (B) and (C). The objective of Rules 75 (B) (i) and (ii) is to protect the identity of the victim from disclosure to the public or to the media. Rules 75(B) (iii) and 75(C) are concerned with measures to prevent retraumatisation of witnesses, through closed-circuit television and judicial control over the manner of questioning.

390 • Defense in International Criminal Proceedings 18. In exceptional circumstances, a Trial Chamber may, pursuant to Rule 69 (A), allow the Prosecutor to conceal from the Accused the identity of a witness who may be at danger or risk. Unless such an order for witness protection has been made, Rule 67 requires the Prosecutor to notify the Defence of the names of her witnesses "as early as reasonably practicable and in any event prior to the commencement of the trial." In the absence of a witness protection order to the contrary, the Prosecutor must also disclose, pursuant to Rule 66 (A) (ii), her unredacted witness statements no later than 60 days prior to the date set for trial. These statements inevitably include identifying particulars of the protected witnesses. 19. Rule 69(C) requires, even when the Prosecutor has been permitted to temporarily conceal the witnesses' identities from the defence pursuant to Rule 69 (A), that the identities be disclosed to the Defence "prior to the trial." Rule 69 (C), however, is expressly subject to Rule 75. In my opinion, the specific provisions in Rules 66 (A) (ii), 67(A) and 69(C), all of which require disclosure of identity prior to the trial, must take precedence over the general language in Rule 75 (A), pursuant to the interpretive principle lex specialis derogat legi generali. To interpret Rule 75 to permit the Prosecutor to withhold the identities of witnesses from the Defence would run contrary to the clear instructions of Rule 69 (C), which specifically addresses the protection of victims and witnesses in relation to disclosure to the Defence. Moreover, a narrow interpretation of Rule 75 (A) is consistent with the list of suggested measures in Rule 75 (B), which is exclusively addressed to protecting witnesses' identities from the public and media and to protecting witnesses from re-traumatisation. Nothing in the enumerated list suggests, either directly or by analogy, that Rule 75 may be used to conceal the identity of a witness from the Defence. 20. Most importantly, Rule 75(A) is itself expressly limited to measures that are "consistent with the rights of the Accused." These rights are minimum guarantees set out in Article 20 (4) of the Statute, which cannot be limited for reasons of witness protection. As discussed above, the Rules anticipate that disclosure of witness identities and statements be made prior to the commencement of trial. 21. The Majority is of the opinion that non-disclosure after the commencement of trial "in no way abrogates the Accused's right to a fair trial" (Scheduling Order, paragraph 25). In my view, non-disclosure of this information will compromise the Accused's right to prepare for trial and his right to examine the witnesses against him. In particular, I accept the arguments raised by the Defence that in order to prepare for the cross-examination of the first witnesses, Counsel must have a complete understanding of the evidence to be given by and the credibility of the later witnesses. This is especially important when two or more witnesses will testify about the same events. Counsel must be able to explore any contradictions and variations in the witnesses' accounts. In order to do so, the Defence must know who these witnesses are. 22. Therefore, I respectfully disagree with the Majority and find that disclosure of witness statements and witness identities must be made prior to the commencement of trial in accordance with the Statute and Rules. 23. The Majority accepts that its conclusion is a departure from the language of the Rules, but finds that such a deviation is necessary as a result of a perceived contradiction between the language of Rule 69(C) and its object and purpose. I disagree with this conclusion.

ICTR • 391 24. First, I do not accept that there is any conflict or ambiguity in the language of Rule 69 (C), which could permit the Majority to look beyond their plain meaning. Rule 69 (C) presents a codified limitation on the Chamber's discretion. This interpretation is supported by the French version of the Rule, which provides: •

(C) Sous reserve des dispositions de l'Article 75, I'identite des victimes ou des temoins vises au paragraphe A) doit etre divulguee avant le commencement du proces et dans des delais permettant a la defense et au Procureur de se preparer, (emphasis added)

The French text clearly indicates the interrelationship between paragraphs (A) and (C) of this Rule. 25. Similarly, I do not understand how disclosure before trial would "render nugatory" the object of allowing adequate time for the preparation of the defence, as the majority posits (Scheduling Order, paragraph 6). On the contrary, disclosure prior to trial advances the objective of securing the rights of the Accused. 26. Second, I also disagree that requiring disclosure to be completed prior to the commencement of trial would result in an "absurd and unintended compromise" of the safety of witnesses, as alleged in paragraph 21 of the Scheduling Order. In this regard, I do not accept the Majority's premise that pre-trial disclosure is inextricably linked to witness protection. The deadline set for disclosure of witness identities to the Defence determines neither when the Prosecutor should advise the WVSS-P of the witness identities nor when the WVSS-P should implement witness protection measures. The Prosecutor should provide witness information to the WVSS-P well in advance of the commencement of trial so as to facilitate the work of that section. 27. The Majority suggests a false dichotomy between "rolling disclosure" measured from the date of scheduled testimony and what it calls a "single omnibus disclosure" prior to the commencement of trial. Pre-trial disclosure, in conformity with the Rules, could also be made on a rolling basis. In this manner, the Prosecutor could provide witness information to the WVSS-P on an ongoing basis, and the WVSS-P could continually place witnesses under its protection. Preferably, all witnesses would be under the protection of the Tribunal by the time that the final disclosure is made to the Defence before the start of the trial. From the consultation with the WVSS-P, I am convinced that this Section has the resources to provide protection to a large number of witnesses. As long as the Prosecutor furnishes the necessary information in sufficient time for the WVSS-P to make the labour-intensive arrangements at the outset, pre-trial disclosure could be managed in the same manner as the "rolling disclosure" during the trial. 28. Finally, I cannot accept that "Rule 69 exists because it was anticipated that there are potential sources of risk to the safety of prosecution witnesses" (Scheduling Order, paragraph 21). General sources of potential risk to a witness may be grounds for protective measures pursuant to Rule 75. To order non-disclosure of witness identity to the Defence under Rule 69 (A), a Trial Chamber must be satisfied that specific exceptional circumstances demonstrate that disclosure to the Defence of the witness' identity may put the witness in danger or at risk. 29. Therefore, disclosure of witnesses' identities and statements must be made before the commencement of the trial. In reaching this conclusion, I agree with the reasoning of Trial Chamber I of the ICn:, which explained in Prosecutor v. Blaskic (IT-95-14-

392 • Defense in International Criminal Proceedings T), Decision on the Application of the Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses, (5 November 1996), at para. 24: The Philosophy which imbues the Statute and the Rules of the Tribunal appears clear: the victims and witnesses merit protection, even from the Accused, during the preliminary proceedings and continuing until a reasonable time before the start of the trial itself; from that time forth, however, the right of the Accused to an equitable trial must take precedence and require that the veil of anonymity be lifted in his favour, even if the veil must continue to obstruct the view of the public and the media. 30. For the foregoing reasons, the Chamber should have required that the Prosecutor disclose witness identities to the Defence prior to the commencement of the trial. Therefore, a Trial Chamber's discretion to fix an appropriate date for disclosure to the Defence is limited to the determination of what period prior to the trial is adequate for the preparation of the defence. This period should be fixed on a case-by-case basis, depending on the specific circumstances of the case, but must be completed prior to the commencement of the trial.

Prosecutor \t. Casimir Bizimungu etal.-Decision on Prosper Mugiraneza's Motion Pursuant to Rule 71 for Deposition ofaWitness, Case No. ICTR-99-50-T, November 4, 2004

CONSIDERING the "Prosecutor's Response to Prosper Mugiraneza's Motion Pursuant to Rule 71 for Deposition of a Witness," filed on 21 September 2004 (the "Response"); CONSIDERING the Statute of the Tribunal (the "Statute") and the Rules of Procedure and Evidence (the "Rules"), particularly Rules 71 and 90 of the Rules; NOW DECIDES the matter based solely on the briefs of the parties pursuant to Rule 73 (A) of the Rules. SUBMISSIONS OF THE PARTIES The Defence Motion

1. The Defence moves the Chamber to enter an order for a videotaped Deposition of Witness CR pursuant to Rule 71 and, to that end, for Counsel to be allowed to interview the witness while the latter is in Arusha as a witness in a different case. 2. According to the Defence, based on information available to it, Witness CR is believed to have been scheduled to appear in the case of Karamera et. al. The Defence further asserts that witness CR has substantial exculpatory information and is a potential witness for the Defence of Mugiraneza. 3. The Defence contends that the cost savings to the Tribunal constitute sufficiently "exceptional circumstances," to justify the taking of a deposition, as required by Rule 71. According to the Defence, "it is no secret that funds in this Tribunal are short." It is argued that this "shortage of funds creates an exceptional circumstance." In support of its contention, the Defence cites a letter from the Secretary-General to the Presidents of the General Assembly and Security Council which noted the shortage of funds being faced by both Tribunals. 4. Counsel asserts that allowing a Deposition will save the Tribunal the cost of sending Defence investigators and lawyers to interview the witness, and of transporting him from

ICTR • 393 his residence in Europe to Arusha. Should the present Motion be granted, Counsel estimates that he will spend no more than three hours interviewing the witness and does not expect direct examination to last longer than 2 hours. 5. In addition to there being exceptional circumstances to warrant the taking of a deposition, Rule 71 also requires that the deposition be in the interest of justice. The Defence states that as typical requests for depositions are pre-trial and at the request of the Prosecutor "Trial Chambers often find that regardless of the exceptional circumstances, the deposition is not in the interest ofjustice because ... [it] would interfere with the Accused's right to confront the witnesses against him." Further, the Trial Chamber in Niyitigeka held that it was not in the interests ofjustice to authorise the deposition of the prosecution witness directly incriminating the accused outside his presence and without his consent. 6. Counsel states that the instant situation is different, in that it is the Defence that is seeking the deposition, and that there is no reason why his client or any other accused in this case could not attend the proceedings. Further, the Defence points out that the evidence hereby being sought is exculpatory.

7. The Defence cites a Decision in the case of Bagosora in support of the present Motion. In the latter case, the Chamber used the three-part test developed in the Celebici case for testimony by video-link. The test required that: (i) the testimony of the witnesses is sufficiently important to make it unfair to proceed; (ii) the witness is unable or unwilling to come to the Tribunal; and (iii) that the accused not be prejudiced in his right to confront the witness. The Bagosora decision also added the "practical consideration factor." 8. Applying this test, the Defence submits that the Chamber should find that the proposed deposition is in the interests ofjustice for the following reasons: (i) The witness served with the Accused as a member of the Interim Government. He has given the. Prosecutor a statement which is exculpatory, and the Prosecutor's own witness synopsis asserts that the witness can give exculpatory evidence. The witness will be able to give the Chamber a view of the "workings of the Interim Government" which the Prosecutor has not done, and "which by dropping him as a witness, has chosen not to present to the Trial Chamber. (ii) Regardless of the witness' willingness to travel to Arusha to testify in the present case, he will be here on a related case. (iii) The Accused will not be prejudiced in his right to confront the witness seeing as the witness is being called by, and in, his Defence and he would be able to attend the deposition. 9. With regard to the "practical consideration factor," as stated in the Bagosora Decision, logistical problems and the cost of transporting necessary court staff and lawyers to Rwanda for the deposition were among the factors considered by the Chamber. The Defence submits that the practical considerations in the instant case are the same as those creating the exceptional circumstances, and that is the minimal cost of the dep-

394 • Defense in International Criminal Proceedings

osition vis-a-vis the cost of having the witness interviewed by the Defence at his home, flying him to Arusha to testify and having him housed and protected while he is here. 10. In balancing the various interests and practical considerations, the Defence asserts that Witness CR is the "perfect witness to testify by deposition under the circumstances set out above," and accordingly urges the Chamber to grant the present Motion. The Prosecutor's Response

11. The Prosecutor states that the Defence has not demonstrated the existence of exceptional circumstances or that it would be in the interest ofjustice for the deposition of CR to be taken. The Prosecutor therefore submits that the criteria set out in Rule 71 have not been met. 12. Citing the case of Kupreskic, the Prosecutor submits that Rule 71 should be invoked only "as intended, namely as an exception to the general rule that witnesses should be heard directly by the Trial Chamber ... [so that] the Trial Chamber is best positioned to assess the witness' demeanour and thereby evaluate" his or her credibility. 13. The Prosecutor further submits that the Defence has not, "demonstrated that any efforts to procure the said witness has or will be frustrated" due to a lack of funds. It is contended that' the Defence submissions with regard to 'the lack of funds is therefore not grounded on facts, and "is hypothetical and borders on frivolity." The Prosecutor also notes that, the shortage of funds is the only exceptional circumstance cited by the Defence in support of the present Motion. 14. It is argued that the Defence has equally not satisfied the test developed in the Celebici case with regard to this deposition being in the "interests ofjustice." Although the witness was originally on the Prosecutor's list, he has since been dropped as a witness and it is "entirely up to the Defence to decide whether to call him as a Defence witness or not." The Defence has also not stated whether the witness is "unwilling or unavailable" to testify orally before the Tribunal. Finally, the Prosecutor submits, the "practical consideration" factor does "not come into play in the instant situation." 15. The Prosecutor further submits that the Defence has failed to meet any of the "mandatory requirements" set out in Rule 71 (B). The Prosecutor notes that the Defence has not indicated the whereabouts of the witness nor has he specified the date on which he intends the deposition to be recorded. Rather, the Defence has vaguely asserted that "based on information and belief, witness CR is scheduled to appear in the Government I case." 16. In this regard, the Prosecutor informs the Chamber that while witness CR is indeed scheduled to testify in the case of Karamera et.al., this is not likely to happen in the "next two sessions." The Prosecutor also notes that the "new judicial calendar for Trial Chamber III does not list [the] Karamera et.al. case for trial." 17. In conclusion, the Prosecutor submits it is clear from the reasons set out in his Response that the instant Motion is frivolous and an abuse of process. The Prosecutor accordingly prays that the Motion be dismissed without costs. DELIBERATIONS 18. Rule 71 provides, in relevant part, that:

ICTR • 395 (A) At the request of either party, a Trial Chamber may; in exceptional circumstances and in the interests ofjustice, order that a deposition be taken for use at trial, and appoint for that purpose, a residing Officer. (B) The motion for the taking of a deposition shall be in writing and shall indicate the name and whereabouts of the witness whose deposition is sought, the date and place at which the deposition is to be taken, a statement of the matters on which the person is to be examined, and of the exceptional circumstances justifying the taking of the deposition. [ ... ]

(C) The Presiding Officer shall ensure that the deposition is taken in accordance with the Rules and that a record is made of the deposition, including crossexamination and objections raised by either party for decision by the Trial Chamber. He shall transmit the record to the Chamber. 19. The general rule on the testimony of witnesses is stated in Rule 90: (A) Witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in Rule 71. 20. The Trial Chamber is therefore vested with the discretion to order a deposition only where there are exceptional circumstances and where the deposition would be in the interests ofjustice. Paragraph (B) as cited above further stipulates that the request for a Deposition must state the name and whereabouts of the witness, the date and place of deposition, a statement of matters for examination and of the exceptional circumstances justifying the deposition. 21. The Chamber first examines whether "exceptional circumstances" exist, as required by Rule 71 (A), to justify the taking of a deposition. Past decisions of this Tribunal have recognized that physical infirmity caused by age ill-health, which makes travel to the Tribunal difficult or impossible, may constitute an exceptional circumstances justifying the taking of a deposition 22. The question for determination by the Chamber is whether shortage of funds and the savings to be made by the taking of a deposition constitute 11 exceptional circumstances 11 within the meaning of Rule 71. As the Defence rightly points out, this is a novel argument in so far as the jurisprudence of this Tribunal is concerned. While the categories of 11 exceptional circumstances" warranting the taking of a deposition are not closed, the Chamber is not satisfied that on the facts of the instant case, the requirement of "exceptional circumstances" under Rule 71 has been met. 23. In the instant case, Counsel has not shown how the shortage of funds being faced by the Tribunal will affect his ability to have Witness CR testify in defence of his client. Indeed the Chamber does not consider the shortage of funds to be an obstacle to the testimony of the said witness. While the Chamber is mindful of the Defence's concern with judicial economy and the overall cost savings to the Tribunal, the Chamber does not support the view that a shortage of funds can, in and of itself, constitute "exceptional circumstances" within the meaning of Rule 71. 24. Applying the "interest ofjustice" test, as developed in Delalic and cited in Bagosora (reproduced in paragraph 7, above), the Defence has demonstrated that the testimony

396 • Defense in International Criminal Proceedings

of Witness CR is "sufficiently important" to the Defence of the Accused in particular, and to the case as a whole. As the moving Party, the Defence has also shown that the Accused will not be prejudiced in his right to confront the witness. While the cost savings to the Tribunal may constitute a "practical consideration," there is nothing in the instant application to suggest that Witness CR is "unable or unwilling" to testify at the seat of the Tribunal. 25. The Chamber notes that the present application does not indicate the whereabouts of the witness nor does it specify the date for the intended deposition, and as such fails to meet the formal requirements of Rule 71 (B). Further, the Appeals Chamber has directed that the case of Karamera et.al be commenced de novo, and as a result it is unclear when Witness CR will indeed be in Arusha to testify in the said case. 26. In light of the considerations detailed above, the Chamber finds that the instant application is unmeritorious and does it meet the formal requirements of the Rules. FOR THE FOREGOING REASONS, THE CHAMBER HEREBY DENIES the Motion; DIRECTS the Registrar, pursuant to Rule 73(F) of the Rules, to deny the Defence the payment of any fees or costs associated with this Motion.

The Prosecutor \t. Theoneste Bagosora-Decision on the Joint Defense Motion for an Update of the Prosecutor's Pre-Trial Brief, Case No.ICTR-98-41-T, November 2, 2004

INTRODUCTION 1. On 23 May 2002, the Chamber ordered the Prosecution to amend its Pre-trial Brief to identify the points in the Indictments to which each of its witnesses would testify. The Prosecution filed its revised brief on 7 june 2002. The Chamber later granted two Prosecution requests to vary the list of witnesses, adding witnesses including Witness AAA, ABQ, AFj, Nkole, Nowrojee, XBG, XBH, and XBM. SUBMISSIONS 2. The Defence requests the Prosecution to update its Pre-trial Brief by specifying the points in the Indictment to which Witness AAA, ABQ, AFj, Nkole, Nowrojee, XBG, XBH, and XBM have testified. According to the Defence, the Chamber's decision of 23 May 2002 applies to the added witnesses. By failing to specify which points in the Indictment the added witnesses are addressing, the Prosecution is depriving the Accused of his right to be informed of the nature and cause of the charges against them under Article 20 (4) (a). The motion also argues that amending the Pre-trial Brief will promote judicial economy by narrowing the scope of evidence, in a way that is necessary for the Defence, if it should file motions for acquittal at the close of the Prosecution's case. 3. The Prosecution argues that it has complied with the Chamber's prior order with respect to the added witnesses in its requests to vary the prosecution witness list. Secondly, the motion is moot because the Defence failed to raise this matter prior to cross-examining the witnesses at issue. The Prosecution further observes that the Defence does not need a revised Pre-trial Brief to file its motions for acquittal as it will have heard the evidence of the added witnesses and knows the factual charges in the Indictments.

ICTR • 397 DELIBERATIONS 4. Under Rule 73 bis (B) (iv) (c), the Chamber may order the Prosecutor to identify "the points in the indictment on which each witness will testify." In its decision of 23 May 2002, the Chamber objected to the fact that the Prosecution's Pre-trial Brief merely referred to the counts of the Indictments, which did not give sufficient notice to the Accused of the content of the witness's testimony. The Chamber directed the Prosecution to indicate to which "events, circumstances, or paragraphs" in the Indictments the witnesses would be testifying. 5. In its motions to vary the witness list, the Prosecution has sufficiently detailed the content of the testimony in compliance with the requirements of Rule 73 bis and the Chamber's previous order. The Chamber also observes that the purpose of the Pre-trial Brief is to notify the Accused and their Counsel of the nature of the testimony witnesses will give so that they can prepare for the examination. With regard to evidence that was actually presented, the closing brief will serve the purpose for which the Defence seeks the update. The Rules provide for this type of summation at the close of all the evidence, not the close of the Prosecution's case. It would not promote the interests ofjudicial economy to require the Prosecution to amend the Pre-trial Brief at this late date. FOR THE ABOVE REASONS, THE CHAMBER DENIES the joint Defence motion.

The Prosecutor \t. Theoneste Bagosora-Decision on Bagosora Motion for Protection of Witnesses, Case No.ICTR-98-41-T, September 1,2003

BEING SEIZED OF the "Requctc de Theoneste Bagosora en emission de mesures de protection de temoins," filed on 18 June 2003; NOTING that the Prosecution has made no submissions in opposition; HEREBY DECIDES the motion. 1. This motion for special measures protecting the identity of witnesses to be called on behalf of the Defence for Bagosora is brought under Article 21 of the Statute and Rule 75 of the Rules of Procedure and Evidence ("the Rules). Article 21 of the Statute obliges the Tribunal to provide in its Rules for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in-camera proceedings and the protection of the victim's identity. Rule 75 of the Rules elaborates several specific witness protection measures that may be ordered, including sealing or expunging names and other identifying information that may otherwise appear in the Tribunal's public records, assignment of a pseudonym to a witness, and permitting witness testimony in closed session. Subject to these measures, Rule 69(C) requires the identity of witnesses to be disclosed to the Prosecution in adequate time for preparation. 2. Measures for the protection of witnesses are granted on a case by case basis. The jurisprudence of this Tribunal and of the International Criminal Tribunal for the Former Yugoslavia requires that the witnesses for whom protective measures are sought must have a real fear for the safety of the witness or her or his family, and there must be an objective justification for this fear. These fears may be expressed by persons other than

398 • Defense in International Criminal Proceedings

the witnesses themselves. A further consideration is trial fairness, which favours similar or identical protection measures for Defence and Prosecution witnesses. 3. The Defence for Bagosora has submitted that Defence witnesses do fear for their safety and that these fears are justified by the dangers and insecurities described in the reports ofjournalists and human rights organizations attached as annexes to the motion. The Chamber follows previous decisions regarding protection. for defence witnesses and accepts the existence of these fears amongst Defence witnesses, and their objective justification? Accordingly, the Trial Chamber finds that the conditions for ordering witness protection measures are satisfied. 4. Many of the measures sought by the Defence for Bagosora are substantially identical to those previously ordered in respect of Prosecution witnesses; the interests of trial fairness and administrative simplicity strongly favour the adoption of identical measures, which are enumerated below in language customarily adopted in such orders? 5. Some measures sought by the Defence for Bagosora go beyond those in effect for Prosecution witnesses. First, there is the request in paragraph (A) that the Registry, having received the confidential information regarding Defence witnesses, take the necessary measures to ensure that these witnesses are able to come to Arusha to testify. Similarly, the Registrar is requested to require the co-operation of States in which Defence witness reside in accordance with Article 28 of the Statute. The Chamber is of the view that these measures need not be the subject of a special direction in a witness protecti9n order; they are already necessary corollaries of the mandate of the Registry, and the obligations of States, as defined in the Statute and the Rules. In the absence of specific instances of non-cooperation, there is no need for directions to comply with the obligations of States under Article 28. Second, paragraph (C) requests that confidential information only be transmitted by the Registry to officials of the Witness and Victims Support Section. This request is rejected as unworkable and unnecessary. Members of the Registry who are not part of the Section may well be called upon to undertake essential efforts in respect of these witnesses, both for their protection and their appearance. Confidential information is handled by the Registry in a manner that restricts its dissemination to those who require such access for the proper exercise of their duties. FOR THE ABOVE REASONS, THE CHAMBER HEREBY ORDERS that: 1. The Defence for Bagosora shall be permitted to designate pseudonyms for each of the witnesses for whom it claims the benefits of this Order, for use in trial proceedings, and during discussions between. the Parties in proceedings. 2. The names, addresses, whereabouts, and other identifying information concerning the protected witnesses shall be sealed by the Registry and not included in any non confidential Tribunal records, or otherwise disclosed to the public. 3. In cases where the names, addresses, locations and other identifying information of the protected witnesses appear in the Tribunal's public records, this information shall be expunged from the said records. 4. The names and identities of the protected witnesses shall be forwarded by the Defence for Bagosora to the Registry in confidence, and they shall not be disclosed to the Prosecution unless otherwise ordered.

ICTR • 399 5. No person shall make audio or video recordings or broadcastings and shall not take photographs or make sketches of the protected witnesses, without leave of the Chamber or the witness. 6. The Prosecution and any representative acting on its behalf, shall notify the Defence for Bagosora in writing prior to any contact with any of its witnesses and, if the witness consents, the Defence for Bagosora shall facilitate such contact.

7. The Prosecution team in this case shall keep confidential to itself all information identifying any witness subject to this order, and shall not, directly or indirectly, disclose, discuss or reveal any such information. 8. The Prosecution shall provide the Registry with a designation of all persons working on the Prosecution team in this case who will have access to any identifying information concerning any protected witness, and shall notify the Registry in writing of any such person leaving the Prosecution team and to confirm in writing that such person has remitted all material containing identifying information. 9. The Defence for Bagosora may withhold disclosure to the Prosecution of the identity of the witness and temporarily redact their names, addresses, locations and other identifying information from material disclosed to the Prosecution, in accordance with paragraph 10 below. 10. The information withheld in accordance with paragraph 9 shall be disclosed by the Defence for Bagosora to the Prosecution thirty-five days prior to commencement of the Defence case, in order to allow adequate time for the preparation of the Prosecution pursuant to Rule 69(C) of the Rules.

The Prosecutor \t. Jean Mpambara-Decision on Protection of Defense Witnesses, ICTR-200165-1, May 4, 2005

1. The Defence motion for special measures protecting the identity of its witnesses is brought under Article 21 of the Statute and Rule 75 of the Rules of Procedure and Evidence. Article 21 of the Statute obliges the Tribunal to provide in its Rules for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in-camera proceedings and the protection of the victim's identity. Rule 75 of the Rules elaborates several specific witness protection measures that may be ordered, including sealing or expunging names and other identifying information that may otherwise appear in the Tribunal's public records, assignment of a pseudonym to a witness, and permitting witness testimony in closed session. Subject to these measures, Rule 69 (C) requires the identity of witnesses to be disclosed to the Prosecution in adequate time for preparation. 2. Measures for the protection of witnesses are granted on a case by case basis. The jurisprudence of this Tribunal and of the International Criminal Tribunal for the Former Yugoslavia requires that the witnesses for whom protective measures are sought must have a real fear for their safety or that of their family, and that there must be an objective justification for this fear. These fears may be expressed by persons other than the witnesses themselves. A further consideration is trial fairness, which favours similar or identical protection measures for Defence and Prosecution witnesses.

400 • Defense in International Criminal Proceedings 3. The Defence has submitted that its witnesses fear for their safety and that these fears are justified by the dangers and insecurities described in the reports ofjournalists and human rights organizations attached as annexes to the motion. The Chamber follows previous decisions regarding protection for defence witnesses and accepts the existence of these fears amongst Defence witnesses, and their objective justification. Accordingly, the Trial Chamber finds that the conditions for ordering witness protection measures are satisfied. 4. The measures sought by the Defence are substantially identical to those previously ordered in respect of Prosecution witnesses. The interests of trial fairness and administrative simplicity strongly favour the adoption of similar measures, which are enumerated below in language customarily adopted in such orders. FOR THE ABOVE REASONS, THE CHAMBER ORDERS that: (a) The Defence shall be permitted to designate pseudonyms for each of the witnesses for whom it claims the benefits of this Order, for use in trial proceedings, and during discussions between the Parties in proceedings. (b) The names, addresses, whereabouts, and other identifying information concerning the protected witnesses shall be sealed by the Registry and not included in any non-confidential Tribunal records, or otherwise disclosed to the public. (c) In cases where the names, addresses, locations and other identifying information of the protected witnesses appear in the Tribunal's public records, this information shall be expunged from the said records. (d) The names and identities of the protected witnesses shall be forwarded by the Defence to the Registry in confidence, and they shall not be disclosed to the Prosecution unless otherwise ordered. (e) No person shall make audio or video recordings or broadcastings and shall not take photographs or make sketches of the protected witnesses, without leave of the Chamber or the witness. (f) The Prosecution and any representative acting on its behalf, shall notify the Defence in writing prior to any contact with any of its witnesses and, if the witness consents, the Defence shall facilitate such contact. (g) The Prosecution team in this case shall keep confidential to itself all information identifying any witness subject to this order, and shall not, directly or indirectly, disclose, discuss or reveal any such information. (h) The Prosecution shall provide the Registry with a designation of all persons working on the Prosecution team in this case who will have access to any identifying information concerning any protected witness, and shall notify the Registry in writing of any such person leaving the Prosecution team and to confirm in writing that such person has remitted all material containing identifying information. (i) The Defence may withhold disclosure to the Prosecution of the identity of the witness and temporarily redact their names, addresses, locations and other identifying information from material disclosed to the Prosecution, in accordance with paragraph U) below.

ICTR • 401

U) The information withheld in accordance with paragraph (i) shall be disclosed by the Defence to the Prosecution thirty days prior to commencement of the Defence case, in order to allow adequate time for the preparation of the Prosecution pursuant to Rule 69(C) . Prosecutor \t. Aloys Simba-Decision on the Defense Motion to Recall Witness KEL for Further Cross-Examination, Case No. ICTR-01-76-T, October 28, 2004

BEING SEIZED OF the "Rcqucte de la Defense pour Ordonner une Nouvelle Comparution du Temoin de l'Accusation KEL en Vue de son Contre Interrogatoire a Huis Clos Conformcment aux Dispositions de l'Article 73 du RPP," filed on 7 October 2004; CONSIDERING the Prosecution's Response, filed on 12 October 2004; HEREBY DECIDES the motion. INTRODUCTION 1. Witness KEL testified from 7 to 9 September 2004. At the beginning of the crossexamination, Lead Counsel for the Defence stated that his Co-Counsel would "start the cross." At the close of the first day of the witness's cross-examination, Co-Counsel indicated that her Lead Counsel had one area to cover. The next day at the close of CoCounsel's cross-examination, she indicated that the Lead Counsel had "a very few short points." Lead Counsel indicated that his questioning would last only about 30 minutes. The Chamber noted that it was exceptional in the Chamber's practice to allow both Defence counsel to cross-examine a single witness but nonetheless allowed Lead Counsel to proceed, emphasizing that he had to "focus on the key issues" and "prioritize ... very, very strictly." 2. After a number of questions, the Defence indicated that it had one final question before moving into closed session. The Chamber indicated that the Defence should conclude its cross-examination and ask one final question. The Defence noted that it had not yet examined the witness in closed session, but added that "if the court decides otherwise we are going to abide by the Court's decision. There's no problem, Mr. President." The Chamber, noting that the Defence had already been given an extensive opportunity to cross-examine the witness, again asked the Defence to ask one final question. The Defence without further objection indicated that it had no further questions. SUBMISSIONS 3. The Defence seeks to recall Witness KEL to cross-examine him in closed session. The motion argues that, despite Lead Counsel's insistence, the Chamber did not permit him to ask the questions reserved for closed session. The Defence asserts that the Chamber implicitly granted Lead Counsel the right to conclude the cross-examination when the Defence indicated at the outset that Co-Counsel would start the cross-examination. In the Defence's view, it was deprived of the right to cross-examine the witness under Rule 85. Failure to correct this error will compromise the rights of the Accused. 4. The Prosecution argues that the Defence had sufficient time to question Witness KEL and that it has not shown good cause to recall him.

402 • Defense in International Criminal Proceedings DELIBERATIONS 5. In its recent decision in Bagosora et aI., the Chamber set forth the standard for recalling a witness: •

A party seeking to recall a witness must demonstrate good cause, which previous jurisprudence has defined as a substantial reason amounting in law to a legal excuse for failing to perform a required act. In assessing good cause, the Chamber must carefully consider the purpose of the proposed testimony as well as the party's justification for not offering such evidence when the witness originally testified. The right to be tried with undue delay as well as concerns ofjudicial economy demand that recall should be granted only in the most compelling of circumstances where the evidence is of significant probative value and not of a cumulative nature. For example, the Chamber has intimated in this case that the recall of a witness might be appropriate where a party demonstrates prejudice from an inability to put significant inconsistencies to a witness which arise from previously unavailable Rwandan judicial documents.

6. Pursuant to Rule 90(F) and (G), the Chamber has the authority to limit the examination of a witness to ensure the efficiency of the proceedings. The Chamber properly exercised this authority after extensive cross-examination by two Defence Counsel.

7. Contrary to the Defence's suggestions, the fact that Lead Counsel indicated that CoCounsel would "start the cross" does not mean that the Chamber implicitly authorized the Defence to conduct a second cross-examination. It was only at the end of CoCounsel's lengthy cross-examination that the Chamber allowed Lead Counsel to ask additional questions. Allowing two counsel to cross-examine a single witness is not the usual practice and requires the express approval of the Chamber. 8. When granting Lead Counsel the right to ask additional question, the Chamber emphasised that the second examination must be short and focused. Therefore, it is clear from the record that from the outset the Defence was aware that any subsequent questioning was discretionary and limited. Lead Counsel requested about thirty minutes, and the Chamber even allowed him to proceed for nearly forty minutes. At no point prior to the end of Lead Counsel's questioning was the Chamber given notice of the need for a closed session. When the Chamber asked the Defence to ask its last question the Defence stated that there was no problem and concluded its cross-examination. 9. Neither during the testimony of Witness KEL nor in its present motion has the Defence given any precise information about the purpose of further cross-examination in closed session. The motion only contains a vague reference to questions related to locations and the witness's personality. Absent further information, the Chamber cannot determine whether its decision to end cross-examination actually prejudiced the Defence. Consequently, the Defence has not shown that there is good cause to recall the witness. FOR THE ABOVE REASONS, THE CHAMBER DENIES the Defence motion.

ICTR • 403

The Prosecutor \t. Aloys Simba-Order for the Transfer of Detained Witnesses, Case No. ICTR01-76-T, February 17, 2005

1. Pursuant to Rule 90 bis (A) of the Rules" [a] ny detained person whose personal appearance as a witness has been requested by the Tribunal shall be transferred temporarily to the Detention Unit of the Tribunal, conditional on his return within the period decided by the Tribunal." Rule 90 bis (B) requires prior verification of two conditions for such an order: (i) The presence of the detained witness is not required for any criminal proceedings in progress in the territory of the requested State during the period the witness is required by the Tribunal; (ii) Transfer of the witness does not extend the period of his detention as foreseen by the requested State. 2. The Defence moves the Trial Chamber for an order authorizing the transfer to the Tribunal of eight witnesses known under the pseudonyms HBK, NG]2, HN], GG]l, RG]l, BGN3, BG]l, and KG]2, who are to testify for the Defence during the present trial session. All of these witnesses are currently detained in Rwandan prisons. 3. The Chamber recalls that the Defence has the burden of providing specific information that the conditions set out in Rule 90 bis (B) are met. In this connection the Chamber notes that the Defence does not provide official documentation from Rwandan authorities relating to these conditions, nor does it provide evidence of efforts to obtain such documentation. 4. The Chamber considers that it can only grant the Defence request if the requirements of Rule 90 bis (B) are met. However, it also notes that the Defence case is scheduled for completion by 30 March 2005. The Chamber finds that in these circumstances it should make an order for transfer, on the condition that prior to the transfer the Defence in cooperation with the Registry submit a report indicating that the conditions set forth Rule 90 bis (B) are satisfied. FOR THE ABOVE REASONS, THE CHAMBER DIRECTS the Defence in co-operation with the Registry to verify as soon as possible with the Rwandan authorities that the conditions identified under Rule 90 bis (B) are met and submit a report on this matter to the Chamber; and once this direction has been fulfilled ORDERS that the individuals designated under the pseudonyms HBK, NG]2, HN], GG]l, RG]l, BGN3, BG]l, and KG]2 be transferred as soon as practicable to the Tribunal's detention facilities in Arusha, for a period not to exceed 30 March 2005; REQUESTS the Government of Rwanda to comply with this order and arrange for the transfer in co-operation with the Registrar and the Tanzanian Government; INSTRUCTS the Registrar to: (A) Transmit this decision to the Governments of Rwanda and Tanzania; (B) Ensure the proper conduct of the transfer, including the supervision of the witnesses in the Tribunal's detention facilities;

404 • Defense in International Criminal Proceedings (C) Remain abreast of any changes which might occur regarding the conditions of detention provided for by the requested State and which may possibly affect the length of the temporary detention, and as soon as possible, inform the Trial Chamber of any such change.

Prosecutor \t. Theoneste Bagosora-Decision on Admission ofStatements of Deceased Witnesses, Case No. ICTR-98-41-T, January 19, 2005

INTRODUCTION

6. On 14 October 2004, the Prosecution declared its intention to file a motion for the admission into evidence of the statements of deceased witnesses, and that it would "like to rest the case at this time subject to the filing of a motion at the end of the day tomorrow at 5 o'clock." All Defence teams objected that the motion was untimely and procedurally improper. After argument, the Chamber reserved its decision. On 15 October 2004, at 2.18 p.m., the Prosecution filed the motion requesting the admission of the statements of fifteen deceased persons.

7. The Defence for Kabiligi has requested an extension of the time-limit for filing a response to the present motion, arguing that the Registrar's decision of 26 October 2004 to withdraw the legal aid assignment of Lead Counsel has impaired its ability to respond to various motions. Under Rule 92 bis (E) of the Rules of Procedure and Evidence ("the Rules"), an opposing party has seven days to respond to a motion to introduce statements under Rule 92 bis. As the motion was communicated to the Kabiligi Defence on 19 October 2004, the last day on which to respond was 26 October 2004. For that reason, the Registrar's decision had no impact on the ability of the Kabiligi Defence to respond and, accordingly, the request for extension of time is denied. SUBMISSIONS (i) Objections to the Motion as Untimely

8. The Defence argues that the motion is untimely and should be declared "moot ab initio." It asserts that the Prosecution was ordered to close its case by 15 October 2004 and that, accordingly, Prosecution evidence cannot be received after that date. In light of the time-limits prescribed in the Rules for filing a response to the motion, the Chamber could not possibly render a decision authorizing the admission of statements of the deceased witnesses until after the 15 October 2004 deadline. The Defence further argues that the deceased witnesses did not appear on the Prosecution's final witness list of 17 June 2004 and that no motion has been made for their addition. The Defence is prejudiced by this late attempt to add evidence to the Prosecution case because it has been deprived of the opportunity to conduct cross-examinations knowing that these witness statements might be part of the Prosecution case. The Prosecution's previous intimations that it might file a motion for admission of the statements of deceased witnesses did not constitute satisfactory notice that the motion would be filed. If the statements were to be admitted, the work program of Defence teams, predicated as it is upon the completion of the Prosecution case on 15 October 2004, would be disrupted.

ICTR • 405 9. The Prosecution argues that it previously gave notice of its intention to file the present motion on many occasions, both orally during status conferences and in writing. The Defence cannot be taken by surprise nor does the Defence suffer any prejudice as a result of the admission of these statements. Indeed, the jurisprudence of the IClY and ICTR suggests that such motions should be filed at the end of the Prosecution case to allow the Chamber to assess the extent to which the statements corroborate live testimony, which is a criterion of admissibility. These persons need not have appeared on the witness list, the purpose of which is to circumscribe in-court testimony, not preclude admission of statements by written procedure. This interpretation is supported by the language of Rule 73 bis and the Chamber's previous decisions, which define witnesses as persons whom the Prosecution "intends to call." This reading is also supported by the language of Rule 92 bis (C) which refers to the admission of statements of deceased "persons," not "witnesses." In the alternative, the Prosecution seeks leave to amend its witness list to include the deceased witnesses. (ii) Admissibility of the Witness Statements Tendered

10. The Prosecution seeks the admission of the statements of fifteen persons known by the pseudonyms AA, Aj, AU, CA, CP, CZ, DAG, DQ, EL, GH, OAO, OE, OJ, QZ and WD. The Prosecution relies on Rules 89(C), 90(A) and 92 bis for the proposition that statements of deceased persons are admissible. It accepts that the conditions set forth in Rule 92 bis (C) for the admission of statements of deceased persons are subject to the conditions and criteria set forth in Rule 92 bis (A), in particular that the statements concern matters "other than the acts and conduct of the accused." That condition is said to be satisfied in respect of the statements of nine of the fifteen witnesses: AA, AU, CA, CP, CZ, EL, GH, OAO, and QZ. The Prosecution concedes that the statements of the remaining six witnesses, Aj, DAG, DQ, OE, OJ, and WD, concern in part the acts and conduct of the Accused, but does not distinguish the admissible from the inadmissible portions. The Prosecution asks the Chamber to define and disregard the inadmissible content, and admit the remainder. 11. The Prosecution makes extensive reference to jurisprudence pre-dating Rule 92 bis, arguing that the statements of the deceased have probative value under Rule 89(C) and should, therefore, be admissible. The implication, though never expressly stated, appears to be that the statements should be admissible under Rule 89 (C), independent of the requirements of Rule 92 bis. 12. The Defence for Ntabakuze argues that the requirements of relevance, probative value and reliability inherent in Rule 89 (C) are general requirements which supplement the specific mechanism for admission of statements of deceased persons set forth in Rule 92 bis. The statements are of "trifling" probative value and are "cumulative to the extent of being pointlessly repetitive." The minor probative value of the evidence is outweighed by the unreliability inherent in testimony given without cross-examination. Objection is also made to the request to have the Chamber distinguish the admissible from inadmissible portions of the statements. The moving party bears the burden of identifying the statements which it wishes to tender for admission. The Ntabakuze Defence questions the reliability of some of the specific statements because of erroneous pages (EL); misidentification of two different persons as a single witness (DAG); missing identification number on a death certificate (AU); absence of corroboration with live testimony (GH); and failure to properly explain the relevance or content of a witness statement (WD).

406 • Defense in International Criminal Proceedings 13. The Defence for Nsengiyumva agrees with the Prosecution concession that the statements of Witnesses OJ and OE concern the acts and conduct of the Accused. It claims that Witness OAO's statement also refers to the acts and conduct of the Accused Nsengiyumva, albeit in the form of hearsay evidence. There is also reference to criminal acts by one Munyagishari, over whom the Prosecution has alleged that the Accused had command responsibility. Accordingly, the statement should be considered inadmissible. 14. The Defence for Bagosora examines each statement in detail and variously questions their reliability, relevance or references to the acts and conduct of the Accused. This detailed analysis shall be considered below in respect of individual statements where necessary. DELIBERATIONS (i) Timeliness of the Motion

15. The Defence argues that the present motion, filed on 15 October 2004, is untimely because it could not possibly have been decided by the Chamber before the deadline for the close of the Prosecution case, said to be 15 October 2004. The Prosecution counters that it has repeatedly given notice of its intention to file the motion, and that it is, in fact, appropriate to file such a motion at the very end of its case. 16. The argument of the Defence is predicated on the assertion that 15 October 2004 was the absolute deadline for the reception of evidence as part of the Prosecution case. Heavy emphasis is placed on the submission of Prosecution counsel during a status conference that "we'd be prepared to live or die with respect to that particular time frame" in estimating that it would "complete []" its witnesses no later than 30 September 2004. The Presiding Judge responded: "And the Prosecution may well finish by the end of September, but the Chamber will reserve time until Friday the 15th of October. But that's the end, and that's where we all, to use Mr. White's expression, 'Live and die with it'." While it is certainly clear that no further court-time would be scheduled for hearing the Prosecution case, there is no suggestion that the Prosecution would be precluded from filing a motion for the admission of evidence by written procedure. Accordingly, the Chamber finds that the Prosecution was not barred from filing the motion immediately before the close of its case. 17. The Defence has already submitted motions for acquittal under Rule 98 bis, which must be filed within seven days of the close of the Prosecution case. By the present decision, all or part of four witness statements shall be admitted into evidence as part of the Prosecution case. The Defence is entitled to make supplemental filings on that additional evidence within seven days of receipt of this decision. In light of the limited scope and importance of the evidence admitted hereunder, the Chamber rejects the Defence argument that preparations for its case will be unduly disrupted. 18. Persons whose statements are tendered for admission by written procedure alone need not appear on a witness list. The purpose of Rule 73 bis, under which the Chamber has authority to require the filing of a witness list, is to circumscribe in-court testimony. This includes witnesses who may be called for cross-examination under Rule 92 bis. Persons who are deceased, however, can never be "called" to testify, as that term is used in Rule 73 bis. Accordingly, the absence of these individuals from the witness list does not preclude the filing of the motion, or the admission of their written statements.

ICTR • 407 (ii) Admissibility (a) Applicable Principles

19. Rule 89 (C) provides that" [a] Chamber may admit any relevant evidence which it deems to have probative value." This discretion is guided in respect of testimonial evidence by Rule 90 (A), which requires that" [w] itnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided by Rule 71." An exception to the principle of direct testimony is Rule 92 bis, which provides detailed standards for admission of "Proof of Facts Other Than By Oral Evidence": Rule 92 bis: Proof ofFacts Other Than by Oral Evidence (A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.

(i) Factors in favour of admitting evidence in the form of a written statement include, but are not limited to, circumstances in which the evidence in question: (a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts; (b) relates to relevant historical, political or military background; (c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates; (d) concerns the impact of crimes upon victims; (e) relates to issues of the character of the accused; or (f) relates to factors to be taken into account in determining sentence. (ii) Factors against admitting evidence in the form of a written statement include whether: (a) there is an overriding public interest in the evidence in question being presented orally; (b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or (c) there are any other factors which make it appropriate for the witness to attend for cross-examination. (B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person's knowledge and belief and (i) the declaration is witnessed by: (a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or

408 • Defense in International Criminal Proceedings (b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and (ii) the person witnessing the declaration verifies in writing: (a) that the person making the statement is the person identified in the said statement; (b) that the person making the statement stated that the contents of the written statement are, to the best of that person's knowledge and belief, true and correct; (c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and (d) the date and place of the declaration. The declaration shall be attached to the written statement presented to the Trial Chamber. (C) A written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber: (i) is so satisfied on a balance of probabilities; and (ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability.

(E) Subject to any order of the Trial Chamber to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for crossexamination. 20. The detailed standards set out in Rule 92 bis, combined with the general requirement in Rule 90(A) that testimony be given orally, indicate that testimonial statements can be admitted into evidence only through Rule 92 bis. A condition for admission of all or part of a statement is that it concerns "proof of a matter other than the acts and conduct of the accused charged in the indictment." Once that threshold is met, the Chamber must exercise its discretion to admit the statements in light of the criteria for and against admission, set out in 92 bis (A) (i) and (ii), respectively. Where an accused is charged with command responsibility, evidence should be excluded as a matter of discretion if the evidence concerns the acts of a proximate subordinate from which the guilt of the accused could be readily inferred. Rule 92 bis (C) specifically addresses statements of deceased witnesses, providing that, where the Chamber is satisfied on the balance of probabilities that a witness is dead or has disappeared, the formalities required by subsection (B) are replaced by the more general standard that the statement must have "satisfactory indicia of reliability." The general requirements of relevance and probative value, applicable to all types of evidence under Rule 89 (C), must also be satisfied.

ICTR • 409 (b) Acts and Conduct of the Accused

21. The Prosecution concedes that the statements of six of the deceased witnesses (AJ, DAG, DQ, OE, OJ and WD) do, in part, concern the acts and conduct of the Accused. It argues, however, that redaction of the statements would make them difficult to comprehend and, therefore, that the statements should simply be "admitted unredacted with the understanding that the judges will identify and disregard the information that may go towards the acts and conduct of the accused as charged in the indictment." 22. Rule 92 bis (A) states that the Chamber may "admit, in whole or in part, the evidence of a witness ... which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment." This wording implies that evidence which concerns the acts and conduct of the Accused is inadmissible, but that other parts of a statement which do not concern the acts and conduct of an accused may be admitted. The Chamber has no discretion to follow the procedure suggested by the Prosecution, namely, to admit inadmissible evidence subject to an "understanding" that inadmissible portions will be ignored. Indeed, the suggested procedure is contrary to the very concept of "admissibility." While a Chamber is always free to disregard information which is unreliable or irrelevant, the purpose of rules of admissibility, including Rule 92 bis, is to provide a preliminary threshold for the exclusion of irrelevant, unreliable or otherwise improper information. Conditional admission would, in effect, destroy the preliminary threshold, leaving all parties in doubt as to which portions of the statements were properly before the Chamber as evidence, and which portions were not. The proposed procedure of conditional admission of the six statements is, accordingly, rejected. 23. The Chamber may admit those parts of the six statements which do comply with Rule 92 bis (A). In the present case, however, the Prosecution has failed to identify which portions of the statements it considers admissible. The statements of five of the six witnesses (AJ, DQ, OE, OJ and WD) arguably contain extensive references to the acts and conduct of the Accused. In the absence of submissions, the Chamber is not in a position to distinguish the admissible from inadmissible portions of the statements. Accordingly, the statements must be treated as inadmissible in toto. In contrast, the statement of Witness DAG contains only isolated and brief references which arguably pertain to the acts and conduct of the Accused. There are three fleeting references to the Accused Bagosora and one to the Accused Nsengiyumva. Despite the absence of submissions, the Chamber is able to identify the portions of the statement which go to the acts and conduct of the Accused, and shall consider more fully below whether the remainder of the statement should be admitted under Rule 92 bis. 24. The Defence submits that the statements of Witnesses EL and OAO make explicit reference to the acts and conduct of the Accused as charged in the Indictments. Witness EL describes at some length the participation of the Accused Bagosora in a meeting at the Ministry of Defence on the morning of 7 April 1994, corresponding to allegations in paragraphs 6.4 and 6.8 of the Bagosora Indictment. The statement of Witness OAO alleges that the Accused Nsengiyumva encouraged the killing and raping described in her statement. These matters are inadmissible under Rule 92 bis (A). In light of the potential importance of the inadmissible portion to the whole, and in the absence of submissions justifying admission of the balance of the statements, the Chamber declines to admit any portion of these statements.

410 • Defense in International Criminal Proceedings (c) Acts and Conduct ofProximate Subordinates

25. Several witness statements, though not describing the acts and conduct of the Accused themselves, offer evidence of actions of subordinates or of individuals who are alleged by the Prosecution to have been acting on the direct orders of the Accused. Witness CP's statement offers incriminating testimony concerning the actions of soldiers of the Paracommando Battalion, alleged to be under the command of the Accused Ntabakuze. Witness CA describes the killing by soldiers of Augustin Maharangari, the general manager of the Banque Rwandaise de Dcveloppcmcnt, and members of his family by soldiers. Paragraph 6.49 of the Bagosora Indictment alleges that the Accused attempted to order this killing. The statements of Witnesses DAG and CP recount the killing of UNAMIR soldiers on 7 April 1994 at Camp Kigali. Count 5 of the Bagosora Indictment imputes responsibility for these killings to the Accused. By virtue of the alleged position of the Accused Ntabakuze as commanding officer of the Paracommando soldiers, or by virtue of the direct orders or responsibility imputed to the Accused Bagosora, the evidence in these statements describes highly incriminating conduct of proximate subordinates of the Accused, and must be deemed inadmissible under Rule 92 bis. 26. The statement of Witness GH describes the involvement of soldiers in an attack on Kigabagaba Mosque in Kigali. Though the soldiers are not expressly identified as subordinates of the Accused, or as having acted on the orders of the Accused, each of the Indictments mentions the incident at Kigabagaba Mosque as a basis for the superior responsibility of the Accused. Accordingly, the evidence concerns the acts and conduct of proximate subordinates of the Accused and is, therefore, inadmissible. (d) Descriptions Not Concerning the Acts and Conduct ofthe Accused or Their Proximate Subordinates

27. The statements of Witnesses AA, AU and CZ also describe the criminal conduct of soldiers, or people who may have appeared to be soldiers. With a single exception, however, these statements do not concern incriminating acts and conduct of soldiers who are alleged to be proximate subordinates of the Accused. Witness AA describes the actions of soldiers of the Huye Battalion in Nyamirambo, on Mount Kigali, and of Presidential Guard soldiers at a roadblock in Gisenyi. Nothing in the statement or the Indictment suggests that any of the Accused were directly superior, or gave orders, to these soldiers. While the Indictment may well allege, as suggested by the Defence for Bagosora, that the Accused is criminally responsible as a superior for the acts described in Witness AA's statement, none of the perpetrators of those acts are proximate subordinates whose actions could lead readily to an inference of guilt. The nature of the relationship between the soldiers described in Witness AA's statement and the Accused remains to be established by other evidence. The only exception is the suggestion on page 5 that "all army units had received a telegramme from the army headquarters asking them to get assistance from the Interahamwe and the population in order to eliminate all the enemies" Paragraph 6.35 of the Bagosora Indictment mentions the issuance of such a telegram from the General Staff, implying the direct responsibility of the Accused. That event must be understood as attributed by the Prosecution to the Accused himself, or to a proximate subordinate. In either case, the substance of the sentence is inadmissible. With that exception, the criteria set out in Rule 92 bis (A) favour admission of the statement. There are no references to acts or conduct of proximate subordinates; the acts described are cumulative of testimony already heard; and they are relevant as background information and have probative value.

ICTR • 411 28. Witness AU's statement describes the distribution of weapons at the General Headquarters of the Army to conseillers de secteur in Kigali Prefecture, on the instructions of the Prefect, Tharcisse Renzaho. The Defence for Bagosora objects that this evidence "directly implicates" the Accused, who is alleged in paragraph 5.1 of the Indictment to have conspired with Renzaho. However, as described by the Appeals Chamber in Galic, the actions of a co-conspirator are not necessarily inadmissible under Rule 92 bis when they are not indicative of the Accused's participation in ajoint criminal enterprise, or of the fact that he shared the requisite intent for the crime. Further, the statement does not suggest that the weapons were distributed for the criminal purpose alleged in paragraphs 5.1 and 6.48 of the Bagosora Indictment, or that Renzaho's criminal intent (which could arguably be inferred from subsequent conduct described in the statement) was shared by the Accused. The statement does not otherwise describe the actions of soldiers, but does describe the role of civilian authorities in killings of Tutsi in Kigali Prefecture. In these circumstances, the statement provides only background evidence of a type which has already been placed before the Chamber, is relevant, and has probative value. Accordingly, the statement is admissible under Rule 92 bis. 29. The statement of Witness CZ describes the killing and pursuit of Tutsi by soldiers of the Presidential Guard and militiamen in or near Kigali. The witness also saw individuals at a roadblock in "paratrooper uniforms." The incidents in question are not specifically mentioned in the Indictment and there is no other suggestion that the perpetrators of the criminal conduct were proximate subordinates of the Accused. The reference to individuals in "paratrooper uniforms" without more detail is ambiguous and does not show that they were soldiers of the Paracommando Battalion under the command of the Accused Ntabakuze. In any event, there is no evidence in the statement of criminal acts by the individuals wearing the paratrooper outfits. The evidence thus constitutes background information concerning the atmosphere in Kigali in April 1994 and is, in that sense, cumulative with evidence already admitted. It is also, to that limited extent, relevant to the charges in the Indictments. The statement is admissible. 30. Witness DAG's statement contains a section describing the Rwandan air force as it existed in April 1994. This information is manifestly unrelated to the inadmissible evidence described above (para. 19) and illuminates the military background of events in April 1994, which is expressly mentioned as appropriate for admission under Rule 92 bis (A) (i) (b). The information is relevant and is contained in a statement with sufficient indicia of reliability. Accordingly, the Chamber will admit as evidence pages 3 and 4 of the statement of Witness DAG, up to the heading "Civilian Authorities." (e) Irrelevant Evidence

31. The statements of Witness QZ primarily concern the alleged acts and conduct of Pauline and Shalom Nyiramasuhuko, and make no reference to soldiers of the Rwandan Army. The Prosecution has failed to identify, and the Chamber is unable to discern, the relevance of the statements to the Accused in the present case. Accordingly, the statements are inadmissible. FOR THE ABOVE REASONS, THE CHAMBER DECLARES the French and English versions of the statements of Witnesses AA, AU and CZ to be admitted in their entirety, with the exception of the sentence in the statement of Witness AA containing the words "all army units had received a telegramme from army headquarters," which is declared inadmissible;

412 • Defense in International Criminal Proceedings DECLARES pages three and four of the English version of the statement of Witness DAG, up to the heading "Civilian Authorities," and the French version thereof, to be admitted; REQUESTS the Registry to ensure that the admitted documents are marked and assigned exhibit numbers; DECLARES that the Defence has seven days from receipt of the present decision to file supplemental submissions under Rule 98bis, if any, in respect of the statements admitted hereunder; DENIES the Prosecution motion in all other respects; DENIES the Kabiligi request for an extension of time to respond to the present motion.

The Prosecutor \t. Laurent Semanza-Decision on the Prosecutor's Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, Case No. ICTR-97-20-1, November 3, 2000

A. The Prosecutor's Submissions

1. The Prosecutor submits that she served on the Defence a Request to Admit Facts and Documents, including some facts and documents of a general nature relating to the general events in Rwanda at material times, with the aim of conducting a trial without undue delay. The Defence has not admitted any facts or documents, as requested. 2. By the instant motion, the Prosecutor seeks a declaration by the Tribunal takingjudicial notice of factual matters described in Appendix A and of documents listed in Appendix B to the Motion. In the alternative, the Prosecutor urges the Chamber to accept the presumptions of fact as they are stated in Appendix A and in the documents listed in Appendix B. The Prosecutor requests that the Chamber upon taking judicial notice of the facts in Appendices A and B accept such facts as established in the trial of the Accused. 3. The Prosecutor cautions, however, that she does not request that the Chamber take judicial notice of the ultimate facts at issue in this case with regard to the specific conduct of the Accused and his alleged responsibility for committing the crimes charged in the indictment. The Prosecutor insists judicial notice notwithstanding, the burden of adducing formal proofs of the facts supporting the alleged guilt of the Accused remains with the Prosecution. 4. In Appendix A to the Motion, the Prosecutor prays that this Chamber takes judicial notice of a panoply of facts, which collectively may fairly be characterised as socio-political historical background facts relating to the existence of "genocide" "armed conflict" and "widespread systematic attacks" against the Tutsi civilian population in Rwanda during the months of April throughJuly, 1994. By submitting Appendix B to the Motion, the Prosecutor argues for admission into evidence by judicial notice of certain documents that comprise legislative and administrative regulations and governmental investigative reports of the genocide in Rwanda, including among others, United Nations reports. 5. The Prosecutor's request for judicial notice rests on the following principal legal grounds. Notably, the Prosecutor submits that the facts in Appendix A belong to the

ICTR • 413 category of facts of common knowledge, which, under Rule 94, are entitled to judicial notice. Pursuing her thesis, the Prosecutor maintains that the Chamber may equally take judicial notice of the facts pursuant to Rule 89. Moreover, the Prosecutor cites Rules 54 and 89 as providing support for the Chamber to take judicial notice of, or accept presumptions of facts contained in Appendices A and B. More specifically, citing Rule 94, the Prosecution contends that the factual matters delineated in Appendix A belong to the category of facts of "common knowledge around the world, facts which are not subject to reasonable dispute, matters which are within the knowledge of the Tribunal, or matters which are self-evident in the circumstances." Alternatively, the Prosecutor argues, without the benefit of Statutory authority or support in the Rules, that the facts in Appendix A qualify to be treated as presumptions because the facts are the logical consequences of basic established facts. 6. With respect to the documents listed in Appendix B to the Revised Memorial, the Prosecutor contends that the documents eminently qualify for judicial notice inasmuch as they are "public documents," created by public officials acting in pursuance of their designated public functions. Further, the documents in Appendix B, the Prosecutor argues, are the proper subject of judicial notice because the facts contained therein have been established in previous proceedings before the Tribunal either through judicial notice or by the formal introduction of positive proof. In this regard, the Prosecutor notes that the Tribunal tookjudicial notice of United Nations documents previously in, among other cases, Prosecutor v. Akayesu, ICTR-95-1-T, at 157, 165 and 627 (judgement) (2 September 1998). Among a myriad of other legal arguments and authority, the Prosecutor also invokes Article 21 of the Charter of the International Military Tribunal at Nuremberg as additional authority to take judicial notice in the instant case. 7. Finally, the Prosecutor maintains that taking judicial notice or accepting the presumptions of fact it urges will not encroach upon the ultimate question of the guilt or innocence of the Accused in this case. The Prosecutor contends that the taking ofjudicial notice or the acceptance of factual presumptions she advocates will significantly reduce the length of the trial of this matter without visiting unfair prejudice upon the rights of the Accused to a fair trial. B. The Defence's Submissions in Opposition to the Motion

8. In its Preliminary Response to the Motion, the Defence submits the Defence Notice in which, among other things, he asks this Chamber to grant him additional time to file a written response to the Motion on the grounds that the Motion was filed while lead counsel for the Defence, Mr. Taku, was on mission in Europe pursuant to a mission order. Additional time is necessary, argues Mr. Taku, because filing a written response would entail extensive references to several of the transcripts of this Chamber and decisions. 9. In the Preliminary Response, the Defence advances the following arguments. First, the Defence contends that the Chamber should deny the Motion because it was brought pursuant to the authority of Rules 54 and 73, Rules which merely provide authority for directing the parties to make admissions of fact, and therefore do not allow for the judicial notice and presumptions of facts the Prosecution seeks in the instant Motion. In this regard, the Defence claims that the Chamber should not permit the Prosecutor to rely upon the authority of Rules 94 and 89 (b) as it does in the table of contents to the Revised Memorial.

414 • Defense in International Criminal Proceedings 10. The Defence next expostulates that the Motion should be denied because it is premature. Thus, even if it were proper for the Chamber to take judicial notice or recognize presumptions of fact, the proper time for such an order would be during the course of the trial of this matter but, not before. In addition, the Defence argues that the Motion should be dismissed because it suffers from certain internal inconsistencies, namely the point made in Part III of the table of contents is at odds with points 12 and 15 of the Prosecutor's submissions because the Defence has consistently refused to make admission of fact in this matter since such was never ordered by the Chamber. Similarly, the Defence submits that the Motion must fail because it contradicts the not-guilty plea entered by the Accused and is therefore an impermissible attempt to relieve the Prosecutor of the burden of proof on contested issues of fact which rest exclusively upon the Prosecutor throughout the trial of this matter. More significantly, the Defence claims that granting the Motion at this juncture would constitute a violation of Article 20 of the Statute and result in gross unfairness and prejudice to the Defendant by rendering nugatory the full scope of the testimony of several witnesses appearing on the Prosecutor's Supplementary List of Witnesses, filed on 19 April 2000. Consequently, argues the Defence, the request for judicial notice is premature and should be allowed only when and if such witnesses are called to testify under oath at trial. 11. The Defence further submits that the Chamber should dismiss the Motion because it calls upon the Chamber to take judicial notice of facts that are contrary to the Statute of the Tribunal and to abdicate its role as an impartial arbiter of the facts. As an example of this alleged contradiction, the Defence notes that the Statute never sanctioned the prosecution of Hutus for committing genocide and other violations against Tutsis as insinuated in Point 4 of the Revised Memorial. In effect, claims the Defence, taking judicial notice of such facts would be tantamount to foreclosing in futuro the indictment of any Tutsi or non-Rwandans for committing the very same offences against Hutus, Tutsis, Twas or any other protected persons. In further support of this argument, the Defence claims that judicial notice does not lie because the Defence possesses documents evidencing that the RPF and mercenaries employed by them committed genocide and other serious violations against Rwandan citizens during the temporal jurisdiction of this Tribunal. As evidence of such contradictory facts, the Defence submits copies of certain excerpts from books, pamphlets and United Nations reports. 12. The Defence next attempts to lay waste to the Prosecution's principal argument in support of the Motion by stating that the facts for which judicial notice is sought or the recognition of a presumption are not of such an indisputable character as would qualify them for admission through judicial notice. For example, the Defence argues that the Chamber should not take judicial notice of the fact placing the death toll at between 500,000 and 1,000,000. Similarly, the facts relating to the general political circumstance extant in Rwanda do not belong to the genus of indisputable facts. In the same vein, but perhaps more fundamentally, the Defence is vehement in his argument that the Chamber cannot take judicial notice that certain elements of Hutus committed acts of genocide targeting Tutsis, as alleged in Point 4 of the Revised Memorial. Indeed, claims the Defence, the United Nations resolution and other documents cited by the Prosecutor mandates that all who are believed to have committed the subject offences and violations be tried by the Tribunal, rather than only "certain elements of the Hutu ethnic group," as urged by the Prosecutor. 13. The Defence contends that the Prosecutor's Motion is without legal authority. It is neither supported by the Statute of the Tribunal nor by the previous decisions rendered

ICTR • 415 by the Tribunal. Significantly, the Defence maintains that the fact that matters may have been judicially noticed in other cases does not authorize the same result in the instant Motion since those previous decisions are limited to their particular underlying circumstances. Moreover, the Defence underscores that the Prosecutor has failed to cite to any specific ratio decidendi in the Tribunal's previous cases in which judicial notice was taken as would authorize the same result to obtain under the circumstances in this case. In any event, argues the Defence, the Chamber should not predicate judicial notice in the instant matter upon the precedents set in previous decisions since those matters are still being reviewed by the Appeals Chamber and are therefore inconclusive. 14. When countering the Prosecutor's arguments for the admission of the documents listed in Appendix B, the Defence submits that the documents likewise lack the requisite indisputability as would entitle the Prosecutor to admit them through judicial notice. Moreover, states the Defence, the documents contain statements on political issues that are beyond the parameters of the Tribunal's mandate. 15. Finally, the Defence cautions the Chamber to avoid confounding, as did the Prosecutor, the similar but very discrete concepts ofjudicial notice and admissions. In this regard the Defence submits Exhibit E, an excerpt from "Sakar's Law of Evidence in India, Pakistan, Bangladesh, Burma and Ceylon," 15th ed. (India, 1999). Relying on Sakar's Law of Evidence, the Defence stresses that even if a court takes judicial notice of a fact, such a ruling cannot deprive the opponent of its opportunity to present contradicting evidence on that fact.

DELIBERATIONS AND FINDINGS A.

The Defence Motion for Additional Time to File Written Submissions in Opposition to the Motion

16. As a threshold matter, the Chamber finds that it is neither necessary nor proper for it to grant the Defence additional time to submit more written submissions in opposition to the Prosecutor's Motion. Indeed, since the filing of the Motion the Defence availed itself of the opportunity to make not less than three submissions, complete with supporting legal authorities and exhibits, in opposition to the instant Motion. Notwithstanding its protestation that additional time was necessary to enable it to fully address the issues raised by the Motion, the Chamber finds that the Defence itself concedes that it has adequately, in its own estimation, responded to the Motion. Notably in this regard, at the Pre-Trial Conference in this matter, the Defence upon being denied its motion to postpone the trial asked the Chamber to render decisions on all pending motions. Surely, the Defence would not have insisted on issuance of a decision on the Motion if it still believed that it had not adequately and fully addressed the issues raised in the Motion. See Transcript of25 September 2000, at 66:18-25-67:1-6. Consequently, the Chamber denies the Defence request for additional time to submit written opposition to the Motion. There must be some closure and finality with regard to submissions on pending motions. There must be some finality to litigation. B.

The Prosecution's Motion for Judicial Notice

17. The Chamber notes the importance of the issues raised in the Motion and the Defence's opposition to the Motion. These matters merit full discussion inasmuch as the Defence cogently argues that none of the previous decisions of this Tribunal reveals

416 • Defense in International Criminal Proceedings

the ratio decidendi by which judicial notice was taken or denied. Consequently, none of the decisions seems to disclose principled guidance as to what genre of facts properly allow a trial court to take judicial notice thereby relieving the Prosecutor of her burden of formally adducing evidence at trial. 18. As a point of departure, it is imperative that the Chamber identify the issues and interests it must balance in rendering its decision on the Motion. As is plainly evident in the Prosecutor's Motion, the Chamber must contend with the issue of whether the Rules, Statute and previous jurisprudence of the Tribunal properly permit taking judicial notice of the facts contained in Appendix A and of the documents listed in Appendix B. The Chamber must assess whether it may take judicial notice of the reasonable inferences and conclusions that may be drawn from the noticed facts. Under the same rubric, the Chamber must determine whether the noticed fact is to be given conclusive effect, i.e., to be taken as proving a particular relevant fact beyond a reasonable doubt, consequently foreclosing the opportunity of the Defence to present evidence disputing the noticed fact. In addition, the Chamber must consider when is the proper time for takingjudicial notice. Finally, the Chamber must assess all of the foregoing issues, against its momentous countervailing mandate to ensure a fair and equitable trial for the Accused. 1. Judicial Notice Under the Rules

19. The Defence invites the Chamber to restrict consideration of the Motion solely on the basis of Rules 54 and 73, as indicated in the title to the Motion. Rule 73 (A) invests the parties with the power to make motions for appropriate relief before the Chamber. Rule 54, which is also cited by the Prosecutor as supporting the grant of the relief it seeks in the Motion, reinforces the mandate of Rule 89 by authorising the Chamber, upon the request of a party or sua sponte, to issue such orders and other measures as are necessary for purposes of preparation or conduct of the trial. Inasmuch as the Motion and the Revised Memorial correctly invoke Rule 94 and Rule 89, in addition to Rule 54 and Rule 73, the Chamber declines the Defence's invitation to restrict consideration of the Motion to Rules 54 and 73. a. Policy Reasons for Doctrine ofJudicial Notice

20. Legal scholars invariably recite two reasons justifying the application of the doctrine ofjudicial notice. First, resort to judicial notice expedites the trial by dispensing with the need to formally submit proof on issues that are patently indisputable. Second, the doctrine fosters consistency and uniformity of decisions on factual issues where diversity in factual findings would be unfair. See Cross and Tapper on Evidence, 8th ed., Colin Tapper (United Kingdom, 1995) p. 78. 21. One learned legal authority, Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, p. 303 (England, 1993) (emphasis added) has described judicial notice as follows: •

[C] ertain allegations of the parties that are within the knowledge of the tribunal need no evidence in support. Judicial notice' is taken of the facts averred. Proof may be dispensed with as regards facts, which are of common knowledge or public notoriety ...

ICTR • 417 b. Judicial Notice ofFacts of "Common Knowledge:" Rule 94

22. Rule 94 entitled 'Judicial Notice," provides "A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof." Rule 94 (emphasis added). Thus, following Rule 94, a Trial Chamber is permitted to take judicial notice of facts if such facts are "of common knowledge." Rule 94, however, provides no guidance as to what manner of facts constitutes "common knowledge." For an understanding as to what is encompassed under the broad rubric "common knowledge," the Chamber resorts to the learned legal treatises for guidance. 23. The term "common knowledge" is generally accepted as encompassing "... those facts which are not subject to reasonable dispute including, common or universally known facts, such as general facts of history, generally known geographical facts and the laws of nature." M. Cherif Bassiouni & P. Manikas The Law of the International Tribunal for the Former Yugoslavia, (United States of America, 1996) p. 952. See also; Phipson on Evidence, 14th ed., §2-06-2-16 (England, 1990); Sakar's Law of Evidence in India, Pakistan, Bangladesh, Burma and Ceylon, 15th ed. (India, 1999) p. 1015; Hon. Roger E. Salhany Criminal Trial Handbook, (Canada, 1994), § 9.5. A common example of a fact of common knowledge are the days of the week. In addition, and perhaps more importantly for the present purposes, "common knowledge" also encompasses those facts that are generally known within a tribunal's territorial jurisdiction. The Law of the International Tribunal for the Former Yugoslavia, at p. 952. 24. Once a Trial Chamber deems a fact to be of "common knowledge" under Rule 94, it must determine also that the matter is reasonably indisputable. A fact is said to be indisputable if it is either generally known within the territorial jurisdiction of a court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be called into question. See General Principles of Law as Applied by International Tribunals, pp. 303-304; 29 AmericanJurisprudence §33 (United States of America, 1994). c. Judicial Notice of Notorious Facts of History

25. Under the rubric matters of "common knowledge," a court may generally take judicial notice of matters "... so notorious, or clearly established or susceptible to determination by reference to readily obtainable and authoritative source that evidence of their existence is unnecessary...." Archibold Criminal Pleading, Evidence & Practice § 10-71 (England, 2000); see also Phipson on Evidence, at § 2-06; United States of America Federal Rule of Civil Procedure § 201 (B) . 26. Article 21 of the Charter of the International Military Tribunal at Nuremberg, which provided for judicial notice of certain matters of common knowledge, further bolsters the propriety of takingjudicial notice of some of the facts contained in Appendix A and the documents in Appendix B. In this connection, Article 21 of the Charter provided, in relevant portion: •

The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of records and findings of military or other Tribunals of any of the United Nations.

418 • Defense in International Criminal Proceedings

27. Perhaps the best support of the propriety and fairness of taking judicial notice of certain matters stated in Appendix A and documents in Appendix B comes from the Bangladesh International Crimes (Tribunal) Act ofJuly 19, 1973 because its language coincides with that of Rules 89 and 94. In April of 1973 the newly emerged state of Bangladesh announced its intention to try Pakistani nationals for "serious crimes," including genocide, war crimes, crimes against humanity, breaches of Article 3 of the Geneva Conventions, murder, rape and arson. To facilitate the trials of the accuseds, the Act permits a tribunal to take judicial notice of common knowledge facts. The Act provides in relevant respect: (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports, and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.... (3) A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. (4) A Tribunal shall take judicial notice of official governmental documents and reports of the United Nations and its subsidiary agencies or other international bodies including non-governmental organisations. 28. A prominent legal treatise, Sakar's Law of Evidence, upon which the Defence heavily relies, states the matter more categorically still. "No court insists upon formal proof by evidence of notorious facts of history past or present." Sakar's at p. 1016. To the extent that the matters in Appendix A are matters of public history, the Chamber may properly dispense with formal proof of such notorious matters. In addition, to illustrate the type of facts that are the proper subject ofjudicial notice, Sakar's, provides a list of thirteen matters that are so notorious and indisputable that one ought to take judicial notice of them. Sakar's, at p. 999, f.n. 15. According to Sakar's, among the facts that a court is compelled to recognise are facts evidencing: (1) accession to office, names, titles and functions of public officers; (2) commencement or continuation of hostilities between the State and a body of persons; (3) constitutional and political matters; (4) that a government is run by certain political parties. Sakar's, at pp. 1005, 1007-1009.

2. Judicial Notice of Certain Facts in Appendix A 29. Some of the facts the Prosecutor seeks judicial notice of in Appendix A belong to that genus of "common knowledge" or "notorious historical facts" permitting a court to dispense with the submission of formal proofs. For example, the Prosecutor first calls on the Chamber to take judicial notice of the fact that Rwandan citizens were classified into three ethnic groups, namely, Hutu, Tutsi and Twa. Similarly, the fact that during the period from 6 April 1994 to 17 July 1994 there existed throughout Rwanda "widespread and systematic attacks" against the civilian population based on certain invidious classifications including Tutsi ethnic identity, is a notorious historical fact of which this Chamber may take judicial notice. Moreover, the powers of the office of Bourgmestre is a proper subject ofjudicial notice because it falls squarely into the category of matters that are of common knowledge within the jurisdiction of this Tribunal and which may readily be determined by reference to such reliable sources such as the written laws of Rwanda.

ICTR • 419 30. It also bears noting that within the area of its territorial jurisdiction and within the sphere of its specialised competence, a court is allowed to take judicial notice of an even wider scope of facts of common knowledge and notorious history. Phipson on Evidence, §2-21. See also, Sakar's, at p. 1015. Thus, the Chamber may takejudicial notice of facts that are notorious within the territories of Rwanda, Burundi and other neighbouring states. Prosecutor v. Tadic, IT-94-1-AR72, Transcript of Hearing on Interlocutory Appeal onJurisdictional Challenge at pp. 107-10 (IClY Appeals Chamber, 7 September 1995) (finding that that Tribunal must in the interest of fairness take judicial notice of notorious facts). Accordingly, this Chamber may properly take judicial notice of the factual elements constituting the crime of genocide, crimes against humanity and violations of certain provisions of the Geneva Convention with respect to the large number of deaths of civilians in Rwanda during 1994. 31. Disputed facts, necessarily do not belong to that realm of indisputability as historical facts, and other matters of common knowledge as would properly place them within the reach of the Chamber's power to take judicial notice. Having entered a plea of not guilty to all the counts in the indictment, the Accused has placed even the most patent of facts in dispute. However, this alone cannot rob the Chamber of its discretion to take judicial notice of those facts not subject to dispute among reasonable persons. There is no requirement that a matter be universally accepted in order to qualify for judicial notice. See Sakar's at 1015. 32. In the instant case, some of the matters the Prosecutor seeks judicial notice of do not appear to be disputed by the Defence. Rather, the Defence disputes Semanza's personal involvement in the offences cited within the facts. Palpably absent from the Defence submissions, is any argument or authority negating the existence of either the "widespread or systematic attacks" or the elemental components of the crime of genocide against Tutsis. Consequently, there is no impediment to taking judicial notice of those matters which are of common knowledge and reasonably indisputable contained in Annexes A and B to this Decision. 3. Previous Tribunal Cases TakingJudicial Notice

33. Although no additional authority is needed to support the propriety of takingjudicial notice of facts in the instant matter, additional authority may be found in the jurisprudence of this Tribunal. See e.g., Prosecutor v. Kanyabashi, ICTR-96-15-T, (Decision on Jurisdiction) (18 June 1997). In rendering a decision on a defence pre-trial motion challenging the jurisdiction of the Tribunal, a unanimous Chamber in Kanyabashi rejected the Defence arguments that the Tribunal lacked the jurisdictional predicate under Article 3 of the 1949 Geneva Conventions, by, among other things, takingjudicial notice of the fact that the Special Rapporteur for Rwanda, the Commission of Experts on Rwanda and the Security Council had all concluded that the conflict in Rwanda as well as the stream of refugees had created a highly volatile situation in the neighbouring states. Prosecutor v. Akayesu, ICTR-96-4-T, (Judgement) at' 627 (2 September 1998); (takingjudicial notice of United Nations reports); Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T, (judgement) at 273-274 (21 May 1999) (finding that Article 2 of the Statute which defines genocide is not aimed at determining individual responsibility or guilt, rather a finding that genocide occurred merely provided a context in which the crimes alleged in the indictment may have been perpetrated). 34. The Chamber is mindful not to confound the related but discrete concepts of admissions and judicial notice. Thus, the Chamber notes that the Prosecutor's reliance on

420 • Defense in International Criminal Proceedings those cases in which the accused entered a plea of guilty pursuant to a plea agreement or in which the accused voluntarily admitted facts, thereby relieving the Prosecutor of its burden to prove such facts by formal proof, is misplaced. That an accused admits a fact pursuant to a plea agreement reveals nothing about the nature of the facts as either common knowledge or as indisputable. Similarly, facts that are voluntarily admitted by a an accused in the context of a proceeding are not the proper subject ofjudicial notice because such admissions speak neither to the general currency of the fact nor to its indisputable character. For these reasons, the Chamber is not persuaded to take judicial notice of the facts at issue in the instant Motion on the basis of the jurisprudence in the cases cited by the Prosecution. Accordingly, the Chamber shall not take judicial notice of the matters in Appendix A at 8(e), 9,10,11,12,13, and 14. 35. In addition, the Chamber cannot take judicial notice of matters, which are unadorned legal conclusions. Accordingly, the Chamber shall not take judicial notice of the matters in 3 (a) (ii), (iii); (e), (d), (f), (g), (i), U), (k), and (1) in Appendix A because these paragraphs do not contain facts of common knowledge or matters of public notoriety. Rather, they merely recite bare legal terminology borrowed verbatim from Article 3 of Statute of the Tribunal, which lists Crimes Against Humanity. In order to make the matters stated in the foregoing paragraphs eligible for judicial notice, the Prosecutor must state the specific acts or factual matters of which the Trial Chamber is being asked to take judicial notice. Moreover, the Chamber shall not take judicial notice of those facts recited in 4, 5(a), 8(e), and 9-21 in Appendix A because such matters are not reasonably indisputable. 4. Judicial Notice of enumerated Acts Comprising Crime of "Genocide"

36. A fundamental question in this case is whether "genocide" took place in Rwanda. Notwithstanding the over-abundance of official reports, including United Nations reports confirming the occurrence of genocide, this Chamber believes that the question is so fundamental, that formal proofs should be submitted bearing out the existence of this jurisdictional elemental crime. Kayishema,judgement at 273 (referring to "genocide," and holding "the question is so fundamental to the case against the accused that the Trial Chamber feels obliged to make a finding of fact on the issue"). The Chamber shall take judicial notice of the existence of the enumerated acts comprising the crime of genocide as provided in Article 2 and recited in 3(a) of Appendix A, including killing or causing serious bodily harm to members of a group. 37. In the interest of safeguarding the Accused's right to a fair trial and in the interest of fostering judicial economy and consistency, this Chamber takes judicial notice of some of the facts contained in Appendix A to the Revised Memorial, as indicated in Annex A to this Decision. 5. Judicial Notice ofDocuments in Appendix B

38. Similarly, concerning the documents listed in Appendix B, there is ample precedent in this Tribunal to take judicial notice of the existence and authenticity of such documents without taking judicial notice of the contents thereof. The Chamber, nevertheless, shall take judicial notice of the contents of resolutions of the Security Council and of statements made by the President of the Security Council because it is an organ of the United Nations which established the Tribunal. In addition, the Chamber takes judicial notice of the contents of Decret-Loi no. 01/81 and Arrete ministeriel no. 01/03, which are the copies of certain portions of the laws of Rwanda and properly qualify for

ICTR • 421 judicial notice. The Chamber stresses, however, that by takingjudicial notice of the existence and authenticity of the other documents in Appendix B, the Chamber does not take judicial notice of the facts recited therein. 39. It bears noting that the Tribunal has previously taken judicial notice of the very documents listed in Appendix B for purposes of providing an historical and political context for the offences with which an accused is charged. Prosecutor v. Akayesu, ICTR-96-4-T, (judgement) at 157, 165 (2 September 1998). The Defence provides no principled reason why this Chamber should depart from the authority of Akayesu. The Tribunal having previously adjudicated the existence of the very documents and facts of which the Prosecutor seeks judicial notice, it would be wasteful of the Tribunal's resources for this Chamber to now insist upon formal proof of matters of notorious public history. To adopt such an approach would flout the very principles underlying the doctrine ofjudicial notice: judicial economy and consistency ofjudgements. 40. Accordingly, this Chamber takes judicial notice of the documents listed in and appended to Appendix B to the Revised Memorial, without modification, as indicated in Annex B to this Decision. 6. Judicially Noticed Facts Serve as Conclusive Evidence

41. In the case before this Chamber, in exercise of its sound discretion under Rules 94 and 89(B), the Chamber holds that the judicially noticed facts shall serve as conclusive proof of the facts recited in Annexes A and B. The taking ofjudicial notice of those facts in Annexes A and B will end the evidentiary inquiry. To permit the Defence to submit evidence in rebuttal of the judicially noticed facts would undermine the very nature of the doctrine which is aimed at dispensing with formal proofs for matters that are of common knowledge and reasonably indisputable. The facts in Annex A that the Chamber has judicially noticed are of common knowledge or public notoriety and reasonably indisputable. Such an approach safeguards the right of the Accused to a fair trial without undue delay, as is his due pursuant to the Statute and the Rules. See Article 20; Rule 87 (A). 7. No Judicial Notice ofInferences

42. The Prosecutor requests that the Chamber take judicial notice of the inferences, without elaboration, that may be fairly drawn from judicially noticed facts. In this regard, Rule 89 permits this Chamber to determine whether it may properly take judicial notice of the logical inferences that may be drawn from the judicially noticed facts in Appendix A and documents in Appendix B. In the interest of protecting the rights of the Accused, the Chamber finds that pursuant to Rule 94 it cannot take judicial notice of inferences to be drawn from the judicially noticed facts in Appendix A. If and when those facts are presented in evidence, that will be the appropriate time for the Chamber to draw the relevant conclusions. 43. It must be stressed, at this time the Chamber draws no impermissible inferences regarding the Accused's involvement in those matters of which it takes judicial notice. The burden of proving the Accused's guilt, therefore, continues to rest squarely upon the shoulders of the Prosecutor for the duration of the trial proceeding. The critical issue is what part, if any, did the Accused play in the events that took place.

422 • Defense in International Criminal Proceedings 8. Time for TakingJudicial Notice 44. The Chamber finds that the proper time for taking judicial notice of the matters contained in Appendices A and B is at this stage of the proceedings. In the interest of aiding the parties in preparing their respective trial presentations the Chamber is constrained to take judicial notice of some of the facts contained in Appendix A, as modified, and of the documents in Appendix B at this time. This Decision shall become part of the trial record of this case.

9. No Presumptions of Fact 45. Having found that Rule 94 adequately provides for the judicial notice of some of the facts sought to be admitted in Appendix A and the documents in Appendix B, the Chamber need not reach that portion of the Prosecutor's Motion requesting the Chamber to create evidentiary presumptions on the basis of the facts stated in the two appendices. Rule 89(B) already provides for the particular matter under consideration, There is, therefore, no need for the Tribunal to apply any other evidentiary rules or principles. Conclusion 46. In conclusion, the Chamber considers that it is appropriate to apply the doctrine ofjudicial notice in the context of this case in some of the instances requested by the Prosecutor because to do so will ensure the Accused a fair trial without undue delay rather than one unnecessarily drawn out by the introduction of evidence on matters which are patently of common knowledge in the territorial area of the Tribunal and reasonably indisputable. The facts of which the Chamber takes judicial notice will not place even the smallest chink in the armour of presumed innocence in which the Accused is cloaked throughout the proceeding. In this regard the Tribunal's pronouncement in Prosecutor v. Akayesu, ICTR-96-4-T, (judgement) at 129 (2 September 1998), with respect to the "general allegations" of which it took judicial notice, is particularly instructive. The Akayesu Chamber stated: •

[T] he Chamber holds that the fact that the [enumerated crimes constituting] genocide [were] indeed committed in Rwanda in 1994 and more particularly in Taba, cannot influence its decision in the present case. Its sole task is to assess the individual criminal responsibility of the accused for the crimes with which he is charged, the burden of proof being on the prosecutor. [Footnote omitted] In spite of the irrefutable atrocities of the crimes committed in Rwanda, the judges must examine the facts adduced in a most dispassionate manner, bearing in mind that the accused is presumed innocent.

47. By takingjudicial notice of some of the facts in Appendix A and the documents in Appendix B, the Chamber merely provides a backdrop-a blank canvas-against which the Prosecutor is still saddled with the daunting burden of adducing formal evidence to paint the picture establishing the personal responsibility of the Accused for the offences with which he is charged in the indictment beyond a reasonable doubt. 48. FOR THESE REASONS THE CHAMBER: (a) DENIES those portions of the Defence's Notice to File Further Written Replies to Prosecutor's Response in the Defence Motion For Dismissal of the Entire Proceeding Filed on the 30 June 2000 and 14 July 2000 and the Prosecutor's

ICTR • 423 Revised Memorial in the Prosecution's Motion for Judicial Notice (Rules 54 and 73), seeking additional time to file written responses to the instant Motion. (b) GRANTS the Prosecutor's Motion and takes judicial notice of the facts and documents described in Annex A and Annex B, attached hereto. (c) ORDERS that this Decision become part of the trial record of this case. (d) DENIES the Prosecutor's requests made in the Motion: (i) to create evidentiary presumptions on the basis of the facts in Appendices A and Band (ii) to take judicial notice of inferences that may be drawn from the judicially noticed facts.

The Prosecutor \t. Juvenal Kajelijeli-Decision on the Prosecutor's Motion for Judicial Notice Pursuant to Rule 94 ofthe Rules, Case No. ICTR-98-44A-T, April 16, 2002

1. The Chamber notes that the Prosecutor moves the Trial Chamber to take judicial notice of the facts presented in Appendix A pursuant to Rule 94(A) of the Rules because they belong to the category of facts of either" [c] ommon knowledge generally known within the Tribunal's jurisdiction or legal conclusions that flow inevitably from them." Supplemental to this argument, the Prosecutor requests that facts presented in Appendix A, which she submits" [c] onstitute adjudicated facts from other proceedings of the Tribunal,"should be judicially noticed pursuant to Rule 94(B) of the Rules. The Prosecutor argues that judicial notice of the said facts will ensure judicial economy and uniformity ofjudgements on general facts regarding the events in Rwanda. 2. However, the Prosecutor cautions that she does not request the Tribunal to take judicial notice of the facts in the present case that directly prove the guilt of the Accused. The Prosecutor submits that she remains with the burden of proving those facts in the ordinary course of trial. Preliminary Considerations

3. The Chamber notes that during the hearing of the Motion the Defence accepted certain categories of facts in Appendix A of the Motion. These facts are the following: 1, 2, 3 (a), (b), (c), and (d), 4 (a), (b), (c), (e), and (f), 5 (a), (c), (d), (e), (f), and 7. Accordingly, the Chamber takes judicial notice of the said facts, which appear as Annex A to this Decision, thereby requiring no proof by the Prosecutor. 4. The Chamber shall decide whether or not to take judicial notice of all facts contested by the Defence in Appendix A. 5. The Chamber recalls the provisions of Rule 94 of the Rules to be: Rule 94: Judicial Notice

(A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof. (B) At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to the matter at issue in the current proceedings.

424 • Defense in International Criminal Proceedings As to Whether the Aim ofJudicial Notice isJudicial Economy and Consistency in Judgements

6. On this issue, the Chamber recalls the Prosecutor's oral arguments. The Prosecution maintains that contrary to the findings in the Ntakirutimana Decision of 22 November 2001,the fundamental reason for judicial notice is that it "[a] ids in the proof and admission of evidence so that such receipt of evidence is not encumbered by the traditional rules on admissibility of evidence." The Prosecutor argues that judicial notice of facts thereby admitted into evidence, shall only be encumbered by the provisions of Rule 89 (C) of the Rules, which provides that" [t] he Chamber may admit any relevant evidence which it deems to have probative value." The Prosecutor also submits that before takingjudicial notice of any facts, the Trial Chamber should consider whether the said facts are relevant and are of probative value. The Prosecutor further argues that judicial economy and is one of the consequences ofjudicial notice, just as consistency in judgements, particularly pursuant to Rule 94(B) of the Rules. (emphasis theirs)

7. The Chamber agrees with the Defence that a balance must be struck between doctrine and the fundamental rights of an accused to a fair trial, as provided under Article 20 of the Statute. The Chamber concurs with the Semanza Decision that, the doctrine ofjudicial notice is applied for two reasons: it "[ e] xpedites the trial by dispensing with the need to formally submit proof on issues that are patently indisputable [and, it] fosters consistency and uniformity of decisions on factual issues where diversity in factual findings would be unfair." 8. While the Chamber agrees with the Prosecutor that judicially noticed facts must be "relevant" and have "probative value," it finds that those facts must also foster judicial economy and uniformity in judgements without encroaching upon the fundamental rights of the accused to a fair trial. Regarding the Facts Sought to Be Judicially Noticed for Being Either of "Common Knowledge Generally Known Within the Tribunal sJurisdiction" or "Legal Conclusions that Flow Inevitably From Them" orfor Being "Adjudicated Facts"

9. The Prosecutor argues that Appendix A consists of facts of either common knowledge within the Tribunal's jurisdiction or legal conclusions that flow inevitably from such facts. The Prosecutor further submits that Appendix A consists of adjudicated facts based on the volume of references pertaining to each of the factual propositions. 10. The Defence objects to this proposition and argues that most of the facts in Appendix A, in particular paragraphs 8-16, are hardly "common knowledge," akin to the hours in a day or the dates in a calendar year but rather are legal conclusions or characterizations, which the Prosecutor bears the burden to prove, under Article 20 of the Statute. Furthermore, the Defence argues that the above-mentioned facts are similar to the facts for which the Prosecutor sought judicial notice in the Semanza Decision of 3 November 2000. In the said Decision, the Trial Chamber found these facts to be "unadorned legal conclusions" and matters "not reasonably indisputable." 11. The Defence argues against judicial notice of the facts in Appendix A as adjudicated facts in view of pastjurisprudence of the Tribunal which has rejected such requests. The Defence relies on the general principal of law of actori incumbit probatio, whereby a person who relies on a fact or a rule bears the burden of proof with regard to the fact or preconditions for the application of the rule. The Defence argues that the Prosecutor bears the burden of proof and that, in seeking application of Rule 94 (B) of the Rules,

ICTR • 425 the Prosecutor must demonstrate that takingjudicial notice of adjudicated facts will not inevitably undermine the very nature of the judicial process. 12. The Trial Chamber notes that Rule 94(A) of the Rules makes it mandatory that a Trial Chamber take judicial notice of facts of "common knowledge" and thereby dispenses with the requirement of proving the facts. The Tribunal, by its jurisprudence, has defines "common knowledge" to encompass inter alia matters, "[s] 0 notorious, or clearly established or susceptible to determination by reference to readily obtainable and authoritative sources that evidence of their existence is unnecessary [and] those facts that are generally known within a tribunal's territorialjurisdiction [and that] there is no requirement that a matter be universally accepted in order to qualify for judicial notice." 13. The Chamber further notes that "[o]nce it has deemed a fact to be of common knowledge, under Rule 94, it must determine that it is reasonably indisputable [and this is so] if it [the fact] is generally known within the territorial jurisdiction of a court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be called into question." 14. Likewise, the Chamber finds that, pursuant to Rule 94(B) of the Rules, the facts that may be judicially noticed must have been adjudicated in other proceedings and must relate to matters at issue in the current proceedings. As stated in the Ntakirutimana Decision, "unlike Rule 94 (A), litra (B) therefore, is discretionary. It is for the Chamber to decide whether justice is best served by its taking judicial notice of adjudicated facts." Furthermore, the International Criminal Tribunal for the Former Yugoslavia (the "IClY') Appeals Chamber, acting in the case of The Prosecutor v. Kupreskic of 8 May 2001, found that, "[o]nly facts in ajudgement, from which there has been no appeal, or as to which any appellate proceedings have concluded, can truly be deemed adjudicated facts within the meaning of Rule 94(B)." The Chamber agrees with this ruling and also concurs with the reasoning in the Semanza Decision, whereby judicial notice of certain facts was not taken because of the Prosecutor's reliance on cases in which the accused had entered a plea of guilt pursuant to a plea agreement, such as in the KambadaJudgement of 4 September 1998. Similarly, the Chamber shall not judicially notice facts in which the Prosecutor relies on cases in which the accused voluntarily admitted facts, such as in the MusemaJudgement of 27 January 2000. As Regards Fact (6) in Appendix A that, "Between 1 January 1994 and 17July 1994 in Rwanda there was an armed conflict not of an international character"

15. Regarding this proposition the Prosecutor relies on various United Nations ("UN") publications and case law from the Tribunal. The Prosecutor specifically cites the AkayesuJudgment of 2 September 1998, which considered the armed conflict in Rwanda and found at para. 174 "[b] eyond a reasonable doubt that armed conflict existed in Rwanda during the events alleged in the indictment." The Chamber notes that the judgements did not indicate whether or not said armed conflict was of an international nature. On the other hand, the Kayishema & RuzindanaJudgement of 21 May 1999 and the Ru taganda J udgemen t of 6 December 1999, relying on the AkayesuJudgement, concluded that there was an internal armed conflict in Rwanda during the above mentioned period.

426 • Defense in International Criminal Proceedings 16. In objection to the said proposition, the Defence submit inter alia that countries such as Uganda, Burundi, Tanzania, Belgium and the United States of America played a non-negligible role, without which the RPF would not have had a successful war. (their emphasis) 17. Given the varying statements regarding the nature of the armed conflict in Rwanda during the above-mentioned period, the Chamber is of the opinion that this proposition is reasonably disputable because it is a proposition which cannot be accurately and readily determined through the sources provided by the Prosecutor. Accordingly, the Chamber shall not take judicial notice of fact 6 in Appendix A. Regarding Facts 4( d), 5(b), 5(e) and Facts 8 Through 16 in Appendix A

18. The Defence disputes facts 4(b), 5(b) and 5(e) because, during the period specified, the Accused was elected and not appointed to office as Bourgmestre, which was the procedure established after the advent of multiple political parties in Rwanda. Furthermore, the Defence argues that policing duties by the Bourgmestre at that time could not be performed because of the armed conflict. Similarly, the Defence argues that, during the war, the Prefer could not perform his duties to administer the Prefecture by ensuring peace, public order and safety of people and property. In view of the charges against the Accused for alleged criminal responsibility, pursuant to Article 6(1) and 6(3) of the Statute, for the various crimes with which he is charged in the indictment, the Chamber is of the opinion that the Prosecutor bears the burden of proving said facts beyond a reasonable doubt. The Chamber therefore shall not take judicial notice of facts 4(d), 5(b) and 5(e) in Appendix A. 19. Regarding facts 8 through 16, the Defence objects to the propositions disputing, for instance, the allegations that only Tutsis were attacked, insofar as certain reports affirm the massacres of Hutus and Twas. The Defence further argues thatjudicial notice of widespread and systematic attacks, which were organized and planned, would amount to a determination that a conspiracy to commit such attacks did exist. To judicially notice said facts, the Defence argues, would rob the Accused of his right to defend himself against the charge of conspiracy. The Chamber is of the opinion that indeed the said propositions are reasonably disputable and that, in order to properly serve the cause ofjustice, the Prosecutor must prove the alleged facts beyond a reasonable doubt. Therefore, the Chamber shall not take judicial notice of facts 8 through 16 in Appendix A. FOR THE ABOVE REASONS, THE TRIAL CHAMBER GRANTS the Motion and judicially notices the facts which are reproduced in Annex A to this Decision. DENIES the Motion in every other respect.

Prosecutor \t. Casimir Bizimungu et al.-Decision on Mugenzi's Confidential Motion for the Filing Service of Disclosure of Expert Reports and/or Statements, Case No. ICTR·99·50·T, November 10, 2004

BEING SEIZED of the "Highly Confidential Justin Mugenzi's Urgent Motion for the Filing, Service or Disclosure of Expert Reports and/or Statements" (the "Motion") filed on 19 October 2004;

ICTR • 427 NOTING (i) the "Memorandum from Casimir Bizimugnu in support ofJustin Mugenzi's Highly Confidential Motion for the Filing, Service or Disclosure of Expert Reports and or Statements" filed on 21 October 2004 AND (ii) the "Prosecutor's Response to Mugenzi's Urgent Motion for the Filing, Service or Disclosure of Expert reports and/or Statements" filed on 22 October 2004; HAVING BEEN SEIZED of 'Justin Mugenzi's Urgent Motion for the Filing, Service or Disclosure of Expert Reports and/or Statements" on 15 October 2004; NOTING the Correspondence from the Prosecution to the Registry regarding Justin Mugenzi's Urgent Motion for the Filing, Service or Disclosure of Expert Reports and/or Statements dated 18 October 2004 in which the Prosecution brought to the attention of the Defence that the Motion of 15 October 2004 contained closed session material that should be removed from the public domain; NOTING that the Defence brought this issue to the attention of the Chamber who, during the 18 October 2004 proceedings, directed the Registry to mark as CONFIDENTIAL the annexes to the Motion filed on Friday 15 October 2004 as confidential. NOTING that the Defence's request to withdraw the Motion filed on 15 October 2004 from the role was granted by the Chamber on 20 October 2004; NOTING the letter by Ms Saint Laurent to Mr. Ng'arua, Counsel for Bizimungu filed on 3 November 2004 acknowledging receipt of three expert reports and requesting the curriculum vitae of those experts; NOTING the "Prosecutor's Response to Notices Filed Under Rule 94bis (B) of the Rules of Evidence and Procedure by Casimir Bizimungu, Jerome Bicamumpaka, and Justin Mugenzi Objecting to the Qualification and Statements of Prosecutor's Expert Witnesses Deo Mbonyinkebe, Binaifa Nowjoree, and Jean Rubaduka" filed on 8 November 2004 (the "Prosecutor's Response to Notices"); NOTING that the Annexes A-I, A-2 and A-3 to the Prosecutor's Response to Notices were filed on 10 November 2004; CONSIDERING the Statute of the Tribunal (the "Statute") and the Rules of Procedure and Evidence (the "Rules"), particularly Rule 94bis of the Rules; NOW DECIDES the matter solely on the basis of the briefs of the parties pursuant to Rule 73 (A) of the Rules. SUBMISSIONS OF THE PARTIES The Defencefor Bicamumpaka

1. The Defence argues that on 5 March 2004, the Prosecution indicated that the reports of the scheduled expert witnesses would be supplied to the Chamber and to the Defence by 15 April 2004. The Defence cites extracts of closed session transcripts annexed to the Motion in support. 2. The Defence states that since then, it has received nothing. As the proceedings would be adjourned soon and until mid-january 2005, the Defence adds that this would be an ideal period to prepare itself for the testimonies of those experts. 3. The Defence argues that while Rule 94bis allows the Prosecution to file such reports with the Chamber no later than 21 days before the expert is to testify, this is only a min-

428 • Defense in International Criminal Proceedings imum requirement; the same Rule indicates that the full statements shall be disclosed to the opposing party as early as possible. 4. The Defence adds that the Prosecution has a duty to control and require expert witnesses to act with expedience in the preparation of their reports and that in the case of Justin Mugenzi, the Prosecution has had some six years to prepare such reports. 5. The Defence therefore submits that the Chamber should order the Prosecution to file the reports of all expert witnesses it intends to call by 28 October 2004, failing which the Prosecution should be barred from calling or relying upon the said evidence. The Defencefor Bizimungu

6. The Defence for Bizimungu supports the Motion and adds that it has reminded the Prosecutor of the urgency in disclosing the Expert Reports on 23 July 2004, making reference to the 5 March 2004 Status Conference discussion on this issue.

7. The Defence alleges that it needs to absorb the content of any expert report to prepare for the research of counter-expert material for cross-examination. 8. The Defence recalls that it is expected to be the first Defence team in this joint trial to present its case and it cannot enlist witnesses before having analysed the Prosecution expert reports. Therefore, any delay in disclosing the reports, might cause delays in the presentation of the Defence case. The Defence submits that it is in the interests ofjustice to disclose those reports by 28 October 2004. 9. The Defence for Bizimungu in a letter filed on 3 November 2004 requested the Prosecution to file the curriculum vitae of the three experts for which reports had been filed. The Prosecution s Response

10. The Prosecution recalls that during the 5 March 2004 Status Conference, it identified the following four expert witnesses to be called to testify: Alison Desforges, Jean Rubaduka, Binaifa Nowrojee and Deo Bonyinkebe. 11. The Prosecution cites Rule 94bis (A) of the Rules and a Decision in the Semanza Case to indicate that the rule does not set a specific deadline for disclosure whereas in the Nyiramasuhuko case, the Chamber had set a deadline for disclosure of the expert reports. In the instant proceedings, the Prosecution argues that no such deadlines have been set. 12. The Prosecution cites the Nahimana Case in which the Chamber considered the element of surprise and whether there was enough time for the opposing party to prepare. 13. The Prosecution states that it has intimated to the Defence that the Report of Alison Desforges will be similar to her previous reports in the Military I, Akayesu, Media, Ndindabahizi, Simba and Gacumbitsi cases and that it disclosed to the Defence her testimony in the Akayesu, Military I, Media and Gacumbitsi cases on 18 September 2003. The Prosecution adds that the draft expert report of Deo Mbonyinkebe was disclosed to the Defence on 22 October 2004 and that it undertakes to disclose the draft expert reports ofJean Rubaduka and that of Binaifa Nowrojee on 25 October 2004. 14. Therefore, the Prosecution concludes that it has complied with its disclosure obligations, that the Defence has sufficient material to prepare and will not be taken by surprise.

ICTR • 429 HAVING DELIBERATED 15. The Chamber recalls that Rule 94bis (A) states that: •

Notwithstanding the provisions of Rule 66(A) (ii), Rule 73bis(B) (iv) (b) and Rule 73 ter (B) (iii) (b) of the present Rules, the full statements of any expert witness called by a party shall be disclosed to the opposing party as early as possible and shall be filed with the Trial Chamber not less than twenty-one days prior to the date on which the expert is expected to testify.

16. The Chamber further recalls that pursuant to Rule 94bis (B), the opposing party shall file a notice to the Chamber within 14 days of the filing of the statements indicating whether it accepts (i) the qualification or the witness as an expert, (ii) the expert witness statement and if it wishes to cross-examine the expert witness. 17. Rule 94bis clearly addresses disclosure and filing obligations. As stated in the Bagosora et al. case, "its purpose is to ensure that the opposing party has sufficient notice of the content of the expert witness's testimony to effectively prepare for cross-examination and make objections thereto." 18. Considering that those witnesses have not been scheduled to testify within 21 days, the Chamber is of the view that there is no legal basis for the remedy sought by the Defence, insofar as they seek to bar the Prosecution from calling or relying upon the evidence of witnesses whose reports have not been filed by 28 October 2004. 19. The Chamber notes that the experts will be called during the last trial session scheduled to start on 1 February 2005. Nonetheless, the Chamber recalls that during the 5 March 2004 Status Conference, discussions on the issue of disclosure of the expert reports took place and the Prosecution gave indications that it had asked the experts to file their reports at least by 15 April 2004. The Chamber had reminded the Prosecution that it should adhere to that date. The Chamber wishes to further remind the Prosecution that disclosure of the full statements of the expert witnesses should be made, as a matter of principle, as early as possible. 20. The Chamber also notes that since the filing of the Motion, (i) the draft Expert Report ofDeo Mbokyinkebe was filed in French with the Registry on 21 October 2004, (ii) the draft Expert Report of Binaifer Nowrojee was filed with the Registry on 25 October 2004 in both languages, and (iii) the Expert Report ofJean Rubaduka was filed in French with the Registry on 25 October 2004. The Defence for Bicamumpaka, Mugenzi and Bizimungu have filed their notice pursuant to Rule 94bis (B) of the Rules. With respect to the two draft expert reports, the Chamber does not find that a draft form satisfies the filing obligation, and orders the Prosecution to indicate by 15 December 2004 any variance between the draft Reports and any eventual final Reports to be filed pertaining to Deo Mbokyinkebe and Binaifer Nowrojee to allow the Defence sufficient time to prepare. 21. The Chamber further notes that no report has yet been filed with respect to Alison Desforges. The Prosecution's indication that Desforges' Report will be similar to previous reports filed in six other cases does not satisfy the disclosure obligations envisaged under Rule 94bis (A). The Chamber orders that the final Report by Alison Desforges be filed by 15 December 2004 at the latest so as to allow sufficient time both for its translation and the preparation of the Defence.

430 • Defense in International Criminal Proceedings 22. Finally, with respect to Bizimungu's request for the filing of the curriculum vitae of the three expert witnesses, the Chamber notes that in the Prosecutor's Response to Notices, the Prosecution indicates that it has attached the curriculum vitae of expert witnesses Deo Mbonyinkebe, Binaifa Nowrojee andJean Ruboduka. The Chamber notes that those documents were not attached to the said Response but were filed a day later, on 10 November 2004. Without going into the substance of this Response, the Chamber recalls the Nahimana et al. case in support of the contention that the curriculum vitae of expert witnesses should be submitted "as verification or in support of their expert status." Consequently, the Chamber orders the filing of the curriculum vitae of Alison Desforges by 15 December 2004 FOR THE ABOVE REASONS, THE TRIAL CHAMBER GRANTS in part the Defence Motion ordering the Prosecution to disclose the Expert Reports within a certain deadline; ORDERS the Prosecution to file the final statement and the curriculum vitae of Alison Desforges by 15 December 2004 at the latest; ORDERS the Prosecution to indicate by 15 December 2004 any variance between the draft Reports and any eventual final Reports to be filed pertaining to Deo Mbokyinkebe and Binaifer Nowrojee. DENIES the Defence Motion in all other respect.

The Prosecutor \t. Arsene Shalom Ntahobali-President's Decision on the Appeal Filed Against the Registrar's Refusal to Permit a Confidential Interview With Georges Rutaganda, Case No. ICTR-97-21-T, June 6, 2005

CONSIDERING an appeal of 28 February 2005 from Arsene Shalom Ntahobali against the Registrar's refusal to grant a request for an interview with Georges Rutaganda; the Registrar's response of 8 March 2005; and the Applicant's reply of 10 March 2005; HEREBY DECIDES THE APPEAL INTRODUCTION 1. The Applicant is currently being tried for genocide, complicity in genocide, crimes against humanity and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. On 17 January 2005, he requested an interview with Georges Rutaganda, a convicted prisoner, presently in the custody of the Tribunal. The Registrar granted his request, conditional upon a member of the Prosecution being present during the interview, to accommodate the objection raised by the Prosecutor. SUBMISSIONS 2. The Applicant submits that the Registrar granted his request, conditional upon a member of the Prosecution being present at the interview, without considering the merits of the Prosecutor's objection. He argues that Rule 64 of the Rules Covering the Detention of Persons Awaiting Trial or Appeal before the Tribunal or otherwise Detained on the Authority of the Tribunal ("the Rules of Detention") confers on the Registrar the discretion to consider the merits of the Prosecutor's objection. The Registrar has

ICTR • 431 not exercised this discretion which must be exercised in a fair and reasonable manner. The Applicant also raises the appropriateness of the Registrar's action in informing the Prosecutor of his request. 3. In response, the Registrar submits that there is no provision in the Tribunal's legal texts authorising him to question the Prosecutor's objections to confidential visits to detainees. He also submits that in order for the Prosecutor to invoke Rule 64 of the Rules of Detention, he has to be informed of impending visits. DELIBERATION 4. The Applicant has filed his appeal pursuant to Rule 64 of the Rules of Detention. This Rule empowers the Registrar to prohibit, regulate or set conditions for contact between a detainee and any other person, following a request from the Prosecutor. In the present case, the Applicant was permitted to interview Georges Rutaganda in the presence of a representative from the Office of the Prosecutor. These conditions were set because Mr. Rutaganda is in possession of disclosure materials which could be prejudicial to the Prosecution. 5. Rule 64 of the Rules of Detention confers on the detainee, who in the present case is Mr. Rutaganda, the recourse of requesting the President of the Tribunal to deny or reverse the Prosecutor's request. This Rule does not allow the third party who had requested the visit or interview to seek a reversal of the Prosecutor's request. It follows that the Applicant cannot base the admissibility of his appeal on this rule. His appeal is therefore inadmissible. 6. This being said, it should be noted that the Registry merely acted in a manner envisaged in Rule 64 of the Rules of Detention when it informed the Prosecutor of the Applicant's request to interview Mr. Rutaganda. The Registry is obliged, in fairness to Mr. Rutaganda, to inform him of the requested visit, the objections raised by the Prosecutor, and the reasons for these objections. This places Mr. Rutaganda in a position to challenge these objections, should he so choose.

7. As a neutral entity servicing the courts and the parties, it is not the Registry's role to determine the validity of the Prosecutor's objections. It is the President who may consider the validity of these objections, but as stated above, only at the request of the detainee concerned, who in the present case is Mr. Rutaganda. It is noted that Mr. Rutaganda has not expressed his willingness to participate in a confidential interview with the Applicant and he has also not challenged the Prosecutor's objection to this confidential interview. 8. The Applicant has requested an interview with Mr. Rutaganda because he is a potential Defence witness. This has a direct bearing on his fair trial rights guaranteed in Article 20 of the Statute. It is noted that this matter was raised at a status conference in which the Applicant sought the in tervention of Trial Chamber II. The Presiding Judge of this Chamber recognized that this matter was the subject of review and took cognizance of the fact that due process needs to be followed. This process has now been exhausted. The Applicant may therefore wish to consider seeking appropriate relief from Trial Chamber II. This Chamber would be best place to determine the merits of his request and the Prosecutor's objection to this request.

432 • Defense in International Criminal Proceedings FOR THE ABOVE MENTION REASONS, the Tribunal dismisses the appeal of 28 February 2005 filed by Arsene Shalom Ntahobali.

5.6.3. Commentary ICTR's pertinent texts and its case law clearly uphold the defense right to access to witnesses. The defense may call its own witnesses and this right is safeguarded through different legal tools similar to those available to the prosecutor, so as to foster the equality of arms between the parties. Defense expert witnesses are paid by the Registry based on a showing that they qualify as cxperts.w Vulnerable defense witnesses may enjoy the same level of protection as the prosecutor's witnesses.v? The evidence of defense witnesses may also be taken by way of a deposition according to the same criteria as prosecutor's witnesses, namely when good reasons (exceptional circumstances) prevent the witness from giving testimony in court.v" States' cooperation can also be required to facilitate the defense access to witnesses, when difficulties on the ground make it neccssary.'" Such cooperation may be required for the transfer, to the seat of the Tribunal, of witnesses detained in connection with domestic proceedings, the proviso being that that the said transfer should not prolong that detention.?" Reluctant defense witnesses may also be compelled to testify through subpoena or any other means as the judges may deem fit. 71 An effective defense right to access to witnesses entails first and foremost access to the prosecution witnesses. Indeed the defense may well not call any witness on its own, and rather opt to only discredit the prosecution case, and thereafter enter a plea of "no case to answer." This requires, in turn, that the defense be privy to the anticipated testimony of prosecutor's witnesses so as to mount an effective cross-examination. To this end, disclosure of prosecution witnesses' prior statements to the defense is provided for pursuant to Rules 66, 67 and 68. Any breach by the prosecutor of his or her disclosure obligation my give rise to a defense motion and a subsequent judicial order to compel disclosure or to grant any other suitable remedy. 72 66 See cited case Prosecutor v. Pauline Nyiramasuhuko and Arsene Shalom Ntahobali; (ICTR-97-21-T), Decision on the Appeal of the Registrar's Decision of Apr. 13,2005 with regard to Mr. Edmond Babin; Apr. 18, 2005. 67 Prosecutor v. Aloys Simba (ICTR-01-76-T), Decision on the Defense "Requete de la defense aux fins d' obtenir que la chambre ordonne la comparution des temoins a dechargc BJKl et HBK et prescrire des mesures de protection susceptibles de garantir leur securitc'': May 4,2005. 68 See Rule 71 of the Rules of Procedure and Evidence and an application thereof in the cited case cited Prosecutor v. Casimir Bizimungu et al. (ICTR-99-50-T), Decision on Prosper Mugiraneza's Motion Pursuant to Rule 71 for Deposition of a Witness; Nov. 4, 2004. 69 See cited case Prosecutor v. Aloys Simba (ICTR-01-76-T); Decision on the Defense Request for the Cooperation of Rwandan Government, pursuant to Article 28; Oct. 28, 2004. 70 Rule 90 bis of the Rules. See also Prosecutor v. Aloys Simba (ICTR-01-76-T), Order for the Transfer of Detained Witnesses (TC), Feb. 17, 2005. 71 See Rule 54 and an application thereof in the cited case Prosecutor v. Aloys Simba (ICTR-01-76-T), Decision on the Defense Request for Subpoena, May 4,2005. 72 See cited case Prosecutor v. Aloys Simba (ICTR-01-76-T), Decision on Defense Motion for Disclosure ofJudicial Records, Oct. 27, 2004. Prosecutor v. Casimir Bizimungu et al. (ICTR99-50-T); Decision on Defense Motion to Order a Witness to Be Returned for Further Crossexamination based upon Late Disclosure, May 6, 2005.

ICTR • 433 The right to access to prosecution witnesses statements is furthered by the acknowledgement of the defense right to interview those witnesses, even when they enjoy protection. For the latter category, there is however a need to secure, prior to the interview, authorization from the prosecution and consent from the witness to be interviewed.:" There have even been instances where the judges have lifted the prosecution's prior authorization requirement, depending on the surrounding circumstances.?! When witness statements have been enriched by new revelations during the preparation for testimony, ICTR has developed an interesting practice, which consists of a notice that the prosecutor gives to the defense regarding the additional information the witness has supplied. The additional statement labeled "will-say statement" is subject to disclosure to the defense as per Rule 67, which provides for a continuous disclosure obligation as new materials unfold. More interestingly, a full legal regime of admissibility of evidence previously disclosed in a form of will-say statements has been developed. It acknowledges the possibility for a witness, before taking the stand, to supplement his prior statements, irrespective of whether this results from a refreshment of memory of the witness or from a change in the angle of questioning of the witness. The threshold of admissibility rests, however, with the relevance to the indictment combined with the probative value of the new material. The defense rights will always be fully preserved either by providing it sufficient time to enable it to prepare for cross-examination in respect of the newly disclosed material, or by declaring inadmissible such material, depending on whichever better serves the interest of'justice.f" The defense access to prosecution witnesses' statements has also been expanded to cover statements not necessarily taken by the prosecutor. This has been the case of confessions made in Rwanda by persons prosecuted before the Rwandanjurisdictions and who are subsequently called to testify on behalf of ICTR's prosecutor. The issue has been whether the ICTR prosecutor had a duty to disclose to the defense those statements in the absence of any binding rule to that effect and despite the fact that the prosecutor did not have those statements in his possession. The judges have held that no such disclosure obligation existed.?» They have however often requested the prosecutor to assist in getting those statements."? The nature of the decision may vary. It may be a mere non-binding request based on the assumption that the prosecutor has more resources than the defense and may, in the interest of justice, make use of those resources to facilitate the defense access to information that may be relevant to test the credibility of witnesses. 78 The decision may also be compulsory when based on Rule 98 of the Rules, which authorizes a Chamber or a judge to order a party to provide additional information. 79 73 See cited case Prosecutor v. Casimir Bizimungu et al. (ICTR-99-50-T), Decision on Prosper Mugiraneza's Motion to Require the Registrar to Allow Access to a Witness, Oct. 2, 2003. 74 See cited case Prosecutor v. Casimir Bizimungu et al (ICTR-99-50-T), Decision on Prosper Mugiraneza's Motion to Vary Restrictions in the Trial Chamber's Decision of Oct. 2, 2003 Related to access Jean Kambanda, Aug. 24, 2004. 75 See cited case Prosecutor v. Aloys Simba (ICTR-01-76-T), Decision on Admissibility of Evidence of Witness KDD, Nov. 1, 2004. 76 See cited case Prosecutor v. Aloys Simba (ICTR-01-76-T), Decision on the Defense Oral Motion for Interpretation of the Trial Chamber's Decision on the Defense Request for Cooperation of Rwandan Government Pursuant to Article 28, Made on Oct. 28, 2004, Nov. 1, 2004. 77 Id. 78 Id. 79 Id.

434 • Defense in International Criminal Proceedings The defense access to witnesses, although widely safeguarded as shown above, may be fettered by other considerations, one of which is the need for the protection of witnesses. ICTR has, in this regard, endeavored to strike the balance between a fair trial guaranteed by a defense full access to witnesses and the safeguard of witnesses' safety. Rule 69, particularly in its first wording prior to its amendment in May 2003, seemed, at first glance, to be a good compromise in providing for the withholding from the defense of the identifying data of vulnerable witnesses exceptionally protected. The defense would however, gain access to those data once the witness is under the Tribunal's protection, and in any event prior to the trial. This compromise, as codified in Rule 69, had proven to be accommodating to neither of the partics.s? Witness statements disclosed to the defense without the identifying particulars would give rise to genuine complaints by the defense that they might be useless to help them prepare, particularly when they are overly redacted.s! Conversely, the prosecutor would be reluctant to make a single disclosure of the identities of all witnesses prior to trial (omnibus disclosure). The omnibus disclosure is perceived to have the potential of rendering futile any witness protection, particularly, given the length of the presentation of the prosecution's case, which may span easily over two years in multi-accused trials. It was argued that when the identity of a protected witness is known to the defense (against which the witness is supposed to be protected) months or years prior to his or her testimony, the delay in such disclosure, ordered in the first place to preempt any risk for the witness, becomes devoid of all its mcaning.v Faced with this dilemma, the ICTRjudges have, by and large, settled the issue at the expenses of the defense. The case law shows a strong tendency to construe the requirement for witness statements pre-trial disclosure, to mean disclosure before the testimony. As a result, the defense is entitled to get the identifying particulars of witnesses only a number of days or weeks (generally 21 days) before they take the stand.f" This departure from the plain language of Rule 69 (C) has nourished some conrrovcrsy'< before being settled by way of a rule change that has conformed the text to the pracrice.f The defense access to witnesses, particularly the right for cross-examination, may also be limited for the sake ofjudicial economy. This is the case when statements are admitted in the proceedings without the witness who made them being called to take the stand. This may happen when the prospective testimony would merely be intended to provide information that does not go to proof of the criminal conduct of the accused.v' A similar legal regime is also catered for in case of proof of facts of common 80 See cited case Prosecutor v. Bagosora et al. Case Decision on Prosecutor's Motion for Harmonization and Modification of Protective Measures for Witnesses, Nov. 29, 2001. See also subsequent Decision and Scheduling Order of Dec. 5, 2001. 81 Id., see para. 8 of the Decision on Harmonization. 82 Id., see paras. 16 to 22 of the Scheduling Order decision.

83

Id.

See the dissenting opinion ofJudge Pavel Dolenc annexed to Prosecutor v. Bagosora et al., Decision on Prosecutors Motion for Harmonization and Modification of Protective Measures for Witnesses, Nov. 29, 2001. 85 At the plenary session of the judges of May 2003 Rule 69 has been amended and redrafted to its current version, which has taken out the compulsory disclosure of witness statements prior to trial. 86 See Rule 92 bis of the Rules and an application thereof in the cited case Prosecutor v. 84

ICTR • 435 knowledge or facts already adjudicated over in previous procecdings.s? In both cases the defense rights are however safeguarded, first by providing it a forum for hearing prior to admission of the evidence. This admission is also subject to a strict control that the intended evidence would not circumvent the prosecutor's duty to prove his case, particularly in respect of the accused's alleged criminal conduct, beyond reasonable doubr.v' Lastly, an infringement upon the defense right to call witnesses for its case could be found in the wording of Rule 96, which limits the discretion of the accused in the nature of the evidence to be adduced to defend against accusations of rape and/or sexual assaults. Here again the need to protect victims that are particularly vulnerable, coupled with a strict control of the relevance of the evidence to the charges at stake, have provided the justification for such limitation. Fortunately, the ICTR daily practice has not hitherto offered any example of non-admission of defense evidence based on the need to protect the victim at the expenses of the defense case. In conclusion, ICTR has put in place a mechanism that guarantees, to a large extent, the defense access to witnesses as provided for in all international legal instruments. When accommodating other competing interests, the ICTR pertinent texts, as well as its case law, have never gone that far so as to put into jeopardy the defense right to a fair trial, which is the broader principle encompassing the right to access to witnesses

Theonestc Bagosora et al. (ICTR-98-41-T), Decision on Admission of Statements of Deceased Witnesses, Jan. 19, 2005. 87 See Rule 94 of the Rules and an application thereof in the cited case Prosecutor v. Laurent Semanza (ICTR-97-20-T), Decision on Prosecutor's Motion for Judicial Notice and Presumption of Facts, Nov. 3, 2000. 88 See Prosecutor v. Thconcsrc Bagosora et al. (ICTR-98-41-T), Decision on Admission Statements of Deceased Witnesses, Jan. 19,2005 and Prosecutor v. Laurent Semanza (ICTR-97O-T, Decision on Prosecutor's Motion for Judicial Notice and Presumption of Facts, Nov. 3,2000 in which cases the standard for admission is clearly spelt out.

CHAPTER 6

THE INTERNATIONAL CRIMINAL COURT Kenneth S. Gallant and Stefan Kirsch

6.1. RIGHT TO COUNSEL UNDER THE ICC STATUTE, THE RULES OF PROCEDURE AND EVIDENCE AND THE REGULATIONS OF THE COURT* 6.1.1.

Introduction

The Right to Counsel in criminal cases is one of the great internationally recognized human rights. It is protected in the ICC Statute, Rules of Procedure and Evidence and Regulations of the Court, sometimes in ways that extend it beyond the minimums required in international human rights law. Especially because there is very little practice at the time of this writing, and none beyond the Investigative Stage, Counsel must keep aware of the latest developments.

6.1.2. 6.1.2.1.

Statutes, Rules and Official Legal Documents ICC Statute 1 ICC Statute, Article 55(2)

2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned: (a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court; (b) To remain silent, without such silence being a consideration in the determination of guilt or innocence; (c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests ofjustice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and

*

Sections 6.1 was written by Kenneth S. Gallant. Text of the Rome Statute circulated as document A/CONF.183/9 ofJuly 17, 1998 and corrected by proces-verbaux of Nov. 10, 1998,July 12, 1999, Nov. 30, 1999, May 8, 2000, Jan. 17, 2001 and Jan. 16,2002. The Statute entered into force on July 1,2002. 1

437

438 • Defense in International Criminal Proceedings

(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

ICC Statute, Article 56 1.

(a) Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber. (b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence. (c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to the person who has been arrested or appeared in response to a summons in connection with the investigation referred to in subparagraph (a), in order that he or she may be heard on the matter.

2.

The measures referred to in paragraph 1 (b) may include: (a) Making recommendations or orders regarding procedures to be followed; (b) Directing that a record be made of the proceedings; (c) Appointing an expert to assist; (d) Authorizing counsel for a person who has been arrested, or appeared before the Court in response to a summons, to participate, or where there has not yet been such an arrest or appearance or counsel has not been designated, appointing another counsel to attend and represent the interests of the defence; (e) Naming one of its members or, if necessary, another available judge of the PreTrial or Trial Division to observe and make recommendations or orders regarding the collection and preservation of evidence and the questioning of persons; (f) Taking such other action as may be necessary to collect or preserve evidence.

3.

(a) Where the Prosecutor has not sought measures pursuant to this article but the Pre-Trial Chamber considers that such measures are required to preserve evidence that it deems would be essential for the defence at trial, it shall consult with the Prosecutor as to whether there is good reason for the Prosecutor's failure to request the measures. If upon consultation, the Pre-Trial Chamber concludes that the Prosecutor's failure to request such measures is unjustified, the Pre-Trial Chamber may take such measures on its own initiative. (b) A decision of the Pre-Trial Chamber to act on its own initiative under this paragraph may be appealed by the Prosecutor. The appeal shall be heard on an expedited basis.

4. The admissibility of evidence preserved or collected for trial pursuant to this article, or the record thereof, shall be governed at trial by article 69, and given such weight as determined by the Trial Chamber.

The International Criminal Court • 439

ICC Statute, Article 61 (1) and (2) 1. Subject to the provisions of paragraph 2, within a reasonable time after the person's surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel. 2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial when the person has: (a) Waived his or her right to be present; or (b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held. In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interests ofjustice.

ICC Statute, Article 67(1) 1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:

(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;

(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests ofjustice so require, and without payment if the accused lacks sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute; ....

6.1.2.2.

Rules of Procedure and Evidence 2 Rule 20 Responsibilities ofthe Registrar relating tothe rights ofthe defence

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 2 Adopted by the Assembly of States Parties, First session, New York, Sept. 3-10, 2002 (Official Records ICC-ASP /1/3).

440 • Defense in International Criminal Proceedings 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 and effective 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 defencerelated issues; (e) Provide the defence with such facilities as may be necessary for the direct performance of the duty of the defence; (f) Facilitate 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 to in sub-rule 3 to promote the specialization and training of lawyers in the law of the Statute and the Rules. 2. The Registrar shall carry out the 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. 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 counselor legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties.

Rule 21 Assignment oflegal assistance 1. Subject to article 55, paragraph 2(c), and article 67, paragraph l(d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counselor legal associations, as referred to in rule 20, sub-rule 3. 2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list. 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances. 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity.

The International Criminal Court • 441

5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.

Rule 22 Appointment and qualifications ofCounsel for the defence 1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise. 2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity. 3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties.

6.1.2.3.

Regulations ofthe Court 3 Section 1 List ofcounsel and duty counsel Regulation 67 Criteria to be met by counsel

1. The necessary relevant experience for counsel as described in rule 22 shall be at least ten years. 2. Counsel should not have been convicted of a serious criminal or disciplinary offence considered to be incompatible with the nature of the office of counsel before the Court.

Regulation 68 Assistants tocounsel Persons assisting counsel as described in rule 22, sub-rule 1, may include persons who can assist counsel in the presentation of the case before a Chamber. The criteria to be met by these persons shall be determined in the Regulations of the Registry.

3 Adopted by the judges of the Court on May 26, 2004, Fifth Plenary Session, The Hague, May 17-28, 2004 (Official documents of the International Criminal Court ICC-BDj01-01-04). The Regulations and any amendments thereto shall remain in force, if there are no objections from a majority of states parties within six months from the date of their adoption (Article 52(3) Rome Statute). As of this writing, six months have passed without such majority objection, so the Regulations remain in effect.

442 • Defense in International Criminal Proceedings

Regulation 69 Proof and control ofcriteria to be met by counsel 1. A person seeking to be included in the list of counsel shall complete the forms provided by the Registrar for this purpose. 2.

A person referred to in sub-regulation 1 shall also provide: (a) A detailed curriculum vitae; (b) A certificate issued by each Bar association the person is registered with, and/or each relevant controlling administrative authority confirming his or her qualifications, the right to practise and the existence, if any, of disciplinary sanctions or ongoing disciplinary proceedings; and (c) A certificate issued by the relevant authority of each State of which the person is a national or where the person is domiciled stating the existence, if any, of criminal convictions.

3. A person referred to in sub-regulation 1 or counsel already included in the list of counsel shall immediately inform the Registrar of any changes to the information he or she has provided that are more than de minimis, including the initiation of any criminal or disciplinary proceedings against the person. 4. The Registrar may at any stage take steps to verify the information provided by any person referred to in sub-regulation 1 and by counsel already included in the list of counsel.

Regulation 70 Inclusion in the list ofcounsel 1. On receipt of an application by a person seeking to be included in the list of counsel, the Registrar shall establish whether the person has provided the information required under regulation 69. Thereafter, the Registrar shall acknowledge receipt of the application and, where relevant, direct the person to submit additional information. 2. The decision as to whether a person shall be included in the list of counsel shall be notified to that person. If the application is refused, the Registrar shall provide reasons and information on how to apply for review of that decision in accordance with regulation 72.

Regulation 71 Removal and suspension from the list ofcounsel 1.

The Registrar shall remove a counsel from the list of counsel where he or she: (a) No longer meets the criteria required for inclusion in the list of counsel; (b) Has been permanently banned from practising before the Court as a result of disciplinary proceedings held in accordance with the Code of Professional Conduct for counsel; (c) Has been found guilty of an offence against the administration of justice as described in article 70, paragraph 1; or

The International Criminal Court • 443 (d) Has been permanently interdicted from exercising his or her functions before the Court in accordance with rule 171, sub-rule 3. 2. The Registrar shall suspend a counsel from the list of counsel where he or she has been: (a) Temporarily suspended in a disciplinary proceeding according to the Code of Professional Conduct for counsel; or (b) Temporarily interdicted from exercising his or her functions before the Court for a period exceeding 30 days in accordance with rule 171, sub-rule 3. 3. The Registrar shall notify the relevant counsel of his or her decision under sub-regulations 1 or 2. The Registrar shall provide reasons and information on how to apply for review of that decision in accordance with regulation 72.

Regulation 72 Review ofdecisions ofthe Registrar 1.

Application may be made to the Presidency for review of: (a) A decision under regulation 70, sub-regulation 2, refusing to include a person in the list of counsel; (b) A decision under regulation 71, sub-regulation 1, removing counsel from the list of counsel; or (c) A decision under regulation 71, sub-regulation 2, suspending counsel from the list of counsel.

2. Applications as described in sub-regulation 1 shall be set out in accordance with regulation 23 and be filed within 15 days of notification of the relevant decision of the Registrar. 3. The Registrar may file a response within 15 days of notification of the application as referred to in sub-regulations 1 and 2. 4. The Presidency may ask the Registrar to provide any additional information necessary to decide on the application. The decision of the Presidency shall be final.

Regulation 73 Duty counsel 1. The Registrar shall establish and maintain a roster of counsel included in the list of counsel who are available at any time to represent any person before the Court or to represent the interests of the defence. 2. If any person requires urgent legal assistance and has not yet secured legal assistance, or where his or her counsel is unavailable, the Registrar may appoint duty counsel, taking into account the wishes of the person, and the geographical proximity of, and the languages spoken by, the counsel.

444 • Defense in International Criminal Proceedings

Regulation 74 Defence through counsel 1. Defence counsel shall act in proceedings before the Court either when chosen by the person entitled to legal assistance in accordance with rule 21, sub-rule 2, or when the Chamber has appointed counsel in accordance with the Statute, Rules or these Regulations. 2. When represented by defence counsel, the person entitled to legal assistance shall, subject to article 67, paragraph 1 (h), act before the Court through his or her counsel, unless otherwise authorised by the Chamber.

Regulation 75 Choice ofdefence counsel 1. If the person entitled to legal assistance chooses a counsel included in the list of counsel, the Registrar shall contact that counsel. If the counsel is willing and ready to represent the person, the Registrar shall facilitate the issuance of a power of attorney for this counsel by the person. 2. If the person entitled to legal assistance chooses a counsel not on the list of counsel who is willing and ready to represent him or her and to be included in the list, the Registrar shall decide on the eligibility of that counsel in accordance with regulation 70 and, upon inclusion in the list, shall facilitate the issuance of a power of attorney. Until the filing of a power of attorney, the person entitled to legal assistance may be represented by duty counsel in accordance with regulation 73.

Regulation 76 Appointment ofdefence counsel by a Chamber 1. A Chamber, following consultation with the Registrar, may appoint counsel in the circumstances specified in the Statute and the Rules or where the interests ofjustice so require. 2. Where the Chamber decides to appoint counsel in accordance with subregulation 1, and where the counsel considered for appointment is not included in the list of counsel, the Registrar shall first decide on the eligibility of that counsel to be included in the list in accordance with regulation 70. The Chamber may also appoint counsel from the Office of Public Counsel for the defence.

Regulation 77 Office ofPublic Counsel for the defence 1. The Registrar shall establish and develop an Office of Public Counsel for the defence for the purpose of providing assistance as described in subregulations 4 and 5. 2. The Office of Public Counsel for the defence shall fall within the remit of the Registry solely for administrative purposes and otherwise shall function as a wholly independent office. Counsel and assistants within the Office shall act independently. 3. The Office of Public Counsel for the defence may include a counsel who meets the criteria set out in rule 22 and regulation 67. The Office shall include assistants as referred to in regulation 68.

The International Criminal Court • 445 4. The tasks of the Office of Public Counsel for the defence shall include representing and protecting the rights of the defence during the initial stages of the investigation, in particular for the application of article 56, paragraph 2(d), and rule 47, sub-rule 2. 5. The Office of Public Counsel for the defence shall also provide support and assistance to defence counsel and to the person entitled to legal assistance, including, where appropriate: (a) Legal research and advice; and (b) Appearing before a Chamber in respect of specific issues.

6.1.3.

Case Law and Practice

Situation in the Democratic Republic of theCongo Decision on the Prosecutor's Request for Measures Under Article 56, Pages 4-5, No. ICC-01/04, Pre-Trial Chamber I,April 26, 2005 Following the Prosecutor's request for Measures under Article 56, Pre-Trial Chamber I:

CONSIDERING the need to protect the general interests of the defence through the appointment of ad hoc counsel for the defence, given the likelihood that the items submitted for the forensic examinations referred to in the "Prosecutor's Request" will not be available at subsequent stages of the proceedings;

Therefore, ORDERS the Registrar:

(b) To appoint an ad hoc counsel to represent the general interests of the defence for the purpose of the forensic examinations as soon as the Registrar is in receipt of the documents referred to under (ii) [i.e., records and report made by the Netherlands Forensic Institute, an independent expert body within the Dutch Ministry ofJustice] (c) To notify the Prosecutor and the ad hoc counsel for the defence, as soon as the latter is appointed, that they may submit any written questions and observations concerning the documents referred to under (ii) within a period of fifteen days; (d) To make available to the ad hoc counsel for the defence, the "Prosecutor's Request," the "Decision to Hold a Consultation under Rule 114," the transcripts of the Consultation, and any other documents related to the forensic examinations.

6.1.4.

Academic Writing

Elise Groulx, "The Defence Pillar: Making the Defence a Full Partner in the International Criminal Justice System, in Martine HaIlers, Chantal Joubert & Jan Sjocrona eds., The Position of the Defence at the International Criminal Court and the Role of the Netherlands as the Host State 17 (2002), and other articles in this book. Kenneth S. Gallant, "The Role and Powers of Defense Counsel in the Rome Statute of the International Criminal Court," 34 The Int'l Law. 21 (2000).

446 · Defense in International Criminal Proceedings Christopher K. Hall, "Rights of Persons During an Investigation," in Otto Triffterer ed., Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article 727 (1999). William A. Schabas, "Article 67, Rights of the Accused," in Otto Triffterer ed., Commentary on the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article 845 (1999).

6.1.5.

Commentary 4

The right to counsel is a cornerstone of fair criminal justice. It is recognized internationally as vital to protecting the human rights of the accused.> It is prominent in the scheme of protections in the ICC Statute, both in the investigatory stage and after an accusation has been made.

6.1.5.1.

The Right to Counsel During the Investigatory Stage

Counsel, including appointed counsel for those who cannot afford a lawyer, is available to certain persons for certain events during an ICC investigation. The ICC Statute thus provides for protection of defense rights early in an investigation, when it is not usually available in common law jurisdictions. There is, however, no general right to counsel during the investigative stage, as there is after an accusation against a specific person has been made. During an investigation, whenever there are grounds to believe that a person has committed a crime within the jurisdiction of the court, and that person is about to be questioned either by the prosecutor, or by national authorities pursuant to a request made under Part 9 of the Statute (concerning international cooperation and judicial assistance), that person has a right to have legal assistance of that person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests ofjustice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it. 6 Questioning is to occur in the presence of counsel unless the person has voluntarily waived his or her right to counsel." This effectively means that the person must be informed of his or her right to counsel, in order to determine that a person has waived the right. The essential right that is protected is the right to remain silent, without such silence being a consideration in the determination of guilt or innocence." There is also the right to be informed, prior to being questioned, that there are grounds to believe

Many of the ideas in this section were developed from the author's work with the International Criminal Defense Attorneys Association and the International Criminal Bar on issues of access to counsel, the right of counsel to investigate on the territory of states where evidence exists, and confidentiality. Much of this section is an updating and revision of portions of Kenneth S. Gallant, "The Role and Powers of Defense Counsel in the Rome Statute of the International Criminal Court," 34 The Int'l Law. 21 (2000). 5 International Covenant on Civil and Political Rights, Article 14, done at New York, Dec. 16, 1966, entered into force, Mar. 23, 1976,999 D.N.T.S. 171 (hereafter ICCPR). 6 ICC Statute, Article 55 (2) (c). 7 ICC Statute, Article 55 (2) (d). 8 ICC Statute, Article 55 (2) (b).

The International Criminal Court • 447

that one has committed a crime." This procedure looks not unlike the British system of allowing counsel for a suspect during interrogation."? The right to counsel applies whether it is the prosecutor of the ICC or national authorities that are questioning the person."! This helps ensure that human rights standards will be observed during interrogations, whether done by staff of the prosecutor's office or by national authorities. Another issue that may arise here is when there are sufficient grounds to believe a person has committed a crime in order to trigger this right during an interrogation. No formulation is given in the Statute or in the Rules of Procedure and Evidence. It may be that the drafters believed that persons being questioned would be informed of the right to counsel whenever the prosecutor believed it possible that the person would be charged, or whenever there was any evidence indicating that the person may have committed a crime within the jurisdiction of the Court. It is certainly to be hoped that counsel will be provided liberally in these situations. Practice in states with similar systems may inform the determination of when the right to counsel will be afforded here.!? Additionally, judges of the Pre-Trial Chamber are allowed or required to appoint counsel to represent the interests of the defense in certain cases even if no person has yet been accused of a crime and even if the suspect is not being interrogated. The PreTrial Chamber may authorize counsel for a person who has been arrested or has appeared before the Court in response to a summons to participate with the prosecutor in a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for purposes of a trial.!" The language even provides for appointment of defense counsel to participate in the proceeding where there has not been such an arrest or counsel has not been designatcd."! It is the duty of the prosecutor to bring such an opportunity to the notice of the Pre-Trial Chamber.lOne of the first Orders of the Pre-Trial Chamber has been to appoint ad hoc counsel for the defense in the Congo matter after the prosecutor notified it of a unique investigative opportunity.l''

ICC Statute, Article 55(2) (a). The protection in the ICC Statute is broader than the Miranda v. Arizona, 384 U.S. 436 (1966) protection in the common law system of the United States, because Miranda only applies when a person is in custody. The British system may allow for silence during police questioning to be considered in some circumstances if a criminal defendant later testifies at trial. 11 ICC Statute, Article 55 (2) (c); accord, Rules of Procedure and Evidence III (2). 12 See ICC Statute, Article 21 (1) (c) (in absence of definitive rules in ICC Statute, documents adopted pursuant to the Statute, and international law, Court may look to general principles of law derived from national laws of legal systems of the world). 13 ICC Statute, Article (1&2). 14 ICC Statute, Article 56(2) (d). 15 ICC Statute, Article 56 (1 &3) . No specific standard for participation of defense counsel or other measures concerning unique investigative opportunities is specified, other than the necessity to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defense. ICC Statute, Article 56(1) (b). 16 Situation in the Democratic Republic of the Congo, Decision on the Prosecutor's Request for Measures under Article 56, pp. 4-5, No. ICC-Olj04 (Pre-Trial Chamber I, Apr. 26, 2005). 10

448 • Defense in International Criminal Proceedings

Where counsel is appointed in the absence of an arrest or choice of counsel by a possible suspect, defense counsel may have no actual client."? That is, under the Statute it appears that counsel may be appointed in a situation where the prospective accused may be unavailable for interview and counseling or to give instructions to counsel. The matter may be complicated further by the fact that several persons, some with conflicting defenses, may have evidence given against them during a single unique investigative opportunity. Where the targets of the investigation are clear, separate counsel may be appointed for each potential accused. However, the Court may not know in advance the identity of those against whom evidence will be given. For this reason, defense counsel may be placed in the position of attempting to protect the interests of more than one potential accused, who at later stages may attempt to blame each other for the alleged crimes. On the other hand, if the accused has been arrested or the suspect is available for interview by counsel, the situation resembles one familiar to defense counsel in many national systems. The model here is heavily influenced by the civil law tradition ofjudicial supervision of criminal investigations. The Pre-Trial Chamber supervises the prosecutor closely in making the determination when counsel should be appointed to protect the interests of the defense or other measures should be taken.l" In most common law visions of the role of counsel, the appointment of counsel without a client with whom counsel could consult would be seen as highly anomalous. Nonetheless, even to this author, who practices and teaches in the common law tradition, this procedure holds out great promise for improving the fairness of criminal proceedings, by providing a device for discovery and preservation of testimony or evidence by the defense early in the criminal process. The appointment of counsel where, as here, it is possible that the interest of more than one person may need representing would be seen as a conflict of interest requiring appointment of more than one counsel. By hypothesis, however, cases where the conflict is known in advance can be dealt with by appointment of separate counsel. In general then, the possible conflict will not be known until the actual search or interview constituting the unique investigative opportunity. As an initial suggestion, the appropriate course of action for defense counsel not appointed to represent the interests of a specific potential accused would be to attempt preservation of evidence that could be useful to any potential accused. In both of these devices, the ICC Statute recognizes the need of defense counsel operating under the authority of the Court to participate in proceedings involving national authorities. The right of defense counsel to be present at questioning requested by the Court includes situations when the interrogation is done by national authorities.

6.1.5.2.

Right to Counsel for "the Accused" Under Article 67 ofthe ICC Statute

The right to counsel after accusation is set forth in more comprehensive terms. The language in which the right is specified is as follows: In the determination of any charge, the accused shall be entitled to ... the following minimum guarantees, in full equality:

17 18

See id., where it appears no suspect or accused has been identified. See ICC Statute, Article 56(2&3).

The International Criminal Court • 449

(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;

(d) ... [T] 0 conduct the defence in person or through legal assistance of the accused(s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests ofjustice so require, and without payment if the accused lacks sufficient means to pay for it; ... 19 The right to appointment of counsel if the accused does not have sufficient funds is not stated as an absolute, but is only required by the text where the interests ofjustice so require. In the context of crimes against humanity, genocide and war crimes, it is difficult to imagine a situation in which an accused was unable to pay the costs of defense counsel, but the interests ofjustice did not require appointment of counsel. This language is taken from the International Covenant on Civil and Political Rights (hereafter ICCPR) .20 This ICCPR provision defines internationally recognized protections in all criminal cases, even those that are relatively minor, where the interests of justice may not be seen to require the appointment of counsel in all cases. Though awkwardly phrased for its context, this provision of the ICC Statute should be read to make the indigent accused's right to counsel absolute, as is the right to counsel of interrogees who are suspected of crime.s! It is possible to imagine a few situations in which the interests ofjustice required appointment of counsel even where unrequested by the accused. This would especially be the case where the Court questions the competency of the accused to conduct his or her own defense, or if an unrepresented accused became so disruptive as to require removal from the courtroom.s? The accused, however, retains the right to defend "in person" rather than through counsel, unless one of these anomalous situations occur. 23

6.1.5.2.1.

Time ofAttachment of Right to Counsel for the Accused Under Article 67

The time when this right to counsel attaches is not specifically set forth in the ICC Statute. The right operates in the determination of any charge and in favor of the accused. The term "accused" is generally used in the Statute to refer to a person against whom a charge has been made, and not to a person who is merely being investigated. 24 There is, however, no specific definition of when a person becomes an accused.

ICC Statute, Article 67 (1). ICCPR, Article 14(3) (d). 21 ICC Statute, Article 55 (2). 22 See ICC Statute, Article 63(2) (removal of disruptive accused from courtroom only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required). 23 ICC Statute, Article 67(1)(d). 24 Compare, e.g., ICC Statute, Articles 53, 55, 58 (discussing persons being investigated or against whom warrants are being sought), with id., Articles 62, 65, 66, 67, 68(2) (discussing the accused who is being brought to trial). 19

20

450 • Defense in International Criminal Proceedings

6.1.5.2.1.1.

Confirmation Hearing and After

At very least, a person is an accused at or after the confirmation hearing on the charges that is to be held promptly after a person against whom an arrest warrant or a summons appears in Court.t> "Accused" appears as the word to denote the person charged throughout the Part of the ICC Statute concerning Trial. 26 The term "accused" does not appear in Article 61, describing the confirmation hearing, but the hearing shall be held in the presence of the prosecutor and the person being charged, as well as his or her counsel.'? The assumption of the presence of counsel here suggests that the right to counsel set out in Article 67 concerning rights of the accused has already attached at this stage, at least where the accused has submitted to or been brought within the jurisdiction of the Courr." While counsel may have entered the case at an earlier stage,29 this will not necessarily have happened, suggesting that the reference to counsel at the Confirmation hearing is linked to the right to counsel of Article 67. This view is supported by the language of Article 67, where the right to counsel applies to the determination of any charge. 3o This indicates the right should apply to any proceeding after accusation that has the potential to affect the determination of the charge, that is, whether the accused will be punished and what that punishment will be. The Confirmation hearing, at which the Court may determine that there is or is not a basis for bringing a charge, affects the determination of the charge. It occurs only after the issuance of a warrant or summons, which must contain the name and other relevant identifying information concerning the person sought, a reference to crimes within the jurisdiction of the Court alleged against the person, and a concise statement of the facts that are alleged to constitute those crimes.v The warrant or summons is thus in ordinary English an accusation, and a person named in such a document has been accused.V 25 ICC Statute, Article 61, defines the confirmation hearing procedure, the stage at which a three-judge Pre-Trial Chamber makes a judicial determination whether there is substantial grounds to believe that the person committed each of the crimes charged. 26 ICC Statute, Part 6. 27 ICC Statute, Article 61(1). 28 ICC Statute, Article 61 (2) (there is a typographical ambiguity in the document in English, French and Spanish as to whether this provision is part of subsection (b)). 29 ICC Statute, Articles 55, 56(2). 30 ICC Statute, Article 67 (1). 31 ICC Statute, Article 58(3) (warrant) and (7) (summons: but substitute "the crime" for "those crimes"). Under this section, the warrant or summons itself contains more information than it does in many jurisdictions, where the facts underlying the case are stated in an affidavit, complaint, indictment or other document accompanying the warrant, and on which the warrant is based. In the Statutes of the International Criminal Tribunal for the Former Yugoslavia (IClY) and the International Criminal Tribunal for Rwanda (ICTR), as well as earlier drafts of the ICC Statute, an indictment has been the usual document on which an arrest warrant has been issued. IClY Statute, Article 19, Annex to Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 U.N. Doc. S/25704 & Add.l (1993), approved by Security Council Resolution 827, U.N. SCOR, 48th Year, 3217th mtg. at 1, U.N. Doc. S/RES/827 (1993); ICTR Statute, Article 18, Annex to Security Council Resolution 955, U.N. SCOR, 49th Year, 3453d mtg. at 1, U.N. Doc. S/RES/955 (1994); Report of the International Law Commission, 46th Sess., U.N. GAOR A/49/10 (Supp. 10), at 94 (Draft statute for an international criminal court, Article 27). 32 Cf Vienna Convention on the Law of Treaties (VCLT) Article 31 (interpretation accord-

The International Criminal Court • 451 After surrender of a person to the Court or voluntary appearance pursuant to summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under the Statute, including the right to apply for interim release pending trial. 33 Presumably the rights to be communicated include the right to counsel. Further, the ordinary language argument concerning the meaning of "accused" applies here, because a summons or warrant has already been issued making an accusation, based upon a finding by the Pre-Trial Chamber of reasonable cause to believe the person has committed a crime within the jurisdiction of the Court. The ICC Statute also recognizes that there is need for the person facing a confirmation hearing to prepare for that hearing. The person has the right to know the charges the prosecutor seeks to confirm, know the evidence on which the prosecutor intends to rely, object to the charges, challenge the prosecutor's evidence and present evidence.>' Additionally, as discussed below, the Pre-Trial Chamber has the authority, at the request of the person, to issue orders, or seek cooperation of states, to produce defense evidence.V The structure of the Statute suggests a recognition of the need to collect evidence in preparation for the Confirmation hearing. All this indicates that the right to counsel established by Article 67 begins early enough to allow for preparation for the Confirmation hearing.

6.1.5.2.1.2.

Confirmation Hearing in Absence ofAccused but With Counsel

If the person has not been found, and all reasonable steps have been taken to secure his or her appearance before the Court, and to inform the person of the charges and that a hearing to confirm those charges will be held, the Court may, on its own motion or the prosecutor's motion, hold a confirmation hearing without the accused's presence. In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interests of'jusricc.v' As with the issue of appointment of counsel in the interests of the defense even where no suspected person has been identified, defense counsel here will be put in the position of acting in the absence of a client.

6.1.5.2.1.3.

Right to Counsel Under Article 67 Before the Confirmation Hearing

Whether the right to counsel set out in Article 67 applies to proceedings before the Pre-Trial Chamber prior to the Confirmation hearing (and the time and proceedings

ing to ordinary meaning to be given to the terms of the treaty), done May 23, 1969, entered into force Jan. 27, 1980, U.N. Doc. A/CONF. 39/27. Note that this treaty will not apply of its own force to the ICC Statute if some states that ratify the Statute are not parties to this Convention. See VCLT, Article 4. However, much of VCLT, including the substance of Article 31, is considered to be customary international law. 33 ICC Statute, Article 60 (1). 34 ICC Statute, Article 61 (3&6). 35 ICC Statute, Article 57 (3) (b). 36 ICC Statute, Article 61 (2) (there is a typographical ambiguity in the document in English, French and Spanish as to whether this provision is part of subsection (b)).

452 • Defense in International Criminal Proceedings

needed to prepare for it) is unclear from the ICC Statute language. The issue is not directly addressed in the Rules of Procedure and Evidence either. Given the purposes of the right to counsel, this right to counsel should also include matters that do not necessarily go to the determination of a charge.V but affect the rights of a person while charges are pending, even before the Confirmation hearing. Specifically, the right to apply for interim release pending trial can be exercised most effectively by most persons through counsel rather than on their own behalf, and it would be in the interests ofjustice to have this matter handled by counsel, as is generally the case in national criminal courts.v' This would suggest that, as a matter of treaty interpretation, the right to counsel under Article 67 should attach as soon as a person surrenders to the Court or appears before the Court.s? Additionally, as noted above, the ordinary meaning of the word "accused" would include a person named in a warrant or summons for a criminal charge. Such a document is issued by the Pre-Trial Chamber before surrender or appearance in the Court. Weighing against this interpretation is the fact that the ICC Statute counsel is not mentioned as a matter of right in proceedings in front of the Pre-Trial Chamber, except for the confirmation procccding.t" and the investigative proceedings discussed above. Moreover, Article 67 is in Part 6 of the ICC Statute, entitled "The Trial." While activity after the confirmation hearing generally occurs in the Trial Chamber,"! prior activity occurs in the Pre-Trial Chamber. The weight of these interpretive arguments would appear to be in favor of a right to counsel immediately upon appearance in the Court. Authoritative decision may, however, need to come from the Court through case law.

6.1.5.2.1.3.1.

The Regulations ofthe Court and the Authority to Appoint Counsel Before the Confirmation Hearing

The Regulations of the Court allow for the appointment of Counsel by a Chamber "following consultation with the Registrar" where specified in the Statute or Rules "or where the interests ofjustice so require."42 Thus, the Pre-Trial Chamber will be able to appoint counsel before the confirmation hearing in the interests ofjustice, whether or not such counsel is a right under the text of the Statute.

ICC Statute, Article 67 (1). Cf ICC Statute, Article 21 (1) (c) (reference to national laws of legal systems of the world in deciding cases). In many systems, conditions of pre-trial release are automatically set at the initial appearance in court of the accused, whether or not the defendant has counsel. If the defendant does not meet these conditions, counsel may generally request their modification upon appearance or appointment. Something resembling this system might be appropriate for the Rules of Evidence and Procedure, but has not yet been included. 39 See VCLT, Article 31. 40 See ICC Statute, Article 60 (initial appearance before the Court); cf ICC Statute, Article 59 (arrest proceedings in the custodial state). Neither of these mention the right to counsel specifically. See also ICC Statute, Articles 55 (separate right to counsel during questioning; no general requirement that this be in court); 56 (proceedings involving unique investigative opportunity; counsel may be appointed but is not generally a matter of right). 41 ICC Statute, Article 61(11). 42 Regulations of the Court, Article 76 (1). The Regulations are adopted by the judges. ICC Statute, Article 52. 37

38

The International Criminal Court • 453

6.1.5.3.

Right toCounsel Before National Courts Before Surrender tothe ICC

Whether the ICC Statute guarantees that persons arrested by national authorities will have a right to counsel in national courts before surrender to the ICC is also an open question. This is the most difficult question considered here. Speaking in favor of such a right is the ordinary language argument above that the person has already been accused through the warrant that led to arrest. At least one issue, which is arguably relevant to the determination of the charge, is to be addressed by the competent nationaljudicial authorities: whether the person arrested is the person sought by the warrant.i'' To this extent, the national court proceeding may invoke the right of criminal defendants to counsel under the parallel provision of the ICCPR,44 either because the state has ratified the ICCPR, because its provisions have passed into customary international law or because the ICC is required to have states apply internationally recognized human rights. 45 Additionally, under the ICC Statute, the national authority is required to respect the rights of an arrested person, though without specification of what most of those rights are.:" Elsewhere in the system established by the ICC Statute, states parties are expected to comply with the rights of persons under investigation, at least with regard to questioning."? Speaking against such a right is the fact that it is not specified in the ICC Statute. It can therefore be argued that the inclusion of other rights against states that are parties to the Statute is an exclusion of this right. Moreover, the argument that national courts should apply parallel provisions of the ICCPR to require counsel in their transfer proceedings is weak. State practice in extradition cases, analogous to transfer cases under the ICC Statute, does not clearly recognize a right to counsel.v' Finally, states might be expected to resist extending the right to counsel here as a matter of law under the ICC Statute as an infringement on sovereignty concerning internal proceedings.'? Sovereignty concerns over the creation of a right to counsel in trans43 ICC Statute, Article 59 (2) (a). This does not include the question whether the person sought by the warrant in fact committed the crime; merely whether the person is the one wanted by the warrant. Nonetheless, this is part of the determination of whether there is a valid charge against the person arrested. This provision probably grows out of a case of mistaken identity in the IClY 44 ICCPR, Article 14(3), phrased in language followed closely by ICC Statute, Article 67(1). 45 This argument that the ICC is required to apply all internationally recognized human rights is based on ICC Statute, Article 21 (3). 46 ICC Statute, Article 59(2). The Court is to determine if proper process has been followed in making the arrest, though the consequences of an improper arrest are not specified. 47 ICC Statute, Article 55 (2) (persons suspected of crimes within ICC's jurisdiction have right to remain silent and to counsel during questioning regardless of whether questioning is done by prosecutor or by national authorities pursuant to prosecutor's request). 48 See International Law Association Committee on Extradition and Human Rights, Second Report, in International Law Association, Report of the Sixty-Seventh Congress: Helsinki 214, 228-29 (1996); Third Report: Taipei Conference 14-16 (1998). The Committee recommended that such a right be recognized. See Second Report, at 236 (recommendation 3); Third Report at 15-16. The author was an alternate member of the Committee. 49 In the law of interpretation of the constituent documents of international organizations, the rule of effectiveness (that an international organization has the authority to achieve its purposes) often prevails over the canon of construction that in cases of doubt, infringements of sovereignty are not to be read into treaties. E.g., Ingrid Detter, Law Making by International Organizations 24-26 (1965) (citing cases of the International Court of Justice and the

454 · Defense in International Criminal Proceedings fer proceedings can be somewhat ameliorated, but not eliminated, by insisting that counsel in the courts or administrative agencies of any state be qualified under the law of that state rather than (or in addition to) the rules for admission to the bar of the ICC. This, at least, would allow the state to retain control of the practice of law in its courts and agencies, though it would not eliminate the problem of imposition of a right to counsel in a national system by an international authority without a clear mandate in a treaty or in customary international law.

6.1.5.4.

No Right to Counsel for Compensation Claims

The Statute does not make provision for a right to counsel for persons making claims of unlawful arrest or detention or wrongful conviction.>" Given that the person who makes such a claim has been exonerated and is no longer accused and the proceeding occurs after the determination of a charge, it is difficult to see how the right to counsel of Article 67 can be stretched to cover a claim proceeding.

6.1.5.5.

Right to Free Choice ofCounsel

Both during investigation and at the trial phase, an individual who may face charges or has been accused is entitled to counsel of their choice."! This is different from some national systems, in which a defendant may be entitled to counsel, but may be required to accept assigned counselor counsel from a particular public defender's office. The Rules of Procedure and Evidence and the Regulations interpret this free choice of counsel to be limited to counsel who are on a list kept by the Registry who are qualified to practice before the Court, or who meet the qualifications to practice in the Court. 52 Counsel chosen by those entitled to free counsel must apply for and qualify for placement on the list. 53 Given that choice of counsel will have to be made quickly, this rule puts a substantial butjustifiable burden on the Registry promptly to make sure that counsel chosen by a client do in fact meet the qualifications. The Regulations of the International Criminal Court protect the right of the person entitled to appointment of counsel to choose that counsel.v' Of course, this will not allow the person entitled to counsel to manipulate the court process by repeatedly changing lawyers without good cause. As Stefan Kirsch discusses in section 6.2.5 (commentary on appointment of counsel), there are cases from the ad hoc tribunals sug-

Permanent Court of International Justice). The principle of effectiveness is not, however, a talismanic rejection of the principle of sovereignty. Therefore, it cannot be used to reject out of hand a claim that state sovereignty over procedure in its own courts and administrative agencies should prevail over a claim that the International Criminal Court may dictate procedures in national courts that are ancillary to an ICC proceeding. 50 See ICC Statute, Article 85; cf International Covenant on Civil and Political Rights, Article 14(6), done at New York, Dec. 16, 1966, entered into force, Mar. 23,1976, U.N.G.A. Res. 2200 (XXI), U.N. Doc. A/6316 (hereafter ICCPR). 51 ICC Statute, Article 55 (2) ("legal assistance of the person's choosing"); ICC Statute, Article 67 ("legal assistance of the accused's choosing"); Regulation of the Court 75. 52 Rules of Procedure and Evidence 21, 22; Regulations 68, 75. 53 Regulations 70, 75. 54 Regulations 75, 76.

The International Criminal Court • 455

gesting that the right to counsel under those statutes does not include the right to counsel of choice where counsel is appointed. As he demonstrates, these cases generally involve problems where a client is making it difficult for counsel to do the job of representation.

6.2. ASSIGNMENT OF COUNSEL * 6.2.1.

Introduction

Experience at the ad hoc tribunals shows that only a small percentage of accused persons are represented or otherwise assisted by counsel who are appointed and paid by the accused, and it is only fair to assume that the situation at the ICC will be comparable. Therefore one of the issues of critical importance for the ICC will be to ensure that counsel eligible for assignment are sufficiently qualified and provided with the means to ensure a professional representation of any suspect or accused before the Court not being able to retain counsel of his own choice. Having established these criteria in general, however, the Court and the Registry should recognize assigned counsel's independence vis-a-vis the Court and refrain from interfering in the relationship between the suspect or the accused and his assigned counsel.

6.2.2. Statute, Rules and Official Legal Documents 6.2.2.1. Statute 55 Article 55 Rights ofpersons during an investigation [ ... ]

2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned: (a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court; (b) To remain silent, without such silence being a consideration in the determination of guilt or innocence; (c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests ofjustice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and (d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

*

Section 6.2 was written by Stefan Kirsch. Text of the Rome Statute circulated as documentA/CONF.183/9 ofjuly 17,1998, and corrected by proces-verbaux of Nov. 10, 1998, july 13, 1999, Nov. 30, 1999, May 8, 2000, jan. 17, 2001 and jan. 16,2002. The Statute entered into force on july 1,2002. 55

456 • Defense in International Criminal Proceedings

Article 67 Rights ofthe accused 1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks; (b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence; (c) To be tried without undue delay; (d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests ofjustice so require, and without payment if the accused lacks sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute; (f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks; (g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence; (h) To make an unsworn oral or written statement in his or her defence; and (i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal. [ ... ]

6.2.2.2. Rules of Procedure and Evidence 56 Rule 20 Responsibilities ofthe Registrar relating tothe rights ofthe defence 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: 56 Adopted by the Assembly of States Parties, First session, New York, Sept. 3-10, 2002 (Official Records ICC-ASP /1/3).

The International Criminal Court • 457 (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 and effective 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 defencerelated issues; (e) Provide the defence with such facilities as may be necessary for the direct performance of the duty of the defence; (f) Facilitate 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 to in sub-rule 3 to promote the specialization and training of lawyers in the law of the Statute and the Rules. 2. The Registrar shall carry out the 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. 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 counselor legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties.

Rule 21 Assignment oflegal assistance 1. Subject to article 55, paragraph 2(c), and article 67, paragraph l(d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counselor legal associations, as referred to in rule 20, sub-rule 3. 2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list. 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances. 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity.

458 • Defense in International Criminal Proceedings

5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.

Rule 22 Appointment and qualifications ofCounsel for the defence 1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise. 2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity. 3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties.

Rule 90 Legal representatives ofvictims 1.

A victim shall be free to choose a legal representative.

2. Where there are a number of victims, the Chamber may, for the purposes of ensuring the effectiveness of the proceedings, request the victims or particular groups of victims, if necessary with the assistance of the Registry, to choose a common legal representative or representatives. In facilitating the coordination of victim representation, the Registry may provide assistance, inter alia, by referring the victims to a list of counsel, maintained by the Registry, or suggesting one or more common legal representatives. 3. If the victims are unable to choose a common legal representative or representatives within a time limit that the Chamber may decide, the Chamber may request the Registrar to choose one or more common legal representatives. 4. The Chamber and the Registry shall take all reasonable steps to ensure that in the selection of common legal representatives, the distinct interests of the victims, particularly as provided in article 68, paragraph 1, are represented and that any conflict of interest is avoided. 5. A victim or group of victims who lack the necessary means to pay for a common legal representative chosen by the Court may receive assistance from the Registry, including, as appropriate, financial assistance. 6. A legal representative of a victim or victims shall have the qualifications set forth in rule 22, sub-rule 1.

The International Criminal Court • 459

Rule 117 Detention in the custodial State [ ... ]

2. At any time after arrest, the person may make a request to the Pre-Trial Chamber for the appointment of counsel to assist with proceedings before the Court and the PreTrial Chamber shall take a decision on such request. [ ... ]

6.2.2.3. 6.2.2.3.1.

Regulations Regulations ofthe Court 57 Section 1 List ofcounsel and duty counsel Regulation 67 Criteria to be met by counsel

1. The necessary relevant experience for counsel as described in rule 22 shall be at least ten years. 2. Counsel should not have been convicted of a serious criminal or disciplinary offence considered to be incompatible with the nature of the office of counsel before the Court.

Regulation 68 Assistants tocounsel Persons assisting counsel as described in rule 22, sub-rule 1, may include persons who can assist counsel in the presentation of the case before a Chamber. The criteria to be met by these persons shall be determined in the Regulations of the Registry.

Regulation 69 Proof and control ofcriteria to be met by counsel 1. A person seeking to be included in the list of counsel shall complete the forms provided by the Registrar for this purpose. 2.

A person referred to in sub-regulation 1 shall also provide: (a) A detailed curriculum vitae; (b) A certificate issued by each Bar association the person is registered with, and/or each relevant controlling administrative authority confirming his or her qualifications, the right to practise and the existence, if any, of disciplinary sanctions or ongoing disciplinary proceedings; and

57 Adopted by the judges of the Court on May 26, 2004, Fifth Plenary Session, The Hague, May 17-28, 2004 (Official documents of the International Criminal Court ICC-BDj01-01-04). The Regulations and any amendments thereto shall remain in force, if there are no objections from a majority of states parties within six months from the date of their adoption (Article 52(3) Rome Statute).

460 • Defense in International Criminal Proceedings (c) A certificate issued by the relevant authority of each State of which the person is a national or where the person is domiciled stating the existence, if any, of criminal convictions. 3. A person referred to in sub-regulation 1 or counsel already included in the list of counsel shall immediately inform the Registrar of any changes to the information he or she has provided that are more than de minimis, including the initiation of any criminal or disciplinary proceedings against the person. 4. The Registrar may at any stage take steps to verify the information provided by any person referred to in sub-regulation 1 and by counsel already included in the list of counsel.

Regulation 70 Inclusion in the list ofcounsel 1. On receipt of an application by a person seeking to be included in the list of counsel, the Registrar shall establish whether the person has provided the information required under regulation 69. Thereafter, the Registrar shall acknowledge receipt of the application and, where relevant, direct the person to submit additional information. 2. The decision as to whether a person shall be included in the list of counsel shall be notified to that person. If the application is refused, the Registrar shall provide reasons and information on how to apply for review of that decision in accordance with regulation 72.

Regulation 71 Removal and suspension from the list ofcounsel 1.

The Registrar shall remove a counsel from the list of counsel where he or she: (a) No longer meets the criteria required for inclusion in the list of counsel; (b) Has been permanently banned from practising before the Court as a result of disciplinary proceedings held in accordance with the Code of Professional Conduct for counsel; (c) Has been found guilty of an offence against the administration ofjustice as described in article 70, paragraph 1; or (d) Has been permanently interdicted from exercising his or her functions before the Court in accordance with rule 171, sub-rule 3.

2. The Registrar shall suspend a counsel from the list of counsel where he or she has been: (a) Temporarily suspended in a disciplinary proceeding according to the Code of Professional Conduct for counsel; or (b) Temporarily interdicted from exercising his or her functions before the Court for a period exceeding 30 days in accordance with rule 171, sub-rule 3. 3. The Registrar shall notify the relevant counsel of his or her decision under sub-regulations 1 or 2. The Registrar shall provide reasons and information on how to apply for review of that decision in accordance with regulation 72.

The International Criminal Court • 461

Regulation 72 Review ofdecisions ofthe Registrar 1.

Application may be made to the Presidency for review of: (a) A decision under regulation 70, sub-regulation 2, refusing to include a person in the list of counsel; (b) A decision under regulation 71, sub-regulation 1, removing counsel from the list of counsel; or (c) A decision under regulation 71, sub-regulation 2, suspending counsel from the list of counsel.

2. Applications as described in sub-regulation 1 shall be set out in accordance with regulation 23 and be filed within 15 days of notification of the relevant decision of the Registrar. 3. The Registrar may file a response within 15 days of notification of the application as referred to in sub-regulations 1 and 2. 4. The Presidency may ask the Registrar to provide any additional information necessary to decide on the application. The decision of the Presidency shall be final.

Regulation 73 Duty counsel 1. The Registrar shall establish and maintain a roster of counsel included in the list of counsel who are available at any time to represent any person before the Court or to represent the interests of the defence. 2. If any person requires urgent legal assistance and has not yet secured legal assistance, or where his or her counsel is unavailable, the Registrar may appoint duty counsel, taking into account the wishes of the person, and the geographical proximity of, and the languages spoken by, the counsel.

Section 2 Defence through counsel Regulation 74 Defence through counsel 1. Defence counsel shall act in proceedings before the Court either when chosen by the person entitled to legal assistance in accordance with rule 21, subrule 2, or when the Chamber has appointed counsel in accordance with the Statute, Rules or these Regulations. 2. When represented by defence counsel, the person entitled to legal assistance shall, subject to article 67, paragraph 1 (h), act before the Court through his or her counsel, unless otherwise authorised by the Chamber.

462 • Defense in International Criminal Proceedings

Regulation 75 Choice ofdefence counsel 1. If the person entitled to legal assistance chooses a counsel included in the list of counsel, the Registrar shall contact that counsel. If the counsel is willing and ready to represent the person, the Registrar shall facilitate the issuance of a power of attorney for this counsel by the person. 2. If the person entitled to legal assistance chooses a counsel not on the list of counsel who is willing and ready to represent him or her and to be included in the list, the Registrar shall decide on the eligibility of that counsel in accordance with regulation 70 and, upon inclusion in the list, shall facilitate the issuance of a power of attorney. Until the filing of a power of attorney, the person entitled to legal assistance may be represented by duty counsel in accordance with regulation 73.

Regulation 76 Appointment ofdefence counsel by a Chamber 1. A Chamber, following consultation with the Registrar, may appoint counsel in the circumstances specified in the Statute and the Rules or where the interests ofjustice so require. 2. Where the Chamber decides to appoint counsel in accordance with subregulation 1, and where the counsel considered for appointment is not included in the list of counsel, the Registrar shall first decide on the eligibility of that counsel to be included in the list in accordance with regulation 70. The Chamber may also appoint counsel from the Office of Public Counsel for the defence.

Regulation 77 Office ofPublic Counsel for the defence 1. The Registrar shall establish and develop an Office of Public Counsel for the defence for the purpose of providing assistance as described in subregulations 4 and 5. 2. The Office of Public Counsel for the defence shall fall within the remit of the Registry solely for administrative purposes and otherwise shall function as a wholly independent office. Counsel and assistants within the Office shall act independently. 3. The Office of Public Counsel for the defence may include a counsel who meets the criteria set out in rule 22 and regulation 67. The Office shall include assistants as referred to in regulation 68. 4. The tasks of the Office of Public Counsel for the defence shall include representing and protecting the rights of the defence during the initial stages of the investigation, in particular for the application of article 56, paragraph 2 (d), and rule 47, sub-rule 2. 5. The Office of Public Counsel for the defence shall also provide support and assistance to defence counsel and to the person entitled to legal assistance, including, where appropriate: (a) Legal research and advice; and (b) Appearing before a Chamber in respect of specific issues.

The International Criminal Court • 463

Regulation 78 Withdrawal ofdefence counsel Prior to withdrawal from a case, defence counsel shall seek the leave of the Chamber.

Section 3 Legal representatives ofvictims Regulation 79 Decision ofthe Chamber concerning legal representatives ofvictims 1. The decision of the Chamber to request the victims or particular groups of victims to choose a common legal representative or representatives may be made in conjunction with the decision on the application of the victim or victims to participate in the proceedings. 2. When choosing a common legal representative for victims in accordance with rule 90, sub-rule 3, consideration should be given to the views of the victims, and the need to respect local traditions and to assist specific groups of victims. 3. Victims may request the relevant Chamber to review the Registrar's choice of a common legal representative under rule 90, sub-rule 3, within 30 days of notification of the Registrar's decision.

Regulation 80 Appointment oflegal representatives ofvictims by a Chamber 1. A Chamber, following consultation with the Registrar, may appoint a legal representative of victims where the interests ofjustice so require. 2.

The Chamber may appoint counsel from the Office of Public Counsel for victims.

Regulation 81 Office ofPublic Counsel for victims 1. The Registrar shall establish and develop an Office of Public Counsel for victims for the purpose of providing assistance as described in sub-regulation 4. 2. The Office of Public Counsel for victims shall fall within the remit of the Registry solely for administrative purposes and otherwise shall function as a wholly independent office. Counsel and assistants within the Office shall act independently. 3. The Office of Public Counsel for victims may include a counsel who meets the criteria set out in rule 22 and regulation 67. The Office shall include assistants as referred to in regulation 68. 4. The Office of Public Counsel for victims shall provide support and assistance to the legal representative for victims and to victims, including, where appropriate: (a) Legal research and advice; and (b) Appearing before a Chamber in respect of specific issues.

464 • Defense in International Criminal Proceedings

Regulation 82 Withdrawal oflegal representatives ofvictims Prior to withdrawal from a case, legal representatives of victims shall seek the leave of the Chamber.

Section 4 Legal assistance paid by the Court Regulation 83 General scope oflegal assistance paid by the Court 1. Legal assistance paid by the Court shall cover all costs reasonably necessary as determined by the Registrar for an effective and efficient defence, including the remuneration of counsel, his or her assistants as referred to in regulation 68 and staff, expenditure in relation to the gathering of evidence, administrative costs, translation and interpretation costs, travel costs and daily subsistence allowances. 2. The scope of legal assistance paid by the Court regarding victims shall be determined by the Registrar in consultation with the Chamber, where appropriate. 3. A person receiving legal assistance paid by the Court may apply to the Registrar for additional means which may be granted depending on the nature of the case. 4. Decisions by the Registrar on the scope of legal assistance paid by the Court as defined in this regulation may be reviewed by the relevant Chamber on application by the person receiving legal assistance.

Regulation 84 Determination ofmeans 1. Where a person applies for legal assistance to be paid by the Court, the Registrar shall determine the applicant's means and whether he or she shall be provided with full or partial payment of legal assistance. 2. The means of the applicant shall include means of all kinds in respect of which the applicant has direct or indirect enjoyment or power freely to dispose, including, but not limited to, direct income, bank accounts, real or personal property, pensions, stocks, bonds or other assets held, but excluding any family or social benefits to which he or she may be entitled. In assessing such means, account shall also be taken of any transfers of property by the applicant which the Registrar considers relevant, and of the apparent lifestyle of the applicant. The Registrar shall allow for expenses claimed by the applicant provided they are reasonable and necessary.

Regulation 85 Decisions on payment oflegal assistance 1. In accordance with the procedure set out in the Regulations of the Registry, the Registrar shall decide within one month of the submission of an application or, within one month of expiry of a time limit set in accordance with the Regulations of the Registry, whether legal assistance should be paid by the Court. The decision shall be notified to the applicant together with the reasons for the decision and instructions on

The International Criminal Court • 465 how to apply for review. The Registrar may, in appropriate circumstances, make a provisional decision to grant payment of legal assistance. 2. The Registrar shall reconsider his or her decision on payment of legal assistance if the financial situation of the person receiving such legal assistance is found to be different than indicated in the application, or if the financial situation of the person has changed since the application was submitted. Any revised decision shall be notified to the person together with the reasons for the decision and instructions on how to apply for review. 3. Persons as referred to in sub-regulations 1 and 2 may seek review of the decisions described in those provisions by the Presidency within 15 days of notification of the relevant decision. The decision of the Presidency shall be final. 4. Subject to rule 21, sub-rule 5, where legal assistance has been paid by the Court and it is subsequently established that the information provided to the Registrar on the applicant's means was inaccurate, the Registrar may seek an order from the Presidency for recovery of the funds paid from the person who received legal assistance paid by the Court. The Registrar may seek the assistance of the relevant States Parties to enforce that order.

6.2.3.

Case Law and Practice

The Court has published the following announcement on its Internet page 58 and has invited defense counsel to submit their applications: List of counsel authorised to act before the Court

The Rome Statute of the International Criminal Court entered into force on 1 July 2002. Creation of institutional, legal and administrative structures is now at a sufficiently advanced stage to allow the Court to begin carrying out its judicial functions. In this regard, the Registrar invites persons interested to send in applications with a view to creating a list of counsel meeting the requirements set forth in rule 22, sub-rule 1 of the Rules of Procedure and Evidence. According to this rule, "a counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise." As these requirements shall be further specified upon the adoption of the remaining regulatory texts during the coming months, the Registrar, after consultations with several experts and associations of counsel, has opened this list of counsel, which he shall use in case of persons in need of legal assistance before the Court.

58

See www.icc-cpi.int/defence/defcounsel.html.

466 • Defense in International Criminal Proceedings Duties and Responsibilities Counsel added to this list can be called upon at any time in relation to proceedings before the Court to provide legal assistance to the persons concerned. Competence and Skills Candidates must demonstrate competence in international or criminal law and procedure as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. He or she must have an excellent knowledge of and be fluent in at least one of the working languages of the Court (English or French). Documents Required Candidates seeking to be added to the list of counsel must send (at the same time) all of the following documents: 1.

Candidate application form;

2.

Certificate of good standing;

3.

Certificate from each professional association of which the candidate is a member, confirming the candidate's professional qualifications;

4.

Certificate from the relevant state authority where the candidate resides, specifying criminal convictions, if any.

5.

Detailed curriculum vitae, allowing for appraisal of the candidate's competence and experience;

6.

Valid copy of private and professional insurance policy;

7. Legible copy of birth certificate; 8.

Legible copy of identity card;

9.

Legible copy of passport / travel document;

10. 2 passport size pictures These documents should be sent to the following address: Registry of the International Criminal Court, Division of Non Administrative Services under the Registrar's Responsibility, PO Box 19519, 2500 CM The Hague (The Netherlands). The Court specifically encourages and welcomes female candidates to apply. The Registrar will create and maintain this list of counsel until the relevant legal texts of the Court have been adopted. As soon as these texts have been adopted, the Registrar will evaluate the qualifications of the counsel in light of said texts and will decide on the addition to the final list of counsel already admitted to this temporary list.

The International Criminal Court • 467

6.2.4. 6.2.4.1.

Materials Statute ofthe International Criminal Tribunal for the Former Yugoslavia 59 Article 21 Rights ofthe accused

1. All persons shall be equal before the International Tribunal. 2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute. 3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute. 4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) to be tried without undue delay; (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests ofjustice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal; (g) not to be compelled to testify against himself or to confess guilt.

6.2.4.2.

Statute ofthe International Criminal Tribunal for Rwanda 60 Article 20 Rights ofthe Accused

1. All persons shall be equal before the International Tribunal for Rwanda. 2. In the determination of charges against him or her, the accused shall be entitled to a fair and public hearing, subject to Article 21 of the Statute.

59 60

As amended May 19, 2003, by Resolution 1481. As amended.

468 • Defense in International Criminal Proceedings

3. The accused shall be presumed innocent until proven guilty according to the provisions of the present Statute. 4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her; (b) To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing; (c) To be tried without undue delay; (d) To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interest ofjustice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her; (f) To have the free assistance of an interpreter if he or she cannot understand or speak the language used in the International Tribunal for Rwanda; (g) Not to be compelled to testify against himself or herself or to confess guilt.

6.2.5.

Commentary

(1) The key provisions regarding the assignment of counsel are Articles 55(2) and 67 (1) of the Statute. The structure and the wording of Article 67 (1) are comparable to Article 6(3) (c) of the European Convention of the Protection of Human Rights and Fundamental Freedoms and nearly identical to Article 14(3) (d) of the International Covenant on Civil and Political Rights. In determining the scope of Articles 55(2) and 67 (1) of the Statute, one should therefore look at these instruments and their application. Guidance might also be obtained from the practice of the two ad hoc tribunals for Yugoslavia (IClY) and for Rwanda (ICTR), since the statutes of these two Tribunals contain comparable provisions (cf. Article 21 (4) (d) IClY-Statute, Article 20 (4) (d) ICTRStatute) . (2) According to Article 67(1) of the Statute, any accused shall be entitled to have legal assistance assigned by the Court in any case where the interests ofjustice so require. In light of the complex factual and legal issues at hand, one has to assume that this requirement is easily met in cases before International Criminal Court. This assumption is strongly supported by the practice of the ad hoc tribunals to assign counsel whenever an accused has decided not to conduct the defence in person and has not retained counsel of his choosing. (3) Although a plain reading of the provision of Article 67(1) of the Statute seems to suggests, that counsel can only be assigned, when the accused does not make use of the right to conduct the defense in person and has not retained counsel of his choos-

The International Criminal Court • 469 ing, such an interpretation is not supported by the practice of the ad hoc tribunals, where counsel have been assigned notwithstanding the decision of an accused to conduct the defense in person. In Prosecutor v. Seselj the Trial Chamber ordered the Registry to assign a standby counsel on the grounds that the accused's attitude and actions were indicative of obstructionism on his part. The Trial Chamber emphasised that the accused's right to defend himself was left absolutely untouched and that standby counsel was not an amicus curiae but an assistant operating in the sphere of the accused only, who would serve to safeguard a fair and expeditious trial.v! The Trial Chamber also set out strict guidelines defining the role of standby counsel by setting out: "For the purposes of these proceedings, the role of standby counsel is strictly defined as follows: -to assist the Accused in the preparation of his case during the pre-trial phase whenever so requested by the Accused; -to assist the Accused in the preparation and presentation of his case at trial whenever so requested by the Accused; -to receive copies of all court documents, filings and disclosed materials that are received by or sent to the Accused; -to be present in the courtroom during the proceedings; -to be engaged actively in the substantive preparation of the case and to participate in the proceedings, in order always to be prepared to take over from the Accused at trial (see below); -to address the Court whenever so requested by the Accused or the Chamber; -to offer advice or make suggestions to the Accused as counsel sees fit, in particular on evidential and procedural issues; -as a protective measure in the event of abusive conduct by the Accused, to put questions to witnesses, in particular sensitive or protected witnesses, on behalf of the Accused if so ordered by the Trial Chamber, without depriving the Accused of his right to control the content of the examination; -in exceptional circumstances to take over the defence from the Accused at trial should the Trial Chamber find, following a warning, that the Accused is engaging in disruptive conduct or conduct requiring his removal from the courtroom under Rule 80(B)."62 In Prosecutor v. Milosevic the Trial Chamber followed a similar approach and overturned an earlier decision in which the Trial Chamber had rejected a motion by the Office of the Prosecutor that defense counsel should be imposed on the accused. The Appeals Chamber dismissed the appeal against the Trial Chamber's decision on assignment of defense counsel and held that "it cannot be that the only kind of disruption 61 Pros. v. Seselj, IT-03-67-PT, Decision on Prosecution's Motion for Order appointing Counsel to assist Vojislav Seselj with his Defense, May 9, 2003, para. 28. 62 Pros. v. Seselj, IT-03-67-PT, Decision on Prosecution's Motion for Order appointing Counsel to Assist Vojislav Seselj with His Defense, May 9, 2003, para. 30.

470 • Defense in International Criminal Proceedings legitimately cognizable by a Trial Chamber is the intentional variety"63 and affirmed the Trial Chambers Decision to impose counsel, which had been based on the fact that the accused was not fit enough to defend himself, and that, should he continue to represent himself, there would have been further delays in the progress of the trial. However, the Appeals Chamber reversed the Trial Chamber's "Order on the Modalities to be Followed by Court Assigned Counsel," in which the Trial Chamber had ordered: "(1) It is the duty of court assigned counsel to determine how to present the case for the Accused, and in particular it is their duty to: (a) represent the Accused by preparing and examining those witnesses court assigned counsel deem it appropriate to call; (b) make all submissions on fact and law that they deem it appropriate to make; (c) seek from the Trial Chamber such orders as they consider necessary to enable them to present the Accused's case properly, including the issuance of subpoenas; (d) discuss with the Accused the conduct of the case, endeavour to obtain his instructions thereon and take account of views expressed by the Accused, while retaining the right to determine what course to follow; and (e) act throughout in the best interests of the Accused; (2) The Accused may, with the leave of the Trial Chamber, continue to participate actively in the conduct of his case, including, where appropriate, examining witnesses, following examination by court assigned counsel; (3) The Accused has the right, at any time, to make a reasonable request to the Trial Chamber to consider allowing him to appoint counsel; and (4) Court assigned counsel is authorised to seek from the Trial Chamber such further orders as they deem necessary to enable them to conduct the case for the Accused. "64

The Appeals Chamber set out that the Trial Chamber failed to recognize that any restrictions on the accused's right to represent himself must be limited to the minimum extent necessary to protect the Tribunal's interest in assuring a reasonably expeditious trial. 65 Notwithstanding this practice, it has to borne in mind that the imposition of a defense counsel upon an accused who does not want one is a feature of inquisitorial systems, but not of adversarial systems, where it is the responsibilities of the parties to put forward the case and not for the court. Given that the proceedings of the International Criminal Court will be essentially adversarial-neither the Statute nor the Rules of Procedure and Evidence contain any obligation for the Trial Chamber to extend the taking of evidence to all facts and means of proof relevant to establish the 63 Pros. v. Milosevic, IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defense Counsel, Nov. 1,2004, para. 14. 64 Pros. v. Milosevic, IT-02-54, Order on the Modalities to Be Followed by Court Assigned Counsel, Sept. 3, 2004. 65 Pros. v. Milosevic, IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defense Counsel, Nov. 1, 2004, para. 17.

The International Criminal Court • 471 truth-the imposition of defense counsel on an unwilling accused therefore bears the risk to effectively deprive that accused of the possibility of putting forward a defence.w In addition, the Human Rights Committee in Michael and Brian Hill v. Spain found that pursuant to Article 14(3) (d) of the ICCPR every accused has the right to defend himself and that this right was not respected in the case at hand, because the Spanish legislation does not allow an accused person to defend himself in person.v? In contrast to this finding, however, the ECHR has taken the view that the requirement that a defendant be assisted by counsel at all stages of the proceedings cannot be deemed incompatible with the European Convention of the Protection of Human Rights and Fundamental Freedoms.t" Therefore, it is reasonable to assume that the International Criminal will follow the approach taken at the ad hoc tribunals, which may find additional support by the reference made in Article 63(2) of the Rome Statute. According to this provision the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, if the accused, being present before the court, continues to disrupt the trial. (4) Some national jurisdictions do not preclude a court from appointing one or more defense counsel for an accused who is already represented by one ore more counsel of his own choice, if the court holds this to be necessary in the interests ofjustice e.g., with regard to the possible length, the size and the complexity of a case.v? The ad hoc tribunals, however, did not consider taking such action. (5) The assignment of a legal aid defense counsel in itself does not necessarily settle the issue of compliance with the requirements of the Statute, since the Statute is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. In light of that aim it is well justified to ensure a high standard regarding the professional qualification of counsel eligible for assignment. Therefore, Rule 21 (2) RPE requires that all counsel eligible for assignment not only meet the general criteria set forth in Rule 22 but also additional criteria set out in the Regulations of the Court. Rule 22 RPE applies to counsel chosen and appointed by an accused as well as to counsel eligible for assignment and requires that a counsel for the defense shall have established competence as well as the necessary relevant experience and shall have an excellent knowledge of in at least one of the working languages of the Court. Regulation 67 of the Regulations of the Court sets out that the necessary relevant experience for counsel eligible for assignment shall be at least ten years. In addition, counsel eligible for assignment should not have been convicted of a serious criminal or disciplinary offense considered to be incompatible with the nature of the office of counsel before the Court. If the Registrar is satisfied that a counsel meets those requirements and has provided the necessary information and certificates (see Regulation 69 of the Regulations of the Court), Counsel shall be included in the list of Counsel. The Registrar shall also

66 Pros. v. Milosevic, IT-02-54, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, Apr. 4, 2003 67 Michael and Brian Hill v. Spain, Communication No. 526/1993, U.N. Doc. CCPR/C /59/D/526/1993, Apr. 2,1997, para. 14.2. 68 Croissant v. Germany, Case No. 62/1991/314/385,Judgment, Sept. 25, 1992, para. 27. 69 Croissant v. Germany, ECHR Case No. 62/1991/314/385, Judgment, Aug. 28, 1992.

472 • Defense in International Criminal Proceedings

establish and maintain a roster of duty counsel included in the list of counsel who are available at any time to represent the interests of the defence (Regulation 73(1) of the Regulations of the Court). Notwithstanding the justifiability of restrictions regarding qualification, it follows from the independence of the legal profession that the conduct of the defense is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed. Therefore the Court and the Registrar are required to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way."? (6) Under Rule 21 (2) RPE a suspect or an accused shall freely choose his or her counsel from the list of counselor other counsel who meets the required criteria and is willing to be included in the list. By granting the right to free choice from among the list, the Rules go further than the practice of the ad hoc tribunals. In assigning counsel the practice of the ad hoc-Tribunals has been to provide a list of approved counsel from which an accused may choose. Nevertheless, the Appeals Chamber had held that, in principle, the right to free legal assistance of counsel does not confer the right to counsel of one's own choosing and that the right to choose counsel applies only to those accused who can financially bear the costs of counsel. 71 Therefore, the Appeals Chamber held that the Registrar was not necessarily bound by the wishes of an indigent accused and that the Registrar had wide discretion to be exercised in the in terests ofjustice. 72 (7) The criteria and procedures for assignment of legal assistance are established in the Regulations of the Court (Rule 21(1) RPE).

On an application for legal assistance to be paid by the Court, the Registrar determines the applicant's means and whether the applicant shall be provided with full or partial payment of legal assistance (Regulation 84 Regulations of the Court). In accordance with the procedure set out in the Regulations of the Registry, the Registrar shall decide, whether legal assistance should be paid by the Court. If a request for assignment of counsel is refused, the suspect or the accused may seek a review by the Presidency (Rule 21 (3) RPE). If the applicant is entitled to legal assistance, the Registrar shall facilitate the issuance of a power of attorney for the counsel chosen from the list by a person entitled to legal assistance (Regulation 75 of the Regulations of the Court). (8) By referring to the issuance of a power of attorney-expressing a contractual relation between the principal and the authorized representative-with regard to the legal relation between an accused and counsel, the Regulations of the Court considerably differ from the concept of assignment of counsel as it has been established at the ad hoc tribunals. Counsel at the Tribunals was assigned by the Registrar and did not enter in any direct contractual relationship with the client, although the client became the sole beneficiary stemming from the legal relation between the counsel and the Registry. It remains to be seen, how the concept adopted by the ICC will affect the role of counKamasinski v. Austria, ECHR Case No. 9/1988/153/207,Judgment, Nov. 23,1989, para. 65. Pros. v. Akayesu, ICTR-96-4-A, Judgment, June 1, 2001, para. 61; Pros. v. Kambanda, ICTR-97-23, Judgment, Oct. 19, 2000, para. 33. 72 Pros. v. Blagojevic, IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace His Defense Team, Nov. 7, 2003, para. 22. 70 71

The International Criminal Court • 473 sel, but in light of the contractual relation it is likely that counsel at the ICC-while acting with more independence vis-a-vis the Court-will be bound by instructions from their clients more strongly. In Prosecutor v. Barayagwiza the Trial Chamber held that the assignment of Counsel not only entails obligations toward the client, "but also implies that he represents the interests of the Tribunal to ensure that the Accused receives a fair trial." Therefore, the Trial Chamber stated that counsel is under no obligation to follow the instructions of the client, if those instructions are to be seen as an attempt to obstruct the judicial proceedings, and that not to follow those instructions would not constitute grounds for withdrawal.?" Acknowledging the dilemma, in which such a decision places the assigned counsel,Judge Gunawardana set out in his Concurring and Separate Opinion: "Since Mr Barayagwiza has instructed his assigned Counsel not to represent him in Court, it would be difficult to force the Counsel to appear for Mr Barayagwiza, as assigned Counsel. However, this may not prevent the same or different Counsel to appear for the Defence, even against the wishes of Mr Barayagwiza, as the standy counsel, appointed by the Court, in the interests oh justice. In such a case, Counsel would act, not only to protect the interests of the accused, but also the due administration ofjustice."74 However, no standby counsel was appointed, since soon after the Decision Counsel for Barayagwiza informed the Chamber that the client had unequivocally terminated their mandate. The Chamber took note of this fact and directed the Registrar to withdraw their assignment and appoint new Counsel. In Prosecutor v. Nyiramasuhuko & Ntahobali the Trial Chamber took the opportunity to clarify the nature of the counsel-accused relationship and recalled that in the exercise of his professional judgment, Counsel is independent of the accused, even if counsel is expected to maintain a proper counsel-client relationship. The Chamber also set out that it has to be assured that a Counsel properly conducts an accused's defense and protects the latter's lawful interest during trial, "but also has to verify that the accused does not abuse this right."75 The Chamber continued: "As a matter of principle, the Chamber finds that an accused is mistaken when saying that counsel must consult with him, whereas there are matters of professionaljudgement for which Counsel alone is liable. While Counsel should take full instructions about facts surrounding the case, this does not imply that Counsel have to consult with the accused whenever any step in his defence is taken by the Counsel. Nevertheless, Counsel have to keep the Accused informed of the steps taken to protect his interests and provide the Accused with a reasoned explanation as to why they took such steps."76

73 Pros. v. Barayagwiza, ICTR-97-19-T, Decision on Defense Counsel Motion to Withdraw, Nov. 2, 2000, para. 24. 74 Pros. v. Barayagwiza, ICTR-97-19-T, Decision on Defense Counsel Motion to WithdrawConcurring and Separate Opinion ofJudge Gunawardana, Nov. 2, 2000. 75 Pros. v. Nyiramasuhuko & Ntahobali, ICTR-97-21-T, Decision on Ntahobali's Motion for Withdrawal of Counsel, June 22, 2001, para. 22. 76 Id., para. 23.

474 • Defense in International Criminal Proceedings

In Prosecutor v. Blagojevic the Appeals Chamber confirmed that position by setting out that counsel has an obligation to consult with the appellant but "he is not bound by the Appellant's views as to what are the best means to achieve the objects of the Appellant's defence."77 In Prosecutor v. Nyiramasuhuko & Ntahobali the Trial Chamber stated that the "breakdown in communication and trust between the Accused and his Defence team" constitutes "exceptional circumstances within the ambit of Rule 45(H) of the Rules."78 The Trial Chamber continued that in making this finding it has considered the necessity for a proper relationship of communication and trust to be established between the accused and his defense team to ensure an effective defense and for smooth proceedings in relation to the Trial as a whole. In Pros. v. Blagojevic the Appeals Chamber, however, made clear that it is an impermissible form of protest, if the a breakdown in communication is the result of the actions of the accused and this action was undertaken solely to use as a ground to have counsel replaced."? The Appeals Chamber endorsed the finding of the Trial Chamber that: "an accused does not have the right to unilaterally destroy the trust between himself and his counsel. Similarly, an accused does not have the right to claim a breakdown in communication through unilateral actions, included refusals to meet with or receive documents from his counsel, in the hope that such actions will result in the withdrawal of his counsel by the Registrar."8o The Appeals Chamber concluded that in circumstances such as this, where the accused unjustifiably resists legal representation from assigned counsel, counsel's professional obligations to continue to represent the accused remain.s! (9) Under Regulation 78 of the Regulations of the Court, defense counsel shall seek the leave of the Chamber prior to withdrawal from a case. The Regulations itself set out no criteria as to when leave shall be granted. In light of the contractual relation between counsel and client however, leave should be granted whenever this contract has been effectively terminated. (10) If any person requires urgent legal assistance and has not yet secured legal assistance, or where his or her counsel unavailable, the Registrar may appoint duty counsel (Regulation 73 (2) of the Regulations of the Court). The Registrar shall take into account the wishes of the person as well as the geographical proximity of and the languages spoken by the counsel. (11) While the Registrar facilitates the issuance of a power of attorney for the counsel chosen by a person entitled to legal assistance, a Chamber may appoint counsel in the circumstances specified in the Statute and the Rules or where the interests ofjustice so require (Regulation 76(1) of the Regulations of the Court).

77 Pros. v. Blagojevic, IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace His Defense Team, Nov. 7, 2003, para. 27. 78 Pros. v. Nyiramasuhuko & Ntahobali, ICTR-97-21-T, Decision on Ntahobali's Motion for Withdrawal of Counsel, June 22, 2001, para. 14. 79 Pros. v. Blagojevic, IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace His Defense Team, Nov. 7, 2003, para. 31. 80 Id., para. 51. 81 Id., para. 54.

The International Criminal Court • 475 •

The Pre-Trial Chamber may appoint counsel to represent the interests of the defense where counsel has not been designated and the prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial (Article 56 (2) (d) of the Statute).

•

The Pre-Trial Chamber may appoint counsel to be present during the taking of testimony in order to protect the rights of the defence when the prosecutor considers that there is a serious risk that it might not be possible for the testimony to be taken subsequently (Rule 47(2) RPE).

•

The Pre-Trial Chamber may also appoint counsel to assist an arrested person with proceedings before the Court and the Pre-Trial Chamber while in detention in the custodial state (Rule 117 RPE).

The Chamber shall ensure that the counsel considered for appointment is included in the list of counsel. However, it may also appoint counsel from the Office of Public Counsel for the Defense. This office shall fall within the remit of the Registry solely for administrative purposes and otherwise function as a wholly independent office. The Office of Public Counsel for the Defense shall provide support and assistance to defense counsel and to the person entitled to legal assistance (Regulation 77 of the Regulations of the Court).

6.3. PROFESSIONAL ETHICS AND DISCIPLINE OF COUNSEL IN THE INTERNATIONAL CRIMINAL COURT* 6.3.1.

Introduction

Professional ethics is an area that has not yet been fully developed in the ICC documents as of this writing. Because the Assembly of States Parties put off adoption of a permanent Code of Conduct for Counsel until its Fourth Session at the end of 2005, most commentary written at this time (May 2005) is likely to turn out to be incorrect by the time this book is published. Those interested in this topic are therefore advised to check for the latest documents, and especially to study differences between those documents and the documents and practice in the ad hoc tribunals discussed elsewhere in this book. The Court does have some direct power to discipline or punish counsel and others under the Statute. These powers are described briefly below.

6.3.2. 6.3.2.1.

Statutes, Rules and Official Legal Documents Rules of Procedure and Evidence 82 Rule 8: Code of Professional Conduct

1. The Presidency, on the basis of a proposal made by the Registrar, shall draw up a draft Code of Professional Conduct for counsel, after having consulted the Prosecutor.

*

Section 6.3 was written by Kenneth S. Gallart. Adopted by the Assembly of States Parties, First session, New York, Sept. 3-10, 2002 (Official Records ICC-ASP /1/3). 82

476 • Defense in International Criminal Proceedings In the preparation of the proposal, the Registrar shall conduct the consultations in accordance with rule 20, sub-rule 3. 2. The draft Code shall then be transmitted to the Assembly of States Parties, for the purpose of adoption, according article 112, paragraph 7. 3. The Code shall contain procedures for its amendment.

6.3.2.2.

Assembly ofStates Parties Resolutions Resolution ICC-ASP/3/Res.3, para. 11 83

The Assembly of States Parties,

11. Takes note of the proposal for a draft Code of Professional Conduct for counsel before the International Criminal Court.v' decides that the provisions of the draft Code shall be applied provisionally until the end of the fourth session of the Assembly of States Parties, requests, in view of the urgency of the matter, the Bureau of the Assembly of States Parties to prepare an amended draft Code for adoption by the Assembly of States Parties at its fourth session, and invites States Parties to submit their comments on the current draft Code to the Bureau by 31 December 2004 ...

6.3.2.3.

Proposal for a Draft Code of Professional Conduct for Counsel Before the International Criminal Court

The Proposal for a draft Code of Professional Conduct for counsel before the International Criminal Court, Document ICC-ASP/3/11/Rev.l is at the time of this writing available at the ICC Web site, at www.icc-cpi.int/library/asp/ICC-ASP-3-11-RevlEnglish.pdf. It is also available in the other official languages of the Court. It is too lengthy to be reproduced here, and as noted above, is only provisionally applicable and is scheduled to be replaced by a final version at the Fourth Session of the Assembly of States Parties.

6.3.3.

Practice

There is no practice in the ICC to report at this time.

6.3.4. 6.3.4.1.

Reports and Academic Writings Reports

International Criminal Bar, Code of Conduct and Disciplinary Procedure of the International Criminal Bar (2003), available at www.icb-bpi.org/en/doc/ Code_of_ Conduct_en.doc. It is also available in French and Spanish atwww.icb-bpi.org.

83 Sept. 10, 2004, at Doc. ICC-ASP/3/25, pp. 310, 311, available at www.icc-cpi.int /library/ asp /ICC-ASP-3-25-III_English. pdf. It is also available at www.icc-cpi.int in the other official languages of the Court. 84 See document ICC-ASP/3/11/Rev.1.

The International Criminal Court • 477 International Bar Association, Code of Conduct for Counsel Appearing before the International Criminal Court, available at www.iccnow.org/ documents/ otherissues /IBAFinaICode20Feb03.pdf.

6.3.4.2.

Academic Writings

Daniel Soulez Lariviere, "La Deontologic, Organization et Controle," in Martine HaIlers, Chantal Joubert & Jan Sjocrona eds., The Position of the Defence at the International Criminal Court and the Role of the Netherlands as the Host State 147 (2002), and other articles in this book.

6.3.5.

Commentary

The deferral of adoption of the final Code of Conduct for Counsel makes any extensive discussion of ethics here premature. Those interested in this topic are therefore advised to check for the latest documents, and especially to study differences between those documents and the documents and practice in the ad hoc tribunals discussed elsewhere in this book. There are a few comments that can be made at this time: The scheme of the ICC Statute makes it clear that "counsel" does not include the prosecutor, deputy prosecutors or other lawyers working for the prosecution.e- This is in accord with the civil law tradition, which treats the prosecution function as part of the Court system, with counsel essentially being part of a different profession. There is a danger here that different standards of professional conduct will contribute to an inequality of arms, if prosecutors are given wider latitude in their actions. It is incumbent upon all organs of the Court to make sure that this does not happen. Even without a Code of Conduct for Counsel, the Court has the authority to discipline those appearing before it for misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions.t" Neither the prosecution nor defense counsel is excepted from this power. Misconduct can be dealt with "by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine, or other similar measures provided in the Rules of Procedure and Evidence."87 For counsel, the Presiding Judge may order "interdiction of that person from exercising his or her functions of the Court for a period not exceeding 30 days. "88 If the Presiding Judge finds this is insufficient, the matter can be referred to the Presidency, which, after hearing, may "order a longer or permanent period of interdiction. "89 There is no automatic right to appeal a decision that counsel (or anyone else) has committed misconduct or disobeyed an order of the Court.f'" Thus, anyone asserting that an order of the Court is illegal or invades a substantive right that cannot be vindi85 See, e.g., ICC Statute, Articles 46-48, where members of the prosecutor's office are treated differently for various purposes than counsel. 86 ICC Statute, art. 71. 87 Id. 88 Rules of Procedure and Evidence 171. 89 Id. 90 ICC Statute, art. 82.

478 • Defense in International Criminal Proceedings

cated by review of a final judgment by the appeals Chamber must seek discretionary review under the Appeals procedurcs.?' In some national systems, a person may obtain review of some orders asserted to be illegal by disobeying it, being held in contempt of court, and appealing the citation for contempt. This system does not appear to be contemplated under the ICC Statute. Therefore, the Trial and Pre-Trial Chambers of the Court should grant discretionary review liberally, wherever there is a colorable claim that an order of these Chambers illegally invades a substantive right of an accused, a witness or another person, and that right cannot be vindicated by an appeal of a final judgment of conviction or acquittal. In addition, the Court has jurisdiction over offenses against the administration of justice, such as obstructing or interfering with the attendance or testimony of a witness, tampering with or interfering with the collection of evidence or impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her official duties.f" These are treated as crimes, are punishable by imprisonment and may be tried either in the Court itself or, in appropriate circumstances, in the state where the offense was committed or of which the perpetrator was a narional.v"

6.4. COUNSEL-CLIENT PRIVILEGE IN THE INTERNATIONAL CRIMINAL COURT* 6.4.1.

Introduction

Counsel-client privilege and professional secrecy generally is vitally important to the fair administration ofjustice. It is therefore fitting that the ICC Statute provides for confidential communications between counsel and client more explicitly than other international human rights documents. These communications are also protected in the Rules of Procedure and Evidence. However, because the Code of Conduct for Counsel has not been finally adopted, a full commentary on the privilege is not possible at this time.

6.4.2. 6.4.2.1.

Statutes, Rules and Official Legal Documents ICC Statute 94 ICC Statute, Article 67(1)

1. In the determination of any charge, the accused shall be entitled to ... the following minimum guarantees, in full equality:

91 Id. Section 1 (d). A full discussion of discretionary review is beyond the scope of this chapter. See generally Rules of Procedure and Evidence 155-58. 92 ICC Statute, art. 70. 93 Id. A full discussion of these prosecutions in the ICC or national courts is beyond the scope of this chapter. * Section 6.4 was written by Stefan Kirsch. 94 Text of the Rome Statute circulated as documentA/CONF.183/9 ofjuly 17,1998, and corrected by proces-verbaux of Nov. 10, 1998, july 12, 1999, Nov. 30, 1999, May 8, 2000, jan. 17, 2001 and jan. 16,2002. The Statute entered into force on july 1,2002.

The International Criminal Court • 479

(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;

(d) ... [T] 0 conduct the defence in person or through legal assistance of the accused(s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests ofjustice so require, and without payment if the accused lacks sufficient means to pay for it ....

6.4.2.2.

Rules of Procedure and Evidence 95 Rule 73(1)

1. Without prejudice to article 67, paragraph 1 (b), communications made in the context of the professional relationship between a person and his or her legal counsel shall be regarded as privileged, and consequently not subject to disclosure, unless: (a) The person consents in writing to such disclosure; or (b) The person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.

6.4.3.

Case Law and Practice

At the time of this writing, no case law or practice exists on the client-counsel privilege in the International Criminal Court.

6.4.4.

Reports

International Criminal Bar, Code of Conduct and Disciplinary Procedure of the International Criminal Bar (2003), available at www.icb-bpi.org/ en/ doc/ Code_of_ Conduct_en.doc. It is also available in French and Spanish at www.icb-bpi.org. International Bar Association, Code of Conduct for Counsel Appearing before the International Criminal Court, available at www.iccnow.org/ documents/otherissues /IBAFinaICode20Feb03.pdf.

6.4.5.

Commentary: Right to Confidentiality as Part ofthe Right to Counsel in the ICC Statute

The right to counsel in the International Criminal Court includes the right to communicate freely with counsel in confidence.w The right of an accused person to a confidential relationship with his or her lawyer is recognized in legal systems throughout the world. In the common law world, it is often recognized either in the law of evidence (or court rules concerning evidence). In both common and civil law countries, confidentiality is often a foundational principle of the rules of ethics of lawyers and extends beyond the context of criminal cases. 95 Adopted by the Assembly of States Parties, First session, New York, Sept. 3-10, 2002 (Official Records ICC-ASP /1/3). 96 ICC Statute, Article 67 (1) (b).

480 • Defense in International Criminal Proceedings The ICC Statute goes further. It recognizes the right to confidentiality of communications with one's lawyer as a substantive right of the accused.v? This is carried through in the Rules of Procedure and Evidence. The privilege can only be waived where the client waives the privilege in writing, or where the client has voluntarily disclosed a communication to a third party, and then only if the third party gives the evidence of the communication.t" Additionally, the Registrar is required to facilitate the protection of confidcnriality.'? Because the Statute is the highest legal authority in the International Criminal Court sysrcm.l?" regulations and procedures adopted by organs of the Court cannot infringe this right. This is an advance over the text of the International Covenant on Civil and Political Rights!"! and the Statutes of the IClY and ICTR,102 which do not explicitly make confidentiality a part of the right to counsel. The tradition of confidentiality of client-lawyer communications is very well established in most legal systems. Nonetheless, there are a few areas in which its explicit recognition in the ICC Statute may make a difference in the protection of the rights of the accused. One example follows: Responding to certain scandals in which appointed counsel allegedly split fees with clients, the IClY and ICTR explicitly prohibited the practice. They were unquestionably acting within their authority to do so. However, they also adopted Codes of Conduct for counsel, which required counsel to breach confidentiality in some cases. Where clients ask counsel to split fees, they shall advise their clients on the unlawfulness of such practice and shall report the incident to the Registrar forthwith. 103 While counsel should certainly refuse to split fees and should advise their clients of the unlawfulness of the practice, there is no reason that the rule of confidentiality of attorney-client communications should be breached in this case. It will certainly prejudice the relationship between appointed counsel and client, and is unnecessary once the fee-splitting request has been rejected, as counsel must reject such a request. The explicit protection of confidentiality of attorney-client communications in the ICC Statute should prohibit innovations, such as those of the IClY and ICTR, that cut away at traditional notions of confidentiality. Beyond this, the lack of documents at the time of this writing (especially the lack of a final Code of Conduct for Counsel), make it impossible to comment authoritatively on the counsel-client privilege in the ICC, or the related, so-called "work-product privilege" for confidential materials created by counsel in the course of and for the purpose of the representation. Counsel must be aware of the latest documents from the Court. It would also be wise for counsel to be aware of practice in the IClY and ICTR and to Id. Rules of Procedure and Evidence 73 (1) . 99 Rules of Procedure and Evidence, Rule 20 (1) (a) . 100 See ICC Statute, Articles 21 (1), 51 (5), 52(1). 101 ICCPR, Article 14(3) (b). 102 IClY Statute, Article 21 (4) (b); ICTR Statute, Article 20 (4) (b). 103 ICTR Code of Professional Conduct for Defense Counsel, Article 5 bis (2) (June 8, 1998), in English and French at ICTR Web site, www.ictr.org. Accord, The Code of Professional Conduct for Counsel Appearing Before the International Tribunal [IC1Y] , IT /125 Rev. 1, Article 18(2) (July 13, 2002). 97

98

The International Criminal Court • 481

consider how the important distinction in the ICC Statute discussed here might be used to further protect the client's right to confidential communications with counsel. Counsel should also be aware that different national systems have different protections for counsel-client communications, and should not be lulled into believing that the ICC will have exactly the same rules applied in exactly the same way they are applied in their national systems. For example, counsel from some common law systems, where there are certain limitations on the privilege, may be able to use ICC Statute, Article 67(1) and practice in some civil law countries (where the privilege is more absolute) to argue for greater protection for their clients than would be available in their own systems. Conversely, counsel from those civil law systems, where the privilege is very broad, must be aware that prosecutors and judges from other systems might not share their views and must be prepared to argue for the privilege in appropriate cases.

6.5. COMMUNICATIONS WITH A CLIENT IN CUSTODY* 6.5.1.

Introduction

Confidential and unrestricted communication between any suspect or accused and his counsel is of utmost importance to ensure a proper preparation of the defense (see Article 67 of the Statute). Therefore, every detained person has the right to communicate with his or her defense counselor assistants to his or her defense counsel.

6.5.2.

Regulations ofthe Court 104 Regulation 97 Communication with defence counsel

1. A detained person shall be informed of his or her right to communicate fully, where necessary with the assistance of an interpreter, with his or her defence counselor assistants to his or her defence counsel as referred to in regulation 68. 2. All communication between a detained person and his or her defence counselor assistants to his or her defence counsel as referred to in regulation 68 and interpreters shall be conducted within the sight but not the hearing, either direct or indirect, of the staff of the detention centre.

Regulation 101 Restrictions to access to news and contact 1. A Chamber seized of the case may, at the request of the Prosecutor, order that access to the news be restricted, if it is considered necessary in the interests of the administration ofjustice, in particular, if unrestricted access could prejudice the outcome of the proceedings against that detained person or the outcome of any other investigation.

*

Section 6.5 was written by Kenneth S. Gallant. Adopted by the judges of the Court on May 26, 2004, Fifth Plenary Session, The Hague, May 17-28, 2004 (Official documents of the International Criminal Court ICC-BDj01-01-04). The Regulations and any amendments thereto shall remain in force, if there are no objections from a majority of states parties within six months from the date of their adoption (Art. 52 (3) Rome Statute). 104

482 · Defense in International Criminal Proceedings 2. The Prosecutor may request the Chamber seized of the case to prohibit, regulate or set conditions for contact between a detained person and any other person, with the exception of counsel, if the Prosecutor has reasonable grounds to believe that such contact: (a) Is for the purposes of attempting to arrange the escape of a detained person from the detention centre; (b) Could prejudice or otherwise affect the outcome of the proceedings against a detained person, or any other investigation; (c) Could be harmful to a detained person or any other person; (d) Could be used by a detained person to breach an order for nondisclosure made byajudge; (e) Is against the interests of public safety; or (f) Is a threat to the protection of the rights and freedom of any person. 3. The detained person shall be informed of the Prosecutor's request and shall be given the opportunity to be heard or to submit his or her views. In exceptional circumstances such as in an emergency, an order may be made prior to the detained person being informed of the request. In such a case, the detained person shall, as soon as practicable, be informed and shall be given the opportunity to be heard or to submit his or her views.

6.6. COMMUNICATIONS WITH WITNESSES* The main and most important feature of the procedure at the ICC is the absence of an obligation of the Trial Chamber to extend the taking of evidence to all facts and means of proof relevant to the decision proprio motu. 105 In such a proceeding it is therefore the obligation of the parties to the proceeding to put forward their case and to tender their evidence. To comply with that obligation it is essential for the defense to investigate its case, to gather information and to identify potential witnesses. In light of the role of the defense, it would clearly violate the right to a fair trial enshrined in the Statute if the ability of the defense to investigate its case, to gather information and to identify potential witnesses would be unduly restricted either legally or factually.

*

Section 6.6 was written by Stefan Kirsch. Cf Section 244(2) of the German Criminal Procedure Code (StrafprozessordnungStPO) wich reads: "In order to establish the truth, the court shall, proprio motu, extend the taking of evidence to all facts and means of proof relevant to the decision." (Tranlation by the author) . 105

CHAPTER 7

ASSOCIATIONS OF DEFENSE COUNSELDEVELOPMENT AND ROLE Stephane Bourgon, Kennedy Ogetto and Wolfgang Bendler

7.1. THE ASSOCIATION OF DEFENSE COUNSELS PRACTICING BEFORETHE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ADC-ICTY)* 7.1.1.

Introduction

Pursuant to the Statute of the International Criminal Tribunal for the Former Yugoslavia (the "International Tribunal"), the defense is not an organ of the International Tribunal; only the Chambers, the Office of the Prosecutor and the Registry are recognized as organs. The need for and the existence of defense counsels practicing before the International Tribunal is derived from Article 21 of the Statute, which deals with the rights of the accused. Despite various attempts to establish an association or some form of cooperation, defense counsels practiced on an absolute individual basis for the first nine years of the existence of the International Tribunal until the Association of Defense Counsels Practicing Before the International Criminal Tribunal for the Former Yugoslavia (ADC-IClY) was created in late 2002. The creation of the ADC-IClY resulted from the works of an ad hoc working group for counsel matters put in place and presided by the President of the International Tribunal, Judge Claude Jorda from France, in early 2002 as well as from the modifications to the Rules of Procedure and Evidence of the International Tribunal in July 2002. Pursuant to Rule 44, as modified on this occasion, defense counsels who wish to practice before the International Tribunal must be members of an association of counsels recognized by the Registrar. The obligation for defense counsels to be members of such an association is what distinguishes the relationship between the defense and the organs of the International Tribunal from that which exists before all other existing international courts. The ADC-IClY was officially created as a non-profit organization established as an association under the law of the Netherlands during its first General Assembly in September 2002. Mr. John Ackerman from the United States was elected as the first President. The first real test for the ADC-IClY came in May of 2003 when the Registrar tried to impose a new payment system for the trial phase of the proceedings without consulting the Association. The main characteristics of this new system were that it was based on a lump-sum approach and that it included a form of penalty imposed on defense counsels whose cases lasted longer than expected. Although defense counsels were not

*

Section 7.1 was written by Stephane Bourgon.

483

484 • Defense in International Criminal Proceedings

opposed to the introduction of a lump-sum system of payment per se, the new system was unacceptable for defense counsels who simply could not accept being the only officers of the court penalized in the event the proceedings lasted longer than had been anticipated. The ADC-IClY succeeded in preventing the Registrar from implementing this system and a working group was created with a view to adopting an acceptable lumpsum system in consultation with the ADC-IClY During its first year, the ADC-IClY devoted most of its energy to its internal organization as well as to the creation of a Web site as a communication tool for defense counsels. The ADC-IClY also filed some amicus curiae briefs in relation to important issues raised in defense motions filed before the trial chambers and the Appeals Chamber although it was not very successful. The main contribution of the ADC-IClY in this regard was the filing of an amicus curiae brief related to deficiencies of the system of payment for the pre-trial phase of the proceedings, with a view to assisting the Appeals Chamber in adjudicating on an interlocutory appeal filed by the defense in the Ojdanic case. Unfortunately, the Appeals Chamber refused to consider the brief filed by the ADC-IClY and went on to dismiss the interlocutory appeal. In October 2003, the ADC-IClY held its second annual General Assembly at which time a new Executive Committee was elected and the author became its second President. During its second year of existence, the ADC-IClY was very active and it acquired further credibility and visibility. One of the main reasons for this was the move by the Executive Committee to hire a full-time Head of Office to maintain permanent liaison with the Registry, organize the Office and the membership records, restructure the accounting procedures, improve the Web site of the Association, provide support to the committees and enhance communication with members. The aim of the Executive Committee was to ensure that its decisions and projects would be implemented, including the accomplishment of a number of tasks that defense counsels in trial do not have the necessary time to do and that defense counsels representing accused in the pre-trial phase cannot do because they are not in The Hague. The most important achievement of the ADC-IClY during this second year was the adoption of acceptable legal aid policies for the pre-trial and trial phases of the proceedings before the International Tribunal, which resulted from a successful consultation process, albeit tense and at times confrontational, between the Registrar and the ADC-IClY This success however, was mitigated by the failure of the Registrar to recognize the difficult working conditions of defense counsels and to improve the same as well to promulgate and implement what the Executive Committee referred to as objective norms that can be applied with transparency for all aspects of the work of defense counsels. Further to a thorough analysis of the working conditions of defense counsels practicing before the International Tribunal, the ADC-IClY provided the Registrar with an exhaustive list of requests ranging from unimpeded access to one of the courtrooms to additional space for the use of defense counsel in trial and including, as its number one priority, access to the judicial database for defense counsels after business hours. As the second year of activities of the ADC-IClY came to an end, very little progress had been made on these specific issues as well as on a number of other ones.

Associations of Defense Counsel • 485 As for the adoption of objective norms, this was the pet project of the newly elected President of the ADC-IClY This included a review of the Directive on the Assignment of Counsel, which no longer corresponded to the reality of the situation of defense counsels, the adoption of a translation and interpretation policy, the adoption of a dispute settlement mechanism corresponding to internationally recognized norms, the adoption of a travel and subsistence allowance policy and the promulgation of a new directive dealing with the role of the Advisory Panel. For each of these documents, the ADC-IClY provided the Registrar with complete drafts with a view to jump-starting the consultation process. As the second year of activities of the ADC-IClY came to an end, the judges had adopted modifications to Rules 44 and 45 dealing with the qualification requirements for defense counsels who wish to practice before the International Tribunal as well as changes to the corresponding sections in the Directive on the Assignment of Counsels but no progress had been made in respect of the other sections of the Directive or in relation to any of the other policies and directives. During the same year, the President of the ADC-IClY was invited to appear before the judges sitting in plenary session on two occasions. Addressing the judges, the President summarized the difficult situation of defense counsels practicing before the International Tribunal and was very critical of the Registrar for failing to improve these conditions and for the lack of progress in the implementation of objective norms. On both occasions, the President of the ADC-IClY respectfully requested the judges and the President of the Tribunal to provide the necessary guidance to the Registrar with a view to ensuring that he would fulfill his responsibilities towards the defense. Another important achievement of the ADC-IClY during the same year was the organization of a training course on advocacy and substantive law in cooperation with the Grotius Center for International Law and the Asser Institute, two Hague-based highly recognized training organizations. In October 2004, the ADC-IClY held its third annual General Assembly. On this occasion, a new Executive Committee was elected and the author was re-elected for a second term as President. The General Assembly was also the occasion for the ADC-IClY to organize technical training for all its members on new computer technology in use at the International Tribunal, focusing primarily on the Prosecution's Electronic Disclosure Suite (EDS). This is a new database conceived by the prosecution to replace the traditional disclosure of material in hard copy. Although this system has been officially accepted and recognized by the President of the International Tribunal who issued a practice directive concerning its use, the development of the EDS is not yet complete and it is very difficult to use. In fact, many defense counsel are of the view that the EDS was introduced by the prosecution as a means to circumvent its disclosure obligations pursuant to Rules 66, 67 and 68. In addition to alerting the judges and the Registrar of the potential fallouts of the use of the EDS for the rights of the accused and participating in its development to make it more user-friendly along with the representatives of the Registrar, the ADC-IClY invested considerable time and energy to train its members, a responsibility that rests with the Registrar but that is being neglected. The ADC-IClY also organized as part of the annual General Assembly activities, substantive training in relation to all facets of representing an accused before the International Tribunal. This training organized by the Training Committee of the ADC-IClY was a collective effort by a num-

486 • Defense in International Criminal Proceedings

ber of counsels practicing before the International Tribunal designed for all members of the defense team, from the lead counsels to the co-counsels, legal assistants, investigators, case managers and interpreters. The success of this training activity convinced the Executive Committee of the need to make it compulsory for all new personnel assigned to a defense team representing an accused before the International Tribunal. Only funding is missing to implement this resolution adopted by the Executive Committee. The annual General Assembly of 2004 also provided the opportunity for the ADCIClY to review its Constitution. Many modifications were then adopted, the most important ones being the addition of a detailed preamble, the creation of a Membership Committee and the adoption of detailed provisions with a view to giving the Disciplinary Council a much more important role in disciplinary matters, including the authority to render advisory opinions on the various norms applicable to defense counsel. The amendments have been communicated to the Registrar of the International Tribunal for dissemination as an official document. Following the third annual General Assembly, the new Executive Committee intensified its consultations with the Registry with a view to convincing the Registrar to work on the adoption of the objective norms on the agenda of the ADC-IClY as well as on numerous other issues necessary to improve the situation of the defense and the working conditions of defense Counsels practicing before the International Tribunal. In December 2004, the President of the ADC-IClY was once again invited to address the judges sitting in plenary session. On this occasion, the President de novo criticized the lack of progress regarding a number of initiatives put forward by the ADC-IClY more than one year earlier in many cases. The President of the ADC-IClY went as far as to say that the function of defense before the International Tribunal was in peril and that the lack of progress on many issues affecting the work of defense counsels was having a real impact on the right of the accused to a fair trial. The President of the ADC-IClY also used this opportunity to inform the judges that the adoption of a resolution proposed by a group of members to stage a work-stoppage had been defeated on the recommendation of the Executive Committee, which did not believe that this was the appropriate means to convince the Registrar and the judges of the need to address the substantial requests put forward by the ADC-IClY Nevertheless, the President reiterated his request for the assistance of the judges as well as of the President of the International Tribunal in providing the necessary guidance to the Registrar and insisting on the fulfillment of his obligations and responsibilities towards the defense. In January 2005, at the request of the Registrar, the ADC-IClY submitted an updated list of issues affecting the work of defense counsel practicing before the International Tribunal. The aim of this list was to provide a basis for future consultations as well as to identify for the Registrar the priority issues that needed to be addressed without delay. While the submission of this new list was a setback for the ADC-IClY as more than 80 percent of the issues it contained were raised by the ADC-IClY more than a year and a half earlier, the Executive Committee was of the view that it was the best way to obtain results.

Associations of Defense Counsel • 487 Unfortunately, progress was very slow to come in many areas. Moreover, the Registrar simply refused to address the issues that were the highest priorities for the ADC-IClY The only positive development was the implementation of bi-weekly meetings between the Chief of the Office for Legal Aid and Detention Matters (OLAD) and the ADC-IClY From the beginning, the ADC-IClY reassured the Registrar of its intention to take part in these bi-weekly meetings with an open, positive and constructive approach. Even though the bi-weekly meetings did allow for further consultations to take place between the ADC-IClY and the representatives of the Registrar as well as for some progress to be made on minor issues, it soon became clear that this forum would not be able to address the more serious maters that needed to be discussed. It is also significant that the bi-weekly meetings did not lead the Registrar to review his position not to address some of the more significant requests of the ADC-IClY such as the application of the new pre-trial legal aid policy to all defense teams involved in this phase of the proceedings, the issue of compensation for those defense teams that were prejudiced by the application of the "old" pre-trial legal aid and the adoption of a proper dispute settlement mechanism to be included in the Directive on the Assignment of Counsels. Moreover, further to the holding of the fourth bi-weekly meeting, the information obtained led to the conclusion that the adoption of objective norms on its agenda would likely not happen in time for their consideration and approval by the judges at their next plenary session in July 2005. In response to this situation, the ADC-IClY held a Special General Assembly that led to the adoption of a resolution stating that if the following four matters were not addressed satisfactorily before the judges plenary, the ADC-IClY would officially file a motion to be heard formally before the Bureau of the International Tribunal with a view to requesting that a judge be assigned to intervene in the consultation process between the ADC-IClY and the Registrar. These issues are: (1) the review of the Directive on the Assignment of Counsels; (2) the partial indigency policy affecting the work of defense counsels representing the accused found to be in this situation; (3) the application of the pre-trial legal aid policy to all defense teams involved in this phase of the proceedings; and (4) the compensation of defense counsels for the devaluation of the u.S. currency. At the same Special General Assembly, the President of the ADC-IClY resigned as a last ditch effort to bolster the consultation process and convince the Registrar of the necessity to act quickly. In a letter addressed to the judges, the President explained the reasons for his resignation, highlighting the fact that unfortunately his calls on behalf of all members practicing before the International Tribunal, for the assistance of the judges and of the President of the International Tribunal in providing the necessary guidance to the Registrar and insisting on the fulfillment of his duties and obligation towards the defense, had unfortunately remained unanswered. Time will tell whether the difficult situation of defense counsels practicing before the International Tribunal can be redressed. Considering however, that the focus of the Tribunal is presently on the implementation of its completion strategy and that it would be surprising to witness a sudden interest of the judges for defense matters, the perspectives for significant progress are slim.

488 • Defense in International Criminal Proceedings

In light of the above, it can be concluded that the unique position of the ADC-IClY as an association to which all defense counsels must adhere to practice before the International Tribunal: (1) has given a face to the function of the defense and has allowed it to enjoy the status of a recognized party to the proceedings before the jurisdiction; (2) has allowed defense counsels to build a credible organization able to express their concerns with one voice before the judges and the Registrar; (3) has made it possible to ensure a better standard of advocacy for members practicing before the jurisdiction; (4) has made it possible to achieve positive results in some areas for the benefit of all defense counsels; and (5) has made it possible to assist defense counsels in their endeavor to represent their clients with the utmost effectiveness through the provision of services not available to individual defense teams. Despite these positive developments, the position of defense counsels practicing before the International Tribunal remains critical. The unique position of the ADCICTY, the creation of which was initiated by the judges: (1) did not allow it to be recognized as a full-fledged member and partner before the International Tribunal; (2) did not allow it after almost three years of existence to convince the judges and the Registrar of the need to improve their situation through inter alia, the adoption of objective norms that can be applied with transparency to all defense counsels; (3) did not allow it to obtain from the Registrar some of the most basic changes to improve their working conditions such as unimpeded access to the courtrooms, access to the judicial database and access to a room in which defense counsels could meet their consultants, experts and future witnesses at the Tribunal when in trial; and more importantly (4) did not allow it to successfully enhance the understanding of the staff members of the International Tribunal of the role of the defense, the manner in which defense counsels accomplish their duties and of the necessity to improve their working conditions for the benefit of the enforcement of the rights of the accused to a fair trial. Many reasons can be provided for this lack of results despite the unique position of the ADC-IClY The difficulty is that there is just so much that can be accomplished by the ADC-IClY without the judges believing in the need for a strong and effective defense and taking the necessary steps to ensure that the Registrar will fulfill his duties and obligations towards the defense function. Moreover, as long as the Registrar continues to accept the imperfect institutional set up of the International Tribunal as something that cannot be improved and continues to perceive the Secretariat of the United Nations in New York as his superior contrary to the spirit of the Statute and the Rules, any further progress appears unlikely. Furthermore, in the absence of senior personnel in the Registry who believe in the defense function for what it is, an essential compo-

Associations of Defense Counsel • 489 nent of the proceedings before the International Tribunal, and who understand the needs of Defence Counsels to be able to perform this most difficult function, it will be very difficult, if not impossible, for the ADC-IClY to obtain additional results.

7.1.2.

Documents and Materials-Constitution ofthe ADC·ICTY Constitution

Association of Defence Counsel Practising Before the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991

Preamble Defence Counsels practising before the International Criminal Tribunal for the Former Yugoslavia, ASSEMBLED in The Hague on 23 October 2004 on the occasion of the 3rd General Assembly of the Association of Defence Counsel Practising Before the International Tribunal; CONSIDERING the amendments to the Rules of Procedure and Evidence adopted by the Judges during their 27th Plenary Session held in July 2002; RECALLING the creation in October 2002 of the Association of Defence Counsel Practising Before the International Tribunal; NOTING the official recognition of the Association of Defence Counsel Practising Before the International Tribunal in December 2002; MINDFUL of the obligation and the necessity of ensuring fair trials before the International Tribunal; CONVINCED of the importance of the essential role played by Defence Counsels in ensuring fair trials and respect for the rights of persons accused in accordance with internationally recognized standards; and RECOGNIZING that the Association of Defence Counsel Practising Before the International Tribunal is a partner, along with the organs of the International Tribunal, in promoting the fairness of the proceedings and the accomplishment of the mission of the International Tribunal pursuant to United Nations Security Council Resolution 827 (1993); HAVE ADOPTED the following modified Constitution.

Part I General Provisions Article I-Name and Seat 1. The name of the Association shall be the "Association of Defence Counsel Practising Before the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991."

490 • Defense in International Criminal Proceedings 2.

The short name for the Association is "ADC-IClY"

3.

The seat of the ADC-IClY is established at The Hague in the Netherlands.

Article 2-0bjectives The objectives of the ADC-IClY are: 1. To support the function, efficiency and independence of Defence Counsel practicing before the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("International Tribunal"); 2. To promote and ensure the proficiency and competence of Defence Counsel Practicing Before the International Tribunal in the fields of advocacy, substantive international criminal law and information technology systems relevant to the representation of persons accused before the International Tribunal; 3. To offer advice to the President, the Chambers and the Registrar of the International Tribunal in relation to the right of the accused to a fair trial and the Rules of Procedure and Evidence as well as Regulations, Practice Directives and Policies related to the work of Defence Counsel, such as inter alia, the Directive on the Assignment of Counsel, the Code of Professional Conduct for Counsel Appearing Before the International Tribunal and the applicable Legal Aid Policies; and 4. To oversee the performance and professional conduct of Defence Counsel, in so far as it is relevant to their duties, responsibilities and obligations pursuant to the Statute, the Rules of Procedure and Evidence, the Code of Professional Conduct for Counsel Appearing Before the International Tribunal, the Directive on the Assignment of Defence Counsel, and the Detention Rules and Regulations of the International Tribunal.

Part II Membership Article 3-Qualifications 1. The membership of the ADC-IClY is comprised of Full Members and Associate Members. 2.

Any person who fulfils the following requirements is eligible to be a Full member: a.

Being admitted to the practice of law in a state, or being a university professor of law;

b.

Possessing established competence in criminal and/or international criminal law / international humanitarian law / international human rights law;

c.

Possessing at least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other capacity, in criminal proceedings;

d.

Having written and oral proficiency in one of the two working languages of the Tribunal or having obtained a waiver pursuant to Rule 44 B of the Rules of Procedure and Evidence.

Associations of Defense Counsel • 491 e.

f.

Not having been found guilty or otherwise been disciplined in relevant disciplinary proceedings where being admitted to the practice of law or a university professor of law;

Not having been found guilty in relevant criminal proceedings.

3. Only Full Members are eligible to act as counsel to represent persons accused before the international Tribunal. The requirement at paragraph 2c may be waived for a counsel retained by a person accused. 4. Any person who supports the objectives of the ADC-IClY is eligible to be an Associate Member. 5. Any person who does not fulfil the requirements in paragraph 2, but who, as of 28 July 2004, was assigned to a case as Lead Counselor Co-counsel, is eligible to be a Full Member of the ADC-IClY for the period of their assignment to that case.

Article 4-Membership Committee &Admission 1. The Membership Committee is comprised of five Full Members. Members of the Membership Committee are elected by the General Assembly by majority vote. Membership Committee members are elected for a term of one year and may be reelected for a second and third term. No Membership Committee member may serve more than three terms. Members of the Executive Committee are not eligible to serve on the Membership Committee. 2. The Membership Committee reviews, and approves or denies membership applications on the basis of the criteria found in Article 3. An applicant is admitted if three members of the Membership Committee support the application. 3. The Membership Committee may adopt internal procedures to govern the procedure for admission. 4. A person whose membership application as a Full member is denied is promptly notified of such decision in writing and offered to join the ADCIClY as an Associate Member. The decision of the Membership Committee may be appealed before the Executive Committee within 30 days of reception of the notice.

Article 5-Fees 1.

The membership year runs from the 1 January until 31 December inclusive.

2. All members of the ADC-IClY must pay an annual membership fee. The annual membership fee is determined by the General Assembly on the recommendation of the Executive Committee. The annual membership fee must be paid in one installment, either within 30 days of the beginning of the membership year or, for new members, within 30 days of approval of membership, on the basis of the number of months remaining in the current membership year. 3. In addition, Full members assigned as counsel to a case before the International Tribunal pay an additional monthly fee during the Pre-trial, Trial and Appeals phases of the proceedings. The monthly fee for each phase is determined by the General Assembly on the recommendation of the Executive Committee. Membership fees may be paid in one lump sum or in monthly installments but no later than 30 days following the end of each respective month.

492 • Defense in International Criminal Proceedings Article 6-Termination of Membership 1.

Membership ceases upon: a.

the death of the member;

b.

the resignation of the member, which becomes effective upon receipt by the ADC-IClY of the member's written resignation;

c.

the discontinuation of membership, following a decision by the Membership committee if:

d.

1.

a member no longer satisfies the requirements for membership as outlined in the Constitution of the ADC-IClY; or

11.

a member no longer consistently fulfils his or her obligations towards the ADC-IClY; or

111.

the ADC-IClY cannot reasonably be expected to allow the membership to continue;

the discontinuation of membership by the Disciplinary Council, which may only be decided upon when a member persistently acts contrary to the articles, regulations and resolutions of the ADC-ICll:: or where the conduct adversely affects the ADC-IClY in an unreasonable manner.

2. The membership will end at the earliest date allowed following the day on which notice was given. 3. A member whose membership is discontinued will be promptly notified in writing of the resolution and the reason (s) for which membership is being discontinued or not renewed. The member may file an appeal to the Executive Committee within 30 days of the receipt of the notice of the resolution. Pending the resolution of the appeal, the member shall be suspended from membership privileges. The suspended member, however, shall have the right to make representations before the Executive Committee. 4. The Disciplinary Council or Membership Committee may only adopt a resolution to discontinue membership if the reasons for doing so are grave and for members who are currently assigned or appointed to cases, after consulting with the Registrar, considering that discontinuation implies that the member no longer satisfies the requirements of Rule 44 of the Rules of Evidence and Procedure of the International Tribunal and therefore may no longer practise before the International Tribunal.

Part III Executive Committee Article 7-Composition 1.

The Executive Committee is composed of the President and four Vice-Presidents.

2. The members of the Executive Committee are elected by the General Assembly from a list of nominees. All members of the ADC-IClY may nominate a Full Member for election. A Full Member is officially nominated to run for election when nominated/supported by five members. The list of nominees shall be submitted to all mem-

Associations of Defense Counsel • 493 bers no later than five days before the election. In exceptional circumstances, nominations can be made during the General Assembly prior to the election. 3. The members of the Executive Committee are elected for a term of one year and are eligible to be re-elected for two additional terms. 4. One of the members of the Executive Committee is elected as President of the ADCIClY by the members of the Executive Committee. The election of the President is held immediately following the election of the Executive Committee. 5. The membership of the Executive Committee shall reflect the legal traditions of the common law and civil law systems and the geographical distribution of the members.

Article a-Duties ofthe Executive Committee 1. The Executive Committee is responsible to the General Assembly for the day-to-day operations and management of the ADC-ICJl:: subject to the limitations set out in the Constitution. 2. The day-to-day operations and management of the ADC-IClY includes inter alia: maintaining an updated list of members, servicing members in accordance with the present Constitution, keeping records of all activities, managing the financial assets of the ADC-ICJl:: taking all necessary measures to achieve the objectives of the ADC-ICJl:: organizing and managing the rooms and equipment made available to Defence Counsel, maintaining effective liaison with the Office of Legal Aid and Detention Matters (OLAD) , maintaining the website of the ADC-ICJl:: convening General Assemblies and representing the ADC-IClY as detailed in paragraph 3. 3. Representation of the ADC-IClY refers to the representation of all members as a collective body before (1) the organs of the International Tribunal (Chambers, Office of the Prosecutor and Registry), (2) International organizations, (3) Non-Governmental Organizations, (4) Persons accused before the International Tribunal, (5) the media, (6) the public and (7) any other agency whether public or private, for the purposes of achieving the objectives of the ADC-IClY 4. The Executive Committee appoints one of its members or any other Full Member to the Disciplinary Panel established pursuant to Article 40 of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal and two of its members or any other Full Members to the Disciplinary Board established pursuant to Article 48 of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal. Members of the Executive Committee shall be appointed to the Disciplinary Panel and to the Disciplinary Board for the duration of their term of office as members of the Executive Committee of the ADC-IClY 5. The Executive Committee may create special ad hoc committees in addition to the membership committee, training committee and disciplinary council, for the purpose of assisting it in the accomplishment of its duties. 6. One of the Vice Presidents is assigned by the President to take minutes of Executive Committee meetings. The minutes are confirmed by the President and posted on the members-only section of the ADC-IClY website.

7. The Executive Committee may adopt internal directives or procedures as necessary for its functioning and for the day-to-day operations and management of the ADC-IClY

494 • Defense in International Criminal Proceedings

Such internal directives or procedures must be consistent with the present Constitution, the Statute, the Rules of Procedure and Evidence, Practice directives, and Orders of the International Tribunal. 8. The Executive Committee may secure the services of a full time employee to act as Head of Office of the ADC-IClY The ADC-IClY Head of Office reports to the President and is responsible to the Executive Committee for the accomplishment of his duties. The terms and conditions of service of the ADC-IClY Head of Office are determined by the Executive Committee subject to the adoption of the budget by the General Assembly. The Executive Committee may also secure the services of one or more parttime employees as necessary subject to the same conditions. 9. The express consent of three members of the Executive Committee is required to legally bind the ADC-IClY towards third parties. 10. The Executive Committee is authorized to enter into agreements to purchase, alienate or encumber registered goods or services not exceeding 40,000 euros.

Article 9-Termination ofMembership ofthe Executive Committee 1.

Membership in the Executive Committee ends if: a.

The member ceases to be a Full member of the ADC-IClY;

b.

The member resigns from the Executive Committee; or

c.

The member is dismissed by the General Assembly.

2. The General Assembly may, on the recommendation of the Executive Committee or proprio motu, dismiss a member of the Executive Committee for cause, by an absolute majority of the votes cast, including a minimum of 25 full members. The General Assembly may also suspend a member of the Executive Committee for a period not exceeding 90 days. If the suspension is not followed within three months by a resolution to dismiss the member, the suspension shall be deemed to have lapsed. 3. A member of the Executive Committee may request to temporarily withdraw from the Executive Committee for a period not exceeding 45 days. If at this time he has not requested to be reinstated as a member of the Executive Committee, the member will be deemed to have resigned. 4. The Executive Committee may, after giving the member an opportunity to be heard, suspend a member of the Executive Committee for a period not exceeding 45 days by unanimous vote of the four other members of the Executive Committee. The object of such suspension must be to refer the matter to the General Assembly for consideration. If no action has been taken by the General Assembly after 45 days, the suspension shall be deemed to have lapsed. 5. Without prejudice to paragraphs 2, 3 and 4, if the membership of the Executive Committee falls below five members, the committee remains lawfully constituted. The Executive Committee shall however convene a meeting of the General Assembly to proceed with the election of a new member of the Executive Committee within a maximum of 45 days.

Associations of Defense Counsel • 495

Article 10-Finances 1. The financial year of the ADC-ICTY runs from the first day ofJanuary up to and including the thirty-first day of December. 2. On behalf of the Executive Committee, the Vice President (Finance) is responsible for keeping detailed and complete financial records and accounts of the ADC-ICTY The full financial records are disclosed to the members on an annual basis and made public in accordance with the applicable laws of the Netherlands. 3. The Vice President (Finance) is responsible for preparing the end of year financial report of the ADC-ICTY, including a statement of revenues and expenditures as well as a balance sheet, no later than 30 January of the new financial year. 4. The end of year financial report of the ADC-ICTY is approved by the Executive Committee for onwards submission to the Internal Auditors of the ADC-ICTY The end of year financial report is communicated to all members no later than 28 February of the new financial year along with the report of the Internal Auditors, including a recommendation that it be adopted or if necessary that further measures be implemented before its adoption. 5. Two full members of the ADC-ICTY are appointed by the General Assembly to act as Internal Auditors. Internal Auditors are elected on the basis of their knowledge of accounting and experience in accounting and financial management. They are appointed for a term of one year and may be reappointed for a maximum of two additional terms. Internal Auditors may not be members of the Disciplinary Council or any permanent committee of the ADC-ICTY 6. The role of Internal Auditors is to verify the financial records and accounting practices of the Executive Committee of the ADC-ICTY, both during and at the end of the financial year. The Internal Auditors, may at any time, request access to all the financial records of the ADC-ICTY

7. The Executive Committee shall keep the financial records referred to in paragraphs 2 and 3 for a period of five years. Part IV General Assembly Article 11-General Assembly 1.

The General Assembly consists of all the members of the ADC-ICTY

2. All the powers of the ADC-ICTY that have not been entrusted to the Executive Committee by the laws of the Netherlands or by the present Constitution are vested in the General Assembly. 3. The General Assembly shall hold an Annual meeting during the last three months of the financial year. The following topics must be discussed at the Annual meeting of the General Assembly: a.

the annual report of the Executive Committee;

b.

the annual report of the Membership Committee;

496 • Defense in International Criminal Proceedings

c.

the annual report of the Training Committee;

d.

the annual report of the Disciplinary Council;

e.

the annual report on the activities of any ad hoc committees created by the Executive Committee;

f.

the election of members to the Executive Committee, Disciplinary Council, Membership Committee and Training Committee;

g.

the report of the Vice President (Finance) on the current financial situation of the ADC-IClY as well as on the expected financial results for the current year;

h.

the report of the Internal Auditors;

1.

the appointment of the Internal Auditors;

j.

the proposed plan of activities for the upcoming financial year;

k.

the proposed budget for the upcoming financial year; and

1.

any other proposals by the Executive Committee or by any other member.

4. Additional meetings of the General Assembly may be convened by the Executive Committee as necessary. 5. A special General Assembly Meeting may also be held at the request of onetenth of the Full Members. A request for a special General Assembly Meeting shall be made in writing. Upon reception of a valid request, the Executive Committee shall convene a special General Assembly Meeting within 30 days. 6. The convening of General Assembly meetings shall be in writing, not less than twenty-one days from the date of the meeting. The convocation shall list the subjects to be discussed. All members may also submit issues by communicating the issue in writing, by facsimile transmission or by electronic mail to the Executive Committee at least three working days prior to the date of the meeting.

7. All members in Good Standing of the ADC-IClY may attend meetings of the General Assembly. 8. The General Assembly may adopt regulations that are neither contrary to the law of the Netherlands, the Constitution, the Statute, the Rules of Procedure and Evidence, Practice directives, and Orders of the International Tribunal, 9. Without prejudice to Article 22 paragraph 1, the quorum of the General Assembly is one-fifth of the Full Members present in person or by proxy. The quorum is confirmed before a General Assembly Meeting is called to order. If the quorum is not obtained, a new General Assembly Meeting shall be convened.

Article 12-Chairand Minutes 1. General Assembly Meetings are chaired by the President of the ADC-IClY If the President is absent, one of the other members of the Executive Committee acts as Chair. Where a Chair cannot be designated in this manner, the General Assembly shall designate the Chair.

Associations of Defense Counsel • 497 2. One of the Vice Presidents or the Head of Office is assigned by the President to keep minutes of the proceedings of each meeting of the General Assembly. The minutes are confirmed by the Chair and posted on the members-only section of the ADCICTY website.

Article 13-Voting Right 1.

Each member in Good Standing of the ADC-ICTY is entitled to vote.

2. A member of the ADC-IClY in Good Standing refers to a members who has not been suspended and has paid the annual membership fee; and if applicable the monthly dues 3. Votes shall be cast by personal attendance. A member who is unable to vote in person may vote by proxy. Proxies must be in writing. A member may represent up to five members by proxy. 4.

Abstentions shall not be counted as a vote.

Article 14-Procedure for Elections and Resolutions 1. Resolutions of the General Assembly and elections of members to one of the Committees and the Disciplinary Council are adopted by absolute majority, unless specified otherwise in the Constitution. 2. In addition to the subjects in the agenda circulated to the members prior to the opening session of the General Assembly Meeting, a member of the ADCIClY may submit proposals for resolutions relevant to the objectives of the ADC-IClY Proposed resolutions must be submitted in writing to the Executive Committee not less than two days before the opening of the General Assembly Meeting. A resolution submitted after this deadline may only be considered by the General Assembly if the Executive Committee grants a waiver of the time limitation. 3. A copy of proposed resolutions is provided to all members of the ADC-ICTY before the General Assembly. Copies of proposed resolutions received less than two days before the opening may be distributed at the General Assembly. 4. The Executive Committee shall report its recommendations on each resolution to the General Assembly. The members shall be given a reasonable opportunity to be heard on proposed resolutions submitted. 5. All matters shall be voted by a show of hands, except for the election of members to the officers of the ADC-IClY 6. The adoption of a resolution by the General Assembly is pronounced by the Chair. This pronouncement is determinative.

7. The election of the officers of the ADC-ICTY (President and Vice Presidents) and of the members of the Disciplinary Council, Membership Committee and Training Committee are done by secret ballot. 8. The General Assembly first proceeds with the appointment of a member to preside over the elections (Elections chair). The Elections Chair may not be nominated for a position.

498 • Defense in International Criminal Proceedings

9. The Elections Chair may be assisted by persons who are not members to examine and count the ballots. 10. The Elections Chair examines the proxies received and confirms the quorum for the elections. 11. Election to any position requires an absolute majority of the votes. 12. The Elections Chair holds as many ballots as are necessary, proceeding in the following order until members have been elected to each position: Executive committee (5), Disciplinary Council (5), Membership Committee (5) and Training Committee (3)

Part V Disciplinary Council

Article 15-Composition 1. The Disciplinary Council is comprised of five Full Members elected by the General Assembly for a term of one year. Members may be re-elected for a maximum of one additional term. Members of the Council may not be a member of any permanent committee of the ADC-IClY One of the five members of the Disciplinary Council shall be designated as chair by the other members. All decisions of the Disciplinary Council shall taken by majority vote. 2. Decisions by the Disciplinary Council shall be governed by the present Constitution, the Statute, the Rules of Procedure and Evidence, the Code of Professional Conduct for Counsel Appearing Before the International Tribunal, the Directive on the Assignment of Defence Counsel, and the Detention Rules and Regulations of the International Tribunal. It shall also take into consideration the codes of practice governing the legal profession in the home jurisdiction of members. 3. The Disciplinary Council shall determine its own procedure, which must be approved by the Executive Committee. The Executive Committee shall ensure that all members of the ADC-IClY are duly informed of this procedure.

Article 16-Duties 1. The Disciplinary Council is an independent organ of the ADC-IClY, responsible to the General Assembly for the following tasks: a.

To monitor the conduct of members of the ADC-IClY in the representation of a suspect or accused;

b.

To adjudicate on complaints received against members of the ADCIClY for alleged misconduct;

c.

To provide advisory opinions on matters relating to the Code of Professional Conduct for Counsel Appearing Before the International Tribunal, the Directive on the Assignment of Counsel and the interpretation of the present Constitution.

Article 17-Monitoring 1.

The Disciplinary Council does not engage in active monitoring.

Associations of Defense Counsel • 499 2. Where, however, the Disciplinary Council receives reliable information which gives it reason to believe that a Full member of the ADC-IClY has allegedly engaged in conduct contrary to, or in violation of the present Constitution, the Statute, the Rules of Procedure and Evidence, the Code of Professional Conduct for Counsel Appearing Before the International Tribunal, the Directive on the Assignment of Defence Counsel, and the Detention Rules and Regulations of the International Tribunal, it may decide to wait until a complaint is filed or inform the member of the alleged misconduct with a view to allowing the member to review his or her conduct. This information will be treated confidentially and will not be communicated to any other person.

Article 18-Adjudicating on Complaints 1. Complaints on alleged misconduct of Full Members may be filed before the Disciplinary Council by:

2.

a.

Any Full member of the ADC-IClY;

b.

Persons accused by the International Tribunal; and

c.

Staff members of the International Tribunal who consider their rights or interests are affected by the alleged professional or ethical misconduct.

Complaints must be submitted in writing, identifying the alleged misconduct.

3. Upon receiving a complaint, the Disciplinary Council shall, on the basis of the complaint, decide whether there are sufficient grounds to proceed on the complaint. 4. In the event the Disciplinary Council decides not to proceed on the complaint it shall inform the complainant of the reasons for doing so and of the possibility and procedure for the complainant to address the matter with the Disciplinary Panel of the International Tribunal. 5. In the event the Disciplinary Council decides to proceed on the basis of the complaint, it shall inform the respondent member of the complaint and request his consent for the matter to be adjudicated by the Disciplinary Council without prejudice to the jurisdiction of the International Tribunal, in particular the Disciplinary Panel and Disciplinary Board. Should the respondent not consent, the Disciplinary Council shall refer the complaint to the Disciplinary Panel of the International Tribunal. 6. Upon consent being provided, the Disciplinary Council shall provide the respondent member with the opportunity to be heard in relation to the complaint.

7. The Disciplinary Council shall review the substance of the complaint as well as the submissions of the complainant and of the respondent member in light of the applicable regulations. Where necessary, the Disciplinary Council may seek to obtain further information from third parties on a confidential basis. 8.

Having reviewed all available information, the Disciplinary Council may: a.

Mediate between the parties to the complaint; or

b.

Issue a formal warning to the respondent member for his conduct; or

c.

Refer the complaint to the Disciplinary Panel of the International Tribunal; or

500 • Defense in International Criminal Proceedings d.

Terminate membership of that member in accordance with Article 6 paragraph 1 (d).

9. The Disciplinary Council shall inform the respondent member and the complainant of its decision within 21 days of receipt of the complaint. It shall also inform the Executive Committee of its decision. 10. Following a decision pursuant to paragraph 8(b) and 8(d), the respondent member may appeal the decision before the Executive Committee of the ADC-ICTY The appeal must be filed in writing within 7 days of receipt of the decision by the Disciplinary Council. 11. All information acquired and decisions are confidential

Article 19-Advisory Opinions 1. Members may requests the Disciplinary Council to provide advisory opinions on the Code of Professional Conduct for Counsel Appearing Before the Tribunal, the Directive on the Assignment of Counsel and the interpretation of the present Constitution.

Part VI Training Committee Article 20-Composition The Training Committee is comprised of three members elected by the General Assembly for a term of one year, of which at least two must be Full members. Members may be re-elected for additional terms. One of the three members of the Training Committee shall be designated as chair by the other members. The chair of the Training Committee reports to the Executive Committee.

Article 21-Duties The Training Committee is responsible for the design and implementation of advocacy training and training on substantive international criminal law for all members of the ADC-ICTY, whether assigned to a case or not. They are also responsible for assisting the Executive Committee in obtaining funding to make such training possible.

Part V Final Provisions

Article 22-Amendments 1. Amendments to the present Constitution come into force for all members of the ADC-IClY when two-thirds of the Full Members are present, in person or by proxy, in a General Assembly Meeting and have voted in favour of adoption. 2. A General Assembly Meeting for the purpose of reviewing the Constitution of the ADC-IClY may be held at a date to be fixed by the Executive Committee. 3. A copy of the recommended amendments to the present Constitution is submitted to the Executive Committee not less than twenty-one days before the convening

Associations of Defense Counsel • 501 of the General Assembly Meeting. The proposed amendments are made available to all members. 4. If a General Assembly Meeting does not have the quorum of two-thirds of the Full Members, in person or by proxy, then a second meeting shall be held within four weeks of the time of the original meeting and the same resolution with the proposed amendments shall be placed on the agenda. The proposed resolution shall then be adopted when a majority of the Full Members are present, in person or by proxy, in the second General Assembly Meeting and have voted in favor of adoption. 5. Amendments adopted by the General Assembly shall be deemed effective only after a notary instrument has been drawn up thereof. Each member of the Executive Committee shall be authorized to execute the instrument.

Article 23-Dissolution 1.

The General Assembly may dissolve the ADC-IClY by way of a resolution.

2.

The provisions in paragraphs 1, 2, 3 and 4 of Article 5 shall apply accordingly.

3. The balance of the funds remaining after liquidation shall be divided among those who were members at the time when the resolution to dissolve was adopted. Each of them shall receive an equal share. However, the resolution to dissolve may also specify another destination for the remaining balance.

7.2. The Defense Lawyers' Association at the leTR (ADAD)* 7.2.1. Introduction In recognition of the fact that serious violations of humanitarian law were committed in Rwanda, and acting under Chapter VII of the U.N. Charter, the U.N. Security Council established the International Criminal Tribunal for Rwanda (ICTR) by Resolution 955 of November 1994. 1 The prime objective of this measure was to contribute to the process of national reconciliation in Rwanda and the maintenance of peace in the region. Accordingly, the Tribunal was mandated to prosecute persons responsible for genocide and other serious violations of international humanitarian law.2 The Tribunal is governed by its Statute and Rules of Procedure and Evidence, which establish the necessary framework for functioning of the judicial system. It consists of three organs: the Chambers and the Appeal Chambers; the Office of the Prosecutor in

*

Section 7.2 was written by Kennedy Ogetto. The International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law committed in the Territory of Rwanda and Rwanda Citizens Responsible for Genocide and other Violations Committed in the Territory of Neighboring States, between Jan. 1, 1994 and Dec. 31, 1994 (hereinafter (ICTR)). See S.C. Res. 955, U.N. SCOR, 49th Sess., Res., at 15, U.N. Doc. SIRES 1955 (1994), reprinted in 33 I.L.M. 1598 (hereinafter the ICTR Statute). 2 For detailed analysis of the creation and historical development, 1 Virginia Morris & Michael P. Scharf, The International Criminal Tribunal for Rwanda 1-37, 48-59, 75-109 (1998); Payam Akhavan, "Current Developments: The International Criminal Tribunal for Rwanda: The

502 • Defense in International Criminal Proceedings charge of investigations and prosecutions; and the Registry, responsible for providing judicial and administrative support to the Chambers and the prosecutorf Although not recognized as such, the defense lawyers appearing for accused persons at the ICTR constitute an integral part of the Tribunal. They are faced with the daunting task of ensuring that the rights of suspects and accused persons are protected and guaranteed, and that those accused persons receive fair and impartial trials in accordance with international human rights standards. This is a challenging assignment, especially in view of the gravity of the alleged violations of international humanitarian law and other offenses under the Statute of the Tribunal." While the establishment of the Tribunal continues to pose new challenges in the development of international criminal law generally> for the defense counsel new questions arise relating to the relationship between municipal law and the need for common standards at the newly established tribunals." It cannot be gainsaid that effective defense of the accused person is vital to the legal and political legitimacy of any effort to extend the rule of law internationally. 7 Indeed the right of the accused to legal counsel is well established in international law,8 Politics and Pragmatics of Punishment," 90 Am. J. Int'l L. 501 (1996); Jaana Karhilo, "The Establishment of the International Tribunal for Rwanda," 64 NordicJ. Int'l L. 683-713 (1995); Daphna Shraga & Ralph Zacklin, "The International Criminal Tribunal for Rwanda," 7 Eur. J. Int'l L. 501-18 (1996). 3 Article 10 of the Statute of the International Criminal Tribunal for Rwanda. 4 For detailed accounts of the Rwandan crisis, see, e.g., Report of the Commission of Experts on the Evidence of Grave Violations of International Humanitarian Law in Rwanda including possible acts of Genocide, U.N. Doc. S/1994/1125, Oct. 4, 1995; Report of the Special Rapporteur of the Commission on Human Rights on the Situation of Human of Rights in Rwanda, including summaries of his missions ofJune 9-20, June 29-31, Oct. 14-25, 1994, and Mar. 27-Apr. 30, May 25-28, 1995, U.N. Doc. A/50/509-5/1995/915, Nov. 2, 1995; Guy Martin, "International Solidarity and Co-operation in Assistance of African Refugees: Burden Sharing or Burden Shifting," Int'l J. Refugee L. 250, 267 (1995); Report of Killings and Abductions by the Rwandese Patriotic Army, April-August 1994; Amnesty International, Oct. 20, 1994 AI INDEX: AFR 47/16/94; Report on the Human Rights Situation in Rwanda and the UN Activities of the High Commissioner for Human Rights Field Operation in Rwanda (HRFOR), May-June 1997. 5 See Michael Bohlander, "International Criminal Defence Ethics; The Law of Professional Conduct for Defence Counsel Appearing before International Criminal Tribunals," 1 San Diego Int'l LJ. 75 (2000). 6 Id., explaining that the ICTR, just like the International Tribunal for former Yugoslavia (IClY) being ad hoc tribunals, are novel compared to the Nuremberg and Tokyo tribunals for a number of reasons, (1) that they deal with war crimes and crimes against humanity on an ongoing basis, (2) that they were created by the U.N. Security Council as an expression of a common stance of the international community, (3) that they are not victor's tribunals, as none of the states involved in setting up the tribunals were directly involved in the underlying armed conflicts. (The author harbors serious doubt as to the validity of this assertion, largely due in part to the fact that the ICTR was established pursuant to a request of the government of Rwanda, and more significantly because of the continued interference by the Rwanda government with the workings and operations of the Tribunal.) 7 Michail Wladimiroff, "The Assignment of Defence Counsel before the International Criminal Tribunal for Rwanda," 12 LeidenJ. Int'l L. 957-68, at 958 (1999). 8 The provisions of various covenants and treaties represent a progression in customary international law that began at Nuremberg and progressed through to the ad hoc tribunals. The

Associations of Defense Counsel • 503 and any breach thereof amounts to a violation of customary international law.9 In spite of the foregoing, it is interesting to note that the constitutional framework of international criminal tribunals devotes little attention to defense counsel. For instance, the Nuremberg Charter had a number of detailed provisions on the role of the prosecutor (Articles 14 and 15) but little on defense counsel. Article 16 (d) merely recognized the right to counsel, and Article 23 provided that "The function of counsel for the Defendant may be discharged at the Defendant's request by any counsel professionally qualified to conduct cases before the courts of his country, or by any person who may be specifically authorized thereto by the Tribunal.t"" The ICTR and IClY statutes have detailed provisions on the prosecutor's office and its role but only an acknowledgement of the accused's right to counsel.'! Details of this right and conduct of counsel are left to the Rules of Procedure and Evidence and the Directive on the Assignment of Counsel. Inevitably, this creates the impression that defense counsel are not the primary concern of those responsible for the establishment of these tribunals, nor central to their concept of a fair trial. Consequently, there is an impelling need to re-evaluate the constitutional and legal framework of these tribunals in relation to the important role of defense counsel in the establishment and sustenance of a credible and legitimate international criminal law justice system. To do this, there will be need to establish a clear institutional framework that would promote independence of defense counsel. One way of doing this is through the creation of organized defense bars at the international level.

right of the accused to be represented by defense counsel is now a fundamental right in customary international law, as provided for in inter alia, these texts: The Rules of Procedure for Military Tribunal, Nuremberg, revised Jan. 8, 1948: Rule 7, and Rule 8 of Procedure, Military Tribunal, Far East, Rule 7 (Tokyo), The Geneva Convention 4 Relative to the Protection of Civilian Persons in time of War, signed Aug. 12, 1949; 75 D.N.T.S. No. 973, at 287, Article 72, Right of Defence; The European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 D.N.T.S. 222, Sept. 3, 1953, as amended by Protocols No.3, 5, 8, which entered into force, Sept. 21, 1970, Dec. 20, 1971 andJan. 1, 1990 respectively, Article 6; The International Covenant on Civil and Political Rights, 999 D.N.T.S 171, 6 I.L.M (1967), Article 14; The African Charter on Human & Peoples Rights (Banjul Charter), Article 7; The International Criminal Tribunal for the former Yugoslavia, Rules of Procedure and Evidence, D.N. Doc. IT/32 Rev. 7 (1996), entered into force Mar. 14, 1996, and the International Criminal Tribunal for Rwanda, Rules of Procedure & Evidence, D.N. Doc. ITR/3/REV. 1 (1995), entered into force June 29, 1995. 9 International Covenant on Civil and Political Rights, 999 D.N.T.S. 171, 6 I.L.M (1967) Art. 14. 10 he Nuremberg trials of German war criminals after 1945 represented the first attempt of the international community to deal in a judicial manner with war crimes atrocities or crimes against humanity. For records of the proceedings, see I-XLII Trial of The Major War Crimes Before the International Military Tribunal, Nuremberg, Nov. 14, 1945-0ct. 1, 1946; see also Cherif Bassiouni, "Outline: International Criminal Investigations and Prosecutions; From Versailles to Rwanda," in 3 International Criminal Law 31-86 (CherifBassiouni ed., 2d ed. 1999). 11 See also John Dugard, Independent Defence Before the ICC: The Role of Lawyers Before International Courts, in An Independent Defence Before the International Criminal Court 22 (Hans Bevers & Chantal Joubert eds. 2000) (hereinafter Dugard, Independent Defence Before the ICC).

504 • Defense in International Criminal Proceedings Evaluation of the position of defense lawyers at the ICTR is a difficult task. Given the lack of a clear institutional framework, the role of a makeshift association such as ADAD is somewhat unclear. This scenario is worsened by reason of the vague place occupied by the defense in both the Statute and Rules of Procedure and Evidence of the Tribunal. While the Statute sets up in elaborate fashion the various organs of the Tribunal, there is no express mention of the defense, save for implied references dealing with the rights of the accused persons." Moreover, the Rules of Procedure and Evidence provide for the management and control of individual defense counsel appearing before the ICTR,I3 without provision for an institutionalized defense organ in the Rules. The creation of an independent and sovereign defense function in any criminal proceedings is a principle that finds support in all legal systems. Yet such independence would be more significant at the ICTR where lawyers are confronted with a unique assignment and one that goes beyond the day-to-day courtroom appearances in defense of their individual clients. This lack of a clear institutional framework is paradoxical and somewhat puzzling given counsel's obligations as spelled out by the ICTR Rules of Professional Conduct for Defense Counsel appearing at the Tribunal."! The rules appear to underscore the fundamental principle of the independence of defense counsel by providing that counsel must: (a) act with competence, dignity, skill, care, honesty and loyalty; (b) exercise independent professional judgment and render open and honest advice; (c) preserve their own dignity and that of the profession as a whole; and (d) never permit their independence, integrity and standards to be compromised by external pressures.lYet there are no concomitant provisions either in the Statute or the rules to safeguard counsel's independence as outlined in the code of conduct. Puzzling as this may appear, it is not entirely surprising given the background of the Tribunal. Set up against a backdrop of unprecedented human slaughter, the framers of the constitutive documents of the ICTR may have been overwhelmed by the need to address the killings rather than establishment of a truly fair criminal process. So much so that the Statute creates the Tribunal "for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law"16 as opposed to "trying persons suspected as being responsible for genocide and other serious violations of international law." The difference in interpretation of the two objectives may

Article 20. Rule 44 (appointment and qualifications of Counsel), Rule 44 (duty counsels); Rule 45 (assignment of Counsel); Rule 45 quater (assignment of counsel in the interests of justice); Rule 46 (misconduct of counsel). 14 Code of Professional Conduct for Defence Counsel, enacted pursuant to Article 29 of the Directive on the Assignment of Counsel, pursuant to Rules 44 and 46 of Rules of Procedure and Evidence. 15 Article 5 (Competence and Independence of Counsel). 16 See Clause 1, preamble of the Statute of ICTR. 12 13

Associations of Defense Counsel • 505 appear tenuous and academic at a glance. However, viewed in the context of various provisions in the Statute and Rules of Procedure and Evidence, it becomes clear that prosecution of persons responsible for crimes under the Statute was of primary importance. Defense rights and fair trials appear to take a secondary role. The lack of independence for defense counsel at the ICTR creates several problems. Foremost is the dependence of counsel on the discretion of the Registrar, who enjoys monumental control over the functioning of counsel. The Registrar has wide discretion in respect of assignment of counsel.l" He determines remuneration for assigned counsel, establishes and interprets the Code of Conduct'? and determines what constitutes misconduct.s'' He can unilaterally discharge counsel"! and he determines general conditions of work for the defense counsel. This set-up fundamentally undermines the independence of defense counsel. Judicial control of the Registrar is restricted to instances where a request to withdraw counsel made by the accused or a lead counsel has been refused by the Registrar in which case Article 19 (e) of the Rules of Procedure and Evidence provides an avenue for review of the Registrar's decision by the President of the Tribunal. It is against this background that defense counsel at the ICTR sought to improvise an organizational outfit in an attempt to insulate themselves from the pressures occasioned by lack of an independent defense organ within the Tribunal's operational structure. This was done through the establishment of the Association of Defense Attorneys (ADAD).17 This section examines the role and development of ADAD as representative of the defense counsel at the ICTR. This would then necessarily entail an evaluation of the legal and institutional framework within which the defense counsel operates at the ICTR together with an overview of the operational and or practical problems faced by the defense, which provide sufficient justification for the strengthening of ADAD.

7.2.2.

The Role and Development ofADAD

Reacting to the challenges facing the defense at the ICTR, a handful of lawyers came together in 1997 to form ADAD. The Association's objective is the promotion of defense attorneys' interests in their mission to guarantee fair trials before the ICTR.22 It is governed by an Executive Board of members elected at a General Meeting and serves for a two-year term. This Board consists of a President, Vice President, SecretaryGeneral, Deputy Secretary-General, Treasurer and Advisers on information, administrative and legal affairs.s" Membership is voluntary. The first few years of ADAD's existence witnessed considerable fluctuations in its activities. Emphasis was placed on the improvement of working conditions of the defense ADAD is the French abbreviation for The Association of Defense Attorneys at the ICTR. Rule 45, of the Rules of Procedure and Evidence of the ICTR. 19 Rules 46 and 44, of the Rules of Procedure and Evidence of the ICTR. 20 Rule 46, Rules of Procedure and Evidence of the ICTR. 21 See Directive on the Assignment of Counsel, as Amended June 6, 1997, June 8, 1998, July 1,1999 and May 27,2003. (Articles 18 and 19). 22 See Statute of the Association of Defense Attorneys at the International Criminal Tribunal for Rwanda (ADAD) , Aug. 5,1997. 23 Statute of ADAD, Article 10. 17 18

506 • Defense in International Criminal Proceedings at the ICTR, although the Tribunal administration appeared not wholly receptive of the Association as the formal representative of defense counsel at the ICTR. In March 1998, dissatisfied with the manner the defense was being handled at the Tribunal, the then ADAD President wrote-! to the U.N. Secretary-General, Kofi Annan, seeking audience with him with a view to discussing several issues affecting the defense, including the remuneration of counsel, witness protection and alleged misconduct by the defense as raised by the Office of Internal Oversight Services (OIOS) 1997 Audit Report.P The President further sought to have ADAD's observations made known to the General Assembly and that a meeting be arranged with the Secretary-General of the United Nations in order to present him the report of the Association. In a rare response to this letter, Mr. Ralph Zacklin, Assistant Secretary-General for Legal Affairs wrote to acknowledge receipt of the defense's letter. 26 In the letter, Mr. Zacklin promised to transmit the Association's observations to the Under-SecretaryGeneral for Internal Oversight Services for his consideration. However, on the question of meeting the Secretary-General, Mr. Zacklin instead pointed out that he (Zacklin) would be willing to meet with the defense at a mutually convenient date to discuss the various observations made. In an apparent reminder of the defense's non-recognition by the Statute and the Rules, Mr. Zacklin emphasized that any meeting between him and the defense would be without prejudice to the principle of "the independence of the International Tribunal and that of the Registry."27 The meeting never took place as the then President of ADAD, Mr. Charles Tchoungang, of the Cameroon Bar left the Tribunal soon afterwards. The years 1998 and 1999 would perhaps representADAD's lowest point in terms of performance. No significant event seems to have been recorded although the Association continued to act as a lobby for its members occasionally writing letters of protest to the Registry on one issue or the other. On the welfare of the suspects, ADAD wrote in March 1998 to the Reuters News Agency Bureau Chief in Nairobi, Kenya, protesting at a news flash headed "It is a tough test for Rwanda UN Tribunal,"28 in which the Agency purported to quote certain defense lawyers said to have disclosed the alleged health status of some of the U.N. detainees in Arusha, which information according to ADAD was inaccurate. The period 2000 to 2002 saw a resurgence of ADAD, which, however, until then had not held its statutory annual General Meeting. In a strongly worded memorandum addressed to the then Registrar of the Tribunal Dr. Agwu Okali, ADAD listed a long catalogue of grievances ranging from delayed proceedings to inadequate budgetary provisions for the defense. On delay in the proceedings, the Association decried the prosecutor's strategy on amendment of pleadings and joinder proceedings as contributing to denial of the right to a fair and expeditious trial. The memorandum noted that: 24 Letter signed by the then ADAD President, Charles Tchoungang of the Cameroon Bar, Mar. 20, 1998 (on file with the author). 25 See Report of the Office of Internal Oversight Services on the Investigation into possible fee-splitting arrangements between the Counsel and indigent detainees at the ICTR and IClY, U.N. Doc. A/55/759, 55th Sess., Feb. 2001 (hereinafter, U.N.: alas Audit Report, Feb. 2001). 26 Letter from Ralph Zacklin to the President, ADAD-ICTR (hereinafter Zacklin's Letter), Apr. 2, 1998 (on file with the author). 27 Zacklin's Letter Apr. 20, 1998, at 2. 28 Letter of Mar. 11, 1998 (on file with the author).

Associations of Defense Counsel • 507 The number and frequency of amendments prompted by the Prosecution in virtually all cases and their impact on the rights of the accused to speedy trials is alarming. More often than not, the amendments trigger a position where cases almost ready for trial have to be taken back to the investigation stage. 29 On budgeting, the memorandum quoted the 1999 report of the expert group on the financing of the ICTR and IC~ which had noted that defense received only 10 percent of the total budget of the Tribunal for the year 2000. The Association noted that this percentage was inordinately low, considering the crucial role of the defense at the Tribunal. The first well attended General Meeting of ADAD was held on March 29 and 30, 2002 when a new Executive Board was elected. Other highlights of the period include the first ever threat of a strike by the defense motivated by a protracted stand-off with the Registry relating to several grievances. A strike notice was issued on March 19, 2002, listing seven issues requiring immediate attention without which the lawyers would go on an indefinite strike. The issues related to the establishment of ajoint task force with the Rwandan government to investigate alleged ill-treatment of prosecution witnesses, harassment of defense investigators, restrictions on lawyers' access to their clients and poor working conditions.t" Following the strike notice, a meeting between ADAD representatives and the Registrar was convened and negotiations commenced thus pre-empting the strike. On the legislative functions of the Tribunal, ADAD wrote to the Registry in May 2002 objecting to proposals to amend Rule 66 of the Rules of Procedure and Evidence to require reciprocal disclosure by the defense. In its memorandum of objections, ADAD raised several issues including "the fact that non-participation by Defence in the process of drafting and amending the rules is a significant pointer to inequality of arms."31 In response to ADAD's objections, the Deputy Registrar wrote: I presented the Defence views on this matter as communicated to me in your letter of 22 May 2002. I also circulated the said letter among all participants of the Plenary I am pleased to inform you ... that it was the view of the participants that this Amendment which sought to impose an obligation on the Defence to provide copies of the statements was a new rule which does not appear in the basic documents of both the ICTR and ICTY As a result the Session deferred consideration of the proposed amendment.v

SeeADAD's Memorandum, Sept. 14,2000 (on file with the author). SeeADAD's Open Letter on "Defence Complaints and Strike Notice," addressed to the Registrar, ICTR Mar. 19, 2002; Press Statement issued by defense in opposition to the establishment and attempted expansion of the mandate of aJoint Commission of the Rwandan government and ICTR to investigate claims of alleged harassment of witnesses Apr. 22, 2002. See also Press Statement by the Registrar ICTR, on the Independence of His Office, Apr. 23, 2002. ICTR/INFO-9-3-11-EN issued in response to ADAD's. 31 SeeADAD 's Memorandum of Objection to the Proposal to Amend Rule 66 of the Rules of Procedure and Evidence, May 22, 2002, at 6. (on file with author). 32 Letter from the Deputy Registrar ICTR addressed to ADAD, July 15, 2002, ICTR /DR/07/02/261 ADAD. 29

30

508 • Defense in International Criminal Proceedings The year 2003 saw ADAD continue to assert itself as representative of defense counsel. Cognizant of its vulnerable position however, ADAD, sought to strengthen its stature by proposing an amendment to the Rules that would facilitate its formal rccognition.v' In justifying the proposal, the Association noted the importance of independence of counsel appearing at the Tribunal whose independence was weak partly due to lack of a professional association for the lawyers at the ICTR. The proposed amendments, if accepted, would have created a Professional Association of Defense Counsel with an Executive Committee, a Disciplinary Council comprising nine defense counsel elected by their peers on the basis of their integrity and professional probity and representative of the different legal systems applicable at the ICTR.34 The author has not been able to trace any evidence that this proposal, duly forwarded to the Registrar on May 19, 2003, was ever tabled before the plenary session for consideration and discussion. In February 2003, five representatives of the U.N. Fifth Committee" met with members of ADAD and held discussions on problems faced by the defense at the ICTR. The meeting resolved that ADAD should prepare a document setting out the issues discussed and forward them to the Committee. Consequently, ADAD prepared a document discussing U.N. financing of the ICTR and legal aid scheme, defense budget and problems faced by the defense, the Statute and Rules of Procedure and Evidence.v' ADAD raised issues regarding the increased costs for the defense, investigation and travel expenses in the preparation of defense cases, legal aid program, imbalance in resource allocation and restrictions imposed on defense personnel, delay in payment of fees and reimbursement of expenses, poor working conditions of defense counsel, e.g., lack of office space and inadequate facilities, allegations of fee-splitting as well as other imbalances created by the Statute and Rules."? Despite transmission of the memorandum to the U.N. Committee and to the Registrar of the ICTR in July 2003, there has been no response thereto or even acknowledgement of receipt of the document. The year 2004 saw the holding of ADAD's Second Annual General Meeting and election of new officials. There was, also remarkable developments in the history of ADAD in that it appeared to have achieved some semblance of de facto status as a representative Association of Defense Counsel at the ICTR. The Tribunal authorities accorded ADAD comparatively more recognition than ever before. The new President of the TribunalJudge Erik Mesc invited ADAD for the first time, to attend the judges' plenary session.v' Following a meeting between ADAD and the Registrar, Mr. Adama SeeADAD's Proposal for Amendment of Rules, addressed to the Registrar, May 19, 2003. See id., for presentation to the ICTR judges' plenary meeting of May 26, 2003, Amendment to Rules 46 of Procedure and Evidence; Proposed amendment Rule 46 bis. 33 34

This Committee is responsible for U.N. budgeting and financing. ADAD's Statement to the U.N. Fifth Committee, July 5, 2003, documenting various issues including U.N. financing of the ICTR and the legal aid program, increased defense costs and causes thereof (increased number of detainees, investigations, and preparation of defense cases, restrictions placed on defense teams and personnel by the Registry, delay in payment of fees and reimbursement of expenses, etc.), (on file with the author). 37 See ADAD's Statement to the U.N. Fifth Committee, July 5, 2003. 38 This was a courtesy invitation extended to ADAD, since there is no provision for such invitation either in the Statute or Rules of Procedure and Evidence. It is significant to note that subsequently the Chamber acknowledged the de facto status and position of ADAD , and proceeded to allow ADAD audience before the Chamber as amicus curiae in a Decision on the Joint Defense Motion for Reinstatement ofJean Yaovi Degli as Lead Counsel for Gratien KabiligiJan. 19,2005. 35

36

Associations of Defense Counsel • 509 Dieng, in February 2004, various issues deemed problematic to the defense were discussed including requirement of mandatory body searches that were conducted on counsel upon entry to the U.N. Detention Facility (UNDF), and what the defense considered arbitrary evaluation of costs and fees for the defense by the Registrar. During this same period, negotiations were held in February 2004 between ADAD, the ICTR personnel and Registrar following a two-day strike by ADAD resulting from frustrations and the perceived aloofness exhibited by the Registry to most of the grievances raised by the defense.t" Following the meeting with the Tribunal authorities, ADAD was required to prepare and submit its comprehensive comments on Defense Counsel and Detention Management Section's (DCDMS) Guidelines on Taxing of Defense Costs.'? InJuly 2004, ADAD held its General Assembly and discussed its response to the DCDMS Guidelines for taxing defense costs. Later in September 2004, the Registrar forwarded his remarks on defense criticism concerning the evaluation of fees to which he attempted to justify the DCDMS Guidelines on taxation of defense costs. At the time of writing this section, no consensus had been reached on this issue. The matter, therefore, remains a high priority item on ADAD's Agenda.

7.2.3.

ADAD as Amicus Curiae

ADAD has also played a major role in vindicating the rights of certain accused persons through the filing of motions to appear as amicus curiae. The first major attempt by ADAD in this regard was in the year 2002 when the Association filed a motion to appear as amicus curiae in a prosecution motion relating to the cases of Prosecutor v. Athanase Seromba and Prosecutor v. Joseph Nzabirinda/r' The prosecutor had sought to have the accused's trial transferred to Rwanda. ADAD submitted that there had been a misinterpretation of the scope of Rule 4 42 and that the Rule did not permit a total transfer of trials to Rwanda or any other place as suggested in the prosecutor's motions. It was further urged by ADAD that the transfer of trials to Rwanda would violate the basic rights of the accused persons and that it would be impossible to summon defense witnesses to Rwanda most of whom are refugees. Furthermore, the security and safety of

39

The Strike Notice was issued following a meeting of defense counsel on Jan. 26, 2004;

see Press Release by ADAD announcing suspension of their intended strike action in support of

the accused's rights to fair trials. The decision to suspend the strike was made after receipt of a statement from the Registrar that searches of defense counsel at the U.N. Detention Facility would cease immediately and negotiations would commence with respect to all the other demands made by defense counsel. See also Memorandum From the Registrar, to ADAD confirming the "Alleviation of Searches of Lead and Co-counsel on Entry to the UNDF," Feb. 11, 2004. 40 See Report of ADAD's General Assembly held on July 3, 2004: Defense Response to DCMDS Guidelines for Taxing Defense Costs. 41 Prosecutor v. Athanase Seromba Case No. ICTR-2001-66-1, and Prosecutor v. Joseph Nzabirinda, Case No. ICTR-2001-77-1, Motion dated July 6,2004, by ADAD Requesting to appear as Amicus Curiae in the Prosecutor's Motion for Trial in Rwanda, dated June 3, 2002. 42 Rule 4 of Procedure and Evidence provides for sittings away from the seat of the Tribunal. It states that a Chamber may exercise their functions away from the seat of the Tribunal if so authorized by the President in the interests of justice.

510 • Defense in International Criminal Proceedings defense counsel, as well as the accused, would be endangered should the trials be held in Rwanda. 43 ADAD subsequently filed another motion applying for leave to appear as amicus curiae in the case of Prosecutor v. Seromba/n The motion sought to persuade the Chamber to withdraw, reverse and set aside orders and or lift penalties, warning and/or sanctions imposed by the Chamber on the accused's counsel and co-counsel in the case of alleged misconduct on part of the counsel. The accused had instructed his counsel not to represent him or attend the hearing of his case before the Trial Chamber following what the accused termed a strike action by detainees. At the hearing, counsel for the accused informed the Chamber that they had been instructed by the accused not to appear or continue representing him, and further that "we are therefore not in a position to continue."45 In spite of the withdrawal of instructions as indicated by counsel, the Chamber requested counsel to, nevertheless, hear the prosecutor's opening statement. Thereafter, even after defense counsel made it very clear, that they could not go beyond the limited hearing of the opening statement, the Chamber ordered the defense counsel to "continue to confer with the accused to ensure that he appeared during the trial tomorrow and the days that will be following; otherwise, he should allow his counsel to represent him ... we are inviting the counsel to be present tomorrow at 2 p.m."46 The following day, the Chamber received a letter from the accused confirming his refusal to appear and indicating that he had instructed his lawyers not to represent him. Following the request by the prosecutor for the hearing to proceed, the Chamber issued orders directing the lead counsel and co-counsel to continue to represent the accused during trial. The effect of this ruling and orders of the Chamber was to compel the defense counsel to continue representing and acting for a client who had expressly directed them not to appear for him and thereby withdrawn instructions from counsel. In response, counsel for the accused, submitted that: The ruling that has just been made by the Chamber is making ... of us to work by force. And I think here ... and this is a personal opinion and I would like to voice it ... it is ... it seems to us that it undermines our professional dignity and we would like to pray the Tribunal to grant us leave to withdraw because we cannot, in all decency, accept to find ourselves in a situation where we would be working in the interests ofjustice for an accused who has instructed us not to do so, under the circumstances in which he asked us not to represent him."? Despite the strong submission of counsel and the request for leave to withdraw from the proceedings by the defense counsel, the Chamber declined to grant leave or allow 43 See ADAD's Submission in support of Request to Appear as amicus curiae, July 6, 2004, in Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-1, and Prosecutor v. Joseph Nzabirinda, Case No. ICTR-2001-77-1, at 4, paras. 1-5. 44 Prosecutor v. Seromba, Case No. ICTR-01-66-T, Motion dated Sept. 27, 2004: Request for Amicus Curiae Intervention filed on Sept. 27, 2004. 45 Prosecutor v. Seromba, Case No. ICTR-01-66-T; see Transcript of Proceedings of Sept. 20,2004. 46 Id. 47 Proceedings, Transcript of Sept. 21, 2004, at 4.

Associations of Defense Counsel • 511 counsel to withdraw. Instead, the Chamber proceeded to permit and allow the prosecutor to call his witnesses. In the circumstances, the defense counsel left the courtroom. Subsequently, the Chamber proceeded to penalize, warn and thereby impose sanctions on the counsel. In an oral decision, the Chamber held that: The Trial Chamber, noting the disrespect and discourteous attitude of the lawyers for the accused who left the courtroom when the court was still sitting, decides to . . . issue a warning . . . under the terms of Rule 46 of the Rules of Procedure and Evidence, and orders the Registry to appoint counsel to represent the interest of the Accused, pursuant to Rule 45 quartcr.f By a letter of the same date, the Registrar informed the defense counsel that the Chamber had issued them a warning. Counsel subsequently filed a motion seeking vacation of the sanctions arguing that their conduct was in accordance with the Code of Conduct and professional ethics, that they were not given an opportunity to be heard prior to the imposition of the sanction and or penalty and that compelling counsel to continue acting contrary to the express instruction of the accused undermined counsel's professional dignity and independence. It is this motion that ADAD sought to join as amicus curiae for the reason that the procedure used to penalize counsel was flawed, counsel ought to have been given a chance to be heard or explain the alleged misconduct and that counsel's conduct was not in any way disrespectful and discourteous.:'" Both the accused's motion and ADAD's amicus curiae were however later dismissed by the Chamber.v' The most successful amicus curiae request by ADAD was filed by ADAD in ajoint defense motion>! challenging the Registrar's decision'< to withdraw the assignment of Mr. Jean Yaovi Degli as lead counsel for Gratien Kabiligi under the framework of the legal aid system, alleging that Mr. Degli had been involved in an elaborate fraud scheme and, hence, professional misconduct. In its request, ADAD stated that it sought to intervene in the matter given its interests in the right to an effective defense and to a trial without undue delay as well as in the procedures used by the Registry to discipline and withdraw defence lawyers. ADAD's principal argument was based on the impropriety of the procedure followed by the Registry in investigating and removing Mr. Degli. In the Association's view, the Registry had no authority to sanction the misconduct of counsel and that pursuant to Rule 46(D) and Article 21 of the Code of Conduct, the Registry could only bring misconduct to the attention of the President of the Bureau or a counsel's national bar. Further, ADAD argued that in withdrawing the assignment of Mr. Degli, the Registry failed to take 48 Prosecutor v. Seromba, Case No. ICTR-01-66-T, decision rendered orally on Sept. 21, 2004, by Trial Chamber III; seeTranscripts of proceedings Sept. 21, 2004. 49 See Motion by ADAD dated Sept. 27, 2004 For Intervention in Proceedings Under Rule 74 of the Rules to Appear as Amicus Curiae in Prosecutor v. Seromba, Case No. ICTR-01-66-T, challenging the Decision dated Sept. 21, 2004, imposing sanctions. 50 Decision on Request to Nullify Sanctions & Amicus Curiae Intervention dated Oct. 22, 2004, Case No. ICTR-01-66-T. 51 Prosecutor v Bagosora et al., ICTR Case No. 98-41-T, Motion dated Nov. 17, 2004: Joint Defense Motion for the Reinstatement of Jean Yaovi as Counsel for General Gratien Kabiligi filed on Nov. 18, 2004 (hereinafter, Joint Defense Motion to Reinstate Jean Degli). 52 Prosecutor v. Bagosora et al., ICTR Case No. 98-41-T; Decision to Withdraw the Assignment of Mr. Jean Yaovi Delgi as Defense Counsel for Gratien Kabiligi, Oct. 26, 2004.

512 • Defense in International Criminal Proceedings

proper consideration of the impact the decision would have on the fairness of the trial of Kabiligi and his three co-accused or the Tribunal's completion strategy. Finally ADAD requested the Chamber to find that the Code of Conduct was not in conformity with the Rules; that Rule 46 (D) of the Rules and Article 21 of the Code of Conduct had not been respected; that the Registrar's decision was untimely; and that it should be declared invalid and the matter referred to a disciplinary body possessing sufficient guarantees, such as the Paris bar. 53 In response to ADAD's plea, the Registrar submitted that ADAD's motion should be rendered inadmissible because the organization had not been formally recognized by the Tribunal nor properly incorporated under Tanzania laws and that the purpose of an amicus curiae intervention was to enlighten the Chamber on a legal issue in dispute, not to advocate a particular side and that ADAD's submissions simply reiterated the arguments made in the joint defense motion.v' In its decision, the Chamber rejected the Registrar's submissions arguing that the questions of formal recognition by the Registry and registration of ADAD with the Tanzanian government were not relevant considerations under Rule 74 which empowers the Chamber, "if it considers it desirable for the proper determination of the case, to invite or grant leave to any state, organization or person to appear before it and make submissions on any issue specified by the Chamber"55 and that the only relevant consideration was if the proposed submissions by ADAD were relevant and would assist the Chamber in making a proper determination of the case. The Chamber granted leave to ADAD to address the Chamber in connection with the current procedures to withdraw and discipline counsel at the Tribunal and comparative remedies in place in national jurisdictions and in the IClY arguing that these issues were relevant to the case to the extent that they suggested the proper procedure to be followed under the Tribunal's present legal regime, and the submissions could assist the Chamber in the proper determination of the case. Although the joint defense motion for the reinstatement of Mr. Degli was ultimately rejected by the Chamber, the admission of ADAD as amicus curiae in the proceedings represented a significant milestone in the role and development of the Association.w

7.2.4.

Advocacy

During this same period, ADAD came out strongly in opposition to the acceleration of attempts by the Rwandan government to interfere with or otherwise unduly influence the operations of the Tribunal. Although interference in the functioning of the

53 Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T;Joint Defense Motion, to Reinstate Jean Degli, paras. 19-23. 54 Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T: Representations by the Registrar under Rule 33(B) of the Rules of Procedure and Evidence in Response to the Joint Defense Motion for Reinstatement ofJean Yaovi Degli as Defense Counsel for Gratien Kabiligi Dec. 8, 2004, filed on Dec. 10, 2004. 55 Prosecutor v. Bagosora et al., Decision on Joint Defense Motion to Reinstate Jean Yaovi Degli as Counsel for General Kabiligi, Jan. 19, 2005, at 8, para. 26. 56 Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T: Decision onJoint Defense Motion to Reinstate Jean Yaovi Degli. See Submissions by ADAD as summarized in this Decision at 5-6, para. 15.

Associations of Defense Counsel • 513 Tribunal by the Rwandan government has always been a reality, the pace seemed to heighten when the Appeals Chamber of the ICTR dismissed the indictment against an accused person,jean Bosco Barayagwiza, and ordered his immediate release on account of fundamental procedural irregularities during his arrest and pre-trial derention.>? This decision led to official loud protest by the Rwandan government, which subsequently declared a persona non grata status on the ICTR Prosecutor Carla del Ponte, unless the decision was reviewed. It is only after the prosecutor promised to file a review motion that she was granted a visa to visit Rwanda when she would "take the opportunity to expose her strategy to the Rwandese authorities."58 The authorities, however, refused to receive her, maintaining their suspension of the cooperation with the ICTR while awaiting the decision of the Appeals Chamber on the motion for review.w ADAD issued a strong condemnation of the position taken by the Rwandan government, which "exhibited Rwanda's desire to transform the Tribunal into an appendage of the dictatorial regime in Kigali" and called on the Security Council to "promptly get seized of the matter and take appropriate action against Rwanda."60 ADAD further called on the Tribunal "to resist, for all intents and purposes, this arm-twisting that has the potential of erasing any claim to independence and impartiality by this Tribunal."61 In an unprecedented decision, the Appeals Chamber accepted to review its own decision and reversed the earlier order releasing Barayagwiza citing new evidence that would require that he be tried after all. Significantly, during her submissions before the Appeals Chamber, Prosecutor Del Ponte had forcefully urged the judges to either review their earlier decision or the Tribunal would forget any more cooperation from the Rwandan authorities. The prosecutor submitted, inter alia, that her ability to continue with prosecutions and investigations depended on the government of Rwanda and that, unless the decision dismissing the indictment and discharging Barayagwiza was reversed or set aside, the Rwandan government would no longer be involved in any manner with the operations of the Tribunal.v- On its part, the Rwandan government appearing as amicus curiae, could not be more explicit in its blackmail. Attorney General Gerald Gahima observed that "if the appellant is set free by this Tribunal or if he were not given to another competent tribunal ... that would have an impact also on the efforts of Rwanda to maintain peace.... A decision of this nature will cost the Tribunal heavily in terms of the support and goodwill of the people of Rwanda, which has been painstakingly built up over the past four years."63 Prosecutorv.Jean Bosco Barayagwiza, Case No. ICTR-97-19-AR72, Decision of Nov. 3,1999. See Statement by Jean Bosco Barayagwiza, declaring a boycott of the hearing of his trial Oct. 5, 2000 and Oct. 23, 2002. See also Press Release by the accused Jan. 24, 2002; see also "Communique du government Rwandais; le 06 November 1999" (Statement of the government of Rwanda), Nov. 6, 1999 (on file with the author). 59 Prosecutor v. Jean Bosco Barayawiza, Case No. ICTR-97-19AR72, Submission by Ms. Carla De Ponte, Transcripts of Feb. 22, 2000, at 26-27 lines 5 to 25. 60 ADAD statement entitled "Rwanda Should Stop these Manipulations," Nov. 18, 1999 (on file with the author). 61 See ide 62 Prosecutor v. Jean Bosco Barayawiza, Case No. ICTR-97-19 AR72, Transcripts of Proceedings of Feb. 22, 2000, at 27-28; and Decision on Prosecutor's Request for Review or Reconsideration, dated Mar. 1,2000, at 4, para. 24. 63 Prosecutor v. Jean Bosco Barayawiza, Case No. ICTR-97-19-AR72, Transcripts of proceedings of Feb. 22, 2000, at 291, lines 5-13; see also Decision dated Mar. 1, 2000, at 4, paras. 22 and 23. 57 58

514 • Defense in International Criminal Proceedings

Whether or not legally sound, the decision by the Appeal's Chamber to review its own order after Rwanda's threats will always be haunted by the perception that it was made at the behest of the Rwandan government. The Barayagwiza review decision served to embolden the Rwandan government in its manipulative strategy against the Tribunal. In 2002, groups of survivors known as Ibuka and Avega with the support of the Rwandan government announced that they had severed cooperation with the Tribunal alleging, among other things, the "unethical practices on the part of the Defence in questioning vulnerable witnesses and that fourteen investigators hired by the Defence were involved in genocide."64 Although not formally acknowledged, the bulk of prosecution witnesses at the ICTR are either identified by or are members of Ibuka and Avega. In a move that further exhibited the Tribunal's vulnerability when confronted with threats from Rwanda, the Registrar set up ajoint commission with the Rwandan government "to verify and examine the content of each allegation of mistreatment, to ascertain the truth of the information provided and to gather all material or other evidence relating to the allegations. "65 ADAD once again protested noting that Ibuka and Avega did not possess the competence and skill to determine issues relating to the questioning of witnesses and that "only the Trial Chambers were conferred the authority under the rules to oversee the courtroom questioning of witnesses appearing at the ICTR." ADAD further called on the Registrar to disband the joint commission terming it an "affront to the expected independence and impartiality of the tribunal."66 Soon after ADAD's protest, the Tribunal withdrew the proposal to establish the commission citing Rwanda's unilateral decision to broaden the scope of the investigation to include U.N. appointments to the ICTR.67 ADAD promptly issued a statement commending the Registrar for the "bold move" to disband the commission and assuring him that "ADAD stands shoulder to shoulder with the Registrar in this bold and unprecedented move to reject the manipulative demands from Kigali,"68 a statement the Registrar quickly denounced stating that his office operated independent of any partisan interests and that he required no one to stand shoulder to shoulder with him l''?

64 See "Communique du government Rwandais; le 06 November 1999" (Statement of the Government of Rwanda, Nov. 6,1999 (on file with the author). 65 Proposal by the Registrar ICTR to the Government of Rwanda to Establish Joint Commission to Investigate the Allegation, Mar. 4, 2002. 66 Press statement issued by defense Counsel in opposition to the Establishment and attempted expansion of the Mandate of aJoint Commission with the Rwandese Government and ICTR to investigate claims of alleged harassment of witnesses, Apr. 22, 2002. 67 Statement by the Registrar ICTR: Registrar Decides to Withdraw His Proposal to Establish a Joint Commission to Investigate Allegations of Mistreatment of Witnesses from Rwanda, ICTR/INFO-9-3-10.EN. 68 ADAD Press Statement, Apr. 22, 2002. See also ICTR-UN Tribunal Pulls Out of Controversial Joint Commission, Foundation Hirondelle: Hirondelle Press Agency, Apr. 17, 2002. 69 Press statement by the Registrar ICTR, on the Independence of his office, Apr. 23, 2002-ICTR INFO-9-3-11-EN-issued in response to ADAD's Press Statement. See also ICTRTribunal Shrugs off Defense Commendations on Withdrawal fromJoint Committee; Foundation Hirondelle: Hirondele Press Agency Apr. 23, 2002.

Associations of Defense Counsel • 515

7.2.5. Transfer ofPrisoners to Rwanda In September of 2004, a Rwandan government delegation visited the Tribunal to negotiate the transfer of trials and convicted persons to Rwanda.?" The accused persons supported by ADAD, went on a three-day strike protesting the presence of the delegation in Arusha. This indignation against the Rwandan delegation stems from a wellfounded fear that the ICTR was about to deliver the accused persons to the hands of their former Rwanda Patriotic Front (RPF) enemies who themselves are liable to prosecution by the ICTR for various offenses and crimes against humanity as defined in the Statute of the Tribunal. The accused persons' reaction to the Rwandan delegation was prompted by a perception that the ICTR was acting contrary to the principles that guided the establishment of the ICTR in Arusha. The decision to locate the ICTR in Arusha was not arrived at by accident. Before choosing the venue for the new Tribunal, members of the Security Council made sure that they made an informed decision by requesting the U.N. Secretary-General to study and present an appropriate report?' on the issue. The Secretary-General tabled a report on the matter, which stated that "Although the international character of the Rwanda Tribunal is a guarantee of the just and fair conduct of the legal process, it is nevertheless necessary to ensure not only the reality but also the appearance of complete impartiality and objectivity in the prosecution of persons responsible for crimes committed by both sides to the conflict. Justice and fairness, therefore, require that trial proceedings be held in a neutral territory."72 The report further stated that "in the atmosphere now prevailing in Rwanda, there are serious security risks in bringing into the country leaders of the previous regime alleged to have committed acts of genocide to stand trial before the International Tribunal."73 All along though, the Rwandan government insisted on the Court being set up in Rwanda, and inclusion of the death penalty in the sentences available to the new International Criminal Tribunal.?! On the question of serving of sentences by those convicted by the ICTR, Article 26 of the Statute of the Tribunal stipulates that "Imprisonment shall be served in Rwanda 70 See Joint Statement on the Second Meeting of the ICTR and Rwandan Government Delegations on Discussions on the Enforcement of ICTR Sentences in Rwanda held in Arusha from 20 to 22 September 2004, Sept. 22, 2004, ICTR/INFO-9-2-405.EN. 71 See S.C. Res. 955 (1994), para. 5, Nov. 8, 1994 establishing ICTR and requesting the Secretary-General to, inter alia, make recommendations to the Council as to the possible locations for the seat of the Tribunal. See also S.C. Res. Doc. S/RES/977 (1995), Feb. 22, 1995. deciding that the seat of the ICTR will be Arusha. 72 Report of the Secretary General pursuant to paragraph 5 of S.C. Res. 955 (1994), U.N. Doc. S/1995/134, Feb. 13, 1995, at 10, para. 4 (hereinafter, Report of the U.N. Secretary-General on Establishment and Choice of Arusha as the Venue or Seat of ICTR). 73 Report of the U.N. Secretary-General on Establishment and Choice of Venue and Seat of ICTR at Arusha, ide at 43; U.N. Doc. S/1995/134, Feb. 13, 1995, at 13. 74 See, e.g., Statement of Rwanda Government, U.N. SCOR, 49th Sess., 3453rd, at 16 U.N. Doc. S/PV/3453 (1994); Letter from the Permanent Representative of Rwanda to the United Nations addressed to the President of the Security Council, July 26, 2002, U.N. Doc. S/2002/842 Annex, at 11, reiterating the position maintained by the Rwandan government; see also Letter from the President of ICTR, Erik Mese on the completion strategy of the Tribunal, Apr. 30, 2004, U.N. Doc. S/2004/341, Annex at 9-10, paras. 36 and 38.

516 • Defense in International Criminal Proceedings

or any of the States on a list of States which have indicated to the Security Council their willingness to accept convicted persons, as designated by the International Tribunal for Rwanda. Such imprisonment shall be in accordance with the applicable law of the State concerned, subject to the supervision of the International Tribunal for Rwanda."75 In the light of the factors that made the Security Council decide to establish the seat of the Tribunal outside Rwanda, this provision appears somewhat contradictory. However, initial indications were that the ICTR would not ever consider transferring convicts to Rwanda. Indeed, the Tribunal, in its early stages, commenced discussions with a number of states that would be willing to accept the U.N. prisoners. Benin, France, Italy, Sweden, Mali and Swaziland have so far made known their intention to receive people convicted by the ICTR in compliance with the provisions of Article 26 of the Statute. ADAD considered the attempts to transfer convicts to Rwanda unfair and a violation of basic human rights. This conclusion was based on a number of factors. The history of interethnic conflict between Hutus and Tutsis, which continues unresolved would most likely escalate were the RPF Tutsi-dominated government to be placed as the guardian of Hutu leaders convicted of crimes charged before the Tribunal. Further, the plan to transfer the ICTR convicts to Rwanda exposes them to the death penalty. Moreover, it would be unfair to hand over these convicts to a government comprised of suspects in the genocide and in respect of whom investigations had been commenced by the former ICTR Prosecutor Carla Del Ponte who was committed to investigating and prosecuting perpetrators of human rights violations on both sides." consistent with the intent of the Security Council Resolution 955 of 1994, establishing the Tribunal."? Despite ADAD's protests, the plans to transfer ICTR prisoners to Rwanda appear top on the agenda of both the ICTR and the Kigali rcgimc.i"

7.2.6.

Organizational Problems

One of the major endemic problems that have faced the Association is the lack of a formal secretariat and the necessary infrastructure. This is largely due to the voluntary nature of its membership denying the Association a regular and steady flow of resources. For a long time, the Association operated without office space until 2003 when the Registry allocated a room to the Association.

Article 26, of the Statute of ICTR. See, e.g., Report presented by the Prosecutor of ICTR to the Security Council confirming the Prosecutor's intentions and commitment to pursue indictments against the Rwanda Patriotic Army (RPA) , July 23, 2002 and Annex to the letter ofJuly 26, 2002, from the Permanent Representative of Rwanda to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2002/842, at 5, para. 1.5, in response thereto, arguing that "the abuses committed by the RPA should not be equated to the crimes committed by the perpetrators of genocide. 77 See Press Release: ICTR Defense Lawyers Denounce Transfer of U.N. Detainees into the Hands of Suspected War Criminals, May 24, 2004 (on file with the author). 78 See, e.g., Completion Strategy of the ICTR dated May 3,2004, at 9-10, paras. 36 and 38 (on file with the author). 75

76

Associations of Defense Counsel • 517 Although membership grew to an unprecedented high of 65 by mid-2004, operational difficulties also continued to increase. Envisaged training courses and programs for members never took place due to lack of funds and necessary resources. ADAD, hence, continued to face major challenges in its endeavor to establish itself as a truly representative and recognized defense bar at the ICTR. These challenges range from devising ways and means of building capacity for its members to effectively represent their clients through advocacy and training, professional development and financing so as to establish a full-fledged secretariat with adequate infrastructure. In the following section, we shall attempt to provide an overview of the position of the defense at the ICTR and the consequent justification for the strengthening of an organization such as ADAD.

7.2.6.1. 7.2.6.1.1.

The Legal and Institutional Framework for the Defense atthe leTR; The Need for an Interlocutor The Statute

In enumerating the organs of the Tribunal, the ICTR Statute makes no mention of the defense. Arguably, such a framework may seem to suggest independence of the defense from the other organs of the Tribunal. However, the defense is, in practical terms highly dependant on the other organs of the Tribunal. 79 As will be demonstrated, this has served to enormously undermine the defense's operations within the Tribunal's overall functional process. Conceptually, the principle of equality of arms demands that the prosecution and defense be relatively at par in the discharge their duties. Althoughjurisprudence emerging from the Tribunal seems to suggest that equality of arms does not always entail proportional entitlement to means and resources as between prosecution and defense, it is, nevertheless, preposterous to expect fairness where the scales are heavily tilted in favor of the prosccution.s? The statutory discrimination in favor of the prosecution is all too obvious to escape notice. In its 32 articles, the Statute makes no express mention of the defense. Article 15 underscores the independence of the prosecutor'" while Article 29 accords him priv-

79 Reference to defense is to be implied in the stipulated functions of the Registry, which are: receiving powers of attorney filed by counsel engaged by suspects, verifying qualifications of defense counsel, appointment of defense counsel, assignment of defense counsel to indigent accused person, enacting the Code of Conduct for defense counsel, enacting Code of Practice and ethics governing defense counsel, withdrawing the assignment of defense counsel for misconduct or other exceptional reasons determining and approving remuneration of defense counsel, travel expenses and other legal costs incurred by defense counsel in the course of preparing defenses for their clients. It is within this framework that dependence on the Registry by defense should be understood. 80 See Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-A, Decision ofJune 1, 2000, para. 90 (interpreting the rights of accused in Article 20 (2) (4) b vis-a-vis equality of arms principle) . 81 Article 15 establishing the Office of the Prosecutor and providing that the prosecutor shall act independently as a separate organ of the ICTR and shall have independence from any other person or quarters.

518 • Defense in International Criminal Proceedings

ileges, immunities, exemptions and facilities accorded to diplomatic envovs.f" It is not clear if defense counsel come under the realm of "other persons" referred to in Article 29 (4), which merely notes "other persons including the accused, required at the seat of the Tribunal who shall be accorded such treatment as is necessary for the proper functioning of the tribunal." There is no mention of defense rights under Articles 17 83 and 20,84 both of which deal with the presumed right of the accused to counsel of their choice. It is therefore, clear that the Tribunal's basic document creates bias and prejudice against the defense. The ICTR Statute seems to have adopted a trend in which the defense receives a mere perfunctory acknowledgement and is relegated to the periphery of international criminal proceedings. As one author has commented: it seems an underestimation of the role of international criminal defence counsel to realize that the constitutional framework of international criminal tribunals-including the Nuremberg Charter, with its detailed provisions on the role of the prosecutor with little on defence counsel, the ICTY and ICTR Statutes, and even the ICC Statute which includes only an acknowledgement of the accused's right to counsel-"(... ) devotes so little attention to defence lawyers, despite the fact that their role in securing a fair trial is crucial. "85 Two examples will be discussed presently to illustrate the practical implications of this discrimination. The first relates to Article 28 of the Statute requiring cooperation and judicial assistance from member states to the Tribunal. Under this article, states are obliged to "cooperate with the ICTR in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law, and to comply without undue delay with any request for assistance of an order issued by the ICTR, includ82 Article 29 provide the status, privileges and immunities of the ICTR. The article does not recognize defense counsel as part of the Tribunal. It provides that the Convention and Privileges and Amenities of the United Nations of Feb. 13, 1946, shall apply to the ICTR, the judges, the prosecutor and his or her staff, and the Registrar and his/her staff. 83 Article 17(3) recognizes the right of an accused/suspect to assistance by counsel during questioning or interrogation by the prosecutor, and further expresses the right to assignment of counsel to the suspect without payment by him/her in case of indigent suspect. 84 This article deals with the rights of the accused. It promulgates, inter alia, that: all persons shall be equal before the ICTR; an accused is entitled to a fair and public hearing (subject to Article 21 regarding protection of victims and witnesses); an accused shall be presumed innocent until proven guilty, and lays down the minimum guarantees to the accused. These are: to be informed promptly and in detail in a language he/she understands the nature and cause of the charges; to have adequate time and facilities for preparation of defense and to communicate with counsel of own choosing; to be tried without undue delay; to be present at trial and to present his/her defense in person or through counsel of his/her own choosing; to be informed if he/she does not have legal assistance, of this right, to have such legal assistance assigned to him/her, right to examine or have examined witnesses against him and to call evidence in his defense under same conditions as witnesses for the prosecution, right to an interpreter and the right to remain silent or not to be compelled to testify against himself/herself or to confess guilt. 85 John Dugard, Independent Defence Before the ICC: The Role of Lawyers Before International Courts in An Independent Defence Before the International Criminal Court 22 (Hans Bevers & Chantal Joubert eds. 2000) (hereinafter Dugard, Independent Defence Before the ICC).

Associations of Defense Counsel • 519 ing identification and location of persons, the taking of testimony and production of evidence, service of documents, arrest or detention of persons, and surrender or transfer of the accused to the ICTR."86 The second one relates to amendment of the Rules of Procedure and Evidence.s? Regarding cooperation of states with the Tribunal, non-recognition of the defense as an organ of the Tribunal has invariably excluded defense counsel from reliance on this article without having to pass either through the Registrar or the Trial Chambers. Consequently, the defense cannot independently seek cooperation with member states, yet the recognized Tribunal organs are not entirely reliable in the advancement of interests of the defense in the face of recalcitrant state officials. A case in point is the joint trial of Prosecutor v. Bagosora et al., in which one of the accused, Aloys Ntabakuze filed a motion for dismissal of charges against him due to the impossibilities of mounting an effective defense because of interference by the Rwandan governing regime. Relying on Articles 19 (1) and 20(4) (E) of the Statute of the Tribunal, the accused argued in the motion that the military/political regime in power in Rwanda had interfered with, questioned and intimidated potential witness and defense informants, that the defense had raised these matters with the Rwandan authorities and that no response had been forthcoming from the Rwandan authorities, that the scenario had made it impossible for the defense to prepare its case and, consequently, it was not possible to have a fair trial in the r.ircumstances.s'' The Registrar filed a submission under Rule 33 (B) of the Rules of Procedure and Evidence'? in which he, not surprisingly, opposed the accused's plea and challenged all his submissions. In his brief, the Registrar submitted that defense teams in previous cases had carried out investigations in Rwanda without much hindrance and that the Registry of ICTR had very good cooperation from the government of Rwanda in the areas of documentation, movement and transfer from/to Rwanda and protection of defense witnesses. Further the Registrar submitted that he had no mandate to provide protection to potential defense witnesses whose identities had not been disclosed and for whom there was no court order for protcction.P'' 86 Article 28 concerns cooperation and judicial assistance. It requires states to cooperate with the ICTR in the investigation and protection of persons accused at the ICTR. Such cooperation extends to compliance without undue delay with any request for assistance or order issued by a Trial Chamber for, e.g., identification or location of persons taking testimony and production of evidence, service of documents, arrest or detention or transfer and surrender of accused persons to the seat of the Tribunal. 87 Rule 6 of the Rules of Procedure and Evidence. 88 See Prosecutor v. Theoneste Bagosora et al., Case No. ICTR-98-41-T, Ntabakuze Motion to Dismiss Charges against him Due to Impossibility of Mounting Effective Defense because of Interference by the Rwandan Governing Regime, Sept. 27, 2004, at 21918, paras. 2, 3, 4, 5 and 7. 89 See Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T: the Registrar's Submission of Oct. 13, 2004 Under Rule 33(b) of the Rules in response to Ntabakuze Motion to Dismiss Charges against him due to Impossibility of Mounting Effective Defense because of Interference by the Rwandan Governing Regime, Sept. 27, 2004. Rule 33(B) provides that the Registrar in execution of his functions, may make oral or written representations to the Chamber on any issue arising in the context of a specific case that affects or may affect the discharge of such functions. 90 Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T: Registrar's Submission, Oct. 13, 2004, para. 16 in Response to Ntabakuze Motion to Dismiss Charges Against Him Due to

520 • Defense in International Criminal Proceedings In its unanimous decision, the Chamber dismissed the motion as unfounded and without merit arguing that on the basis of evidence presented, it was unable to find on a balance of probability that the Rwandan authorities had intimidated defense witnesses. Furthermore, the Chamber held that the remedy sought, dismissal of charges against the accused, was inappropriate, as it was not shown that the evidence of the prospective witnesses related to the charges in the indictment."! Without engaging in a discussion on the merits of the Chamber's decision, it is however quite clear that this motion, the Registrar's response together with the decision illustrate the practical problems alluded to above, which the defense encounters resulting from its non-recognition by the Statute. Counsel cannot independently seek and obtain assistance from a member state, yet the recognized organs of the Tribunal may not always effectively intercede on its behalf. This calls for a fully recognized defense association that would intercede on behalf of the defense. ADAD's effectiveness in this regard is hampered by lack of formal unequivocal recognition. Another practical problem arising from this non-recognition of defense counsel relates to the amendment of the Rules of Procedure and Evidence. The Statute empowers the judges of the Tribunal to adopt, for the purpose of the proceedings at the Tribunal, the Rules of Procedure and Evidence.i" The power to amend these rules is given to the judges, the prosecutor and the Registrant" Evidently, the defense is, by dint of not being a recognized organ of the Tribunal, left out of this legislative process. Exclusion of the defense from this crucial function puts to question the legitimacy of the whole legislative process of the Tribunal. Granted, a practice has emerged over the years in which proposals for amendment by the defense are channeled through the Registrar. Such practice is, however, prone to immense misgivings given its lack of legal backing. The Registrar is not bound to forward any of the proposals made by the defense let alone defend such proposals before the plenary session. Besides, it would be anticipating too much to expect the Registrar to forward amendments whose purport would be to challenge his authority over defense counsel.v' More significantly, the fact that defense counsel cannot participate in a process that could, and invariably does, fundamentally affect their ability to effectively discharge its duties, is in itself an attack on the principle of equality of arms. It is therefore not surprising that several of the amendments coming out of the plenary sessions have been seen as an assault on defense rights. A few examples will illustrate this point.

Impossibility of Mounting Effective Defense because of Interference by the Rwandan Governing Regime, Sept. 27, 2004. 91 Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T: Decision on Motion Concerning Alleged Witness Intimidation, Dec. 28, 2004, paras. 9, 10 and 11. 92 Article 14. 93 Rule 6 of Rules of Procedure and Evidence 94 See, for instance, ADAD's Proposal for Amendment of the Rules to provide for an independent defense association that would conduct disciplinary proceedings against counsel and enforce the Code of Conduct dated May 19, 2003, presentation to the ICTRjudges plenary meeting of May 26, 2003. The fate of this proposal remains unknown although presented through the Registrar.

Associations of Defense Counsel • 521 Rule 72, which governs the raising and filing of preliminary motions, initially allowed such motions to be filed within a 60-day limit following the disclosure by the prosecutor to the defense of all the material envisaged by Rule 66 (A) (i). This time limit was subsequently reduced to 30 days in an amendment that effectively compromised defense counsel's ability to meaningfully challenge various aspects of the prosecution case. Preliminary motions are normally brought by the defense save for isolated cases in which the prosecutor may seek severance of counts in the indictment or separate trials. Further, the rule sought to limit the scope of preliminary motions by setting out the categories of motions permitted under the rule. Under, 'Jurisdiction motions," the new rule further limited the scope of motions under this heading by specifying what constituted jurisdictional issues.t" Jurisdiction motions represent a special category because they test the legal validity of the proceedings by scrutinizing the competence of the tribunal to try the accused persons. Jurisdictional issues are therefore of fundamental importance, and any attempts to limit the accused's ability to raise such issues should not be taken lightly. In the instant case, the timing of the amendment was itself telling, coming almost immediately following the liberal interpretation of the concept ofjurisdiction in favor of the defense by the Appeals Chamber/" Although the objective of this amendment was the attempt to stem the flurry of motions filed under the jurisdiction banner when it was felt they had nothing to do with jurisdiction, the effect, probably not intended, was to shut out fundamental issues ofjurisdiction not listed under the new rule."? Moreover, lack of involvement of the defense in this process clearly violated the rules of natural justice. The existence of an effective and duly recognized defense organ at the ICTR would go a long way in ensuring that the Tribunal's legislative process is representative of defense interests. Rule 73(F) of the Rules of Procedure and Evidence, also introduced at the same time, represents another instance of exercise of the legislative powers conferred by the Statute and Rules, to the detriment of the defense. This is in the following terms: 95 See Rule 72 (D), which only permits motions challenging jurisdiction, the validity of the charge/indictment, seeking severance of counts on one indictment, seeking separate trials or challenge joinder or otherwise challenge the indictment on the ground that it does not relate to any of the persons indicated in Articles 1, 5, 6 and 8, the territories indicated in Articles 1, 7 and 8, and or any of the violations indicated in Articles 2, 3, 4 and 6 of the Statute. 96 See, e.g., Prosecutor v. Anatole Nsengiyumva, ICTR Case No. 96-12-A, Decision on Appeal Against Oral Decision of Trial Chamber II of 28 September 1998, in which the Appeals Chamber ruled that the composition of a Trial Chamber was ajurisdictional issue,June 3,1999. 97 Under common law, for instance, if two judges instead of three preside over a question, this would be a jurisdictional issue. This does not appear to be the case under the amended ICTR Rule 72. 98 This rule relates to misconduct of counsel. It provides that a Chamber may after a warning, impose sanctions against a counsel, if, in its opinion, his conduct remains offensive or abusive, obstructs the proceedings or is otherwise contrary to the interests of justice. The words "impose sanctions against counsel ... interests ofjustice" were added by amendment dated July 1, 1999. The rule also provides that a judge or chamber may, with approval of the President, communicate misconduct of counsel to the professional body regulating the conduct of counsel in his state of admission or, if a professor and not otherwise admitted to the profession, to the governing body of his university. The rule also empowers the Registrar to replace counsel sanctioned for misconduct and to set up a Code of Professional Conduct.

522 • Defense in International Criminal Proceedings In addition to the sanctions envisaged by Rule 46,98 a Chamber may impose sanctions against counsel if, counsel brings a motion, including a preliminary motion that, in the opinion if the Chamber, is frivolous or is an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof. 99 The experience at ICTR regarding the application of this rule has left no doubt that the rule is inherently punitive and has been applied contrary to the rules of natural justice against defense counsel to the detriment of the accused's rights. First, the rule is discriminatory and unfair. Reference to "fees" and "costs" in the rule suggests exemption of the prosecutor from the stipulated sanctions under Rule 73 (F). Second, there is no requirement for a counsel being sanctioned to be called upon or given an opportunity to be heard before a Chamber prior to the imposition of sanctions. This contravenes the rule of natural justice and is in itself a violation of the rights of counsel, not only as an attorney of the accused, but also as an individual entitled to enjoy the basic human rights guaranteed in international human rights law. Third, the rule does not set out or provide a criteria for determining what amounts to a frivolous motion or abuse of process. In the circumstances, this has left the defense extremely vulnerable, as indeed, the rule has found wide application against counsel. This has the potential of compromising the defense's ability to present its clients cases independently and without fear of sanctions. 100 A better organized and formally recognized defense organ at the ICTR would facilitate more effective objections to rules such as this. The danger posed to the defense by the rule on perceived frivolous motions is succinctly illustrated by a motion in the case of the Prosecutor v. Nzirorera.t'" In the motion, the accused sought to vacate sanctions imposed on his lead counsel pursuant to Rule 73 (F). His contention was that Rule 73 (F) as applied at the ICTR violates the principle of equality of arms, and that the specific sanctions imposed on counsel were unwarranted and unjust.l'" The motion documented several occasions in which Rule 73(F) had been used at the ICTR to sanction the defense and not once against the prosecution.l'" The accused further submitted that sanctions had been imposed against defense counsel in all major trials at the ICTR. This clause was added by amendment dated Feb. 21, 2000. SeeJean Degli, Human Rights: Are they Respected Before the Ad hoc International Jurisdictions? The Marginalization of the Defence Before the ICTR. Paper presented at the Colloquium organized by the Paris Bar and the International Criminal Defence Attorneys Association (ICDAA) at the Maison du Barreau on December 6 and 7, 2001. 101 The Prosecutor v. Nzirorera, Case No. ICTR-98-44-T, Motion to Vacate Sanctions, July 6,2004. 102 See Prosecutor v. Nzirorera, Case No. ICTR-98-44-T, Motion to vacate sanctions, July 6, 2004. 103 Some of the cases cited by the accused and which the author has verified are Prosecutor v. Bagambiki et al., No. ICTR-99-36-1, Decision on Imanishimwe's Motion objecting to Non-compliance with the Rules and Material Prejudice to the accused, July 10, 2000; Prosecutor v. Bagosora et al., Decision on the Defense Motion objecting to lack of jurisdiction and seeking to declare the Indictment void ab initio Apr. 13, 2000; Prosecutor v. Kabiligi ICTR No. 98-41-T, Decision on Kabiligi's Motion to Nullify and Declare Inadmissible, June 12, 2000; Decision on Ntabakuze's Preliminary Motion and Motion for Execution of the Decision Rendered on 5 October 1998 and 8 October 1999, Oct. 20, 2000; Decision on Motion of Bagosora, Kabiligi and Ntabakuze for Preservation of their rights, May 13, 2002; Prosecutor v. 99

100

Associations of Defense Counsel • 523 On the merits of the motion, the accused argued that his counsel had been unfairly sanctioned, and that, in all the instances, the motions were justified in the proper conduct of his defense. The accused further noted that unless vacated, the sanctions would lead to possible disciplinary proceedings against his counsel by his parent bar, and that this would cause an undeserved blemish on counsel's 25 years of practice without discipline. The accused further argued that ICTR practice and jurisprudence on application of the rule shows that when the prosecution has been found to have breached or violated orders of the Tribunal or the Rules of Procedure and Evidence, the result has never been any more than a mere warning. 104 Accordingly, the application of Rule 73 (F) at the ICTR violates the principle of equality of arms, and undermines the accused's right to a fair rrial.l'" No decision had been rendered on the motion as at the time of writing this section.

7.2.6.1.2.

Code of Professional Conduct

This Code was promulgated by Registrar of the Tribunal on June 8, 1998, to provide for standards of conduct on the part of counsel, which are appropriate in the interNahimana et al., Case No. ICTR 99-52-T, Decision on the Defense Request to have the Report and the Testimony of Expert Witness Jean Pierre Chretien Declared Inadmissible, Jan. 31, 2002; Decision on the Defense Motion opposing the Hearing of the Ruggiu Testimony Against Jean Bosco Barayagwiza, Jan. 13, 2002; Decision on the Defense Motion in Limine to Disallow witness X's Testimony, Feb. 11, 2002; Decision on the Defense Motion for Declaratory Relief from Administrative Measures imposed on Hassan Ngeze at the UNDF, May 9, 2002; Decision on the Defense Request for Disclosure of Information which could show bias in respect of a Prosecution Witness, June 5, 2003; Prosecutor v. Ngeze, Case No. ICTR-97-27-1, Decision on the Defense's motion to dismiss the Indictment in toto for lack of subject matter, jurisdiction and lack of fundamental fairness to the Accused, May 10, 2000. Prosecutor v. Bizimungu et al., Case No. ICTR99-50-T, Decision on Justine Mugenzi and Jerome Bicamumpaka's Motion to have the Chamber inquiring into the matter of the testimony of Jean Kambanda, June 17, 2004; Decision on Casimir Bizimungu Urgent Motion opposing the testimony of Witness GKD, June 17, 2004; Prosecutor v. Semanza, Case No. ICTR-97-20-1, Decision on the Defense Motion for Dismissal of Entire Proceedings due to persistent and continuing violations of the rights of the accused, Rules of Procedure and Evidence (RPE) and the Statute of the tribunal and abuse of process, Sept. 11, 2000; Decision on the Defense Motion for adjournment of the trial proceedings, Oct. 30,2000; Decision Pursuant to Rule 73(E) in Relation to the Defense Extremely urgent motion for review of the oral decision of 14 November 2001, Dec. 13,2001; Decision on Defense Motion to Reconsider Decision Denying Leave to call Rejoinder Witness, May 9, 2002; Decision on Defense motion for Interpretation of the Scheduling Order issued on May 2, 2002, May 10, 2002; and Prosecutor v. Karemera et al., Case No. ICTR-98-44-T (five instances referred (five to above and one sanction to defence team of Karemera) . 104 See, e.g., Prosecution v. Niyitegeka, Case No. ICTR-96-14-T, Decision on Two Defense Motions pursuant to inter alia Rule 5 of the Rules and the Prosecutor's Motion for Extension of time to file the modified Amended Indictment Pursuant to the Trial Chamber Order of November 20,2000, Feb. 27, 2001; Prosecutor v. Kajelijeli, Case No. ICTR-98-44/1-PT, Decision on Prosecutor's Motion to correct the Indictment dated 22 December 2000 and Motion for leave to file Amended Indictment, Jan. 25,2001; Prosecutor v. Nyiramasuhuko, Case No. ICTR97-21-T, Decision on the Prosecutor's Allegation of Contempt, the Harmonization of the Witness Protection Measures and Warning to the Prosecutor's Counsel, July 10, 2001; Prosecutor v. Karemera et al., Case No. ICTR-98-44-1; Decision on Motion for Remedial Measures, Oct. 20, 2003. 105 See Article 3 (4) of the Code of Conduct.

524 • Defense in International Criminal Proceedings ests of the fair and proper administration ofjusticc.l'" The Code applies to counsel who is eligible for assignment and has filed his or her power of attorney with the Registrar or has been assigned under the Rules to a suspect, accused, detainee, witness or other person, and shall include co-counsel.'!'? The preamble to the Code reveals that a draft code was circulated to the judges of the Tribunal who voiced no objection to its promulgation and consequently adopted it. l 08 The draft was submitted to the Advisory Panel established under Article 29 of the Directive on the Assignment of Counsel and that the Advisory Panel also voiced no objection to its promulgation. 109 True, the Advisory Panel has a representative of the defense. This representative is however picked by the Registrar and not chosen by the defense counsel. A number of provisions in the Code have generated controversy. Article 19, for instance, states that if there is any inconsistency between this Code and any other Code, which counsel is bound to honor, the terms of this Code prevail with respect to counsel's conduct before the Tribunal. 110 Whereas the Tribunal relies on the parent bar association to determine the suitability and competence of counsel appearing before it, it would appear anomalous and contradictory to expect the same counsel to disregard the rules of conduct of his or her parent bar in favor of the Tribunal's Code of Conduct. The Code also creates situations of conflict between allegiance to the Tribunal and to the client by counsel. Whereas Article 9 states that counsel owes a duty of loyalty to his client, and must at all times act in the best interests of the client and must put those interests before their own interests or those of any other person,"!' Article 6 obliges counsel to represent a client diligently in order to protect the client's best interest and unless the representation is terminated, counsel must carry through to conclusion all matters undertaken for a client within the scope of his legal rcprcscntation.t!" Rule 45 of the Rules of Procedure and Evidence of the ICTR seems to suggest that even where the accused withdraws instructions, the lawyer must continue his or her representation through to the conclusion of the case. This is because under the Tribunal's legal aid system, the accused cannot unilaterally withdraw instructions from counsel. He has to request either the Registrar or the Chamber to withdraw the counsel.U" A lawyer whose instructions are withdrawn by the accused or suspect must therefore "hang-on" until a decision is made by the Registrar or the Chamber. Where the Registrar or the Chamber declines the accused's request, counsel is, under the Tribunal's Code of Conduct, supposed to continue "representing" the accused albeit without

Nzirorera, Case No. ICTR-98-44-T, Motion to vacate sanctions, July 6, 2004. Article 1 (b) of the Code of Conduct. 108 Code of Conduct for Defense Counsel, preamble. 109 Code of Conduct for Defense Counsel, preamble. 110 Article 19. 111 Article 9, prevents conflicts of interest and requires loyalty to client. 112 Article 6 deals with requirement for counsel to be diligent in his duties. 113 Article 18 provides for withdrawal of assignment when accused is no longer indigent, while Article 19 provides for withdrawal of counsel by the Registrar in other circumstances including request by an accused. Rule 45 of Rules of Procedure and Evidence requires Counsel to continue representing an accused and conducting the case to finality save and unless Counsel is permitted to withdraw from the case assigned in the most exceptional circumstances. 106 107

Associations of Defense Counsel • 525 instructions. Yet, this may appear to be in conflict with professional ethics as understood in most municipal jurisdictions. The Chamber's decision in the case of Prosecutor v. Barayagwiza,114 aptly illustrates the problems generated by this rule. The accused refused to attend proceedings on the ground that the Chamber was partial or biased. In a letter to the Tribunal, the accused alleged that the Chamber would not be able to render independent and impartialjustice because it was dependant on "the dictatorial regime in Kigali." Accordingly, the accused instructed the lawyers assigned to him by the Tribunal not to participate in the proceedings by a letter in which he stated: My Counsels are instructed not to represent me in that trial. Thus, their forced presence in the trial is the continuation of violation of my rights by a Tribunal incapable of respecting my fundamental human rights, contrary to the UN Charter. 115 Acting under Rule 45 (I) 116 of the Rules of Procedure and Evidence, the defense counsel applied for leave to withdraw from the case citing lack of instructions from the accused person and on account of the professional Codes of Conduct of their bar associations (Quebec and Washington), which forbade them from acting contrary to a client's instructions. These arguments were rejected by the Chamber, which proceeded to deny them leave to cease acting for the accused person. With regard to instructions from the client, the Chamber was not persuaded by the reasons given by the accused person for withdrawing his lawyers' mandates. They considered this action by the accused person as merely obstructive of the course ofjustice. On the issue of the lawyers' allegiance to the parent bars, the Court dismissed this offhand, stating that the Tribunal's requirements on conduct of counsel prevailed over any national codes of ethics.!'? The foregoing demonstrates the dilemmas faced by the defense counsel at the ICTR as a result of the application of this rule. It goes to show the conflicts between the ICTR Code of Conduct for defense counsel, the national or parent bar codes of conduct, the Chamber's expectations of defense counsel and the requirement for counsel's independence. The creation of an independent organ of defense counsel at the ICTR would greatly assist in the creation of a generally acceptable code of conduct that would not only safeguard the independence of counsel but also minimize the dilemmas created by the present Code. In the meantime ADAD has taken the position that a lawyer should not be forced to participate in proceedings before the Tribunal against their client's instructions. This

114 Prosecutor v. Barayagwiza, Case No. ICTR-97-19-T, Decision on Defense Counsel Motion to Withdraw, Nov. 2, 2000 (on file with the author). 115 Statement ofJean-Bosco Barayagwiza to the Trial Chamber 1, Oct. 23, 2000. 116 Rule 45(1) provides that counsel will represent the accused and conduct the case to finality. Failure to do so or absence without just course approved by the Chamber may result in forfeiture of fees in whole or in part. In such circumstances, the Chamber shall make an order accordingly. Counsel shall only be permitted to withdraw from the case to which he or she has been assigned in the most exceptional circumstances. 117 Prosecutor v. Barayagwiza, Case No. ICTR-97-19-T, Decision on Defense Counsel Motion to withdraw Nov. 2, 2000.

526 • Defense in International Criminal Proceedings position finds support in one scholar who has eloquently summed up the scenario in the following words: one questions the ethics of counsel agreeing to represent an accused person, albeit indirectly and at the behest of the court, without that person's consent. Just as the accused has a right to be represented, he or she also has a right to waive that right.... It is therefore submitted that when the accused, while in his or her sound and sober senses, freely and voluntarily decides not be represented, this decision should be respected. The accused knows what he or she is doing and should be responsible for the consequences of this decision. A patient who, whilst in full mental capacity, decides not to be treated cannot be forced to receive medical treatment against his or her will.U"

7.2.7.

Conclusion

In many jurisdictions throughout the world, criminal defense services are facilitated through organizations outside the function of the court. In many common law systems, a public defender's office is employed to help provide legal services to indigent clients. In other jurisdictions, criminal defense is facilitated by a defense bar association. These organizations set standards for practice, promulgate rules of ethics, provide training and education to practitioners, disseminate research and information on developments in the law, as well as maintain lists of competent counsel to represent indigent clients. They also serve to regulate membership or entry into the profession of defense counsel and serve as consultative bodies with the power to make recommendations.U? From the preceding discussion, it is clear that there is no statutorily entrenched defense bar association at the ICTR that has due recognition and necessary support from the ICTR. Despite the commendable role ADAD has attempted to play, defense counsel have nevertheless been exposed and left vulnerable to the discretionary powers of an all-powerful office of the Registrar and an independent and well-endowed prosecutor. To prevent undue interference with the independence of counsel, it is recommended that ADAD be strengthened and it be formally recognized under the Rules of the Tribunal. This would be necessary to facilitate the performance of the duties of counsel, and to instill self-discipline among individual counsel through the principle of self-regulation. The concept of self-regulation is all the more necessary when viewed against the cardinal obligations of counsel in the legal profession. These obligations are mandatory regardless of whether such counsel is appointed by the accused or assigned by the Registrar. 120

118 Daniel D. Ntanda Nsereko, "Ethical Obligations of Counsel in Criminal Proceedings: Representing an Unwilling Client," 12(4) Crim. L.F. 487-507, 507 (2001). 119 See Elise-Groulx-Diggs, Proposal for the Establishment of an Independent Office of the Defence at ICC (President of the International Criminal Defence Attorneys Association (ICDAA) June 1998, at www.hri.ca/partners/aiad-icdaa reports. 120 See Daniel D. Ntanda Nsereko, "Ethical Obligations of Counsel in Criminal Proceedings: Representing an Unwilling Client," 12(4) Crim. L.F. 487-507,491 (2001). (Explaining that counsel has a mandatory duty to attend to client affairs. This duty extends to representing client dili-

Associations of Defense Counsel • 527 At the international level, the issue of the position of defense counsel has been brought to the fore with increased zeal following the establishment of the International Criminal Court.'?' During the first conference to deal with defense-related issues at the international level, Elise Groulx.l-" the President of the International Criminal Defense Attorneys Association (ICDAA) observed that whereas basic trial guarantees were incorporated in the draft Rome Statute and of the ad hoc tribunals, it remained far from clear how these theoretical guarantees would be implemented and interpreted during trials. According to her, there exist a lot of difficulties in issues ranging from witness anonymity to pre-trial discovery, which needed to be brought to the attention of global policymakers. There is also the need for defense lawyers to work together collectively in an association to build alliances with legal educators, judges and other like-minded people in order to meet at least three major challenges facing defense lawyers at the international courts or tribunals. The challenges have been identified as follows: (1) to build visibility for defense; (2) to give a voice to the defense; and (3) to organize the defense.l'" To enable the defense to effectively tackle these challenges, proposals have been made on how defense lawyers could be organized at the international level. Such organization could be through a global professional association supported by individual and institutional members, an alliance of national bar associations and/or an independent office of the defense attached to the ICC similar in key respects to the office of the prosecutor. These proposals have been made in direct response to the issues, discussed hereinabove that have arisen from the experience of defense lawyers at the ad hoc tribunals. The objective is to establish a solid pillar of international criminal justice system that would compliment the bench and prosecution. The mission of this third pillar is to ensure respect for fair trial procedures and rigorous representation of all accused persons and victims.

gently, preparing and filing court documents in time, observing time restrictions imposed by rules of court, punctually attending court on the day and time of hearing, cooperating with a new lawyer in case of withdrawal or change of lawyers, endeavor to execute client's instructions with competence and zealousness, loyalty to client, counsel must not compromise client's interests in any material way without prior consent of the client, counsel should never disclose information given in confidence or in a professional capacity by the client without consent therefor counsel's duty to the court entails being as counsel is, an officer of court, becomes a minister ofjustice owing to positive duty to court to assist administer justice, attending court punctually, respect for the court and its officers, assisting the court to arrive at just and informed decision, duty not to mislead the court and perpetual retainer on behalf of truth and justice requiring that whenever conflict arises between client's instructions conflict with counsel's duty to carry out counsel's duty to court as a minister ofjustice, the duty to court ought to prevail. The duty to court is paramount (Rondel v. Worsley (1969) 1.A.C 191,227, cited). 121 See Statute of the International Criminal Court (ICC), reprinted in 37 I.L.M 999 (1998), adopted in Rome on July, 17 1998. For detailed information on ICC, visit www.un.org/icc. 122 See Elise Groulx, "A Strong Defence Before the International Criminal Court," in An Independent Defence Before the International Criminal Court (Hans Bevers & ChantalJoubert, 7-17 (1999) (Proceedings of the Conference held in the Hague, Nov. 1-2, 1999). 123 Id.

528 • Defense in International Criminal Proceedings 7.3. INTERNATIONAL CRIMINAL BAR 7.3.1.

Constltutloni»

Part One Initial Provisions Article 1 Definitions The following words or acronyms shall bear the following meanings in this Constitution: Association of counsel-Independent association of legal practitioners or Bars, qualified for collective membership, and recognised as such by the Council. Bar-An independent body of which counsel authorised to practice in the jurisdiction of the body are members, and recognized as such by the Council. In this Constitution, "Bar" refers also to Law Societies. Council-The governing body of the International Criminal Bar, comprising the "Bestuur" (management) under the law of the Netherlands. Counsel-Counsel, legal representatives and persons offering legal assistance or services, as described in the Statute of Rome of 17 July 1998 and the Rules of Procedure and Evidence of the International Criminal Court. Court-The International Criminal Court, created by the Statute of Rome of 17 July 1998. Executive Committee-The Executive Committee of the Council. ICB-The International Criminal Bar as established in Montreal on 15 June 2002. Members-Persons, whether natural or juridical, qualified for any category of membership of the International Criminal Bar, who have joined the International Criminal Bar, upon payment of annual fee, and whose membership has not been terminated. General Assembly-The General Assembly of the ICB. Present and voting-shall mean present in person or by proxy, and voting as provided in article 9,10,11 and 16, as the case maybe. Proxy-Authority in writing, but shall not include electronic mail, delivered or transmitted to the Secretary of the Executive Committee not less than seven days before the meeting to which it applies. Writing-Any form of writing, including electronic mail and facsimile transmissions.

Article 2 Name, Legal Organisation and Seat 1.

The name of this association shall be the International Criminal Bar (ICB).

124 Reproduced from the Internet site www.icb-bpi.org by kind permission of the International Criminal Bar.

Associations of Defense Counsel • 529 2.

The ICB shall be established as an association pursuant to the law of the Netherlands.

3.

The seat of the ICB shall be at The Hague, The Netherlands.

Article 3 Objectives 1.

The objectives of the ICB are: a.

It shall promote and defend the role and independence of counsel for the defence and for victims before the Court.

b.

It shall promote the principle of freedom of choice of counsel.

c.

It shall facilitate the work of counsel before the Court.

d.

It shall promote effective communication between the organs of the Court and counsel.

e.

It shall promote the acquisition of knowledge and skills of counsel before the Court.

f.

It shall participate in regulating the practice of counsel before the Court.

g.

It shall strive to promote the principle of complementarity in relation to the functions, rights and duties of national, regional and international associations of legal practitioners.

h.

It shall strive to achieve equality of arms.

2. The ICB shall reflect in its organs the diversity of the legal systems and the geographical areas of the world.

Article 4 Functions The ICB shall promote and advance: a.

Ethics for counsel and disciplinary proceedings.

b.

Professional training.

c.

The development and administration of the legal aid system of the Court.

d.

The administration of the list of legal practitioners eligible to be appointed by the Court, the development and amendment process of the Elements of Crimes, Rules of Procedure and Evidence and other relevant instruments of the Court.

e.

General support for counsel before the Court.

f.

The resolution of disputes relating to the professional conduct of counsel and their remuneration.

g.

Other matters relating to the independence and effectiveness of counsel before the Court or the principles of the ICB.

530 • Defense in International Criminal Proceedings

Article 5 Membership 1. Membership of the ICB shall be voluntary. 2. An individual who qualifies to practice before the Court may be admitted as an individual member. 3. The following may be admitted as collective members: a.

Bars.

b.

Associations of counsel.

4. Any other association concerned with the role of counsel at the Court may be accredited as an associate member. 5. The Executive Committee shall decide on admission as a member or accreditation as an associate member. Conditions of admission or accreditation as a member or associate member shall be determined by the Council. A person not so admitted or accredited will be notified in writing of the resolution of the Executive Committee no later than 60 days after application. He or she may lodge an appeal with the Council within 30 days of receipt of the notice of the resolution. Any such appeal shall be determined by the Council in writing within 120 days of receipt of the notice of appeal.

Article 6 Termination of Membership 1.

Membership shall cease upon: a.

the death or dissolution of the member;

b.

the resignation of the member, which will become effective upon receipt by the ICB of the member's written resignation;

c.

the discontinuation of membership, which will be decided by the Executive Committee if in its opinion: (i) a member no longer satisfies the requirements for membership as outlined in this Constitution; or (ii) a member no longer fulfils his or her obligations towards the ICB; or (iii) the ICB cannot reasonably be expected to allow the membership to continue;

d.

expulsion by the Executive Committee, which may only be decided upon when a member acts contrary to the articles, regulations and resolutions of the ICB, or where the conduct adversely affects the ICB in an unreasonable manner.

2. The membership shall end at the earliest date allowed following the day on which notice was given pursuant to clause 1 (b), (c) and (d). 3. A member, whose membership is discontinued or who is expelled shall be promptly notified in writing of the resolution and the reason (s) for which his or her membership is being discontinued or for which he or she is being expelled. The member may lodge an appeal with the Council within 30 days of receipt of the notice of the resolution.

Associations of Defense Counsel • 531 Pending determination of the appeal, the member shall be suspended from membership privileges. The suspended member, however, shall have the right to represent himself or herself before the Council. 4. A member may be suspended from membership, which may be decided by the Council on the grounds as mentioned in clause 1 (c) and (d). The member will be notified in writing forthwith of the resolution and the reason (s) for which he or she is suspended from membership. Within 60 days of the resolution, the Council shall make its decision in terms of Article 6(1) (c) or (d), and the member shall be notified in writing forthwith. If suspension is not followed within 60 days by such decision, the suspension shall lapse.

Part Two Governance Of The International Criminal Bar

Article 7 General Assembly 1.

The General Assembly shall consist of all the members of the ICB.

2. All the powers and functions of the ICB which have not been vested in the Council by this Constitution or by the law of the Netherlands shall be vested in the General Assembly. 3. The General Assembly shall meet in biennial general meeting not later than six months after the end of the official year following the official year in which the general meeting is not held. 4.

At the biennial general meeting the General Assembly shall inter alia: consider the annual reports and financial statements by the Executive Committee for the past two years, accompanied by a report from the Council. elect the members of the Council. appoint the members of the Audit Committee, and such other committees as it may constitute. consider proposals of the Council, the Executive Committee or of the members, specified in the notice convening the meeting, or in any notice issued in terms of sub-article (6).

5. The Executive Committee shall convene the meeting of the General Assembly by notice in writing (including the agenda) not less than 60 days before the date of the meeting. 6. Members may propose issues to be determined at a meeting of the General Assembly session by notice in writing to the Executive Committee at least 30 days before the date of the meeting. All members shall be notified of these issues by the Executive Committee not less than 20 days before the date of the meeting.

7. The Council may decide to convene special meetings of the General Assembly. 8. The members of the General Assembly may request in writing a special General Assembly meeting by petition of not less than one-tenth of the members. The Executive

532 • Defense in International Criminal Proceedings Committee shall then be obliged to convene a special General Assembly meeting within 30 days. 9. All General Assembly meetings shall be held at The Hague or such other venue as the Council may determine. The Council may also determine that meetings are held in a manner that is made possible by audio-visual aids, provided that all members are given the opportunity to participate in discussions and to vote. 10. Suspended members of the ICB, the Council or the Executive Committee shall not be entitled to attend or vote at meetings of the General Assembly. 11. The General Assembly may adopt rules relating to the functioning of the ICB and its organs, which shall be consistent with this Constitution, the law of The Netherlands, the Statute of Rome of 17 July 1998, the Rules of Procedure and Evidence, the Agreement on Privileges and Immunities, as well as the Code of Professional Conduct. 12. The General Assembly shall, not later than its second biennial meeting, review this Constitution and its manner of operation.

Article 8 Proceedings ofthe General Assembly 1. Meetings of the General Assembly shall be presided over by the President or coPresident, and in his or her or their absence, a Vice-President. 2. The Secretary, or another person designated by the chairperson, shall keep minutes of each meeting. The minutes shall be available to all members. The minutes shall be confirmed and signed by the chairperson and the Secretary or such other person, and shall be subject to adoption at the next meeting of the General Assembly.

Article 9 Decisions ofthe General Assembly 1. A quorum of the General Assembly shall comprise twenty per cent of the collective members and twenty per cent of the individual members. The members comprising the quorum may be present in person or by proxy. 2. If the quorum cannot be obtained, then a second meeting with the same agenda shall be held within four weeks of the time of the original meeting. At the second meeting, a resolution may be adopted irrespective of the number of collective members or the number of individual members present. 3.

In decisions of the General Assembly: a.

Individual members may cast one vote each.

b.

Collective members may cast one vote each, subject to subarticle (c).

c.

The votes of the Bars of each country shall be recorded as one joint vote per country.

d.

Associate members shall be entitled to participate in all debates, but shall not vote, except in relation to Article 10 (4) (d) .

Associations of Defense Counsel • 533 e.

A decision of the General Assembly must be taken by a majority vote of the members present and voting. In the event of a decision being challenged at the meeting by a majority of the Bars present and voting, it may only be rescinded by a vote at that meeting of not less than three-fourths of the Bars present and voting. Elections of members of the Council may not be challenged in this manner.

4. Votes may be exercised by proxies. No person may exercise more than four votes in total, including votes by proxy.

Article 10 Elections tothe Council 1.

The Council shall have forty-two members, constituted as follows: Twenty-one elected from representatives of Bars (five each from Africa, the Americas, Asia, and Europe; and one from Oceania); Seven elected from individual members; Seven elected from representatives of associations of counsel; Seven elected from representatives of associate members, subject to article 11(9).

2. A person may stand for election to the Council from only one of the above colleges. Representatives of Bars and associations of counsel must be qualified to be individual members. 3. The General Assembly shall elect the members of the Council for four-year terms. Re-elections to consecutive terms of office shall not be permitted, save in respect of persons initially (in terms of Article 18 (1) elected to two-year terms. 4.

In the elections to the open seats of the Council: a.

Each individual member of the International Criminal Bar may vote for seven individual members of the Council. The seven candidates from different countries who receive the highest number of votes shall be declared elected. If candidates from fewer than seven countries receive votes, then more than one Council member from the same country may be elected.

b.

Bars may vote for twenty-one representatives (five each from Africa, the Americas, Asia, and Europe; and one from Oceania). Each Bar may cast only one vote per candidate, provided that Article 9(3) (c) shall apply to the votes cast by the Bars of the same country. The persons receiving the highest number of votes shall be declared elected.

c.

Associations of counsel may vote for seven representatives, but no more than one representative of the national associations of counsel of anyone country may be elected. Subject to this, the persons receiving the highest number of votes shall be declared elected.

d.

Associate members may vote for seven representatives. The persons receiving the highest number of votes shall be declared elected.

534 • Defense in International Criminal Proceedings

5. Members of the International Criminal Bar shall make every effort to ensure equitable gender distribution in electing the members of the Council. 6.

Members of the Council may be terminated or suspended by the General Assembly.

7. Any vacancy in the membership of the Council shall be filled by the General Assembly by an election conducted in writing in accordance with Article 9, with the necessary changes. Article 11 The Council and the Executive Committee 1.

The Council shall consist of the members elected as in Article 10.

2. If the membership of the Council falls below forty-two members, the Council shall continue to be lawfully constituted. 3. The Council shall meet at least twice a year on dates to be determined by it or failing such determination, by the Executive Committee. 4. The Council shall elect from any of its voting members an Executive Committee, consisting of not more than seven persons and comprising one or more Presidents, VicePresidents, Secretaries and a Treasurer. The Council shall fill vacancies on the Executive Committee. Five members shall be a quorum of the Executice Committee. The term of the members of the Executive Committee shall be two years. 5. A quorum of the Council shall comprise eighteen deliberative members, including those present by proxy. No member of the Council may exercise more than four votes in total, including those by proxy. 6.

The Council shall determine its own procedures for meetings.

7. The Council shall carry out the decisions of the General Assembly and shall direct the activities of the Executive Committee. 8. A majority of the representatives of the collective members present and voting and a majority of the individual representatives present and voting shall be required for a decision of the Council. 9. The representatives of the associate members may participate in discussions but shall not vote.

Article 12 Power ofrepresentation 1.

The power of representation is allocated to: the Council; three members of the Executive Committee acting jointly.

2. The ICB may enter into agreements as referred to in article 2:44 of the Dutch Civil Code, comprising agreements to purchase, alienate or encumber real estate, and agreements to give security to third parties.

Associations of Defense Counsel • 535

Article 13 Finances 1. The official year of the ICB shall run from the first day ofJanuary up to and including the thirty-first day of December. 2. The Executive Committee shall be obliged to keep all financial records and accounts of the ICB. 3. The Executive Committee shall submit to the members within six months after the end of the official year, except where an extension is authorised by the General Assembly: (i) its annual report; (ii) a balance sheet and financial statements of receipts and payments providing an accurate accounting of the administration conducted during the last year. 4. The General Assembly shall at its general meeting appoint at least two persons from among the members, who are not members of the Council, as an Audit Committee. The Audit Committee shall examine the statement of receipts and payments of the Executive Committee and report to the General Assembly at its next meeting. 5. The Executive Committee shall keep the records referred to in clauses 2 and 3 for a period of seven years.

Article 14 Membership dues The amount of the annual membership dues shall be determined by the General Assembly after a proposal by the Executive Committee.

Part Three Matters of Discipline Article 15 Ethics and Discipline 1. The General Assembly shall prepare and adopt rules and procedures relating to ethics and discipline and shall submit these to the Court for approval. 2. The Council may appoint a Disciplinary Committee and such other bodies as may be necessary to give effect to these rules and procedures.

Part Four General Provisions Article 16 Amendments to the Constitution 1. Notice of a proposed amendment shall be given to members in writing not less than thirty days before the date of the meeting of the General Assembly. 2. An amendment to the Constitution shall be adopted by a two-thirds majority of votes of Bars present and voting in a meeting of the General Assembly, a two-thirds majority

536 • Defense in International Criminal Proceedings

of associations of counsel present and voting and a two-thirds majority of individual members present and voting. 3. Amendments adopted by the General Assembly shall take effect after a notarial instrument has been drawn up in respect thereof in accordance with the law of the Netherlands. A member of the Executive Committee may be authorised by the Executive Committee to execute the instrument.

Article 17 Dissolution 1. The ICB may be dissolved by a resolution of the General Assembly, in accordance with the provisions of Article 16. 2. Any balance of funds remaining after dissolution and liquidation of assets shall be distributed as determined by the General Assembly.

Part Five Transitional Provisions Article 18 First Election ofthe Members ofthe Council 1. After the first election, members of the Council shall draw lots of determine the length of their terms, as follows:

For individual members, associations of counsel, and associate members, four members of the Council shall have four-year terms, and three shall have twoyear terms. For Bars from Africa, the Americas, Asia and Europe, three shall have four-year terms, and two shall have two-year terms. The member from Oceania shall have a four-year term. 2. Thereafter all elections shall be for four-year terms, under the rules described in Article 10 (4).

Article 19 First Audit Committee Notwithstanding Article 13(4), the Council shall appoint the first Audit Committee. Berlin, March 2003

7.3.2.

Code ofConduct and Disciplinary Procedure ofthe International Criminal Bar Preamble

WHEREAS the International Criminal Court has been established through efforts undertaken by the International Community to put an end to impunity for the perpetrators of the crime of genocide, crimes against humanity, war crimes and the crime of aggression;

Associations of Defense Counsel • 537 WHEREAS the International Criminal Court has been established to promote the respect for the enforcement of international justice; CONSIDERING that a commitment to internationaljustice requires the application of the Rule of Law; CONSIDERING that a system of international justice based on the Rule of Law rests on three pillars: an independent judiciary, an independent prosecutor and an independent legal profession; CONSIDERING that the Rule of Law requires that victims of the crime of genocide, crimes against humanity, war crimes and the crime of aggression have a right to be heard before the International Criminal Court; CONSIDERING that accused persons are presumed innocent until proven guilty beyond reasonable doubt in a fair and public trial by an independent and impartial tribunal according to established principles of international law; CONSIDERING that a fair trial requires giving the accused the opportunity to present a full, fair and vigorous defence according to well established principles of international law as stated in Articles 10 and 11 of the Universal Declaration of Human Rights; CONSIDERING that according to established principles victims, witnesses and accused persons have a right to representation by counsel of choice in proceedings that affect them; CONSIDERING that the right to representation by counsel for victims and accused persons is fundamental to a fair trial and that as such, counsel authorized to represent clients before the International Criminal Court have standing before the Court in equality with the Prosecutor; CONSIDERING that established principles require that counsel acting on behalf of clients before the International Criminal Court maintain high standards of professional conduct and that they be competent, honest and loyal; CONSIDERING that established principles require that counsel acting on behalf of victims and accused persons must be able to act with full independence and in the interests of their clients under the authority of the Rules of the International Criminal Court; CONSIDERING that the principle of self governance is at the heart of the independence the legal profession; IT IS RESOLVED THAT: A Code of Conduct be adopted as a means to ensure that victims and accused persons appearing before the International Criminal Court will be represented by independent, competent and honest counsel; And that in order to ensure the independence of counsel, this Code of Conduct be enforced through a peer review process that is subject to judicial control.

538 • Defense in International Criminal Proceedings Chapter I Interpretation and definitions 1. Interpretation (1) Counsel who appear before the International Criminal Court are drawn from every continent, legal system and legal tradition. The Code of Conduct is designed primarily as an instrument to encourage the attainment of universal standards in the quality and effectiveness of the representation of clients and the assistance to clients byenunciating the principles to which counsel shall adhere and by providing guidelines for conduct. The Code of Conduct shall be interpreted with an understanding of these underlying objectives.

2. Definitions (1) Counsel: In this Code the term "counsel" refers to counsel, legal representatives and persons offering legal assistance or services as described in the Rome Statute of the International Criminal Court and the Rules of Procedure and Evidence. The term "counsel" also applies to co-counsel. (2) Mandate: In this Code the term "mandate" refers to a mandate concerning a matter described in Article 10(1) of the Code. A mandate exists when a client has authorized counsel to act on behalf of the client and counsel has accepted. (3) Court: The term "Court" refers to the International Criminal Court (ICC) as defined in the Rome Statute of the ICC. (4) Prosecutor: The term "Prosecutor" refers to the office of the Prosecutor and individual prosecutors as defined in the Statute of Rome and the Rules of Procedure and Evidence. (5) Registrar of the Court: The terms "Registrar of the Court," "Registrar" and "Registry" refer to the office of the Registrar as defined in the Rome Statute of the ICC and the Rules of Procedure and Evidence. (6) National legal associations: The term "National legal associations" refers to any national Bar association or law society, and includes the professional organisations or authorities responsible for laying down rules of professional conduct and the administration of disciplinary matters. (7) Statute: In this Code the term "Statute" refers to the Rome Statute of the ICC.

(8) Rules: In this Code the term "Rules" refers to the Rules of Procedure and Evidence of the International Criminal Court. (9) Judge: In this Code the term 'Judge" refers to a judge of the International Criminal Court. (10) Crimes: In this Code the term "crimes" refers to the crimes mentioned in paragraph (1) of Article 5 of the Rome Statute of the ICC. (11) Code: In this Code, the term "Code" refers to the present Code of Conduct and Disciplinary Procedure of the International Criminal Bar. (12) Suspect: In this Code the term "suspect" or "suspects" refers to an individual or individuals under investigation for, or suspected of, committing crimes that fall under the jurisdiction of the International Criminal Court.

Associations of Defense Counsel • 539 (13) Accused person: In this Code the terms "accused person" or "accused persons" refers to an individual or individuals charged before the International Criminal Court or convicted of a crime before the International Criminal Court. (14) Convicted person: In this Code the terms "convicted person" or "convicted persons" refers to an individual or individuals convicted of crimes mentioned in paragraph (1) of Article 5 of the Rome Statute of the ICC. (15) Victim: In this Code the term "victim" or "victims" refers to a person or a particular group of persons who were victims or alleged victims of crimes mentioned in paragraph (1) of Article 5 of the Rome Statute of the ICC. (16) Witness: In this Code the term "witness" or "witnesses" refers to a person or to persons who could be called to give evidence, orally or in writing, in a matter that is before the International Criminal Court. (17) Firm: In this Code the term firm refers to a law firm or a law office and does not include a Barrister's Chambers. (18) Amicus curiae: In this Code the term "amicus curiae" refers to a State, an organization or a person invited or granted leave by a Chamber of the Court to make any oral or written submissions on any issue the Chamber of the Court deems appropriate. (19) Investigators: In this Code the term "investigators" refers to investigators working for the Prosecutor or for counsel.

Chapter II General Principles 3. Independence (1) Counsel shall represent and assist a client without fear or favour within the bounds of the law. (2) Counsel shall always exercise independent professional judgement on behalf of a client. (3) Counsel shall never permit his or her independence, integrity, and standards of professionalism to be compromised by any external or personal pressures.

4. Honesty and integrity (1) Counsel shall be honest and respectful in his or her relations with the client, opposing counsel, accused persons, victims, witnesses, the Prosecutor, the Registrar and the Court.

5. Competence (1) Counsel shall provide competent representation. Competent representation requires the experience, legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation of a client before the International Criminal Court.

540 • Defense in International Criminal Proceedings

6. Confidentiality and Privilege Confidentiality

(1) Counsel has a duty to adhere to this confidentiality rule and to ensure that assistants and staff adhere to this confidentiality rule. (2) Counsel may reveal such information, but only to the extent counsel reasonably believes necessary: (a) to prevent the client from committing a criminal act that counsel believes is likely to result in imminent death or substantial bodily harm; or (b) to establish a defence to a criminal charge or civil claim against counsel based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning counsel's representation of the client. (c) When counsel is uncertain about whether information relating to the representation or assistance of a client should be revealed counsel shall consult or seek guidance with respect to this matter from the International Criminal Bar Ethics Committee, from a colleague who is bound by the present Code of Conduct or from the national legal association to which counsel belongs. (3) The fact that information has otherwise become public or known to others does not permit counsel to disclose the information unless the client has been fully informed and knowingly consents to counsel's disclosure or its continued disclosure is impliedly necessary to fully represent the client. (4) Counsel has a duty before and after representation of a client to safeguard client information and to take necessary precautions to protect the information. Evidentiary Privilege

(5) Except as otherwise provided in this Article, the counsel-client privilege may be invoked with respect to: (a) a communication (b) made between privileged persons (c) in confidence (d) for the purpose of obtaining or providing legal assistance for the client. (6) Definitions: (a) A "communication" is any expression through which a "privileged person" as defined below undertakes to convey information to another privileged person and any document or other record revealing such an expression. (b) "Privileged persons" are the client (including a prospective client), the client's counsel, agents of either who facilitate communications between them, and agents of counsel who facilitate the representation. (c) A communication is "in confidence" if, at the time and in the circumstances of the communication, the communicating person reasonably believes that

Associations of Defense Counsel • 541 no one will learn the contents of the communication except a privileged person or another person with whom communications are protected under a similar privilege. (d) A communication is made for the purpose of obtaining or providing legal assistance if it is made to or to assist a person: (i) who is a counselor who the client or prospective client reasonably believes is a counsel; and (ii) whom the client or prospective client consults for the purpose of obtaining legal assistance. (7) Common interest arrangements:

(a) If two or more clients with a common interest in a litigious or non-litigious matter are represented by separate counsel and they agree to exchange information concerning the matter, a communication of any such client that otherwise qualifies as privileged that relates to the matter is privileged as against third persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication. (b) Unless the clients have agreed otherwise, such a communication is not privileged as between clients in a subsequent adverse proceeding between them. (8) Waiver The counsel-client privilege is waived if the client specifically agrees to waive the privilege. (9) Exceptions: (a) The counsel-client privilege does not apply to a communication occurring when a client, regardless of the client's purpose at the time of consultation, uses counsel's advice or other services to wilfully engage in or wilfully assist a crime or fraud. (b) The counsel-client privilege does not apply to a communication that is essential to establish a claim or defence on behalf of counsel in a dispute between counsel and the client, to establish a defence to a criminal or disciplinary charge or other claim formally instituted against counsel based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning counsel's representation of the client. (c) The counsel-client privilege cannot apply where it is specifically excluded by law applicable to the Court. (10) Invoking privilege: (a) When an attempt is made to introduce in evidence or obtain discovery of a communication that is privileged: (i) A client, a personal representative of an incompetent or deceased client, or a person succeeding to the interest of a client may invoke or waive the privilege, either personally or through counselor another authorized agent. (ii) Counsel, an agent of counsel, or an agent of a client from whom a privileged communication is sought must invoke the privilege when doing so

542 • Defense in International Criminal Proceedings

appears reasonably appropriate, unless the client has waived the privilege or has authorized counselor the agent to waive it. (b) Counsel who is invoking the privilege must object to an attempt to disclose the communication. (c) Counsel must timely assert a waiver of, or exception to the privilege. Duration of confidentiality and privilege

(11) Confidentiality and the counsel-client privilege continue after counsel ceases to represent the client for whatever reason, including the death of the client.

7. Conflict of interest (1) General Rule: (a) Counsel shall not represent a client if the representation of that client could adversely affect, or could reasonably appear to affect, the interests of another client, third person, or counsel's own interests, unless: (i) the counsel reasonably believes there will be no material adverse consequences to the interests of either client, or any third party to whom counsel owes responsibilities; and (ii) each client or other person affected consents in writing after full and informed consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. (b) Any doubt about whether a conflict of interest exists shall be resolved in favour of there being a conflict of interest after consulting with the International Criminal Bar Ethics Committee. Business transactions with clients

(2) Counsel shall not: (a) enter into a business transaction with a client or knowingly acquire ownership, possessory, security, or other pecuniary interests adverse to a client. (b) during the course of representation, make or negotiate an agreement giving counselliterary or media rights to a portrayal or account based in substantial part on information relating to the representation. Once the representation and the appeal process have ended, counsel may enter into such an agreement with the client if the client has obtained independent legal advice on the matter. (c) accept a case on a contingent fee basis unless and except as regulated by the Rules of the Court.t-> (d) provide financial assistance or other substantial improper benefit to a client, a relative or an agent of the client in connection with pending or contemplated litigation. 125 An absolute prohibition of contingent fee agreements may limit the possibilities for representation of victims or victims groups, therefore if the Court deems it appropriate, counsel will be entitled to negotiate such agreements.

Associations of Defense Counsel • 543 (e) make an agreement prospectively limiting counsel's liability to a client. (f) accept compensation from one other than a client unless all the following conditions are met: (i) the client consents in writing after full and candid consultation; (ii) there is no interference with the counsel-client relationship and counsel's independence and loyalty to the client; (iii) client confidentiality is maintained; (iv) the person is made aware that client independence and confidentiality will be maintained. (3) Former client: (a) Counsel who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client and the new client give informed consent in writing after full and candid consultation. (b) Counsel shall not knowingly represent a person in a matter, or any substantially related matter, in which a firm with which counsel was formerly associated or by which counsel was formerly employed had previously represented a client: (i) whose interests are materially adverse to that person; and (ii) about whom counsel had acquired confidential information protected by this Article and Article 6 that is material to the matter, unless the former client and the new client consent in writing after full and candid consultation. (c) Counsel who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (i) use information relating to the representation to the disadvantage of the former client except as Article 6 would permit or require with respect to a client, or when the information has become generally known; or (ii) reveal information relating to the representation except as Article 4 would permit or require with respect to a client. (4) While counsel are associated in a firm, none of them shall knowingly represent a client if anyone of them, practicing alone, would have a conflict of interest under these rules.

8. The client's right tochoice ofcounsel (1) The client has the right to counsel of choice. (2) When the client is eligible for legal aid, counsel shall not accept a mandate to act on behalf of the client if the client has chosen to be represented by another qualified counselor has chosen not to be represented by counsel.

544 • Defense in International Criminal Proceedings

9. Relationship between counsel and client to be respectful (1) Counsel should seek to establish a relationship of trust and confidence with the client and must keep the client reasonably informed of all developments in the case and strategies to be used. (2) Counsel shall not discriminate against clients or prospective clients on the basis of ethnic or national origin, nationality, citizenship, race, colour, religion, gender, marital status, age, disability, political beliefs, sexual orientation or sexual reasons or economic status.

Chapter III General provisions 10. Application ofthe Code ofConduct (1) This Code of Conduct applies to the professional activities of all counsel who interact with those who are or may be:

(a) suspected of committing crimes that fall under the jurisdiction of the International Criminal Court.l'" (b) accused of, or convicted of crimes that fall under the jurisdiction of the International Criminal Court.I"? (c) victims of crimes that fall under the jurisdiction of the International Criminal Court;128 (d) witnesses to crimes that fall under the jurisdiction of the International Criminal Court.129 (e) amicus curiae granted leave to submit, in writing or orally, any observation on any issue the Chamber of the Court deems appropriate on behalf of a State, an organization or a pcrson.l'v

11. Conflicts between the Code ofConduct before the International Criminal Court and National Codes ofConduct (1) Without prejudice to the pursuit of a progressive harmonisation of rules of conduct or professional practice, Counsel to whom the present Code of Conduct applies must at all times act in conformity with the rules contained herein.

126 Article 55 paragraph (2)c) and d) and article 56 paragraph (2)d) of the Treaty of Rome refer to legal assistance and counsel. 127 Article 61 paragraphs (1) and (2) and article 67 paragraph (l)b) and d) of the Treaty of Rome. Rule 21 and 22 of the Rules of Procedure and Evidence. 128 Article 68 paragraph (3) of the Treaty of Rome. Rule 90 of the Rules of Procedure and Evidence. 129 Article 43 paragraph (6) of the Treaty of Rome. Rule 16 and 17 of the Rules of Procedure and Evidence. 130 Rule 103 of the Rules of Procedure and Evidence.

Associations of Defense Counsel • 545 (2) Counsel appearing before the International Criminal Court may have obligations with respect to national legal associations that govern their professional conduct even when they are outside the territorial limits of their respective countries. Accepting that codes of conduct and rules of ethics are designed to promote and secure the highest standards within the legal profession, the present Code of Conduct does not limit or prevent the application of any other code of ethical conduct that may apply to counsel. (3) When counsel is confronted with a choice between ethical duties emanating from the application of the present code and the application of any other code of ethical conduct to which counsel is required to submit, counsel must seek to reconcile both duties whenever possible. Counsel may consult or seek guidance with respect to this matter from the International Criminal Bar Ethics Committee or from a colleague who is bound by the present Code of Conduct. (4) When counsel is confronted with irreconcilable conflicting ethical duties emanating from the application of the present code and the application of any other code of ethical conduct to which counsel is required to submit, counsel must either follow the rules outlined in the present Code of Conduct or withdraw from the case in accordance with Article 19(2) f) of this Code. (5) In all situations described in paragraph (4) of the present section, counsel should disclose the existence of the irreconcilable conflict to the International Criminal Bar and the appropriate body of the national legal association to which they belong.

12. Affirmation ofCounsel (1) All counsel must take the following affirmation before a designated person of the International Criminal Bar before accepting a mandate as defined in Article 10(1) of the Code: I have read and understand the Code of Conduct regarding matters that concern the International Criminal Court and I undertake to respect and follow the principles, guidelines and requirements set forth by the Code. I have signed on this day _ _ of _ _, 20_ In the city of _ _, _ _ (2) Failure to take the affirmation does not exclude the application of this Code to counsel. Any counsel who comes within the ambit of a mandate as defined in Article 1 (2) of the Code will take the affirmation as soon as possible.

13. Former members ofthe Office ofthe Prosecutor and former Judges and staff ofthe Chambers and ofthe Registry (1) Former Prosecutors or members of the office of the Prosecutor and former Judges and former staff of the Chambers and of the Registry may accept mandates to act as counsel on behalf of accused persons, victims and witnesses in matters that are prosecuted before the International Criminal Court under the following conditions. (a) The former Prosecutor, member of the office of the Prosecutor, former staff of the Chambers or of the Registry, or former Judge was not involved in any matter related to the mandate they are called to accomplish.

546 • Defense in International Criminal Proceedings

(b) The former Prosecutor, member of the office of the Prosecutor, former staff of the Chambers or of the Registry, or former Judge is not in a conflict of interests and has not been privy to any information that is likely to result in a conflict of interests.

14. Adoption and amendments (1) The present Code shall enter into force in conformity with Rule 8 of the Rules. (2) In conformity with sub-rule (3) of Rule 8, the Code shall be amended according to the following procedure: (a) All proposals for amendments must be submitted to the Executive Committee of the International Criminal Bar at least 60 days before the General Assembly of the International Criminal Bar. (b) Upon reception by the Executive Committee of the International Criminal Bar, the proposals for amendments to the Code shall be circulated amongst the members of the International Criminal Bar and posted on the website of the International Criminal Bar. (c) The General Assembly of the International Criminal Bar shall adopt the proposed amendments to the Code and submit the amendments to the Registrar for approval by the Court. (d) The proposed amendments shall come into force 30 days after their adoption by the International Criminal Court.

Chapter IV Relationship between counsel and client 15. Establishing the relationship with the client (1) Establishing the relationship: (a) Counsel should discuss the objectives of the representation with the client and be able to justify the mandate. (b) Counsel should explain to the client the requirement of confidentiality and counsel-client privilege. (2) Counsel at all times must respect the autonomy of the client. (3) Counsel shall keep the client informed, on a reasonably regular basis, of the evolution and developments of the matter for which counsel has been retained.

16. The scope ofthe mandate (1) As between client and lawyer, counsel shall abide by the client's decisions concerning the objectives of representation after full consultation with the client. (2) Counsel may limit the objectives of the representation if the client consents after full and candid consultation.

Associations of Defense Counsel • 547 (3) When counsel undertakes to accomplish a mandate, counsel has the authority and duty to prepare and file all the required motions and take any other required and lawful actions in the client's name in order to fulfil the mandate. (4) Authority reserved to a counsel: (a) to refuse to perform, counsel, or assist future or ongoing acts in the representation that counsel reasonably believes to be unlawful; (b) to make decisions or take actions in the representation that counsel reasonably believes to be required by law or an order of a court; (5) Counsel shall conduct an adversarial defence unless otherwise instructed by the client after full consultation resulting in the confirmation of such a decision

17. Instructions from the client (1) Counsel may receive oral instructions from a client regarding any matter. When instructions concern essential matters of a mandate as defined in articles 15 and 16 of the Code, it is preferable they be in writing. Failure to get instructions in writing does not vitiate the instruction, nor does it constitute misconduct.

18. Refusal toaccept a mandate (1) Counsel has the right to refuse to accept a mandate for any reason that is non-discriminatory under Article 9 without stating such reasons. (2) Counsel has a duty to refuse to accept a mandate because of a conflict of interest unless permitted under Article 7. (3) Counsel shall refuse to accept a mandate when counsel does not posses the required competence and skill to fulfil the mandate. (4) Counsel shall refuse to accept a mandate when counsel is incapable of dealing with the matter promptly and diligently. (5) Counsel shall refuse a mandate in any case in which the client has expressed his or her unequivocal desire not to be represented by such counsel. (6) Any confidential communications made by the client or counsel prior to counsel refusing to accept a mandate remain confidential.

19. The withdrawal ofcounsel from a mandate (1) Counsel shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (a) the representation will result in a violation of these rules or other law; (b) counsel's physical or mental condition materially impairs the counsel's ability to represent the client; or (c) counsel is discharged or the client unequivocally instructs counsel to withdraw. (2) Counsel may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

548 • Defense in International Criminal Proceedings

(a) the client persists in a course of action involving the lawyer's services that counsel reasonably believes is criminal or fraudulent; (b) the client has used counsel's services to perpetrate a crime or fraud; (c) the client insists upon pursuing an objective that the counsel considers repugnant or imprudent; (d) the client fails substantially to fulfil an obligation to counsel regarding counsel's services and has been given reasonable warning that counsel will withdraw unless the obligation is fulfilled; (e) the representation will result in an unreasonable financial burden on counsel or has been rendered unreasonably difficult by the client; (f) counsel is confronted with irreconcilable conflicting ethical duties emanating from the application of the present code and the application of any other code of ethical conduct to which counsel is required to submit; or (g) other good cause for withdrawal exists. (3) Upon termination of representation, counsel shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client of the effort to withdraw, allowing time for employment of other counsel, co-operating with successor counsel to take over the representation, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned to the source of the advance fee. Counsel may retain papers relating to the client to the extent permitted by other law.

20. The termination ofa mandate (1) A client may discharge counsel at any time, with or without cause. (2) Discharged counsel loses authority to act on behalf of the client, unless ordered to remain on the case by the court. (3) If the client discharges counsel, counsel must promptly move to withdraw from representing the client. (4) All information received by counsel in the course of the execution of the mandate shall remain confidential and privileged even after the mandate is terminated.

21. The mandate from a client with diminished capacities (1) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, counsel shall, as far as reasonably possible, maintain a normal clientcounsel relationship with the client and continue to pursue the objectives of the representation. (2) Counsel may seek the appointment of a guardian or take other protective action with respect to a client, only when counsel reasonably believes that the client cannot adequately act in the client's own interest.

Associations of Defense Counsel • 549 (a) If a guardian is appointed, counsel will inform the guardian of the mandate and the scope of counsel's responsibilities and treat the guardian as the client. (b) If the guardian instructs counsel to act in a manner that counsel knows will violate the guardian's legal duties toward the client, counsel may refuse to follow those instructions. (3) Counsel representing a client with diminished capacity and for whom no guardian or other representative is available to act, must, with respect to a matter within the scope of the representation, pursue counsel's reasonable view of the client's objectives or interests as the client would define them if able to make adequately considered decisions on the matter, even if the client expresses no wishes or gives contrary instructions.

22. Enduring duty to the client (1) The relationship of client and counsel is one of candid exchange and trust, binding counsel to utmost good faith in dealing with the client. In the discharge of that duty to the client, counsel must always act with fairness, honour, candour, and fidelity to the client. (2) The duty of counsel towards the client continues after the representation has ended.

23. Solicitation ofprospective clients and publicity (1) Counsel shall not, directly or indirectly, solicit professional employment from a prospective client with whom counsel has no prior professional relationship when a significant motive for doing so is counsel's pecuniary gain or fame. (2) Counsel shall not solicit professional employment from a prospective client even when not otherwise prohibited by the above, if: (a) the prospective client has made known to counsel a desire not to be solicited by counsel; or (b) the solicitation involves fraud, coercion, duress, harassment or a breach of professional ethics. (3) Counsel may advertise or seek personal publicity for the purpose of reaching clients or potential clients located where such advertising or personal publicity is permitted. In all circumstances the contents of the advertising or personal publicity shall provide information that is: (a) truthful; (b) respectful of counsel's obligations regarding confidentiality and privilege; (c) thoughtful, considerate and dignified.

24. Financial arrangements (fee, fee sharing, compensation) (1) Counsel's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (a) the time and labour required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;

550 • Defense in International Criminal Proceedings (b) the likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (c) the fee customarily charged by counsel for similar legal services; (d) the nature of the matter and what is at risk for the client; (e) the time limitations imposed by the client, court, or circumstances of the case; and (f) the experience, reputation, and ability of counsel performing the services. (2) The basis or rate of the fee shall be communicated to the client in writing before or within a reasonable time after commencing the representation. (3) Prohibited fees: (a) Counsel shall not enter into an arrangement for, charge, or collect a contingent fee for representing a client except in accordance with Article 7(2) c) of the Code. (b) Counsel shall not accept a fee from a third person where there would be any interference with counsel independence and loyalty to the client, a breach of confidentiality, or a conflict of interest. (c) Counsel shall not accept a fee from the client or a third person when counsel is assigned by the Registrar. (4) A division of a fee between counsel who are not in the same firm may be made only if: (a) the division relates to the services performed by each counselor, by agreement with the client, each counsel assumes joint responsibility for the representation; (b) the client is advised of and agrees with the participation of all counsel involved; and (c) the total fee is reasonable. (5) Counselor members of their staff may not share counsel's fees with anyone other than counsel, including clients, relatives, or agents of clients, but counsel may remunerate their staff from fees. (6) Counsel shall review the statements of accounts of co-counsel and counsel's staff, regarding fees and disbursements engaged in the representation of clients. (7) Counsel must ensure the client is provided with materials, documents and equipment in order to allow the client to adequately prepare a defence.

(8) All matters that relate to discussions or arrangements concerning the payment of fees for professional services rendered by counsel, the actual payment, the amount paid and the identity of the person who paid the fee for professional services, is confidential and privileged.

25. Legal Aid (1) Counsel shall inform the client, or potential client, of the availability of legal aid when the client may be eligible for assistance.

Associations of Defense Counsel • 551

26. Resolution ofdisputes regarding accounts for fees and disbursements (1) When a client has a dispute with counsel regarding the account for fees and disbursements the client or counsel shall inform the International Criminal Bar, within a period of six months of the dispute. (2) The representative of the International Criminal Bar shall make the appropriate inquires and attempt to reconcile the parties in order to reach an agreement regarding the account for fees and disbursements. (3) All matters pertaining to the dispute over fees and disbursements is confidential and the representative of the International Criminal Bar shall take the appropriate measures in order to guarantee the confidentiality of the process.

27. The role ofcounsel as advocate (1) Counsel who appear before the court appear as advocates: for the accused, for victims, for witnesses or for amicus curiae. (2) Counsel serving in one capacity should be mindful of the differing roles of other advocates in the system ofjustice, the prosecutor, counsel for the accused, for victims, for witnesses or for amici curiae, and the unique and sometimes conflicting duties and obligations those roles often place upon them.

28. The role ofcounsel as counsellor (1) In representing a client, counsel shall exercise independent professional judgement and render candid advice. In rendering advice, counsel may refer not only to law but to other considerations such as moral, reputational, economic, social, and political factors that may be relevant to the client's situation. (2) Counsel may not counselor assist a client in conduct that counsel knows to be fraudulent or criminal or in violation of a court order. (3) Counsel may, however, counselor assist a client in conduct when counsel reasonably believes: (a) that the client's conduct constitutes a good faith effort to determine the validity, scope, meaning or application of a law or court order; or (b) that the client can assert a non-frivolous argument that the client's conduct will not constitute a crime or fraud or constitute a violation of a court order. (4) When counsel knows that a client expects assistance not permitted by this Code or other law, counsel shall consult with the client regarding the relevant limitations on the counsel's conduct.

29. The representation ofaccused persons (1) Counsel should explain the nature of the charges faced by the accused, the elements of proof needed for conviction, and the potential consequences following a conviction. (2) Counsel should fully discuss the facts and law of the case with the client and the objectives of the representation.

552 • Defense in International Criminal Proceedings

30. The representation ofvictims (1) Counsel acting on behalf of victims or victims groups should explain to their clients the special nature of their status in the proceedings before the Court and inform them of their rights and recourses. Counsel should: (a) determine with the clients the objectives of the representation; (b) ensure that the clients are not subject to measures that are prejudicial or contrary to their rights and interests and that such measures are respectful of the requirements of a fair trial; (c) when a client is afforded protective measures by the Witnesses Unit of the Registrar, ensure the protection of the identity of the clients or any information relating to the client; (d) when representing a group of victims, inform the clients collectively of the potential for conflicts of interests and take measures to avoid any potential conflicts arising from divergent individual or collective interests; (2) Counsel acting on behalf of a group of victims may, with the agreement of their respective clients, enter into agreements regarding specific issues or common strategies for representation. In such circumstances, counsel cannot enter into agreements that could affect counsel's independence or loyalty to the client.

31. Communications with clients (1) Counsel shall keep a client reasonably informed about the status of any matter and promptly comply with reasonable requests for information. (2) Counsel shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (3) Upon withdrawal or termination, counsel shall take reasonable steps to convey to the former client or replacement counsel any material communication counsel receives relating to the matter involved in the representation. (4) When interviewing the client, counsel shall seek to ensure privacy essential for confidential communication between counsel and client. If the client is detained, counsel shall act reasonably to ensure privacy and, if necessary, seek adequate facilities for private discussions between counsel and the suspect or the accused.

32. Counsel called as witness (1) Counsel shall not act in a matter in which there is a substantial probability that counselor an associate of counsel will be a necessary witness except where: (a) the testimony relates to an uncontested issue; or (b) the testimony relates to the nature and value of legal services rendered in the case; or (c) substantial hardship would be caused to the client if that counsel does not so act.

Associations of Defense Counsel • 553 (2) Counsel shall not call an opposing counsel as a witness unless there is a compelling need for that counsel's testimony. If an opposing counsel has to be called as a witness, confidentiality and privilege shall be preserved, unless counsel is ordered to testify to a confidential or privileged matter by the court.

33. Duty to keep files containing documents and record ofwork accomplished in fulfilment ofmandate (1) Counsel must take necessary steps to safeguard and protect the confidentiality of documents in counsel's possession or in the possession of counsel's staff relating to the representation of a client or former client. (2) On request, counsel should allow a client or former client to inspect any document or tangible item in the possession of counsel relating to the representation, unless substantial grounds exist to refuse. (3) Counsel shall keep the files of any case before the International Criminal Court for ten years after fulfilment of the mandate unless earlier turned over to subsequent counsel or to the client, at the client's request. (4) After 10 years following the termination of the mandate, if the client or the client's representative do not want the files or the client is unavailable, counsel shall seek instruction from the International Criminal Bar on the disposal of the files, with due regard to confidentiality. (5) Counsel work-product and notes do not have to be disclosed to the client or former client.

34. Professional liability insurance (1) Any counsel accepting a mandate shall have professional liability insurance covering the rcprcscntation.l'"

Chapter V Relationship between counsel and third parties 35. Dealing with unrepresented persons (victims, witnesses and accused persons) (1) Counsel may communicate and meet with an unrepresented person when, in the client's interests, it is required by counsel's mandate. When counsel communicates with an unrepresented person counsel shall: (a) inform the person of their right to assistance from counsel, and if applicable, of their right to legal aid; (b) without infringing upon the confidentiality of the counsel-client privilege, inform the person of the interest counsel represents and the purpose of the communication;

131 It is understood that this section will come into force once the ICB has negotiated an agreement with an insurance company for this purpose. Until that moment, counsel shall inform the client of the terms of the insurance policy that covers counsel's professional liability.

554 • Defense in International Criminal Proceedings

(c) act with integrity and courtesy; (d) not coerce, threaten or harass the person or any of the person's family members, friends or relations. (2) If counsel becomes aware of a potential conflict of interests in the course of a communication or meeting with an unrepresented person counsel shall: (a) inform the person of the potential conflict if it is possible to do so without infringing upon the confidentiality of the client-counsel privilege; (b) inform the person of their right to assistance from counsel, and if applicable, of their right to legal aid; (c) abstain immediately from engaging in any further contact or communication with the person.

36. Dealing with persons represented by counsel (1) Counsel shall not communicate or meet with any person who, to counsel's knowledge, is represented or advised by another legal professional, without the consent of that other legal professional. (2) Counsel shall keep the represented person's counsel informed of any communications or meetings that take place between counsel and the represented person.

37. Dealing with witnesses generally (1) Counsel can communicate or meet with witnesses by following the procedure provided for in Articles 35 and 36 of the Code. (2) Counsel is prohibited, from offering anything to anyone for the purpose of unduly encouraging or influencing their testimony. (3) Counsel shall not coerce, threaten or harass a witness, potential witness or their family members, friends or relations. (4) The payment of an expert's fee is permissible.

38. Dealing with witnesses afforded protective measures (1) Counsel can communicate or meet with witnesses afforded protective measures when they are represented by counsel, by following the procedure provided for in Article 36 of the Code, or otherwise by communicating with the Witnesses Unit of the Registrar. (2) Counsel shall not reveal the identity of protected witnesses nor any information that may reveal their identity and whereabouts unless counsel has been specifically authorized to do so by the competent authority.

39. Statements by counsel toothers (1) All correspondence between counsel who are party to a common interest agreement pursuant to Article 6(7) shall be presumed confidential and privileged by counsel unless otherwise stipulated.

Associations of Defense Counsel • 555 (2) When counsel does not expect a particular communication to be confidential, counsel must, at the outset, state clearly that the communication between counsel is not confidential. (3) Counsel shall be honest, candid and in good faith when making statements to other counselor persons generally. (4) Neither Counsel nor counsel's staff shall make an out of court statement that a reasonable person would expect to be disseminated by means of public communication if the counsel knows or reasonably should know that it is likely to create a grave danger of imminent and substantial harm to the fairness of a proceeding before the court. (5) Notwithstanding paragraph (4), counsel may make a statement that a reasonable counsel would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the counselor the counsel's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (6) Any statement made by counselor counsel's staff concerning a proceeding before the court must not offend the dignity and decorum of the court and must not demonstrate disrespect for the law.

40. Respect for rights ofthird persons (1) Counsel shall under all circumstances respect the rights of third parties.

Chapter VI Relationship with other counsel 41. Co-counsel and other members ofthe team acting on behalf ofthe client (1) Counsel has a duty to supervise the actions of all other members of the team, directly under their control, including investigators, law clerks, researchers, and paralegals to ensure that these ethical standards are met by the team. (2) Co-counsel are authorized to act on behalf of a client. (3) The client, after consultation, shall designate one of the co-counsel as lead counsel.

42. Counsel ofvictims and witnesses (1) Counsel for victims and witnesses shall recognize and respect the duties of independence of prosecutors and counsel for the accused. (2) Counsel for victims and witnesses: (a) should advise their clients of the legal and tactical consequences of discussing the facts or their potential testimony with other counselor investigators; (b) should not advise their clients to refuse to discuss the facts or their potential testimony with other counsel, the Prosecutor or investigators. (3) Counsel for victims may agree on how to conduct a defence to their mutual benefit. Counsel must, however, always provide independent representation for their client.

556 • Defense in International Criminal Proceedings

Counsel will not enter into agreements to conduct a defence that sacrifices independence and loyalty to their clients. (4) Counsel for victims who become privy to a communication or an information that is confidential or privileged from a victim or the victim's counsel shall protect the confidentiality of that information.

43. Counsel ofaccused persons (1) Counsel for accused shall recognize and respect the duties of independence of prosecutors and victims' and witnesses' counsel. (2) Counsel for the accused should not advise witnesses to refuse to discuss the facts or their potential testimony with counsel for a co-accused or victims' counsel, the Prosecutor or investigators.

44. Counsel ofco-accused persons (1) Counsel for co-accused may agree on how to conduct a defence to their mutual benefit. Counsel must, however, always provide independent representation for their client. Counsel will not enter into agreements to conduct a defence that sacrifices independence and loyalty to their clients. (2) Counsel for co-accused persons who are a party to a common interest agreement pursuant to article 6(7) and become privy to confidential or privileged information or a communication from a co-accused or his or her counsel shall protect the confidentiality of that information.

45. Obligations ofcounsel towards other colleagues generally (1) Counsel shall recognise all other counsel as professional colleagues and shall act honestly, fairly, and courteously towards them and their staff at all times, in or out of court. (2) Counsel must always recognize that counsel are members of a profession with duties to both their clients and the court and a duty to further the fair and efficient administration ofjustice. (4) Some matters may be handled informally between counsel, without prejudice to the client's rights, and counsel should attempt to do so before presenting the matter to the court. (5) At all times, in and out of court, counsel shall treat other counsel as he or she expects to be treated.

Chapter VII Relationship with the Office ofthe Prosecutor 46. Professional courtesy in dealings with members ofthe Office ofthe Prosecutor (1) Counsel shall at all times maintain a courteous and professional relationship with the Prosecutor and members of the Office of the Prosecutor.

Associations of Defense Counsel • 557 (2) In dealing with the Prosecutor and members of the Office of the Prosecutor, counsel should be mindful of the prosecution's duty to disclose all collected evidence and relevant information and must be diligent in seeking such disclosure. (3) Requests for disclosure shall not infringe on the confidentiality of the client-counsel privilege.

Chapter VIII Relationship with the Judges ofInternational Criminal Court 47. Immunity ofCounsel (1) The obligations set forth in this Code do not limit the immunity of counsel for any oral or written statements made while representing a client.

48. Demeanour in Court (1) While maintaining due respect and courtesy towards the court, counsel shall defend the client's interests honourably and fearlessly without regard to counsel's own interests or to any consequences to counselor to any other person.

49. Candour in representations before the Court (integrity in dealing with the evidence) (1) Counsel shall not knowingly and deliberately: (a) make a false statement of material fact or law to the court; (b) offer evidence that counsel knows to be false or assist a witness to testify falsely or offer false evidence. If a lawyer has offered material evidence and becomes convinced beyond reasonable doubt of its falsity, the lawyer shall take reasonable remedial measures. (2) Counsel may refuse to offer evidence that counsel reasonably believes is false, irrelevant, or lacks probative value.

50. Integrity ofmaterial physical evidence (1) Counsel shall at all times maintain the integrity of material physical evidence. (2) If counsel reasonably believes that the evidence will not be destroyed or tampered with, counsel may refuse to accept the evidence or return it to the source, explaining to all persons necessary the laws concerning tampering with and destruction of evidence and the interference with the collection of evidence. (3) If counsel reasonably believes that the evidence may be destroyed or tampered with, or if the client consents, counsel shall consult with the Committee on Ethics of the International Criminal Bar to determine what is to be done with the evidence. (4) In all circumstances counsel must ensure that any act of production relating to such evidence shall not be linked to the client or the client's counsel before the finder of fact.

558 • Defense in International Criminal Proceedings

51. False or misleading statements (1) Counsel shall never knowingly give false or misleading information to the client, court, or another counselor party, whether involving an assertion of fact or law. (2) Counsel shall take all required measures to correct any false or misleading representation made to the client, court or another counselor party as soon as counsel becomes aware that such representation was inaccurate. (3) Counsel shall not ask a question of a witness or make a statement of fact to the court without a good faith basis for the question or statement.

52. Respect for the Rules ofthe Court (1) Counsel who appears or takes part in a case before the court must comply with these rules of conduct, the rules of procedure, and the rules of evidence. (2) Counsel shall at all times have due regard to the fair conduct of the proceedings.

53. Communicating with a Judge without the presence ofthe opposing party (1) Counsel shall not communicate with a Judge about the merits of a case ex parte, except as authorized by the Rules or with the permission of the opposing party or other counsel, and then only for the purpose allowed. In a permitted ex parte proceeding, counsel shall inform the court of all material facts known to counsel that will enable the court to make an informed decision, whether or not the facts are adverse. (2) Counsel shall not transmit any document or other material to a Judge except as authorized by the Rules or with the permission of the opposing party or other counsel. (3) The opposing party or other counsel shall be given adequate notice of any meeting or hearing with the Court to be able to participate.

Chapter IX Relationship with the Registry 54. When counsel isappointed by the Registry toact on behalf ofa client (1) Counsel appointed by the Registry to act on behalf of a client shall act toward the client with the same standards as counsel would if the client had retained counsel without the intervention of the legal aid. (2) In such circumstances, counsel shall at all times act in the client's best interests and in full independence from the Registry. (3) Counsel appointed by the Registry to act on behalf of a client shall request all materials and information related to the matter that concerns the client in the Registry's possession.

55. Submission offee accounts for clients entitled to legal aid (1) When counsel accepts an appointment to represent a person on legal aid, counsel shall not accept or solicit a fee or require payment for a disbursement when such fee or disbursement is covered by legal aid.

Associations of Defense Counsel • 559 (2) Counsel shall with integrity and in good faith submit statements of accounts regarding fees and disbursements engaged in the representation of clients eligible for legal aid in conformity with the applicable Rules and Regulations. (3) Lead counsel shall review the statements of accounts of co-counsel and counsel's staff, regarding fees and disbursements engaged in the representation of clients eligible for legal aid.

56. Resolution ofdisputes regarding submission offee accounts with the Registry (1) Disputes with the Registry over an account for fees and disbursements shall be dealt with in a respectful and courteous manner, without infringing upon the confidentiality of the counsel-client privilege. (2) If counsel is unable to resolve the dispute over an account for fees and disbursements with the Registry, counsel shall inform the International Criminal Bar and seek instructions and guidance.

Chapter X The Disciplinary Regime 57. Conflict between disciplinary regimes (1) The present Chapter is not intended to prohibit or limit in any matter the disciplinary powers of a national legal association that may apply to a counsel subject to this Code.

58. Definition ofprofessional and ethical misconduct (1) Professional misconduct referred to in this Code concerns the actions of counsel in the execution of their mandates. While misconduct as defined in this Code may, in some cases, also constitute "Offences Against the Administration of Justice" or "Misconduct Before the Court" as defined in Articles 70 and 71 of the Rome Statute of the ICC, this Code and its Disciplinary Regime do not concern the enforcement or the sanctions that may result from the application of Articles 70 or 71 of the Rome Statute of the ICC. (2) A material violation of this Code or an intentional attempt to commit such constitutes professional misconduct by Counsel.

59. Defining principles ofthe disciplinary regime. (1) Independence of counsel requires self-governance with respect to matters concerning misconduct. In order to ensure the complete independence of counsel, this Code shall be enforced through a peer review process. (2) The Council of the International Criminal Bar shall elect counsel chosen from the membership of the International Criminal Bar to fill the functions required for the proper governance of matters pertaining to the misconduct of counsel. (a) Director of the Office of Disciplinary Investigations: A counsel with at least 10 years of continuous legal experience and a recognized competence in the field of legal ethics, shall be elected to direct the Office of Disciplinary Investigations.

560 • Defense in International Criminal Proceedings Other counsel, with the same qualifications, may be elected by the Executive Committee of the International Criminal Bar to assist the director of the Office of Disciplinary Investigations. The election to these positions shall be for a nonrenewable term of 5 years. The task of the Office shall be to investigate and prosecute complaints of misconduct made against counsel. (b) Secretary of the Disciplinary Committee: A counsel with at least 10 years of continuous legal experience, shall be elected Secretary of the Disciplinary Committee. The task of the Secretary shall be to administer the Secretariat of the Disciplinary Committee. The Secretary of the Disciplinary Committee shall be elected for a non-renewable term of 7 years. (c) Disciplinary Committee: A group of counsel, the number of which shall be determined by the Council of the International Criminal Bar, with at least 15 years of continuous legal experience, shall be elected to the Disciplinary Committee. The election to this position shall be for a non-renewable term of 5 years. The Disciplinary Committee shall be charged with the task of holding public Disciplinary Hearings into the alleged misconduct of counsel subject to this Code. Members of the Disciplinary Committee shall take an oath of discretion relating to the exercise of their function. The Disciplinary Committee shall adopt rules pertaining to procedural matters before the Disciplinary Panel. (d) Chair of Disciplinary Committee: Counsel with at least 15 years of continuous legal experience and a recognized competence in the field of legal ethics, shall be elected Chair of the Disciplinary Committee. The election to this position shall be for a non-renewable term of 5 years. The task of the President of the Disciplinary Committee shall be to organize the Disciplinary Panels that will hold the disciplinary hearings and administer the Disciplinary Committee. (e) The Disciplinary Appeal Committee of the Court: A Chamber composed of three members of the Court. (f) The Director of the Office of Disciplinary Investigations and counsel elected to assist the Director, the Secretary of the Disciplinary Committee and the members of the Disciplinary Committee shall, at the end of their term, hold their office or function until such time as they have been replaced.

60. Complaints against counsel (1) Complaints against counsel regarding misconduct as defined in this Code may be made by any person whose rights or interests could be affected by the alleged misconduct. (2) The complaint shall be made in writing, identifying the complainant and the counsel against whom the complaint is made, and shall describe in sufficient detail the alleged misconduct of counsel. The complaint may refer to more than one or more acts of alleged misconduct, but each act of misconduct must be particularized with sufficient detail. (3) The complaint shall be made to the Secretary of the Disciplinary Committee and shall remain confidential unless the Office of Disciplinary Investigations determines that a prosecution of the alleged misconduct is warranted.

Associations of Defense Counsel • 561

61. Statute oflimitations (1) Complaints against counsel regarding misconduct as defined in this Code shall be submitted no later than 12 months after the termination of the mandate or no later than12 months after the complainant should have reasonably known about the existence or occurrence of the alleged misconduct. (2) For substantial reasons, the Chair of the Disciplinary Committee may extend the delay to submit a complaint to the Secretary of the Disciplinary Committee after the above-mentioned period.

62. Right ofcounsel to legal representation regarding disciplinary proceedings (1) Counsel who is under investigation for alleged misconduct or who is charged with an offence under this Code shall be entitled to representation by an attorney. The attorney will be authorized to act on behalf of counsel in all matters pertaining to the investigation of the alleged misconduct or the prosecution of the alleged misconduct before the Disciplinary Panel. (2) The national legal association of which counsel is a member is entitled to submit written arguments or comments regarding any matter under investigation.

63. Duty ofCounsel tocooperate with the inquiry (1) Counsel who is under investigation for alleged misconduct shall cooperate with the Office of Disciplinary Investigations by answering all questions and by providing pertinent information. However, counsel may refuse to answer questions or provide materials on the basis that the answers to the questions or the contents of the requested materials may tend to incriminate counsel. The refusal to cooperate under such circumstances cannot be used against counsel. (2) Counsel may not invoke the counsel-client privilege or the duty of confidentiality to refuse to cooperate or disclose information to the Office of Disciplinary Investigations in a matter pertaining to an inquiry into the counsel's alleged misconduct when the client has waived the privilege or counsel's alleged misconduct concerns conduct in which the client was involved, the instructions received from the client or counsel's representation of the client.

64. Independence ofthe prosecution in matters relating to misconduct (1) The Office of Disciplinary Investigations shall fulfil its duties with total independence from the International Criminal Bar. (2) The Office of Disciplinary Investigations shall submit to the President of the International Criminal Bar an annual report of its activities indicating the number of complaints that were investigated, the number of prosecutions that have been initiated before the Disciplinary Committee and the expenses related to the general administration of the Office of Disciplinary Investigations. (3) The Office of Disciplinary Investigations shall establish a working relation with the Office of the Registrar of the Court for the purpose of obtaining information relating to its duties.

562 • Defense in International Criminal Proceedings (4) The Office of Disciplinary Investigations shall: (a) Investigate every complaint concerning the alleged misconduct of counsel transmitted by the Secretary of the Disciplinary Committee. (b) Indicate in writing to the Secretary of the Disciplinary Committee, within 6 months from the time the complaint was made, whether the alleged misconduct by counsel warrants a prosecution. If the investigation cannot be concluded within a period of 6 months, advise in writing both the Secretary and the complainant of the reasons for the delay and the additional time that will be required to complete the investigation. (c) Provide counsel with an opportunity to respond in writing to the allegations of the complaint before deciding if a prosecution of the matter relating to the complaint is warranted. (d) Attempt to reconcile the parties or mediate the matter that gave rise to the alleged misconduct. (e) Prosecute matters when it is determined that a prosecution of the alleged misconduct is warranted by probable cause. (f) When a complaint is not prosecuted, advise the complainant in writing of the reasons for the decision. (g) The Director shall consider any additional information the complainant may offer, following a decision not to prosecute the alleged misconduct, within 90 days from the time the decision was made. (h) Members of the Office of Disciplinary Investigations are empowered to consult all files, documents, recordings, electronic or other, in the possession of counsel who is under investigation in accordance with the provisions of article 63 (1) . (i) The Office of Disciplinary Investigations may require that counsel under investigation respond to questions and provide materials, in what ever format they may be, for the purpose of the investigation.

U)

All members of the Office of Disciplinary Investigations shall take an affirmation by which they undertake to keep secret any information pertaining to a complaint or an investigation, including the name or any other information, that could lead to the identification of the counsel under investigation.

(k) All members of the Office of Disciplinary Investigations must protect the secrecy of privileged and confidential information at all times. (1) The Director shall receive the information concerning the disagreement between counsel and client regarding accounts for fees and disbursements and shall follow the procedure set out in article 26.

65. Secretary ofthe Disciplinary Committee (1) The Secretary of the Disciplinary Committee shall fulfil the following duties: (a) Receive all complaints regarding allegations of misconduct by counsel. (b) Forward such complaints in confidence to the Office of Disciplinary Investigations.

Associations of Defense Counsel • 563 (c) When the Office of Disciplinary Investigations considers that a complaint should be prosecuted, the Secretary shall: transmit a copy of the complaint to the accused counsel; convene the parties to appear before the Chair of the Disciplinary Panel to determine all preliminary matters, confirm in writing to all the parties the date agreed upon for the disciplinary hearing, make all necessary preparations for the hearing, including, issuing subpoenas, reserving translators and recording the proceedings of the disciplinary hearing and inform the national legal association to which counsel belongs of the proceedings. (d) Keep a registry of all the proceedings and judgements of the Disciplinary Committee. (e) Allow for the inspection of all public documents found in the registry of the Secretary of the Disciplinary Committee. (f) If sanctions and costs are imposed by the Disciplinary Panel, make arrangements for the execution of the sanctions and costs. (g) Where an appeal against the decision of the Disciplinary Panel is filed, the Secretary shall co-operate with the Registrar for the hearing of the appeal before the Disciplinary Appeal Committee of the Court. (h) Take an affirmation undertaking to keep secret any information pertaining to a complaint or an investigation or any matter that is not public regarding a disciplinary hearing, including names or any other information, that could lead to the identification of the counsel under investigation.

66. The Disciplinary Panel (1) The Chair of the Disciplinary Committee shall appoint three members of the Disciplinary Committee to form a Disciplinary Panel when a prosecution for misconduct is initiated against counsel. (2) The members of the Disciplinary Panel shall designate a Chair of the Panel. (3) The Disciplinary Panel shall hold a hearing regarding the alleged misconduct of counsel as a three member panel at all times unless one member can no longer continue and the parties agree to continue the proceedings with a two member panel. (4) All proceedings before the Disciplinary Panel must be conducted in the presence of counsel who are the subject matter of the complaint or the attorney representing counsel. (5) Under exceptional circumstances, on a showing of clear and convincing evidence, the Disciplinary Panel may refer a matter for an emergency interim ruling by the International Criminal Court until the matter of the alleged misconduct is disposed of. After conducting a hearing, the Court may impose the emergency measure. (6) The Disciplinary Panel shall hold public hearings unless one of the parties requests an in camera hearing or an order for non-publication of the proceedings until such time as the potential prejudice that would be caused by the publication of the proceedings ceases to exist. (7) The hearings of the Disciplinary Panel shall be held at the seat of the International Criminal Bar at The Hague, Netherlands, or for good cause at any other place determined by the Disciplinary Panel.

564 • Defense in International Criminal Proceedings (8) The proceedings before the Disciplinary Panel shall be held in any of the working languages of the International Criminal Court with appropriate provisions made for complainants and counsel to participate fully in the hearings in their native language.

67. Adversarial process (1) The hearing before the Disciplinary Panel shall be conducted in conformity with the principles of the adversarial process. (2) The representative of the Office of Disciplinary Investigations shall disclose to accused counsel all materials and evidence gathered during the course of the investigation into the alleged misconduct. The materials and information must be disclosed to counsel before a date for the hearing by the Disciplinary Panel is set. (3) Accused counsel is entitled to question witnesses in order to test their reliability and credibility, and present evidence in defence. Accused counsel shall have the right to be the last to examine any witness.

68. Burden ofproof and evidence (1) The accused counsel shall be presumed innocent of misconduct until proven guilty by clear and convincing evidence.l'" (2) Witnesses appearing before the Disciplinary Panel shall make a solemn declaration as set out in the Rules before giving evidence. (3) The Disciplinary Panel may consider all evidence, oral, written or in any other format, which is relevant and has probative value.

69. Findings by the Disciplinary Panel (1) The Disciplinary Panel may dismiss a complaint if it finds the alleged misconduct is unfounded in fact or in law on a preliminary motion or after having considered the evidence of the representative of the Office of Disciplinary Investigations even before the accused counsel presents a defence. (2) At the end of the hearing, after the evidence has been presented and arguments made by both parties, the Disciplinary Panel may conclude its proceedings without a finding of misconduct or conclude that the accused counsel committed the alleged misconduct. (3) The decision of the Disciplinary Panel shall be rendered by the majority of its members and shall be accompanied by written reasons, to which separate or dissenting opinions may be appended.

132 We believe the burden to establish misconduct should be higher than a balance of probabilities and just short of beyond reasonable doubt. The terms clear and convincing evidence is used in the USA and similar terms are used in Quebec.

Associations of Defense Counsel • 565

70. Sanctions that may be imposed and costs (1) The Disciplinary Panel may make the following recommendations or orders, or impose the following sanctions against counsel after a finding that counsel committed the alleged misconduct: (a) Make a recommendation regarding counsel's future conduct. (b) Recommend that counsel complete a specific course or courses before being authorized to accept mandates as defined in Article 2(2) of the Code. (c) Recommend that counsel be supervised by another counsel for a determined period of time not exceeding 1 year. (d) Reprimand counsel and if necessary, order the publication of the reprimand. (e) When assets have been misappropriated by counsel, make an order for restitution. (f) Suspend counsel's ability to accept or complete mandates as defined in Article 2 (2) of the Code for a determined period of time not exceeding 2 years. (g) Order that counsel be prohibited from accepting or completing mandates as defined in Article 2(2) of the Code. (h) Order counsel to pay costs.

71. Notice tothe Registrar, the Prosecutor and other interested parties (1) At the end of a Disciplinary Hearing, the Secretary of the Disciplinary Committee shall inform the complainant, the Office of the Registrar, the Office of the Prosecutor and the respective national legal association of which counsel is a member of the findings of the Disciplinary Panel, and in the event of a conclusion that the accused counsel committed the alleged misconduct, of the sanction imposed.

72. Disciplinary Appeal Process (1) Appeals against a decision of the Disciplinary Panel regarding the alleged misconduct of counselor the imposition of a sanction shall proceed before the Disciplinary Appeal Committee of the Court. Appeals may be filed by the accused counsel found to have committed the alleged misconduct and by the Director of the Disciplinary Investigations. (2) The Disciplinary Appeal Committee of the Court shall hear appeals concerning the findings of the Disciplinary Panel regarding the alleged misconduct and the sanctions imposed by the Disciplinary Panel. (3) The Disciplinary Appeal Committee of the Court exercises the following powers: (a) In the case of a finding by the Disciplinary Panel that the accused counsel committed the alleged misconduct, allow the appeal if it is shown that the conviction results from an unreasonable finding, or an erroneous application or understanding of the applicable law, likely to have affected the conclusion. When the appeal against a conclusion that the accused counsel committed the alleged misconduct is allowed the Disciplinary Appeal Committee of the Court may:

566 • Defense in International Criminal Proceedings

i)

Annul the finding that the accused counsel committed the alleged misconduct and make a finding that counsel did not commit the alleged misconduct, or

ii) Annul the finding that the accused counsel committed the alleged misconduct and order that a new hearing be held before a different Disciplinary Panel. iii) Substitute its own finding for that of the Disciplinary Panel. (b) In the case of a finding by the Disciplinary Panel that counsel did not commit misconduct, allow the appeal if it is demonstrated that the finding results from an erroneous application or understanding of the applicable law that is likely to have affected the conclusion of the Disciplinary Panel or that an important misapprehension of the evidence lead to such a finding. When the appeal is granted against a finding by the Disciplinary Panel that counsel did not commit misconduct the Disciplinary Appeal Committee of the Court may: (i) Annul the decision and where the Disciplinary Appeal Committee of the Court concludes no other result is possible, declare that counsel committed the alleged misconduct and remit the matter to the Disciplinary Panel for the imposition of a sanction. (ii) Annul the decision and order that a new hearing be held before a different Disciplinary Panel. (iii) Substitute its own finding for that of the Disciplinary Panel. (c) In the case of an appeal against a sanction imposed by the Disciplinary Panel, the Disciplinary Appeal Committee of the Court may confirm the sanction imposed or grant the appeal and modify the sanction imposed if it is overly lenient or excessively severe. (d) Make orders pertaining to costs. (4) At the end of a Disciplinary appeal hearing, the Office of the Registrar shall inform the complainant, the Office of the Prosecutor, the International Criminal Bar and the respective National legal association of which counsel is a member of the findings of the Disciplinary Appeal Committee, and in the event of a conclusion that the accused counsel committed the alleged misconduct, of the sanction imposed.

73. Time to Appeal tothe Disciplinary Appeal Committee ofthe Court and procedure (1) An appeal may be filed against a finding regarding the alleged misconduct, a sanction, a finding regarding the alleged misconduct and a sanction, as the case may be, by serving a Notice of Appeal to the Registrar within 60 days of the decision in the case of a finding that counsel did not commit the alleged misconduct and in the case of a finding that counsel did commit the alleged misconduct, within 30 days of the sanction imposed. (2) The Disciplinary Appeal Committee of the Court may grant an extension of the time to file a Notice of Appeal. (3 ) Upon reception of the Notice to Appeal, the Registrar of the Disciplinary Appeal Committee of the Court shall make all the necessary arrangements for the appeal to be heard.

Associations of Defense Counsel • 567 (4) The Notice of Appeal shall set out the grounds for which the Disciplinary Appeal Committee of the Court should grant the appeal and be drafted according to the required procedure. (5) Within 6 months of the filing of the Notice of Appeal the appealing party shall file written arguments to the Registrar of the Disciplinary Appeal Committee of the Court and the opposing party. (6) The opposing party shall have 3 months to respond to the appealing party by filing written arguments with the Registrar of the Disciplinary Appeal Committee of the Court and the appealing party. (7) The Disciplinary Appeal Committee of the Court may grant an extension of the time to file a Notice of Appeal or written arguments. (8) The national legal association of which counsel is a member is entitled to submit written arguments or comments to the Disciplinary Appeal Committee of the Court regarding the matter under appeal.

List ofdocuments consulted Treaties and Codes 1.

Rome Statute of the International Criminal Court, Adopted at the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Rome Italy, June 15-July 17 1998

2.

Finalized draft text of the Rules ofProcedure and Evidence for the International Criminal Court.

3.

Code ofProfessional Conduct for Counsel Appearing Beforethe International Tribunal for the Former Yugoslavia. As amendedJuly 12, 2002.

4.

Code of Professional Conduct for Counsel Appearing Before the International Tribunal in Rwanda

5.

The Code ofProfessional Conduct for Prosecutors of the International Criminal Court. Draft prepared by the Secretariat of the International association of Prosecutors and the Coalition for the International Criminal Court: For consultation and Peer review.

6.

Code of Conduct for Lawyers in the European Union. Adopted by 18 National delegations representing the Bars and Law Societies of the European Union at the CCBE Plenary session held in Lyons on November 28th, 1998.

7. Harmonised Practice Rules for the French Bars adopted March 26th and 27th, 1999 by the Plenary Session of the National Bar Council. Decision No. 1999-001. 8.

American Bar Association Model Rules ofProfessional Conduct (2002 Edition).

9.

American College of Trial Lawyers Canadian Code of Trial Conduct. Adopted by the Canada-United States Committee of the American College of Trial Lawyers, October 1999.

10. Canadian Bar Association Code of Professional Conduct (Adopted by Council, August 1987, Revised Edition 1996).

568 • Defense in International Criminal Proceedings 11. Code de deontologie des avocats. R.R.Q. 1981 c.B-l, r.l. In force since August 1st, 1982. Code des Professions L.R.Q. c. C-26, Loi sur le Barreau, L.R.Q. c. Bl. [Quebec Legislation] 12. The Code ofProfessional Conduct for Counsel Appearing Before the ICC. Draft proposal of the International Bar Association. 13. New York Code ofProfessional Responsibility 14. American Bar Association Standards for Criminal Justice, The Defense Function (2d Ed. 1991) 15. Restatement (Third) of the Law Governing Lawyers (US source)

16. Press Release of the Plenary Session of the Judges of the International Criminal Tribunal for the former Yugoslavia and Rule 44.

Authors 17. David Luban, Lawyers andJustice, An Ethical Study, (1988) Princeton University Press 18. John Wesley Hall, Jr., Professional Responsibility of the Criminal Lawyer (2d ed. 1996) published by Thomson-West. 19. Michel Proulx and David Layton, Ethics and Canadian Criminal Law, Irwin Law Inc. 2001, Toronto. 20. Gavin MacKenzie, Lawyers & Ethics: Professional Responsibility and Discipline, Carswell a Thompson Company 21. Bernard BEIGNIER, Bernard BLANCHARD,Jean VILLACEQUE (sous la dir.) , Droit et deontologie de la profession d'avocat, ed, P.U.F., colI. Droit fondamental, 2002, 542 p. 22. Jacques HAMELIN et Andre DAMIEN, Les regles de la profession d'avocat, geme ed., 2000, ed, Dalloz, 563 p. 23. Raymond MARTIN, Deontologie de l'avocat, 6eme ed., 2001, ed, Litec, 286 p. 24. Jean-Claude WOOG, Marie-Christine SARI, Stcphanc WOOG, Claire GOUDINEAU, Pratique professionnelle de l'avocat, -leme ed., 2001, ed, Litec, 1042 p

7.4. EUROPEAN ASSOCIATIONS OF DEFENSE COUNSEL-DEVELOPMENT AND ROLE* 7.4.1. Introduction The institution of an exclusive and independent European defense counsel's association has not yet been realized. There is, in fact, a plethora of different lawyers' organizations throughout Europe, but so far these individual groups work separately from each other. We fail to have a coherent international representation of all defense counsel in Europe. One of the reasons might be that an elaborate description of the functions of a European defense counsel does not exist. Compared to defense lawyers at special international courts, whose work is subject to the given professional rules and the

*

Section 7.4 was written by Wolfgang Bendler.

Associations of Defense Counsel • 569 code of conduct of the specific court, the European defense counsel has no identity of his own. He still remains part of the judicial system of his home country and assumes a "European" function only by cooperating with defense counsel from other EU member states. Unlike with the international courts mentioned in the preceding chapters, there is no common penal procedure and no uniform substantive penal law equally applicable in all member states. The lack of coherence of a European defense reflects the specific divergent forms of the development of a European legal and judicial area.

7.4.1.1.

Security Versus Liberty

In order to understand the reasons for this lack of coherence, it is useful to have a look at the development ofjudicial cooperation in Europe since the Maastricht Treaty signed in 1992. 133 The history of integration of national judicial systems since has been dominated by the principle of "security." Cooperation in the fields of police and justice was promoted by the fear of society facing the threats of "organized crime" and "terrorism." Under this influence, the historic achievement of civil rights had to give way to the efficiency of police and judicial intervention for the sake of security. All judicial measures taken under international conventions, inter-governmental cooperation or framework decisions were guided by the aim of reinforcing and strengthening the judicial system in its fight against the menace to security. From as early as the 1990s, a number of quite efficient instruments of police and judicial cooperation have been implemented. Apart from EUROPOL134 in The Hague (since 1995), other newly created institutions are the "European Judicial Network" (EJN) 135 and EUROJUST,136 active since 2002. These new instruments strengthen the means and measures of investigation and prosecution without really accounting for the aspect of procedural safeguards. At the flashpoint between security and liberty it seems quite comprehensible that the process of institutionalization of a European criminal defense has not been put on the agenda by the member states or the European Commission.

7.4.1.2.

Failings ofthe Past

On the other hand, at least during the 1990s, national defense counsel organizations in Europe undoubtedly failed to take part in the alignment process with a view to gaining a strong presence and ensuring the professional interests of defense lawyers. There are many reasons for that: diversity of legal systems (civil/common law), adherence to the traditional concept of "ordre public" governing the law of extradition and mutual assistance, lack of practice in transnational cases, language problems, etc. However, the state of inactivity ended at the very moment when national defense The Treaty of European Union, at www.europa.eu.int/en/record/mt/top.html. Europol Convention, Official journal C 316 of Nov. 27, 1995. 135 Official journal L 174,june 27, 2001. 136 Eurojust stimulates and improves the coordination of investigations and prosecutions between competent authorities in the member states, improves cooperation between the competent authorities of the member states, in particular by facilitating the execution of international mutual legal assistance and the implementation of extradition requests and supports the competent authorities of the member states in order to render the investigations and prosecutions more effective when dealing with cross boarder crime. See www.eurojust.eu.int. 137 Framework Decision on the European Arrest Warrant and the surrender procedures between Member States, Official journal of the European Communities, L 190/1,july 18, 2002. 133 134

570 • Defense in International Criminal Proceedings counsel became directly concerned by the European Arrest Warrant (EAW) .137 Defense counsel associations of many member states intervened in the discussion on the EAW Green Paper because defense strategies at the national level were suddenly directly influenced by this new measure of cooperation between member states. The EAW made defense counsel realize that the price to be paid for the advantages of Europe growing together could be a loss of rights of suspects or defendants and a reduced judicial control resulting from that first application of the principle of mutual recognition between member states. The EAW can be considered the crucial experience for European associations to understand the impact of a harmonization of national legislations guided by the principles of efficiency and rapidity instead of safeguarding civil and procedural rights. The following survey will first give a summary of conventions, treaties, laws, framework decisions, green papers and directives relevant in the context of fundamental rights of suspected persons and defendants, procedural safeguards and professional practice of defense counsel in Europc.l'f In addition, it will give a compilation of existing European defense associations and national initiatives, complemented by statements and comments on some important defense counsel organizations and NGOs. Finally some proposals for monitoring as well as for initiatives to found a European network of defense in criminal proceedings will be presented.

7.4.2. Treaties, Conventions, Charters, Drafts 7.4.2.1.

The Treaty on European Union (TEU)139

In 1997, the Amsterdam Treaty explicitly amended the Treaty on European Union (TEU)-the so called Maastricht Treaty signed on February 7, 1992-, strengthening the European Union's competence for police andjudicial cooperation in criminal matters so as to create an area of freedom, security and justice. One of its underlying principles expressed in Article 6 was that human rights and fundamental freedoms would be respected within the Union. Article 6 TEU140 states that the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. It is pointed out that these principles are common to all member states. The TEU refers to the fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on November 4, 1950, and resulting from the constitutional traditions common to the Member States as general principles of Community law.

7.4.2.2.

The European Convention for the Protection ofHuman Rights and Fundamental Freedoms (ECH R)141

On the basis of the provision in Article 6 TEU, the Commission has taken the European Convention for the Protection of Human Rights (ECHR) as the starting point for the assessment of minimum standards that are common by virtue of the fact that all

The most important articles and texts are to be found in Annex. See http://europa.eu.int/eur-lex/en/treaties/dat/C_2002325EN.000501.html. 140 See Annex 1 in Section 7.4.9.1, Article 6 TED. 141 Signed on Nov. 4, 1950 by the members of the Council of Europe with Protocol Nos. 1, 4, 6, 7, 12 and 13; see http://www.echr.coe.int/Convention/webConvenENG.pdf. 138 139

Associations of Defense Counsel • 571 member states are parties to the TEU. With regard to our interest in European defense issues, we have to emphasize the extraordinary importance of Article 6 ECHR142 for the safeguard of procedural rights of suspects and for the institution of criminal defense, in particular the guarantee of fair trial, including but not limited to the rights: •

to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law;

•

of presumption of innocence.

Moreover, for every individual charged with a criminal offense the following minimum rights are guaranteed: •

the right to be informed promptly, in a language that the defendant understands and in detail, of the nature and cause of the accusation against him;

•

to have adequate time and the facilities for the preparation of his defense;

•

to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests ofjustice so require;

•

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

•

to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The permanent jurisdiction of the European Court of Human Rights (ECtHR) stresses the fact that the Convention is intended to guarantee not only rights that are theoretical, but rights that are practical and effective. In view of the overwhelming importance of the right to a fair trial in a democratic society, this must be particularly valid for the rights of the defense derived from the Convention.

7.4.2.3.

Charter of Fundamental Rights ofthe European Union (CFREU)143

In December 2000, the European Parliament, the Council and the European Commissionjointly signed and solemnly proclaimed the Charter of Fundamental Rights of the European Union (CFREU). It covers the whole range of civil, political, economic and social rights of European citizens, by synthesizing the constitutional traditions and international obligations common to the member states. A significant aspect of the Charter is that it affirms that the European Union is indeed a political community, rather than merely an economic organization. It asserts that respect for fundamental rights will be at the foundation of all European law. It is intended to integrate the Charter into the European Constitution. The draft of the CFREU has already received great attention in legal commentaries although it has not been referred to by the European Court ofJustice (ECJ). The rights are divided into six sections: Dignity, Freedom, Equality, Solidarity, See Annex 2 in Section 7.4.9.2, Article 6 ECHR. EN C 364/20 Official Journal of the European Communities Dec. 18, 2000. See http://www.europarl.eu.int/charter/ pdf/text_en. pdf/. 142

143

572 • Defense in International Criminal Proceedings Citizen's Rights and Justice, which is the relevant chapter in our context. Like the ECHR, the CFREU lays down the right to a fair trial and provides for presumption of innocence, legality and proportionality of criminal offenses and penalties. Furthermore, it extends the principle of ne bis in idem to the whole territory of the EU.144

7.4.2.4.

Draft Treaty Establishing a Constitution for Europe 145

As mentioned before, the draft treaty includes the fundamental rights as guaranteed by the ECHR and the CFREU, yet on a minimum level. Part I contains definitions and objectives of the Union. The relevant article in our context is Article 1-9, which transforms the ECHR provisions into the Constitution and integrates the CFREU into Part II of the Constitution.l-" Still the draft proposal does not go beyond the limits of the so-called minimum standards of fundamental rights that are regarded as a result of the constitutional traditions common to the member states. The procedural rights listed in Part II of the Constitution are.!"? •

the right to an effective remedy and to a fair trial;

•

the presumption of innocence and the right of defense;

•

the principles of legality and proportionality of criminal offenses and penalties;

•

the right not to be tried or punished twice in criminal proceedings for the same criminal offense.

Strikingly there is no further detailed and precise explanation or guideline of what is meant by saying that "respect for the rights of defence shall be guaranteed." In Part III Section IV, the draft deals with judicial cooperation in criminal matters. Article 111-270 stipulates the principle of mutual recognition ofjudgments andjudicial decisions as a basis of cooperation and the approximation of laws and regulations of the member states. The concept of mutual recognition shall be applied in criminal matters with cross-border dimension by establishing European framework laws with minimum rules concerning mutual admissibility of evidence between member states, the rights of individuals in criminal procedure and the rights of victims of crime.I'" According to Article 111-271 the principle of mutual recognition shall also be the legal basis for European framework laws establishing minimum rules concerning the definition of criminal offenses and sanctions in the area of particularly serious crimes with cross-border dimensions.l''" Articles 111-272-111-274 provide the legal basis for European laws or framework laws to establish measures to promote and support activities of member states in the field of crime prevention and to strengthen EUROJUST's mission for coordination and coop-

See Annex 3 in Section 7.4.9.3, Articles 47-50 of CFREU. (CIG 87/04) Draft Treaty decided on the Conference of the Representatives of the Governments of the Member States, Aug. 6, 2004; see http://ue.eu.int/ cms3_applications / Applications/igc/doc_register.asp?la/. 146 See Annex 4 in Section 7.4.9.4, Article 1-9 of the draft. 147 See Annex 4 in Section 7.4.9.4, Articles 11-108-11-110. 148 See Annex 4 in Section 7.4.9.4, Article 111-270. 149 See Annex 4 in Section 7.4.9.4, Article 111-271. 144

145

Associations of Defense Counsel • 573 eration between national prosecuting authorities. It should be no surprise that the draft Constitution lays so much stress onjudicial cooperation by such detailed regulations, while failing to provide for regulations to ensure the equal balance of means and measures for defense and prosecution. The draft goes even further in a very important point concerning the future professional practice of European criminal defense counsel. Article 111-274 provides the legal basis for establishing the "European Public Prosecutor's Office," which shall be responsible for "investigation, prosecuting and bringing to judgement, where appropriate in liaison with Europol, the perpetrators of and accomplices in serious crimes affecting more than one Member State and of offences against the Union's financial interests.... It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences."150 On this basis it will become possible to create a completely new system of prosecution, its structure being neither genuine Community law nor mere national law. As far as the legal position of defense is concerned, this prosecuting agency, sui generis will operate at a point of intersection of two incongruent structures of procedural law. The pre-trial investigation will be dominated by the European prosecutor in all cross-border matters while judicial control of police and prosecutor activities will be exercised by the national jurisdiction. As a result, the institution of criminal defense in those cross-boarder cases will be completely disregarded. In terms of the right of defense, pre-trial investigations by the European prosecutor will take place in a space beyond any legal control by the Europeanjurisdiction. The concept of a European prosecutor has been first developed and promoted in the draft of the "Corpus Juris."

7.4.2.5.

The Draft ofthe "Corpus Juris"151

The Corpus Juris is guided by the intention to create a genuine codification of European criminal and procedural law, but is-for the time being-limited to proceedings for the protection of financial interests of the EU. It aims to be a legal basis for legal actions at the European level by providing original regulations in substantive law as well as for proceedings during the pre-trial phase of investigation. For this reason it was proposed to create the office of a European prosecutor-just as provided for in the draft Constitution-to conduct inquiries with the support of Europol and national police. The European prosecutor will bring the cases to the national courts.l'" Corpus Juris provides some more detailed regulations concerning the rights of the defendant, pre-trial detention and burden of proof and admissibility of evidence.l-" but-as explained above-the protection of defendants' rights is limited to access to national courts that may not have sufficient capacity and competence to cope with the impact and complexity of cross-border cases. Even though Corpus Juris must be regarded as the most elaborate proposal for genuine European legislation, in the endas far as the rights of defense are concerned-it confines itself to formulating mere minimum standards of rights that would lead to a reduction in the quality of procedural

See Annex 4 in Section 7.4.9.4, Article 111-274 para. 2. The implementation of Corpus Juris in the Member States, Penal Provisions for the protection of European Finances (M. Delmas-Marty & J.A.E. Vervaele eds.), available at www.law.uu.nl/wiarda/corpus/index1.htm. 152 Articles 18-24 Corpus Juris. 150 151

574 • Defense in International Criminal Proceedings

safeguards in quite a number of member states. So far, the proposal has not been pursued. Obviously, the time was not ripe for its provisions, and to create genuine European law, which was proposed too early. Nevertheless, its concept of a European prosecutor found its way into the draft of the European Constitution. Instead of creating uniform Community rules, the process of alignment and approximation of divergent regulations in the member states was undertaken by means of intergovernmental cooperation and framework decisions by the European Council.

7.4.3.

European Legislation and/or Measures toApproximate and Harmonize National Laws

The Europol Convention and the draft proposal of Corpus Juris are examples of legislation by means of international treaties or conventions promoting Community law. Experience has shown that these mechanisms were far too lengthy and dull to create a binding legal area in Europe. Therefore, in order to accelerate integration of law systems in penal matters, the European Council of Tampere in 1999 developed a double line of lawmaking combining inter-governmental cooperation and initiatives by the Council. For this reason the Treaty on European Union (TEU) 154 has been amended in its Title VI "Provisions on Police andJudicial Cooperation in Criminal Matters"155 by the Treaty of Nice,156 providing a legal basis for common action (inter-governmental) and promoting cooperation at the police and judicial level. Accordingly Article 34 paragraph 1 TEU states that the member states shall inform and consult each other in the Council with a view to coordinating their action. To this end they shall establish collaboration between the relevant departments of their administrations. At the EU level, Article 34 paragraph 2 TEU requires the Council to take measures and promote cooperation, using the appropriate form and procedures ... , acting unanimously on the initiative of any Member State or of the Commission, the Council may: (a) adopt common positions defining the approach of the Union to a particular matter; (b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect. For the preparation of framework decisions, the Commission usually publishes green papers intended to stimulate debate and to launch a process of consultation on a particular issue at the European level. Such consultations may then lead to the publication of a White Paper, translating the conclusions of the debate into practical proposals for Community action. Over the past few years the Commission has launched a series of proposals, green papers and framework decisions on the issue of criminal and procedural law. They all have an impact on the status of criminal defense counsel and See Annex 5, Articles 29 in Section 7.4.9.5, 31-33. Treaty on European Union (consolidated text/Official Journal C325, Dec. 24, 2002), at www.europa.eu.int/abc/obj/amst/en. 155 See Annex 1 in Section 7.4.9.5, extract of TEU, Articles 29-35. 156 Official Journal C 80, Mar. 10, 2001. 153

154

Associations of Defense Counsel • 575 their daily practice. A presentation of all of them would go beyond the limits of this article. The Framework Decision of European Arrest Warrantl-? can be considered as precursor and most important of them. In the past, European defense counsel participated in the discussion on the alignment process only on a small scale. But the way in which the European Council forces the pace of development at the political level is a challenge for all defense counsel's organizations and individual counsel to interfere in the debate in order to avoid that the proposed standards will reflect only the lowest common denominator. From the point of view of defense, the standards of procedural safeguards and the rights of the defense must be advanced as far as possible. This is the background on which the following description of the Commission's efforts on the issue of procedural safeguards must be seen.

7.4.3.1.

Green Paper ofthe Commission for Procedural Safeguards for Suspects and Defendants in Criminal Proceedings Throughout the European Union 158

In line with the Tampere Conclusions.l''? the Commission launched a "Programme of Measures for Mutual Recognition,"16o including the announcement to propose a Framework Decision on Mutual Recognition. The principle of mutual recognition is based on the assumption that while another state may not deal with a certain matter in the same or even a similar way as one's own state, the results are accepted as equivalent to decisions of one's own state. The European Council also asked the Council and the Commission to adopt the Program of Measures in order to implement the principle of mutual recognition especially in criminal matters, i.e., in penal and procedural law. The first instrument adopted on mutual recognition in criminal matters was the "Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States,"161 followed by a "Framework Decision on Orders for Freezing Property or Evidence,"162 and later by measures on confiscation orders, financial penalties and transmission of evidence and criminal records. The successful implementation of all these measures is supposed to produce the factual basis for the application of the principle of mutual recognition in all member states, which implicates not only trust in the adequacy of one's partner's rules, but also trust that these rules are correctly applicd.l'< Despite the fact that all member states are parties to the ECHR, experience has shown that often there is no sufficient basis for the expected confidence-not because of a lack of trust but because of an actual lack of safeguarding of human rights by other member states. Official documents of the Commission quite often lament that there is not always sufficient trust in the criminal justice systems of other member states, and COM(2001) 522 final, Sept. 19,2001. See Section 7.4.3.2. COM (2003) 75 final from Feb. 19, 2003 at http://europa.eu.int/ comm/justice_ home/doc_centre/criminal/recognition/docs/gp_proc_safeguards_en. pdf. 159 Presidency Conclusions, Tampere European Council Oct. 15-16, 1999. 160 COM(2000) 495 final at 4, July 26, 2000. 161 COM(2001) 522 final, Sept. 19,2001. 162 Council Framework Decision 2003/577/JHA ofJuly 22,2003, on the execution in the European Union of orders freezing property or evidence. OJ L 196, at 45 Aug. 2, 2003. 163 Green Paper Procedural Safeguards (COM (2000) 495 final, at 4 July 26, 2000). 164 The grounds of the proposal refer, for example, to the U.K. case R. v. Secretary of 157 158

576 • Defense in International Criminal Proceedings

this notwithstanding the fact that they are all signatories to the ECHR.164 Nevertheless, there are still strong doubts that the law enforcement activities of the Commission are really appropriate to effect a change of the actual judicial situation in those member states where the prerequisites for the application of the principle of mutual trust are not yet given. On this background, on February 19, 2003, the European Commission published the Green Paper on Procedural Safeguards, covering access to legal representation both before the trial and at the trial, access to interpretation and translation, notifying of suspects and defendants, ensuring that vulnerable suspects and defendants are properly protected and consular assistance is offered to foreign detainees. It is the result of a number of programmatic political decisions taken by the European Council and the Commission years before, beginning with the Commission Communication "Towards an Area of Freedom, Security andJustice" inJuly 1998 and followed by the "Conclusions of the Tampere European Council" in October 1999, which endorsed the principle of mutual recognition as "the cornerstone of judicial cooperation." This means that "enhanced mutual recognition ofjudicial decisions and judgements and the necessary approximation of legislation would facilitate cooperation between authorities and the judicial protection of individual rights."165 At the very beginning the Green Paper for Procedural Safeguards was a fairly farreaching approach. It covered nearly the complete range of items regarding the procedural rights of suspects and defense counsel, including: •

the right to be presumed innocent until proved guilty;

•

the right to have someone informed of the detention;

•

the right to legal advice and assistance;

•

the right to a competent, qualified (or certified) interpreter and/or translator;

•

the right to bail (provisional release) where appropriate;

•

the right against self-incrimination;

•

the right to consular assistance (if not a national of the state of prosecution);

•

fairness in obtaining and handling evidence (including the prosecution's duty of disclosure) ;

•

the right to review of decisions and/or appeal proceedings;

•

specific guarantees covering detention, either pre- or post-sentence;

•

ne bis in idem;

•

creating a mechanism ensuring that suspects/defendants were aware of their

State ex parte Ramda, June 27, 2002, in which the High Court said that France's status as a signatory to the ECHR could not be invoked as a complete answer to complaints about the fairness of his trial. Likewise, in its judgment of May 16, 2003, and to the case of Irastorza Dorronsoro, the Cour d'Appel de Pau (France)-refused to accede to an extradition request from Spain on the grounds that there was a suspicion that a co-defendant had been tortured by Spanish police officers. 165 Tampere Conclusions point 33.

Associations of Defense Counsel • 577 rights ("the Letter of Rights"); •

how to offer vulnerable groups a high degree of protection; and

•

how to deal with absentia proceedings.

It also underlined that only lawyers as defined in Article 1 (2) (a) of Directive 98/5 EC are employed in its context so as to help to safeguard effectiveness and quality of legal advice. 166 The Green Paper was the precursor to the proposal for a framework decision. The deadline for legal professionals and defense counsel to comment on the paper was only three months after publication of the Green Paper on the Web site ofJAI. Obviously such extremely short terms are likely to avoid profound statements by lawyers' organizations. Finally only a few associations were able to answer in time. The hearing held by the Commission in June 2003 was not an appropriate discussion forum. It lasted only one day, more than 30 organizations had been invited and only few of them could express their points of view. It ended in general discontent.

7.4.3.2.

The Proposal for a Council Framework Decision on Certain Procedural Rights in Criminal Proceedings Throughout the European Union 167

Unlike the Green Paper, the scope of the Proposal for a Framework Decision published April 2004 is limited to certain procedural rights applying in criminal proceedings throughout the European Union. Again it aims to set "common minimum standards," in general based on statutes, rules and documents of the European Union already presented above, such as: •

Article 6 of the Treaty on European Union (TEU), which provides that the Union shall respect fundamental rights;

•

as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR);

•

as they result from the constitutional traditions common to member states and the Charter of Fundamental Rights of the European Union (CFREU);

•

the principle of mutual recognition as a cornerstone ofjudicial cooperation.

The proposal does not help to overcome the doubts mentioned above. According • to its grounds, the proposal is also "thought as an implicit acknowledgement of that insufficient trust in that it provides a mechanism for enhancing and increasing mutual confidence. This will be even more important when in future there must be trust between all twenty-five states or more."168 The areas where common minimum standards are proposed at the first stage are limited to: •

access to legal advice, both before the trial and at trial;

•

access to free interpretation and translation;

See point 4 below. COM (2004) 328 final, Apr. 28, 2004, at europa.eu.int/comm/secretariat_general/ impact/docs/ COM_2004_0328_F_EN. 168 Proposal para. 29. 166

167

578 • Defense in International Criminal Proceedings

•

ensuring that persons who are not capable of understanding or following the proceedings receive appropriate attention;

•

the right to communicate, inter alia, with consular authorities in the case of foreign suspects; and

•

notifying suspected persons of their rights (by giving them a written "Letter of Rights) .

According to its official grounds, the Framework Decision is only "a first step." Other measures are envisaged over the next few years. According to its authors, there is no intention to convey the impression that the five rights listed above are more important than others, simply that they are more immediately relevant to mutual recognition and the problems that have arisen to date in the discussion of mutual recognition measures. The Commission has already announced that it is starting to examine the need for further safeguards relating to: •

fairness in obtaining, handling and use of evidence throughout the EU;169

•

the presumption of innocence;

•

the right to silence;

•

the right against self-incrimination; and

•

the rules governing the burden of proof.

In view of the great importance of the Proposal for a Framework Decision on certain Procedural Rights for the future status of criminal defense counsel in Europe, it appears useful to give a summary of the reasons as presented by the Commission in its draft proposal.l?"

Article 1.Scope ofapplication ofprocedural rights The scope includes all persons suspected in respect of a criminal offence in any proceedings to establish the guilt or innocence of a person suspected of having committed a criminal offence, or to decide on the outcome following a guilty in plea in respect of a criminal charge or to rule on any appeal from these proceedings. There is no differentiation between EU national and third country nationals since to offer one group better protection could lead to criticisms of discrimination that would defeat the aim of enhancing trust between the Member States in each other's criminal justice system since the case-law of the ECtHR has clarified that persons being questioned in relation to offences, but not yet formally charged, should be covered by Article 6 ECHR, persons arrested or detained in connection with a criminal charge also come within the ambit of this provision. These rights start to apply from the time when the person is informed

169 See as precursor: Proposal for a Council Framework Decision on the European Arrest Warrant for obtaining objects, documents and data for use in proceedings with criminal matters, COM (2003) 688 final, Nov. 14,2003. 170 COM (2004) 328 final, para. 32, Apr. 28, 2004, at europa.eu.int/comm/secretariat_general/impact/docs/COM_2004_0328_F_EN; see text of Articles 1-18 of the draft proposal in Annex 4.

Associations of Defense Counsel • 579 that he is suspected of having committed an offence (e.g. on arrest or when the suspected person is no longer free to leave police custody). (paragraph 53/54)

Article 2. The right to legal advice This Article sets out the basic right to legal advice for a suspected person if he wishes to receive it. The Article provides that legal advice should be provided as soon as possible. It is important that a suspect benefits from legal advice before answering any questions in the course of which he may say something he later regrets without understanding the legal implications. During the consultation period, the Commission researched the Member States' differing arrangements. The rules governing both access to legal representation and its organisation vary from one Member State to another. This Framework Decision proposes EU wide agreement that suspected persons be given access to legal advice from a qualified lawyer as soon as possible. At present, some Member States impose a limit on access, have an initial period during which the suspect may not have access to a lawyer ("garde avue") or preclude the presence of a lawyer during police questioning. Some Member States do not have a formal scheme offering 24-hour access to a lawyer, so that those arrested at night or at week-ends are also denied access, at least on a temporary basis. This Framework Decision proposes that legal advice be an entitlement throughout all the criminal proceedings which are defined as all proceedings taking place within the European Union aiming to establish the guilt or innocence of a person suspected of having committed a criminal offence or to decide on the outcome following a guilty plea in respect of a criminal charge. (paragraph 32)

Article 3. Obligation to provide legal advice Article 6(3) (c) ECHR makes it clear that a suspected person has the right to defend himself in person which implies that he is entitled to refuse to be represented by a lawyer. Notwithstanding that right, in certain circumstances it is particularly desirable that the suspected person receives legal advice. Those circumstances are set out in Article 3 and include cases where the suspected person is remanded in custody prior to the trial, or is formally accused of having committed a criminal offence which involves a complex factual or legal situation or which is subject to severe punishment, in particular where, in a Member State, a mandatory sentence of more than one year's imprisonment can be imposed, or is the subject of a European Arrest Warrant or extradition request or other surrender procedure, or is a minor, or appears not to be able to understand or follow the content or the meaning of the proceedings owing to his age, mental, physical or emotional condition. This provision requires Member States to ensure that every effort is made so that those persons in particular receive legal advice. (paragraph 56)

Article 4. Obligation toensure effectiveness oflegal advice This Article provides that Member States should ensure that some check is made that effective advice is given. The Commission has chosen to specify that only lawyers as defined in Article 1 (2) (a) of Directive 98/5 EC are employed in this context so as to 171 Directive 98/5/EC of the European Parliament and of the Council, Feb. 16, 1998, see Section 7.4.4.4.

580 • Defense in International Criminal Proceedings help to safeguard effectiveness."?' Since the suspect is not always in a position to assess the effectiveness of his legal representation, the onus must be on the Member States to establish a system for checking this. (paragraph 57/59)

Article 5. The right tofree legal advice This Article provides that where Article 3 applies legal advice should be provided at no cost to the suspected person if these costs would cause undue financial hardship to himself or his dependants. Member States must ensure that they have in place a mechanism for ascertaining whether the suspected person has the means to pay for legal advice. Under the ECHR, the defendant does not have to prove "beyond all doubt" that he lacks the means to pay for his defence (Pakelli v. Germany'?"). Member States should respect this ECtHR guidance in connection with the assessment of the person's means. (paragraph 60)

Article 14. Duty to inform a suspected person ofhis rights in writing-Letter of Rights It is not always the case that suspects, and even sometimes the law enforcement officers questioning them, have full knowledge of the relevant rights. If suspects were properly aware of their rights on arrest there would be fewer allegations of miscarriage ofjustice and violations of the ECHR. A simple and inexpensive way to ensure an adequate level of knowledge is to require Member States to produce a short, standard written statement of basic rights (the "Letter of Rights") and to make it compulsory for all suspects to be given this written notification in a language they understand at the earliest possible opportunity and certainly before any questioning takes place.t" In line with the hurry to implement these minimum standards, member states are requested to take the necessary measures to comply with the provisions of the Framework Decision by 1 January 2006. 174 From the point of view of the defense counsel, numerous points of critique still remain, in particular that the proposal explicitly did not deal with some main procedural rights for the defense that are fundamental to ensure access to effective defense in the daily practice of cross-border cases. The Commission preferred to defer important issues such as presumption of innocence, right to bail, transfer and valorization of evidence, sanctions for violation of defense and disclosure rights. According to its authors, the strategy of step-by-step implementation is due to the fact that some member states already expressed their objections to the proposal for the framework decision being limited to "certain" procedural rights and mainly covering the minimum standards of the European Convention for the Protection of Human Rights. The Commission now hopes to get through with the other issues more easily by treating

Pakelli v. Germany, judgment of Apr. 25,1983, Series A No. 64, para. 34. Annex A of the proposal contains a suggested form of common wording for the Letter of Rights. It states the language version so that the suspect can be given the Letter of Rights in a language he understands. It then sets out the basic rights to legal advice, to interpretation, specific attention and consular assistance, if appropriate, as headings to be completed by the member states. 174 See Annex 6, Article 18. 172 173

Associations of Defense Counsel • 581 them in separate judicial acts. For the next years numerous draft proposals are "in the pipeline." We as lawyers will have to pay great attention to the future development in order to prevent the slow erosion of even minimum standards of procedural rights of the suspect and his defense. In particular the following issues are concerned: •

clear definition of the moment when the suspect must be informed of his rights, especially the right of access to a lawyer before the first interrogation;

•

prohibition of incommunicado detention, whatever the charge;

•

right of the appointed defense counsel to be present at all interrogations of his client;

•

disclosure of, and lawyer's right of, access to all records and evidence on which pre-trial detention is based;

•

non-admissibility of statements by the suspect made in his first interrogation without the support of a lawyer;

•

professional confidentiality of defense lawyers; and

•

confidentiality of communications between the suspect/defendant and his lawyer.

European defense counsel will have to pay special attention to the issue of evaluation and monitoring as defined in Article 15. According to the Commission proposal, the control that minimum standards are ensured is part of the concept of mutual trust and recognition. Thus, it serves the political function of enhancing the process of approximation of the criminal law systems in the member states. With such focus, there is a risk that individual defense rights might be sacrificed for the sake of approximation pushed by administrative bodies. This is all the more true because, according to the grounds of the proposal for the framework decision, the Commission intends to reserve the right to supervise evaluation and monitoring.t'"

7.4.4.

Rules for Professional Practice in the European Union

In 1998 the Council and the European Parliament enacted the "Directive 98/5/EC to facilitate practice of lawyers on a permanent basis in a member state other than that in which the qualification was obtained."176 In fulfilment of the directive the member states brought into force national laws regarding the integration and practice of lawyers from other member states in the national judicial system. For instance in Germany the "Gesetz tiber die Tatigkeit curopaischer Rechtsanwalte in Deutschland (EuRAG)" of March 14, 2000, was adopted.!"? As the directive uses the term "lawyers"178 and does not

175 "The evaluation and monitoring should be carried out under the supervision of the Commission." COM (2004) 328 final, paras. 83-85, Apr. 28, 2004, ateuropa.eu.int/comm/secretariat_general/impact/docs/ COM_2004_0328_F_EN. 176 See http://europa.eu.int/eur-lex/pri/en/oj/ dat/1998/l_077/1_07719980314en 00360043. pdf. 177 Bundesgesetzblatt (BGBl.) I S. 182. 178 "Lawyer" means any person who is a national of a member state and who is authorized to pursue his professional activities under one of the following professional titles, Directive Article 1, para. 2, lit. a.

582 • Defense in International Criminal Proceedings distinguish between lawyers and defense counsel, it seems useful to introduce its purposes as to the legal status of criminal defense counsel, which are as follows: •

enabling lawyers to practice in another member state under their home-country professional titles;

•

to make it easier for them to obtain the professional title of that host member state;

•

the host member state must take into consideration any professional experience gained in its territory regarding Articles 48 and 52 of the Treaty as interpreted by the Court ofJustice;

•

after effectively and regularly pursuing in the host member state an activity in the law of that state including Community law for a period of three years, a lawyer may reasonably be assumed to have gained the aptitude necessary to become fully integrated into the legal profession there;

•

at the end of that period the lawyer who can, subject to verification, furnish evidence of his professional competence in the host member state should be able to obtain the professional title of that member state;

•

if the period of effective and regular professional activity of at least three years includes a shorter period of practice in the law of the host member state, the authority shall also take into consideration any other knowledge of that state's law, which it may verify during an interview;

•

if evidence of fulfilment of these conditions is not provided, the decision made by the competent authority of the host state not to grant the state's professional title under the facilitation arrangements linked to those conditions must be substantiated and subject to appeal under national law;

•

for economic and professional reasons, the growing tendency for lawyers in the Community to practice jointly, including in the form of associations, has become a reality;

•

the fact that lawyers belong to a grouping179 in their home member state should not be used as a pretext to prevent or deter them from establishing themselves in the host member state;

•

member states should be allowed, however, to take appropriate measures with the legitimate aim of safeguarding the profession's independence; and

•

certain guarantees should be provided in those member states that permitjoint practice.

The directive and its transformation by national professional laws allow defense counsel to practically exercise their profession on transnational defense issues either in their own country by taking the role of a host counsel for a foreign colleague or by representing a client (of his own or any other country or nationality) and pleading before a court of a foreign country together with a host counsel. The directive also sets out 179 "Grouping" means any entity, with or without legal personality, formed under the law of a member state, within which lawyers pursue their professional activities, Directive Article 1, para. 2 lit. e.

Associations of Defense Counsel • 583 framework regulations for permanent professional activity of a defense counsel in a foreign state under his home-country professional title and, under certain conditions, it provides for access to the professional title of the host state. From the viewpoint of European defense counsel working on cross-border issues, the provisions of the directive do not go far enough. If requested, it should be possible to practice as defense counsel in other member states without the necessity of a host counsel. Some member states already allow defense counsel of their member states to visit their clients in prison without a host counsel and, of course, without surveillance by police officers. There is no justification for limiting access to a client in the host state while, for example, national police officers exercise their duties on a cross-border basis either in special teams (grouping) or individually. As they are subject to their national codes of duty, defense counsel can also be measured by their national codes of conduct, which should not be deemed inapplicable, at least under the principle of mutual recognition. These short reflections lead to the conclusion that defense counsel associations in Europe must gain more influence and exercise more pressure in order to achieve adequate conditions of professional exercise in host member states.

7.4.5. 7.4.5.1.

Representation of European Defense Counsel Associations Council ofthe Bars and Law Societies ofthe European Union (CCBE)

All national bars and law societies of the European Union and the European Economic Area are members of the Council of the Bars and Law Societies of the European Union (CCBE). In addition, bars and law societies from a number of other European states are observer members of the CCBE. This means, in effect, that the CCBE through the European bars and law societies represents the interests of more than 700,000 European lawyers. Through the CCBE's close relationship with European institutions such as the European Commission, the European Parliament, the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg, the CCBE is in a position to influence the conditions under which lawyers practice their profession in Europe and legal initiatives affecting lawyers and their clients. To that end, the CCBE has created a number of specialist committees responsible for many aspects of legal practice such as access to justice, competition, legal services and rights of access to foreign markets in the context of the GATs. The CCBE also works in the area of substantive law, such as criminal law and human rights. It published some important statements in penal defense matters.l'v In this context, it should be welcomed that the idea of creating a European Criminal Law Ombudsperson to monitor minimum standards for the rights of defendants and their defense was taken over by CCBE in order to support the Commission in developing a European criminal law with due consideration for the interests of the criminal defense. Although an important approach from the point of view of many defense lawyers, the creation of an Ombudsperson is by far not sufficient. It may be assumed that European defense lawyers would generally define their function and role as advocating the interests of their clients. This principle of advocacy requires the self-organization of a criminal defense network.

180 Among others the Response of Council of the Bars and Law Societies of the European Union-CCBE, May 27, 2003, to the Green Paper on Procedural Rights, see www.ccbe.org.

584 • Defense in International Criminal Proceedings

7.4.5.2.

European Criminal Bar Association (ECBA)

Since its foundation in 1997 the ECBA has become the pre-eminent independent organization of specialist defense lawyers in all Council of Europe countries. The ECBA aims to promote the fundamental rights of persons under investigation, suspects, accused and convicted persons. The Association holds conferences twice a year, in spring and autumn, during which members and non-members meet and discuss the latest developments in European criminallaw. The ECBA also acts as a platform for lawyers to meet with lawyers from all member states and to exchange information and knowledge. Its Web site aims to give access to relevant information, laws, treaties and preparatory documents. In the members section of the Web site lawyers can simply ask questions, look for lawyers they need in member state countries, take part in committees preparing documents for several European projects, etc. Although being wholly independent, the ECBA has close links with the CCBE and the International Criminal Bar Association (ICB). Supranational bodies, such as the European Union, are increasingly influencing the future of criminal justice in Europe. Therefore, ECBA believes there is a strong need for an organization of practicing defense lawyers able to advocate rights and minimum standards for all suspected, accused and convicted persons.l'" The ECBA has published a preliminary Statement to the Proposal for a Council Framework Decision on certain Procedural Rights in Criminal Proceedings throughout the European Union and a statement on the implementation of the European Arrest Warrantl'" in Cermany'' has the exclusive right to register and license lawyers-> in Kosovo. Pursuant to Article 36 Section 1 of the Law on Advocacy and other Legal Assistance of 1979,36 the right to be registered as a lawyer shall belong to everyone who fulfills the following conditions: (1) to be a Yugoslav citizen; (2) to be able to work;

Id. at 78. E.g., Gashi and others before the District Court of Prishtine /Pristina, consisting of Timothy Clayson, Leonard Assira and Daniel Mabley. 31 E.g., Trajokovic before the District Court of Gjilan/Gjilane consisting of international judges Timothy Clayson, and Vinod Boolel and local judge Fahredin Ymeri. 32 Article 70 (1) of the Provisional Criminal Procedure Code of Kosovo provides that: "Only a member of the bar may be engaged as defence counsel. If proceedings are being conducted for a criminal offence punishable by imprisonment of at least five years, an attorney in training may replace a member of the bar only if he or she has passed the judicial examination. Only a member of the bar can represent a defendant before the Supreme Court of Kosovo." 33 Article 6 of the Statute of the Kosovo Bar Association. 34 The Kosovo Bar Association is also called the Kosovo Chamber of Advocates (or Attorneys) in some documents. 35 The term "advocate" is also used to describe lawyers who are member of the Kosovo Bar. 36 Published in the Official Gazette of the Socialist Autonomous Province of Kosovo, No. 48/79, Dec. 24, 1979. 29

30

Mixed Tribunals • 625 (3) to have a law degree;

(4) to have passed the Judiciary/Bar Exam, or to have the same status with those who have it; (5) not to be a worker in an enterprise; and (6) to be a trusted person in order to perform the advocate's profession. It must be noted however that in September 2004 the Kosovo Assembly approved a draft Law on the Bar, which is expected to replace the Law on Advocacy and Other Legal Assistance of 1979. This Law on the Bar provides for new criteria to be met by the persons who want to be registered as lawyers, such as, maintaining a permanent residence in Kosovo.V This Law on the Bar has been submitted to the SRSG for consideration and possible promulgation. Since that time, working-level discussions have taken place with the Office of the SRSG and the Kosovo Assembly to revise the draft law in accordance with the applicable provisions of the constitutional framework. Despite the fact that only members of the Kosovo Bar can represent defendant before Kosovo courts, in a few criminal cases, however, lawyers who were not registered with the Kosovo Bar have been allowed by judges to contribute to the defense of some accused persons. For instance, in the "Llapi case,"38 one of the accused appointed an "international legal expert" to assist his locally appointed lawyer.s? However, the foreign lawyers' capacity to act and to defend the accused is limited by comparison with the Kosovo registered lawyers' capacity. In particular, in most of the cases, the foreign lawyers are not entitled to advocate in court.t"

8.1.2.3.

Representation by Foreign Lawyers

Foreign lawyers might soon be allowed to work as co-counsels in Kosovo in criminal proceedings or civil proceedings involving application of international law or standards. Provisions on this matter have been prepared by UNMIK, in collaboration with the Kosovo Chamber of Advocates (KCA) and the CDRC, and are currently under review by the Office of the SRSG. It is envisaged that the Kosovo Chamber of Advocates could grant to foreign lawyers up to three provisional licenses, if it considers that the applicants have met specific criteria (such as, for instance, to be licensed to practice law in another jurisdiction and having a minimum of five years experience practicing the relevant type of law) .41

Article 6 of the draft Law on the Bar. Prosecutor v. Latif Gashi and Others, District Court of Prishtine/Pristina, Judgment of July 16, 2003. 39 OSCE Mission in Kosovo, Department of Human Rights and Rule of Law, Legal System Monitoring Section; Case Report: The Prosecutor's Office v Latif Gashi, Rrustem Mustafa, Nairn Kadriu and Nazif Mehmeti, the "Llapi Case" at 8 at http://www.osce.org/kosovo/documents /reports/. 40 One of CDRC's international legal advisers was, however, allowed to present oral arguments during a detention hearing in a case where the defendant was himself a foreigner. 41 Moreover, the Kosovo Chamber of Advocates could, in its discretion, decide to grant 37 38

626 • Defense in International Criminal Proceedings The granting of such licenses will entitle foreign lawyers to act as co-counsel on a case and to provide the full range of legal assistance. On the other hand, the foreign lawyers will be required to abide by the Law on Advocacy and Other Legal Assistance, the Code of Professional Ethics and any other applicable standards of professional conduct.

8.1.3.

The CDRC

The Criminal Defense Resource Center (CDRC) provides legal assistance to defense lawyers in Kosovo. CDRC was established through a collaboration of the OSCE Mission in Kosovo and the Kosovo Chamber of Attorneys and began to operate as an NCO in May 2001. It is supervised by a board of directors composed of five Kosovar defense lawyers and representatives from four international organizations. Since January 2005 it has operated as an autonomous NCO independently of the OSCE. The mandate of CDRC is to serve as a resource center providing case assistance to the defense lawyers of Kosovo. CDRC assists defense lawyers to ensure the protection of the rights of the accused at each stage of criminal proceedings. Case assistance is primarily provided in serious political cases and, in particular, cases involving humanitarian law offenses, ethnically/politically motivated crimes and violations of human rights standards.v CDRC strategizes with defense counsel to apply international standards and to challenge any violation of the standards. The Center also makes available to defense counsel its extensive library of materials on international law. CDRC has assisted several Kosovar lawyers in relation to applications made to the European Court of Human Rights against contracting states whose KFOR troops have committed violations of the European Convention of Human Rights. The Centre also provides training for defense counsel throughout Kosovo on international human rights standards and on the Provisional Criminal Procedure Code of Kosovo. Moreover CDRC has served as a liaison between the Kosovo Chamber of Attorneys and UNMIK on issues such as adequate and timely payment of court-appointed counsel, defense counsel access to detainees and counsel's rights to obtain court files and decisions in Albanian and Serbian in a timely manner.

8.1.4. 8.1.4.1.

Right to Counsel Under the Provisional Criminal Procedure Code of KOSOV043 The Right to Have Defense Counsel atAll Stages ofthe Proceedings

The right to have defense counsel is a fundamental right, which is guaranteed by Article 6 Section 3(c) of the European Convention on Human Rights (ECHR) and Article 14 Section 3(d) of the International Covenant on Civil and Political Rights (ICCPR). This right has been reinforced under the Provisional Criminal Procedure Code of Kosovo (PCPCK).

additional licenses to the same foreign lawyers, if he or she has demonstrated a need for his or her involvement as co-counsel. 42 CDRC has assisted in a number of war crimes cases including Gashi and others and Kolasinac.

Mixed Tribunals • 627

The PCPCK provides that suspects/defendants are entitled to defense counsel at all stages of the criminal procecdings.v' This includes from the moment of arrest.v before and during every examination.t'' during the hearing on detention on remand,"? at the confirmation hearing.t" during the main trial:'? and at the appeal hearing. 50

8.1.4.2.

Mandatory Legal Assistance

The PCPCK provides, in its Article 73, that the defendant must have a defense counsel in the following cases: (1) From the first examination, when the defendant is mute, deaf, or displays signs of mental disorder or disability and is therefore incapable of effectively defending himself or herself; (2) At hearings on detention on remand and throughout the time when he or she is in detention on remand; (3) From the filing of an indictment, if the indictment has been brought against him or her for a criminal offence punishable by imprisonment of at least eight years; and (4) For proceedings under extraordinary legal remedies when the defendant is mute, deaf, or displays signs of mental disorder or disability or a punishment of long-term imprisonment has been imposed. The applicable law in Kosovo according to UNMIK Regulation 1999/24 and 2000/59 also provided for mandatory defense.>! However, Article 73 of the provisional Code contains a major improvement as regards the rights of the defendant by providing that defense is mandatory at hearings on detention on remand and throughout the time when the defendant is in detention on remand. The new Code further sets out that if the arrested person, who is going to appear at a hearing on detention on remand, has not engaged a defense counsel of his choice or has declared that he will not do so, the Court shall appoint one for him ex officio. 52

8.1.4.3.

Waiving the Right to Defense Counsel

Under the PCPCK, except in cases of mandatory defense, the defendant can waive his right to a defense counsel. The waiver must be made explicitly and in an informed and voluntary manner. The waiver may be made either in writing or orally. If in writing,

43 The Provisional Criminal Procedure Code of Kosovo (PCPCK) entered into force on April 6, 2004. For the criminal procedure applicable in Kosovo, seeSection 8.1.7. 44 Article 12 § 2 and Article 69 § 1 PCPCK. 45 Article 12 § 6, Article 14 § 1 (2), Article 213 §§ 1 and 2, and Article 214 § 1 (4) PCPCK. 46 Article 69 § 2, Article 218 § 1, Article 231 §§ 2-4 and § 3 and Article 269 § 3 PCPCK. 47 Article 282 §§ 3 and 4 PCPCK. 48 Article 314 §§ 1 and 2 PCPCK. 49 Article 321 §§ 1 and 2, and 342 PCPCK. 50 Article 412 § 2 PCPCK. 51 See Article 70 FRY CPC. 52 Article 282 § 4 PCPCK.

628 • Defense in International Criminal Proceedings the waiver must be signed by both the suspect or defendant and the witnessing competent authority conducting the proceedings. If made orally, the waiver must be recorded on video or audio tape. 53 If the person who made the waiver subsequently wishes to exercise his right to the assistance of a defense counsel, he may immediately do so.54

8.1.4.4.

The Right to Have Defense Counsel ofOne's Choice

The general rule is set out in Article 12 Section 2 of the PCKCP,55 which reads as follows: "The defendant shall have the right to defend himself or herself in person or through legal assistance by a member of the bar of his or her own choice." The defendant may have up to three defense counsels.w The law places a few limitations on the suspect or defendant in choosing defense counsel, namely that the attorney must be a member of the bar-? and must not have a conflict of interest. More particularly, the defendant cannot choose a defense counsel, who is: •

the injured party, the spouse or extra-marital partner of the injured party or of the prosecutor or their relation by blood in a direct line to any degree or in a lateral line to the fourth degree or by marriage to the second degree. 58

•

a person who has been summoned to the main trial as a witness.e?

•

a person who has acted as ajudge or as a public prosecutor in the same case.v"

Moreover, a defense counsel is not allowed to represent two or more defendants in the same case.v!

8.1.4.5.

Appointment by the Court of Ex Officio Lawyers at Public Expense

The PCPCK, in its Article 12 Section 4, provides for the following general principle: Under the conditions provided by the present Code, if the interests ofjustice so require and if the defendant has insufficient means to pay for legal assistance

53 Article 69 § 3 PCKCP. See for the waiver made by a person deprived of liberty by arrest or detention, Article 14 § 3 and Article 213 § 4 PCPCK. 54 Article 69 § 5 PCPCK. 55 See also Article 14 § 1 (2) and Article 213 § 1, when a person is deprived of his liberty. 56 Article 71 § 2 PCPCK. 57 Article 12 § 2 PCPCK. 58 Article 72 § 1 PCPCK. 59 Article 72 § 2 PCPCK. This provision nevertheless specifies: "Unless under the present Code he or she has been relieved of the duty to testify as a witness and has declared that he or she will not testify as a witness or unless defense counsel has been examined as a witness in a case under Article 159 paragraph 2 of the present Code." 60 Article 72 § 3 PCPCK. 61 Article 71 § 1 PCPCK. This is a significant improvement from the applicable law in Kosovo according to UNMIK Regulation 1999/24 (Article 68 § 1 FRY CPC), which permitted defense counsel to represent several defendants in proceedings, provided that such representation does not contradict the interest of the defendant.

Mixed Tribunals • 629

and for this reason cannot engage a defense counsel, an independent defense counsel having the experience and competence commensurate with the nature of the offence shall be appointed for the defendant on his or her request and paid from budgetary resources. The right to free legal assistance is contained in many other provisions of the new Code, such as in Article 73 Section 2, which refers to cases where defense is mandatory,62 and Article 74, which refers to cases where non-mandatory defense is paid at public expense. More particularly, this latter provision sets out that, when the conditions are not met for mandatory defense, a counsel shall be appointed at public expense for the defendant at his request'< if: (1) The proceedings are being conducted for a criminal offence punishable by imprisonment of at least eight years; or (2) The defendant is financially unable to pay the cost of his or her defense and the court or the competent authority conducting the proceedings in the pre-trial phase determines that appointment of defense counsel at public expense is required by the interests ofjustice. The PCPCK further specifies that an arrested person shall also be provided with a defense counsel if he cannot afford to pay for legal assistance.v' The request for the appointment of a defense counsel at public expense may be filed throughout the course of the criminal proceedings.w In addition, where an appointed defense counsel at public expense represents him, the defendant may engage another defense counsel privately. In that case, the appointed defense counsel is dismissed.v" It must be noted that the FRY CPC67 provided for a more restricted right to free legal assistance by comparison with the PCPCK. However, the UNMIK's Administrative Department ofJustice released aJustice Circular in September 2000,68 which extended Article 73 § 2 and 3 PCPCK provides: (2) In a case of mandatory defense, if the defendant does not engage a defense counsel and no one engages a defense counsel in accordance with Article 69 paragraph 6 of the present Code, the president of the court or the competent authority conducting the proceedings in the pre-trial phase shall appoint ex officio a defense counsel at public expense. If a defense counsel is appointed ex officio after the indictment has been brought, the defendant shall be informed of this at the same time as the indictment is served. (3) In a case of mandatory defense, if the defendant remains without a defense counsel in the course of the proceedings and if he or she fails to obtain another defense counsel, the presiding judge or the competent authority conducting the proceedings in the pre-trial phase shall appoint ex officio a new defense counsel at public expense. 63 As well as, "at the request of the persons referred to in Article 69 paragraph 6 of the present Code but not against the will of the defendant" (Article 74 § 1 PCPCK). 64 Article 214 § 1 (4) PCPCK. 65 Article 74 § 3 PCPCK. 66 Article 75 § 1 PCPCK. 67 See Articles 70 and 71 FRY CPC. 68 Justice Circular 2000/17, Sept. 28, 2000, Instructions on the extension of the conditions for court-appointed defense counsel. 62

630 • Defense in International Criminal Proceedings the right to a lawyer free of charge to additional situations than the ones provided for in the applicable law. Furthermore, in October 2001, UNMIK Regulation 2001/28 granted this right to persons arrested by law enforcement authorities.v?

8.1.5. Defense Counsel's Duties and Discipline Both the duties imposed on lawyers practicing in Kosovo and the disciplinary measures and procedures to which lawyers can be subjected are regulated in three main legal documents, which are as follows: •

the Law on Advocacy and Other Legal Assistance of 1979,70

•

the Statute of the Kosovo Bar Association."! and

•

the Code of Professional Ethics.??

In addition, the Provisional Criminal Procedure Code of Kosovo contains specific provisions on defense counsel's obligations and discipline by the bench.

8.1.5.1. The Law on Advocacy and Other Legal Assistance of1979 This law was promulgated on December 24, 1979, in the Official Gazette of the Socialist Autonomous Province of Kosovo No. 48. It remains applicable in Kosovo pursuant to Regulation 1999/24, as amended by Regulation 2000/59. Therefore, all lawyers practicing in Kosovo are required to respect its provisions. In Chapter II, the law provides for "The rights and duties of advocates."73 Article 14 sets out the basic duty imposed on the lawyer, namely "to honestly provide legal assistance in accordance with the law and the Code of Professional Ethics, and in accomplishing their social function take care of upholding the principles of constitution and law." It further provides that the Chamber of Advocates is responsible to impose disciplinary measures in case of violations of their duties by the lawyers: Advocates shall be responsible to the Chamber of Advocates organs, for any violation in the course of their duty according to the rules issued by the Chamber of Advocates or this law. Through a general act of the Chamber of Advocates regarding the disciplinary responsibility it is ensured, especially, for the efficient defense of the parties and are determined the cases when the advocate losses the right to his profession in case of grave violation in the course of his duty regarding the parties.

69 UNMIK Regulation 2001/28 (UNMIK/REG/2001/28), Oct. 11, 2001 on the rights of persons arrested by law enforcement authorities. 70 In annex unofficial translation in English of the law on advocacy-Annex II at Section 8.1.9. 71 In annex unofficial translation in English of the Statute-Annex I at Section 8.1.8. 72 In annex unofficial translation in English of the code of ethics-Annex III at Section 8.1.10. 73 See Articles 13 to 27 of the Law on Advocacy and Other Legal Assistance.

Mixed Tribunals • 631 Among the duties of the lawyers, which are listed in this law, are: the duty of confidentiality and the duty to refuse a case if there is a risk of conflict of interest. Chapter V of the Law on Advocacy further provides for the consequences of disciplinary procedures initiated against lawyers by the Chamber of Advocates, i.e., the suspension?" or the terminarion'" of the right to practice advocacy. Following the promulgation of this law, the Kosovo Chamber of Advocates was set up in 1980. 76

8.1.5.2.

The Statute ofthe Kosovo Chamber ofAdvocates

The first Statute of the Kosovo Chamber of Advocate of May 1980 was amended following the 1999 conflict in Kosovo. The latest version of the Statute was approved by the Assembly of the Kosovo Chamber of Advocates on October 27,2001. Article 1 provides that the Statute regulates, inter alia, the structure of the Kosovo Bar Association, the rights and obligations of lawyers (mostly in relation with the Bar), 77 the disciplinary procedures "to determine the liability of both the violation of obligations and the infrigement of advocacy's authority," as well as the bodies entitled for the initiation and conduct of the disciplinary procedure. More particularly, the Statute of the Bar Association specifies: •

the types of infringements, which might be committed by Iawyers'" (for instance, when the lawyer breaches their confidentiality duty);

•

the disciplinary measures to which lawyers might be subjected,"? i.e., reprimand, fine and an interim suspension of lawyer's practice of six months to five years;

74 Article 46 of the Law on Advocacy and Other Legal Assistance reads: "The advocate shall have his right suspended if he is put under custody. The advocate shall have his right suspended if against him there is a criminal or disciplinary procedure initiated for an offence that renders him unfit for the profession, if the disciplinary procedure cannot be successful without suspending it or if the procedure for registration in the register of advocates has been repeated. Concerning the suspension the Chamber of Advocates shall decide with its own initiative or on the proposal of the disciplinary prosecutor of Chamber of Advocates." 75 Article 48 of the Law on Advocacy and Other Legal Assistance provides that: The right to practice advocacy is terminated if: 1. he looses the Yugoslav citizenship 2. he is disabled 3. the right to practice advocacy is taken 4. the disciplinary court has decided that he temporary looses the right to practice 5. he does not practice, without ajust reason, for more than 6 months 6. he withdraws from the profession 7. he joins the common work 8. he has been judged for offences mentioned in Article 35, para. 2 of this law. It is considered to have not practiced, without a just reason, for more than 6 months even the advocate who has been sentenced with a long-term imprisonment or for more than 6 months, if from the declaration of the sentence has served at least 6 months. 76 See Articles 78 and followings of the Law on Advocacy and other Legal Assistance. 77 See Article 32 to 49 of the Statute of the Kosovo Bar Association. 78 See Articles 117 to 121 of the Statute of the Kosovo Bar Association. 79 See Articles 121 to 125 of the Statute of the Kosovo Bar Association.

632 • Defense in International Criminal Proceedings •

the organs in charge of disciplinary proccdurc.s" which are a disciplinary prosecutor, a first instance disciplinary court, and a higher disciplinary court;

•

the disciplinary proceedings, from the moment the disciplinary prosecutor receives a request against a lawyer to the final decision delivered by the higher disciplinary court.f"

As mentioned in Article 117 of the Statute of the Bar Association.s" in addition to the Law and the Statute, the Code of Professional Ethics also provides for the lawyers' accountability in case of violations of their duties and advocacy authority.

8.1.5.3. The Code of Lawyers' Professional Ethics A new Code of Professional Ethics was adopted by the Assembly of the Kosovo Chamber of Advocates on April 25, 2004. 83 The Kosovo lawyers ought to respect the provisions of this latter version of the Code of Professional Ethics. The Code of Professional Ethics sets out the basic principles and rules of conduct that lawyers are required to follow when practicing law. It covers 14 topics, as follows: I.

Basic principles

II.

Professional secrecy

III.

Relations with client

IV.

Defense and representation in criminal cases

V.

Relations with Bar association

VI.

Relations with Courts, administrative bodies and other state bodies

VII.

Obligation to inform regarding compensation

VIII. Relations of lawyer with opposite party IX.

Mutual relations between lawyers

X.

Relations with praktikantsv'

XI.

Legal assistance to people in need

XII.

Management of lawyer's office

XIII. Advertising and soliciting XIV. Representation expenses

See Articles 99 to 116 of the Statute of the Kosovo Bar Association. See Articles 126 to 150 of the Statute of the Kosovo Bar Association. 82 Article 117 reads as follows: "The lawyers and professional assistants shall be held accountable in cases of their duty and advocacy authority violations. The law, this Statute and the Code of Professional Ethics predict their accountability for lawyers." 83 On October 27, 2001, the Kosovo Chamber of Advocates adopted a Code of ethics, which needed further improvements. 84 A person, who graduated in law and works in a law firm but who has not taken the bar exam yet. 80 81

Mixed Tribunals • 633

8.1.5.4.

The Provisional Criminal Procedure Code of Kosovo (PCPCK)-Discipline by the Bench

The PCPCK contains some provisions specifically applicable to lawyers dealing with criminal cases. Firstly, it provides that defense counsel shall perform their duties properly. If they fail to do so, the President of the Court may dismiss them. Article 75 Section 4 of the PCPCK provides as follows: The president of the court may dismiss an appointed defense counsel who is not performing his or her duties properly at the request of the defendant or with his or her consent. The president of the court shall appoint an independent defense counsel of experience and competence commensurate with the nature of the offence in place of the dismissed defense counsel. The bar association of Kosovo shall be informed of the dismissal of any defense counsel who is a member of the Bar. In addition, the Code specifically prohibits defense counsel from engaging in certain types of conduct, such as the ones enumerated below: (1) To prolong criminal proceedings by their actions.s- or to insult or to offend the court or an individual participating in procccdings.s'' If defense counsel act in this manner, the court may impose a fine on them up to 250 Euros. The bar association of Kosovo is informed of the imposition of the fine. (2) To disturb order or to fail to comply with the directions of the presiding judge regarding the maintenance of order during the main trial. If defense counsel act in this manner, the presiding judge shall warn them first. If the warning is of no avail, the trial panel may impose a fine on them up to 1.000 Euros. If defense counsel, after being punished continues to be disruptive, the trial panel may deny them the right to represent their client at the main trial. The bar association of Kosovo shall be informed of the imposition of a fine.s? An appeal may be filed against a ruling imposing a punishment, and the trial panel may revoke the ruling. 88 In addition, if a defense counsel commits a criminal offense while the court is in session at the main trial, the trial panel may, upon an oral charge by the prosecutor, recess the main trial and try the criminal offense committed right away or may consider it after concluding the main trial.t"

8.1.6.

Defense Counsel's Rights

Lawyers, who are regularly registered with the Kosovo Chamber of Advocates, are entitled to various rights while practicing law. Those rights are enumerated in the Law on Advocacy and Other Legal Assistance of 1979, the Statute of the Kosovo Chamber of Advocates and the Code of Professional Ethics. 85 86

87 88 89

Article Article Article Article Article

146 § 1 and 2 PCPCK and 308 § 2 PCPCK. 85 § 1 PCPCK. 336 §§ 1, 3 and 6 and 337 PCPCK 337 PCPCK. 338 § 2 PCPCK.

634 • Defense in International Criminal Proceedings In addition, the Provisional Criminal Procedure Code of Kosovo contains specific provisions applicable to defense counsel. More particularly, the PCPCK sets out that defense counsel have the right not to accept a case and to withdraw from it. In that case, defense counsel shall immediately notify the authority conducting the proceedings and whoever has appointed him.?" When a defense counsel have been appointed at public expense, he can seek to be dismissed but only for good cause."! Defense counsel also have the following rights, which are enumerated in Article 77 of the PCPCK and which apply at all stage of the proceedings: (1) The defense counsel has the same rights that the defendant has under the law, except those explicitly reserved to the defendant personally. (2) The defense counsel has the right to freely communicate with the defendant orally and in writing under conditions which guarantee confidentiality" This provision is a departure from the applicable law in Kosovo according to UNMIK Regulation 1999/24 and 2000/59 (i.e., Article 74 Section 2 of the SFRY CPC), which permitted, at the investigation stage, the supervision of correspondence between the defendant and his defense counsel by the investigatingjudge, and which also allowed the investigative judge or some official to be present during conversations between defense counsel and client.v'' In addition, the PCPCK provides, under Article 77 Section 3, that defense counsel also have the right to be notified in advance of the venue and time for undertaking any investigative actions and to participate in them and to inspect the records and evidence of the case in accordance with the provisions of the present Code.

8.1.7. 8.1.7.1.

Role of Defense Counsel Before Kosovo Mixed Tribunals Procedure Applicable

There does not exist a specific set of rules of procedure, which would apply to war crimes and genocide cases only. Therefore, war crimes cases have, up to now, been investigated and tried according to the rules of procedure, which are set forth in the Socialist Federal Republic of Yugoslavia Criminal Procedure Code?' (SFRY CPC) and in the relevant UNMIK regulations. These procedural provisions were applied by all trial panels of the Kosovo District Courts dealing with war crime cases.i" i.e., by local

Article 76 § 1 PCPCK. Article 75 § 2 PCPCK. 92 See also Article 213 § 3, on the arrested person's rights, which provides: The arrested person has the right to communicate confidentially with defense counsel orally and in writing. Communications between an arrested person and his or her defense counsel may be within sight but not within the hearing of a police officer." 93 Article 74 § 3 FRY CPC however provided for free and confidential correspondence and communication between the defendant and his lawyer once the investigation was completed or an indictment was brought. 94 The Criminal Procedure Code of the Socialist Federal Republic of Yugoslavia, June 30, 1977, as amended in 1986. 95 According to Article 29 of the Law on regular courts, the District Courts have juris90

91

Mixed Tribunals • 635

judge panels, mixed panels (composed of local and international judges) and international judge panels.t" On April 6, 2004, the Provisional Criminal Procedure Code entered into force. Pursuant to the provisions of this Code, investigations initiated before the date of its entry into force and that have not been completed by April 6, 2004, shall be continued and finished according to the SFRY CPC provisions.v? Similarly, criminal proceedings at first instance in which the indictment or private charge was filed before the April 6, 2004, and which have not been completed by this date shall be continued according to the provisions of the SFRY CPC.98 But if an investigation for war crimes would be initiated after the date of entry into force of the Provisional Criminal Procedure Code of Kosovo (PCPCK) on April 6, 2004, the provisions of this new code would apply. It seems therefore relevant to make an overview of the role of the defense counsel according to the rules of procedure, which are set out in the Provisional Criminal Procedure Code of Kosovo.

8.1.7.2. 8.1.7.2.1.

Role ofthe Defense Counsel atthe Pre-Trial Stage During the Investigation

By contrast with the SFRY CPC's proceedings where an investigative judge is responsible for investigating criminal offenses, the investigation is now conducted and supervised by the public prosccutor.P? The defense counsel's main activities during the investigative stage is to participate in the investigative actions and to inspect the records and evidence of the case in order to prepare the defense case in an adequate manner.l'" The tasks of the defense counsel during the investigative stage can therefore be described as follows:

diction for criminal offenses, which carry a penalty of more than five years of imprisonment or capital punishment. 96 See United States Institute of Peace, Special Report 112, International Judges and Prosecutors in Kosovo, A new model for post-conflict peacekeeping, by Michael E. Hartmann, October 2003: "UNMIK set the precedent for hybrid courts. No international judges and prosecutors had ever been appointed to serve within a judicial system, alongside their existing counterparts, and operating under existing law and procedure." 97 PCPCK Article 549. 98 PCPCK Article 550. 99 See Article 46 PCPCK. A pre-trial judge is however competent to decide on individual rights and freedom related issues, such as detention, physical examination, searches of premises and covert and technical measures of surveillance and investigation. 100 Article 77 § 3 PCPCK sets out: "The defense counsel has the right to be notified in advance of the venue and time for undertaking any investigative actions and to participate in them and to inspect the records and evidence of the case in accordance with the provisions of the present Code." 101 Article 69 § 2 PCPCK.

636 • Defense in International Criminal Proceedings •

To be present during the suspect's examination."?' which is conducted by the public prosecutor, the judicial police and, exceptionally, by the regular policc.l'" Defense counsel are entitled to consult with their clients prior and during examination.J'"

•

To be present during the examination of the witness or expert witnessl''! and to examine witnesses.l'"

It must be noted that, according to Article 156 Section 2 of the PCPCK, a statement given to the police or the public prosecutor may be admissible in court only when the defendant or defense counsel has been given the opportunity to challenge it by questioning the witness during some stage of the criminal proceedings. Therefore, if a witness does not appear at the main trial, the statement that he has given to the police or the prosecutor would be admissible evidence only if the defense has examined the witness prior to the trial. This new provision incorporates a principle, which has been set forth by the European Court of Human RightS. 106 •

To be present when a search of premises or of a person is performed 107 or when a site inspection or reconstruction is conducred.l'"

•

To apply to the prosecutor to collect certain evidence. 109 oreover, defense counsel may file a motion for an expert analysis to be ordered by the court.U?

In addition, it is of interest to note that at all stage of the proceedings the defense has full access to: •

records of the examination of the defendant,

•

material obtained from or belonging to the defendant,

Article 231 § 1 PCPCK. Article 231 § 2( 4) and § 3 PCPCK. 104 Article 237 § 3 PCPCK. 105 Artcile 156 § 2 PCPCK. See also Article 238 § 1 and 2 PCPCK, according to which, defense counsel may, on an exceptional basis, file a motion to request the pre-trial judge to take testimony from a witness or to request an expert analysis for the purpose of preserving evidence where there is a unique opportunity to collect important evidence or there is a significant danger that such evidence may not be subsequently available at the main trial. If the pre-trial judge take such a measure, the defendant and his defense counsel shall be present at the hearing for the taking of testimony-which is conducted in accordance with the provisions of the new Code regarding the examination of witnesses and expert witnesses (notably Article 165). 106 See European Court of Human Rights, Unterpertinger v. Austria, judgment dated Nov. 24, 1986. 107 Article 242 §§ 1 and 2 and 243 § 7 PCPCK. 108 Article 254 § 3 PCPCK. 109 Article 239 PCPCK, which reads: (1) During the investigation the injured party or the defendant may apply to the public prosecutor to collect certain evidence. (2) The public prosecutor shall collect such evidence if there is a danger that the evidence will be lost or if such evidence may justify the release of the defendant from detention on remand, or there are other justified reasons to collect such evidence. If the public prosecutor rejects the application to collect evidence, he or she shall render a decision supported by reasoning and notify the injured party or the defendant. The injured party or the defendant may appeal such decision to the pre-trial judge. 110 Article 176 § 1 PCPCK. 102 103

Mixed Tribunals • 637

•

material concerning such investigative actions to which defense counsel has been or should have been admitted or expert analyses."!'

Article 142 Section 3 of the PCPCK further provides that the public prosecutor shall permit the defense to inspect, copy or photograph: any records, books, documents, photographs and other tangible objects in the possession, custody or control of the public prosecutor which are material to the preparation of the defense or are intended for use by the public prosecutor as evidence for the purposes of the confirmation hearing or at main trial, as the case may be, or were obtained from or belonged to the defendant. The public prosecutor may, however, refuse to allow the defense access to such material "if there is a sound probability" that it "may endanger the purpose of the investigation or the lives or health of people." In such case, the defense can apply to a pre-trial judge to grant the inspection, copying or photocopying. The decision of the pre-trial judge is final."!" It must be noted that, once the investigation is completed, the defense is entitled to inspect, copy or photograph all records and physical evidence available to the court.U'' Nevertheless, the access of the defense to the file and evidence of the case remains subject to the measures protecting injured parties and witnesses and their privacy and the protection of confidential information as provided for by law' ':'

8.1.7.2.2.

Filing and Confirmation ofthe Indictment

After the investigation has been completed, proceedings before the court may be conducted only on the basis of an indictment filed by the public prosecutor in the competent court.U> The provisions in the new Code on the confirmation of the indictment sets up a new proceedings, which replaces the former one, as provided by the SFRY CPC, of serving of indictment and traverse of indicrment.U'' The most relevant provisions related to the role of the defense counsel at this stage of the proceedings are reviewed below. Disclosure of evidence by the public prosecutor and the defense. No later than at the filing of indictment, the prosecutor shall provide the defense counsel with the materials listed in Article 307 Section 1 of the PCPCK,117 if they have not already been given to the

Article 142 § 1 PCPCK. Article 142 § 3 PCPCK. 113 Article 142 § 2 PCPCK. 114 Article 142 § 4 PCPCK. 115 Article 304 § 1 and 306 § 2 PCPCK. 116 Article 261 to 278 FRY CPC. 117 These materials are: (1) Records of statements or confessions, signed or unsigned, by the defendant; (2) Names of witnesses whom the prosecutor intends to call to testify and any prior statements made by those witnesses; (3) Information identifying any persons whom the prosecutor knows to have admisIII

112

638 • Defense in International Criminal Proceedings

defense counsel during the invcstigarion.l " Then, no later than eight days after having received from the public prosecutor the materials above mentioned and no later than at the confirmation hearing or before the beginning of the main trial (when there are no such hearing), the defense counsel shall, where appropriatc.U? (1) notify the prosecutor of the intent to present an alibi (specifying the place or places at which the defendant claims to have been present at the time of the alleged criminal offence and the names of witnesses and any other evidence supporting the alibi); (2) notify the prosecutor of the intent to present a ground for excluding criminal liability (specifying the names of witnesses and any other evidence supporting such ground); and

(3) provide the prosecutor with the names of witnesses whom the defense intends to call to testify.120

Serving and confirmation of indictment. Immediately upon receiving the indictment, a judge, who will conduct the proceedings to confirm the indictment, shall check whether the indictment is drawn up in accordance with Article 305 of the Code. 121 If such is the case, he shall immediately schedule the confirmation hearing and summon the defendant and defense counsel to this hearing.l-" The defendant and his defense counsel shall be served with the indictment at least eight days before the confirmation hcaring.P" After being served with the indictment, the defendant has the right to choose between three options.lv' (1) to waive the review of the indictment and of the evidence; (2) to waive the confirmation hearing and submit written objections to the indictment or the admissibility of evidence; or

(3) to proceed with the confirmation hearing. At that stage, the defense counsel can also submit names of witnesses and expert witnesses that will be called at the main trial. 125 sible and exculpatory evidence or information about the case and any records of statements, signed or unsigned, by such persons about the case; (4) Results of physical or mental examinations, scientific tests or experiments (5) Criminal reports and police reports; and (6) A summary of, or reference to, tangible evidence obtained in the investigation. (Article 307 § 1.) 118 After the filing of the indictment, the prosecutor shall provide the defense counsel with any new materials within ten days of their receipt (Article 307 § 3 PCPCK). 119 Article 308 § 1 PCPCK. 120 If the defense counsel has not done so, and the court finds no justifiable reasons for such omission, the court may impose a fine of up to 250 EUR upon the defense counsel and inform the bar association of Kosovo of this (Article 308 § 2 PCPCK). 121 Article 305 provides for the information that the indictment shall contain. 122 Article 306 § 2 and 309 § 1 and 2 PCPCK. 123 Article 309 § 2 PCPCK. 124 Article 309 § 3 PCPCK. 125 Article 309 § 4 PCPCK.

Mixed Tribunals • 639 •

If the defendant chooses option 1, i.e., to waive the review of indictment and of the evidence, he shall file a written waiver with the judge at least three days before the confirmation hcaring.l-" The defense counsel shall assist him in doing so.

•

If the defendant chooses option 2, i.e., to waive the confirmation hearing and to submit written observations to the indictment or the admissibility of evidence.t-? the defense counsel shall assist him in filing a waiver with the judge and in submitting written objections, which shall be filed at least three days before the confirmation hearing.

.

If the defendant chooses option 3, it will be proceeded with the confirmation hearing (see below). Confirmation hearing. The defendant must be present at this hearing128 and may be

•

represented by his defense counsel.l'" The judge shall first check that the right of the defendant to defense counsel has been satisfied and that the defense counsel and public prosecutor have disclosed their evidence.l'" After the reading of the indictment by the public prosccutorl " and the statement of the defendant on whether or not he pleads guilty,132 the defense counsel has the right Article 310 provides that: (1) If the defendant wishes to waive the review of the indictment and of the evidence, he or she shall file a written waiver with the judge at least three days before the date on which the confirmation hearing has been scheduled. (2) The judge shall render a ruling to accept the waiver and to cancel the confirmation hearing if he or she is satisfied that the defendant understands the consequences of such waiver. The judge shall immediately inform the defendant, the prosecutor and the injured party of the ruling. (3) If the judge renders a ruling to reject the waiver of the defendant, the confirmation hearing shall proceed as scheduled. 127 Article 311 provides that: (1) If the defendant wishes to waive the confirmation hearing and submit written objections to the indictment or the admissibility of evidence, he or she shall file a written waiver with the judge and shall submit any written objections at least three days before the date on which the confirmation hearing has been scheduled. (2) The judge shall render a ruling to accept the waiver if he or she is satisfied that the defendant understands the consequences of such waiver. The judge shall immediately notify the defendant, the prosecutor and the injured party of the ruling and serve written objections of the defendant on the prosecutor and the injured party. (3) The prosecutor and the injured party may file their own written statements within eight days of the notification. (4) Within three days of the receipt of written statements from the prosecutor and the injured party or of the expiry of the prescribed period of time under paragraph 3 of the present article, the judge shall proceed in accordance with Article 316 of the present Code. (5) If the judge renders a ruling to reject the waiver of the defendant, the confirmation hearing shall proceed as scheduled. 128 Article 313 § 2 PCPCK. 129 Article 314 § 1 PCPCK. 130 Article 314 § 2 PCPCK. 131 Article 314 § 3 PCPCK. 132 Article 314 § 4 PCPCK. 126

640 • Defense in International Criminal Proceedings to make some statements.l'f Notably, the defense counsel is entitled to raise issue relating to the admissibility of evidence.l'" The role of the defense counsel at this stage is crucial. In advising the defendant on whether or not to enter a guilty plea, the defense counsel must explain to his client the nature and consequences of entering such plea. 135 Hence, where the defendant pleads guilty, the judge shall determine whether: (1) the defendant understands the nature and consequences of the guilty plea. (2) the guilty plea is voluntarily made by the defendant after sufficient consultation with defense counsel.l'"

In considering the guilty plea of the defendant, the judge may invite the views of the defense counsel.l''? After hearing the parties, the judge will give a ruling: •

dismissing the indictment and terminating or suspending the procccdings.I'f or

•

declaring the court not competcnt.l''? or

•

confirming the indictment.l-"

The judge may also declare specific evidence inadmissible.l"!

8.1.7.3.

The Role ofthe Defense Counsel atthe Main Trial

The accused and the defense counsel will be summoned to appear at the main trial 142 no less than eight days before the date of the trial so as to have sufficient time to prepare his defense .143 At the main trial, the defendant will be asked to confirm his guilty plea. 144 If the defendant confirms his guilty plea, the presidingjudge may invite the views of the defense coun-

Article 314 § 5 PCPCK. Article 154 § 2 PCPCK. 135 Entering a guilty plea constitutes merely a circumstance that the Court shall take into account when determining the punishment (Article 64 §§ 1 and 70 § 3 of Provisional Criminal Code). However, the defense counsel and the public prosecutor may agree on modification of charges or on the guilty plea. However, in that case, the judge is not bound by their agreements (nor by the legal designation of the criminal offence set forth by the prosecutor in the indictment) (Article 316 § 6 and Article 386 § 3 PCPCK). 136 Article 315 § 1 PCPCK. 137 Article 315 § 2 PCPCK. 138 Article 316 § 1 and 2 PCPCK. 139 Article 316 § 3 PCPCK. 140 Article 316 § 4 PCPCK. 141 Article 316 § 5 PCPCK. 142 Article 321 § 1 PCPCK. 143 Article 321 § 3 PCPCK. The defense counsel may file a motion to adjourn the date of the main trial (Article 325 PCPCK). 144 Article 327 § 1 and 358 § 1 PCPCK. 133 134

Mixed Tribunals • 641 sel. I45 If the trial panel is satisfied that the requirements under Article 315 Section 1 of the PCPCKI46 have been met, the trial will continue with the closing arguments.':'? If the defendant does not confirm his guilty plea, the trial may be adjourned to summon witnesses and expert witnesses.I'" It must be noted that: •

If the accused does not want to give any testimony regarding his guilt, it shall be considered that he has pleaded not guilty.I49

•

If the accused has pleaded guilty but the trial panel is not satisfied that the requirements under Article 315 Section 1 have been met, it shall proceed as if the guilty plea has not been made.t>"

During the main trial, the main tasks of the defense counsel are as follows: (1) To consult with his clicnt.!"! (2) To request the collection of new evidence.l'"

(3) To present and challenge evidence. The PCPCK sets out a new rule whereby prosecution evidence shall be presented first, followed by evidence proposed by the defense counselor the defendant and finally the evidence that the trial panel has ordered to be collected ex officio. I 53 Article 359 § 3 PCPCK. Article 315 § 1 provides that: Where the defendant pleads guilty on each count of the indictment under Article 314 paragraph 4 of the present Code, the judge shall determine whether: 1) The defendant understands the nature and consequences of the guilty plea; 2) The guilty plea is voluntarily made by the defendant after sufficient consultation with defense counsel, if the defendant has a defense counsel; 3) The guilty plea is supported by the facts of the case that are contained in the indictment, materials presented by the prosecutor to supplement the indictment and accepted by the defendant; and any other evidence, such as the testimony of witnesses, presented by the prosecutor or the defendant; and 4) None of the circumstances under Article 316 paragraphs 1 to 3 of the present Code exists." 147 Article 359 §§ 2 and 5 and see Article 378 PCPCK. 148 Article 359 § 1 PCPCK. 149 Article 358 § 3 PCPCK. 150 Article 359 § 4 PCPCK. 151 Article 359 § 6 provides for the consultation between the accused and his defense counsel, as follows: The accused may in the course of the main trial consult with his or her defense counsel, except that during an examination the accused may not consult either his or her defense counselor any other person on how to answer a question put to him or her. In the same way, Article 231 §§ 2-4 and 3 PCPCK provides that defense counsel can consult with the defendant prior to as well as during the examination. 152 The defense counsel may file a motion, even after the main trial has been scheduled, for new witnesses or expert witnesses to be summoned to the main trial or for new evidence to be collected. If the motion for collection of new evidence is rejected, such motion may be repeated during the main trial (Article 322 §§ 1 and 2 PCPCK). See also Article 360 § 4 PCPCK. 153 Article 360 § 3 PCPCK. 145 146

642 • Defense in International Criminal Proceedings As regard challenging evidence, the rule is that: "A party shall raise an issue relating to admissibility of evidence at the time when the evidence is submitted to the court and in particular in the proceedings on the confirmation of the indictment."154 However, exceptionally it may be raised later, and notably during the main trial, if the party did not know such issue at the time when the evidence was submitted or if there are other justifiable circumstances.l-> (4) To examine prosecution and defense witnesses.

Article 165 Section 1 provides that the public prosecutor shall first examine prosecution witnesses and the defense counsel shall first examine defense witnesses. Each party is entitled to examine the witness who has been examined by the other party. (5) To examine the accused.l'"

The prosecutor examines first the defendant, followed by the defense counsel.l-? (6) To present the closing statements. The new Code provides, regarding closing arguments, that: I58 (1) Upon completion of the evidentiary proceedings, the presiding judge shall call on the parties, the injured party and the defense counsel to sum up their arguments. The prosecutor shall speak first, then the injured party and the defense counsel, and finally the accused.

(2) Persons presenting closing statements may refer to the admissible evidence, as well as the proceedings, the applicable law, the character and demeanour of the witnesses as observed in the judicial proceedings, and may use charts, diagrams, court-approved transcripts of tapes, summaries and comparisons of evidence, if they are based on admissible evidence, as well as enlargements of exhibits and any demonstrative or illustrative exhibit or demonstration made in court. Article 381 of the PCPCK further sets out as follows: (1) The defense counselor the accused himself or herself shall present the defense in a closing statement and may comment on the allegations of the prosecution and the injured party.

(2) After the defense counsel has presented arguments for the defense, the accused shall have the right to speak him or herself, to assert whether he or she agrees with the defense presented by his or her counsel and to supplement such defense. (3) The prosecutor and the injured party shall have the right to respond to the defense, and defense counselor the accused shall have the right to comment on those responses. (4) The accused shall always have the right to speak last. Article 154 § 2 PCPCK. Id. Moreover, in the absence of an application by a party, the court must rule on the admissibility of evidence ex officio if at any time during the proceedings a suspicion arises about the legality of evidence. Id. 156 See Article 371 PCPCK. 157 Article 372 § 1 PCPCK. 158 Article 378 PCPCK. 154

155

Mixed Tribunals • 643 It must be noted that Article 382 of the PCPCK imposes a few limitations on the way closing statements are presented.l''? After the closing statements of the parties, if the trial panel does not find a need for any further evidence, the presidingjudge indicates that the main trial has been concluded and the panel withdraw to deliberate.l'"

8.1.7.4.

The Role ofDefense Counsel at the Appeal Stage

The District Courts' trial panels pronounce the verdict in a public session.l'" It must then be submitted in writing within 15 days from its pronouncement if the accused is in detention and within 30 days in other insrances.l'< It must be noted however that, in Kosovo, the District Courts' practice in war crimes cases has been to release the written verdicts a few months after the verdicts have been pronounced publicly.l's' The prosecutor, the accused and defense counsel, as well as the injured party have the right to appeal the verdict before the Kosovo Supreme Court.lv' If they wish to do so, they have to announce an appeal no later than eight days after the date of the announcement of the judgrnent.tv' According to Article 402 of the PCPCK, the grounds for appeal may be: •

a substantial violation of the provisions of criminal procedurc.l'f

•

a violation of the criminal law.l''?

•

an erroneous or incomplete determination of the factual sirnarion.l'"

In addition, an appeal may also be filed on account of a decision on criminal sanctionsl''? or to contest, inter alia, decisions on the costs of the criminal procccdings.l?"

159 According to this provision, closing statements are not limited in time, but the presiding judge may, upon prior warning, interrupt the speaker who in his closing statements offends public order and morality, insults another person, repeats himself or speaks at great length on matters manifestly irrelevant to the case. The interruption and the reason for this shall be noted in the record of the main trial. Moreover, when there are several defense counsel representing one defendant, they shall not repeat the same arguments. 160 Article 383 PCPCK. 161 Article 392 § 2 PCPCK. 162 Article 395 § 1 PCPCK. 163 See OSCE Mission in Kosovo, Legal System Monitoring Section, Report 9-0n the administration of justice, Mar. 2002, at 14 and 15. For instance, in Gashi and Others case, the oral verdict was pronounced by the District Court of Prishtine/Pristina in a public session on July 16, 2003 and the written verdict was delivered to the lawyers in Albanian on December 16, 2003. 164 Article 399 PCPCK. 165 Article 400 § 1 PCPCK. 166 See Article 403 PCPCK. 167 See Article 404 PCPCK. 168 See Article 405 PCPCK. 169 See Article 406 § 1 PCPCK. 170 See Article 406 § 3 PCPCK. See also Article 406 §§ 2 and 4 PCPCK.

644 • Defense in International Criminal Proceedings An appeal hearing will be held only when it is necessary to take new evidence or to repeat evidence already taken due to an erroneous or incomplete determination of the factual situation, and when there are valid grounds for not returning the case to the court of first instance for retrial."?' At this hearing the accused and his defense counsel will have to set out their arguments. They shall always have the last word.l?? They may also present new evidence and new facts.l'" The Kosovo Supreme Court's decisions may be as follows: •

to dismiss the appeal as belated or inadmissible because, inter alia, it was not filed within the time limit period'?" or by the authorized person.t"

•

to reject the appeal as ungrounded and to confirm the verdict of the first instance court.l?"

•

to annul the judgment and return the case to the first instance court for retrial and decision; 177

•

to modify the first instance judgment.!"

In Kosovo, in most war crime cases, the Supreme Court overturned part or the whole judgment and the cases were sent for retrial before first instance courts.!"? The Supreme Court of Kosovo also has a tendency of delivering its writtenjudgments to the parties within an unreasonable time. For instance, in the Kolasinac case, although the Supreme Court pronounced its verdict in a public session on October 22, 2003,180 the written judgment was delivered to the parties in November 2004. 181

8.1.8.

Annex I:The Statute ofthe Kosovo Bar Association*

I. GENERAL PROVISIONS Article 1 The Statute regulates: 1. The structure of the Kosovo Bar Association (hereinafter: the Bar), 2. Authorisations, founding and the functions of Bar's bodies,

Article 412 § 1 PCPCK. Article 406 § 3 PCPCK. 173 Article 406 § 4 PCPCK. 174 Article 421 PCPCK. 175 Article 422 PCPCK. 176 Article 423 PCPCK. 177 Article 424 and 425 PCPCK. 178 Article 426 PCPCK. 179 See OSCE Mission in Kosovo, Legal System Monitoring Section, Kosovo's War Crimes Trials: A Review, notably at 48, 49 and 55 (Sept. 2002). 180 See Prosecutor v. Andjelko Kolasinac, Supreme Court of Kosovo, Decision on detention ofJan. 9, 2004. 181 See Prosecutor v. Andjelko Kolasinac, Supreme Court of Kosovo, Judgment of Aug. 5, 2004. 171 172

Mixed Tribunals • 645

3. The forms of associations and co-operation amongst lawyers, 4. The requirements for the work of advocacy offices, joint offices of lawyers and relationship between advocacy offices, 5. The rights and obligations of lawyers and professional assistants, 6. The disciplinary procedure to determine the liability of both the violation of obligations and the infringement of advocacy's authority,

7. The bodies entitled for the initiation and conduct of the disciplinary procedure and 8. Other significant advocacy issues.

Article 2 The Bar is an independent organisation of lawyers established by law. The Bar represents Kosovo's advocacy. The Headquarters of the Bar is in Prishtina. The Bar has its own square stamp, round stamp and its symbol.

Article 3 The Bar, in compliance to the Law on Advocacy and Legal Aid, relying on its both the Statute and lawyer's Code of Ethics and relying on other general acts, advances the advocacy as an autonomous and independent service, through the provision of legal aid to the citizens and legal/natural entities in realisation of their rights and their interests.

Article 4 Bar's special tasks are as follows: 1.

To preserve its authority and autonomy of advocacy and to ensure the conditions for regular exercise of lawyers activities,

2.

To supervise lawyers, joint offices of advocacy as well as some other forms of relations between lawyers for the protection of rights and interests of parties,

3.

To build-up permanently the professional level of both lawyers and professional assistants and in relation to that, to establish various forms of co-ordination with courts, administrative bodies, scientific institutions, law faculties, similar international organisations and other organisations, institutions which are important for the fulfilment of this task.

4.

To develop and advance the ethic of advocacy,

5.

To analyse and study key phenomena for the purpose of advancing and protecting the rights of citizens and legal entities,

6.

To inform local competent bodies of a different instances regarding the situation and measures that need to be undertaken for the advancement of advocacy and the rights of citizens and legal entities,

646 • Defense in International Criminal Proceedings

7. To take care of finances and other interests of advocacy, 8. To take care of the rights and status of retired lawyers and employees in the advocacy offices and 9. To establish co-ordination contacts with other Bars, various national and international scientific institutions.

Article 5 For the procedure of registration of lawyers and professional assistants and for the resumption of registration procedure as well as for other cases of deciding upon lawyer's rights and duties, professional assistants and lawyer's associations, the applicable law is the Administrative Procedure Code, if by Law, Statute or another Bar's act isn't determined otherwise.

II. THE LICENSING OF ADVOCACY Article 6 The status of lawyer is acquired upon registration in the lawyer's register and after taking an oath. The person who is registered in the lawyer's register and who has taken an oath is called the lawyer. Upon registration, the decision and an ID Card is issued to the lawyer.

Article 7 Lawyer's ID Card in Albanian, English and Serbian language contains: 1. inscription "Kosova Bar Association," 2. denomination "Lawyer's ID Card," 3. the number of ID Card, which matches with the ordinal number on the register book, 4. the capacity "lawyer," 5. name, surname, date and place of birth, lawyer's office location, 6. lawyer's photo and the date of issuance of ID Card,

7. a Bar's stamp, which has to cover the bottom-right side of the photo and 8. the signature of the President of the Bar.

Article 8 The Bar's Executive Board decides upon the size and shape of lawyer's ID Card.

Article 9 If for any reasons the data in ID Card is changed or damaged, the lawyer is obligated to immediately ask for a new ID Card.

Mixed Tribunals • 647

Article 10 If the lawyer ceases his profession, he is obliged to inform the Bar 30 (thirty) days in advance and to hand over ID Card.

Article 11 The request for registration in the lawyer's register should be addressed to the Bar.

Article 12 The request should contain attached evidences on the compliance with the requirements contemplated by the Law on registration in lawyer's register.

Article 13 The Bar's Executive Board decides upon the registration request.

Article 14 Against the Executive Council's decision, which refuses the request for registration, an appeal can be filed within 15 days from the day the decision was made. The appeal shall be submitted to the Commission in charge of reviewing the appeal, which is appointed by the Assembly of the Bar, and decides upon the appeal within 60 days from the day when the appeal was received.

Article 15 Referring to the Commission in the above-mentioned article, the Executive Council members shall not take part in its composition. The Commission appeal procedure is chaired by one of the senior members of the Bar, who shall sign the decision that has been made.

Article 16 The lawyer's registration procedure initiated on applicant's request, shall cease if it is confirmed that against the applicant any investigating procedure has commenced for the criminal act that makes him undeserving in lawyer's professional activity performance and if any disciplinary procedure against him has started in the organisation where he works.

Article 17 If after being registered in lawyer's register, it is confirmed that during the registration procedure same lawyer did not fulfil the requirements necessary for lawyer's profession exercise, the registration procedure shall resume and initiated by the disciplinary prosecutor, President of the Bar, Executive Council or Assembly of the Bar.

648 • Defense in International Criminal Proceedings

The decision on removal of his/her name from lawyer's register will be taken in the resumed procedure

Article 18 The applicant, whose request for the registration in lawyer's register has been approved, shall solemnly take an oath in front of the President of the Bar or in front of any other lawyer who is authorised by the President. If the registered lawyer does not take an oath within 30 (thirty) days, the Executive Council will take a decision on deleting his name from lawyer's register.

III. THE PROFESSIONAL ASSISTANT Article 19 The right to exercise the job of a professional assistant is acquired by the act of registration in the professional assistant's register.

Article 20 The registration request should be submitted to the Executive Council of the Bar, which will decide upon the request.

Article 21 The request should have attached evidences on meeting the requirements foreseen for the registration and also the contract made between the professional assistant and the lawyer or Bar, on his acceptance for exercising the work of a professional assistant.

Article 22 Provisions related to the registration, the right to appeal and decision upon the lawyer's appeal, are appropriately applied to the professional assistants too.

IV. THE BAR'S REGISTERS Article 23 The Bar possesses with the following registers: 1. The lawyer's register, 2. The professional assistant's register, 3. The joint advocacy office's register, 4. The lawyer associations register, 5. The register of contracts on the relationship between the offices of lawyers.

Mixed Tribunals • 649

Article 24 The registers from the above mentioned article are binding books. The book-pages are marked with ordinal numbers and bound with a tape on which, the Bar's wax stamp is printed on it.

Article 25 Each register is certified by the President of the Bar by writing on the upper part of the first page the total number of pages and the certification date, its signature and the stamp of Bar.

Article 26 The Executive Council through a particular decision determines the manner of administration and the filling up of registers. The registers can be maintained also through electronic means.

Article 27 The lawyer's register shall contain the following information: 1.

Lawyer's name and surname,

2.

Lawyer's personal number,

3.

Date and place of birth,

4.

Date of registration,

5.

Number and date of the decision upon the registration in the Bar,

6.

The date when the solemn oath was taken,

7. Lawyer's headquarters, 8.

The status of lawyer in lawyer's association,

9.

The membership in the joint office,

10. The numbers and the dates of decisions by which the changes in the work of lawyer have been constituted, 11. The date and the reason for the removal of lawyer's name from the register together with the number and the date of the decision, 12. Lawyer's name and surname, number and date of decision, 13. The information on the commencement of the disciplinary procedure including the number and date of the decision, 14. The information on the commencement of the disciplinary procedure together with all elements of this procedure and 15. The information on the membership and their mandate in the bodies of the Bar.

650 • Defense in International Criminal Proceedings

Article 28 The professional assistant's register shall contain the following information: 1.

The professional assistant's name and surname,

2.

His/her personal number,

3.

The date and the place of birth,

4.

The date of registration and the decision's number and date,

5.

Information on the lawyer's office where the professional assistant is working,

6.

The duration of professional assistant's internship,

7. The information on decisions which have changed professional assistant's work, 8.

The date and justification of professional assistant's name removal from the register together with the decision's date and number and

9.

Information on the commencement of resumed registration procedure, on the commencement of the disciplinary procedure together with decision dates and numbers.

Article 29 The register of two or more lawyers working in the same office shall contain the following information: 1.

The name and the surname of each lawyer,

2.

The evidence number of each lawyer registered on lawyer's register,

3.

The number by which the joint office is registered in the register ofjoint advocacy offices and

4.

The registration date and the registration decision date and number.

Article 30 The manner of administrating the registers for both, lawyers associations and joint offices, is determined by the decision of Bar's Executive Council.

Article 31 The register on the co-operation between lawyer's offices contains: 1.

The information on the office of lawyers who have signed the contract,

2.

Place and date of signing up the contract together with information on the supplementation and amendments that appeared afterwards,

3.

Short information on the content and form of co-operation and

4.

Date of registration, date and the number of decision.

Mixed Tribunals • 651

v.

THE RIGHTS AND DUTIES OF LAWYERS AND PROFESSIONAL ASSISTANTS Article 32

The lawyer has a right to elect and to be elected in the bodies of the Bar. The lawyers elected in such bodies are obliged to attend its meetings. The lawyers are obliged to act according to the decisions of the Bar bodies.

Article 33 As requested by the Bar, the lawyer is obliged to present all the information regarding his work and stance on his professional performance.

Article 34 When the lawyer is not able to exercise his profession in an extended period of time due to illness or absence, he/she is obliged to appoint his/her substitute from the lawyers' community. The relationship between those two shall be regulated by a special contract.

Article 35 The lawyer regarding the appointment of his/her substitute shall inform the Bar. If the lawyer does not appoint his/her substitute then the Bar will appoint his/her interim substitute.

Article 36 The absent lawyer will be replaced by other member lawyer belonging to a same association or office as it is regulated by the contract on the establishment of association or joint office.

Article 37 During his/her work lawyer can make an agreement with a party for legal aid provision for an extended period of time, with a certain periodical compensation. This agreement is made in a written mode.

Article 38 The lawyer is obliged to pay to the Bar the membership fee, including other obligations settled by the bodies of the Bar.

Article 39 Every practising lawyer must have the office stamp. The stamp shall contain:

652 • Defense in International Criminal Proceedings 1.

The inscription "Lawyer,"

2.

The Lawyer's name and surname,

3.

The eventual academic title and

4.

The office address.

If the lawyer is working in the association or in the joint office, the stamp shall contain the association's official acronym or the symbol ofajoint office. The stamp can contain the phone numbers, fax, telex, P.o. Box, the Internet address, too.

Article 40 The script in the lawyer's stamp can be written in all official languages in use in Kosovo.

Article 41 The plaque with the inscription of lawyer's office should be placed in the entrance of the office. The plaque should contain the sign "Lawyer," his/her name and surname and the official association's acronym or the joint office's symbol.

Article 42 The plaque set forth in the article 41 of this Statute shall not contain the image, size and the shape similar to advertising characteristics.

Article 43 If/when changing the office location or opening a new office, the lawyer is obliged to notify the Bar in written providing the new address, at least 15 days in advance. Within the same deadline the lawyer is obliged to notify the Bar in written about every eventual change on the name of the office.

Article 44 The lawyer is obliged to train his/her professional assistant in all legal fields.

Article 45 Provisions of the Statute and the Code of Ethics referring to the lawyer's rights and duties are applicable to the professional assistants too.

Article 46 The professional assistant can change the lawyer's office. If/when changing the office he/she is obliged to inform the Bar in written within 8 days. The notification should have attached the certificates from lawyer's offices, the one from where the professional assistant has resigned and the one where he/she continues to work.

Mixed Tribunals • 653

Article 47 The professional assistant, whose practice is ceased due to various legal reasons, can commence the registration procedure after those reasons do not exist any longer.

Article 48 The President of the Bar brings the decision for professional assistant's cease from the lawyer's office. The decision can be tackled by an appeal lodged to the Bar's Executive Council within 8 days after receiving the decision.

Article 49 The President of the Bar through a special act-decision shall cease the activity of a professional assistant while he/she is in pre-trial detention. The President of the Bar through a special act-decision can dismiss a professional assistant from the office if against him/her the disciplinary procedure has commenced already for the acts which makes the assistant undeserving for the professional assistant activity.

VI. THE LAWYER'S INTERIM SUBSTITUTE AND THE ADVOCACY OFFICE-AUTHORISED REPRESENTATIVE Article 50 If in accordance to the Law on Advocacy and Legal Aid and based on this Statute, the lawyer is suspended pursuant to the Bar's decision, the same Bar shall appoint lawyer's interim substitute chosen among lawyers community possibly within the same office. The appointment of a substitute shall be done through a same decision by which the lawyer's activity is ceased. The interim substitute has the same rights and duties that the replaced lawyer was vested with, even without a special authorisation by the parties.

Article 51 The interim substitute acts on behalf of his/her replacement and has the right to remuneration in compliance to the lawyer's tariff. The decision upon which the right to work is restored, supersedes the interim substitute's term of office.

Article 52 In case of ceasing the lawyer's activity, the Executive Council shall appoint the officeauthorised representative through a same decision by which the Council confirms the cease of lawyer's activity.

Article 53 An authorised representative shall inform the parties about revocation of practice to the previous lawyer and shall return all documentation to them immediately and not later than 30 (thirty) days after.

654 • Defense in International Criminal Proceedings

Article 54 The authorised is obliged, in correct manner, without any special authorisation, to represent party's urgent interests, until the parties do not withdraw the case or the auth 0 risati 0 n.

Article 55 If the lawyer's practice ceases due to his/her death, his/her close family members have the right to propose the office-authorised representative. Such a proposal is subject to Executive Council review.

Article 56 The lawyers are obliged to except office-authorised representative appointment. An authorised representative acts on his/her behalf and account.

Article 57 After concluding the works derived from ex-lawyer's office, the authorised representative shall submit the profit, in cash, to ex-lawyer's descendants, including different documents belonging to ex-lawyer.

Article 58 The authorised representative shall contract with ex-lawyer or his/her descendants the conditions for closing the office. When failing to sign the contract within a reasonable time, the President of the Bar through a special decision shall determine those conditions. This decision can be tackled against by lodging an appeal to the Executive Council within 15 days from the day of receiving the decision. The appeal doesn't halt the execution of a decision.

Article 59 The authorised representative is obliged to submit to the Bar the activity report, including the report on office closure.

VII. BAR'S STRUCTURE Article 60 The bodies of the bar are as follows: 1.

The Assembly of the Bar

2.

The Executive Council of the Bar

3.

The President of the Bar

Mixed Tribunals • 655 4.

The Supervisory Council of the Bar

5.

The Appeal Assembly Commission

6.

The First and a Second instance Disciplinary Prosecutor

7. The Disciplinary Court 8.

The Higher Disciplinary Court

9.

The Lawyer's Regional Meeting

Article 61 The term of office for members in above-mentioned bodies of the Bar is 3 (three) years, whereas the President of the Bar term of office is 1 (one) year.

The Assembly ofthe Bar Article 62 The Executive Council of the Bar once a year convenes the regular Assembly meeting of the Bar (hereinafter referred as "the Assembly).

Article 63 The Executive Council shall convene urgent Assembly meeting on its initiative, or if requested by 1/3-d of its members or if requested by at least three Regional Lawyer's Meetings.

Article 64 The Executive Council Members and the members of Regional Lawyer's Meetings requesting urgent assembly meeting, shall submit to the Executive Council the written request including draft agenda. The Executive Council shall convene urgent Bar assembly meeting not later than within 2 (two) month from the day when the request was received.

Article 65 Each member shall receive the invitation 15 days ahead for both, regular and urgent assembly meetings. The invitation shall be made public for daily media. The invitation shall contain the location and the time of assembly meeting.

Article 67 The Assembly is composed from all lawyers registered in Kosovo Bar Association Lawyer's Register.

656 • Defense in International Criminal Proceedings

Article 68 The Assembly meeting can be held and bring valid decisions if the majority of members attend the meeting. The Assembly brings decisions based on majority of votes.

Article 69 The Regional meeting's establishment, division and their cease, is decided by the Assembly only if 3/4-d of the membership attends the meeting.

Article 70 The Assembly member, against whom the permanent or temporary prohibition of advocacy practice was issued, can not attend the Assembly meeting.

Article 71 The Assembly of the Bar: 1.

Approves the Statute of the Bar and the Professional Code of Ethics for lawyers.

2.

Approves the Bar's Rules of Procedure.

3.

Drafts the Regulation for professional assistants.

4.

Drafts the Regulation for recognising specialised courses (LAK article).

5.

Elects and dismisses the President and the Vice-President of the Bar.

6.

Elects and dismisses the president and the members of the court and members of the disciplinary court, disciplinary prosecutor and his deputies.

7. Elects and dismisses Executive Council members. 8.

Elects and dismisses Supervisory Council members.

9.

Approves incomes and the outcomes of the Bar.

10. Reviews all the matters dealing with advocacy activities and advocacy position. 11. Reviews Executive Council's report. 12. Reviews Supervisory Council's report. 13. Runs debates, brings decisions and takes stances on the issues of the Bar's working advancements, collaboration with the membership and other international and local associations and institutions. 14. Reviews and brings decisions for all issues deriving from the Bar Body's scope of activities. 15. Reviews and decides on other issues.

Article 72 The chairmanship runs the Assembly meeting. The President of the Bar signs all the decisions and acts which the Assembly approves.

Mixed Tribunals • 657

In extraordinary situations, the President of the Bar can authorise the Vice-President who is appointed from the Assembly membership, to chair the meeting and sign the decisions and to undertake various activities within the scope of Assembly activity.

Article 73 The Bar has two Vice-Presidents and their term of office is three years.

Article 74 During the Assembly meetings the minutes shall be written in a special book. The Secretary of the Bar shall write down the minutes. The work of the Assembly is curried out pursuant to the Assembly Rules of Procedure.

The Executive Council ofthe Bar Article 75 The Executive Council of the Bar (hereinafter referred to as a "Executive Council"), is composed from the President of the Bar, former President of the Bar and 7 (seven) members from Regional Meetings representatives. As a members of Executive Council, at most 3 (three) legal professionals and scientists who are not members of the Bar can be appointed also, but only as members of honour.

Article 76 The Executive Council: 1.

Applies Council decisions.

2.

Drafts the Statute, the Professional Code of Ethics for lawyers and other general acts of the Bar, which are proposed to the Assembly for approval.

3.

Decides on registration in lawyer's register of the Bar.

4.

Decides on registration of professional assistants and their cross out from register.

5.

Decides on HQ and lawyers office change of location.

6.

Decides on registration, membership and other fees for lawyers.

7. Decides on the sum of money that the Executive Council and the President of the Bar can have it on their disposal. 8.

Decides on programs and recommendations for lawyer's and professional assistant's continuos perfection.

9.

Decides, recommends and proposes issues of general interest for advocacy practice.

10. Drafts pre-account, account and the balance off the Bar and presents it to the Assembly for approval. 11. Administers the Bar finances. 12. Drafts the reports on President of the Bar and Council's work.

658 • Defense in International Criminal Proceedings

13. Approves Regional Meetings Regulations. 14. Prepares reports for association of the Bar with international lawyer's associations and other organisations and appoints the Bar representatives in those organisations. 15. Follows up the co-operation progress of the Bar with other country's professional associations. 16. Follows up professional assistants, lawyer's associations and other lawyer's corporations and takes advancements steps of their work. 17. Performs duties of utmost importance for the Bar. 18. Performs all duties contemplated by the Law, this Statue and other general legal acts. 19. Establishes the type of public acknowledgements and proposes to the Assembly to whom they will be delivered. 20. Organise the seminars, consultations and roundtable discussions. 21. Publish the bulletin off the Bar.

Article 78 The President chairs the Executive Council's meeting. The Executive Council decides based on majority of the votes. If the President is absent, one of the Vice-Presidents appointed by the President shall chair the meeting.

Article 79 The President of the Bar shall convene the Executive Council's urgent meeting, when requested by the minimum of 1/3-d of the membership.

Article 80 The Invitations for the Executive Council's meeting shall be delivered the latest 8 days before the meeting is scheduled. The invitation should contain the time and date and the agenda of the meeting. The invitation should be published in media, too.

Article 81 The minutes of the meeting shall be recorded properly in a designed book for that purpose. The Secretary of the Bar shall take minutes. The Lawyer's Regional Meetings. The Headquarters of Lawyer's Regional Meetings are:

Mixed Tribunals • 659 Prishtina Mitrovica Gjilan Peja Prizren Gjakova Ferizaj The members of Regional Meetings are all the lawyers that have their main offices in above-mentioned regions.

Article 83 The meeting has its own president, vice president and the secretary who are vested with 3 years term of office.

Article 84 The Lawyer's Regional Meeting: 1.

Upholds and advances the lawyer's authority and advocacy as a independent service.

2.

Protects the lawyer's and professional assistant's rights and interests.

3.

Follows up lawyers and professional assistance on their professional practice.

4.

Promotes the lawyer's ethic.

5.

Tackles problems related to advocacy practice in its own region.

6.

Collaborating with courts and other state bodies, organises and applies various modes of lawyer's and professional assistant's professional growth.

7. Prepares proposals for Executive Council meetings. 8.

Presents periodic activity reports to the Executive Council.

9.

Prepares and carries out the co-operation plans with judiciary and other organisations in its region.

10. Tackles other miscellaneous and important issues for the lawyer's activity in that region.

Article 85 The territory that the Regional Meeting is covering is identical to geographic layout of political-administrative boundaries, to which the municipality territories can be attached if they fulfil the requirements for creating their own Regional Meeting. The Regional Meetings in those municipalities are independent and they are not part of District Regional Meetings, in which their municipal territory is located.

660 • Defense in International Criminal Proceedings

The President ofthe Bar Article 86 The President of the Bar: 1.

Represents and introduces the Bar

2.

Convenes and chairs the Assembly and Executive Council meetings

3.

Takes decisions on professional assistant's registration.

4.

Chairs the solemnity of oath-taking procedure.

5.

Approves payments from the Bar's budget up to a limit settled by the Executive Council and decides on their expenditure.

6.

Carries other activities determined by the Statute and apply decisions taken by other bodies of the Bar.

7. Follows up the lawfulness of the bodies of the Bar. 8.

Reports to the Assembly.

Article 87 The term of office for the President of the Bar is 1 (one) year including the right to be re-elected for another term of office.

Article 88 If, due to objective reasons the President is unable to exercise his/her mandate, one of the Vice-Presidents appointed by the President shall replace him/her.

Article 89 The Vice-Presidents term of office shall be three years without the right to be re-elected. The Supervisory Council of the Bar.

Article 90 The Supervisory Council of the Bar is composed of 3 (three) members appointed by the Assembly. The members themselves shall choose the president. Members of the Council have their deputies.

Article 91 The Supervisory Council member's term of office is 3 years. The right to reappointment is excluded.

Mixed Tribunals • 661

Article 92 The Assembly has the right to dismiss any member of the Supervisory Council before expiration of his/her term off office, if the Assembly is convinced that the member hasn't been performing in professional and correct manner. The Assembly's decision is final.

Article 93 The Supervisor Council is obliged to control at least 2 (two) times in one year the finances of the Bar. For the work that was carried out it shall prepare the report which shall be presented to the Assembly for its approval.

Article 94 The bodies of the Bar which administer the Bar finances (the Executive Council and the President of the Bar), are obliged to present to the Supervisory Council, all the information as required from them.

The Appeal Assembly Commission Article 95 The Assembly shall appoint the members of Appeal Commission (hereinafter referred as "the Commission"). The Commission is composed of 7 (seven) members. The senior Commission member who also signs the Commission decisions chairs the work of the Commission.

Article 96 The Commission as a second instance authority decides upon the appeals lodged against the Executive Council decisions.

Article 97 The Commission shall decide within 60 (sixty) days from the day when the appeal was lodged.

The Disciplinary Prosecutor Article 99 The Prosecution Office of the Bar is composed of first and the second instance Disciplinary Prosecutors.

662 • Defense in International Criminal Proceedings Article 100 The Assembly of the Bar shall appoint the Disciplinary Prosecutor. The Prosecutor's term of office is 3 (three) years without the right to re-election.

Article 101 The Disciplinary Prosecutor has his/her deputy who is appointed by the Assembly, too. His/her (the deputy) term of office is three years.

Article 102 The Disciplinary Prosecutor acts personally or through his/her deputy who acts according to prosecutor's instructions. The prosecutor and the deputy shall act according to the provisions of the Statute.

The Disciplinary Court Article 103 The Disciplinary Court is a first instance disciplinary body that decides on lawyer's and professional assistant's liability if/when violating the lawyers authority and their duty.

Article 104 The Disciplinary Court is composed of President, his deputy and five (5) judges. The Assembly appoints all of them from the community of lawyers. Their term of office is three (3) years without the right to reappointment.

Article 105 The judges of the Disciplinary Court are independent and they adjudicate according to the law, the Statute and the Code of Professional Ethics for Lawyers.

Article 106 The judges of the Disciplinary Court adjudicate in the panel consisted of Presiding Judge and two (2) other members. The President of the Disciplinary Court appoints Presiding Judge and the members of the panel.

Article 107 Any member of the Disciplinary Court can be dismissed from his post even before his/her mandate has expired. The provisions referred to the reasons and procedures of the premature dismissal of the member of the Supervisory Council shall be applied identically when dismissing prematurely the member of the Disciplinary Court.

Mixed Tribunals • 663

Article 108 The member of the Disciplinary Court whose dismissal is due to be decided in the Assembly meeting, has to be informed at least 8 (eight) days ahead regarding the content of the request for his/hers premature dismissal from the Disciplinary Court membership.

In the Assembly meeting, he/she has to be enabled the clarification on all elements of the dismissal request.

Article 109 The public is excluded from the Disciplinary Court proceedings.

Article 110 The first instance Disciplinary Court: 1.

Adjudicates minor and serious violations of the duties and authority of advocacy.

2.

Decides upon the Disciplinary Prosecutor's proposal on disciplinary procedure suspension after the indictment was raised, and

3.

Performs other activities as predicted by the law and this Statute.

Article 111 The accused is entitled to hire a defence counsel in the procedure before Disciplinary Court. A defence counsel can be chosen only from the lawyer's community.

Article 112 The members of the Disciplinary Court and the deputy of the Disciplinary Prosecutor shall not enjoy the status of a defence counsel in the disciplinary procedure before the Disciplinary Court of the Bar.

The Higher Disciplinary Court Article 113 The Higher Disciplinary Court is a second instance body which, decides on the appeals against the decisions of the first instance Disciplinary Court.

Article 114 The Higher Disciplinary Court is consisted of President, his deputy and seven (7) members who are appointed by the Assembly of the Bar from the lawyer's community. The Assembly of the Bar appoints all of them from the lawyer's community. Their term of office is 3 (three) years.

664 • Defense in International Criminal Proceedings Article 115 The Higher Disciplinary Court adjudicates in the panel consisted of Presiding Judge and 4 (four) other members. The President of the Higher Disciplinary Court appoints Presiding Judge and other members of the panel.

Article 116 Colleges of the High Court work in closed sessions except in cases, when members of the college consider that, because of the better explanation of the case, is needed the presence of the parties.

VIII. THE DISCIPLINARY LIABILITY FOR LAWYERS AND PROFFESIONAL ASSISTANTS The types of infringements and disciplinary measures Article 117 The lawyers and professional assistants shall be held accountable in cases of their duty and advocacy authority violations. The law, this Statute and the Code of Professional Ethics predict their accountability for lawyers.

Article 118 The serious violation of duties and advocacy authority exists in following cases: 1.

If/when consequently to the registration, it has been confirmed that the lawyer, during his actual registration did not meet registration preconditions as predicted by the law.

2.

If/when committing a criminal act, which casts the shadow on his/her dignity for further exercise of lawyer's profession.

3.

If/when unlawfully and against the authorisations that the lawyer possess for client's representation purposes, he/she intermediates with different individuals and/or legal entities, which exercise public duties.

4.

If/when without due consideration the lawyer performs advocacy and similarly represents the parties.

5.

If/when without due consideration the lawyer performs duties in cases of authorised representation of the office of other lawyer.

6.

If/when the lawyer breaches the advocacy confidentiality.

7. If/when the lawyer requires remuneration, which is higher than, those contemplated by the Tariff. 8.

If/when without due consideration the lawyer administers client's business and/or attempts not to payor does not pay the money taken on his/her client behalf.

9.

If/when during the public auctions, against his/her client's interests, the lawyer enables himself, his/her relatives or third persons the buying of goods put in auction.

Mixed Tribunals • 665

10. If/when the lawyer seriously breaches obligations towards the Professional assistant who is working in his/her office. 11. If/when indecently the lawyer seeks for clients using a third person or other methods. 12. If/when the lawyer supports and aids in any manner the quasi-notary. 13. If/when against the law and this Statute the lawyer maintain another office outside the seat of his main office. 14. If/when, the lawyer abuses his/her client's trust and authorisation. 15. If/when the lawyer does not respect finance obligations deriving from the membership in the Bar. 16. If/when, the lawyer acts and breaches without due consideration the obligations to the Bar bodies. 17. If/when, without any reason, does not return the documents to his/her client. 18. If/when, the lawyer changes the seat of his office in contradiction to legal provisions and to this Statute and/ or does not inform the Bar for changing the seat of his/her office, and 19. If/when does not respect the legal provisions of this Statute and/or of the Code of Professional Ethics for lawyers, working injoint offices, lawyer's associations or lawyer's liaison offices.

Article 119 If the lawyer violates seriously the duties and the authority of lawyer's profession in his/her private life, that action is also considered as a serious violation of lawyer's duty and advocacy authority.

Article 120 Save the violations from Article 118, a serious violation of duties and authority of advocacy for Professional assistant exists when: 1.

He/she does not truly exercise the practise in lawyers' office,

2.

He/she seriously violates his/her legal obligations towards the lawyer at whose office he/she is carrying out the apprenticeship, and

3.

He/she carries out advocacy independently and on his/her behalf.

Article 121 Minor violations of duties and advocacy authority are also violations deriving from Article 119 of this Statute but only when severe consequences are missing, including other cases of disrespecting the provisions of the Code of Professional Ethics for Lawyers.

666 • Defense in International Criminal Proceedings Article 122 The violations are subjected to the disciplinary measures as follows: 1.

Reprimand

2.

Fine and

3.

An interim suspension of lawyer's practise in duration from 6 (six) month up to 5 (five) years.

Article 123 The reprimand shall be pronounced for minor violations of duties and advocacy authority.

Article 124 The fine shall be pronounced for serious violations or in the case of repetition of minor violations. The fine can be from 500 DEM up to 5.000 DEM. The fine is collected for the benefit of the Bar. The collection of the fine is made pursuant to the provisions of the Law on Sentence Execution.

Article 125 The interim suspension of lawyer's practice from 6 (six) months up to 5 (five) years shall be pronounced only for serious violations of the duties and the advocacy's authority.

The Commencement ofthe Disciplinary Procedure Article 126 A Disciplinary Prosecutor initiates the disciplinary procedure based on the appropriate request lodged by the Executive Council, the President of the Bar, the President of one of Lawyer' Regional meetings and Co-heads of the Department ofJustice (the Ministry ofJustice ).

Article 127 The disciplinary procedure commences after submitting the request to the lawyer or the Professional assistant against whom the liability needs to be verified. The lawyer has to declare himself in written regarding above-mentioned request within 15 (fifteen) days from the day of receiving the request.

Article 128 The Disciplinary Prosecutor is entitled to hear personally the accused during the preliminary procedure. The entitlement from above-mentioned paragraph is at the prosecutor's discretion and it is used if he/she concludes that based on the request, it is necessary for him/her to hear directly the accused.

Mixed Tribunals • 667

Article 129 When the Disciplinary Prosecutor finds it reasonable, he can ask from the submitter of the request to supplement the request or to declare himself in written, for other relevant issues within the time limit that can not be longer than 15 days. After being asked pursuant to above-mentioned paragraph, the submitter of the request shall be put in notice that if he does not comply with the prosecutor's terms of request within the deadline, the request for commencing the disciplinary procedure shall be rejected.

Article 130 If after ending the necessary actions the Prosecutor confirms that the violation exist he/she shall raise charges.

Article 131 If the Prosecutor concludes that there are no grounds for raising charges he/she shall reject the request. The Disciplinary Prosecutor shall inform the submitter of the request about his/her decision. The submitter of the request has the right to submit the complaint before the Disciplinary Court, within 15 days from the day of receiving the notification. The decision of the Disciplinary Court, which is taken 30 days, is final.

The Disciplinary Court Procedure Article 132 After receiving charges the President of the Disciplinary Court appoints the Disciplinary Panel.

Article 133 The Disciplinary Panel: 1.

Suspends the procedure, if concludes that the action, which is a subject to a charges is not a violation, and/or if there are circumstances that exempt the liability, and/or if there are no sufficient evidence that the accused has committed the violation for which he/she is accused.

2.

Turns back the charge to the Prosecutor for further supplementation if the Panel considers so.

3.

May decide to cease temporarily the disciplinary procedure until the regular court does not confirm the criminal liability and if that liability derives from the same action.

Article 134 The Disciplinary Court decisions from the above-mentioned article shall be submitted to the accused and to the Disciplinary Prosecutor which have the right to appeal to the Higher Disciplinary Court within 15 (fifteen) days after receiving it.

668 • Defense in International Criminal Proceedings

Article 135 If the Panel does not decide pursuant to one of the sections from the article 154 of this Statute, in that case it shall schedule the hearing. The copy of charges is attached to the hearing invitation.

Article 136 The hearing can also be held without the presence of the accused if he/she is duly summoned while his/her absence was not justified and was heard in the preliminary procedure or it was made possible for him/her to present his/her defence in a preliminary procedure.

Article 137 The main hearing is always held in the headquarters of the Bar.

Article 138 During the main hearing the Panel can take one of the decisions from the Article 154 of this Statute, if the Panel concludes that the conditions for that are met.

Article 139 After ending the main hearing, the Disciplinary Panel rules the verdict through which, the accused: Is found guilty or Is discharged from the accusations. The Disciplinary Panel rules the verdict through which, refuses the accusations against the accused if the Prosecutor withdraws from the accusations during the main hearing and/or if he/she concludes that the prosecution schedule is proscribed already (the statute of limitations).

Article 140 The verdict by which the accused is found guilty, contains: The preamble, The wording that contains confirmation of violation conducted by the accused, the classification of such violation and also the pronounced disciplinary measure, The reasoning, Legal remedies and The signature of the President of the Panel and the stamp of the Bar, The decision regarding procedural costs.

Mixed Tribunals • 669

Article 141 In the disciplinary procedure there cannot be decided upon the request for compensation of damage caused while committing the violation.

Article 142 A copy of the verdict shall be delivered to the accused, to his defence counsel, Disciplinary Prosecutor and to the Ministry ofJustice.

Article 143 The unsatisfied party is has the right to appeal the verdict of the Disciplinary Court. The appeal shall be addressed to the Higher Disciplinary Court within 15 days from the day of its receipt. The appeal initially shall be submitted to the Disciplinary Court aiming the Higher Disciplinary Court. A copy of the appeal is delivered to the counterpart, which may respond within 8 days from the day of its receipt.

Article 144 The Higher Disciplinary Court deliberates in a close session and in a Panel composed of the President and four members.

Article 145 The second instance court may validate, amend or annul the verdict of the Disciplinary Court. The decision of the Higher Disciplinary Court shall be submitted to the defence counsel, Disciplinary Prosecutor, the Ministry ofJustice and to the plaintiff. The verdict is final.

Prescription (the statute of limitations) Article 146 The statute of limitations for commencing the disciplinary procedure for minor violations is 6 (six) month after knowing about the violation and the perpetrator, whereas for any other case the limit is 1 (one) year from the day the violation was committed.

Article 147 The statute of limitations for commencing the disciplinary procedure for serious violations, is 1 (one) year after knowing about the violation and the perpetrator, whereas always after 2 (two) years from the day the violation was committed.

670 • Defense in International Criminal Proceedings

Article 148 The statute of limitations for the execution of the disciplinary measures for minor violations, is 3 (three) months from the day the decision entered in to a force.

Article 149 The statute of limitations for the execution of the disciplinary measures for serious violations is 6 (six) months from the day the decision entered in to a force.

Article 150 The statute of limitations shall freeze until the case against the accused in front of regular court in the procedure for determining his/her criminal liability for the same violation as in the disciplinary procedure, becomes final. After the conclusion of the criminal procedure, the statute of limitations for the disciplinary procedure continue.

IX. THE LIBRARY OF THE BAR Article 151 The Bar has its own library. All lawyers and professional assistants, registered in appropriate registers of the Bar have the right to use the library.

Article 152 The Executive Council sets out the payments on behalf of the membership for those lawyers, who want to use the library. The payment is periodical, the amount is determined through a special decision. The amount of collected financial means shall be used only for the enrichment of the library's fond and for its maintenance.

Article 153 Users of the library have no right to move out or to use the exemplars of titles out of the premises.

Article 154 The librarian is in charge of the library. If the librarian is absent, the Secretary of the Bar who possesses with the evidence of titles, evidence of users and cashes the payment of membership from the article 153 of this Statute, shall replace him/her.

Article 155 Apart form the membership the financing and enrichment of the library may be done in other ways as well. The president of the Bar takes the decision on that matter.

Mixed Tribunals • 671

IX. THE LAWYER'S SPECIALISATIONS Article 156 The lawyer who meets the legal conditions, conditions required by this Statute and the conditions from the general legal acts of the Bar, has the right to apply for recognition of his/her title of specialist for a particular field of law (Article 44 of the Law on Advocacy).

Article 157 The title of the specialised lawyer is recognised for these fields: Constitutional Law, Criminal Law, Civil Law, Administrative Law, Labour Law, Commercial Law, Banking Law, Copyrights Law, International Public Law and International Private Law.

Article 158 The application from the Article 156 of this Statue shall be submitted to the Executive Council of the Bar.

Article 159 The Bar in co-operation with the Department ofJustice designates the conditions for specialisation. The decision for recognising the title of the specialist shall be taken by the Executive Council of the Bar after receiving the opinion and report from the particular Commission that is appointed by the Council.

Article 160 The Commission is composed of 9 (nine) members. The members of the commission can be chosen from other different scientific, administrative and public institutions and also from the lawyer's community. The President of the Bar is the Chairperson of the Commission.

Article 161 Against the decision upon the refusal of the specialist title, the applicant has the right to appeal in front of Commission of the Assembly in charge of reviewing the appeals, which shall decide within 60 (sixty) days from the day the appeal was submitted. The decision of the Assembly Commission is final.

672 • Defense in International Criminal Proceedings Article 162 The Commission's activity and the conditions contemplated for gaining the title of the specialist etc. shall be settled by the Regulation on the procedure for recognition of specialist title.

X. THE PUBLICATION OF A BULLETIN Article 163 The Bar Association issues the bulletin. The bulletin is published every 6 (six) months and all the lawyers and professional assistants of the Bar receives it.

Article 164 The members of the editorial office, editor and the chief editor of a Bulletin are appointed by the Executive Council of the Bar. The mandate of the members of the editorial office is 3 (three) years. The same person can be re-appointed only once in the editorial team.

Article 165 The members of the editorial team for their activity report to the Executive Council, which has the right to dismiss any of the members even before the expiration of their mandate.

XI. THE FINANCES Article 166 The handling of Bar's finances is carried out according to the annual pre-calculation of the incomes and outcomes, which shall be approved by the Assembly.

Article 167 The regular annual incomes of the Bar are: Incomes from the registration of lawyers Incomes form the membership of lawyers and Other incomes.

Article 168 Apart from the regular incomes, the Bar possesses also with irregular incomes as: The payment of fines as a disciplinary measure and Different irregular incomes.

Mixed Tribunals • 673

Article 169 The Bar utilises the financial means for the fulfilment of duties and its objectives determined by Law and by this Statute.

Article 170 The President of the Bar permits the outcomes from the financial means of the Bar up to the limit determined by the Executive Council. The limit from the above-mentioned paragraph can be exceeded, only after obtaining previously the agreement from the Executive Council. In special cases, the President of the Bar after obtaining the agreement may authorise the Vice-President of the Bar to permit the outcomes from the above-mentioned paragraph.

Article 171 The Assembly of the Bar approves the balance of the finances. The President of the Bar signs the balance.

XII. THE INSCRIPTION AND STAMPS OF THE KOSOVA BAR ASSOCIATION Article 172 The Bar has its own inscription that is determined by the Assembly.

Article 173 Stamps of the Bar are round and square stamps with the inscription: ODA E AVOKATEVE TE KOSOvES-PRISHTINE BAR ASSOCIATION OF KOSOVA-PRISHTINA. ADVOKATSKA KOMORA KOSOVA-PRISTINA The square stamp has also the sign "Nr. No. Br.

" and "Dt.

_

Article 174 Official colours in which the stamps may be printed are: Black and Dark blue.

Article 175 Bar also possesses with the water stamp and the sign.

Article 176 The Lawyer's Regional Meetings also possesses with the stamp in accordance to the general decree, which is approved by the Executive Council of the Bar.

674 • Defense in International Criminal Proceedings

XIII. THE ADMINISTRATION OFTHE BAR ASSOCIATION Article 177 Bar's Administration is consisted of: The Secretary Librarian Driver and Cleaner

Article 178 The job requirements for the posts mentioned in previous Article, shall be set forth by the Executive Council.

Article 179 On behalf of the Bar, the President of the Bar shall sign the employment contracts for employees hired for the positions from Article 178 of this Statute.

Article 180 The work of other members of the bodies of the Bar is voluntarily.

XIV. THE FINAL AND TRANSITIONAL PROVISIONS Article 181 The procedures in front of the bodies of the Bar, commencing before this Statute comes into a force, shall continue and shall end according to the provisions in power at that time.

Article 182 The bodies of the Bar, elected pursuant to the statutory provisions which were in power before coming into a force of this Statute, shall continue their work until the expiry of their mandate.

Article 182 This Statute comes into a force eight days after its approval.

8.1.9.

Annex II: Law on Advocacy and Other Legal Assistance

OFFICIAL GAZETTE OF SOCIALIST AUTONOMOUS PROVINCE OF KOSOVO No. 48 24 December, 1979 According to the Article 5 Law of the Amendments on to the Advocacy Law and other Legal Assistance (OG, SAP Kosovo No. 46,47) juridico-Iegislative commission of SAP Kosovo in the meeting held on December 19,1979 drafted the final text of the Advocacy and other Legal Assistance Law.

Mixed Tribunals • 675

Final draft includes Advocacy and other Legal Assistance La\v (OC, SAP Kosovo No. 43/73) and La\v of the Amendments on the Advocacy and other Legal Assistance Law (OC, SAP Kosovo No.46117) \V herein it is specified the time of enactment. 06 No. 011-69/79 Pristina, December 19, 1979 Chairman of the Committee Muharrem lmeri

LAW ON ADVOCACY AND OTHER LEGAL ASSISTANCE (Final draft) GENERAL PROVISIONS Article 1 Advocacy and other Legal Assistance guarantees to citizens, common work organizations and other self-determining organizations and communities, professional legal assistance, in their reciprocal relations and realizing and upholding their rights and interests based on the law, in the manner and within the provisions of this law. Social Community creates the conditions for providing the legal assistance for citizens and organizations. Legal assistance is provided through advocacy and other forms of legal assistance.

Article 2 Legal Assistance includes: drafting of law suits, complaints, etc. drafting of documents (contracts, wills, etc) representing and defending the parties before courts, other state organs, common work organizations and other organizations, and their self-governing organs, representing of parties in their legal affairs and relations with other persons (contracting and agreements, acceptance and payment of cash, submitting resigning declaration, etc). covering of other affairs included in the legal counseling.

Article 3 The Advocates performs all the obligations of the legal assistance while the service of legal assistance covers only the affairs this law authorizes it to do. The providing of legal assistance from the official persons in the course of their duty, it is defined in special provisions.

Article 4 The advocates and other authorized persons to provide legal assistance are independent in performing their function. They are entitled and are obliged that within the limits of the law and the given authority to undertake actions what they consider to be helpful to the party receiving their legal assistance.

676 • Defense in International Criminal Proceedings

First Part ADVOCACY Chapter I MAIN PROVISIONS 1. Status and Authorizations Article 5 Advocacy is a social independent service. Independence of advocacy is especially observed in: accomplishing the advocate's functions independently, as independent advocate's association, organizing the advocates in the Chamber of Advocates, that is an independent advocate's association, enacting of general acts, in accordance with the law, on the functioning of Chamber of Advocates and its bodies and on the conduct of the advocates in the course of their duties, deciding whether to admit or reject the membership to the profession, analyzing and observing the social relations and other interesting circumstances in providing legal assistance and applying the law, offering opinions and suggestions to the councils of socio-political communities and other bodies and organizations on the situation of advocacy and its needs, and issues that are relevant to providing legal

Article 6 1. Advocacy as an independent profession iscarried out by the advocates. Advocates, in principle, have the same socio-economical status, and, basically, the same rights and duties towards the social community as other persons employed in other common work organizations.

2. The organization ofAdvocates Article 7 Advocates having their premises within SAP Kosovo, are members of the Chamber of Advocates, that is an independent, professional and self-governed organization. Its main office is in Pristina. The Chamber of Advocates is recognized as a legal person.

Article 8 The Chamber of Advocates, according to this law, approves its own statute and other general acts important to the conduct of advocates and the promotion of advocacy.

Mixed Tribunals • 677 Statute shall regulate in detail: the organization, authorizations, the establishment, as well as the functioning of the Chamber of Advocates, the way to implement the opinion and the responsibility, and other democratic principles in the work of Chamber of Advocates and its organs, rights and duties of advocates and trainees towards the Chamber of Advocates. The statute of the Chamber of Advocates shall be approved by the Council of SAP Kosovo.

Article 9 The Chamber of Advocates issues the Code of Professional Ethics for the advocates. This Code shall include general rules governing the conduct of advocates in the course of their duty, basic moral standards and other norms in relation with the persons, whose juridical interest they represent, and social community, advocate's responsibility standards and other rules that ensure a honest and competent accomplishment of the duty.

Article 10 The Chamber of Advocates, according to this law and its statute, decides to admit or reject the right to profession. The Chamber carries out the other functions determined by the law and its statute. The Chamber analyzes and observes the social relations and other interesting phenomena in protecting the rights of citizens and organizations and promoting the advocacy. The Chamber informs the Council of SAP Kosovo and municipal councils, with its own initiative or based on their request, concerning the problems and the work of advocacy, as well as the other matters that have to do with providing help and proposing measure for the promotion of the Chamber.

3. Supervision Article 11 The Executive Body of the Council of SAP Kosovo supervises the validity of general acts of Chamber of Advocates and has the right to, including the decisions of the Constitutional Court, stay the execution of a general act that is in contradiction with the constitution and the law. Provincial secretariat for jurisprudence and general administration cooperates with the Chamber of Advocates and proposes steps for its progress. Provincial secretariat for jurisprudence and general administration may request reports and information from the Chamber of Advocates and its bodies.

4. Supplying ofmaterial means tothe advocacy needs Article 12 Socio-political communities take care for the supplying of material means for the advocates work and progressing of advocacy, and cooperate with the Chamber of Advocates

678 • Defense in International Criminal Proceedings

concerning the common solution to important matters regarding the material status of the advocates or complying with their material obligation towards the social community. Social facilities maybe utilized directly or through the Chamber of Advocates, law firms or some advocates.

Chapter II THE RIGHTS AND THE DUTIES OF ADVOCATES Article 13 The advocate, who has entered his name in the register of the Chamber of Advocates in the territory of SFRYhas the right to exercise advocacy in the territory of the province.

Article 14 Advocates have the duty to honestly provide legal assistance in accordance with the law and the Code of Professional Ethics, and in accomplishing their social function take care of upholding the principles of constitution and the law. Advocates shall be responsible to the Chamber of Advocates organs, for any violation in the course of their duty according to the rules issued by the Chamber of Advocates or this law. Through a general act of the Chamber of Advocates regarding the disciplinary responsibility it is ensured, especially, for the efficient defense of the parties and are determined the cases when the advocate losses the right to his profession in case of grave violation in the course of his duty regarding the parties.

Article 15 The advocate has the duty of confidentiality regarding the privileged information. The advocate is not obliged to witness for what the party has trusted to him while providing the legal assistance, and cannot be a witness against his client.

Article 16 The advocate has the duty to provide legal assistance to the party asking for that. The advocate may refuse to provide the help if this is against the interest of the party or it violates the principles of the procedure where he shall participate as an advocate.

Article 17 Advocate is obliged to refuse if for the same case he has provided legal assistance to the other party, he or an advocate from the same office or as a trainee has done his practice with the advocate aiding the other party or that has acted in the same case as a judge, public prosecutor, public attorney or as an administrative body official. The statute of Chamber of Advocates provides the other cases in which the advocate has the authority to refuse to provide legal assistance.

Mixed Tribunals • 679

Article 18 The advocate may resign from representing for the same reasons provided for in Article 17, para.2 of this law whereby he is authorized to do so, while he is obliged to resign in case he finds the reasons provided for in Article 17, para. 1 and not provide legal assistance. The advocate is obliged to provide legal assistance following the resignation in case it is necessary to avoid some damage to the party, but at the latest one month after the resignation.

Article 19 The advocate is obliged that after resigning to hand over to the party, on its request, all the documentation of the case. By statute or another general act of the Chamber of Advocates, in accordance with the general provisions on preserving the archives, are determined the most detailed conditions and limitations on retention of some kind of documents.

Article 20 The advocate may be replaced by another advocate or within the confines of the law by a trainee that is practicing in the same office.

Article 21 The advocate cannot be detained for the reason that has committed a criminal offence in the course of his duty without the preliminary permission from the court that is handling the same trial.

Article 22 The search of the office archive may be done only according to the warrant of the investigative judge in the criminal procedure against the advocate. The order must specify which is the document or the case that has to be searched for. The search may not violate the confidentiality to the detriment of the party.

In case of a search the Chamber of Advocates has to be informed in time. The representative of the Chamber may participate in the search.

Article 23 The advocate has the right to remuneration for his work and reimbursement of the expenses incurred in the course of this duty, according to the advocate's fees. The remuneration fees for the advocate's work will be issued by the Chamber of Advocates with the approval of Executive body of the Council of SAP Kosovo.

Article 24 Remuneration and reimbursement for the expenses incurred in the course of his work performed in the territory of another Chamber of Advocates, with the prior condition

680 • Defense in International Criminal Proceedings that the advocate and the party have not agreed that the other Chamber's fees apply in which territory the advocate's office is located, it shall be applied according to the tariff of that court.

In case when court or another organ defines the reimbursement of the expenses of the party that the advocate represents, the fee applicable is that of the territory where the court is located, specifically the court that defines the reimbursement of expenses.. Concerning the expenses of representation before the federal courts and other federal organs it applies the tariff valid in the territory of the Chamber of advocates where the case has been filed in the first instance court 1.

Article 25 The advocate has to sign and stamp each document drafted by him or in his office. The advocate, with the request of the party, has to issue a document regarding the amount he received as remuneration.

Article 26 The advocate can have only one office of advocate. The office has its own name and stamp. The name of advocate's office has to be in a conspicuous place in the building where the office is located. The Chamber of Advocates through its Statute determines the contents of the name and the stamp.

Article 27 The advocate is obliged to have the compulsory registers and evidences. More detailed provisions on the registers of the advocates and the maImer they are to be kept are issued by the provincial secretariat for jurisprudence and general administration.

Chapter III COMMON WORK OF ADVOCATES Article 28 Advocates may merge their work in and create advocates common office. Advocates may merge their work in and their means in advocates common offices. These offices are setup according to the principle of self-governing and have the same status as different organizations of common work in the field of social activities.

Article 29 The advocate's common office may be created in the following circumstances: (1) there have to be at least three advocates,

Mixed Tribunals • 681

(2) The advocates, that want to merge their work in, must have their premises and other necessary means to exercise the profession. The advocates that join the common office shall contract the agreement for the merging, the reciprocal relations, and the profit, made through the common work, and its distribution.

Article 30 By the agreement to establish the advocates common office done in consistency with this law, Statute, code of professional ethics and other general acts of Chamber of Advocates, the advocates shall settle their reciprocal relations and obligations as members to the advocates common office, as well as other matters concerning the establishment of the advocates common office. Through the statute and other general acts of Chamber of Advocates the way of establishing and running the advocates common offices may be determined in detail. According to the agreement, the advocates submit their request for registration of their advocates common office in the proper register with the Chamber of Advocates. The decision for the registration in the register of the Chamber of Advocates is sent to Municipal Council in the territory of which the advocates common office is located.

Article 31 In the advocates common office can be no such relation that contradicts with the equal status of the advocates in the office, with the independence in the course of their duty.

Article 32 The Chamber of Advocates may refuse the registration of the advocates common office in the main register in case the provided requirements in this law are not met with. Against the decision of the Chamber of Advocates whereby the registration is refused every advocate can make an administrative contest. If the Chamber of Advocates within two months docs not bring forth a decision for the request to register having attached all the necessary facts then the requestor may proceed with an administrative contest.

Article 33 Concerning the obligations to the third parties the advocates common office shall be liable within its property, and in case it is not sufficient then the advocates-member of the common office-are all together responsible.

Article 34 The advocates that exercise their profession in these offices are independent in providing the legal assistance.

682 • Defense in International Criminal Proceedings Within the authorizations they decide as to what judicial means are to be used for the party and in which manner shall the representation of the party be made. Concerning the duty of confidentiality disciplinary responsibility and the relation towards the Chamber of Advocates, the advocates, member of the common office have the same rights and duties as other advocates who work individually. The party may request that a special advocate in the common office provide the legal assistance. Every document drafted in the common office of advocates must have besides the stamp of the common office the signature of the advocate who has drafted it.

Chapter IV OBTAINING THE LICENSE TO PRACTICE ADVOCACY 1. Conditions Article 35 The license can be obtained by registering in the register of advocates that is kept in The Chamber of Advocates.

Article 36 The right to register in the register of advocates belongs to whoever fulfills the conditions: 1.

To be a Yugoslav citizen;

2.

To be able to work;

3.

To have a law degree

4.

To have passed the jurisprudence exam, or to have the same status with those who have passed it

5.

To not be a worker in a common enterprise;

6.

To be a trusted person in order to carry the advocates profession on;

Is not fit to be an advocate the person who is under investigation or has been convicted for criminal offences against the people and state, against the humanity and internationallaw, against the armed forces and for other criminal offences committed for his interest or low motives. Persons, specified in para. 2 may be registered in the register of advocates ten years after the sentence has been served, or parole has been granted, and if he is Albanian the fine during three years after the day when the sentence has been awarded respectively in case of pronunciation of the sentence on the condition for the time in which through the final conviction the execution of sentence has been postponed.

Article 37 Regular lecturers for the jurisprudence science in the faculty may register in the register of advocates even without giving the jurisprudence exam if they fulfill the other requirements provided for in this law.

Mixed Tribunals • 683

Article 38 The advocates who have directly been registered before the displacement in another Chamber of Advocates register, after the displacement is made into the provincial territory shall be registered without considering the requirements for registering in the register of advocates.

Article 39 The Chamber of Advocates shall make the final review of the requests for registration. The requestor is obliged to provide the facts that make eligible for the registration in the register of advocates and must specify the location for the future office of advocates.

Article 40 Against the decision that rejects the application for registration an administrative contest can be initiated. If the Chamber of Advocates within two months does not take a decision about the application that has attached all the necessary facts the applicant may initiate the administrative contest.

Article 41 If the application is rejected because the applicant is not trustworthy to carryon the profession, a new application cannot be submitted before the expiry of two years period from the day the decision to reject the application was taken.

Article 42 If after the registration it is known that the requirements for registration have not been met with, the Chamber of Advocates shall repeat the procedure for registration. In the repeated procedure the provisions regarding the registration in the register of advocates are applicable. According to the applied procedure it shall be determined whether to validate or abrogate the previous decision for registration and the deletion of his name from the registry.

Article 43 The person who has received the approval for registration in the register of advocates 30 days after the registration and before starting to practice he shall give a solemn declaration before the Chairman of Chamber of Advocates or his deputy. The contents of declaration are as follows: "I solemnly declare to honestly carry the duty of advocate on, and in the course of my duty 1 shall respect the constitution of SAP Kosovo, laws, statute of the Chamber and the Code of Professional Ethics and in all my conduct shall maintain the high prestige of advocacy."

684 • Defense in International Criminal Proceedings

If the person who is registered without a justjustification does not give the solemn declaration in proper time specified in the para. I of the Article, the decision for registration shall be invalidated.

2. Recognition ofspecialization Article 44 The advocate may request that related to practicing advocacy his specialization in a special branch ofjustice be recognized. The Executive Body of SAP Kosovo shall determine conditions and procedures for the recognition of specialization.

Article 45 The advocate whose specialization has been recognized has the right that in the title of his office respectively before his name as a member of advocates common office to specify the field of la\v in which he has specialized.

Chapter V SUSPENSION AND TERMINATION OFTHE RIGHT TO PRACTICE ADVOCACY 1. Suspension ofthe right to practice advocacy Article 46 The advocate shall have his right suspended ifhe is put under custody. The advocate shall have his right suspended if against him there is a criminal or disciplinary procedure initiated for an offence that renders him unfit for the profession, if the disciplinary procedure cannot be successful without suspending it or if the procedure for registration in the register of advocates has been repeated. Concerning the suspension the Chamber of Advocates shall decide with its own initiative or on the proposal of the disciplinary prosecutor of Chamber of Advocates.

Article 47 Along with the decision for suspension shall be specified the time limit of the suspension. In grave situations the suspension of practicing is valid till the end of the disciplinary procedure against the advocate, and indeed till the first-degree disciplinary decision or till the time when the reasons for suspension cease. The suspension period is calculated in the sentence.

2. Termination ofthe right to practice advocacy Article 48 The right to practice advocacy is terminated if:

Mixed Tribunals • 685 1.

he looses the Yugoslav citizenship

2.

he is disabled

3.

the right to practice advocacy is taken

4.

the disciplinary court has decided that he temporary looses the right to practice

5.

he does not practice, without ajust reason, for more than 6 months

6.

he withdraws from the profession

7. he joins the common work 8.

he has been judged for offences mentioned in Article 35, para.2 of this law.

It is considered to have not practiced, without ajust reason, for more than 6 months even the advocate who has been sentenced with a long-term imprisonment or for more than 6 months, if from the declaration of the sentence has served at least 6 months.

Article 49 The decision for the termination of the right to practice advocacy shall be made by the Chamber of Advocates. Against this decision an administrative contest can be initiated.

Article 50 The advocate cannot practice advocacy in case: 1.

he looses citizenship-from the day when by a final decision has been certified the loss of citizenship;

2.

he becomes disabled-from the day when it was finally decided that he has become disabled;

3.

the right to practice is taken or of the disciplinary measure to temporary interruption of the right to practice advocacy-from the day when the decision is finalized

4.

ofjoining the common work-from the day he joins the common work

5.

of criminal proceedings-from the day when the decision becomes final.

In other cases the advocate cannot practice advocacy from the day the decision, relating the termination of the right to practice advocacy, is handed over to him.

Article 51 The advocate whose right has been terminated cannot reapply for registration in the register of advocates in case: 1.

the termination is given for security reasons-before this measure has been served or pardoned

2.

the disciplinary sentence of temporary interruption of the right to practice advocacy-before this sentence is served

686 · Defense in International Criminal Proceedings 3.

of withdrawal from the profession or unjustified practice of advocacy without ajust reason for more than 6 months-before the 6 months period has expired from the day the decision to terminate the right was given.

In other cases the advocate whose right has been terminated may reapply for the registration in the register of advocates when the reasons that caused the termination have ceased. Regarding the application for registration it shall be decided according to the provisions of this law concerning the registration in the register of advocates.

Article 52 The advocate who temporarily has ceased to practice because of illness, absence or other reasons as well as to the advocate whose right has been suspended may be appointed a temporary deputy. To the advocate whose right has been terminated a deputy may be appointed.

Article 53 The Competent authorities have the duty to inform the Chamber of Advocates regarding the progress of criminal procedure, investigations, custody, issuance of the decision against the advocate, loss of citizenship, disability and the decision through which is finally requested the criminal procedure against the advocate.

Chapter VI ADVOCATE'S TRAINEES Article 54 Normally the advocacy is increased by the number of persons who work as trainees with an advocate to be prepared as advocates.

Article 55 The right to work as a trainee is obtained by registering in the register of the advocate's trainees. The Chamber of Advocates keeps the register.

In the register of advocate's trainees may be registered a graduate lawyer, who has been admitted to practice as a trainee in a advocate's office.

Article 56 The advocate's trainee shall be trained, to do the independent practice of advocacy, working in all the functions entrusted to him in the advocate's office. The advocate's trainee cannot practice independently or on his behalf the advocacy.

Article 57 The Chamber of Advocates and the advocates in whose offices trainees are doing their mandatory training are obliged to take care for the professional and practical training of the trainees during their practice.

Mixed Tribunals • 687

The Chamber of Advocates and the advocates determine the compulsory program for the trainees during the training in an advocate's office. The Chamber of Advocates according to the needs may organize seminars, lectures and professional courses to train the trainees for future independent practice of advocacy.

Article 58 The advocate's trainee is obliged to work according to the directives and the authorizations of the advocate. The advocate's trainee may replace the advocate in whose office he practices even if he is authorized to replace the other advocate, if it is not prohibited by some other provision. The advocate's trainee carmot replace the advocate in representing the party whose opponent party has been represented by the advocate with whom the trainee has been previously a trainee.

Article 59 The advocate's trainee has all the rights, provided by the law, that belong to the persons in common work.

Article 60 Concerning the advocate's trainees all the provisions of this law related to the registration in the register of advocates, preserving of the advocate's secret, suspension and the termination of the right to practice advocacy, and other relevant provisions shall be applicable. The advocate's trainee shall have his practice dismissed in case after three years from the time he obtains the right to give the jurisprudence exam he fails to do so or if after a year when he gives the examination does not apply to register in the advocate's register without a just reason. The trainees shall be stuck off from the register of advocate's trainees if after 6 months does not start the training in the advocate's office without ajust reason.

Article 61 If later it becomes known that the registered person in the register of advocate's trainee is not eligible for registration, the decision for the registration shall be annulled in the manner that the time spent in training is not included for the training period.

Article 62 With the Chamber of Advocates there is a fund to stipend and loan the trainees at the time of opening their offices. The means of the fund are constituted from the means that are annually set aside by the Chamber of Advocates and other interested socia-political communities for this purpose. The functioning of the fund, the manner and the conditions for stipends and loans are ruled by the special regulation of the Chamber of Advocates.

688 • Defense in International Criminal Proceedings

Chapter VII DISCIPLINARY RESPONSIBILITY OF ADVOCATES AND THEIR TRAINEES Article 63 The advocates and their trainees shall be disciplinary responsible for abuse in the course of the duty and the advocate's prestige.

Article 64 By the general act of the Chamber of Advocates it has been described what is considered an abuse of the duty and the prestige of advocacy, procedures for finding it out, the measures to be taken against the advocate and the trainee, the bodies to initiate and develop the procedure, and provide for the measures, as well as the time limits for the conclusion of the procedure and execution of the measures proposed because of the abuse of their duty and prestige of advocacy. The time limit for the initiation and the development of procedure is two years from the day it was committed, while the time period for the execution of the measures may not be longer than 6 months from the day the decision for the measures was finalized. The stay regarding the initial and development of the procedure arid the stay for the execution of the disciplinary measures shall be halted according to the provisions relating the stay in the Criminal Code.

Article 65 For abuse of the duty and prestige of advocacy, against the advocate there may be taken these measures: 1.

notice

2.

warning

3.

fine

4.

temporary interruption of the right to practice advocacy from 6 months to 5 years

Article 66 For abuse of duty and prestige of advocacy as a trainee, against the trainee there may be taken these measures: 1.

Notice

2.

Warning

3.

Temporary dismissal from the register of advocate's trainees from 3 months to 3 years

Article 67 The fine shall be as much as provided in the general act of the Chamber of Advocates. The fine is paid to the fund in Article 62 of this law and if the fund has not been estab-

Mixed Tribunals • 689 lished then to the Chamber of Advocates. The payment of fine is done in accordance with the provisions.

Article 68 Against the final decision, that provides for the disciplinary measure of temporary interruption of the right to practice respectively and the deletion from the register of advocates' trainees, a suit may be filed in the High Court of Kosovo. The suit may be filed within 30 days from the day the decision was taken.

Article 69 In the disciplinary procedure against advocates and advocate's trainee the provisions of the Criminal Procedure Code are applicable unless this law statute or general act of Chamber of Advocates does not provide differently.

Second Part Chapter I Other Local Assistance MUNICIPAL SERVICES OF LEGAL ASSISTANCE AND SERVICES OF LEGAL ASSISTANCE IN THE COMMON WORK ORGANIZATIONS AND OTHER ORGANIZATIONS Article 70 The municipality may form a special service to legally assist the citizens with advises and compiling documents injuridical affairs. The municipal service is organized and exercises its duty according to the decision of the Municipal Council and in accordance with this la\l/. The councils of two or more municipalities may form the common service of legal assistance.

Article 71 The municipal council shall provide the means for the legal assistance work. The participation of the municipality in the expenditure of the common service of legal assistance may be determined with an agreement between the municipalities that have formed the said service.

Article 72 The common work organizations and other organizations may from the service of legal assistance for providing advises, compiling of documents concerning the reciprocal relations of employees in the common work organizations respectively to other physical persons as their members. Two or more organizations may form the common service for legal assistance for their members.

690 • Defense in International Criminal Proceedings The position of the service for legal assistance, internal organizing and conditions for giving the legal assistance are determined by an general act of the common work organization or other organizations concerning the formation of this service.

Article 73 Graduate lawyers may give the legal assistance in the service for legal assistance. Exercise of the profession in services of legal assistance may be left to the advocate based on the contract with the founder of service of legal assistance. The advocate that is obliged to exercise the work of the service of legal assistance may do so only in the offices of the service.

Article 74 The service of legal assistance deserves compensation for the work in giving legal assistance. The amount of compensation for some works within the scope of the office is determined with a decision from municipal council respectively the founder, to the amounts, which are specified for the compensation of an advocate. Through the decision of the founder may be specified the cases when the legal assistance is to be given free of charge. The founder shall supervise the work of the service for legal assistance.

Chapter II REPRESENTATION OF THE PARTIES FROM PERSONS WHO ARE NOT ADVOCATES Article 75 In the territory where there are no advocates or territories where it is proved that there are not sufficient advocates and the need exists that the legal assistance be provided by other persons, employees in the service for legal assistance who fulfills the requirements for practicing advocacy may represent the citizens in the procedure before the courts and in the other state organs and organizations.

Article 76 The existence of the conditions for the application of provisions in Article 75 of this law is determined by the provincial Secretariat for Jurisprudence and General Administration based on the proposal of competent, territorial municipal councils and the opinions of the courts, the Chamber of Advocates and organs and the other interested organizations.

Article 77 When the employees represent the parties, as foreseen in Article 75 the provisions of this law and statute of Chamber of Advocates, that provide for disciplinary responsibility and the regulation and ceasing of the right to exercise the authorized duty in offering legal assistance, are applicable concerning the keeping of trusted secret.

Mixed Tribunals • 691

The employees of the service of Legal Assistance that represent the parties according to Article 15 are responsible for abuse of their duty in offering the legal assistance before the disciplinary organs of Chamber of Advocates with the same requirements as the advocates.

Third Part TRANSITORY AND FINAL PROVISIONS Article 78 The initiatory council shall do the preparations for the constituting and commencing of work of Chamber of Advocates. The Executive Organ of the Council of SAP Kosovo shall appoint the initiatory council.

Article 79 The initiatory council, within 3 months from the day this law is enacted, is obliged to call the council of advocates and prepare the council's work regulation proposal and the proposal for the statute of Chamber of Advocates and take the necessary measures for holding and the functioning of the council. The council of advocates shall approve the statute and in accordance with the statute shall elect the organs of the Chamber of Advocates.

Article 80 The advocates who have been registered, in the register of the Chamber of Advocates in SR Serbia and their offices are in SAP Kosovo before the day this law is enacted, become automatically members of the Chamber of Advocates of Kosovo.

Article 81 The Chamber of Advocates shall approve the tariff for advocates within three months from the day of its constituting. Till the approval of the tariff as provided in the above paragraph it shall be applicable the tariff for the reimbursement of the expenditure for advocate's work declared in the 00 of SR Serbia No.44/71.

Article 82 This law is enacted from the 8th day after it is announced in the "Official Gazette of SAP Kosovo." According to Article 12 of the Law on the Personal income payments and the expenditures of delegates to the Council of SAP Kosovo, provincial officials, members of the Directorate of SAP Kosovo and members of Provincial Council ("OG of SAP No. 42/74) and line 6 paragraph 2 of the Social Agreement on basis and the criteria for determining and harmonizing of personal income and other income of the delegates to the Council of SAP Kosovo and its officials that elect or nominate the participants of this agreement (OG of SAP Kosovo No. 32/76).

692 • Defense in International Criminal Proceedings The administrative commission of the Council of SAP Kosovo, in the meeting held on 22 November, 1979 brought forth:

DECISION ON THE DETERMINATION OF THE STANDARD FOR HARMOIZING PERSONAL INCOME PAYMENTS AND THE PERSONAL INCOMES FOR DELEGATES AND OFFICIALS IN THE COUNCIL OF SAP KOSOVO Article 1 The standard for determining the payment of personal income and personal income of provincial officials elected by the Council of SAP Kosovo from the delegates, members of the Provincial Council and officials elected or nominated by the Council of SAP Kosovo from the employees, is harmonized 12% and it is determined in the amount of4.212,32 dinnars.

Article 2 The payment of personal income provided for in Article I shall be done from October 1st, 1979 and it is to be taken from the means of the organ in which the official makes his personal income.

Article 3 This decision is enacted from the following day of issuance of "OC SAP Kosovo."

8.1.10. Annex III: Kosovo Chamber of Advocates, the Code of Lawyers' Professional Ethics Prishtina, Kosovo 2004

I. BASIC PRINCIPLES 1. The Code of Professional Ethics (herein the Code) provides principles and rules of conduct, which, because of protecting the integrity, dignity and reputation of the advocacy, lawyers are required to follow in the course of practicing law. 2. Basic principles are included in the solemn oath, which every lawyer swears to before starting to practice law. These principles should be an integral part of the consciousness and awareness of each lawyer. 3. The conduct of lawyers toward the party he represents, the opposite party and its representatives, other lawyers, courts, public lawyers, state institutions and other authorities where the lawyer assists or represents his client, must be guided by the respect for their basic freedoms and rights. 4. In his presentations, statements, speeches, and other official actions and generally in public and private presentations, the lawyer should be prudent with professional requests and demonstrate legal and general knowledge.

Mixed Tribunals • 693

5. In the course of practicing law, the lawyer, through his conduct, must strengthen the trust of the client, judicial bodies and other bodies with which he works. It is in the nature of his mission that confidential relations can exist only if there is no doubt of the integrity, frankness, fairness and sincerity of the lawyer. 6. The lawyer, in the course of practicing law and in his private life, is required to fulfill his duties with responsiveness and to protect the integrity, respect and dignity of advocacy. The lawyer should defend the interests of his client only by means that are in compliance with law and the dignity of the profession of the lawyer.

7. In the course of representation, the lawyer is required to be fully independent, freed from any pressure, especially those that should come from personal interests or external pressure. The lawyer should avoid any infringement of his independence and should respect his professional ethic. 8. The lawyer cannot accept matters that do not comply with his professional duties and should damage the independence, reputation and prestige of the advocacy. 9. The lawyer cannot, without justification, reject a legal case assigned to him by the Bar Association. 10. The lawyer cannot contract as compensation the object or part of the object of the contest trusted to him to represent, except when it is allowed by the Tariff or other proVISIons. 11. The lawyer should continuously work to expand his knowledge. He should follow closely current events, and scientific and cultural progress. As feasible, the lawyer should participate and offer his cooperation with his Association or other associations. 12. It is against the honor and prestige of the advocacy to display disloyalty in business especially: Attracting parties through offers and intermediates; Providing blanket authorizations or advertising materials; Cooperating with lay persons or suspicious persons who practice advocacy work; Promising payments or compensation to other parties in order to attract clients; Disregarding and offending other lawyers; Prevailing upon close friendship relations, etc.; Offering cheaper representation services. 13. The Code contains also such professional rules, infringement of which is considered simultaneously as a breach of duties and damaging to the prestige of the advocacy. 14. The lawyer should avoid any infringement of its independence and he should not neglect professional ethic by trying to please his client,judge or third party. 15. The lawyer profession is incompatible with and should not be practiced as: The profession of the active judge, professional mediator and employee of state institutions;

694 • Defense in International Criminal Proceedings Manufacturing and trade business; For-profit public or private businesses and activities, except when they do not jeopardize the independence and dignity of the lawyer and the prestige of the Bar Association.

II. PROFESSIONAL SECRECY 16. The lawyer is required to take into account the secrecy of his client and to give him reliable information. The lawyer mustjudge himself what the party wants to keep secret. The lawyer is required to demand from his staff and anybody who cooperates with him in his work to maintain secrecy. 17. Any information given in confidence, which the lawyer knows because of his activity as a lawyer, all documents, notes, accounts, sound recordings, photographed records and similar notes that are in his office represent secrecy of the lawyer. 18. For keeping professional secrecy the lawyer cannot make available any notes for cases trusted to him as a lawyer, even after he terminates representation of the party. 19. The staff of the lawyer and any collaborator with him in his professional activity is required to keep the professional secrecy of the lawyer. 20. (a) The advocate shall not reveal (disclose) information protected by professional secrecy (given in confidence) even after termination of representation, unless: 1.

11.

The client gives informed consent to disclosure; The disclosure is permitted by paragraph (b).

(b) An advocate may reveal (disclose) information protected by professional secrecy (given in confidence) when: 1.

Disclosure is in the state interest or is necessary to reveal a threat to (endangers) the territorial integrity of Kosovo;

11.

Disclosure is reasonably necessary to prevent reasonably certain death or substantial bodily harm;

111.

To defend against a claim brought by the client against the advocate;

IV.

To secure legal advice about the advocate's compliance with the Kosovo Code;

v.

To prevent the advocate from being used to perpetrate a crime or fraud; or

VI.

To comply with court order or other law.

21. The lawyer should follow the same rules for keeping secrecy in case of a legal person or any other body.

III. RELATIONS WITH CLIENT 22. The lawyer is required to give legal assistance to the party that asks such assistance. The lawyer is required to refuse legal assistance only for reasons provided by Statute or by this Code.

Mixed Tribunals • 695

23. It is recommended that a written contract be used when either the client or the attorney requests it. 24. The lawyer may refuse the request of a party for giving legal assistance only on reasonable grounds: if he cannot act in the interest of the client taking into account other work and obligations, if he thinks that he is not competent to represent the case, if he considers that chances are small for winning the case, and if the client asking for legal assistance makes unreasonable requests. 25. The lawyer who personally knows the opposite party may refuse to represent the other party. If the lawyer decides to represent, he is required to notify the [opposite] party before. 26. The lawyer, to whom the Bar Association has given permission to provide specialized legal assistance, may refuse to give all forms of legal assistance that differ from his specialization.

27. The lawyer must refuse to give legal assistance: If the lawyer, or another lawyer that has worked or works at the same office, has represented before, or has given legal advice or instruction to the same case, or a case legally related to it; If the lawyer, in the same case or a case legally related to it, has worked as a praktikant to the lawyer that represents the opposite party; If the lawyer, in the same case or a case legally related to it, has been ajudge, prosecutor, public advocate, or an official person in the administrative procedure or any other procedure; In other cases provided by law, Statute and this Code. 28. The lawyer cannot revoke the authorization for representation, except for reasons provided by this Code, according to which he is obliged, or is authorized to refuse legal assistance. 29. The lawyer who has revoked the authorization is required to represent the party until the party finds another lawyer, but not longer than 30 days from the day of revoking the authorization. 30. The lawyer should not give any false hopes to the party that he defends and represents, even if he has been successful before. 31. The lawyer cannot cause the party to incur unnecessary expenses. The lawyer advises and defends his client with diligence and zeal. He notifies his client of developments in his case. 32. An Advocate-client relationship beyond the scope of representation is prohibited when the relationship threatens the professional independence of the advocate. 33. The lawyer should, if it is in the interest of the party, try to reconcile parties in the dispute without starting the judicial procedure or another procedure, and during the entire procedure he must try to solve the dispute with agreement between parties. 34. The lawyer cannot accept the offer of the opposite party to represent that party in any other dispute, even after the dispute is solved, if, according to circumstances, that should breach principles of the lawyer ethic.

696 • Defense in International Criminal Proceedings 35. If a lawyer is member or works at the common office of lawyers he cannot give legal assistance to the opposite party. The opposite party is each party that has a dispute with the party that each lawyer at the common office of lawyers represents.

IV. DEFENSE AND REPRESENTATION IN CRIMINAL CASES 36. The lawyer is required to accept the assigned defense of a defendant regardless of the character of the defendant and the type of the action, as well as to represent the damaged party in criminal cases. 37. The lawyer cannot refuse the defense in criminal cases because the defense might be difficult, indisputable evidence exists for the committed action, the party has accepted the commitment of the action, because of the gravity of the action, and reaction of the public opinion. 38. The lawyer is obliged after the end of the case, upon the request of the party, to give back all original documents made available to him by the client.

V. RELATIONS WITH BAR ASSOCIATION 39. The lawyer's duty is to fulfill his obligations towards the Bar Association, to respect, protect and increase its prestige. 40. The lawyer's duty is to participate in meetings of bodies of the Bar Association, its conferences and to contribute with his activities in its successful activity. 41. Election in any body of the Bar Association is an honor for every lawyer and the election may be refused only on reasonable grounds. 42. The lawyer should take care to develop successfully collegial relations. In case of disputes, they should be solved with negotiations or arbitration assigned by the Bar Association. 43. The following are considered as especially serious violations of the lawyer's duties: Failure to implement decisions of the Bar Association and its Executive Council, Providing false information to these bodies, Any offensive conduct in writing or oral communication with these bodies, Failure to carry out material obligations towards the Bar Association. 44. Lawyers are subject to such obligations also with regional gatherings.

VI. RELATIONS WITH COURTS, ADMINISTRATIVE BODIES AND OTHER STATE BODIES 45. The lawyer, in the course of practicing law, should always protect the authority of courts where he provides legal assistance and should express appropriate respect towards them. 46. When a lawyer appears before the court, the lawyer should justify and certify the belief that s/he is a partner in implementing the law and defending fundamental rights of citizens and their interests.

Mixed Tribunals • 697

47. A lawyer appearance before courts, whether in writing or orally, should be true, succinct, and to the extent that does not damage the defense of interests of the party. 48. Before the court, lawyers cannot make offensive statements or express disdain for court decisions, or without grounds to request exclusion ofjudges from the panel, to accuse them, etc. 49. The lawyer should advise his party to respect judges. 50. The lawyer should take care to provide his party with necessary defense as soon as possible and with as few expenses as possible, as well as to fight any delay and abuse of rights before courts and other state bodies. 51. The lawyer should defend his client in compliance with legal rules. The lawyer cannot intentionally provide the judge with any false or misleading information.

VII. OBLIGATION TO INFORM REGARDING COMPENSATION 52. The lawyer should notify the concerned party of all fees he demands as compensation for his work and of all expenses regarding the case. The lawyer should also notify the client about expenses for which the judge has decided and which the other party should pay. 53. The lawyer is entitled to ask for compensation from his party before starting work on the case. 54. The lawyer should not demand from the party unnecessary expenses. If the client is eligible to be provided with free legal assistance, the lawyer should notify the client of this option. If legal aid is not an option, and the party cannot afford to pay the lawyer, legal assistance should be provided free of charge, because providing parties with social problems with legal assistance free of charge is part of the traditional obligation and honesty of the lawyer. 55. If the interested party objects, without any grounds, to paying the lawyer, the lawyer may suspend his work, after s/he has warned the party according to item 1 of this section. The lawyer has the right to be paid for the work done until then. 56. If the concerned party objects to paying the lawyer, before filing a petition to the court, the lawyer should send a letter to the party demanding the payment for his work done or started and should warn the party that if the party neglects his obligations, he would be obliged to file a petition with the court ofjurisdiction.

VIII. RELATIONS OF LAWYER WITH OPPOSITE PARTY 57. The lawyer should also behave with respect and dignity towards the opposite party, trying to create conditions for solving the dispute without delay and in the interest of both parties. 58. The lawyer should not take advantage of ignorance, mistake, or trepidation of the opposite party in order to achieve non-justifiable success for his party, especially when the opposite party does not have a legal representative.

698 • Defense in International Criminal Proceedings

59. The lawyer, before starting the procedure, should advise the opposite party and give an acceptable deadline for completing the disputable requests, except when the case is urgent and when the opposite party does not agree and it is not correct. 60. The lawyer cannot have contacts with the opposite party without notifying the representative of the opposite party and his party. 61. The lawyer should convince the party to not undertake criminal prosecution against the opposite party because of ill-considered declarations that have created a tense situation in the course of the procedure, if such a prosecution is not necessary for the interest of the party. The lawyer should avoid prosecution of the opposite party, if the party under excited state has made unpleasant and indecent declarations. 62. Under any circumstances, the lawyer should take into account the controversial character of debates. He, for example, may not contact the judge for a certain case without notifying the opposite party or his lawyer. The lawyer may not submit to ajudge other documents, notes, or testimonies without previously informing in a timely manner the opposite party or its lawyer, except in case when such actions are allowed according to rules of the relevant procedure.

IX. MUTUAL RELATIONS BETWEEN LAWYERS 63. Lawyers should have collegial and loyal relations among them, as well as professional solidarity. Such relations should not influence negatively the diligence and persistence of lawyers in representing their party. 64. The lawyer should restrain himself from any direct or indirect effort made intentionally to attract clients of another lawyer. 65. A lawyer asked for legal assistance by a foreign lawyer should be always aware that the foreign lawyer considerably depends on his assistance and for this reason he has great responsibility. Lawyers should involve themselves in such cases only if the cases may be processed professionally and without delay. 66. If a party represented by a lawyer asks assistance from another lawyer, the latter is required to inform his colleague. 67. A lawyer is required to behave respectfully towards the lawyer of the other party and to avoid any condescension, attack or unnecessary dispute. 68. When a lawyer asks one of his colleagues to replace him in a case, he should submit immediately the file with all necessary components to continue the work. 69. When expenses and awards of the previous lawyer are not contested, or they are no longer subject to contest, the replacement lawyer may take over that case or take the remuneration without consent of the previous lawyer. 70. When expenses and awards are in dispute between the lawyer and his client, the replacement lawyer cannot take over that case or take remuneration until the issue for expenses of the previous lawyer is not presented to the court of jurisdiction. Such a restriction is valid until the dispute is solved, or until the payment is made or the claimed amount of money is delivered. The replacement lawyer should restrain himself from interfering in contest.

Mixed Tribunals • 699

71. However, the replacement lawyer may carry out all urgent duties needed for defending the interests of the client, provided that he immediately notifies the previous lawyer. He cannot take any remuneration for such involvement.

72. The lawyer assigned to take over the case of a poor person may and should carry out all duties, even those that are not urgent. 73. For the sake of collegial cooperation, a lawyer should inform and should advise another lawyer, upon his request, except in cases when the colleague represents the opposite party. 74. A lawyer should replace another lawyer, who asks to be replaced, except in cases when he is overloaded with other cases. If the lawyer cannot replace the other lawyer who asked so, he should notify the lawyer who asked for the replacement. 75. A lawyer, who accepts as a colleague any lawyer of another country, should act collegially. If the lawyer from the other country asks him to take over another case for which the lawyer is not competent, the asked lawyer is required to assist the foreign colleague, referring him to another lawyer who is able to offer the requested service. 76. If two lawyers of two different countries work together, both of them are obliged Associations, their professional competencies and obligations. 77. The correspondence between lawyers is in good faith. To be treated as such, the will of the sender should be explicitly expressed. Correspondence loses the confidentiality and it may be made available: 1.

when it is a procedural act,

2.

when correspondence is explicitly qualified as non-confidential and when the other accepts non-confidentiality,

3.

when correspondence contains exclusively presentation of pure facts or a response of such presentation.

x.

RELATIONS WITH PRAKTIKANTS

78. Lawyers should accept for practice in their offices newly graduated students from law school, able and enthusiastic in order to create a new generation of capable lawyers. The lawyer should prepare the praktikant of his office to practice law independently, should transmit his professional knowledge and offer the opportunity to learn advocacy practice and knowledge. 79. The lawyer should teach a praktikant principles and rules of conduct in order for him to respect human dignity, honesty and to have good conduct appropriate for the legal profession. 80. The lawyer should be a good example for the praktikant and should view him as a real partner, cooperating with mutual confidence and respect. 81. The lawyer should write a report about the conduct and performance of the praktikant who works in his office. A praktikant should practice law full time and not once in a while. A lawyer should not report about work experience of a praktikant, who never worked in his office.

700 • Defense in International Criminal Proceedings 82. The lawyer should create for the praktikant the best conditions for his efficient work. He should pay the praktikant in the way previously agreed between them and should act in a manner that should give time and conditions to the praktikant to prepare for the bar exam. 83. The lawyer should supervise carefully the work of the praktikant, who is not allowed to practice law independently. 84. In case of a dispute between a lawyer and his praktikant, they should try to resolve the dispute with agreement or mediation of bodies of the Association Bar.

XI. LEGAL ASSISTANCE TO PEOPLE IN NEED 85. Providing legal assistance free of charge to people socially at risk or needy people is a prestigious duty of lawyers, which they should carry out with the same care and diligence as for other parties. 86. A lawyer is required to accept to represent persons socially at risk in civil and criminal cases according to rules provided by the authorized body of the Bar Association in compliance with the general act. 87. If a lawyer is successful in free of charge representation, he may ask by represented persons a compensation for services provided, to the extent that such compensation still maintains its social and human character. A lawyer may certainly ask for the compensation that the represented person has gained by the lawyer's representation and is paid by the other party. 88. A lawyer who, as a representative, asks compensation from persons socially at risk, or from a third party related to the representation, before the end of representation commits a serious violation of the lawyer's duty and prestige.

XII. MANAGEMENT OF LAWYER'S OFFICE 89. A lawyer should try to manage his office and work based on honesty, openness,justice, sincerity and prestige of the duty of the advocacy as an independent service. 90. A lawyer's duty is to create, develop and archive orderly his cases, should keep a regular record of deadlines and trials in order that his parties may follow the progress of cases and the lawyer, without delay, may provide information about his performance to bodies of the Bar Association in compliance with the Statute. 91. A lawyer is responsible for the activity of his office. In joint offices, all lawyers are responsible for the activity of their office. 92. A lawyer should always be precise and self-conscious in works involving money. A lawyer cannot mix money of his client with his own money, and he should be able to give money to his client immediately. Money that a lawyer has taken on behalf of his party, he should immediately deliver to the party. 93. It is prohibited: that a lawyer keeps or uses money, which he was given for a particular purpose; that a lawyer extends the right of retention and because of repeated requests for services that he is supposed to pay himself later.

Mixed Tribunals • 701

94. A lawyer should satisfy all obligations towards his employees in compliance with law and labor contracts. 95. A lawyer should post his logo in the building where his office is located, which, neither in form nor in content, should serve for commercial and advertisement purposes. 96. For protecting the dignity of the advocacy, a lawyer, according to the rule, should meet parties in his office. It is not preferable that a lawyer carries out his work in halls of courts, in hotel facilities and other improper places, except in cases when he does not have a suitable office. 97. A lawyer may appear publicly in television, radio, or press, for issues with scientific or general interest, or specific issues. In these cases, according to the rule, the lawyer may use his lawyer title. 98. A lawyer should avoid informing the public of any activity related to his job or his private life, which may damage his reputation as a lawyer or the reputation of advocacy in general. 99. A lawyer may expose himself publicly to some extent. He should respect professional confidentiality and his obligation to be self-restrained and discrete. He should avoid distorted statements that seek professional publicity. 100. A lawyer may speak only on his own behalf and at his own risk. The Bar Association takes no responsibility for his actions. 101. A lawyer should continuously expand his knowledge, should study legal literature and explore closely every current event, and scientific and cultural progress, political events, etc. Within feasibility and professional competence, the lawyer should participate and offer his cooperation to the Bar Association and other associations. 102. A lawyer, as a legal expert, may be engaged as adviser, cooperator, member of any legislative body, or advisor in an organization that offers professional expertise, provided that such activities are compatible with the lawyer profession.

XIII. ADVERTISING AND SOLICITING 103. An advocate is allowed to announce in mass media the opening or changing of office avoiding any impression of advertising, and announce the opening or changing of office through a letter that should be delivered only to lawyers, judicial bodies and clients. 104. Signage and advertisement may contain: (1) The advocate's name; (2) Contact information; (3) Educational background; (4) Membership in professional organizations; and (5) Any other information approved by the Chamber. 105. The advocate is permitted to display on the internet the information contained under paragraph 104.

702 • Defense in International Criminal Proceedings 106. The lawyer may not: (1) Put his name in overly large form and content, or put such name plaque in places other than outside the building where the office of the lawyer is located; (2) Put an overly large specialization title or overly large use of the square or rounded seal; (3) Make public presentation, announcements in the press, internet and similar actions with exaggerated claims for the value of the lawyer. (4) Post information at the entrance to his office with the purpose of advertising or write his previous profession with the intention of attracting clients, and he cannot advertise his office for matters not related to the advocacy profession (such as photocopy, translations, mediations, etc.). 107. Solicitation of clients is prohibited.

XIV. REPRESENTATION EXPENSES 108. In principle, a lawyer has the right to be compensated according to the Tariff on Legal Professional Fees and compensation of expenses for the work carried out by the lawyer. The lawyer is free to enter into a contract with his party for his work. 109. A lawyer has the right, before starting his work, to ask his client to pay necessary expenses. If the party does not pay in advance for expenses, the lawyer may refuse to represent the client, or may refuse to continue to represent him. 110. A lawyer should not set his compensation on the basis of the "pactum di quota litis," which is an agreement between the lawyer and his client entered into before the final solution of a case, according to which the client agrees to pay to the lawyer part of the settlement in cash, or in kind, or any other value. Setting compensation on the basis of the dispute value, if the value is equal to an official tariff or is provided by normative acts issued by the Bar Association, it is not considered as "pactum di quota litis." 111. If a party offers to his lawyer greater compensation then the one provided by the Tariff, and the lawyer has not asked for that offer, he may accept such compensation, provided that such compensation does not exceed significantly the value of his services, outcome of his work and financial state of the party. 112. A lawyer who has not been compensated has no right to withhold original documents after the performed representation. In this case, a lawyer is required to copy at his own expense all documents he has produced for the party, if the party requests so. 113. In principle, at the beginning of the engagement of a lawyer in representation, reduction from the provided Tariff of expenses is not allowed. After the termination of the legal procedure reduction is allowed, for reasonable grounds, especially when the party has financial difficulties. 114. A lawyer is allowed to enter into a contract for legal assistance with legal persons or individual businesspersons. In such a contract an approximate amount may be set for legal services and advice, which should correspond to the expected service.

Mixed Tribunals • 703 115. A lawyer is required to make available to the party the Tariff, and, upon its request, to deliver an itemized account of expenses.

EFFECTIVE DATE This Code comes into force the day of approval by the Assembly of the Kosovo Chamber of Advocates.

8.2. EAST TIMOR* 8.2.1.

Introduction

The Special Panels for Serious Crimes in Dili, East Timor, were established by the U.N. Transitional Administration in East Timor (UNTAET) in March 2000, to tryatrocities that occurred in East Timor surrounding the referendum on independence and the subsequent Indonesian withdrawal from the province in 1999. The UNTAET regulations establishing the Special Panels base the substantive law to be applied on that of the Rome Statute for the International Criminal Court. Defense and other rights are catered to by an array of provisions taken from various tribunal statutes and international human rights instruments. The Indonesian Penal Code, which was operative in East Timor until 1999, is the subsidiary law where no UNTAET or subsequent laws apply. At the time of writing, the Special Panels had rendered 58 verdicts, with 55 convictions and three acquittals. 11 cases involving 29 accused were ongoing and 137 murders remained under investigation. A further 279 accused had been indicted who were believed to be residing outside East Timor, and 165 arrest warrants had been issued in respect of these accused.l'" This appears an impressive catalogue compared with the work of the ad hoc tribunals. The reality is different. Many of the cases cited have been concerned with simple counts of murder and manslaughter tried as ordinary crimes under the Indonesian Penal Code. Even those dealing with international crimes (to date, this refers exclusively to crimes against humanity) have been for the most part concerned with single incidents, often relating to a single victim. There can be no comparison with the massive scale of the genocide trials taking place before the IClY and ICTR. In addition, those being tried are almost exclusively low-ranking militia members. Members of the Indonesian military and commanding officers are almost all still at large in Indonesia.I'" The Special Panels in Dili have suffered from a number of crippling defects. They were not planned as a separate unit, but as part of an entirely new political, adminis-

*

Section 8.2 was written by Sylvia de Bertodano. Figures taken from Progress Report of the Secretary-General on the United Nations Mission in Support in East Timor, S/2004/669, at paras. 16-17, Aug. 29, 2004. 183 Trials of 18 high ranking military and civilian leaders before the ad hoc tribunal in Jakarta have been widely regarded as a farce, resulting in derisory sentences of between two and ten years for the six convicted; following the appeals in these cases, only two convictions stand, and both relate to defendants who are of Timorese rather than Indonesian ethnicity. For an account of these trials see Indonesia: Implications of the Timor Trials International Crisis Group Jakarta/Brussels, May 8,2002. 182

704 • Defense in International Criminal Proceedings trative and judicial system set up under the Transitional Administration. As a result, they were never given the individual attention that has been lavished on the ad hoc tribunals and the Special Court for Sierra Leone (SCSL). Chronic underfunding, lack of experienced personnel and lack of a clear sense of purpose have made the process seem at times unworkable. When UNTAET arrived in East Timor, there were almost no qualified lawyers in the country. The majority had fled with the Indonesian exodus. Even the court buildings had been burned to the ground. Of those remaining lawyers who were qualified, few had ever practiced. Those with experience were quickly appointed as judges or prosecutors. The defense lawyers who served as public defenders for all criminal and civil cases countrywide were those ten or so who remained after these selections had been made; none of them had completed a university law degree. This process is indicative of the priorities that were applied throughout the system. At the bottom of the pile, under the prosecution,judges, court system and administration, lay the defense. This order of priorities is not unusual. The need for proper defense provision took the IClY by surprise back in 1996, and was only just remedied in time for its first trial. Similarly, the ICTR and the SCSL have both budgeted for defense only after the other three organs of the court. It could perhaps be said that the first casualty of war crimes trials is the defense. However, the degree to which this happened in East Timor was incomparably worse than elsewhere, and attempts to remedy the situation were late and half-hearted. The system provides for a Public Defenders' Office (now known as the Defence Lawyers' Unit). In the first crimes against humanity trial, which was prosecuted by international lawyers from the U.N. staffed Serious Crimes Unit (SCU) ten defendants shared six lawyers (three international and three East Timorese). Five of these lawyers had barely set foot in a criminal court before the trial, and none had any knowledge of international criminal law. Several of these lawyers left the country during the course of the trial, handing their hapless clients to other equally inexperienced counsel. The ten resulting convictions, attracting sentences of up to 33 years and four months, can hardly be regarded as a victory for justice. While the situation has gradually improved in some respects (all serious crimes defendants are now defended by international lawyers, though often at a very junior Ievel-! Other serious criticisms abound: Cohen stresses the inadequacy of the right to appeal in cases where there are no trial transcripts on which an appeal can be based. He concludes that this "deeply flawed" process should be a lesson to the United Nations against trying to provide justice on the cheap:

Id. at 213-14. David Cohen, "Seeking Justice on the Cheap: Is the East Timor Tribunal Really a Model for the Future?" 61 Asia Pacific Issues, at 3-5 (Aug. 2002). 251 Id. at 5. 249

250

Mixed Tribunals • 729

In doing so it does an injustice to those individuals convicted without a fair trial and undermines the very standards of the justice and the rule of law that the tribunals are supposed to advance.s'< In a lengthy discussion of the operation of the Special Panels in the Harvard Human Rights Review in July 2003, Suzanne Katzenstein highlights the ongoing deficiencies, in particular the failure of the attempts to involve East Timorese lawyers in the process through a system of mentoring. The East Timorese defenders have effectively left the defense of serious crimes, considering the hybrid tribunal to belong exclusively to the internationals. As Caitlin Reiger, who served briefly as a mentor to the Public Defenders' Office, has stated: "They feel that [the tribunal] has nothing to do with them." As of this writing, the East Timorese public defenders work almost exclusively on ordinary crimes. 253 She catalogues the deficiencies of the system in similar terms to those expressed in previously quoted articles, and comments: Defendants have suffered under the current system. The quality of the defense in the early cases likely violated the right of the defendants to effective counsel. The introduction of international defenders and mentors improved the situation drastically, yet defendants remain deprived of the same quality of defense provided at the ad hoc tribunals. Defendants, moreover, rarely meet with their lawyers. Investigations and trials progress slowly, so that even monthly meetings may leave public defenders with nothing new to report. When defenders do meet with their clients, it is more to offer contact with the outside than to update them on the progress of their cases.

8.2.6.

Conclusion

The criticisms that have been made repeatedly and publicly since 2001 still, for the most part, apply. It is clear that there are fundamental flaws in the system applied by the United Nations to East Timor, which have never been resolved. Among the areas of most concern is the failure properly to observe the rights of the defense. The regulations and laws provide a workable legal structure in regard to most matters, and provide reasonably fully for the basic defense rights. However, with regard to many crucial defense issues, such as the right of appeal and the legality of detention, these laws are not applied. Procedural safeguards enshrined in the law are not sufficient when the law itself is simply disregarded. There is no real set of rules regarding the provision of defense. When such rules were enacted, they were never put into operation. Equality of arms has never been achieved, and, for most observers, the enduring picture of the East Timor trials is one of unqualified and inexperienced defense lawyers facing senior international prosecutors in a wholly unequal contest. It is true that there is now a sufficient number of inter-

Id. at 7. Suzanne Katzenstein, "Hybrid Tribunals: Searching for Justice in East Timor," 16(6) Harv. Hum. Rts. J. 245, at 263 (June 2003). 252

253

730 • Defense in International Criminal Proceedings national defense counsel to cover the workload of the Special Panels, but there are still some serious question marks over their level of expertise. Certainly there are none at the level that would be expected as a matter of course before the ICTY and ICTR. In addition there is virtually no investigative capacity in the Defense Lawyer's Unit. The solution provided by the United Nations has been too little, too late. It is only partly due to this basic inequality that other defense rights have been ignored. There seems to be little political will to ensure justice for defendants. The Secretary-General's reports regularly give the figures of those illegally detained in East Timor under the auspices of the United Nations, without acting to remedy the situation. For almost two years the right to appeal was simply non-existent due to failure to appoint appeal court judges for a period of 20 months, for the first seven of which the United Nations was in sole charge in East Timor. The Special Panels in East Timor were trailblazers in a number of respects. They were the first trials to take place in the country where the atrocities happened, before hybrid tribunals, under the substantive law of the Rome Statute. Had they been successful, they would have become a model that could be followed by courts in Sierra Leone and Iraq, as well perhaps as in Sudan and the Democratic Republic of Congo and other places where the battle against impunity is waged. It is disheartening that this opportunity has been missed due to a lamentable and avoidable failure to provide for and finance a properly functioning system that respects the basic rights of the accused.

8.3. SIERRA LEONE* 8.3.1. 8.3.1.1.

Introduction The Special Court for Sierra Leone

The Special Court for Sierra Leone (SCSL) was set up by a treaty between the United Nations and the government of Sierra Leone. It is based in a court building and office complex in Freetown, Sierra Leone. The Statute relies on a mixture of offenses in international and domestic law. The staff of the Court, includingjudges, prosecutors and defense lawyers, consists partially of Sierra Leone nationals and partially of foreigners. The Court has limited funding and was intended to exist for only three years. The Statute requires that only "those who bear the greatest responsibility" are tried for alleged offenses during the conflict.

8.3.1.2.

The Office ofthe Principal Defender

The SCSL has created a unique structure in international criminal law in the Office of the Principal Defender (OPD), which is designed to provide legal and administrative support to those lawyers appearing before the Court. Originally a part of the Registry of the Court, it is intended that the OPD will become an independent part of the Court, the fourth pillar to the existing prosecution, judges and Registry.

*

Section 8.3 was written by Rupert Skillbeck.

Mixed Tribunals • 731

8.3.2. 8.3.2.1.

Legal Documents Statute ofthe Special Court for Sierra Leone (excerpts) STATUTE OF THE SPECIAL COURT FOR SIERRA LEONE

Having been established by an Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council resolution 1315 (2000) of 14 August 2000, the Special Court for Sierra Leone (hereinafter "the Special Court") shall function in accordance with the provisions of the present Statute. [ ... ]

Article 14 Rules of Procedure and Evidence 1. The Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda obtaining at the time of the establishment of the Special Court shall be applicable mutatis mutandis to the conduct of the legal proceedings before the Special Court. 2. The judges of the Special Court as a whole may amend the Rules of Procedure and Evidence or adopt additional rules where the applicable Rules do not, or do not adequately, provide for a specific situation. In so doing, they may be guided, as appropriate, by the Criminal Procedure Act, 1965, of Sierra Leone. [ ... ]

Article 16 The Registry 1. The Registry shall be responsible for the administration and servicing of the Special Court. 2. The Registry shall consist of a Registrar and such other staff as may be required. 3. The Registrar shall be appointed by the Secretary-General after consultation with the President of the Special Court and shall be a staff member of the United Nations. He or she shall serve for a three-year term and be eligible for re-appointment. 4. The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. The Unit personnel shall include experts in trauma, including trauma related to crimes of sexual violence and violence against children.

Article 17 Rights ofthe accused 1. All accused shall be equal before the Special Court. 2. The accused shall be entitled to a fair and public hearing, subject to measures ordered by the Special Court for the protection of victims and witnesses.

732 • Defense in International Criminal Proceedings

3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute. 4. In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: a.

To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her;

b.

To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing;

c.

To be tried without undue delay;

d.

To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interests ofjustice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it;

e.

To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;

f.

To have the free assistance of an interpreter if he or she cannot understand or speak the language used in the Special Court;

g.

Not to be compelled to testify against himself or herself or to confess guilt.

8.3.2.2.

Rules of Procedure ofthe Special Court for Sierra Leone (excerpts) Rules of Procedure and Evidence PART IV-INVESTIGATIONS, RIGHTS OF SUSPECTS AND ACCUSED Section 1: Investigations

[ ... ]

Rule 42: Rights ofSuspects during Investigation (amended 7 March 2003) (A) A suspect who is to be questioned by the Prosecutor shall have the following rights, of which he shall be informed by the Prosecutor prior to questioning, in a language he speaks and understands: 1.

The right to legal assistance of his own choosing, including the right to have legal assistance provided by the Defence Office where the interests ofjustice so require and where the suspect does not have sufficient means to pay for it;

11.

The right to have the free assistance of an interpreter if he cannot understand or speak the language to be used for questioning; and

111.

The right to remain silent, and to be cautioned that any statement he makes shall be recorded and may be used in evidence.

Mixed Tribunals • 733 (B) Questioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived his right to counsel. In case of waiver, if the suspect subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspect has obtained or has been assigned counsel.

Rule 43: Recording Questioning ofSuspects (amended 1 August 2003) Whenever the Prosecutor questions a suspect, the questioning, including any waiver of the right to counsel, shall be audio-recorded or video-recorded, in accordance with the following procedure: 1.

The suspect shall be informed in a language he speaks and understands that the questioning is being audio-recorded or video-recorded;

11.

In the event of a break in the course of the questioning, the fact and the time of the break shall be recorded before audio-recording or video-recording ends and the time of resumption of the questioning shall also be recorded;

111.

At the conclusion of the questioning the suspect shall be offered the opportunity to clarify anything he has said, and to add anything he may wish, and the time of conclusion shall be recorded;

IV.

The content of the recording shall then be transcribed as soon as practicable after the conclusion of questioning and a copy of the transcript supplied to the suspect, together with a copy of the recording or, if multiple recording apparatus was used, one of the original recorded tapes; and

v.

After a copy has been made, if necessary, of the recorded tape for purposes of transcription, the original recorded tape or one of the original tapes shall be sealed in the presence of the suspect under the signature of the Prosecutor and the suspect.

Section 2: Defence Counsel Rule 44: Appointment and Qualifications ofCounsel (amended 29 May 2004) (A) Counsel engaged by a suspect or an accused shall file his power of attorney with the Registrar at the earliest opportunity. Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he has been admitted to the practice of law in a State and practiced criminal law for a minimum of five years. (B) In the performance of their duties counsel shall be subject to the relevant provisions of the Agreement, the Statute, the Rules, the Rules of Detention and any other rules or regulations adopted by the Special Court, the Headquarters Agreement, the Code of Professional Conduct and the codes of practice and ethics governing their profession and, if applicable, the Directive on the Assignment of Defence Counsel.

Rule 45: Defence Office (amended 1 August 2003) The Registrar shall establish, maintain and develop a Defence Office, for the purpose of ensuring the rights of suspects and accused. The Defence Office shall be headed by the Special Court Principal Defender.

734 • Defense in International Criminal Proceedings

(A) The Defence Office shall, in accordance with the Statute and Rules, provide advice, assistance and representation to: 1.

suspects being questioned by the Special Court or its agents under Rule 42, including non-custodial questioning;

11.

accused persons before the Special Court.

(B) The Defence Office shall fulfil its functions by providing, inter alia: 1.

initial legal advice and assistance by duty counsel who shall be situated within a reasonable proximity to the Detention Facility and the seat of the Special Court and shall be available as far as practicable to attend the Detention Facility in the event of being summoned;

11.

legal assistance as ordered by the Special Court in accordance with Rule 61, if the accused does not have sufficient means to pay for it, as the interests ofjustice may so require;

111.

adequate facilities for counsel in the preparation of the defence.

(C) The Principal Defender shall, in providing an effective defence, maintain a list of highly qualified criminal defence counsel whom he believes are appropriate to act as duty counselor to lead the defence or appeal of an accused. Such counsel, who may include members of the Defence Office, shall: 1.

speak fluent English;

11.

be admitted to practice law in any State;

111.

have at least 7 years' relevant experience; and

IV.

have indicated their willingness and full-time availability to be assigned by the Special Court to suspects or accused.

(D) Any request for replacement of an assigned counsel shall be made to the Principal Defender. Under exceptional circumstances, the request may be made to a Chamber upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings. (E) Counsel will represent the accused and conduct the case to finality. Failure to do so, absent just cause approved by the Chamber, may result in forfeiture of fees in whole or in part. In such circumstances the Chamber may make an order accordingly. Counsel shall only be permitted to withdraw from the case to which he has been assigned in the most exceptional circumstances. In the event of such withdrawal the Principal Defender shall assign another Counsel who may be a member of the Defence Office, to the indigent accused.

Rule 45 bis: Declaration of Means by the Accused (amended 1 August 2003) (A) If, after his transfer to the Special Court, the suspect or accused wishes to request legal assistance, he shall make a declaration of his means to the Registrar. (B) If a suspect or an accused elects to conduct his own defence, he shall so notify the Registrar in writing at the first opportunity.

Mixed Tribunals • 735

Rule 46: Misconduct ofCounsel (amended 29 May 2004) (A) A Chamber may, after a warning, impose sanctions against or refuse audience to a counsel if, in its opinion, his conduct remains offensive or abusive, obstructs the proceedings, or is otherwise contrary to the interests ofjustice. This provision is applicable to counsel for the prosecution. (B) A Chamber may determine that counsel is no longer eligible to represent a suspect or accused before the Special Court, pursuant to Rule 45. If declared ineligible, removed counsel shall transmit to replacement counsel all materials relevant to the representation. (C) Counsel who bring motions, or conduct other activities, that in the opinion of a Chamber are either frivolous or constitute abuse of process may be sanctioned for those actions as the Chamber may direct. Sanctions may include fines upon counsel; non-payment, in whole or in part, of fees associated with the motion or its costs, or such other sanctions as the Chamber may direct. (D) AJudge or a Chamber may also, with the approval of the President, communicate any misconduct of counsel to the professional body regulating the conduct of counsel in his State of admission. (E) If a counsel assigned pursuant to Rule 45 is sanctioned by being refused audience, the Chamber shall instruct the Registrar to replace the counsel. (F) This Rule is applicable to counsel for the Prosecution as well as counsel appearing for the Defence and to any counsel appearing as amicus curiae. (G) The Registrar may set up a Code of Professional Conduct enunciating the principles of professional ethics to be observed by counsel having right of audience before the Special Court, subject to adoption by the Plenary Meeting. Amendments to the Code shall be made in consultation with representatives of the Prosecutor and Defence counsel, and subject to adoption by the Plenary Meeting. If the Registrar has strong grounds for believing that counsel has committed a serious violation of the Code of Professional Conduct so adopted, he may report the matter to the President for appropriate action under this rule. (H) Decisions made by a Trial Chamber under Sub-Rules (A) to (C) above may be appealed with leave from that Chamber. Where such leave is refused, the Party may apply to a bench of at least three Appeals Chamber Judges for leave. [ ... ]

Rule 61 : Initial Appearance ofAccused and Plea (amended 1 August 2003) Upon his transfer to the Special Court, the accused shall be brought before the DesignatedJudge as soon as practicable, and shall be formally charged. The Designated Judge shall: 1.

Satisfy himself that the right of the accused to counsel is respected, and in so doing, shall question the accused with regard to his means and instruct the Registrar to provide legal assistance to the accused as necessary, unless the accused elects to act as his own counselor refuses representation;

11.

Read or have the indictment read to the accused in a language he speaks and understands, and satisfy himself that the accused understands the indictment;

736 • Defense in International Criminal Proceedings 111.

Call upon the accused to enter a plea of guilty or not guilty on each count; should the accused fail to do so, enter a plea of not guilty on his behalf;

IV.

In case of a plea of not guilty, instruct the Registrar to set a date for trial;

v.

In case of a plea of guilty, shall refer the plea to the Trial Chamber so that it may act in accordance with Rule 62.

Rule 62: Procedure upon Guilty Plea (amended 29 May 2004) (A) If an accused pleads guilty in accordance with Rule 61 (v), or requests to change his plea to guilty, the Trial Chamber shall satisfy itself that the guilty plea: 1.

is made freely and voluntarily;

11.

is an informed plea;

111.

is unequivocal;

IV.

is based on sufficient facts for the crime and accused's participation in it, either on the basis of independent indicia or of lack of any material disagreement between the parties about the facts of the case.

(B) Thereafter the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for the sentencing hearing.

Rule 63: Questioning ofthe Accused (amended 7 March 2003) (A) Questioning by the Prosecutor of an accused, including after the initial appearance, shall not proceed without the presence of counsel unless the accused has voluntarily and expressly agreed to proceed without counsel present. If the accused subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the accused's counsel is present. (B) The questioning, including any waiver of the right to counsel, shall be audiorecorded and, if possible, video-recorded in accordance with the procedure provided for in Rule 43. The Prosecutor shall at the beginning of the questioning caution the accused in accordance with Rule 42 (A) (iii).

Rule 64: Detention on Remand (amended 29 May 2004) Upon his transfer to the Special Court, the accused shall be detained in the Detention Facility, or facilities otherwise made available pursuant to Rule 8(C). The Registrar, in a case where he considers it necessary, may order special measures of detention of an accused outside the Detention Facility. The order of the Registrar shall be put before the President for endorsement within 48 hours of the order being issued.

Rule 65: Bail (amended 7 March 2003) (A) Once detained, an accused shall not be granted bail except upon an order of a Judge or Trial Chamber. (B) Bail may be ordered by aJudge or a Trial Chamber after hearing the State to which the accused seeks to be released and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.

Mixed Tribunals • 737

(C) An accused may only make one application for bail to the Judge or Trial Chamber unless there has been a material change in circumstances. (D) The Judge or Trial Chamber may impose such conditions upon the granting of bail to the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused at trial and the protection of others. (E) Any decision rendered under this Rule shall be subject to appeal in cases where leave is granted by a Single Judge of the Appeals Chamber, upon good cause being shown. Applications for leave to appeal shall be filed within seven days of the impugned decision. (F) If necessary, the Trial Chamber may issue a warrant of arrest to secure the presence of an accused who has been granted bail or is for any other reason at large. The provisions of Section 2 of Part V shall apply. (G) The Prosecutor may appeal a decision to grant bail. In the event of such an appeal, the accused shall remain in custody until the appeal is heard and determined. (H) Appeals from bail decisions shall be heard by a bench of at least three Appeals Chamber Judges.

Rule 65 bis: Status Conferences (amended 1 August 2003) A status conference may be convened by the DesignatedJudge or by the Trial Chamber. The status conference shall: 1.

organize exchanges between the parties so as to ensure expeditious trial proceedings;

11.

review the status of his case and to allow the accused the opportunity to raise issues in relation thereto.

Section 3: Production of Evidence Rule 66: Disclosure ofmaterials by the Prosecutor (amended 29 May 2004) (A) Subject to the provisions of Rules 50, 53, 69 and 75, the Prosecutor shall: 1.

Within 30 days of the initial appearance of an accused, disclose to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify and all evidence to be presented pursuant to Rule 92 bis at trial.

11.

Continuously disclose to the Defence copies of the statements of all additional prosecution witnesses whom the Prosecutor intends to call to testify, but not later than 60 days before the date for trial, or as otherwise ordered by aJudge of the Trial Chamber either before or after the commencement of the trial, upon good clause being shown by the Prosecution. Upon good cause being shown by the Defence, aJudge of the Trial Chamber may order that copies of the statements of additional prosecution witnesses that the Prosecutor does not intend to call be made available to the defence within a prescribed time.

111.

At the request of the defence, subject to Sub-Rule (B), permit the defence to inspect any books, documents, photographs and tangible objects in his custody

738 • Defense in International Criminal Proceedings

or control, which are material to the preparation of the defence, upon a showing by the defence of categories of, or specific, books, documents, photographs and tangible objects which the defence considers to be material to the preparation of a defence, or to inspect any books, documents, photographs and tangible objects in his custody or control which are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused. (B) Where information or materials are in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to a Judge designated by the President sitting ex parte and in camera, but with notice to the Defence, to be relieved from the obligation to disclose pursuant to Sub-Rule (A). When making such an application the Prosecutor shall provide, only to such Judge, the information or materials that are sought to be kept confidential.

Rule 67: Reciprocal Disclosure of Evidence (amended 7 March 2003) Subject to the provisions of Rules 53 and 69: (A) As early as reasonably practicable and in any event prior to the commencement of the trial: 1.

The Prosecutor shall notify the defence of the names of the witnesses that he intends to call to establish the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with Sub-Rule (ii) below, or any defence pleaded in the Defence Case Statement served under Sub-Rule (C);

11.

The defence shall notify the Prosecutor of its intent to enter: a.

The defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;

b.

Any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence.

(B) Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences. (C) To assist the Prosecutor with its disclosure obligations pursuant to Rule 68, the defence may prior to trial provide the Prosecutor with a Defence Case Statement. The Defence Case Statement shall: 1.

set out in general terms the nature of the accused's defence;

11.

indicate the matters on which he takes issue with the prosecution; and

111.

set out, in the case of each such matter, the reason why he takes issue with the prosecution.

Mixed Tribunals • 739

(D) If either party discovers additional evidence or information or materials which should have been produced earlier pursuant to the Rules, that party shall promptly notify the other party and the Trial Chamber of the existence of the additional evidence or information or materials.

Rule 68: Disclosure of Exculpatory Evidence (amended 14March 2004) (A) The Prosecutor shall, within 14 days of receipt of the Defence Case Statement, make a statement under this Rule disclosing to the defence the existence of evidence known to the Prosecutor which may be relevant to issues raised in the Defence Case Statement. (B) The Prosecutor shall, within 30 days of the initial appearance of the accused, make a statement under this Rule disclosing to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence. The Prosecutor shall be under a continuing obligation to disclose any such exculpatory material. [ ... ]

Section 5: Preliminary Motions Rule 72: Preliminary Motions (amended 29 May 2004) (A) Preliminary motions by either party shall be brought within 21 days following disclosure by the Prosecutor to the Defence of all the material envisaged by Rule 66 (A) (i). (B) Preliminary motions by the accused are: 1.

Objections based on lack ofjurisdiction;

11.

Objections based on defects in the form of the indictment;

111.

Applications for severance of crimes joined in one indictment under Rule 49, or for separate trials under Rule 82 (B) ;

IV.

Objections based on the denial of request for assignment of counsel; or

v.

Objections based on abuse of process.

(C) Objections based on lack ofjurisdiction or to the form of the indictment, including an amended indictment, shall be raised by a party in one motion only, unless otherwise allowed by the Trial Chamber. (D) The Trial Chamber shall, except as provided by Sub-Rules (E) and (F) below, dispose of preliminary motions before the trial, and its decisions thereon shall not be subject to interlocutory appeal. (E) Preliminary motions made in the Trial Chamber prior to the Prosecutor's opening statement which raise a serious issue relating to jurisdiction shall be referred to a bench of at least three Appeals Chamber Judges, where they will proceed to a determination as soon as practicable. (F) Preliminary motions made in the Trial Chamber prior to the Prosecutor's opening statement which, in the opinion of the Trial Chamber, raise an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of a

740 • Defense in International Criminal Proceedings trial shall be referred to a bench of at least three Appeals Chamber Judges, where they will proceed to a determination as soon as practicable. (G) Where the Trial Chamber refers a motion to the Appeals Chamber pursuant to Sub-Rules (E) or (F) above, any party wishing to file additional written submissions must seek leave from the Appeals Chamber which will impose time limits for further submissions, responses and replies if leave is granted. (H) References by the Trial Chamber pursuant to Sub-Rules (E) and (F) above shall not operate as a stay of proceedings. Such references shall not operate as a stay of the trial itself unless the Trial or Appeal Chamber so orders. (I) This Rule shall be deemed to have entered into force on the 7th of March, 2003.

PART VI-PROCEEDINGS BEFORE TRIAL CHAMBERS Section 1: General Provisions Rule 72 bis: General Provisions on Applicable Law (adopted 29 May 2004) The applicable laws of the Special Court include: 1.

the Statute, the Agreement, and the Rules;

11.

where appropriate, other applicable treaties and the principles and rules of international customary law;

111.

general principles of law derived from national laws of legal systems of the world including, as appropriate, the national laws of the Republic of Sierra Leone, provided that those principles are not inconsistent with the Statute, the Agreement, and with international customary law and internationally recognized norms and standards.

Rule 73: Motions (amended 29 May 2004) (A) Subject to Rule 72, either party may move before the DesignatedJudge or a Trial Chamber for appropriate ruling or relief after the initial appearance of the accused. The DesignatedJudge or the Trial Chamber, or aJudge designated by the Trial Chamber from among its members, shall rule on such motions based solely on the written submissions of the parties, unless it is decided to hear the parties in open Court. (B) Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders. (C) Whenever the Trial Chamber and the Appeals Chamber of the Court are seized of the same Motion raising the same or similar issue or issues, the Trial Chamber shall stay proceedings on the said Motion before it until a final determination of the said Motion by the Appeals Chamber.

Mixed Tribunals • 741

Rule 73 bis: Pre Trial Conference (amended 29 May 2004) (A) The Trial Chamber or aJudge designated from among its members shall hold a Pre Trial Conference prior to the commencement of the trial. (B) At the Pre Trial Conference the Trial Chamber or aJudge designated from among its members may order the Prosecutor, within a time limit set by the Trial Chamber or the saidJudge, and before the date set for trial, to file the following: 1.

A pre trial brief addressing the factual and legal issues;

11.

Admissions by the parties and a statement of other matters not in dispute;

111.

A statement of contested matters of fact and law;

IV.

A list of witnesses the Prosecutor intends to call with: a.

The name or pseudonym of each witness;

b.

A summary of the facts on which each witness will testify;

c.

The points in the indictment on which each witness will testify; and

d.

The estimated length of time required for each witness;

v.

A list of exhibits the Prosecutor intends to offer stating, where possible, whether or not the defence has any objection as to authenticity.

VI.

The Trial Chamber or the saidJudge may order the Prosecutor to provide the Trial Chamber with copies of written statements of each witness whom the Prosecutor intends to call to testify.

(C) The Trial Chamber or aJudge designated from among its members may order the Prosecutor to shorten the examination in chief of some witnesses. (D) The Trial Chamber or aJudge designated from among its members may order the Prosecutor to reduce the number of witnesses, if it considers that an excessive number of witnesses are being called to prove the same facts. (E) After the commencement of the Trial, the Prosecutor may, if he considers it to be in the interests ofjustice, move the Trial Chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called. (F) At the Pre-Trial Conference, the Trial Chamber or aJudge designated from among its members may order the defence to file a statement of admitted facts and law and a pre-trial brief addressing the factual and legal issues, not later than seven days prior to the date set for trial.

Rule 73 ter: Pre Defence Conference (amended 29 May 2004) (A) The Trial Chamber or a Judge designated from among its members may hold a Conference prior to the commencement by the defence of its case. (B) At that Conference, the Trial Chamber or aJudge designated from among its members may order that the defence, before the commencement of its case but after the close of the case for the prosecution, file the following:

742 • Defense in International Criminal Proceedings 1.

Admissions by the parties and a statement of other matters which are not in dispute;

11.

A statement of contested matters of fact and law;

111.

A list of witnesses the defence intends to call with: a.

The name or pseudonym of each witness;

b.

A summary of the facts on which each witness will testify;

c.

The points in the indictment as to which each witness will testify; and

d.

The estimated length of time required for each witness;

(iv) A list of exhibits the defence intends to offer in its case, stating where possible whether or not the Prosecutor has any objection as to authenticity. The Trial Chamber or the said Judge may order the Defence to provide the Trial Chamber and the Prosecutor with copies of the written statements of each witness whom the Defence intends to call to testify. (C) The Trial Chamber or aJudge designated from among its members may order the defence to shorten the estimated length of the examination in chief for some witnesses. (D) The Trial Chamber or aJudge designated from among its members may order the defence to reduce the number of witnesses, if it considers that an excessive number of witnesses are being called to prove the same facts. (E) After the commencement of the defence case, the defence may, if it considers it to be in the interests ofjustice, move the Trial Chamber for leave to reinstate the list of witnesses or to vary its decision as to which witnesses are to be called.

Rule 74: Amicus Curiae (amended 7 March 2003) A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to any State, organization or person to make submissions on any issue specified by the Chamber. [ ... ]

Rule 77: Contempt ofthe Special Court (amended 29 May 2004) (A) The Special Court, in the exercise of its inherent power, may punish for contempt any person who knowingly and willfully interferes with its administration of justice, including any person who: 1.

being a witness before a Chamber, subject to Rule 90(E) refuses or fails to answer a question;

11.

discloses information relating to proceedings in knowing violation of an order of a Chamber;

111.

without just excuse fails to comply with an order to attend before or produce documents before a Chamber;

IV.

threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness;

Mixed Tribunals • 743

v.

threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber; or

VI.

knowingly assists an accused person to evade the jurisdiction of the Special Court.

(B) Any incitement or attempt to commit any of the acts punishable under Sub-Rule (A) is punishable as contempt of the Special Court with the same penalties. (C) When aJudge or Trial Chamber has reason to believe that a person may be in contempt of the Special Court, it may: 1.

deal with the matter summarily itself;

11.

refer the matter to the appropriate authorities of Sierra Leone; or

111.

direct the Registrar to appoint an experienced independent counsel to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating contempt proceedings. If the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may issue an order in lieu of an indictment and direct the independent counsel to prosecute the matter.

(D) Proceedings under Sub-Rule (C) (iii) above may be assigned to be heard by a single judge of the Trial Chamber or a Trial Chamber. (E) The rules of procedure and evidence in Parts IV to VIII shall apply, as appropriate, to proceedings under this Rule. (F) Any person indicted for or charged with contempt shall, if that person satisfies the criteria for determination of indigence established by the Registrar, be entitled to legal assistance in accordance with Rule 45. (G) The maximum penalty that may be imposed on a person found to be in contempt of the Special Court pursuant to Sub-Rule (C) (i) shall be a term of imprisonment not exceeding six months, or a fine not exceeding 2 million Leones, or both; and the maximum penalty pursuant to Sub-Rule (C) (iii) shall be a term of imprisonment for seven years or a fine not exceeding 2 million leones, or both. (H) Payment of a fine shall be made to the Registrar to be held in a separate account. (I) If a counsel is found guilty of contempt of the Special Court pursuant to this Rule, the Chamber making such finding may also determine that counsel is no longer eligible to appear before the Special Court or that such conduct amounts to misconduct of counsel pursuant to Rule 46, or both.

0) Any decision rendered by a Single Judge or Trial Chamber under this Rule shall be su bject to appeal. (K) Appeals pursuant to this Rule shall be heard by a bench of at least three Judges of the Appeals Chamber. In accordance with Rule 117 such appeals may be determined entirely on the basis of written submissions. (L) In the event of contempt occurring during proceedings before the Appeals Chamber or aJudge of the Appeals Chamber, the matter may be dealt with summarily from which there shall be no right of appeal or referred to a Trial Chamber for proceedings in accordance with Sub-Rules (C) to (I) above. [ ... ]

744 • Defense in International Criminal Proceedings

Rule 97: Lawyer-Client Privilege (amended 7 March 2003) All communications between lawyer and client shall be regarded as privileged, and consequently disclosure cannot be ordered, unless: 1.

The client consents to such disclosure; or

11.

The client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.

111.

The client has alleged ineffective assistance of counsel, in which case the privilege is waived as to all communications relevant to the claim of ineffective assistance.

8.3.2.3.

Directive on the Assignment ofCounsel DIRECTIVE ON THE ASSIGNMENT OF COUNSEL PREAMBLE

The Registrar, in consultation with the President of the Special Court for Sierra Leone, Considering the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone signed in Freetown on 16 January 2002 and the Statute of the Special Court for Sierra Leone annexed to that Agreement and, in particular, the rights guaranteed all individuals appearing before the Special Court for Sierra Leone under Article 17 of the Statute of the Special Court for Sierra Leone, including the right to Counsel, and the rights of a suspected or accused person or detainee under international law; and Considering the Rules of Procedure and Evidence of the Special Court for Sierra Leone adopted pursuant to Article 14 of the Statute of the Special Court for Sierra Leone on 7 March 2003, and as subsequently amended, and in particular Rules 44, 45, 45 bis and 46: Issues this Directive laying down the conditions and arrangements for the Assignment of Counsel to an Accused or Suspect.

PART I: BASIC PRINCIPLES Article 1: Use ofTerms (A) For the purposes of this Directive the following terms are defined as: Accused:

Any individual against whom an indictment of the Special Court for Sierra Leone has been confirmed in accordance with Rule 47 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone.

Agreement:

The Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone signed in Freetown on 16 January 2002.

Assigned Counsel: Counsel appointed under Rule 45 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone and engaged, in

Mixed Tribunals • 745

accordance with this Directive, to provide legal services to a Suspect or Accused before the Special Court for Sierra Leone, either by virtue of having been provisionally assigned to a Suspect or Accused or by virtue of having entered into a Legal Services Contract with the Principal Defender. Contract Specification: Contracting Counsel:

The DOSCSL Contract Specification as issued by the Defence Office. Counsel qualified under Rule 45 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone, engaged under a Legal Services Contract with the Principal Defender and responsible for supervising the provision of all services, to a Suspect or Accused, by the Defence Team.

Counsel:

An individual licensed or otherwise permitted to practice law in any State, as defined in Rule 44 or 45 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone.

Defence Office:

The office set up by the Registrar of the Special Court for Sierra Leone pursuant to Rule 45 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone responsible for ensuring the rights of Suspects and Accused.

Defence Team:

The individuals providing services to a Suspect or Accused in accordance with a Provisional Assignment Agreement or Legal Services Contract described in Article 16 of this Directive.

Legal Services Contract:

List of Qualified Counsel:

President:

Principal Defender:

The agreement between Contracting Counsel and the Principal Defender for the representation of a Suspect or Accused before the Special Court for Sierra Leone outlined in Article 16 of this Directive. The list contemplated by Rule 45(C) of the Rules of Procedure and Evidence of the Special Court for Sierra Leone and kept by the Principal Defender for the purposes of assigning counsel to Suspects or Accused. The President of the Special Court for Sierra Leone elected pursuant to Article 12 (3) of the Statute of the Special Court for Sierra Leone and exercising the functions set out in Part III, Section 2 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone. The head of the Defence Office of the Registry described in Rule 45 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone.

746 • Defense in International Criminal Proceedings

Provisional Assignment period:

Provisional Assignment Agreement:

The period after the assignment of Counsel to a Suspect or Accused in accordance with this Directive and before agreement to the Legal Services Contract between the Contracting Counsel for the Suspect or Accused and the Principal Defender.

The agreement between Assigned Counsel and the Principal Defender for the representation of a Suspect or Accused during provisional assignment.

Registrar:

The head of the Registry of the Special Court for Sierra Leone as set out in Article 16 of the Statute of the Special Court for Sierra Leone and exercising the functions set out in Part III, Section 5 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone.

Rules:

The Rules of Procedure and Evidence of the Special Court for Sierra Leone as approved by the Special Court for Sierra Leone at its first Plenary Session on 7 March 2003 and as subsequently amended.

Special Court:

The Special Court for Sierra Leone established by the Agreement between the United Nations and the Government of Sierra Leone on 16 January 2002 and the Special Court Agreement Ratification Act, 2002.

Statute:

The Statute of the Special Court for Sierra Leone as amended.

Suspect:

Any individual held under the authority of Rules 40 or 40 bis of the Rules of Procedure and Evidence of the Special Court for Sierra Leone.

(B) The masculine shall include the feminine and the singular the plural and vice-versa.

Article 2: Right to Counsel (A) Any person detained on the authority of the Special Court has the right to Counsel, in terms conclusively defined in Article 17 (4) (d) of the Statute. (B) All references in this Directive to Suspects or Accused shall also be understood to apply to any persons detained on the authority of the Special Court.

Article 3: Right to Counsel if indigent If a Suspect or Accused cannot engage Counsel by his own means and he wishes to be represented by Counsel, he shall be assigned a Counsel in accordance with this Directive, if the interest ofjustice so require.

Article 4: Indigence and partial indigence (A) A person shall be considered to be indigent if he does not have the means to engage Counsel of his choice to represent him at proceedings before the Special Court.

Mixed Tribunals • 747

(B) A person shall be considered to be partially indigent if he does not have sufficient means to engage Counsel of his choice to represent him at proceedings before the Special Court but has means to contribute to the payment of Counsel for such representation.

PART II: PROCEDURE FOR THE ASSIGNMENT OF COUNSEL Article 5: Request for assignment ofCounsel Subject to the provisions of Article 14 of this Directive, a Suspect or Accused who wishes to be assigned a Counsel shall make a request to the Defence Office by means of the appropriate form established by the Principal Defender in consultation with the Registrar. A request shall be lodged with the Defence Office, or transmitted to it, by the Suspect or Accused himself or by a person authorised by him to do so on his behalf.

Article 6: Applicant's financial situation (A) A Suspect or Accused who requests the assignment of Counsel, must fulfil the requirement of indigence or partial indigence, defined in Article 4 of this Directive, in order to have Counsel assigned to him. (B) In order to determine whether the Suspect or Accused is indigent or partially indigent, there shall be taken into account means of all kinds of which he has direct or indirect enjoyment or freely disposes, including any family or social benefits to which he may be entitled, and irrespective of where in the world such assets may be situated. In assessing such means, account shall also be taken of the means of the spouse of a Suspect or Accused, as well as those of persons with whom he habitually resides. (C) Account shall also be taken of the apparent lifestyle of a Suspect or Accused, and of his enjoyment of any property, movable or immovable, and whether or not he derives income from it.

Article 7: Declaration of means (A) For the purposes of Article 6 of this Directive, the Principal Defender shall invite a Suspect or Accused requesting the assignment of Counsel to make a declaration of his means on the appropriate form established by the Principal Defender in consultation with the Registrar. (B) Any information about a Suspect or Accused's financial situation shall be kept confidential by the Principal Defender and members of the Defence Office but the foregoing shall not prevent the Principal Defender or individuals acting under his authority from investigating the declaration of means or gathering information about the Suspect or Accused for the purposes of Article 9 of this Directive.

Article 8: Investigation For the purpose of establishing whether the Suspect or Accused satisfies the requisite conditions for assignment of Counsel, the Principal Defender may request the gathering of any information, hear the Suspect or Accused, consider any representation, or request the production of any documents, in whatever form, likely to support the request.

748 • Defense in International Criminal Proceedings Article 9: Decision by the Principal Defender (A) After examining the declaration of means laid down in Article 7 and relevant information obtained pursuant to Article 8 of this Directive, the Principal Defender shall determine if the Suspect or Accused is indigent, partially indigent or not, and shall decide: (i)

in the case of an indigent Suspect or Accused but without prejudice to Article 23 of this Directive, either provisionally to assign Counsel and, after consultation with the Suspect or Accused, choose for this purpose a name from the List of Qualified Counsel; or

(ii)

in the case of a partially indigent Accused or Suspect but without prejudice to Article 23 of this Directive, provisionally to assign Counsel upon the Accused or Suspect paying such amount at such times as the Principal Defender may demand from the Accused or Suspect in trust for the payment of Counsel and, after consultation with the Suspect or Accused, to choose for this purpose a name from the List of Qualified Counsel in which case the decision shall be accompanied by a written explanation giving reasons for the demand; or

(iii) not to grant the request for assignment of Counsel, in which case the decision shall be accompanied by a written explanation giving reasons therefore. (B) To ensure that the right to Counsel is not affected while the Principal Defender examines the declaration of means laid down in Article 7 and the information obtained pursuant to Article 8 of this Directive, the Principal Defender may assign Counsel provisionally in accordance with Article 16 for a period not exceeding 90 days.

Article 10: Assignment ofCounsel in the interests ofjustice Without prejudice to Article 23 of this Directive, the Principal Defender may assign Counsel to a Suspect or Accused in the interests ofjustice in accordance with Rule 45(C) of the Rules regardless of whether a Suspect or Accused has complied with Articles 5 to 9 of this Directive.

Article 11 : Notification ofthe decision (A) The Principal Defender shall notify the Suspect or Accused of his decision whether or not provisionally to assign Counselor to demand payment in accordance with Article 9 (A) (ii) of this Directive. (B) The Principal Defender shall also notify Counsel of his decision.

Article 12: Remedy against a decision not to assign Counsel (A) The Suspect or Accused whose request for assignment of counsel has been denied or who is subject to a demand under Article 9 (A) (ii) of this Directive may bring a Preliminary Motion before the appropriate Chamber objecting to the Principal Defender's decision in accordance with Rule 72(B) (iv) of the Rules. (B) The Suspect or Accused whose request for assignment of Counsel has been denied or who is subject to a demand under Article 9 (A) (ii) of this Directive shall be informed of his right to seek review of the decision of the Principal Defender and, should he seek such review, shall be assisted by Duty Counsel in pursuing such review.

Mixed Tribunals • 749

Article 13: Placement ofCounsel on the List of Qualified Counsel (A) Any person may be assigned as Counsel if his name appears on the list maintained by the Principal Defender in accordance with Rule 45 (C) and the Principal Defender has determined he is and remains available to deal with the case of a particular Accused or Suspect. (B) To be eligible to be included by the Principal Defender in the List of Qualified Counsel an individual must have the following qualifications: (i)

speak fluent English;

(ii)

be admitted to the practice of law in any State;

(iii) have at least 7 years of experience as Counsel; (iv) possess reasonable experience in criminal law, international law, international humanitarian law or international human rights law; (v)

have indicated their willingness and availability to be assigned by the Special Court to an Accused or Suspect; and

(vi) have no record of professional or other misconduct, which may include criminal convictions. (C) Before being considered by the Principal Defender for inclusion on the List of Qualified Counsel applicant Counsel shall file: (i)

A duly completed Application Form for Counsel wishing to be considered by the Registrar for assignment to indigent Suspects or Accused;

(ii)

Proof of current qualification to practice law in any State which shall include copies of a certificate of registration with a bar association, a certificate of admission to the practice of law, a certificate of current practice and good standing and the highest law degree obtained;

(iii) A detailed curriculum vitae showing qualification for the List of Qualified Counsel in accordance with (B) above and setting out, among other things, all degrees awarded and all criminal, human rights and international law experience; (iv) The names and addresses of two referees, including contact information for the referees; (v)

A photocopy of passport or other valid identification;

(vi) A letter setting out applicant Counsel's schedule for eighteen months from the date of application and an undertaking by the applicant that he will make himself available for trial whenever called upon by the court subject to, a) a severe illness of a temporary nature; b) attendance of obligations related to the death of close family member; (vii) Upon request, a copy of the code(s) of professional conduct from the jurisdiction(s) in which the applicant Counsel is admitted to practice; (D) The Principal Defender may verify Counsel's qualification for the List of Qualified Counsel by any means including, but not limited to,

750 • Defense in International Criminal Proceedings (i)

seeking original or certified copies of documents submitted;

(ii)

consulting referees provided by the applicant Counsel;

(iii) interviewing the applicant Counsel; or (iv) demanding such other information from the applicant Counselor other parties as the Principal Defender deems necessary to assess Counsel's qualification for the List of Qualified Counsel. (E) Where the Principal Defender refuses to place the name of an applicant Counsel on the List of Qualified Counsel, or removes the name of Counsel from the List of Qualified Counsel, the Principal Defender shall notify the applicant Counsel of his decision in writing and briefly set out his reasons for refusing to include the name of the applicant Counsel on the list, or for removing the name of Counsel from the list. (F) Where the Principal Defender refuses to place the name of the applicant Counsel on the List of Qualified Counsel, or removes the name of Counsel from the List of Qualified Counsel, the concerned Counsel may seek review, by the President, of the Principal Defender's refusal. An application for review shall be in writing and the Principal Defender shall be given the opportunity to respond to it in writing.

Article 14: Scope ofthe assignment (A) The scope of the assignment of Counsel shall be set out in the Provisional Assignment Agreement or in the Legal Services Contract. (B) Subject to the provisions of Article 3 of this Directive, each indigent or partially indigent Suspect or Accused shall be entitled to have Counsel assigned to him. (C) No Counsel shall be assigned to more than one Suspect or Accused unless the concerned Suspects or Accused have received independent legal advice and have waived their right to be represented by separate Counsel. Any application by Counsel to be assigned to more than one Suspect or Accused must be made, through the Principal Defender, to the Presiding Judge of the appropriate Chamber. (D) The Provisional Assignment Agreement or the Legal Services Contract may provide for the appointment, as part of the Defence Team, of other Counsel to assist the Assigned Counsel in appearances before the Special Court. (E) Under the authority of Assigned Counsel, who has primary responsibility for the Defence, other Counsel may deal with any appearance before the Special Court. The Assigned Counsel shall sign all the documents submitted to the Special Court unless he authorises other Counsel, in writing, to sign on his behalf.

Article 15: Applicable Law In the performance of their duties Counsel and other members of the Defence Team shall be subject to the relevant provisions of the Statute, of the Agreement, of the Rules, of any other rules, regulations or Codes of Conduct adopted by the Special Court, of the Host Country Agreement, of this Directive and of the codes of practice and ethics governing their profession.

Mixed Tribunals • 751

PART III: PAYMENT OF COUNSEL Article 16: Provisional Assignment Agreement and Legal Services Contract (A) No Assigned Counselor any other member of the Defence Team shall be paid for any service to a Suspect or Accused or expense incurred in the course of representing a Suspect or Accused except in accordance with a Provisional Assignment Agreement, referred to in (B) below, a Legal Services Contract and the Contract Specification, referred to in (C) below, or by the written authorisation of the Principal Defender in consultation with the Registrar. (B) Upon assignment, the Assigned Counsel and the Principal Defender shall agree upon the terms of payment for the period of the Counsel's provisional assignment and the length of that provisional assignment. Provisional assignment shall cease upon agreement of a Legal Services Contract. (C) The Assigned Counsel and the Principal Defender shall agree upon the terms of the Legal Services Contract as soon as practicable after assignment. If the Assigned Counsel and the Principal Defender cannot agree upon the terms of a Legal Services Contract within 90 days of provisional assignment of Counsel, the provisional assignment may be withdrawn by the Principal Defender and other Counsel shall be assigned to the Suspect or Accused. (D) The Legal Services Contract shall be in accordance with the Contract Specification and shall include agreement as to (i)

the members of the Defence Team;

(ii)

the amounts to be paid to specified members of the Defence Team for their work for the Accused or Suspect;

(iii) any consultation with experts necessary for the defence of the Suspect or Accused and the amount authorized for the retainer of such expert or experts by the Defence Team; (iv) any other categories of expenses, including travel costs or Daily Living/Subsistence Allowances (DLA/DSA), which the Principal Defender will pay the Assigned Counselor other members of the Defence Team; (v)

tasks which the Defence Team must complete in order to represent the Suspect or Accused and the dates by which such tasks must be completed;

(vi) the period during which the Legal Services Contract shall have effect; and (vii) when payments under the Legal Services Contract or for travel expenses and DLA/DSA shall be made. (E) The Legal Services Contract may include agreement as to any other aspect of the representation of an Accused or Suspect by the Assigned Counselor other members of the Defence Team. (F) The Principal Defender may require that the membership of the Defence Team include individuals with qualifications the Principal Defender deems necessary for the competent defence of a particular Suspect or Accused.

752 • Defense in International Criminal Proceedings

Article 17: Statement ofremuneration (A) Subject to the provisions of Article 23 of this Directive and the Contract Specification, payment according to a Provisional Assignment Agreement shall be made in accordance with the Agreement or the Decision on the Provisional Assignment of Counsel and as soon as practicable. Payment under the Legal Services Contract, including travel expenses and DLA/DSA, shall be made in accordance with the terms set out in this Directive, the Legal Services Contract and the Contract Specification. (B) When required by the Principal Defender, the Contract Specification or the Legal Services Contract, the Assigned Counsel and other members of the Defence Team shall provide as much information as possible, including the nature of the services rendered; and, as appropriate, the relation between these services and the case pending before the Special Court.

Article 18: Provisional payment When the engagement of Assigned Counsel outside his place of residence lasts more than one week, the Principal Defender may authorize an advanced payment of the Daily Living/Subsistence Allowance (DLA/DSA), set out in Article 20 of this Directive.

Article 19: Sharing ofpayment When, during a Provisional Assignment period, an Assigned Counsel is replaced in the same capacity by another Counsel, the remuneration shall be paid to each of them according to work completed by each to the satisfaction of the Principal Defender.

Article 20: Travel Expenses (A) Travel expenses shall be included within the expenses set out in the Legal Services Contract, but shall be separately itemised. (B) Air travel expenses shall be reimbursed for a member of the Defence Team who does not usually reside in city where the particular stage of the procedure is being conducted, on the basis of one economy or equivalent class round trip air ticket by the shortest route or within limits laid down by the Principal Defender in consultation with the Registrar. Such reimbursement will be made on presentation of a statement of travel expenses using the appropriate form established by the Principal Defender, accompanied by the original counterfoil of the ticket, as well as the original of the invoice and any receipt including receipt showing payment by credit card. (C) Travel expenses shall be reimbursed to a member of the Defence Team residing in the territory of the country but not in the town where he is serving, on the basis of either first class public transportation tickets or fixed rates as established by the United Nations Schedule of Rates of Reimbursement for Travel by Private Motor Vehicle applicable to different groups of Countries and Territories, per kilometre travelled on the outward and return journeys by the shortest route. Such reimbursement will be made on presentation of a statement of travel expenses using the appropriate form established by the Principal Defender in consultation with the Registrar and supporting receipts. (D) Notwithstanding paragraphs (A), (B) and (C), the Principal Defender shall assess, after consulting the Registrar and depending on the circumstances of the case, whether

Mixed Tribunals • 753

the Special Court, in the interests ofjustice and in order to ensure the full exercise of a Suspect or Accused's rights, is required to meet other travel expenses of a member of the Defence Team. (E) Members of the Defence Team who do not usually reside in city where the particular stage of the procedure is being conducted shall be paid a Daily Living/Subsistence Allowance (DLA/DSA) based on the United Nations Schedule of Daily Subsistence Allowance Rates or the Daily Living Allowance Rate for Sierra Leone in force at the time when work was done. The Daily Living/Subsistence Allowance (DLA/DSA) shall be paid for each day that a member of the Defence Team spends in the city where the particular stage of the procedure is being conducted in accordance with the Legal Services Contract, the Contract Specification or with the prior written approval of the Principal Defender. (F) Travel expenses, and Daily Living/Subsistence Allowance payable under this Article, shall only be reimbursed when authorisation for travel by member of the Defence Team has been sought by the Assigned Counsel and authorised by the Principal Defender.

Article 21 : Approval of remunerations and expenses All sums payable to members of the Defence Team under the provisions of the Legal Services Contract, this Directive or the Contract Specification shall be assessed by the Defence Office but paid by the Finance Section of the Registry.

Article 22: Settlement ofdisputes Any dispute between the Principal Defender and Assigned Counselor Contracting Counsel, arising out of the interpretation or application of the Provisional Assignment Agreement or Legal Service Contract, which is not settled by negotiation shall be submitted to arbitration by a single arbitrator agreed to by both parties. Should the parties be unable to agree on a single arbitrator within thirty days of the request for arbitration, then each party shall proceed to appoint one arbitrator and the two arbitrators thus appointed shall agree on a third. Failing such agreement, either party may request the appointment of the third arbitrator by the President of the Special Court. The decision rendered in the arbitration, including payment for the costs of the arbitration, shall constitute final adjudication of the dispute.

PART IV: WITHDRAWAL AND REPLACEMENT OF COUNSEL Article 23: Withdrawal of assignment when the Suspect or Accused is no longer indigent (A) Assignment of Counsel may be withdrawn by the Principal Defender if, after his decision, the Suspect or Accused comes into means which, if available at the time the request in Article 5 of this Directive was made, would have caused the Principal Defender not to grant the request. (B) Assignment of Counsel may be withdrawn if information obtained according to Article 8 of this Directive establishes that the Suspect or Accused has sufficient means to allow him to pay for the cost of his defence. (C) Where the Principal Defender receives information that establishes that an Accused or Suspect has become partially indigent he may demand that individual pay such amount as he deems necessary to the Registrar in trust for the payment of Counsel.

754 • Defense in International Criminal Proceedings (D) The decision to withdraw the assignment, or demand payment in the case of a partially indigent Suspect or Accused, shall be accompanied by a written explanation giving reasons for such decision and the Suspect or Accused and the Assigned Counsel shall be so notified. Such withdrawal or demand shall take effect from the date of receipt of the notification. (E) After the notification of the withdrawal of the assignment of Counsel, all the costs and expenses incurred by the representation of the Suspect or Accused shall cease to be met by the Special Court. (F) Where a Suspect or Accused who has become partially indigent fails to comply with the demand made pursuant to (C) above the assignment of Counsel may be withdrawn until such time as the Suspect or Accused complies with the demand. (G) The provisions of Article 12 of this Directive shall apply to decisions made under this Article, as to withdrawing the assignment of Counselor, in the case of a partially indigent Suspect or Accused, demanding payment to the Registrar.

Article 24: Withdrawal ofassignment in other situations (A) The Principal Defender may: (i)

in exceptional circumstances, at the request of the Suspect or Accused, or his Assigned Counsel, withdraw the assignment of Counsel;

(ii)

in exceptional circumstances, at the request of the Assigned Counsel withdraw the nomination of other Counsel in the Defence Team;

(B) The Principal Defender shall withdraw the assignment of Counselor nomination of other Counsel in the Defence Team: (i)

in the case of a serious violation of the Code of Conduct;

(ii)

upon the decision by a Chamber to refuse audience to Counsel for misconduct under Rule 46 of the Rules;

(iii) where the name of the Assigned Counsel has been removed from the list kept by the Principal Defender under Rule 45 (C) and Article 13 of this Directive. (C) The Accused, the Counsel concerned and his respective professional or governing body shall be notified of the withdrawal. (D) The Principal Defender shall immediately assign a new Counsel to the Suspect or Accused, and where appropriate, authorise the nomination of other Counsel in the Defence Team. The Legal Service Contract resulting from the assignment of a new Counsel shall be limited to funds remaining in the allocation made by the Principal Defender for the defence of the Suspect or Accused. (E) Where a request for withdrawal, made pursuant to paragraph (A), has been denied, the person making the request may seek review of the decision of the Principal Defender by the presiding Judge of the appropriate Chamber. (F) Where the assignment of Counselor nomination of other Counsel in the Defence Team is withdrawn by the Principal Defender, pursuant to paragraph (B) (i) and (iii), Counsel affected by withdrawal may seek review of the decision of the Principal Defender by the presiding Judge of the appropriate Chamber.

Mixed Tribunals • 755

Article 25: Replacement (A) Where the assignment of Counsel is withdrawn by the Principal Defender or where the services of Assigned Counsel are discontinued, Duty Counsel of the Defence Office, including the Principal Defender, shall give the Suspect or Accused legal assistance until a new Counsel is assigned unless the Suspect or Accused waives the right to such assistance in which case he shall represent himself until a new Counsel is assigned. (B) Where the assignment of Counsel is withdrawn by the Principal Defender, or where the services of Assigned Counsel are discontinued, said Counsel must deliver within 15 days of withdrawal all the original documents in the file to the Counsel who succeeds him or to the Defence Office who will then forward the materials to new Assigned Counselor, where the Suspect or Accused has chosen to represent himself, to the Suspect or Accused. (C) In the case of the withdrawal of the nomination of other Counsel in the Defence Team, such delivery of documents shall be made to the Assigned Counsel within 7 days. (D) Failure by Counsel to comply with the requirement of this article may result in withholding of payment, notification to the professional body regulating the conduct of Counsel in the State in which he is qualified to practice law or such other action as the Principal Defender may deem appropriate. (E) If Assigned Counsel is temporarily not available for any appearance on behalf of his client before the Special Court, other Counsel in the Defence Team shall assume responsibility for the appearance and carriage of the client's case for such time as Assigned Counsel is unavailable. In exceptional circumstances, if other Counsel in the Defence Team is also unavailable for the appearance, Duty Counsel may appear to advise the Suspect or Accused upon receiving instructions from the Assigned Counsel.

PART V: FACILITIES Article 26: Provision of Facilities (A) Assigned Counsel and members of the Defence Team who do not have professional facilities close to the seat of the Special Court shall be provided with reasonable facilities and equipment such as access to photocopiers, computer equipment, various types of office equipment, and telephone lines. (B) At the seat of the Special Court, Assigned Counsel and members of the Defence Team may use the libraries and the documentation centre available at the Special Court. (C) Assigned Counsel shall be entitled to request the assistance of the Defence Office for the any motion or other matter, and the Defence Office, if it can provide such assistance, must ensure that it does so without creating any conflict of interest. between the Suspect or Accused and Defence Office personnel. (D) Assigned Counsel shall make all reasonable efforts to use the personnel and facilities of the Defence Office in the preparation of a Suspect or Accused's case. (E) The Principal Defender may refuse to approve a claim for remuneration or portion thereof where Assigned Counsel fails to make such reasonable efforts to use the personnel and facilities of the Defence Office in the preparation referred to in (C).

756 • Defense in International Criminal Proceedings

Article 27: Amendment ofthe Directive (A) This Directive may be amended by the Registrar in consultation with the President of the Special Court. The Registrar may consult any other body or individual in the course of considering amendments to this Directive. (B) An amendment shall enter into force upon adoption, but without prejudice to the rights of the Accused in any pending case.

Article 28: Entry into Force This Directive shall enter into force on 3 October 2003.

8.3.2.4. 8.3.2.4.1.

Other Documents Constitution ofSierra Leone (Excerpts) THE CONSTITUTION OF SIERRA LEONE, 1991 (Act No. 6 of 1991) CHAPTER III-THE RECOGNITION AND PROTECTION OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS OF THE INDIVIDUAL

[ ... ]

15. Whereas every person in Sierra Leone is entitled to the fundamental human rights and freedoms of the individual, that is to say, has the right, whatever his race, tribe, place of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the followinga.

life, liberty, security of person, the enjoyment of property, and the protection of law;

b.

freedom of conscience, of expression and of assembly and association;

c.

respect for private and family life, and

d.

protection from deprivation of property without compensation;

the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others, or the public interest. Protection from arbitrary arrest or detention. [ ... ]

17. (1) No person shall be deprived of his personal liberty except as may be authorised by law in any of the following cases, that is to saya.

in consequence of his unfitness to plead to a criminal charge; or

b.

in the execution of a sentence or order of a Court whether in Sierra Leone or elsewhere in respect of a criminal offence of which he has been convicted; or

Mixed Tribunals • 757 c.

in the execution of an order of the High Court or the Court of Appeal or the Supreme Court or such other court as may be prescribed by Parliament on the grounds of his contempt of any such court or of another court or tribunal or commission of inquiry as the case may be; or

d.

in the execution of an order of a court made in order to secure the fulfilment of any obligation imposed on him by law; or

e.

for the purpose of bringing him before a court or tribunal, as the case may be, in execution of the order of a court; or

f.

upon reasonable suspicion of his having committed or of being about to commit a criminal offence; or

g.

in the case of a person who has not attained the age of twenty-one years, for the purpose of his education or welfare; or

h.

for the purpose of preventing the spread of an infectious or contagious disease; or

1.

in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the community; or

j.

for the purpose of preventing the unlawful entry of that person into Sierra Leone, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Sierra Leone or the taking of proceedings thereto.

(2) Any person whoa.

is arrested or detained shall be informed in writing or in a language that he understands at the time of his arrest, and in any event not later than twentyfour hours, of the facts and grounds for his arrest or detention;

b.

is arrested or detained shall be informed immediately at the time of his arrest of his right of access to a legal practitioner or any person of his choice, and shall be permitted at his own expense to instruct without delay a legal practitioner of his own choice and to communicate with him confidentially.

(3) Any person who is arrested or detained in such a case as is mentioned in paragraph (e) or (f) of subsection (1) and who is not released shall be brought before a court of lawa.

within ten days from the date of arrest in cases of capital offences, offences carrying life imprisonment and economic and environmental offences; and

b.

within seventy-two hours of his arrest in case of other offences; and if any person arrested or detained in such a case as is mentioned in the said paragraph (f) is not tried within the periods specified in paragraph (a) or (b) of this section, as the case may be, then without prejudice to any further proceedings which may be brought against him he shall be released either unconditionally or upon reasonable conditions, including in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or proceedings preliminary to trial.

758 • Defense in International Criminal Proceedings

(4) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person. [ ... ]

Protection from inhuman treatment.

20. (1) No person shall be subject to any form of torture or any punishment or other treatment which is inhuman or degrading. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorises the infliction of any kind of punishment which was lawful immediately before the entry into force of this Constitution. Protection for privacy of home and other property.

22. (1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises, or interference with his correspondence, telephone conversations and telegraphic and electronic communications. (2) Nothing contained in or done under authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that is reasonably requireda.

in the interest of defence, public safety, public order, public morality, public health, town and country planning, or the development or utilization of any property in such a manners as to promote the public benefit; or

b.

to enable any body corporate established directly by any law or any department of the Government or any local authority to enter on the premises of any person in order to carry out work in connection with any property or installation which is lawfully on such premises and which belongs to that body corporate or to the Government or to that authority, as the case may be; or

c.

for the purpose of protecting the rights and freedoms of other persons; or

d.

for the purpose of executing any judgement or order of a court; or

e.

for the purpose of affording such special care and assistance as are necessary for the health, safety, development and well-being of women, children and young persons, the aged and the handicapped; and except in so far as that provision or, as the case may be, the thing done under authority thereof is shown not to be reasonably justifiable in a democratic society.

Provision to secure protection of law.

23. (1) Whenever any person is charted with a criminal offence he shall unless the charge is withdrawn, be afforded a fair heating within a reasonable time by an independent and impartial court established by law. (2) Any court or other authority prescribed by law for the determination of the existence or extent of civil rights or obligations shall be independent and impartial; and where proceedings for such determination are instituted by or against any person or authority or the Government before such court or authority, the case shall be given fair hearing within a reasonable time.

Mixed Tribunals • 759

(3) All proceedings of every court and proceedings relating to the determination of the existence or the extent of civil rights or obligations before any court or other authority, including the announcement of the decision of the court or other authority, shall be held in public: Provided that the court or other authority may, to such an extent as it may consider necessary or expedient in circumstances where publicity would prejudice the interest ofjustice or interlocutory civil proceedings or to such extent as it may be empowered or required by law so to do in the interest of defence, public safety, public order, public morality, the welfare of persons under the age of twenty-one years or the protection of the private lives of persons concerned in the proceedings, exclude from its proceedings, persons other than the parties thereto and their legal representatives. (4) Every person who is charted with a criminal offence shall be presumed to be innocent until he is proved, or has pleaded guilty:Provided that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this subsection, to the extent that the law in question imposes on any person charged as aforesaid the burden of proving particular facts. (5) Every person who is charged with a criminal offencea.

shall be informed at the time he is charged in the language which he understands and in detail, of the nature of the offence charged;

b.

shall be given adequate time and facilities for the preparation of his defence;

c.

shall be permitted to defend himself in person or by a legal practitioner of his own choice;

d.

shall be afforded facilities to examine in person or by his legal practitioner the witnesses called by the prosecution before any court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution; and

e.

shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge: Provided that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this subsection to the extent that the law in question prohibits legal representation in a Local Court.

(6) When a person is tried for any criminal offence, the accused person or any person authorised by him in that behalf shall if he so requires, and subject to the payment of such reasonable fee as may be prescribed by law, be given within a reasonable time, and in any event not more than three months after trial, a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court. (7) No person shall be held to be guilty of a criminal offence on account of any act or omission which did not, at the time it took place, constitute such an offence.

(8) No penalty shall be imposed for any criminal offence which is severer in degree or description than the maximum penalty which might have been imposed for that offence at the time when it was committed.

760 • Defense in International Criminal Proceedings (9) No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence save upon the order of a superior court made in the court of appeal proceedings relating to the conviction or acquittal; and no person shall be tried for a criminal offence if he shows that he has been pardoned for that offence: Provided that nothing in any law shall be held to be inconsistent with or in contravention of this subsection by reason only that it authorises any court to try a member of a defence force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under service law; but any court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punishment awarded him under service law. (10) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of any provisions of this section, other than subsections (7) and (8), to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists before or during that period of public emergency. (11) In paragraphs (c) and (d) of subsection (5), the expression "legal practitioner" means a person entitled to practise as a Barrister and Solicitor of the High Court.

8.3.2.4.2.

Headquarters Agreement Between the Republic ofSierra Leone and the Special Court ofSierra Leone (excerpts) Part 6-Privileges and Immunities

[ ... ]

Article 18 Counsel 1. The Counsel of a suspect or an accused shall enjoy the privileges and immunities set forth in Article 14 of the Agreement establishing the Special Court. 2. Those privileges and immunities shall be without prejudice to such disciplinary rules as may be applicable to the counsel. 3. The privileges and immunities are granted to counsel in the interest of the Special Court and not for their personal benefit. The right and the duty to waive the immunit referred to in Article 14 of the Agreement establishing the Special Court in any particular case where it can be waived without prejudice to the purpose for which it is granted, shall lie with the President.

8.3.2.4.3.

Practice Direction on the Procedure Following a Request by a State, the Truth and Reconciliation Commission or Other Legitimate Authority toTake a Statement From a Person in the Custody ofthe Special Court for Sierra Leone

The Registrar of the Special Court for Sierra Leone, NOTING that a State, the Truth and Reconciliation Commission ("TRC"), or other legitimate authority may on occasion request the assistance of the Court to take evidence

Mixed Tribunals • 761

for the purposes of their proceedings from a person who is in the custody of the Special Court or who is in the custody of another authority based on an order or request of the Special Court; HEREBY issues this Practice Direction in consultation with the President of the Special Court pursuant to Rule 33(D) of the Rules of Procedure and Evidence of the Special Court, setting out the procedure governing such requests: 1. A request by a State, the TRC, or other legitimate authority for assistance to question or take evidence from a person who is in the custody of the Special Court or who is in the custody of another authority based on an order or request of the Special Court ("detainee") shall be transmitted to the Registrar. In addition, all correspondence between the detainee and a State, the TRC, or other legitimate authority shall be copied to the detainee's counsel. 2.

Requests shall be in writing and shall contain: a.

details of the authority ("requesting authority") making the request;

b.

the name of the detainee to whom the request relates;

c.

details of the purpose of the request and a summary of the reasons for the request;

d.

a description of any offences or suspected offences charged or likely to be charged or under investigation by the requesting authority;

e.

any relevant dates, such as the date of the trial at which the evidence is required, or any cause for special urgency (as appropriate);

f.

details of any caution which should be given to the detainee under the law of the requesting authority;

g.

a list either of specific questions or of subject areas about which questions are to be asked; and

h.

a description of any persons from the requesting authority seeking to be present at the questioning and a description of the facilities which will be required for recording and transcribing the questioning.

3. The Registrar shall notify the President of any request. The request shall be forwarded to the PresidingJudge as appropriate, and to the Prosecutor and the Defence Office. 4. The Registrar shall inform the detainee and the detainee's counsel of the request. The Registrar shall ensure that the detainee has ample opportunity to take legal advice before deciding whether or not to agree to the questioning and is made aware: a.

that the detainee is not obliged to agree to the questioning or, if he does, that he is not bound to answer any particular question;

b.

that the questioning will be transcribed and the transcript filed with the Court Management Section;

c.

that a copy of the record may be made available, upon order by the Presiding Judge, to a party or defence counsel for potential use in proceedings before the Special Court unless the questioning is covered, in whole or in part, by a confidentiality order, statute, or protocol, in which case a party or defence coun-

762 • Defense in International Criminal Proceedings sel may apply to the appropriate chamber for an order that the record of the questioning shall be disclosed in the interests ofjustice (which may include the interests ofjustice with respect to other suspects or accused before the Special Court); and d.

that no decision,judgement, conclusion, or comment by the requesting authority will be allowed to influence the Special Court in determining the detainee's guilt or innocence.

5. In the event that the detainee agrees to the questioning (such agreement having been signed in writing by the detainee and confirmed by the detainee's counsel), the Registrar shall inform the parties and place the request before the PresidingJudge. The PresidingJudge shall instruct the parties and the detainee's counsel on the procedures to be followed on making representations concerning the request. After such representations are made the PresidingJudge shall grant approval (conditional or otherwise) if the said judge is satisfied that the detainee agrees to the questioning and has been fully advised in terms of paragraph 4 above. In such circumstances, the request for questioning will only be rejected if the PresidingJudge is satisfied that a refusal is necessary in the interests ofjustice or to maintain the integrity of the proceedings of the Special Court. An appeal against rejection shall be decided by the President if it is made expeditiously and jointly by the detainee and the requesting authority. 6. Once the PresidingJudge has approved the request, the Registrar shall make appropriate arrangements for the questioning to proceed on a date convenient for the detainee's counsel to be present. The Registrar shall ensure that the detainee has the services of an interpreter if requested.

7. The questioning shall be supervised by a legal officer nominated by and acting on behalf of the Registrar. This officer shall have the authority to stop the questioning if it goes significantly beyond the scope of the questions notified pursuant to paragraph 2 (g) above and/or if any conditions imposed by the Presiding Judge (e.g., as to identification of protected witnesses) are not observed. 8.3.2.4.4.

First Annual Report ofthe Special Court for Sierra Leone for the Period December 2, 2002, to December 1,2003 (Excerpts)

[ ... ]

A Defence Office, endowed with sufficient in house resources, has been established. Defence teams made up of highly experienced international and national counsel have been provided to indigent defendants. On 5 March 2004, a distinguished counsel was appointed as Special Court Principal Defender. The creation of a Defence Office, headed by a Principal Defender is an innovation in the structure of international courts and tribunals. This innovation is intended to ensure the rights of suspects and accused persons, provide a counterbalance to the Prosecution, and obviate problems of "feesplitting" and inadequate defence [ ... ]

THE DEFENCE OFFICE The Special Court's creation of a "fourth pillar," in the form of a Defence Office, is an innovation in the structure of international courts. It ensures the rights of suspects and accused persons, providing a counterbalance to the Prosecution. The Office has imple-

Mixed Tribunals • 763

mented measures to attract only experienced, competent and honest counsel, so as to comply with the human rights principle that adversarial trials should manifest an "equality of arms" (i.e. reasonable equivalence in ability and resources of Prosecution and Defence). While other international tribunals have administrative bodies to deal with the Defence, none have a permanent institution within the Court entrusted with "ensuring the rights of suspects and accused," as is set out in Rule 45 of the Special Court's Rules of Evidence and Procedure. The Defence Office became effectively functional in February 2003, when its first attorneys took office. Thereafter, additional Legal Officers/Duty Counsel and Defence Advisors were installed. In March 2004, the Special Court Principal Defender was appointed. Whilst the Principal Defender and her Defence Office technically fall within the Registry, the Principal Defender acts independently from other organs in the interests of justice. It is the Registrar's intention that the Office will, in the future, become as fully independent as the OTP. In March 2003, when five Accused were transferred into the custody of the Court, the Office, through its Duty Counsel, offered initial legal advice and legal representation to them. These tasks were subsequently undertaken with all five additional Accused indicted before the Special Court. Given his state of health, the Office also continued to represent Foday Sankoh up to the withdrawal of the indictment against him, following his death in July 2003. A list of highly qualified, experienced counsel willing to be assigned to indigent suspects and accused persons was prepared and continues to be updated. By the end of December 2003, the list included the names of more than 70 lawyers from over 15 different nationalities. The list also includes the names of more than a dozen Sierra Leonean lawyers with experience in criminal law. Within a few weeks of their initial appearance, all of the Accused were provisionally appointed with counsel selected from that list. A Directive on the Assignment of Counsel was adopted on 2 October 2003, and a Legal Service Contract system was immediately put in place to regulate the payments of legal and other related expenses involved with the defence of the Accused. By the end of December 2003, five counsel had been assigned, under the terms of a Legal Service Contract, to lead Defence teams of legal professionals, each including a Sierra Leonean lawyer, providing legal representation to the Accused until the conclusion of their trials. Discussions were still ongoing with the remaining four provisionally assigned counsel as to the signing of their contracts. By December 2003, all of the nine currently detained Accused had claimed indigent status. As the Office decided to provide them with Assigned Counsel, paid by the Special Court, a methodology was developed for the conduct of investigations into the means of the accused, thus enabling a final determination to be made as to the indigent status or otherwise of each of the Accused. After the assignment of counsel to the Accused, members of the Defence Office engage in oversight of defence teams. The Office monitors trials and provides advice and substantive assistance to all teams in the preparation of their cases, from research on legal

764 • Defense in International Criminal Proceedings

issues, to arguments on matters of common interest, to vetting the provision of expert witnesses, consultants and investigators, and liaising with various governments and other entities on matters ofjudicial cooperation. Pursuant to Rule 45 of the Rules of Evidence and Procedure, attorneys in the Defence Office may also appear in Court as counsel. Throughout its existence, the Defence Office has interacted with different units, within the Registry, OTP or Chambers, on issues affecting the rights and detention conditions of the Accused, and on matters affecting fair trial for the Accused, including through the development of the Code of Conduct for Counsel and consultations on other Practice Directives to be adopted. The Office has also represented the interests of the Defence in plenary sessions organised by the Judges of the Special Court. The Office additionally liaised with diplomatic communities and NGOs, keeping them abreast of developments. The Office has also engaged in outreach activities in cooperation with the Outreach Section and meetings have been held around the country to discuss the Special Court, listen to the Sierra Leonean people, and, to the extent possible, answer their questions. The Office has an important role in educating the community about the Defence, the presumption of innocence, the burdens and standards of proof, and the rights of the accused.

8.3.3.

Case Law and Practice

Decision on the Application of Samuel Hinga Norman for Self-Representation Under Article 17(4)(0) of the Statute of the Special Court, Case No. SCSL-04-14-T, June 8, 2004 (Excerpts) Following the prosecution opening of the case against the CDF on 3 June 2004 the first defendant, Chief Sam Hinga Norman, wrote to the Principle Defender stating that he intended to represent himself. The Court considered the rights in Article 17 of the Statue and Article 16bis of the Rules of Procedure, and then went on: [ ... ]

8. Clearly, as a matter of statutory construction, Article 17 (4) (d) does guarantee to an accused person, first and foremost, the right to self-representation. This is clear from the plain and literal meaning of that provision. But the critical question to focus on is whether this guaranteed right of self-representation is absolute having regard to the statutory purport and intendment of Article 17 (4) (d). In the judgment of this Trial Chamber, the answer is that the said right is not absolute but rather, a qualified right. This interpretation of the statutory provision is amply corroborated by the qualifying clause of Article 17 (4) (d), which provides as follows: "and to have legal assistance assigned to him or her, in any case where the interests ofjustice so require." 9. In the light of these provisions, it is clear and The Chamber so holds, that the right to self representation by an accused person is a qualified and not an absolute right and particularly so because Article 17 (4) (d) provides that legal assistance could be assigned to him or her in "any case where the interests ofjustice so require." 10. The interests of justice, we observe, is a multi faceted legal concept which is all encompassing and a vital component of the principle of the Rule of law. In this case for

Mixed Tribunals • 765

instance, where the 1st Accused, Hinga Norman, has been in detention since the month of March 2003, the interests ofjustice require, as is provided for in Article 17(4) (c) of the Statute, that he be tried "without undue delay." 11. This, as provided for under Rule 26 bis of the Rules of Procedure and Evidence, connotes the necessity and the obligation imposed on the Chamber to ensure that a trial is fair and expeditious and that even though this right is conditioned on a "full respect of the rights of the accused," we consider and so hold, that these rights would not include an absolute right of self-representation. 12. The question to put here is whether the attendant consequences that would flow from our granting the request in Exhibit 1 would, in the overall interests ofjustice, be consistent with the statutory guarantees to a fair and expeditious trial to be reserved by the Court to the accused particularly where, as in this case, his detention has been as long as over one year. In answering this question, a number of issues need to be addressed.

A JOINT TRIAL 13. The 1st Accused is jointly indicted with 2 others who our records show, neither understand nor speak the English language. For this reason, they require a permanent translator from English to Mende and vice versa of course, for the Chamber. Each of these 2 accused persons has a legal team to represent them. If the application in Exhibit 1 were granted, this would have the potential to negatively impact on the fairness and expeditiousness of the trial of these co-accused persons given the complexities and intricacies of the judicial process and considering the gravity of the alleged crimes. 14. We are of the opinion and do state here that the 1st Accused cannot, and indeed, should not be allowed to exercise this qualified right to self-representation, to the detriment of the rights of his two co-accused to a fair and expeditious trial. 15. Besides, even if he were credited with the capability of conducting his defence, it would require long adjournments to enable him to make any meaning out of the numerous and intricate documents, some of them redacted, arising from disclosures and elsewhere, which have hitherto been handled in a professional manner by Counsel, whose services he has, through Exhibit 1, terminated. 16. In the same vein, we find that any new Counsel for the 1st Accused, whoever he may be, will likely suffer from the same handicap and would of course and of necessity, seek adjournments for preparation; a sure and certain contingency that would unavoidably occasion a delay of the proceedings which we as a Chamber, have a duty to prevent because of the limited time span of this Court.

REVIEW OF THE RELEVANT JURISPRUDENCE 17. In deliberating on this issue, the Chamber has addressed this same issue that was at stake in the case of the Prosecutor v. Slobodan Milosevic,254 in the International Criminal Tribunal for former Yugoslavia (IClY). In this case, Milosevic asserted the right to self representation form the outset. Samuel Hinga Norman, the 1st Accused, on the contrary, is 254 Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003.

766 • Defense in International Criminal Proceedings asserting this same right as lately as on the first day of his trial after over a year in pre-trial detention during which time he has been defended by a legal team composed of Learned Lead Counsel, Mr. Jenkins Johnston, and subsequently, Mr. Sulaiman Tejan-Sie, who, at his request, has represented him from the 17th of March 2003, in Bonthe Island up to the 3rd ofJune, 2004 when Exhibit 1 surfaced in the proceedings. 18. In fact, the Trial Chamber of the IClY stated that it was satisfied that Milosevic, who had clearly and unequivocally informed the Chamber from the outset that he did not want to be represented by Defence Counsel, was competent to exercise the right to defend himself in person even though The Chamber held that the right is not absolute. 19. The key distinctions, between these two cases for our purposes, are that whilst Milosevic is being tried alone, Hinga Norman is being tried with 2 co-accused persons. In addition to this, whilst Milosevic indicated his option for self-representation from the outset as soon as he was transferred to the custody of ICll:: Hinga Norman did this only on the 3rd ofJune, 2004, the very date which had, with his approbation, been fixed for the commencement of his trial, to invoke and exercise this same statutory right. 20. The task therefore, of properly assuming the mantle of conducting his defence could turn out to be difficult, onerous and exacting if not impossible and would necessarily result in unnecessarily prolonging the proceedings. In the Milosevic case, the Chamber, in addition to holding that the right to self-representation is not absolute, also held that there may be circumstances where it is in the interests ofjustice, as is, in our opinion the case here, to appoint Counsel. The Court then proceeded to appoint 3 amici curiae to cater for Milosevic's interests and his procedural links with the Tribunal. 21. In the case of the Prosecutor v. Vojislav Seselj,255 the Accused, a Professor of Law at the University of Belgrade, surrendered himself to the IClY When legal assistance was offered him, he turned it down and stated from the outset that he would defend himself. The Prosecution filed a Motion requesting an Order from the Trial Chamber that Defence Counsel be assigned to him. The Chamber dismissed the Motion, recognized the accused's right to self-representation, but at the same time, decided to appoint a "stand-by counsel" to cater for his eventual legal needs and to coordinate these needs with the institutional obligation of the Court to ensure that the overall interests ofjustice prevail, thereby confirming once again, the thesis that the statutory right of self representation is not absolute. 22. In that context, it is useful to consider the established procedure adopted in the United States of appointing stand-by counsel, by the Court. The Supreme Court in this regard, approved the appointment of Stand-by Counsel and discussed the role of such Counsel in its Decision in McKaskle v. Wiggins 256 where the accused was permitted to proceed pro se, but the trial court appointed a stand-by counsel to assist him. The Supreme Court had this to say: "Accordingly, we make explicit today what is already explicit in Feretta: A defendant's Sixth Amendment rights [to self-representation] are not violated when a trial judge appoints a stand-by counsel-even over the defendant's objectionto relieve the judge the need to explain and enforce basic rules of courtroom 255 Prosecutor v. Vojislav Seselj, Case No. IT-03-67-PT, Decision on Prosecution's Motion for Order Appointing Counsel to Assist Vojislav Seselj with his Defence, 9 May 2003. 256 McKaskle v. Wiggins, 465 US 168 (1984).

Mixed Tribunals • 767

protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals. Participation by counsel to steer a defendant through the basic procedures of trial is permissible even in the unlikely event that it somewhat undermines the pro se defendant's appearance of control over his own defence."

THE INSTITUTIONAL ROLE OF DEFENCE COUNSEL IN THE JUDICIAL PROCESS 23. The role of the Defence Counsel, it has been stated, is institutional and is meant to serve, not only the interests of his client, but also those of the Court and the overall interests of justice. This is why we are strongly of the opinion that the action by the Accused to relieve his Counsel of their judicial duty of defending him and on the date of his trial and certainly on the grounds of a right which he enjoys under Statute, should be viewed or endorsed with a lot of caution. 24. In the case of the Prosecutor v. Barayagwiza,257 the Trial Chamber of the ICTR held that Counsel is assigned not appointed and in the view of the Chamber, this does not only entail obligations towards the client but also implies that he represents the interests of the Tribunal to ensure that the Accused receives a fair trial. 25. In arriving at this conclusion, we are guided by the opinion of Hon. Judge Reinhardt's in the case of Farhad v. United States,258 where The LearnedJudge said that the permitting of self representation regardless of the consequences, threatens to divert criminal trials from their clearly defined purpose of providing a fair and reliable determination of guilt or innocence. He observed that a defendant could not waive his right to a fair trial and that this right implicates not only the interests of the accused but also the institutional interests of the judicial system.

FACTORS TO BE CONSIDERED IN THE DETERMINATION OF THIS ISSUE 26. The philosophy of the Chamber on this crucial issue compels us to factor into the equation, certain critical issues namely: (i) that the right of counsel which is statutorily guaranteed by Article 17 (4) (d) of our Statute is predicated upon the notion that representation by Counsel is an essential and necessary component of a fair trial. (ii) The right to counsel relieves trial Judges of the burden to explain and enforce basic rules of courtroom protocol and to assist the accused in overcoming routine and regular legal obstacles which the accused may encounter if he represents himself, for, the Court, to our mind, is supposed, in the adversarial context, to remain the arbiter and not a proactive participant in the proceedings. (iii) Given the complexity of the trial in the present case, it cannot be denied that a joint trial of such magnitude, having regard to the gravity of the offences charged, and considering the number of witnesses to be called by the Prosecution and the Defence, make for a trial fraught with a high potential of complexities and intricacies typical of evolving international criminal law. (iv) There is also the public interest, national and international, in the expeditious completion of the trial. (v) Furthermore, there is the high potential for further disruption to the Court's timetable and calendar which we are already witnessing in this case. In fact, 2 Prosecution witnesses who the Chamber insisted should testify on the 3rd ofJune, after the opening statements and ceremonies, were taken back without achieving this objective. Given the 257 Prosecutor v. Barayagwiza, Case No. ICTR-97-19-T, Decision on Defence Counsel Motion to Withdraw, 2 November 2000. 258 Farhad v. United States, Case No. 19 F.3d 1097 (9th Cir. 1999)

768 • Defense in International Criminal Proceedings

time limited mandate of the Court, this creates a serious cause for concern. (vi) The tension between giving effect to the 1st Accused's right to self representation and that of his co-accused, to a fair and expeditious trial as required by law. 27. When all these factors are taken into consideration and weighed individually and cumulatively for purposes of determining the present application, the Chamber is of the opinion, and without in any way seeking to contest the existence of the said right of selfrepresentation which to us is qualified and not absolute, that this is certainly not a proper case where the accused person's request to exercise this right to self-representation should be granted without qualifications or preconditions. We take this stand because we foresee that granting the request in Exhibit 1 unconditionally could lead to certain procedural difficulties in the conduct of his trial which could occasion an injustice. 28. In this regard, we would like to affirm here that The Trial Chamber cannot allow the integrity of its proceedings to be tarnished or to be conducted in a manner that is not in conformity with the aspirations, of the norms of the judicial process. As a matter of law, it is our duty as a Chamber at all times, to protect the integrity of the proceedings before us and to ensure that the administration ofjustice is not brought into disrepute. This we can achieve by ensuring, amongst other measures, that persons who are accused and indicted for serious offences such as these, are properly represented by Counsel because this safeguard is very vital in ensuring that the overall interests ofjustice are served and of the Rule of Law, upheld. 29. On this institutional judicial policy consideration, The European Court of Human Rights, in the case of Croissant v. Germany,259 whose judgment was rendered on the 25th of September, 1992, had this to say: "It is for the Courts to decide whether the interests ofjustice require that the accused be defended by Counsel appointed by them. When appointing Counsel, the national courts must certainly have regard to the defendants wishes-However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interest ofjustice" 30. We hold that the 1st Accused has a right to self-representation, but that such a right, being qualified and not absolute, could, in the light of certain circumstances, be derogated should the interests ofjustice so dictate. 31. To this end, and having regard to all the preceding factors articulated for the purposes of determining this application, We rule and Order as follows: 32. THAT the right to self-representation solicited in this case by the 1st Accused, Samuel Hinga Norman, can only be exercised with the assistance of Counsel to be assigned to the trial and in whatever capacity they are assigned or designated, stand-by or otherwise, without prejudice to the Registrar's discretion to designate, if the 1st Accused so expresses this desire, Members of his former Defence Team, and this, in accordance with the provisions of Article 17 (4) (d) of the Statute of the Special Court The Rules of Procedure and Evidence, and of the provisions of the Directive for the Assignment of Counsel promulgated by the Registrar of the Special Court on the 3rd of October, 2003. [ ... ]

259 Croissant v. Germany, European Court of Human Rights, Case No. 62/1001/314/385, Judgment, 25 September 1992.

Mixed Tribunals • 769

Decision on Request by Samuel Hinga Norman for Additional Resources to Prepare his Defense, SCSL·2004·14·T (7567-7571), June 23, 2004 (excerpts)

I. THE SUBMISSION OF THE PARTIES Norman's Submissions

1. On the 18th ofJune, 2004, Norman made a request to the Trial Chamber, pursuant to Article 17 of the Statute and Rule 54 of the Rules, for provision of "adequate and effective resources" to assist in the defence of his case. The requested resources include the following: a.

a complete computer set;

b.

a personal telephone to communicate with his Standby Counsel "at any time of the day or night, both locally and internationally";

c.

a regular supply of stationery;

d.

an assistant;

e.

an investigator;

f.

modification of the conditions of his detention, that concern existing "lock-up" hours from 10.00 p.m. to 7.00 a.m., giving him no time to consult with counsel or opportunity for exercise;

g.

consideration of the poor quantity and quality of food provided at the Detention Facility.

Prosecution s Submissions

2. The Prosecution submit that the Accused has been provided with Standby Counsel, pursuant to the Consequential Order of the Trial Chamber, to provide legal assistance to the Accused. It is argued that the provision of investigators should also be covered through the assignment of Standby Counsel. 3. The Prosecution argued that before a decision is reached by the Trial Chamber on the provision of resources to the Accused, a security assessment should be taken. The Prosecution highlighted the fact that the Accused had previously had his communication restricted by an order of the Registrar for security reasons, based upon his past actions that occasioned a serious risk. The Prosecution submit that they would have security concerns if the Accused were granted internet access and telephone access without restriction. 4. The Prosecution request that a report be provided by the Registrar addressing their concerns and to provide the Trial Chamber with guidelines to assist its decision.

Replyfrom The Accused 5. In reply, the Accused states that he will not comment on his previous communication restrictions. 6. The Accused states that the decision on the provision of additional resources to him should be made by the Trial Chamber and not by the Registrar.

770 • Defense in International Criminal Proceedings 7. The Accused asserts that he is not an ordinary Accused person. He is a Chief and a previous member of Government. Registrar's Report 8. On the 19th ofJune, 2004, the Registrar submitted a Report the Trial Chamber in response to the Trial Chamber's order for the Registrar to provide a report on the Accused's Request. The Trial Chamber has given full consideration to this report.

II. FINDINGS OF THE TRIAL CHAMBER 9. By letter of the 3rd ofJune, 2004, the Accused submitted his intention to represent himself in the criminal proceedings against him. By decision of the 8th ofJune, 2004,260 the Trial Chamber held that the Accused had a qualified right to represent himself. By virtue of this Decision and the Consequential Order'"" issued by the Chamber on the 14th of June, 2004, the Trial Chamber ordered the Registrar to appoint Standby Counsel, whose role is defined in the said Order. 10. The Trial Chamber is now seized with a request from the Accused to provide him with adequate and effective resources to assist him in conducting his defence. In making a determination on this request, the Trial Chamber has been guided by the Report of the Registrar on this issue. The Trial Chamber also refers in particular to certain provisions of Article 17 of the Statute which set out minimum guarantees to which an accused person appearing before the Special Court is entitled, and which include the right to have adequate time and facilities for the preparation of his defence. Article 17 provides in part in this respect as follows: 1.

All accused shall be equal before the Special Court.

2.

The accused shall be entitled to a fair and public hearing, subject to measures ordered by the Special Court for the protection of victims and witnesses.

[ ... ]

4.

In determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: b.

To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing;

[ ... ]

11. With respect to the specific requests of the Accused, the Trial Chamber finds as follows: Request for Computer

12. The Trial Chamber grants the request of the Accused for a computer set. The Accused shall be provided with a desktop computer and printer in his cell for use at 260 Decision on the Application by Samuel Hinga Norman for Self-Representation Under Article 17 (4) (d) of the Statute of the Special Court for Sierra Leone, 8 June 2004. 261 Consequential Order on Assignment and Role of Standby Counsel, 14June 2004.

Mixed Tribunals • 771

anytime. On the basis of security concerns, however, expressed by the Registrar, including the Acting Chief of the Detention Facility and the Chief of Security for the Special Court, the computer will not be connected to the internet or Special Court Network. Should any materials be required by the Accused from these resources, he may make a request to the Defence Office and/or his Standby Counsel to provide such necessary materials. Request for Telephone

13. Currently the Accused is provided with a wireless "DECT" phone, which he can use from any location within the detention facility between the hours of 7.00 a.m. to 9.00 p.m. In accordance with Rule 44(A) of the Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Special Court for Sierra Leone or Otherwise Detained on the Authority of the Special Court for Sierra Leone ("Rules of Detention"), adopted on the 7th of March, 2003, and amended on the 25th of September, 2003 and the 4th of May, 2004, telephone calls between Accused and Counsel are privileged unless otherwise ordered by aJudge or a Chamber. 14. The Trial Chamber considers that the Accused may be further assisted by placing a stationary desk telephone in his cell which he can use at any time for the purpose of being in contact with his Standby Counsel. The phone will be programmed with the telephone numbers of his Standby Counsel, both inside and outside Sierra Leone. 15. As telephone costs are borne by the Court, usage will be reviewed to ensure that the number and duration of telephone calls is reasonable. Request for Stationery

16. The Detention Facility provides stationery to detainees and should continue to provide the Accused with stationery requests which are reasonable and proportionate to the requirements of representing himself on the understanding that the Chamber has assigned Standbyy Counsel to assist him in the process. Request for Assistant

17. The Trial Chamber considers that the provision of four Standby Counsel to the Accused to assist him in the defence of his case is adequate, and it is not necessary to appoint an additional assistant. Request for Investigator

18. The Trial Chamber considers that any investigations required by the Accused for his defence at trial is a matter within the competence of the Defence Office who shall make the necessary arrangements that are required. Request for Modification of "Lock-Up" Hours

19. The Trial Chamber considers that the lockup hours for the detention facility, from 10.00 p.m. to 7.00 a.m. each day are reasonable. Furthermore, upon being provided with a computer and a stationary phone in his cell, the Accused may continue to prepare his case after lock-up time. Where exceptional circumstances would exist, and on a case-by-case basis, he may also apply to the Detention Facility to be outside his cell beyond the regular "lock-up" hours.

772 • Defense in International Criminal Proceedings Request for Exercise and Food

20. According to the findings of the Registrar, the standard applied for exercise and food for detainees at the Detention Facility is in conformity with prescribed international standards verified from time to time by the International Committee for the Red Cross. The Trial Chamber accordingly finds no merit in these requests. FOR ALL THE ABOVE-STATED REASONS, The Trial Chamber grants the request of the Accused for a computer set and a personal telephone and orders that the Registrar provide him with a desktop computer and printer and stationery desk telephone, to be set up in his cell for his use at any time. The Trial Chamber further orders that the Detention Facility provides the Accused with stationery, within reasonable limits, and proportionate to his needs to present his own defence, considering the availability to him of his Standby Counsel. [ ... ]

Consequential Order on Assignment and Role ofStandby Counsel, SCSL-2004-04-14-PT, June 14, 2004 (excerpts) NOTING a letter filed by the Accused addressed to the Principal Defender of the Special Court for Sierra Leone on the 9th ofJune 2004, admitted in evidence as Exhibit 2, whereby the Accused informed the Trial Chamber that he had discussed the Decision of the Trial Chamber with the Principal Defender, and stated that if the Decision meant that his right of self representation could be exercised with the assistance of counsel of his own choosing, preferably "counsel in the interest of justice," "amicus counsel," "standby counsel," he requested the Principal Defender to contact all members of his "defence team," national and international, to arrive at the Special Court as soon as possible and to continue assisting him as counsel, namely, "counsel in the interest ofjustice," "amicus counsel," "standby counsel," and that should such counsel not agree to this, that the Principal Defender notify him so that he could provide further instruction as to the composition of his team of legal assistance; NOTING that the said letter was verified by the Accused at the trial session on the 10th ofJune 2004, and that the Accused was advised by the Trial Chamber that Standby Counsel would be assigned to him, whereupon the Accused advised that it was his right to choose his own counsel; NOTING that the Registrar advised the Trial Chamber at the trial session on the 10th ofJune 2004 that he had made enquiries about a suitable Standby Counsel and had identified one lawyer, who would arrive in Freetown on the 14th ofJune 2004, and be briefed by the Principal Defender, and he supplied the Trial Chamber and the parties with a curriculum vitae of this lawyer; NOTING that former Counsel for Norman, Mr. Tejan-Sie, advised the Trial Chamber at the trial session on the 10th ofJune 2004 that he had not had the opportunity to consult with his former client to discuss whether or not his Defence team could be appointed as Standby Counsel for the Accused; NOTING Article 17 (4) (d) of the Statute of the Special Court for Sierra Leone ("Statute") which provides that:

Mixed Tribunals • 773

4. In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: [ ... ]

d. To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it; [ ... ]

CONSIDERING that the right to self-representation is not absolute and that the interests ofjustice may require the assignment of legal assistance; CONSIDERING that the right to counsel and the right to self-representation do not exclude each other; CONSIDERING that the CDF trial involves multiple defendants and that the rights of each accused person must be fully respected at all times throughout the trial process; CONSIDERING that the right of the Accused to self-representation must be balanced against the right to a fair and expeditious trial; CONSIDERING that it is in the overall interests ofjustice to assign a Standby Counsel to assist the Accused, in the exercise of his right to self-representation; CONSIDERING that Standby Counsel will provide legal assistance to the Accused and ensure the safeguard to his right to a fair and expeditious trial;262 CONSIDERING that a counsel-client privilege applies to any communications and correspondence between the Accused and Standby Counsel; CONSIDERING that Standby Counsel, in providing assistance to the Accused, shall be subject to "the relevant provisions of the Agreement, the Statute, the Rules, the Rules of Detention and any other rules or regulations adopted by the Special Court, the Headquarters agreement, the Code of Professional Conduct and the codes of practice and ethics governing their profession and, if applicable, the Directive on the Assignment of Defence Counsel," as provided in Rule 44(B) of the Rules; CONSIDERING that the Accused's right to self-representation and the appointment of Standby Counsel includes the right of the Accused to obtain legal advice from counsel of his own choosing; FOR THE FOREGOING REASONS; PURSUANT TO Rule 54 of the Rules, the Trial Chamber; HEREBY ORDERS that Standby Counsel are to be assigned to the Accused to assist him in the exercise of his right to self-representation and for the purposes of these proceedings; 262 Prosecutor v. Vojislav Seselj, Decision on Prosecution's Motion for Order Appointing Counsel to Assit Vojislav Seselj With His Defence, 9 May 2003, para. 28.

774 • Defense in International Criminal Proceedings

FURTHER ORDERS that the role of Standby Counsel, be strictly defined as follows: 1.

To assist the Accused in the exercise of his right to self-representation;

2.

To assist the Accused in the preparation and presentation of his case during the trial phase, whenever requested to do so by the Accused;

3.

To actively guide the Accused through the procedures of the trial in accordance with the Statute and the Rules;

4.

To investigate relevant facts and law, identify possible defences and suggest steps to be taken by the Accused;

5.

To receive all Court documents, filings and disclosed materials that are received by or sent to the Accused;

6.

To be present in the courtroom during the proceedings;

7. To offer legal advice to the Accused; 8.

To address the Court whenever requested to do so by the Accused or by the Trial Chamber;

9.

To put questions to witnesses on behalf of the Accused if called upon to do so by the Trial Chamber, in particular to sensitive or protected witnesses, or in the event of abusive conduct by the Accused, without depriving the Accused of his right to control the content of the examination;

10. To be actively engaged in the substantive preparation of the case and to participate in the proceedings, and to be prepared to take over representation of the Accused should the Accused engage in disruptive conduct or conduct requiring his removal from the courtroom as outlined in Rule 80(B) in the Rules of Procedure and Evidence; 11. To assemble and present information relevant to all the stages of the proceedings; 12. To refrain from conduct that may directly or indirectly impact adversely on the exercise of the Accused's right of self representation; DECIDES (1) that these functions of the Standby Counsel shall be performed under the supervision of the Trial Chamber; (2) that Standby Counsel will immediately assist the Accused; (3) that the Accused shall conduct his Defence without delay and will conform to the dates set for Trial decided by the Special Court so as not to delay the proceedings; ORDERS the Registrar to assign Standby Counsel for the assistance of the Accused; FURTHER ORDERS the Registrar, in consultation with the Principal Defender, to immediately assign on a temporary basis a member of the Defence Office, pending the assignment and effective presence at the proceedings of the Standby Defence Team, to assist the Accused as Standby Counsel; [ ... ]

Mixed Tribunals • 775

Ruling on the Issue of Non-Appearance ofthe First Accused Samuel Hinga Norman, the Second Accused Moinina Fofana, and the Third Accused, Allieu Kondewa atthe Trial Proceedings, SCSL-2004-14-T (9645-9652) October 1,2004 (excerpts)

I. BACKGROUND 1. At the end of the morning session of trial on the 20th of September, 2004, the First Accused informed the Court that he would not attend trial in the future until the Trial Chamber made a determination on the issue he had raised, namely, that protective measures for Witness TF2-033 should be lifted given the witness' response to him during crossexamination that he did not fear his identity being made known to the public. 2. When the Court sitting resumed on the 20th of September, 2004 at 3.30 p.m. to continue the trial of the CDF case, none of the Accused were present in Court. Defence Counsel expressed their ignorance of the facts leading to the absence of the Accused and asked the Trial Chamber for an adjournment to confer with their clients. The Prosecution, quoting Rule 60 of the Rules that deals with trial in the absence of the Accused, did, however, not oppose an adjournment for a clarification of the reasons for the absence of the Accused. Consequently, the Trial Chamber ordered an adjournment for Counsel to liaise with their clients. 3. The trial session resumed at 5.10 p.m. on the 20th of September, 2004. The First and Second Accused were still absent from Court, the Third Accused appeared before the Court and explained that his absence was due to health problems and asked the Court's indulgence to be allowed to leave the Court to go and rest. This request was granted. 4. The Head of the Detention Facility, Mr. Barry Wallace, appeared in court and testified that the First and Second Accused were physically able to attend. However, pursuant to his testimony, the First Accused decided not to attend, because the witnesses did not testify in public and the Second Accused agrees with this position. 5. During the trial session resuming at 5.10 p.m. on the 20th of September, 2004, one of the Stand-by Counsel for the First Accused, Mr. john Wesley Hall,jr., presented a letter to the Court in which the First Accused expressed his decision not to appear for his trial until certain conditions he outlined were fulfilled. These conditions included the following: "a.) The joinder Indictment SERVED on the Accused pursuant to Rule 52 of the Rules. b.) Arraigned the Accused to enter a Plea, pursuant to Rule 61 (iii) of the Rules of Procedure. c.) Remove the Protective ORDER so that witnesses who are not sexually assaulted could TESTIFY in FULL VIEW OF THE PUBLIC in order to discourage the giving of lie TESTIMONIES that the Prosecution has been paying Prosecution Witnesses to give under hidden identity. d.) That the Single Indictment AGAINST me alone, Dated 7th March 2003 be quashed, so that it could not be used as a fall-back tactic in an eventuality by the Prosecutor." This letter was admitted in evidence and marked as Exhibit 12. In Exhibit 12, the first Accused also instructed his Stand-by Counsel not to appear in Court on his behalf in his absence and stated that Counsel do not have his authority to participate in any ongoing proceedings in his absence until the legal pre-conditions he had stipulated are fully met.

776 • Defense in International Criminal Proceedings

6. On the 20th of September, 2004, Mr. Arrow Bockarie, one of the Counsel for the Second Accused Moinina Fofana, informed the Court that his client was apprehensive about witnesses testifying with their identity not disclosed to the public and about the fact that considerable sums of monies were paid to them. He stated that the Second Accused would not appear until these issues were addressed. The Second Accused failed to attend court in the afternoon of the 20th of September, 2004. 7. On the 21st of September, 2004, Mr. Arrow Bockarie informed the Court that the Second Accused had reconsidered his position and stated that he was willing to attend court, but that due to health reasons he could not attend court that day. This information was supported by a report from Doctor Harding, who examined the Accused's health. 8. On the 21st of September, 2004, the Trial Chamber ruled that Standby Counsel for the First Accused would represent him as Court Appointed Counsel. The Trial Chamber further appointed Court Appointed Counsel for the Second Accused. 9. On the 22nd of September, 2004, the Second Accused again appeared in Court and indicated that it was his intention to attend court in the future and to be represented by his Assigned Counsel. The Trial Chamber then ruled that Counsel for the Second Accused would represent him as his selected Counsel. On the 23rd of September, 2004, the Second Accused failed to attend court. Mr. Arrow Bockarie informed the Court that he had spoken to the Accused and he had expressed his intention not to attend court. Dr Harding appeared before the Court and stated that he had examined the Accused that morning and that he was physically and mentally healthy and could attend trial. Mr. Wallace, the Chief of Detention also appeared before the Court and stated that the Accused had expressed his wish not to attend Court. The Court then ruled that Counsel for the Second Accused would be Court Appointed Counsel. 10. The Trial Chamber consequently orally ordered the proceedings to resume and to proceed under Rule 60 of the Rules and stated that a detailed decision would follow in writing. 11. On the 27th of September, 2004, the Third Accused failed to attend Court without a reason, and the Trial Chamber ruled that Assigned Counsel for the Third Accused would act as Court Appointed Counsel.

II. THE APPLICABLE LAW 12. Article 17 (4) (d) of the Statute provides that: In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality: To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her in any case where the interests ofjustice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it (emphasis added).

13. Rule 60 of the Rules, however, provides that a trial may be conducted in the absence of the Accused. In this event, Counsel appointed to represent him or her, in two circumstances, namely, where after having made his or her initial appearance and being

Mixed Tribunals • 777

afforded the right to appear at his own trial, he or she refuses to do so, or where he or she is at large and refuses to appear in court. Rule 60 states that: (A) An accused may not be tried in his absence, unless: (i) the accused has made his initial appearance, has been afforded the right to appear at his own trial, but refuses to do so; or (ii) the accused, having made his initial appearance, is at large and refuses to appear in court. (B) In either case the accused may be represented by counsel of his choice, or as directed by aJudge or Trial Chamber. The matter may be permitted to proceed if the Judge or Trial Chamber is satisfied that the accused has, expressly or impliedly, waived his right to be present. 14. In its recent Ruling on the Issue of the Refusal of the Third Accused, Augustine Cbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, rendered on the 13th ofJuly, 2004, the Trial Chamber held that a trial may proceed in the absence of the Accused person in certain circumstances, and in this regard, had this to say: "The Chamber therefore finds that though in essence trial in the absence of an accused person is an extraordinary mode of trial, yet it is clearly permissible and lawful in very limited circumstances. The Chamber opines that it is a clear indication that it is not the policy of the criminal law to allow the absence of an accused person or his disruptive conduct to impede the administration of justice or frustrate the ends ofjustice. To allow such an eventuality to prevail is tantamount to judicial abdication of the principle of legality and a capitulation to a frustration of the ends ofjustice without justification.263" 15. Reviewing the principles adopted in national law systems on this issue, The Chamber further stated: "Consistent with this reasoning, the Chamber also notes that in most national law systems, and especially in the common law jurisdiction, the general rule is that an accused person should be tried in his or her presence, but that exceptionally, courts ofjustice can have recourse to trial of an accused person in his absence where such an option becomes imperative but in limited circumstances. For example, in Canada it is open to a court to continue to try an accused person in his or her absence where he or she was present at the start of the trial, a situation that is on all fours with the instant situation with which this Chamber is confronted as a result of the Third Accused's refusal to appear for his trial. The Chamber further notes that in civil law systems, the practice is widespread for accused persons to be tried in their absence subject to certain procedural and due process safeguards."264 16. Explaining the international approach to trial in absentia, the Chamber had this to say:

263 264

Para. 8. Para. 9.

778 • Defense in International Criminal Proceedings

"From the Chamber's perspective, it is particularly noteworthy that the international law practice is on two levels: (i) the practice at the European Court of Human Rights ("ECHR") level and (ii) the practice at the International Criminal Tribunal for the former Yugoslavia ("ICTY") and International Criminal Tribunal for Rwanda ("ICTR") level. At the ECHR level, there is nothing in the jurisprudence of that Court to indicate that Articles 6 (1) and 6 (3) (c) of the European Convention on Human Rights providing basic legal guarantees for a person charged with crime have been construed in a manner suggesting the impermissibility of trial in absentia.v- At the level of the ICTY and ICTR, the Chamber finds that the statutory provisions of these tribunals on the subject are akin to those of this Court, and that in so far as ICTY is concerned, to date no trial in the absence of an accused has been conducted. However, the ICTR has conducted one trial in the absence of an accused in the case of Prosecutor v.Jean Bosco Barayagizwa. 266 In that case, the Accused boycotted his trial on the grounds that he "challenged the ability of the ICTR to render and [sic] independent and impartial justice due, notably, to the fact that it is so dependent on the dictatorial anti-hutu regime of Kigali. 267 It is abundantly clear to the Chamber that the jurisprudence, evolving or past, points to the legal sustainability of trial in absentia in certain circumstances. "268 17. The Chamber, accordingly, emphasizes that it is settled law, nationally and internationally, that while an accused person has the right to be tried in his presence, there are circumstances under which a trial in the absence of the accused can be permitted. While due consideration must be given to ensure that all rights to a fair trial are respected, an Accused person charged with serious crimes who refuses to appear in court should not be permitted to obstruct the judicial machinery by preventing the commencement or a continuation of trials by deliberately being absent, after his initial appearance, or refusing to appear in Court after he has been afforded the right to do so, and particularly in circumstances as in this case, where no just cause, such as illness, has been advanced to justify the absence.

II [sic]. THE MERITS OF THE APPLICATION 18. In light of this background and the evidence presented, the Trial Chamber concludes that the First Accused has exhibited disruptive behaviour in court proceedings on a number of occasions, as can be inferred from his submission of a letter to the Trial Chamber on the 7th of September, 2004, where he threatened to be absent from court until a conclusion was reached on the arguments he raised in this letter. Further, in Court on the 20th of September, 2004, he submitted a letter addressed to the Principal Defender and copied to the Trial Chamber Judges, where he affirmed that until his listed conditions were met, he would not appear before the Trial Chamber. The First Accused in execution of his threat, failed to appear in Court in the afternoon of 20th of September, 2004 and has not attended Court since then. 265 See Ali Maleki v. Italy, Communication No 699/1996 U.N. doc CCPR/C/667/669/1996 (27 July 1979) of the UN Human Rights Committee and F. C. B. v. Italy, European Court of Human Rights, 40/1990/231/297 (26thJune 1991). 266 Decision on Defence Counsel Motion to Withdraw, Case No ICTR-97-19-T, 2nd November 2000.

Mixed Tribunals • 779 19. Having received the First Accused's letter dated 7th of September, 2004, the Trial Chamber, on the 10th of September, 2004, informed the Accused that the established practice in this Court and in international law in respect of the issues raised by him is for arguments to be submitted by parties by oral or written motion to the Trial Chamber, after which the Trial Chamber will consider such submissions and issue a ruling thereafter. The Accused agreed to file the submissions contained in his letter of the 7th of September, 2004 in the form of a Motion before the Trial Chamber. On the 20th of September, 2004, no such filings had been made. Instead, the Accused, on this day in Court, presented another letter of 'Judicial Protest." The Trial Chamber notes that on the 21st of September, 2004, a Motion for Service and Arraignment on second Indictment was filed by the Accused and Ms. Quincy Whitaker, his Standby Counsel. 20. The Trial Chamber wishes to emphasize that in the interests of justice, trial proceedings will not be interrupted by Accused persons who refuse to attend Court while submissions are being duly considered by the Trial Chamber, in accordance with legal procedures and due process. There is no authority for the position taken by the Accused and no lawful excuse for his deliberate absence from Court. 21. This Trial Chamber has granted the Accused a qualified right to self-representation. In its Decision of the 8th ofJune, 2004, it accorded the Accused the right of self-representation, with the additional assistance of Standby Counsel.s'" Several adjournments were taken during the first session of the CDF trial to allow the Accused to participate in the selection of such Standby Counsel to assist him in his self-representation. Four Standby Counsel were duly assigned to him by the Registrar.t?? and have assisted him so far in the proceedings. Additional resources and facilities have also been provided to him to further assist him in conducting his defence."?' 22. It is our considered judgment, therefore, that in the absence of any lawful excuse, and we find that there exists no such excuse, it would not be in the interests ofjustice to allow the Accused's deliberate absence from the courtroom to interrupt the trial. The Trial Chamber considers that any deliberate absence from the trial proceedings will certainly undermine the integrity of the trial and will not be in the interests ofjustice. 23. The Trial Chamber considers that the exercise of the right to self-representation should not become an obstacle to the achievement of a fair trial. As stated by the Trial Chamber of the IClY in the Milosevic-?? case, "the right to represent oneself must therefore yield when it is necessary to ensure that the trial is fair." The Trial Chamber therefore concludes that on account of the Accused's deliberate absence from Court, his right to self-representation is revoked, and in accordance with Rule 60 of the Rules, the

Para. 10. Para. 10. 269 Decision on the Application of Samuel Hinga Norman for Self Representation Under Article 17 (4) (d) of the Statute of the Special Court" delivered by the Trial Chamber on 8 June 2004; See also Consequential Order on Assignment and Role of Standby Counsel, 14th June 2004. 270 Order for Assignment of Standby Counsel for Samuel Hinga Norman, issued by the Registrar, 15th June 2004. 271 Decision on Request by Norman for Additional Resources to Prepare his Defence, 23rd June 2004. 272 Prosecutor v. Milosevic, Reasons for Decision on Assignment of Defence Counsel, 22nd September 2004, para. 34. 267 268

780 • Defense in International Criminal Proceedings CDF trial will be continued in the absence of the First Accused and that he will be represented by Court Appointed Counsel.F" 24. The Trial Chamber also holds that the Second Accused and Third Accused have failed to attend court for no lawful reason, and on the basis of Rule 60 of the Rules, and in the interests ofjustice, the trial will proceed in their absence while ensuring that their interests are properly represented in Court by Court Appointed Counsel. FOR THE ABOVE REASONS, THE TRIAL CHAMBER ORDERS AS FOLLOWS FOR THE FIRST ACCUSED: REVOKES the First Accused's right to self-representation; and ORDERS that the trial proceed in the absence of the First Accused pursuant to Rule 60 (A) (i) of the Rules; and APPOINTS the First Accused's Standby Counsel, namely, Dr. Bu-BuakeiJabbi, Mr. John Wesley Hall, Jr, Mr. Tim Owen, Q.C., and Ms. Quincy Whitaker, as Court Appointed Counsel to represent him in his trial proceedings; and ORDERS that the duty of Court Appointed Counsel will be as set forth in the Consequential Order of the Trial Chamber delivered on 1st of October, 2004; and ORDERS that the requirement for the resources granted by the Trial Chamber in its Decision on Request by Sam Hinga Norman for Additional Resources to Prepare His Defence, delivered on 23rd June 2004, for the purpose of assisting the First Accused to represent his case, that include a desktop computer and printer, and a stationary phone, be reviewed by the Registrar, who shall provide a report to the Chamber, with a view to assist the Chamber in determining whether these measures should be maintained, and that the further requests for additional resources made by the Accused at the Status Conference on 7th September 2004, are thereby dismissed on the basis that the Accused no longer represents himself, which is the basis upon which the resources were ordered; ORDERS AS FOLLOWS FOR THE SECOND ACCUSED: APPOINTS the Assigned Counsel for the Second Accused to represent him in the capacity of Court Appointed Counsel; and ORDERS that the duty of Court Appointed Counsel will be as set forth in the Consequential Order of the Trial Chamber delivered on 1st of October, 2004; ORDERS AS FOLLOWS FOR THE THIRD ACCUSED: APPOINTS the Assigned Counsel for the Third Accused to represent him in the capacity of Court Appointed Counsel; and ORDERS that the duty of Court Appointed Counsel will be as set forth in the Consequential Order of the Trial Chamber delivered on 1st of October, 2004; and ORDERS the Chief of the Detention Facility of the Special Court to maintain on a daily basis a record of the waiver of the Accused, Sam Hinga Norman, Moinina Fofana, and Allieu Kondewa, to appear in court, during each trial session of the CDF trial. [ ... ] 273

Rule 60, Rules of Procedure and Evidence of the Special Court for Sierra Leone.

Mixed Tribunals • 781

Order Revoking Additional Resources Provided toSam Hinga Norman for the Preparation ofhis Self-Defense, SCSL-04-15-T, October 27,2004 THE TRIAL CHAMBER ("Chamber") of the Special Court for Sierra Leone ("Special Court") composed of Hon.Judge Benjamin Mutanga Itoe, PresidingJudge, Hon.Judge Bankole Thompson and Hon. Judge Pierre Boutet; NOTING the Chamber's Decision on Request by Samuel Hinga Norman for Additional Resources to Prepare his Defence, of the 23rd ofJune, 2004 ("Decision"), whereby the Chamber ordered that the following additional resources be provided to the First Accused for the purposes of assisting him in his self-representation, namely, a desktop computer, a printer, a stationery desk telephone, and stationery provided within reasonable limits and proportionate to his needs to present his own defence; RECALLING the Chamber's Ruling on the Issue of Non-Appearance of the First Accused Samuel Hinga Norman, the Second Accused Moinina Fofana, and the Third Accused, Allieu Kondewa at the Trial Proceedings, of the 1st of October, 2004 ("Ruling"), whereby the Chamber revoked the First Accused's right to self-representation and appointed Court Appointed Counsel to represent him in his trial proceedings; RECALLING that in this Ruling the Registrar was ordered to review the requirement for the additional resources for the First Accused and to provide a report to the Chamber with a view to assist the Chamber in determining whether these measures should be maintained; HAVING CONSIDERED the Memoranda submitted to the Chamber by the Registrar pursuant to the Chamber's Ruling,274 whereby the Registrar stated that, in his opinion, there is no need to continue providing the First Accused with additional resources, given that he is no longer representing himself, and that continuing to provide such facilities would result in unequal treatment as none of the other detainees have such facilities; PURSUANT TO Rule 54 of the Rules of Procedure and Evidence of the Special Court; ORDERS AS FOLLOWS: ORDERS the Chief of Detention Facility to withdraw from the exclusive use of the First Accused the following resources, provided to him for the purpose of representing himself, that include: a)

a desktop computer;

b)

a printer;

c)

a stationery desk telephone;

d)

computer desk and chair; and

e)

filing cabinet.

ORDERS the Chief of Detention Facility to ensure that the First Accused is provided with all those resources and facilities generally available and accorded to other detainees of the Detention Facility of the Special Court, such as stationery and access to telephone. 274 Review of Additional Facilities Provided to Samuel Hinga Norman for Preparation of Defence, dated 8 October 2004 and Review of Additional Facilities Provided to Samuel Hinga Norman for Preparation of Defence, dated 15 October 2004.

782 • Defense in International Criminal Proceedings Consequential Order on the Role of Court Appointed Counsel, SCSL-04-15-T, October 1,2004 (Excerpts) ORDERS that the duty of Court Appointed Counsel will be to represent the case of the First, Second and Third Accused, and in particular, shall: a.

represent the Accused by investigating and preparing for the testimony of Prosecution witnesses and cross-examining them;

b.

prepare for and examine those witnesses Court Assigned Counsel deem it appropriate to call for his defence;

c.

make all submissions on fact and law that they deem it appropriate to make in the form of oral and written motions before the court;

d.

seek from the Trial Chamber such orders as they consider necessary to enable them to present the Accused's case properly, including the issuance of subpoenas;

e.

discuss with the Accused the conduct of the case, endeavour to obtain his instructions thereon and take account of views expressed by the Accused, while retaining the right to determine what course to follow; and

f.

act throughout in the best interests of the Accused;

Gbao-Decision on Appeal Against Decision onWithdrawal of Counsel, SCSL-04-15-T (9603-9622), November 23, 2004 (excerpts) On 6 July 2004 the defendant Cbao essentially asked for the withdrawal of his lawyers on the basis that he did not recognise the legitimacy of the Court. The Court ordered counsel to remain assigned in the case. Mr Cbao refused to attend court. That decision was challenged before the Appeals Chamber. The Court reiterated the applicable standards in Article 17 of the Statute and Rule 45 of the Rules of Procedure and Evidence, summarised the arguments and then deliberated thus: [ ... ]

39. This is an appeal which could have been disposed of in a few short paragraphs but for the fact that the Defence and the Prosecution fell into error in their conception of the context in which the Trial Chamber's Decision on Application to Withdraw Counsel was delivered and did not pay due attention to that context. 40. The context in which the Trial Chamber delivered its decision has been narrated in the background facts but can be summarized again. 41. The Trial Chamber had before it an accused person who repeatedly expressed his refusal to recognize the court and backed up that refusal by persistent denial of the authority of the Trial Chamber when it repeatedly directed him to conform with the Rules. Ultimately, the Accused not only refused to submit to the authority of the Court but tried to prevent anyone, including Counsel, from submitting to that authority on his account. 42. The Trial Chamber dealt with the situation that has arisen in its decision byanswering the following questions:

Mixed Tribunals • 783 1.

Did the refusal of the Accused to recognize the Court discharge his Counsel from responsibilities as counsel simply because the Accused wanted to withdraw his Defence Counsel on the basis that he, the Accused, did not recognize the Court?

11.

In regard to the situation that had arisen, what was best to be done in the interests ofjustice?

43. It was evident that the Trial Chamber appreciated that there was nothing it could do about the Accused's refusal to recognize the Court. It was thus that it limited its decision to the request of the Accused that as a consequence of his not recognizing the Special Court, no representation of him by counsel should be permitted or recognized by the Trial Chamber. 44. The Trial Chamber may appear, at first blush, to have erred in relying on Rule 45 (E) and thereby treating the matter as if it had before it an application by counsel to withdraw his representation. However, reference to exceptional circumstances can be understood as emphasizing that the Accused was not in a position to request or instruct that his counsel withdraw from the case without showing good cause. The Trial Chamber was correct in reaching the conclusion that refusal to recognize the Court did not constitute good cause. 45. Reference to Rule 45(E) seems to be supported by the ICTR Trial Chamber decision in Prosecutor v. Barayagwiza of 2 November 2000 275 which our Trial Chamber referred to. It is to be noted, though glossed over by the Defence and the Prosecution, that in the Barayagwiza case both the accused and the lawyers asked for withdrawal of the lawyers' mandate. With regard to the request of the accused that Chamber had this to say in response to Mr. Barayagwiza's arguments in which he challenged the ability of the ICTR to render independent and impartial justice and that that was good reason for his instruction that his lawyers ceased to represent him at the trial: The Chamber finds it obvious that Mr. Barayagwiza's arguments do not constitute exceptional circumstances as required under Rule 45 (I). Rather, Mr. Barayagwiza is merely boycotting the trial and obstructing the course ofjustice. As such the Chamber shall not entertain the request of the accused for withdrawal of his counsel, on this basis. 276 46. In regard to the interests ofjustice, given the situation that had arisen, the Special Court Trial Chamber said in its Decision on Application to Withdraw Counsel: It is clear from examining all of the circumstances of this case that the interest ofjustice would not be served by allowing Mr. Cbao to be unrepresented before this Court. The Trial Chamber accordingly takes the position that it must safeguard the rights of the accused and the integrity of the proceedings before the Court by insisting that Mr. Cbao should continue to be represented by the Counsel that have represented him throughout these proceedings. We hold in this regard that an accused person cannot waive his right to a fair and expeditious trial whatever the circumstances."? 47. The statements and conduct of Mr. Cbao at the trial manifest, unmistakably, his settled determination not to recognize the Special Court. This can be reasonably interpreted as an unwillingness to submit to its jurisdiction. The case was thus not at all one 275

276 277

Decision on Defence Counsel Motion to Withdraw. Id., para. 16, emphasis added. Decision on Application to Withdraw Counsel, para. 15.

784 • Defense in International Criminal Proceedings

of self-representation, as both the Defence and the Prosecution would want us to perceive it, but one of refusal of an accused to participate in the trial before a court which he refused to recognize. 48. On 7 July 2004, the day immediately after the decision of the Trial Chamber, the Accused, rather than notifying the Registrar of his election to conduct his own defence pursuant to Rule 45bis(B), issued a Declaration that was in consonance with his earlier position before that Chamber and that put the reason for his request that he have no representation beyond doubt. The Declaration reads thus: 1.

I, Augustine Gbao, wish to state the following: (i) I do not recognize the Special Court of Sierra Leone as a properly constituted court of law. (ii) As such, I am resolved to take no part in the proceedings at the Special Court, since to do so would indicate recognition of the Special Court's legitimacy as a properly constituted court of law. (iii) Further, and to protect the integrity of my position, I wish to dispense with the services of any legal representatives forthwith. (iv) Given that the Trial Chamber of the Special Court has ordered that I should retain their services I will henceforward refuse to furnish my former legal representatives with any further instructions whatsoever. (v) Further, I shall demand they take no active part in the proceedings before the Special Court whatsoever on my behalf.

Paragraphs (i), (ii) and (iii) of the Declaration leave no room for speculation as to the position of the Accused, albeit erroneously taken, in regard to the Court and in regard to his trial by the Trial Chamber as well as to the reason why he requested that the services by his legal representatives be dispensed with. 49. Judicial proceedings are not undertaken in a world of speculation or make-believe, nor would a court create an imaginary ambiguity where none exists. There is no room for doubt that the Accused had on 6 July 2004 made clear his refusal to recognize the Court and had on 7 July 2004 confirmed this refusal and his non-participation in the trial. In the light of these facts, to regard the issue before the Trial Chamber as one of the right to legal representation is to create an imaginary scenario totally divorced from the circumstances and from the plain and express intention of the Accused. A claim to a right to legal representation or self-representation before a tribunal cannot be implied from a persistent posture of non-recognition of the tribunal. 50. In the context in which the Trial Chamber delivered its decision, the issues before that Chamber were not, as the Defence would want this Chamber to hold, as to any of the following: •

The right of the Accused to choose whether to have counsel.

•

The right of the Accused not to have counsel.

•

The right of the Accused to defend himself.

51. In this Appeal, the Defence and, to a large extent, the Prosecution, proceeded on an erroneous footing in arguing as if recognition of these rights (or failure to recognize them) was the issue.

Mixed Tribunals • 785

52. Where an accused is present in court but refuses to participate in the proceedings because he does not recognize the court and requests that his counsel do not participate for the same reason, the court should treat the accused as an absent accused and exercise its powers as if Rule 60 applied. Applying that Rule it would be inconsistent with the position taken by such accused to expect the accused to proffer a choice to be represented, in terms of Rule 60(B), "by counsel of his choice." The appropriate thing for the court to do in such circumstances is to ensure that the accused is represented, also in terms of Rule 60 (B), as directed by the Trial Chamber. In these circumstances, the Trial Chamber, comprising professional judges, proceeds in the knowledge and awareness that counsel is acting without instructions from the accused when it directs that counsel continue to provide representation whether as 'assigned counsel' or 'court appoin ted counsel.' While Rule 60 (B) could have been drafted to indicate various options open to the Judge or Trial Chamber in terms of the type of representation, this is left to the Judge or Trial Chamber's discretion. 53. From what has been said the conclusion is clear that in substance the Trial Chamber's Decision on Application to Withdraw Counsel, properly understood in the context in which it was made, is correct. 54. In the light of the above, the questions raised by some of the grounds of appeal, namely: •

Whether the Trial Chamber erred in failing to hear counsel for the accused and co-accused before ruling on Cbao's application;

•

Whether counsel issues are within the discretion of the accused, counsel and Principal Defender;

•

Whether Cbao's application was treated differently from Norman's application for self-representation;

are inconsequential. 55. It is pertinent to observe that in this case the Accused was the applicant and that his counsel had stepped aside for the Accused to make his request. The interests of the co-accused were not involved. The overriding considerations in the circumstances that arose were the interests ofjustice and fair hearing. The circumstances were not purely ones of "counsel issues" to be left to the discretion of counsel. A decision of a tribunal which is correct will not be set aside merely because it was arrived at without first seeking "guidance" of counsel. 56. The relief sought by the Defence had the appeal succeeded is as follows: (1) That the accused be accorded his right not to have counsel representing him; (2) That the Trial Chamber be ordered to consider alternative measures for the protection of the integrity of the proceedings and the fairness or the trial such as the appointment of standby counsel; or (3) That the Trial Chamber reconsider its decision having heard counsel for the defence and prosecution and in the light of the findings of the Appeal Chamber. 57. As to the first form of relief, the rights which an accused has in regard to the conduct of his defence in terms of Article 17 (4) (d) of the Statute are: (i) to defend him-

786 • Defense in International Criminal Proceedings

self or herself in person; or (ii) to defend himself or herself through legal assistance of his or her own choosing; and (iii) to have legal assistance assigned to him or her, in any case where the interests ofjustice so require. 58. The first two are within his choice but not the third. The law does not recognise a right "not to have counsel assigned" to an accused who has refused to exercise the choice available to him under (i) and (ii). 59. In regard to the second form of relief sought, it is evident that subsequent events have overtaken the granting of such relief. Since the decision appealed from was delivered on 6 July 2004, the Accused has issued the Declaration mentioned and quoted in paragraph 48 and has, as found by the Trial Chamber, absented himself from the trial. The Trial Chamber on 7 July 2004 exercised its power under Rule 60(B) by a Ruling which has not been appealed. The representation of the Accused from the date of that Ruling is now pursuant to the directive in the Ruling, that is to say, that "Mr. Andreas O'Shea and other members of his team will continue to represent the Third Accused. "278 That Ruling made on 7 July 2004 is not the subject of this appeal and there is nothing to show that it has been vacated. In the result, the second form of relief sought is inappropriate in the circumstances.

60. As to the alternative form of relief, there is no need for the Trial Chamber to reconsider its Decision on the Application to Withdraw Counsel which was correctly made and which, in any event, has been superseded by subsequent events leading to the unchallenged directive of the Trial Chamber made on 7 July 2004.

IX. DISPOSITION 61. In conclusion, this Appeal appears to be merely an academic exercise. It lacks merit and it is dismissed.

8.3.4. 8.3.4.1.

ARTICLES No Peace Without Justice: Report on Defense Provision for the Special Court for Sierra Leone

I. Introduction This report is prepared at the request of the Registry of the Special Court for Sierra Leone (SCSL) and No Peace WithoutJustice (NPV\J). The aim is to assist those involved in making arrangements for the defence of accused before the SCSL, and to help ensure that the problems suffered by other international and internationalized courts can be avoided. The report is based on consultations with many participants in the SCSL and in the legal system of Sierra Leone, conducted during a visit to Freetown from 14-21 February 2003. It also relies on the input of lawyers and others who have worked in other international justice mechanisms in recent years. One of the principal guarantees of the right to a fair trial is the provision of adequate facilities for an accused person's defence. Trials can only achieve legitimacy if there is 278

Ruling, para. 12 (2).

Mixed Tribunals • 787

equality of arms between defence and prosecution. The prosecution of crimes under international law requires not only an effective prosecution office, but also an effective defence. If this is not provided, trials will not be regarded as having been fair, and their verdicts will not be regarded as legitimate. The forthcoming trials before the SCSL will be subjected to a high degree of national and international scrutiny. The court cannot afford to give the impression that the process is overloaded in favour of the prosecution. Defence is frequently overlooked in the early stages of planning for international trials. The International Criminal Tribunal for the Former Yugoslavia (IClY) in its early stages made no proper provision for defence, and in the preliminary months of its first case was employing only one defence lawyer, who was prepared on an ad hoc basis to waive his usual hefty fees for a payment capped at us $200 per day. The Special Panels for Serious Crimes in East Timor were planned without any regard to the need for defence, and began their operation with only one junior overseas lawyer acting as a public defender, along with newly qualified national public defenders. The spectacle of nervous newly qualified lawyers facing up to experienced international prosecutors before the Special Panels in East Timor was not an edifying one. Although attempts have been made to improve the situation, there has never been any real recovery from this position. On the other hand, other institutions have given rise to grave concerns at the unmanageable costs of providing defence representation. These have surfaced in relation to both ad hoc tribunals, in particular the International Criminal Tribunal for Rwanda (ICTR), where overbilling, dishonest practices and lack of proper caps and controls has resulted in a grossly inflated defence budget. The Registry of the SCSL expresses concern that both these extremes should be avoided, and that a system should be instituted which succeeds in providing a high standard of representation for defendants at a proportionate and manageable cost. Discussions held during the week of 14-21 February with the Registrar and his staff showed that there is a great deal of willingness to consider a wide range of options in achieving this aim. Consideration of these options resulted in a narrowing of the issues, and a high degree of consensus was achieved on many key matters.

II. Requirements ofa Defence System The Statute of the SCSL sets out the rights of the accused to: · .. have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing. · .. defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interests ofjustice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it. · .. examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her.

788 • Defense in International Criminal Proceedings

In order to accommodate all defendants' rights, and to provide a high standard of representation to defendants at a reasonable cost, a system must be set up which is capable of: a.

Providing all accused with information on how to instruct a defence lawyer;

b.

Determining the requirements for qualification to appear as counsel before the court;

c.

Selecting, or assisting defendants in the selection of, national and international counsel who meet the requirements for qualification to appear as counsel before the court;

d.

Determining which accused should be entitled to legal assistance free of charge;

e.

Determining what such legal assistance should consist of;

f.

Providing an appropriate system of remuneration for defence counsel and other members of defence teams;

g.

Assessing and paying claims for remuneration by defence teams.

a. Providing accused with information on how to instruct a defence lawyer It is probable that the majority of accused persons have little or no experience of courts or court procedure. Any experience they may have may be of court systems which do not operate in accordance with international human rights standards. Information should be made readily available to them as to how their rights are protected by this court system. This should include information as to their rights to representation, and how such representation is to be obtained.

b. Determining requirements for qualification ofcounsel The principle of equality of arms between the prosecution and the defence is fundamental. One of the principal means by which such equality can be secured is byensuring that defence counsel are of a standard comparable to counsel for the prosecution. If accused persons are being represented by lawyers with significantly lower levels of experience and expertise than prosecuting counsel, this standard is not being achieved. Clearly, making such assessments can never be an exact science, but this does not mean that it is impossible to provide certain basic guarantees of equality. Perhaps the simplest preliminary step is to provide that the levels of experience of a lead defence counsel are similar to those of a lead prosecution counsel. At the SCSL, prosecution teams are likely to be led by prosecutors at P5 level, which generally means that they have a minimum of 10 years' experience. It may therefore be appropriate to have a basic "threshold" rule that lead defence counsel have a minimum of 10 years of experience. A comparable rule was introduced into the Rules of Procedure and Evidence of the ICTR, to counter the difficulty that inexperienced counsel were taking cases before the court. Under these Rules, any counsel who appears on the list of counsel kept by the Registrar must have at least 10 years' relevant experience. There have been some discussions about having a lower level of experience required for defence counsel, based on the comments of some defence organizations, which have complained that the threshold at the ICTR prevents some junior counsel from working

Mixed Tribunals • 789

on cases. However, it is suggested that it is entirely inappropriate for a lawyer of less than 10 years' experience to be leading the defence in cases of this gravity. In most common law systems it would be considered highly unusual for a lawyer other than a very senior and experienced practitioner to lead a simple murder trial. Trials before the SCSL will be of far graver charges. 10 years' call should be regarded as a minimum level rather than an optimum one, and it is to be hoped that most lead counsel would be substantially more senior. Ifjunior defence lawyers want to playa role, they can apply for positions as co-counsel, duty counselor legal assistants. It should be added that the use ofjunior lawyers to lead cases is not only entirely inappropriate to the level of work; it is also unlikely to provide overall cost savings. As one senior counsel comments: One thing that the Special Court for Sierra Leone has to get right is expedition. That requires senior and highly experienced competent counsel on both sides. [... J It is not cheap defence that is required, it is a system that encourages skilled and swift professionalism. It is important that any requirement of experience should be for experience that is truly relevant to the work of the court; that is, experience of conducting high profile criminal trials in domestic and/or international courts. It is not sufficient that a person has simply been qualified or practising as a lawyer for the relevant period. In other international and internationalized courts there have been severe difficulties caused by the assignment of lawyers who have either never practiced, or have practiced in fields such as commercial or family law which have no relevance to the work before the court.

c. Selecting, or assisting defendants in the selection of, counsel The selection of the right lawyers to appear as counsel in cases before the court is clearly a crucial requirement in ensuring that trials are properly defended. The manner in which this is done will depend on the system of defence representation used. This is discussed in more detail below.

d. Determining which accused should be entitled to legal assistance free ofcharge Under the Statute of the SCSL the accused should have legal assistance free of charge if he or she lacks the means to pay for it. This requires an assessment of the means of an accused who requests legal assistance to be made. In the first instance, such assessments rely on representations made by the accused. It is a matter for the court as to what further enquiries should be made pursuant to such representations. It should however be noted that there are in most circumstances few accused persons who are assessed as being able to pay for their own defence. All defendants at the ICTR, and all but four at the ICTY, have claimed indigence. This is despite the fact that many trials before these courts have been of persons who have until recently held high positions in their respective states. It should also be noted that both the ICTR and the IClY have found difficulties in investigating claims of indigence. In one recent case at the ICTY, an accused person who had successfully claimed indigence was found to have purchased real estate while in detention. How matters of documentation and investigation are to be resolved falls outside the scope of this report. For budgeting purposes, it would be wise to assume that the vast majority of defendants will require the cost of their representation to be covered by the court.

790 • Defense in International Criminal Proceedings

e. Determining what such legal assistance should consist of The Statute guarantees a right to legal assistance, but it is silent as to what this assistance should consist of. Again, the guiding principle must be equality of arms. This does not mean that the defendant must be afforded exactly the same resources as those of the state (or in this case the prosecution). The role of the prosecution in bringing and proving a case requires an operation of an entirely different nature than that of mounting a defence. At one end of the scale, the ICTs provide for teams for each defendant consisting of one counsel, one co-counsel, and up to three legal assistants and investigators. A comparative table of costs of defence teams at the ICTR drawn up in 2000 revealed that even the comparatively short trials of one or two defendants carried an average cost of USD $500,000 per defendant. More recent, longer trials have far exceeded this level, and the cost is now assessed at nearly USD $1,000,000 per defendant. The delays endemic to the system at the ICTR have resulted in defence cases costing hundreds of thousands of dollars before they have even reached the trial stage. It should be noted that the costs of the defence in these cases are still very significantly lower than the costs of prosecution. Defence cannot be seen in isolation: the ICTR is an unfortunate example of an entire system which is disastrously out of control. One senior lawyer who has represented defendants at both the ICTs writes: The chronic problem of delay at both the ICTY and the ICTR causes vast avoidable expense, and at the ICTR has simply descended into a farce which drives a coach and horses through any notion of fair and expedient trials. It is a malorchestrated and continuing abuse of process. The money used to support the ICTR would be much better transformed into food for starving African children. At the other end of the scale, recent crimes against humanity trials in East Timor have seen up to three defendants sharing a single Timorese public defender who has been qualified for less than two years. The cost of this is unsurprisingly negligible: public defenders are paid less than USD $250 per month. Similarly, in recent UN prosecuted trials in Kosovo, only local counsel with necessarily limited experience were employed for the defence. There appears to be general agreement in the SCSL Registry that each defendant should have a lead counsel at a very senior level. Whether these lawyers should be employed or chosen from a list is discussed below. It is also generally agreed that there is no way in which the system can sustain the kind of 5 person teams used at the ICTR. i. Co-counsel

It may be that the question of whether a co-counsel (employed or otherwise) is needed for a case is a matter that can best be decided on a case by case basis, depending on the size, length and complexity. If co-counsel are used, it may be that it is felt inappropriate to specify a threshold level of experience. It should noted that many Sierra Leonean defence lawyers are interested in working on cases before the court. These are by and large junior lawyers of 5 years' experience or less. The use of these lawyers as co-counsel may be desirable for a number of reasons which are discussed in more detail in Annex 1. Applications for co-counsel could be decided by the defence unit, if necessary with the assistance of a recommendation by the court. This would provide substantial flexibility in deciding how each defence team was to be staffed. The granting of co-counsel would not be a given, but would have to be justified in the individual case. It may be that co-

Mixed Tribunals • 791 counsel could be granted for part of a trial, e.g. to research and argue a particular legal issue, or to assist in dealing with defence witnesses. ii. Other defence services

There is also likely to be a need for interpretation, investigation and legal assistance. It will clearly be cheaper to have a pool of interpreters for the use of all defence lawyers. It has been suggested by the Bar Human Rights Committee of England and Wales that there should also be a pool of researchers and investigators working in a defence support unit for use by all counsel. Clearly this would have substantial cost benefits. Thought would have to be given as to how resources were to be shared fairly among defence teams, and how conflicts of interest were to be avoided. However, these difficulties are not insurmountable. It may also have to be considered that in more complex cases there should be a dedicated legal researcher or investigator appointed to work with a particular team. Applications could be decided in a similar way to applications for co-counsel. Again, this allows a desirable degree of flexibility.

1. Providing a system ofremuneration for defence The system provided, and the mechanism for running it, will depend crucially on the choices which are made regarding the employment of public defenders or the use of a list system of choosing defence counsel. This is discussed in detail below.

g. Assessing and paying claims for remuneration by defence teams Whichever system of remuneration is used, there will need to be a mechanism within the defence unit for assessing and paying claims for remuneration. Clearly the ultimate control over payments will remain with the Registrar, but he will be greatly assisted if there is a smoothly operating system within the defence unit.

III. Public Defenders or List System Much of the current debate centers around whether a public defender or a list system should be employed. Both systems are attended by difficulties, and this report argues that the best solution is to use a combination of the two.

a. Public Defenders There is a suggestion in circulation that the defence unit should be staffed by well qualified (P4 and P5 level) public defenders. These salaried defenders would be able to undertake all cases before the court. It is commonly thought that such a system limits the costs of the defence, and assists in the advance calculation of costs. The "model" for such a system which is frequently cited is that used in trials before the Special Panels for Serious Crimes in East Timor. A large number of crippling problems were suffered by the defence unit in operation in East Timor. Many of these were due to underfunding, and it is not necessary to go into these difficulties in detail. It is possible however to outline briefly the difficulties of attempting to operate a public defender system in a situation such as this. i. Limited Choice

There is no requirement in the Statute of the SCSL that an indigent accused should be provided by the court with a free, or indeed any, choice of legal representation. However,

792 • Defense in International Criminal Proceedings concerns have been expressed that a public defender system limits the defendant's choice of counsel, and that this reduces the confidence that a defendant is likely to have in his or her lawyer. While this is undoubtedly true, it is perhaps worth noting that in many legal systems defendants who rely on the state for the funding of their cases are not permitted to choose their counsel, but must make do with assigned counsel that the state provides. However, if a defendant lacks confidence in his or her assigned counsel, it may be counterproductive to the efficient administration ofjustice. In particular, a defendant who rejects assigned counsel will be self-represented at trial. This is not only highly undesirable in terms of equality of arms; it is also likely to significantly prolong the case, and therefore to increase its costs. On the other hand, a defendant who has had some degree of choice of counsel is far more likely to have confidence in him or her.

ii. Conflict of Interest Of greater concern is the question of conflict of interest. In a limited field such as the SCSL has been set up to deal with, there is a potential risk that each defendant's case will be in conflict in some degree with every other defendant's. It is therefore more than a possibility that each of these salaried defenders would be able to act in no more than one case without coming into conflict with other cases. The mandate of the SCSL is to try those "who bear the greatest responsibility" for the conflict in Sierra Leone. This cannot be compared with a system in a state or country prosecution service, which is trying a wide range of different and unrelated cases. All defendants before this court will be tried for a similar range of offences relating to the same factual situation. Therefore the defence unit cannot be compared to a solicitor's office, which represents a number of different clients in different trials. All clients are defendants in what is broadly the same case-i.e. all are charged with being among those "who bear the greatest responsibility" for crimes committed during the conflict. The situation is more accurately comparable with that in which a number of people are being tried in relation to a major fraud, or a large drug smuggling operation. All defendants may be charged with playing different roles within the operation, and having played a part in different events at a different time. The larger case may be separated into a number of different, smaller trials in order to make the prosecutions more manageable. However, the overall case remains an interconnected whole. Lest it should be thought that this problem is technical or hypothetical, the following true examples are taken from recent trials before internationalized courts: •

Defendant A pleads not guilty to a charge. His defence is that defendant B, who is charged in relation to quite different matters, was the true perpetrator of the crime.

•

Defendant A pleads not guilty to a charge, on the basis that he did not commit the crime, but he does not know who did. In the course of his investigations, counsel for defendant A finds evidence that the crime with which his client is charged was in fact committed by defendant B.

•

Having initially entered a plea of not guilty, at a late stage in the trial defendant A pleads guilty to a number of charges. He is called by the prosecution to give

Mixed Tribunals • 793

evidence against co-defendants in his own trial, and also against defendants in other quite separate trials. This last situation has frequently arisen before internationalized courts. It is impossible to predict when it will occur, but it is safe to say that in every case where a defendant pleads guilty they become a potential witness for the prosecution in their own and other cases. This is true even if the cases have no apparent relation to each other, due to the fact that in trials of this nature the prosecution has to prove "context elements" of crimes (e.g. a "widespread or systematic attack" in the case of crimes against humanity). Further examples could be cited at length. It should be stressed that these situations are not foreseeable in advance, and can arise at any point during the trial process. This may cause trials to have to be aborted at a late stage for counsel to be reassigned. In many cases it may be impossible to reassign a case to any among the small pool of defenders in the public defenders' office. When the pool of defendants and the subject matter of offences is very limited, as it will be at the SCSL, the likelihood is that the only way in which conflict can be avoided is to have a different counsel for each defendant. If the system provides only for staff public defenders, the cost of having at least one full time staff defender for each accused is potentially enormous. iii. Change of counsel

In addition, if trials are to last for any length of time, severe problems can be occasioned when a staff defender comes to the end of a contract and leaves the mission, leaving unrepresented defendants and part heard trials. Again, this problem occurred frequently in East Timor, where it was commonplace for a defendant to have three different defence counsel working on the trial, with no hand-over process and no communication between successive representatives. The lawyer making the closing speech often had very little idea of what evidence the judges had heard, or on what basis it had been challenged by his or her predecessors. This is quite different from the situation in a prosecution office, where larger teams and the presence of overall strategists in the form of the Prosecutor and his Deputy can ensure that if a staff member leaves the mission a proper handover process can take place. iv. Cost

Those who advocate the public defender system do so principally on the basis of cost efficiency. However, if public defenders cannot take more than one case due to problems of conflict of interest, the cost situation is likely to be worse than in a system in which a list system is used. Defence counsels' salaries will have to be paid regardless of whether or not their case is in trial, and regardless of whether or not the current stage of their case occupies them on a full time basis. There are also likely to be adverse cost implications, in the form of delays and prolongation of trials, if there are changes of counsel due to lawyers leaving the mission at the end of their contracts. For these reasons, it is suggested that the employment of permanent defence lawyers may be a false economy, and may limit defence rights without providing even the cost benefits which the proponents of this system hope for.

794 • Defense in International Criminal Proceedings

b. List System The basic alternative to a public defender system is a list system, under which a defendant chooses a lawyer from a list of suitably qualified counsel. A defendant may also ask that his or her choice of lawyer be added to the list, which can be permitted subject to the lawyer fulfilling the set minimum requirements. In order to be prepared for requests made by accused as soon as possible after arrest, a list of properly qualified counsel (the criteria for which has been pre-determined) should be compiled and retained by the defence unit. This list should also include the CVs of such counsel, and should be made available to any accused who requests legal assistance. •

Remuneration under the List System

There is a variety of ways in which remuneration can be organized for defence counsel: i. Hourly Rates

The ICTs use a system of hourly rates for the remuneration of defence counsel. This broadly works in the following manner: each defendant is entitled to one lead defence counsel, one co-counsel, and up to three assistants and investigators. Lead defence counsel is remunerated at a rate of US $110 per hour, co-counsel at a rate of US $80 per hour; and assistants and investigators at a rate of US $25 per hour. There are caps on the number of hours allowed in a month at 175 hours for counsel and 100 hours for assistants and investigators. All members of defence teams are required to fill in forms accounting for hours spent and describing the manner in which this time has been used. These forms are then processed by defence unit staff who will make decisions on what payments will be allowed. There have been concerns in recent years at the wide scale abuses which have been uncovered in this system of remuneration. These have included dramatic levels of overbilling by legal teams, and the apparent inability of defence unit staff to challenge overblown claims. The real difficulty with a system based solely on hourly rates is that there is no limit or control over spending. Although claim forms are assessed by defence unit staff, the only real decisions made are as to whether the activity described falls into the categories of billable work set by the Registry. Since most counsel soon learn which activities are allowed and which are disallowed, this acts as no real cap on spending. Inefficiency is consequently rewarded: if lawyer A takes six hours to do what lawyer B does in 3 hours, lawyer A is paid twice as much for the task. Dishonesty regularly goes undetected. The phenomenon of "excessive lawyering," particularly by nationals of countries where normal legal fees of counsel are substantially lower than the ones paid by the ICTs, has been regularly observed. As a result, huge claims mount and spending spirals out of control. It should be noted that the reports of the UN Office of Internal Oversight (OIOS) into fee-splitting and related activities at the ICTs found that the problem lay not just with defence lawyers, but with tribunal staff. There was substantial evidence that there had been not only incompetence but actual dishonesty and corruption among tribunal staff in the processing of claims made by defence lawyers: ... a staff member of the International Tribunal for Rwanda, whose responsibilities included the review of the financial statements submitted by defence team members

Mixed Tribunals • 795

had repeatedly requested and received kickbacks. Cash and cheques were found by OIOS investigators to have been paid under duress by several defence team members. The evidence demonstrates that failure to make such payments, often more than $1,000, resulted in significant delays in payment authorization by the staff member. While it would perhaps be wrong to make too much of a single case of corruption, it should be noted that the same report found that the Chief of the Lawyers and Detention Facilities Management Section at the ICTR had failed to investigate evidence of inflated billings, and had further given "inaccurate and untrue information about his actions in the matter." Therefore, while it was clear that there had been some dishonesty on the part of a small minority of defence lawyers, the problem was far deeper-rooted within the system. In addition, the administrative burden of assessing and paying such claims is very substantial. Each member of a defence team submits lengthy and detailed claim forms which must be checked and assessed by defence unit staff. Payments must then be processed. This results in substantial delays in payments, and means defence lawyers have to make significant financial outlay before their claims are paid. ii. Daily Rates

A flat rate daily payment for work done can be a simpler mechanism. This can work particularly well when cases are in trial. The advantage of this mechanism is that it is cheap and easy to administer, and can result in comparatively speedy payments. Days in trial can be simply billed and paid, without the need for extended explanations and assessments. Any imbalances resulting from cancelled, extra short or extra long days work themselves out in the course of time. The disadvantages of this mechanism would be apparent if cases were not to proceed expeditiously once they had commenced. Clearly, if overseas counsel are employed, it would be very inefficient to have a system in which more than one case is running at the same time. If cases were to run, for example, alternate weeks or alternate fortnights, a daily rate for court days would no longer be fair payment, as counsel would be required to wait in Freetown for their next court day. In order to operate fairly, counsel should be paid a daily rate for each working day on which they are required to be in Freetown, whether or not their case goes ahead. This system is also difficult to administer in the pre-trial stages of a case; when time is not easily measurable in court days, the system suffers from similar disadvantages to those experienced for hourly rates, i.e. rewards for inefficiency and costs spiralling out of control. iii. BriefFees

A third option is to introduce a system of payment of flat rate brief fees for work taken on. This involves making an assessment of the value of the brief, based on its size and gravity. This could lead to a basic assessment of the hours of preparation required, and a brief fee could be calculated on this basis. One could add to this payment for pretrial work which would be needed for every trial, e.g. preliminary conference with defendant, attendance at a preliminary hearing, further conference with defendant. For example, if a unit of payment, roughly designed to reflect an hour of work, is X, calculations on a basic case could be as follows:

796 • Defense in International Criminal Proceedings

Preparation (based on page count and number/gravity of charges) 100X Preliminary Conference (and ensuing work) 30X Preliminary hearing (including preparation, conference, and complying with orders of court for preliminary motions) 50X Further conference (including final preparation for trial) 40X Trial (e.g. 6 weeks at 40 hours per week) 240X Closing arguments (e.g. 5 days preparation and 2 days in court) 56X Verdict (including conferences and day in court) 20X Brief fee: 460X Clearly many modifications and additions could be made to this rough outline, and it could be changed to apply to co-counsel and any other members of a legal team. Modifications could be made in the case of a guilty plea. A different outline could be drawn up to deal with cases on appeal. This payment should cover all drafting of preliminary motions, interviewing of witnesses and other matters, regardless of hours actually spent. Any claims made outside this would have to be justified. It might be helpful to require the judges to assist in hearing applications for payment for extra work (e.g. researching a particularly complex and unusual point of law, interviewing a particularly large number of witnesses, instructing an expert in a matter which required expert evidence) as they would be best placed to assess whether the extra work was really necessary to the case. Some counsel consulted in the preparation of this report have made the further suggestion that a defence unit should take into account initial estimates from counsel, who should be able to gauge the amount of work necessary from the brief. Payment could then be fairly tailored to the demands of a particular case. The advantage of this system would be that one would be able to assess immediately the basic cost of the case. Payments could be made as a matter of course on the completion of a particular stage of the case. Disadvantages would occur if it resulted in the system being clogged up with multiple claims for extra payments. This could be averted by adopting a realistic approach from the start towards payment: it is cheaper and more efficient not to under-assess a case at the outset. It could also be made clear (and adhered to) that extra payments were to be very much the exception rather than the rule. If it appeared over time that a particular type of activity was the subject of constant claims, it might be appropriate to review the option of including that activity in a raised brief fee. There would also be difficulties if a defendant decided to change his legal representation, as this would result in a recalculation of fees for a new defence team, and an added cost for the court. However, it should be noted that a change of defence team is likely to incur a substantial additional cost whatever the method of payment. Most international tribunals (and national courts) strictly limit the ability of legally aided defendants to change their defence teams. At the very least, it should be made clear to defendants from the outset that once they have chosen trial counsel they will not be permitted to change except in exceptional circumstances and with the leave of the court. It should

Mixed Tribunals • 797

also be made clear to trial counsel that they are committed to the case they have undertaken unless and until they are permitted to withdraw by an order of the court. iv. Combined brieffee/daily rate

It may be difficult at the outset to assess the length of any trial: representations made by lawyers at the start of cases are often inaccurate. Much depends on the particular judges in charge of the trial, the number of defendants joined in an indictment, as well as unforeseeable elements such as the availability of witnesses. It may be felt that this could best be accommodated by having a brief fee for the pre-trial stage, and a daily rate from the start of trial. The brief fee in the example given above could then be calculated as follows: Preparation (based on page count and number/gravity of charges) lOOX Preliminary Conference (and ensuing work) 30X Preliminary hearing (including preparation, conference, and complying with orders of court for preliminary motions) 50X Further conference (including final preparation for trial) 40X Brief fee: 220X Additional daily refresher payments could be made on a weekly of monthly basis in respect of days in court. It should be noted that under this system the brief fee should be assumed to cover further preparation during the course of the trial. If an unusual amount of extra preparation is required, application should be made to the court for a recommendation that there be reimbursement of an extra expense.

Control of Costs of Counsel employed under the List System Based on the experience of the ICTs, concerns have been expressed by those involved in setting up the system for the SCSL about matters relating to the conduct of defence counsel. These include, but are not limited to: fee splitting; refusing to attend hearings due to other commitments; overbilling; and creating unnecessary expenditure for travel. i. Fee Splitting

The practice which is widely believed to take place at both ICTs whereby counsel split fees with defendants-i.e. they effectively pay defendants to retain them-has been the cause of substantial concern, and has been the subject of extensive investigation by the Office of Internal Oversight. When counsel are employed and paid at levels far higher than they would be at home, there is a risk that they may be tempted to pay defendants part of their fee in order to keep a case. Defendants may also be tempted to use counsel who they know to be incompetent if they are receiving payments for themselves and their family. There is evidence that many defendants at the ICTs retain a lawyer from their home jurisdiction on this basis, who then acts as co-counsel with an international lawyer (who may know nothing about the arrangement). There is similarly evidence that defendants split fees with other members of the defence team such as investigators and legal assistants. There can never be a complete guarantee against such a practice. Evidence of such payments is by nature extremely difficult to obtain. But certain safeguards can be put in

798 • Defense in International Criminal Proceedings

place, e.g.: using salaried support staff from the defence unit, who are not dependent on a particular defendant for their position; limiting the direct contact between defendants and members of the defence team other than counsel; and providing for the payment of brief fees, rather than hourly rates, which controls the maximum paid to any one counsel. It should also be noted that a strong and competent director of the defence unit would be able to decide whether counsel should be included on the list, and genuine suspicions concerning their honesty should militate against inclusion. ii. Failure to attend hearings

It should be made clear to any counsel who wishes his or her name to be added to the list of those willing to act as defence counsel that upon undertaking a case, he or she is expected to comply with rulings of the court concerning attendance at hearings. Failure to comply is likely to result in removal from the case, being reported to his or her bar organization, and/or financial penalties. It should be noted that it is much easier for counsel to comply with court rulings if dates are set well in advance, and adhered to. For this, as well as many other practical reasons, adjournment of hearings and trials should occur only in exceptional circumstances. When counsel are being flown in from abroad to attend hearings, it is essential that they should go ahead as planned. It should further be noted that it is much easier to ensure that counsel are present for all hearings if trials are organized in such a way that they proceed continuously (possibly with a break between prosecution and defence cases if further preparation is required). It is also much more convenient for counsel, who are required to be away from their own practices for extended periods of time, if a trial continues straight through rather than stopping and starting. It will be much easier to tempt highly qualified international counsel to come and act in these cases, at what may be far lower rates of pay than they would be receiving at home, if they can be assured that trials will last for a limited time and will not be held up by constant adjournments. The experiences of counsel who get stuck in the endless stopping and starting of cases at the ICTR, which can keep them from their practices for up to three years, have severely discouraged many senior counsel from taking this kind of case. iii. Overbilling

This has been dealt with above in Section III b 1 (Hourly rates: see page 12). The argument of this report is that a system of brief fees, properly administered, should eliminate the problems of overbilling suffered at the ICTs. iv. Travel expenses

Accommodation expenses can be covered by a DSA in the same way that they are at the ICTs; presumably this should be at the same rate as the living allowance for staff members (currently $115 per day in Sierra Leone): this provides both a clear limit and an easy calculation. Travel expenses to and from court can be minimized if the proposals of the preceding paragraphs are adopted, namely appearances go ahead when scheduled, and cases are in court continuously after the start of trial.

Mixed Tribunals • 799

Travel expenses for the purposes of making investigations and interviewing witnesses will have to be assessed on a case by case basis. It should be noted that the hours spent undertaking this task should be in the first instance covered by the brief fee. It should also be noted that the estimate of the Victims and Witnesses Unit of the SCSL is currently that 85-90 per cent of witnesses will be resident in Sierra Leone. Lack of control over the investigation process at the ICTR has led to considerable unnecessary expenditure. One senior counsel at the ICTR writes: One great expenditure for the defence at the ICTR is in relation to the numbers of witnesses who are interviewed. I have heard of hundreds, and in one case over a thousand, potential witnesses being interviewed at the expense of the Tribunal. I would have thought that greater control could be exercised without hampering the fairness of the trial process. In the domestic systems of most countries, it would be inconceivable that the defence would be given free rein to travel around the world interviewing large numbers of unidentified witnesses at the public expense. There is no reason why the international courts should sanction such a practice. Again, the defence unit should require all such travel over a certain minimum amount to be justified. If there were to be applications for expensive investigations, these could be decided (if necessary in an ex parte hearing in chambers) byajudge. The above quoted counsel further suggests: If the defence could build up an information base accessible to all counsel that would save some travel expenditure. To take one example, at the ICTR counsel in various trials wish to use the archive material of a journalist. It is held at a University in the UK. It amounts to about 150 pages and the cost of travel and copying is very small for a UK based lawyer, yet the Tribunal has funded travel costing thousands of pounds for counsel to come from other parts of the world to view the material. If this type of work could be done by the defence unit and made available to all lawyers, significant savings could be made. v. General

It has been pointed out by several senior counsel at the ICTR that many of the cost problems stem from a lack of control of the case by the judges from the outset. One writes: A system similar to that operating in the UK of Plea and Direction Hearings (PDHs) would provide, from a very early stage, a clearer framework and understanding of the nature of the case. It would mean that the nature of the trial and the type of resources required would be appreciated at an early stage. If the present system of written motions was curtailed and PDHs were used as the forum for legal argument it would also have an enormous impact on the progress of the case. A lawyer contracted to work on a particular case should be expected to attend such preliminary hearings, or to send someone else to argue the point. It is within the capacity of the Registry to impose terms in the 'contract' which make it possible to ensure the attendance of all parties at designated times. [ ... ]

800 • Defense in International Criminal Proceedings If a PDH type system led to the provision of the material to be relied upon by the prosecutor to prove the case at an early stage, then the case could be properly prepared in advance of the commencement of the trial. Clearly matters can arise unpredictably after the trial has started, but as a general rule most of the work could then be undertaken in advance. It is clear that the costs of the defence are very much dependent on the costs of the trial as a whole. This is something which can only be dealt with by a complete review of the system, in particular the system with regard to pre-trial matters: a thorough and efficient pre-trial process leads to swift and efficient trials. This limits the cost of all organs of the court, including the defence.

c. Combined Public Defender and List System The suggestion which has most appeal to the Registry and others spoken to in connection with the preparation of this report combines elements of a list system and a public defender system to minimize the disadvantages of both. Under this proposal, each defendant would have a free choice of senior counsel from a list. Support for counsel would be provided by a permanently staffed defence unit. This would reduce overall costs significantly, while providing proper support for counsel working on cases before the SCSL. There is broad agreement that, while counsel must work exclusively for a particular defendant, the same is not true for legal assistants, researchers and investigators. These support staff would not be representing defendants but would be providing assistance to counsel on matters of legal and factual research. With careful management, the possibility of conflict could be minimized. The great advantage of this system is that it is capable of expanding or contracting according to the immediate needs of defendants before the court. At present, the SCSL has only one Trial Chamber. The following possible scenario illustrates the cost benefits of a mixed system. Trial 1 lasts 5 months and has 8 defendants: under either system, 8 counsel are employed to represent these defendants. This is followed by Trial 2, which lasts 3 months and has 2 defendants. Under the public defender system, the 8 counsel are still employed under their staff contracts, but only 2 are in court. Under the list system, only 2 counsel are employed. In the first scenario, the court is paying for 8 counsel over an 8 month period: this is a total of 64 monthly payments for counsel. In the second scenario, the court is paying for 8 counsel for 5 months, and 2 counsel for 3 months. In the same 8 month period, there are only 46 monthly payments for counsel. This simple example illustrates the need for flexibility in the system. In a limited system such as this, there will not be a constant need for the same number of counsel. There will be times when a large number of counsel are required, and other times when only a very few are needed. The defence unit will operate far more cost-efficiently if it is able to expand and contract at very short notice to accommodate a number of different situations. At all times, there would be a skeleton defence unit in operation consisting of permanent staff employed to run the unit and provide representation as duty counsel at short notice. This would mean that the unit was able to act quickly and efficiently to deal with any situation.

Mixed Tribunals • 801 This flexibility, if properly administered, should provide substantial cost benefits while still allowing defendants to have their cases conducted by their choice of counsel. While there is still room for negotiation as to how exactly this division will be made, the following is a proposal for how the projected defence unit could be staffed and operated.

IV. Defence Unit The Defence Unit should be as small as possible consistent with carrying out an efficient operation. It should be borne in mind that there is currently only one trial chamber of the SCSL. Therefore, unless there are to be cases running alongside each other there can only be one case in trial at anyone time. It is likely to be some months before any cases are in appeal (although there may be interlocutory appeals in the interim). Staffing of the unit, at least in the initial stages, should be undertaken bearing this in mind. It is likely that the requirements for legal research, interpretation and investigation will be limited at the outset. However, there is a suggestion that, under the guidance of the director of the defence unit, research and investigation could take place into general legal and factual matters, the results of which would be of use and could be made available to all defence counsel. In order to ensure that representation can be secured for all defendants at short notice in respect of arrest, early appearances and in relation to matters such as bail, it is proposed that there should be three junior duty lawyers. These lawyers would be able provide representation to defendants at short notice, and to deal with the initial conduct of the case, but would not deal with matters of substance relating to any particular trial. Under the management of the director, they would also be able to assist with the other work of the defence unit with regard to general research and investigations. Clearly it is very difficult to make any concrete proposals for staffing requirements before there is any indication from the prosecution as to how many indictments and cases there are likely to be, over what timescale. The overall number of defendants, and the number of multi-defendant cases, will affect the requirements of the unit. For the present, it is desirable to begin by staffing the unit with the minimum requirements, with flexibility as to whether expansion is required in the future. Based on discussions with the Registry, it is proposed that the following staff structure is appropriate from the outset: •

Director/Public Defender (D2)

•

Deputy Director/Public Defence Adviser (P4)

•

(3) Duty lawyers (P2)

•

(3) Investigators (P2) N.B. These posts may not be required to be staffed until indictments are issued and lead counsel are employed

•

(3) Interpreters

•

(2) Legal researchers (Interns)

•

Financial Administrator

•

Administrative Assistant

802 • Defense in International Criminal Proceedings It would be possible for the defence unit to deal with matters such as training. It would be appropriate for it to assist in defence aspects of outreach and public education, which is currently undertaken by the prosecution, the Registry and NGOs. It could also deal with residual matters which have been raised, for example security issues for defence lawyers. This unit will be the principal point of contact between counsel and the Registry. The huge majority of matters relating to counsel should be able to be resolved at this level. It will therefore need to be run by a person employed at a high level.

Director/Public Defender The defence unit would be under the control of a Director. Extensive discussions in the Registry have taken place over this, and a post is to be advertised at D2 level. This would provide for the employment of a person of real quality and experience to head the defence unit, who would carry sufficient weight to ensure that defence interests were properly represented within the court system. The success of the plan for the defence unit will substantially depend on the Director. For this reason, although there is some feeling of urgency, careful consideration should be given to a wide range of candidates before any appointment is made. The SCSL is still at an early stage (at the date of writing this report no defendant has yet been indicted, arrested or even identified as a suspect). In any event, it is of the utmost importance to ensure that the right person is chosen for this role. While any problems arising from delay in filling this post can be remedied, the wrong choice of applicant cannot. If any situation arises in the meantime, the Registry is well equipped to deal with it on an interim basis. The Director should ideally be a person who has extensive experience of high level criminal trials (either as a prosecutor or as defence counsel), as well as experience of heading and running an organization-either a legal aid organisation, a lawyers' or solicitors' firm or a prosecution office. Although experience of international criminal law may be useful, this should not be over-estimated. There is still a very small pool of lawyers who have worked in this field, and choice should not be restricted by limiting selection to these candidates. It should not be assumed that those who are already in the system are those who are best qualified to be there. This person should be qualified to appear in court in serious cases. However, it is managerial qualities which will really be required: it is not anticipated that he or she would be able to take part in the substantive trials handled by the office. Not only would this detract from other duties, but, more importantly, there would be a serious risk of conflict of interest. The difficulties of conflict with regard to counsel have been discussed extensively above. They apply a fortiori to the director of the unit. If this person were to act for defendant A, there would be severe difficulties if he or she were also to have a principal role in providing and organizing a defence team for defendant B. The person chosen will be responsible for the set up and organization of the unit. He or she will compile and maintain a list of qualified counsel; ensure that counsel on the list comply with a set of mandatory minimum conditions; ensure that information is disseminated to defendants; receive and answer the concerns of all defendants with regard to their defence teams and the practical conduct of their trials; assess claims for legal assistance made by defendants; institute systems for payment of counsel; assess appropriate levels for brief fees; control payments; and advise staff on all relevant matters.

Mixed Tribunals • 803 The Director could be used as a resource for lead counsel in terms of advice concerning international and national law, the applicable rules, codes and directives of the court, and general matters of factual and legal assistance to the conduct of trials. The director will also have an important role in liasing and co-ordinating activities with the other organs of the court. Matters will run far more smoothly if a good relationship can exist between prosecution, defence and chambers, as well as with the Registry. Trials can be greatly prolonged by lack of understanding and co-operation between prosecution and defence in particular. One of the principal advantages of this system is that it provides a channel of communication between defence and prosecution. The director should be able to represent and stand up for defence interests, while ensuring that a good working relationship is maintained with the prosecution. For all these reasons, the choice of the correct person for this post is crucial to the success of the system.

Conclusion After extensive consultations, the recommendation of this report is that a defence unit is established under the control of a Director. It should operate a combined public defender/list system under which a small staff would service the needs of defendants and their chosen counsel. Facilities for legal research and investigation would be shared to reduce cost, while separate counsel would represent individual defendants in order to minimize conflict, maximize choice and allow for flexibility in the defence budget according to changing needs. Counsel would be paid under a system of brief fees and refreshers, in order to avoid problems of overbilling and spiralling defence costs. This system would be unlike any other operated by any international or internationalized court. It is hoped that by benefiting from the experiences of other systems, the problems experienced under these systems can be avoided.

8.3.5.

COMMENTARY

8.3.5.1. 8.3.5.1.1.

Office ofthe Principal Defender (OPD) Legal Basis in Statute and RPE

The structure of the defense role in the Court does not appear to have been discussed at the time of the creation of the Statute of the Court. Article 17 contains the basic fair trial guarantees present in international human rights treaties, but makes no provision for the implementation of those guarantees. A number of options were considered in order to provide for the employment of defense lawyers, the structure of the Defense Office and also the precise role of the Principal Defender. Consideration was given as to whether, with a limited amount of trials expected, it would be possible to directly employ a number of lawyers who would then be responsible for the defense of all those before the Special Court, the so-called "public defender" system used for ordinary criminal proceedings in various countries around the world and utilized in East Timor.s"? There would be obvious benefits in terms of costs, but potentially serious con279 See Sylvia de Bertodano, Report on Defence Provision for the Special Court for Sierra Leone, No Peace Without Justice, Feb. 28, 2003, available at www.specialcourt.org/SLMission

/NP~Docs/DefenceReportSdBFEB03.html.

804 • Defense in International Criminal Proceedings cerns as to the quality of representation and potential conflicts of interest. The alternative was to employ independent counsel from a list of lawyers approved to undertake the role. In January 2003, the Management Committee reached the conclusion that the Defense Office should be headed by a principal defender, with a defense adviser and three duty counsel, together with administrative support. In February 2003, the first two duty counsel were appointed, both Sierra Leone nationals, with the third arriving in March 2003,just as the initial arrests were made on March 10. The system was incorporated into Rule 45 of the Rules of Procedure and Evidence by which a "defence office" would be charged with ensuring the rights of the defendants. Rule 45 creates the role of the principal defender, and requires the Defense Office to deal with pre-trial detention, ensure that counsel are assigned to represent the individual defendants and provide those counsel with adequate facilities in the preparation of the defense. The title of the office was later changed to the "Office of the Principal Defender." In early 2003 an acting chief of the Defense Office was appointed on a three-month contract, with the aim of setting up the office, with a further acting principal defender following in post after that. 280 The principal defender was appointed in April 2004.

8.3.5.1.2.

Duty Counsel

The Office of the Principal Defender employs three "duty counsel" who are qualified in Sierra Leone. They were appointed at an early stage, and were consequently able to act in the initial representation of the accused. Duty counsel were therefore involved in substantial challenges to the operation of the procedural rules, in particular to the operation of the rules on bail to the extent that they differed from the previous rules at the IClY and ICTR, and a very novel application that suggested that a writ of habeas corpus was one that could be considered by the Court.s'" The OPD also has a role to represent the defendants at stages where, for whatever reason, they are without representation. Thus, where a defense team either withdraws due to professional difficulties or their services are no longer required, the OPD is able to stand in. Due to the extent of the papers involved in the case and also concerns as to potential conflicts of interest, duty counsel have not been required to have a knowledge of the facts of the cases. However, there have been various occasions when assigned counsel has been unavailable to attend court and duty counsel have been able to step in, preventing unnecessary adjournments, or have played a larger role in proceedings, even when assigned counsel is also present in court.

280 In a decision of May 6, 2004, the Court held that as there was no provision within the rules for someone to exercise the power of the principal defender in an "Acting" capacity, any such decisions were therefore ultra vires, which would appear to be a blow to the concept of the staged implementation of the court structures. Brima-Decision on Applicant's Motion Against Denial By the Acting Principal Defender to Enter a Legal Service Contract for the Assignment of Counsel, SCSL-2004-16-PT-5276-5326, available from the Special Court Press and Public Affairs Office. 281 Ruling on the Application for the Issue of a Writ of Habeas Corpus by the Applicant, July 22, 2003, SCSL-06-PT-05-1152-1168.

Mixed Tribunals • 805 The detention facility is on the same site as the court, which means that it is easy for duty counsel to visit the detainees on a daily basis, and to report back to the lawyers on any difficulties. This has been extremely beneficial in maintaining confidence during difficult periods and dealing with the problem of lawyers from abroad maintaining contact with their clients. The OPD is also mandated to advise on detention issues. Again, the proximity of the detention facility and the continuity of representation means that the OPD can play an active role in negotiating with the detention staff in order to ensure that no problems arise in the treatment of the prisoners.

8.3.5.1.3.

Assignment of Counsel

The OPD maintains a list of those counsel interested in appearing before the court who fulfill the requirements of excellence in either domestic criminal law or international criminal law. A decision was made at an early stage that each defendant should be represented by a team of lawyers, who would include both a Sierra Leonean lawyer and also an international lawyer. They would be joined by a legal assistant and an investigator. This would also assist in creating a legacy from the Special Court, by providing local lawyers with a detailed knowledge of international criminal law that they had not previously possessed. 282 The OPD has adopted a contract system of payment, as utilized in the IClY from January 2005. Under this system, defense counsel are required to agree with the OPD the number of hours that will be required to work on particular stages of the preparation and presentation of the case, in pre-trial, trial and post-trial phases. The lawyers have to produce a detailed task list, identifying which of them will achieve which individual task and by what date. Negotiations are then conducted as to the amount of hours that should be necessary and the hourly payment that will be made.

8.3.5.1.4.

Legal Support

The OPD has a role in presenting arguments before the Plenary Session of the Court as to any amendments to official documents that are to be produced, such as the Rules of Procedure and Evidence (RPE). The OPD has also drafted a Code of Conduct for the Guidance of Counsel appearing before the Court. The Office is also able to assist with legal research in detailed areas of law and procedure, both through the staff and also by the provision of legal research teams in universities around the world. Indeed, the defense teams are required to make use of this service and will not be paid for hours that are spent on doing research that has already been done for other defense teams.

282 For a discussion of some of the early activities of the Defense Office seeJohn R.W.D. Jones, Claire Carlton-Hanciles, Haddijatou Kah-Jallow, Sam Scratch & Ibrahim Yillah, "The Special Court for Sierra Leone: A Defence Perspective" 2 J. Int'l Crim. Just. 211-30 (2004).

806 • Defense in International Criminal Proceedings

8.3.5.1.5.

Administrative Support

Rule 45 requires the OPD to ensure that there are adequate facilities for the preparation of the defense. In basic terms this means that the OPD provides litigation support for the defense teams. This means the provision of office space, computing facilities and the assistance that can be given by duty counsel and other staff in the office. The OPD also has a role in the recruitment and training of investigators. While the choice of individuals who can undertake investigations for each team is clearly a choice of the defendant and the lawyers involved, under the contract system the candidates are required to have certain qualifications before they will be approved for payment. The OPD also conducts training sessions for defense investigators.

8.3.5.1.6.

Legacy

The OPD has organized training programs together with other agencies such as the Bar Human Rights Committee of England and Wales. These have included detailed courses on international humanitarian law early on in the life of the Court, which enabled members of the Sierra Leone bar to enhance their knowledge of this area of law. The Office has also undertaken advocacy training with law college students and members of the junior bar. There have been programs at the University of Sierra Leone on human rights, and also the provision of training on ethics. Other programs that are relevant to the legacy of the Special Court include explaining to the people of Sierra Leone why it is that the Special Court cannot impose the death penalty for "those who bear the greatest responsibility," while it still exists within the domestic legal system. The Office has regular meetings with human rights groups and members of civil society to ensure an understanding of the work of the Court and to participate in individual programs.

8.3.5.1.7.

Outreach

The Registry of the Court has created an Outreach Unit, which has been able to design a program of sensitization to the work of the Court. This has involved producing a booklet in the local languages explaining the work of the Court, using local radio stations to have discussions about the Court and also having meetings in the local communities. Early outreach events focused on the prosecution, but outreach events organized by the OPD have been able to explain to the people of Sierra Leone important concepts such as the burden and standard of proof, the protection that is available to defense witnesses and the way in which defense lawyers are independent from the Court.

8.4. DEFENDING DETAINEES AT GUANTANAMO BAY* The United States began a military operation in Mganistan on October 7, 2001, shortly after the September 11 attacks on the World Trade Center and the Pentagon in New York City and Washington, D.C. The purpose of the operation was to capture or kill Osama Bin Laden, leader of the worldwide terrorist network, AI Qaeda, which was

*

Section 8.4 was written by Richard J. Wilson.

Mixed Tribunals • 807 believed to have been responsible for the attacks in the United States. It also targeted Bin Laden's AI Qaeda supporters and the Taliban government of Afghanistan, which had sheltered Bin Laden and his followers since the mid-1990s. A month after the military invasion of Afghanistan by U.S. forces, the President issued an order for the capture and detention of those he broadly designated as "enemy combatants," and the U.S. military base at Cuantanamo Bay, Cuba soon began to receive detainees. Many who arrived in those first days are there today, publicly unidentified, virtually incommunicado, without formal charges and with few prospects for release. This section is about the defense of those detainees in the U.S. courts.P" The section will first provide an overview of the detainees. It will then review the litigation on behalf of the foreign detainees that has unfolded since the Supreme Court's trilogy of decisions dealing with detained enemy combatants inJune 2004, with particular focus on the role of defense counsel in the proceedings. 284 It will also describe the government's creation of what were called Combat Status Review Tribunals (CSRTs) in the immediate wake of the Supreme Court's decisions, as well as the recently operational Annual Review Boards (ARBs), and the role of counsel in each of these legal contexts. Finally, the section will review the work of defense counsel before the few military commission trials that were begun before all such trials were suspended by order of a federal judge in November of 2004. 285

8.4.1. Overview ofthe Detainees in Guantanamo Bay and Their Legal Situation Since the time of the opening of what was initially called Camp X-Ray and later became Camp Delta, the names and countries of origin of the occupants of those camps have never been made public by the military, and some 450 detainees there remain officially unidentified as of early 2005. 286 Some have been detained on the base since it opened, making their stay there longer than three years without access to counsel or the courts of any country. The detainees are permitted only limited mail access with the outside world-immediate family and counsel. Initially, messages were available only through the International Committee of the Red Cross (ICRC), which has continuously but not publicly monitored conditions of detention on the island. The 283 Professor Wilson is counsel of record in one of the detainee cases, that of Omar Khadr, a Canadian citizen captured at age 15 in Afghanistan and subsequently sent to Guantanamo in October 2002. He took the case as volunteer counsel in July 2004, on behalf of the International Human Rights Law Clinic at American University, Washington, D.C. 284 Although counsel in the federal district court are technically plaintiff's counsel in the habeas corpus proceedings, I will use the term "defense counsel" throughout for consistency's sake, and because the role is akin to that of counsel defending against government abuses. 285 The section will not address the broader and controversial questions of the Bush Administration's declared "war on terror" and its implications for the application of international humanitarian or human rights law. That policy and others have been the subject of an immense academic literature. See, e.g., Diane Marie Amann, "Cuantanamo," 42 Colum. J. Transnat'l L. 263 (2004);JordonJ. Paust, "Post-9/ll Overreaction and Fallacies Regarding War and Defense, Guantanamo, The Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commissions," 79 Notre Dame L. Rev. 1335 (2004); Gabor Rona, "'War' Doesn'tJustify Guantanamo," at the Web site of the International Committee of the Red Cross, at http://www.icrc.org/Web/Eng/ siteeng) .nsf/html/SWVFB4. 286 The Washington Post newspaper compiled a list of some 367 detainees from unofficial sources. "Names of the Detained in Guantanamo Bay, Cuba," at http://www.washingtonpost.com/wp-srvI nationlguantanamo_names.html.

808 • Defense in International Criminal Proceedings government asserts that the detainees are being held both because of the threat of their return to hostilities and because they continue to provide useful intelligence to the United States. 287 There are believed to be some 550 detainees from more than 40 countries around the world in ongoing detention at Cuantanamo. Their treatment within the camp structure has to do with the perceived risk of danger posed by the detainee, as well as their perceived level of cooperation with their interrogators: the more cooperation, the less stringent the security measures taken against the detainee. 288 More than 100 detainees have been released, most without charges or detention by their home countries on arrival there. There have also been more than 40 attempted suicides by both detainees and staff at the camp. Reports of torture and severe abuse of the detainees continue to emerge, but the government continues to deny any serious mistreatment of detainees at the facility. The military recently has decided that a more permanent facility will be built for the detainees, thus indicating its intent to treat the detainees as long-term, perhaps life, prisoners. 289 There are over 100 detainees whose families or friends have found them in detention at Cuantanamo Bay, and who have taken legal action on their behalf. For those few, legal action was begun in the U.s. courts almost immediately after the first detainee arrivals. Those legal actions were unavailing until the U.s. Supreme Court reviewed a group of cases with the common question of the meaning of enemy combatant status, as applied to citizens within the United States and foreign nationals detained in Cuantanamo. The Court rendered its decisions in the Rasul,29o Hamdi 291 and Padilla292 cases in June of 2004. The Rasul decision dealt with a group of foreign detainees at Cuantanamo Bay, while the Hamdi and Padilla decisions dealt with individual U.S. citizens held as enemy combatants on the U.S. mainland. Since those decisions, Yasar Hamdi has been released and returned to his native Saudi Arabia without charges,293 and a federal judge has ordered the release ofJose Padilla from custody.294 The government is appealing the decision.

287 Kathleen T. Rhem, "Guantanamo Detainees Still Yielding Valuable Intelligence," at http://www.defenselink.mil/news/Mar2005/20050304_88.html; Kathleen T. Rhem, "Government Attorney: Detainees Don't Deserve POW Privileges," at http://www.defenselink.mil/news /Mar2005/20050304_93.html (asserting that detainees are held "for reasons of national security and military necessity, not because they're being punished"). 288 Kathleen T. Rhem, "Detainees Living in Varied Conditions in Guantanamo," at http://www.defenselink.mil/news/Feb2005 / n02162005_2005021604.html (asserting that there are 545 detainees there as of February 2005, and that the detainees are placed in one of four levels of security within the camp based on how well they comply with camp rules, not how they cooperate with their interrogators). 289 Carol Rosenberg, "New Guantanamo Prison Funds Sought," Miami Herald, Feb. 18, 2005 (supplemental budget request from Administration requests $41.8 million to build "a longterm prison" at Guantanamo Bay. 290 Rasul v. Bush, 124 S. Ct. 2686 (2004). 291 Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). 292 Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004). 293 Joel Brinkley, "From Afghanistan to Saudi Arabia via Guantanamo," N.Y Times, Oct. 16,2004. 294 Padilla v. Hanft, 2005 WL 465691 (D.S.Ca., Feb. 28, 2005).

Mixed Tribunals • 809 This section focuses on those foreign nationals who are still detained at Cuantanamo with cases pending in the u.s. courts at the time of this writing. Because of the unique designation of these individuals as enemy combatants by Executive Order, their cases are neither totally criminal nor totally military, but occupy a legal space that is somewhere between the two. The lawyers "defending" those individuals therefore do not benefit from the protections of the u.s. Constitution with regard to the right to counsel for those formally accused of a crime. There are, however, criminal charges pending against a very small group of detainees who face the potential of trial before military commissions designed especially for enemy combatants, and not governed by u.s. military law as set forth in the Uniform Code of Military Justice. This small group does have both military and civilian defense counsel, but a recent decision by a federal judge in Washington, D.C. has stayed the military commission trials, which the government has appealed to the higher courts. Both groups of lawyers operate with extreme limitations on the sharing of information with their clients, each other, potential witnesses and the public because of government concerns for national security during the ongoing war on terrorism. These limitations are formally expressed through the issuance by the federal court of a protective order delineating the circumstances in which classified or protected information can be made public. The lawyers themselves have had to obtain government security clearances, and information sharing beyond those with appropriate clearances is extremely limited as to both the content of communication and the physical place of its disclosure. All of these limitations on the right to counsel and the courts have made these cases unique and challenging for work as defense counsel.

8.4.2.

Federal Court Litigation After the Supreme Court Decision in Rasul

The Supreme Court decision in Rasul v. Bush found that the Guantanamo detainees could seek review of their detention by means of the writ of habeas corpus, and that venue lay not where they are detained but where their custodians were; that is, venue was with the federal court of Washington, D.C., where all relevant federal officials hold office. Because several individual detainee cases had been consolidated for disposition in the Supreme Court, each of those cases was assigned to a different judge after the high court sent the cases back. The Center for Constitutional Rights, an activist legal organization in New York City, which had gathered the names of many detainees who were awaiting access to the courts, sought volunteer lawyers to take new cases into the Washington federal district court. New cases were filed on behalf of more than 60 detainees, all of whom were now represented by counsel, mostly volunteers from law firms who assume the costs of the litigation themselves. Counsel immediately began efforts to gain access to their clients, access which had been uniformly denied to any detainee by the government for as long as two years at that time. Over time, additional detainees have been added to the initial group that filed in court, and a 'John Doe" petition was filed by the Center on behalf of all of the unnamed detainees whose identities and particular facts are not yet known publicly.295 The government has opposed these petitions with a combination of posthoc administrative procedures that attempt to meet the concerns of the Supreme Court and aggressive litigation to continue to prevent access to the outside world by the prisoners. Each of these government strategies will be discussed in turn. 295 John Does 1-570 v. Bush et al., Order Granting Petitioners' Motion to Proceed with a Petition for a Writ of Habeas Corpus Using Fictitious Names, D.D.C. Feb. 10,2005.

810 • Defense in International Criminal Proceedings

8.4.2.1.

The Government's Administrative Structural Response: The CSRT and ARB Processes

Within days after the decision by the Supreme Court, the Deputy Secretary of Defense, Paul Wolfowitz, issued a directive calling for the creation of Combat Status Review Tribunals, or CSRTs.296 This newly created procedural device was adopted in place of the traditional rules governing the determination of status of persons captured on the battlefield by a "competent tribunal," under rules articulated in both the Third Geneva Convention and existing U.S. military regulations. 297 Those military regulations had been fully operational before the detentions at Cuantanamo, and they continue to be applied without difficulty during the U.S. military occupation of Iraq. They are said to be inappropriate in the Cuantanamo context because there is no doubt as to the status shared by the detainees there; government lawyers assert that the President's declaration settles that doubt. Moreover, because of the broad definition of enemy combatant used in both the Executive Order and the CSRTs, foreign enemy combatants also may have come to Cuantanamo by means other than their capture on the battlefield in Mghanistan. The detainees' lawyers argue that the vague and overbroad definition of enemy combatant is the very reason why the President's designations lack legal consistency and coherence. The CSRT process purports to determine whether an individual is or is not properly designated as an enemy combatant. The initial order creating the CSRTs, however, asserts that all detainees at Cuantanamo Bay have already been determined to be enemy combatants, thus casting doubt on the neutrality of the entire subsequent process. 298 Nonetheless, at the end ofJuly 2004, the Department of Defense issued its rules for the operation of the CSRTs. The CSRTs rules gave evidence of enemy combatant status a rebuttable presumption that it is "genuine and accurate," even prior to the commencement of the proceeding, thus casting further doubt on the neutrality of the process. The CSRTs were panels of three commissioned officers who reviewed the evidence, both classified and public, suggesting that the detainee was or was not appropriately designated as an enemy combatant. While the detainee was allowed to be present for some of the process, he could be excluded during the consideration of classified material, and witnesses on his behalf need only be produced if they were "reasonably available," a standard which resulted in the denial of many potentially exculpatory witnesses. The tribunal's determination of enemy combatant status was by majority vote. The only 296 Deputy Secretary of Defense, Memorandum for the Secretary of the Navy: Order Establishing Combat Status Review Tribunal, July 7, 2004. 297 Existing military regulations contain extensive provisions regarding the treatment of enemy prisoners of war, including issues as to the proper determination of their status. U.S. Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Oct. 1, 1997. Those regulations, in Article 1.6(a), make specific reference to the Geneva Conventions, thus acknowledging U.S. recognition of obligations under those treaties. The provision states, in relevant part: "In accordance with Article 5, GPW [Geneva Convention III, on Prisoners of War], if any doubt arises as to whether a person, having committed a belligerent act and been taken into custody by the US Armed Forces, belongs to any of the categories enumerated in Article 4, GPW, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." 298 The relevant language of the Wolfowitz order creating the CSRTs is in paragraph (a), where it is stated: "Each detainee subject to this order has been determined to be an enemy combatant through multiple levels of review by officers of the Department of Defense."

Mixed Tribunals • 811 appeal from the tribunal's decision is to the director of the CSRT process, the convening authority.299

8.4.2.2.

The Right to Defense in the CSRTs

Under the rules, each detainee was provided with a personal representative, a commissioned officer with at least top secret security clearance who was to advise the detainee before and during his CSRT hearing. No other legal representation was allowed in the process, even if the detainee was represented by counsel in a related proceeding. The personal representative had no confidential relationship with the detainee, and had to advise the detainee that the representative "may be obliged to divulge [information provided by the detainee] at the hearing." The detainee had no choice to reject the personal representative, but only to decline to participate at all in the CSRT process, a choice that was exercised by a large number of the detainees.

8.4.2.3.

Court Rulings on the Validity ofthe CSRT Process

Compliance by the CSRTs with domestic and international precepts of due process and a neutral and fair hearing has become a central issue in the ongoing federal court litigation on behalf of the detainees. One judge, as noted below, found that "the procedures provided in the CSRT regulations fail to satisfy constitutional due process requirements in several respects."300 Another, who dismissed the detainee cases before him on motion by the government, found that the Army regulations relating to determination of prisoner of war status did not give rise to a private cause of action, and therefore did not reach the question of whether the CSRT process was adcquate.w' The CSRT process has been completed for 487 detainees as of the beginning of March of 2005. Of those, 465 detainees, or 95 percent, were determined to be enemy combatants, while only 22 detainees were found not to be enemy combatants, some as long ago as September of 2004. As yet, only one or two of those individuals has been released from custody.302

8.4.2.4.

The Ongoing Annual Review Board Process

The government also devised a second process, Annual Review Boards, or ARBs, as a means for annual review of enemy combatant status, in which the standard is whether the enemy combatant "presents a continuing threat to the U.S. or its allies in the ongoing armed conflict againstAl Qaeda and its affiliates and supporters (e.g. Taliban) and whether there are other factors that could form the basis for continued detention (e.g., the enemy combatant's intelligence value and any law enforcement interest in the detainee)." Like the CSRTs and military commissions, the three members of an ARB

299 Secretary of the Navy, Memorandum on Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base, Cuba, July 27, 2004. 300 In re Guantanamo Cases, 2005 WL 195356 (D.D.C. Jan. 31, 2005), at 18. The discussion of the flaws of the CSRT process is extensive, at pages 18-24. 301 Khalid v. Bush, 2005 WL 100924 (D.D.C.Jan. 19,2005), at 10. 302 Combat Status Review Tribunal Summary, Mar. 1, 2005, available at http://www .defenselink.mil.

812 • Defense in International Criminal Proceedings

panel are military officers, one with experience in the field of intelligence. The panel's decisions include continued detention, transfer or release. The ARBs are otherwise so administratively complicated that a full-page chart was necessary to explain the various steps in the process, which need not be rehashed here. 303 The ARBs began to operate in late 2004, and, as of the time of this writing, only about 60 such reviews have taken place, all in secrecy and without the benefit of counsel, even if the detainee is otherwise represented. Although the annual review hearings are staggered throughout the year, the detainees were required to submit all favorable evidence supporting their reclassification within the first month of operation of the ARBs, without provision that the evidence could be supplemented thereafter.w'

8.4.2.5.

The Government's Litigation Response: The Protective Order, National Security Limitations and Other Limits on Defense Counsel

Almost as soon as the litigation in federal court began, after remand from the Supreme Court in July of 2004, the government sought to limit access by counsel to unmonitored visits with their clients, and to impose other onerous restrictions on communication with clients, co-counsel and the press or public. Government lawyers offered potential compromises of national security as their primary concern, and limitations on the right to counsel for alleged enemy combatants as an alternative ground. The litigation soon took shape around the tension between what defense counsel believed to be their unfettered right to full and open communication with their clients, particularly when those individuals had been subject to continuous interrogation and were likely to be extremely suspicious of any new visitor purporting to act in the detainee's interests.

8.4.2.6.

The Federal Court Rejects the Government's Argument for Monitoring of Defense Counsel Visits With Detainees, but Imposes a Protective Order

The first important decision on the issue was in At Odah v. Bush. 305 A federal judge held, among other things, that the right to counsel applied to the detainees, and that visits to certain detainees by their counsel could not be subjected to real-time video and audio monitoring, nor could the government engage in "classification review" of notes from attorney-client meetings of this limited group. The government attempted to justify the monitoring because the "detainees would 'attempt to use their [unknowing] counsel to engage in communications that would facilitate terrorist acts."'306 The court rejected this justification: "The Government has not presented the Court with law suf303 Department of Defense, Designated Civilian Official Administrative Review of the Detention of Enemy Combatants at u.s. Naval Base Guantanamo Bay, Cuba, Memo on Implementation of Administrative Review Procedures, Sept. 14, 2004, available at www.defenselink .mil. 304 Alexandra Olson, "Alleged Taliban Gets Guantanamo Hearing," Seattle PostIntelligencer, Mar. 16, 2005 (indicating that the hearing for the detainee was the 60th to go to a review board, and that the military previously had provided the press with no information on the process since it began in December). On the requirement of submission of evidence prior to February 1, 2005, for all hearings, regardless of when held, see electronic mail from Commander Teresa McPalmer, Legal Advisor, Office for the Administrative Review of the Detention of Enemy Combatants, to all Habeas Counsel, Dec. 28, 2004. 305 Al Odah v. United States, 346 F. Supp. 2d 1 (D.D.C. 2004). 306 Id. at 4, n.4.

Mixed Tribunals • 813 ficient to sustain their proposed inroads into Petitioners' relationship with their attorneys. The privilege that attaches to communications between counsel and client has long held an exceptional place in the legal system in the United States. . . . The Government's proposal that it monitor these meetings and conduct a classification review of meeting notes flies in the face of the foundational principle of the attorneyclient privilege."307 This decision was followed by that of a second judge who, at the government's request, decided several issues common to the large group of first petitioners. In re Guantanamo Detainee Cases,308 decided on November 8, 2004, used a broad protective order to require that the group of defense lawyers meet with a series of national security restrictions. Among other impediments, it required security clearances for all counsel and staff; review of classified documents only in a secure facility located in Washington, D.C.; and tight restrictions on client contact and visits at Cuantanamo, Classified information can not be disclosed to a detainee-client, even if it relates to the grounds on which the detainee is held. These restrictions make visits and communication with clients extremely cumbersome and slow, and imposed another layer of complex filing requirements on defense counsel.

8.4.2.7.

Other Early Procedural Issues

Two other early procedural decisions were setbacks for defense counsel as well. First, in August of 2004, a judge imposed tight limitations on discovery in the habeas corpus context, quashing a request by one group of detainees to take the deposition of the deputy commander at Cuanranamo.P? Second, in October, in the case of a Canadian citizen and child of 15 at the time of his detention in Mghanistan, another federaljudge denied an emergency motion for independent medical examination of the detainee. The judge held that the standards for mental competency of a detainee to assist his counsel are not applicable to the habeas corpus context, and that, in any event, the detainee had not submitted sufficient evidence to justify independent intervention.v" Neither decision was appealed.

8.4.2.8.

The Government's Litigation Response: Consolidation ofCommon Legal Issues and Competing Court Decisions

The biggest concern for defense counsel during the following months came in the form of a government motion to dismiss all consolidated cases for failure to state viable legal claims. Despite the decisions in Rasul and Hamdi, the government persisted in arguing that those decisions had only resolved the issue of whether the federal courts had jurisdiction of the cases in question, and not whether the petitioners possessed any legal rights that could be enforced in the U.S. courts. The government reargued issues as to the territorial reach of habeas corpus in Cuba and the application of the U.S. Constitution and treaties to the detainees. In each case, as it had in the U.S. Supreme Court six months earlier, the government denied that U.S. or international law applied in Cuantanamo Bay. Id. at 10, 11. In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174 (D.D.C. 2004). The judge hearing the consolidated cases was the Honorable Joyce Hens Green, who came out of retirement for six months to hear the common issues. 309 Al Odah et al. v. United States, 329 F. Supp. 2d 106 (D.D.C. 2004). 307 308

814 • Defense in International Criminal Proceedings

In January of 2005, two judges reached opposite conclusions on the legal issues presented. First, Judge Leon agreed with the government and dismissed the detainee's petitions.v ' Two weeks later, Judge Green held the opposite, denying the government's motion to dismiss.I'? However, in the wake of her decision, due to the conflict within the district and the potential impact of the resolution of these issues on the remaining issues in the litigation,Judge Green stayed all proceedings in the 11 cases consolidated before her pending resolution of the issues on appeal.313 At the time of this writing, the cases are pending in the federal Court of Appeals for the District of Columbia, and appear likely to proceed to the u.s. Supreme Court yet again before the detainees will eventually, if ever, have their day in court.

8.4.3.

Military Commission Trials in Guantanamo

Military commission trials, which were the primary reason for which the detention facility at Cuantanamo Bay was created, have been relegated to a second-class legal status behind the more active issues presented in the habeas Iitigation.v! Thus far, only 15 detainees have been declared eligible for military trials, while only two began their military commission trials at the base, trials that were abruptly stopped by order of a federaljudge in November of 2004. However, these trials may well be on only temporary hold, and may re-emerge as the focus of the legality of detention at Cuantanamo. The use of military commissions to try enemy combatants for alleged war crimes has been one of the most criticized elements of government policy in the wake of the September 11 attacks in the United States. In the litigation dealing with detainees, however, the issues regarding military commissions were relatively unimportant in the landmarkJune decisions of the U.S. Supreme Court. This section will briefly review the structure and operation of the military commissions operating at Cuantanamo with particular focus on the assignment and work of defense counsel.

8.4.3.1.

Military Commission Structure

Although there have been military commissions in U.S. history, this commission process was sui generis, designed specifically for the unique situation of enemy combatants who, according the Administration, fell outside of the protections of both the law of armed conflict and the traditional criminal process, which were felt by the executive branch to provide protections that the detainees "don't deserve."315 The process sketched by the President in his November 2004 order was supplemented by a more

O.K v. Bush, 344 F. Supp. 2d 44 (D.D.C. 2004). Khalid v. Bush, 2005 WL 100924 (D.D.C.Jan. 19,2005). 312 InreGuantanamo Cases, 2005WL 195356 (D.D.C.Jan. 31,2005). 313 In re Guantanamo Detainee Cases, Order Granting in Part and Denying in Part Respondents' Motion for Certification ofJanuary 31,2005 Orders and for Stay, Nos. 02-CV-0299 et al. (Green, J., D.D.C., Feb. 3,2005). 314 The President's Military Order of November 13, 2001, adopted to deal with new detainees in the Afghan conflict, called for the creation of the commissions. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism §1 (a), 66 Fed. Reg. 57,833 (Nov. 16, 2001). 315 Vice President Dick Cheney, as quoted in Marie Amann, "Cuantanamo," 42 Colum.J. Transnat'l L. 263, 268 (2004). 310 311

Mixed Tribunals • 815 detailed order as well as a series of eight "instructions," some of which were amended as a result of strong public outcry about their purported fairness.f!'' Of the three processes taking place at Cuantanamo Bay, military commission trials look the most like a traditional criminal trial, with notable exceptions, particularly with regard to the right to defense. The Commissions call for trials before three to seven military officers chosen by the Appointing Authority, who is chosen, in turn, by the Secretary of Defense. The Appointing Authority chooses a presiding officer for each tribunal, as well as the Chief Prosecutor and Chief Defense Counsel, with only the latter two positions having to come from the military's legal branch, the judge advocate corps. Possible offenses on the "illustrative" list of crimes within commission jurisdiction include war crimes such as willful killing of protected persons and use of human shields, as well as terrorism crimes such as skyjacking, although the list is non-exclusive and can include offenses occurring before the instruction took effectv'? Conviction is by a two-thirds majority of those finding guilt beyond a reasonable doubt. A separate two-thirds vote imposes sentences of up to life imprisonment, while a unanimous vote of seven members is needed to impose a sentence of death. Review is permitted within the Executive branch, but review by any domestic, foreign or international court is expressly forbidden. Even if acquitted, a detainee is nonetheless subject to indefinite detention at Cuantanamo.

8.4.3.2.

The Role ofDefense Counsel in the Commission Process

The defendant may be represented by a Detailed Defense Counsel, assigned by the Chief Defense Counsel, who can be assisted by civilian counsel retained by the detainee, or a member of the judge advocate corps chosen by the defendant. If civilian counsel enters the case, that person must meet several conditions. Civilian counsel must be a u.S. citizen with at least a "secret" security clearance, and must sign an agreement to comply with all rules of the tribunal. Those rules include a commitment to keep identities ofjudges, witnesses and other participants secret forever, to barring of counselor the defendant from certain closed hearings at which classified information is discussed, and to monitoring of attorney-client communications for "security and intelligence" purposes, but not for evidentiary reasons.v" The National Association of Criminal Defense Lawyers (NACDL), a U.S. association of public and private criminal defense lawyers, felt so strongly opposed to the restrictions imposed on counsel at Cuantanamo that it adopted a unanimous resolution concluding that it was "unethical for a criminal defense lawyer to represent a person accused before these military commissions because the conditions imposed upon defense counsel before these commissions make it impossible for counsel to provide

316 An excellent summary of the process is provided in Jennifer Elsea, The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice (Congressional Reference Service, updated Jan. 18,2005). 317 Department of Defense Military Commission Instruction No.2, "Crimes and Elements for Trials by Military Commission," (Apr. 30, 2003), at http:vwww.defenselink.mil/news / Aug 2004/commissions_instructions.html. 318 Department of Defense Military Commission Instruction No.5, "Qualification of Civilian Defense Counsel," (Apr. 30, 2003).

816 • Defense in International Criminal Proceedings

adequate or ethical representation."319 The American Bar Association, the largest national voluntary bar group in the United States, took a less definitive posture against the commissions, but also adopted a report and resolution calling on Congress and the Executive branch "to ensure that all defendants in any military commission trials that may take place have the opportunity to receive the zealous and effective assistance of Civilian Defense Counsel, and opposes any qualification requirements or rules that would restrict the full participation" of such counsel.320

8.4.2.3.

The Federal Court Suspends Military Commission Trials

The military commission trials were under close public scrutiny even before they began, and barely got underway before they were closed down by judicial order. Yet another federal judge in Washington, hearing a challenge to the commissions by writ of habeas corpus, decided the case of Hamdan v. Rumsfeld in November of 2004. 321 The court rejected the government's position that Article II of the Constitution gives the President unreviewable powers as commander-in-chief to establish and run military commissions. The court found that the Third Geneva Convention on Prisoners of War applied to the conflict in Afghanistan, and the Mr. Hamdan, who was captured there, could avail himself of its provisions. The court looked to Article 102 of that treaty, which provides: "A prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed." Finding that a military commission "is not such a court" and that "its procedures are not such procedures," the court found that Hamdan's status had yet to be determined, and that a commission trial could not go forward if he was appropriately a prisoner of war, which would require him to be tried by traditional court martial, with all procedural guarantees thereunder. Using Article 5 of the same treaty, he found that there was doubt as to Hamdan's status, and that until it was resolved by a "competent tribunal," he could not be tried by military commission. 322 The military commission trials were all suspended in the wake of Judge Robertson's decision, and appeal of that decision by the government is pending at the time of this writing.

8.4.4.

Conclusion: Other Issues To Be Decided, and the Law To Be Applied

The litigation of the Cuantanamo detainee cases has taken many diverse directions since the decisions of the U.S. Supreme Court in June 2004. No less than ten substantive and procedural decisions have come down from the federal courts, each offering 319 NACDL Ethics Advisory Committee, Opinion 03-04 (Aug. 2003), at http://www .nacdl.org/public. nsf/freeform/ ethicsopinions?opendocument. 320 American Bar Association, Task Force on Treatment of Enemy Combatants, Report to the House of Delegates (Aug. 2003), at http://www.abanet.org/media/aug03/081203_1.html (last visited Mar. 19, 2005). 321 Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004). 322 The relevant language of Article 5 of the Third Geneva Convention states: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

Mixed Tribunals • 817

a unique contribution to U.S. jurisprudence on the war on terror and interpretation of plenary presidential powers balanced against the guarantees of due process and fair trial enforced by judicial oversight. Remarkably, in only one of the decisions, the Hamdan case on the validity of military commissions, is international law a key, or even collateral, element of the decision. Indeed, some have said that the failure of the courts to consider or properly interpret international law, including the Supreme Court in its original trilogy of enemy combatant cases, has contributed and will continue to contribute to opaque and unclear guidance to the courts, the executive and the public. 323 Whatever else can be said of the processes devised to deal with the detainees at Guantanamo Bay, it must be conceded that the government has achieved its primary goal-it largely has been able to keep the detainees in a "legal black hole" from which there is no adequate legal redress and no hope of release any time in the immediate future. One can only hope that the courts will assert their appropriate role to assure that due process is provided to all of the detainees, that their appropriate status in international humanitarian law is determined and that the u.S. courts, their sole recourse, can assist them in a final decision as to whether and when they should be held or released as criminals, prisoners of war or innocent civilians.

8.5. THE IRAQI SPECIAL TRIBUNAL * 8.5.1.

Introduction

The Iraqi Special Tribunal (1ST) was established by Article 1 of the Statute of the Iraqi Special Tribunal (the Statute), issued on December 10, 2003. 324 The 1ST hasjurisdiction in relation to Iraqi nationals or residents accused of crimes under international law325 and specific national law provisions'ct. 4, 2004, 367-368 Defense request for the cooperation of Rwandan Gernment, Oct, 28, 2004,335-340 Decision on defense request for subpoenas, May 4, 2005, 341-342 Motion to recall witness for further cross-examination, Oct, 28, 2004, 401-402 Order for transfer of detained witnesses, Feb. 17, 2005, 403-404 Postponement of trial, Aug. 18, 2004, 153, 162, 181-182, 199 Simic, Milan, 123 Conflict of interest, March 25,1999, 120 Sljicancanin Assignment of counsel, Aug. 13, 2003,94 Tadic, 3, 123 Judgment on allegations of contempt, 119-120 Witnesses Harmonization and modification of protective measures, Dec. 5, 2001,381-392 ZA, ZF, and ZZ

Special protective measures for, 353-361 Zigiranyirazo, Protais Request for the cooperation of government of Rwanda, May 6, 2005, 340-341 Rasul v. Bush, 808 Reid v.Jamaica, 23 Revnaldo Tadeo Aguado Montealegre v. Nicaragua, 29 Robinson v.Jamaica, 15 Roehling, Hermann, trial of, 47 Rondel v. Worsley, 527 Rosero, Suarez v. Ecuador, 25 Rumsfeld v. Padilla, 808 Rutaganda v. The Prosecutor Assignment of defense counsel, July 7, 2000, 188-189 Saidov v. Tajikistan, 1 7 Sanchez v. Honduras, 14 Sankofa v. U.S., 21 Scarrone v. Uruguay, 25 Scottsboro case, 35 Sewell v.Jamaica, 28 Stanford v. UK, 27 T. and V. v. UK, 27 Twalib v. Greece, 16 Urrutia v. Guatemala, 14 Van de Mussele v. Belgium, 11 Vasiskis v. Uruguay, 10 Vaudelle v. Grance, 17 Velasquez Rodriguez Case, 12 von Hagenbusch, Peter, trial of, 32 Wallace, William (Braveheart), 32

x v. Federal Republic of Germany, 10, 20 X v. Norway, 26 X v. Switzerland, 14 Yamashita case, 49-55 In re Yamashita, 53 Dissents ofJustices Murphy and Rutledge, 53

INDEX

AFGHANISTAN, 807 AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS (ACHPR), 27 AFRICAN COMMISSION ON HUMAN AND PEOPLE'S RIGHTS (African Commission), 7 AL QAEDA, 807 et seq. AMERICAN CONVENTION ON HUMAN RIGHTS (ACHR), 7 Art. (8) (2) (c), 18 AMICUS CURIAE BRIEFS, 484, 509-512. 539, 742 AMNESlY INTERNATIONAL East Timor and, 720-721 ANNAN, KOFI, 508 APPEAL, 27-28,117-118,140,248, 324-325,477-478,565-567, 643-644

See EUROPEAN ASSOCIATIONS OF

See also as subheading to other topics; see also Case Table

Counsel on appeal, 27-28 ARENDT, HANNAH, 56 et seq. ARGENTINA "Dirty Wars," 62 ASSIGNMENT OF COUNSEL See as subhead to main topics

ASSOCIATIONS OF DEFENSE COUNSEL, 483-61 7 ASSOCIATION OF DEFENSE COUNSELS PRACTICING BEFORE THE IClY (ADC-IClY), 483-501 See also ASSOCIATION OF DEFENSE COUNSELS (ADC-IClY) Defense Lawyers' Association at the ICTR, 501-528 See DEFENSE LAWYERS' ASSOCIATION AT THE ICTR Development and role, 483-617 European Associations of Defense Counsel, 568-617

DEFENSE COUNSEL International Criminal Bar, 528-568 ASSOCIATION OF DEFENSE COUNSELS (ADC-IClY), 483-501 See also INTERNATIONAL CRIMINAL BAR ASSOCIATION OF DEFENSE ATTORNEYS AT THE ICTR (ADAD) , 505 et seq. See also DEFENSE LAWYERS' ASSOCIATION AT THE ICTR Adoption of objective norms, 485, 486 Amicus curiae briefs, 484 Bi-weekly meetings, 487 Bureau of the International Tribunal Motion before, 487 Constitution, 489 Art. 1: Name and Seat, 489 Art. 2: Objectives, 490 Art. 3: Qualifications, 490-491 Art. 4: Membership Committee & Admission, 491 Art. 5: Fees, 491 Art. 6: Termination of membership, 492 Art. 7: Composition, 492-493 Art. 8: Duties of the Executive Committee, 493-494 Art. 9: Termination of Membership of the Executive Committee, 494 Art. 10: Finances, 495 Art. 11: General Assembly, 495-496 Art. 12: Chair and Minutes, 496 Art. 13: Voting Right, 497 Art. 14: Procedure for Elections and Resolutions, 497-498 Art. 15: Composition, 498 Art. 16: Duties, 498 Art. 17: Monitoring, 498-499 Art. 18: Adjudicating on Complaints, 499-500

875

876 • Defense in International Criminal Proceedings

ASSOCIATION OF DEFENSE ATTORNEYS AT THE ICTR (ADAD) (continued)

Constitution (continued) Art. 19: Advisory Opinions, 500 Art. 20: Composition, 500 Art. 21: Duties, 500 Art. 22: Amendments, 500-501 Art. 23: Dissolution Preamble, 489 Creation of, 483 Electronic Disclosure Suite (EDS), 485 Introduction, 483-489 Legal aid policies, 484 Office for Legal Aid and Detention Matters (OLAD) , 487 Payment system, 483-484 Lump-sum system, 483-484 Positive developments for organization, 488 Training course on advocacy, 485 Work-stoppage, 486 ATTORNEY See also as subhead to other topics

Attorney-client privilege, 276-290 BANALIlY OF EVIL, 56 BARBIE, KLAUS, TRIAL OF Crimes against humanity, 66 Defense counsel Jacques Verges and, 2, 62-66 List of clients today, 65-66 Profile of, 62-66 Removal from courtroom, 65 BASSIOUNI, CHERIF Crimes against humanity and, 62 Wolfgang, xxxi Associations of Defense Counsel, 483-617 BERTODANO, SILVIA DE, xxxii, 5 East Timor, 703-730 BIN LADEN, OSAMA, 806, 807 BOED, ROMAN, xxxi, 4 ICTR, 137-435 BOHLANDER, MICHAEL, xxxi Introduction and overview, 1-5 BOURGON, STEPHANE, xxxii, 4 Associations of Defense Counsel, 483-617

BURDEN OF PROOF, 564, 604 BUSH, GEORGE W. War on Terror, 807 CAMBODIA, 830-868 Admission requirements for lawyers, 858-859 Foreign lawyers, 859-860 Assignment of counsel, 861-863 Bar Association, 833, 848-852 Code of Ethics for Lawyers, 853-858, 865-866 Conclusion, 867-868 Constitutional law, 837 Constitution of Cambodia, 842-843 Criminal procedure law (SOC Law), 843-847 Defense counsel, 867-868 Communication with client in custody,863 Discipline of attorneys, 866-867 Elements of defense practice, 860-861 Role of, 828-830 Defense rights, 836-837 Application of, 838-839 Extraordinary Chambers, 830-868, 867 Basic framework, 833-836 Defense procedures, 835-836 Historical development, 831 Introduction, 830-831 Investigations and prosecutions, 836 Jurisdiction, 834 Law on the Establishment of, 839-840 Arts. 24, 33, 35, 839-840 Mixed tribunal, 832-833 Structure, 835 Felonies Law on aggravating circumstances of, 848 Indigent defendants, 862 Introduction, 830-831 Judicial history, 832-833 Khmer Rouge, 838 Procedure law, 837-838 Art. 9: Visits to places of detention, 845 Art. 10: Legal assistance, 845 Art. 12: Treatment of detainees, 845

Index • 877 CAMBODIA (continued) Procedure law (continued) Art. 13: Arrest and detention, 846 Art. 14: Pre-trial detention, 846 Art. 17: Access to the file, 846-847 Art. 19: Arrest based on incriminating evidence, 847 Art. 20: Searches, 847 Art. 21: Time limits, 847 Art. 25: Presumption of innocence, 847 UNTAC Code, 837, 845-848, 861, 863,865 Statutes, rules and official legal documentation, 839 Suspects Definition, 835 UN-Cambodia Agreement, 840-842 Art. 12: Procedure, 840-841 Art. 13: Rights of the accused, 841 Art. 21: Counsel, 841-842 Art. 22: Witnesses and experts, 842 Art. 23: Protection of victims and witnesses, 842 Witnesses Communication with, 863-865 CAPITAL CASES Abolition of death penalty and, 29 Right to counsel and legal assistance, 29 UN and, 828 CLIENT See also as subhead to other topics

Client in custody, 290-315 CONFIDENTIALIlY, 24-26, 105, 131-132,278,479-480, 540-542,634,712 See also as subhead to other topics; see also

CASE TABLE CONFLICT OF INTEREST, 105-106, 120,237,262-263,542-543, 713 CORPUS JURIS, 573-574, 603-605 Art. 29: Rights of the accused, 603-604 Art. 31: Burden of proof, 604 Art. 32: Admissible evidence, 604 Art. 33: Exclusion of evidence illegally obtained, 604-605

COUNSEL See also LEGAL ASSISTANCE, PRE-TRIAL RIGHTS TO COUNSEL Adequate time to prepare, 23-24 Assigned counsel Definition, 32 Confidential communication with counsel, 24-26 Counsel of choice, unwanted counsel, harassment, etc., 17-18 Counsel on appeal, 27-28 Detained persons Early access to counsel for, 22-23 Notice of the right to counsel and legal assistance, 22 Pre-trial rights to counsel, 22 Representing Nazis, right to, 63 Right to counsel at trial, 26-27 Right to effective assistance of counsel, 20 COUNCIL OF EUROPE, 570 DEFENSE COUNSEL See also ASSOCIATIONS OF DEFENSE COUNSEL, NUREMBERG IMT, TOKYO IMTFE AND OTHER TOPICS Defense at Nuremberg and Tokyo in ternational criminal tribunals, 38-48 History of role of International criminal and war crimes tribunals, (31-66) International criminal defense before Nuremberg, 32-35 Introduction and framework, 31-32 Nuremberg IMT Structural and procedurallimitations, 42-44 Structures for defense services, 39-40 Post-World War II war crimes trials Defense in, 48-56 Domestic trials for international and war crimes, (57-61) Other national trials for international crimes, 61-62

878 • Defense in International Criminal Proceedings

DEFENSE COUNSEL (continued) Post-World War II war crimes trials (continued) Post-war efforts to create international criminal tribunal, 56 Tokyo IMTFE Defense structures, 40-42 Structural and procedurallimitations, 42-44 World War II Scope of right to assigned counsel in U.S. and Europe, 35-38 DEFENSE LAWYERS' ASSOCIATION AT THE ICTR, 501-527 See also CASE TABLE Advocacy,512-514 Rwandan government interfering with Tribunal, 512-514 Association of Defense Attorneys at the ICTR (ADAD), 505 et seq. Amicus curiae, as, 509-512 Code of Professional Conduct, 523-526 Art.6: Duties to client, 524 Art. 9: conflicts of interest and loyalty to client, 524 Art. 18: Withdrawal when accused is no longer indigent, 524 Art. 19: Inconsistencies in Codes and, 524 Discretion of Registrar has inhibiting effect on counsel, 505 ICTR Rules and defense counsel, 504 Independence of counsel lacking, 504-505,508 Preamble, 524 Conclusion, 526-527 Interlocutor, 517-523 Introduction, 501-505 Organizational problems, 516-517 Respect, lack of for defense counsel, 503 Rights of accused in ICTR, protection of, 502 Role and development of, 505-509 Statue, 517-523 Strike threat by, 507, 509 Transfer of prisoners to Rwanda, 515-516 United Nations Bringing grievances to, 506-507

DEGLI, JOHN, 522 DETAINEE, 22-23, 80, 126-132, 174, 292-299,321-322,816,845 See also Guantanamo DOMESTIC TRIALS International and war crimes, 56-66 Double jeopardy, 8, 598, 599F EAST TIMOR, 703-730 Academic writing, 727-729 Flaws in the system, 728 Mentoring, 729 Amnesty International, 720-721 Indonesia and Timor-Leste, 723-724, 725 Case law and practice, 717-730 Admissibility of prior statements: access to a lawyer, 719-720 Illegal detention, 718-719 Judicial System and Monitoring Program OSMP) , 717, 724 Sham prosecutions, 722-723 Conclusion, 729-730 Constitution, 716-717 Sec. 30: Right to personal freedom, security and integrity, 716-717 Sec. 34: Guarantees in criminal proceedings, 717 Sec. 135: Lawyers, 717 Sec. 136: Guarantees in the activity of lawyers, 717 Courts Organization of courts, 705-706 Criminal procedure Transitional rules of, 706-711 International Legal Assistance Consortium Report on, 721-722 Introduction, 703 King's College Report on major problems ofjustice, 723 Legal aid service, 711-716 Code of Conduct for Public Defenders, 711 Sec. 1: Duty to protect interests of clients, 712 Sec. 2: Duty of confidentiality, 712 Sec. 3: Duty to Court, 712

Index • 879 EAST TIMOR (continued) Legal aid service (continued) Sec. 4: Duty to act with independence, 712 Sec. 5: Duty to avoid conflict of interests, 713 Sec. 6: Duty to act impartiality and without discrimination, 713 Sec. 7: Duty not to accept payments, 714 Sec. 8: Change of legal representative, 714 Sec. 9: Withdrawal of legal representative, 714 Sec. 10: Excessive caseload, 714 Sec. 11: Public interest disclosure, 714 Sec. 12: Standards of conduct Sec. 13: Relationship with legal profession, 715 Sec. 14: Complaints, 715-716 Secretary General of UN, 730 Reports of, 724-726 Security Council Resolution 1272, 704-705 Special panels, 730 Statutes, rules and official legal documents, 704-717 UNTAET Regulations, 705-716, 727, 728 ELECTRONIC DISCLOSURE SUITE (EDS),485 ENEMY COMBATANT See GUANTANAMO EQUALIlY OF ARMS, 15 ETHICS, 229-276, 475-478, 535, 559,632, 692-703,853-858,865-866 See also PROFESSIONAL ETHICS (IClY) EURO-DEFENSE PROPOSAL, 589-590 EURO-DEFENSOR, 588 EUROJUST, 4, 569, 587, 588 EUROPE Approximate and harmonize national laws, 574-575 Assigned counsel Scope of right to, 35-38 Avocats Europeens Democrats (AED) European Democratic Lawyers (EDL),584-585

Current state of European defense counsel associations, 590 Draft Treaty Establishing a Constitution for Europe, 572-573 Art. 1-9: Fundamental rights, 598 Art. 11-107: Right to an effective remedy and fair trial, 598 Art. 11-108: Presumption of in nocence and right of defence, 598 Art. 11-109: Legality and proportionality of criminal offences, 599 Art. 11-110: Double jeopardy, 599 Art. 111-270-274: Judicial cooperation in criminal matters, 599-600 Art. 111-275-277: Police cooperation, 602-603 European Criminal Bar Association (ECBA), 584 European Criminal Defense Network, 590-592 Bodies, 592 Financing, 592 Functions, 591 Membership, 592 Objectives of the association, 591 Organizational options, 590-591 European Public Prosecutor's Office, 573 Fair Trials Abroad (FTA) , 586 Federation des Barreaux d'Europe (FBE/EBF) European Bars Federation,585-586 Union des Avocats Europeens (UAE) European Lawyers' Union, 585 EUROPEAN ARREST WARRANT, 4 EUROPEAN ASSOCIATIONS OF DEFENSE COUNSEL Charter of Fundamental Rights of the European Union, 571-572 Current state of, 580 Development and role, 568-617 Draft of the "Corpus Juris," 573-574 Draft Treaty Establishing a Constitution for Europe, 572-573 European Convention for the Protection of Human rights, 570-571

880 • Defense in International Criminal Proceedings

EUROPEAN ASSOCIATIONS OF DEFENSE COUNSEL (continued) European Criminal Defense Network Boeies, 592 Financing, 592 Functions, 591 Membership, 592 Objectives, 591 Organizational options, 590-591 Outlook, 592-593 Project proposal, 590-593 European legislation to harmonize national laws, 574-575 European Union Defense Counsel Associations, 583-590 Avocats Europeens Democrats; European Democratic Lawyers, 584-585 Council of the Bars and Law Societies of EU, 583 "Eu-Defense" Project, 587-588 "EURO-Defense" Proposal, 589-590 EURO-Defensor, 588-589 European Criminal Bar Association, 584 Federation des Barreaux of Europe; European Bars Federation, 585-586 Frankfurt appeal and Proposal for a Magna Carta Procedural safeguards, 586-587 National initiatives, 586-590 Union des Avocats Europeens; European Lawyers' Union, 585 Failings of the past, 569-570 Introduction, 568-569 Procedural safeguards for suspects and defendants, 575-577 Profession practice in European Union, 581-583 Proposals for procedural rights throughout the European Union, 577-581 Art. 1: Scope of application of procedural rights, 578-579 Art. 2: The right to legal advice, 579 Art. 3: Obligation to provide legal advice, 579

Art. 4: Obligation to ensure effectiveness of legal advice, 579-580 Art. 5. The right to legal advice, 580 Art. 14: Duty to inform a suspected person of his rights, 580-581 Security versus liberty, 569 Treaty on European Union, 570 EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS (ECHR), 7, 161,468,570-571 Annex 2: Art. 6, 596-597 Annex 3-Charter of Fundamental Rights of the European Union Art. 47: Right to an effective remedy and fair trial, 597 Art. 48: Presumption of innocence and right of defence, 597 Art. 49: Legality and proportionality of criminal offences and penalties, 597-598 Art. 50: Double jeopardy, 598 Annex 4-Draft Treaty Establishing a Constitution for Europe, 598-603 Arts. 1-9: Fundamental rights, 598 Art. 11-107: Right to an effective remedy and to a fair trial, 598 Art. 11-108: Presumption of innocence and right of defence, 598-599 Art. 11-110: Right as to double jeopardy, 599 Judicial Cooperation in Criminal Matters, 599-603 Art. 111-270, 599-600 Art. 111-271, 600-601 Art. 111-272, 601 Art. 111-273, 601 Art. 111-274, 602 Art. 111-275-277: Police cooperation, 602 Annex 5-Corpus Juris Art. 29: Rights of the accused, 603 Art. 31: Burden of proof, 604 Art. 32: Admissible evidence, 604 Art. 33: Exclusion of evidence illegally obtained, 604-605

Index • 881 EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS (ECHR) (continued)

Annex 6: Certain procedural rights throughout EU, 605-610 Art. 1: Scope of application of procedural rights, 605 Art. 2: The right to legal advice, 605 Art. 3: Obligation to provide legal advice, 605-606 Art. 4: Obligation to ensure effectiveness of legal advice, 606 Art. 5: The right to free legal advice, 606 Art. 6: The right to free interpretation, 606 Art. 7: The right to free translation of relevant documents, 607 Art. 8: Accuracy of the translation and interpretation, 607 Art. 9: Recording the proceedings, 607 Art. 10: The right to specific attention, 607 Art. 11: The rights of suspected persons entitied to specific attention, 607-608 Art. 12: The right to communicate, 608 Art. 13: The right to communicate with consular authorities, 608 Art. 14: Duty to inform a suspected person of his rights in writing Letter of Rights, 608 Art. 15: Evaluating and monitoring the Framework Decision, 609 Art. 16: Duty to collect data, 609-610 Art. 17: Non-repression clause, 610 Art. 18: Implementation, 610 Annex 7: Frankfurt Appeal of the German Defense Counsels, 610-612 Concept of freedom, 611-612 European integration, 612 Annex 8: Frankfurt AppealProcedural Safeguards of the Suspect/Accused, 613-617

Art. Art. Art. Art. Art. Art. Art.

1: Information about rights, 613 2: Presumption of innocence, 613 3: Right to remain silent, 613 4: Right to defence, 614 5: Information, 614 6: Right for freedom, 614-615 7: Respect for private and family life, 615 Art. 8: Right of personal integrity Art. 9: Right for remedy, 616 Art. 10: Fair trial, 616 Art. 11: Nulla poena sine lege-no punishment without law, 616 Art. 12: Ne bis in dem Art. 13: Most-favoured nationclause-border-crossing cooperation, 617 Art. 14: Common responsibility, 617 Art. 15: Effective legal protection, 617 Art. 16: Right for prosecution by only one penal power, 61 7 Art. 17: Right for multinational defence-counsel-teams, 617 EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR), 7 Art. 6 (3) (c), 18 EUROPEAN COURT OF HUMAN RIGHTS, 7, 15, 161 EUROPEAN UNION, Charter of Fundamental Rights of EU (CFREU), 571-572 Art. 47: Right to an effective remedy and to a fair trial, 597-598 Art. 48: Presumption of innocence and right of defence, 597 Art, 49: Legality and proportionality of criminal offenses and penalties, 597-598 Art. 50: Double jeopardy, 598 Council Framework Decision See also European Convention for the Protection of Human Rights. Procedural rights throughout EU, 577-581,605-610 Council of the Bars and Law Societies of the EU (CCBE), EU-Defense Project, 587-588

882 • Defense in International Criminal Proceedings EUROPEAN UNION (continued) Green Paper for procedural safeguards for suspects and defendants, 575-577 Listing of rights, 576-577 See also EUROPEAN ASSOCIATIONS OF DEFENSE COUNSEL Rules for profession practice in the EU,581-583 Grouping defined, 582 Treaty of (TEU), 569, 570-571, 593-596 Art. 6: 593 Art. 29: 593-594 Art. 31: 594-595 Art. 32: 595 Art. 33: 595 Art. 34: 595-596 Art. 35: 596 EUROPOL,4 FAIR TRIAL, 13 Right to, 13, 14,586,597,598,616 FAIR TRIALS ABROAD, 586 FEES AND COMPENSATION, 107-108, 173,491,551 Contingent, 542 Prohibited, 550 Referral, 111 FOREIGN LAWYERS, 625-626, 858-860 FRANKFURT APPEAL See also EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS Annex 7-Frankfurt Appeal of the German Defense Counsels, 610-612 Annex 8-Frankfurt AppealProcedural Safeguards of the Suspect/Accused, 613-617 Proposal for a Magna Carta of Procedural Safeguards, 586-587 GALLANT, KENNETH S., xxxii, 4 The International Criminal Court, 437-482 GENEVA CONVENTION Detainees, 816 Procedural safeguards and, 9

Relating to the Treatment of Prisoners, 35 GENOCIDE Convention on the Prevention and Punishment of the Crime of, 56 Rwandan genocide, 62 GERMAN CRIMINAL PROCEDURE CODE, 402 GUANTANAMO, 2 See also CASE TABLE Annual Review Boards (ARB), 807, 811 Enemy combat status, 811 Background, 806 Defending detainees at Guantanamo Bay, 806-816 Combat Status Review Tribunals (CSRT),807, 810-811 Court rulings on the validity of process, 811 Denial of exculpatory witnesses and, 810 Review evidence as to enemy combatant status, 810 Right to defense, 811 Conclusion, 816 Detainees Legal black hole, 817 Number of detainees, 807 Number released, 808 Overview of detainees and their legal situation, 807-809 Enemy combatant, 810-811 Defense claim of vagueness, 810 Federal Court litigation after Rasul decision, 809 Government argument rejected for monitoring defense counsel, 812-813 Government reaction to litigation, 812 Consolidation of common legal issues and competing court decisions, 813 Onerous restrictions on communication with counsel, 812 Protective order, 812 Habeas corpus Tight limitation on discovery in, 813 International Committee of the Red Cross (ICRC), role of, 807

Index • 883 GUANTANAMO (continued) International law, role of in, 817 Military Commission trials in Guantanamo, 814 Federal Court suspends Military Commission trials, 816 Role of defense counsel in the Commission Process, 815-816 Structure, 814-815 HABEAS CORPUS, 813 HOLOCAUST, 42 HUMAN RIGHTS COMMITTEE (HRC) Procedural safeguards and, 7 et seq. HUMAN RIGHTS WATCH Critique of East Timor and sham prosecutions, 722-723 HUSSEIN, SADDAM, 66 INDIGENT, 92-93, 165, 185, 203-204, 206,216,524,746-747, 753-754,862 INDONESIA AND TIMOR-LESTE, 723-724 INTER-AMERICAN COMMISSION ON HUMAN RIGHTS (IACHR), 7 INTER-AMERICAN COURT OF HUMAN RIGHTS (IACtHR), 7 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ICCPR), 7, 446, 449, 468,480,503 Appointment of counsel, 449 Art. 4(1),29 Art. 14(3) (d), 18, 27, 70 Procedural safeguards and, 7 et seq. INTERNATIONAL CRIMINAL BAR (ICB), 528-568 Code of Conduct and Disciplinary Procedure, 536-568 1. Interpretation, 538 2. Definitions, 538 Amicus curiae, 539 Counsel, 538 Crimes, 538 Mandate, 538 National legal associations, 538 Suspect, 538

Victim 539 Independence Honesty and integrity, 539 Competence, 539 Confidentiality and privilege, 540-542 Counsel-client privilege, 540-541 Invoking privilege, 541-542 7: Conflict of interest, 542-543 Business transactions with clients, 542 Contingent fees, 542 Former client, 543 8. The client's right to choice of counsel, 543 9. Relationship between counsel and client to be respectful, 544 10: Application of the Code of Conduct, 545 11: Conflict between Code and national codes of conduct, 545-546 12: Affirmation of counsel, 545 13: Former prosecutors and former judges, 545-546 14: Adoption and amendments, 546 15: Establishing the relationship with client, 546 16: The scope of the mandate, 546-547 17: Instructions from the client, 547 18: Refusal to accept a mandate, 547 19: The withdrawal of counsel from a mandate, 547-548 20: The termination of a mandate, 548 21: The mandate from a client with diminished capacities, 548-549 22: Enduring duty to the client, 549 23: Solicitation of prospective clients and publicity, 549 24: Financial arrangement (fee, fee sharing, compensation), 549-550 Prohibited fees, 550 25: Legal aid, 550 26: Resolution of disputes regarding accounts for fees and disbursements, 551 27: The role of counsel as advocate, 551 3. 4. 5. 6.

884 • Defense in International Criminal Proceedings INTERNATIONAL CRIMINAL BAR (ICB) (continued) Code of Conduct and Disciplinary Procedure (continued) 28: The role of counsel as counselor, 551 29: The representation of accused persons, 551 30: The representation of victims, 552 31: Communication with clients, 552 32: Counsel called as witness, 552-553 33: Duty to keep files-record or workmandate, 553 34: Professional liability insurance, 553 35: Unrepresented persons (victims, witnesses and accused persons), 553-554 36: Dealing with persons represented by counsel, 554 37: Dealing with witnesses generally, 554 38: Dealing with witnesses afforded protective measures, 554 39: Statements by counsel to others, 554-555 40: Respect for rights of third persons, 555 41: Co-counsel and other members of client, 555 42: Counsel of victims and witnesses, 555-556 43: Counsel of accused persons, 556 44: Counsel of co-accused persons, 556 45: Obligations of counsel towards other colleagues generally, 556 46: Professional courtesy with Office of the Prosecutor, 556-557 47: Immunity of counsel, 557 48: Demeanour in court, 557 49: Candour (integrity in dealing with evidence), 557 50: Integrity of material physical evidence, 557 51: False or misleading statements, 558 52: Respect for the Rules of the Court, 558

53: Communicating with ajudge without the opposing party, 558 54: When counsel is appointed by the Registry to act for client, 558 55: Submission of fee accounts for clients entitled to legal aid, 558-559 56: Resolution of disputes as to fee accounts with the Registry, 559 57: Definition of professional ethical misconduct, 559 59: Defining principles of the disciplinary regime, 559-560 Disciplinary Committee, 560 60: Complaints against counsel, 560 61: Statute of limitations, 561 62: Right of counsel to legal representation as to discipline, 561 63: Duty of counsel to cooperate with the inquiry, 561 64: Independence of the prosecution in matters relating to misconduct, 561 Office of Disciplinary Investigations, 561-562 65: Secretary of the Disciplinary Committee, 562-563 66: the Disciplinary Panel, 563-564 67: Adversarial process, 564 68: Burden of proof and evidence, 564 Beyond reasonable doubt and, 564 69: Findings by the Disciplinary Panel, 564 70: Sanctions that may be imposed and costs, 565 71: Notice to Registrar, the Prosecutor and others, 565 72: Disciplinary appeal process, 565-566 73: Time to appeal, 566-567 Preamble, 536-5 37 Constitution; 528-536 Art. 1: Definitions, 528 Art. 2: Name, Legal Organisation and Seat, 528-529 Art. 3: Objectives, 529 Art. 4: Functions, 529 Art. 5: Membership, 530

Index • 885 INTERNATIONAL CRIMINAL BAR (ICB) (continued) Constitution (continued) Art. 6: Termination of Membership, 530-531 Art. 7: General Assembly, 531-532 Art. 8: Proceedings of the General Assembly, 532 Art. 9: Decisions of the General Assembly, 532 Art. 10: Elections to the Council, 533-534 Art. 11: The Council and the Executive Committee, 534 Art. 12: Power of Representation, 534 Art. 13: Finances, 535 Art. 14: Membership Dues, 535 Art. 15: Ethics and Discipline, 535 Art. 16: Amendments to the Constitution, 535-536 Art. 17: Dissolution, 536 Art. 18: First election of the Members of the Council, 536 Art. 19: First Audit Committee List of documents consulted Authors, 568 Treaties and Codes, 567-568 INTERNATIONAL CRIMINAL COURT (ICC), 31 See also CASE TABLE Assignment of counsel, 455-475 Case law and practice, 465-467 Competence and skills, 466 Documents required, 466 Duties and responsibilities, 466 List of counsel authorized to act, 465 Introduction, 455 Regulations of the Court, 459-465 Reg. 67: Criteria to be met by counsel, 459 Reg. 68: Assistants to counsel, 459 Reg. 69: Proof and control of criteria to be met by counsel, 459 Reg. 70: Inclusion in the list of counsel, 460 Reg. 71: Removal and suspension from list, 460

Reg. 72: Review of decisions of the Registrar, 461 Reg. 73: Duty counsel, 461 Reg. 74: Defence through counsel, 461 Reg. 75: Choice of defence counsel, 462 Reg. 76: Appointment of defence counsel by Chamber, 462 Reg. 77: Office of Public Counsel for the defence, 462 Reg. 78: Withdrawal of defence counsel, 463 Reg. 79: Decision of Chamber as to representatives of victims, 463 Reg. 80: Appointment of legal representatives by Chamber, 463 Reg. 81: Office of Public Counsel for victims, 463 Reg. 82: Withdrawal of legal representatives of victims, 464 Reg. 83: General scope of legal assistance paid by Court, 464 Reg. 84: Determination of means, 464 Reg. 85: Decisions on payment of legal assistance, 464-465 Rules of Procedure and Evidence, 456-459 Rule 20: Registrar and rights of the defence, 456-457 Rule 21: Assignment of legal assistance, 457-458 Rule 22: Appointment and qualifications of counsel for defence, 458 Rule 90: Legal representatives of victims, 458 Rule 117: Detention in the custodial state, 459 Statute Art. 55: Rights of persons during aninvestigation,455 Art. 67: rights of the accused, 456 Commentary,468-475 Counsel-client privilege, 478-481 Case law and practice, 479 Commentary,479-481

886 • Defense in International Criminal Proceedings

INTERNATIONAL CRIMINAL COURT (ICC) (continued) Counsel-client privilege (continued) Confidentiality, 479-480 Fee-splitting, 480 Work-product privilege, 480 Introduction, 478 Reports, 479 Rules of Procedure and Evidence, Rule 73(1), 479 Statute, Art. 67(1),478-479 Custody, communications with a client in, 481-482 Introduction, 481 Reg. 97: Communication with defense counsel, 481 Reg. 101: Restrictions to access to news and contact, 481 Materials, 624-625 Post-war efforts to create, 56 Professional ethics, 475-478 Academic writings, 477 Assembly of States Parties: Resolution ICC-ASP/3/,476 Commentary,477-478 Appeal, 477-478 Counsel and prosecutor, rule of, 477 Misconduct, discipline for, 477 Draft Code, 476 Introduction, 475 Practice, 476 Reports, 476-477 Rules of Procedure and Evidence Rule 8: Code of Professional Conduct, 475-476 Right to counsel, 437-455 Academic writing, 445-446 After accusation-Art. 67,448-449 Case law and practice, 445 Congo-Prosecutor's request for measures under Art. 56, 445, 447 Compensation claims No right to counsel for, 454 Confirmation hearing and after, Art. 67 , 450-451 Absence of accused but with counsel, 451

Appoint counsel before confirmation hearing, 452 Before confirmation hearing, 451-452 Cornerstone of fair criminal justice, 446 Free choice of counsel, 454-455 Investigatory stage, 446-448 Appointment of counsel, 447-448 Right to be informed, 446+ National courts Right to before surrender to the ICC, 453-454 Regulations of the court, 441-445 Regulation 67: Criteria to be met by counsel, 441 Regulation 68: Assistants to counsel, 441Regulation 69: Proof and control of criteria to be met by counsel, 442 Regulation 70: Inclusion in the list of counsel, 442 Regulation 71: Removal and suspension for list of counsel, 442-443 Regulation 72: Review of decisions of Registrar, 443 Regulation 73: Duty counsel, 443 Regulation 74: Defence through counsel, 444 Regulation 75: Choice of defence counsel, 444 Regulation 76: Appointment of defence counsel by Chamber, 444 Regulation 77: Office of public counsel for the defence, 444--445 Section 1: List of counsel and duty counsel, 441 Rules of Procedure and Evidence, 439-441 Rule 20: Responsibilities of the Registrar, 439-440 Rule 21: Assignment of legal assistance, 440-441 Rule 22: Appointment and qualification of counsel for defense, 441

Index • 887 INTERNATIONAL CRIMINAL COURT (ICC) (continued) Right to counsel (continued) Statute Art. 55 (2), 437-438, 446 Art. 56,438 Art. 61 (1) and (2),439 Art. 67 (1), 439, 448-449 Part 9,446 Time of attachment of under Art. 67, 449 Rights of the accused Status of the IClY and ICTR, 467-468 Witnesses, communications with, 482 INTERNATIONAL CRIMINAL DEFENSE ATTORNEYS ASSOCIATION(ICDAA),527 INTERNATIONAL CRIMINAL POLICE ORGANIZATION (INTERPOL), 820 INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR), 31,137-435 Administrative Directives, 170-175 Assignment of counsel (Nov. 22, 1999),174-175 Assistant and investigator, 173 Co-counsel payment, 172 Daily Subsistence Allowance (DSA), 172 Detainee Circular (Nov. 18,1998),174 Duplication of work, 172 Information Circular No.1, 174 Information Circular No.2, 174-175 Medical expenses, 173 Meetings, 172 Processing of fees and expenses, 173 Remuneration of counsel, 170-171 Settlement of defense accounts, 171-173 Travel expenses, 172-173 Arrest warrant, 450 Assignment of counsel, 163-229,468 Commentary, 203-205 Directive on the assignment of defense counsel, 165-170 Art. 3: Person to whom counsel is assigned, 165

Art. 4: Indigence, 165. 185 Art. 5: Request for assignment of counsel, 165, 186 Art. 6: Applicant's financial situation, 165-166, 186 Art. 7: Declaration of means, 166, 186 Art.. 8: Certification of the declaration of means, 166, 186 Art. 9: Information, 166, 186 Art. 10: Decision by the Registrar, 166, 186 Art. 10 bis, 186-187 Art. 11: Notification of the decision, 167 Art. 12: Remedy against a decision not to assign counsel, 167, 187-191 Art. 13: Pre-requisites for assignment of counsel, 167 Art. 13D, 191-192 Art. 14: Professional certification, 168, 192 Art. 15: Scope of the assignment, 168, 192-198 Art. 16: Applicable law, 168, 198-199,261 Art. 17: Responsibility for costs and expenses, 168-169, 199,518 Art. 19: Assignment of defense counsel, 262-263 Art. 20: Replacement, 169, 199 Art. 21: Assignment away from Tribunal, 169,518 Art. 29: Advisory panel, 169-170, 199,504,518 Art. 30: Settlement of disputes, 170,200-203 Art. 31: Provision of facilities, 170 Indigent accused, 203-204 Introduction, 163-164 Number and nationality of defense counsel, 204-205 Rules of Procedure and Evidence, 164-165 Rule 44: Appointment and qualifications of counsel, 164, 504,505

888 • Defense in International Criminal Proceedings

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR) (continued) Assignment of counsel (continued) Rules of Procedure and Evidence (continued)

Rule 44 bis: Duty counsel, 164 Rule 45: Assignment of counsel, 164-165,504,505,524,525 Rule 45 ter. Availability of counsel, 165 Rule 45 quater. Assignment in interes~ofjustice, 165 Rule 72, 521 Rule 73(F), 521 Statute, rules and official legal documents, 164-175 Attorney-client privilege, 276-290 Case law and practice, 283-289 See also CASE TABLE Commentary,289-290 Defense counsel, Code of Professional Conduct for Art. 8: Confidentiality, 278 Breach of lawyer-client privilege, 290 Information sharing, 289 Physical search of, 289 Detention, rules covering, etc., 277 Communication, Rule 65, 277 Legal assistance, Rule 9, 277 Visitors, All other persons, 282-283 Rule 61, 277 Introduction, 276 Regulations as to visits and communication, 278-282 Correspondence-Rules 1-13, 278-279 Telephone calls, Rules 6, 7, 13, 280 Visits, Rules 1,2, 3, 10-16,21,22, 281-281 Rules of procedure and evidence, 277 Rule 95: Exclusion of evidence, 277 Rule 97: Lawyer-client privilege, 277 Statutes, rules and official documents, 277-283 Case law and practice, 175-203 See also CASE TABLE

Art. 4 of the Directive, 185 Art. 5-8 of the Directive, 186 Art. 9 of the Directive, 186 Art. 10 of the Directive, 186 Art. 10 bis of the Directive, 186-187 Art. 12 of the Directive, 187-191 Art. 13D of the Directive, 191-192 Art. 15 of the Directive, 192-197 Art. 16 of the Directive, 198-199 Art. 17 of the Directive, 199 Art. 20 of the Directive, 199 Art. 29 of the Directive, 199 Art. 30 of the Directive, 200-203 Rule 44 and 45 of the Rules of Procedure and Evidence, 175-181 Rule 45 ter (A), 181-182 Rule 45 quater, 183-185 Client in custody, 290-315 Detention of person awaiting trial, et seq., 291-292 Rule 10,291 Rule 59, 291-292 Rule 61, 292 Rule 65, 292 Introduction, 290 Rules of Procedure and Evidence Rule 97: Lawyer-client privilege, 291 Statute, Art. 20, 291 Supervision of visits and communication with detainees, 292-299 Correspondence, 292-294 Guidelines to all other persons, 297-298 Telephone calls, 294-295 Visits, 295-297 Defense Lawyers' Association at the ICTR, 501-528 See also DEFENSE LAWYERS' ASSOCIATION AT THE ICTR Lawyers and Detention Facilities Management Section (LDFMS),175 Legal aid program, 185 Nuremberg and Tokyo tribunals Distinguished from, 502 Professional ethics, 229-276 Case law and practice, 241-276

Index • 889 INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR) (continued) Professional ethics (continued) See also CASE TABLE Code of Professional Conduct for Defense Counsel, 233-241, 262-263 Art. 1: Definitions, 234 Art. 3: General purpose, 235 Art. 4: Scope and termination of representation, 235 Art. 5: Competence and independence, 235,265-266, 480, 504 Art. 5 bis: Fee splitting, 235-236 Art. 6: Diligence, 236 Art. 7: Communication, 236 Art. 8: Confidentiality, 236-237 Art. 9: Conflict of interest, 237, 262-263 Art. 10: Client under a disability, 238 Art. 11: Accounting for time, 238, 266-273 Art. 12: Rule of the Tribunal, 238 Art. 13: Candour toward the Tribunal, 238 Art. 14: Integrity of evidence, 239 Art. 15: Impartiality of the Tribunal, 239 Art. 16: Counsel as witness, 239 Art. 17: Fairness and courtesy, 239 Art. 18: Dealing with unrepresented persons, 239-240 Art. 19: Conflicts, 240, 273 Art. 20: Misconduct, 240 Art. 21: Reporting misconduct, 240 Art. 22: Enforcement, 240 Art. 23: Amendment, 241 Defense counsel Art. 5: Competence and independence, 265-266 Art. 11: Accounting for time, 266-273 Code of Professional Conduct for, 262-273 Definitions, 234 Introduction, 233 Commentary

Regulatory framework, 273 Directive on the assignment of defense counsel Art. 16: Applicable law, 233, 261 Art. 19: Withdrawal of assignment in other situations, 233, 252 Introduction, 229-230 Rules of Procedure and Evidence, 230-233 Rule 44: Appointment and qualification of counsel, 230, 241 Rule 45 ter. Availability of counsel, 230 Rule 46: Misconduct of counsel, 230-231,241-247,273-275 Rule 73: Motions, 231, 247-253 Rule 73(F), 251-253 Rule 77: Contempt of the Tribunal, 231-233,253-261,275-276 Art. on, 273 Right to counsel under the statute and rules, 137-163 Assignment of defense counsel, 141 Art. 2: Right to counsel, 141, 159, 160 Art. 13: Pre-requisite for, 141, 159 Art. 14: Professional certification, 141, 160 Case law and practice, 142-160 See also CASE TABLE Detention of persons awaiting trial or appeal, 140 Rule 10, 140, 159 Rule 65, 140, 159 Introduction, 137 Rules of Procedure and Evidence, 138-140 Rule 40 bis: detention of suspects, 138, 154, 160 Rule 42:Rights of suspects during investigation, 138-139, 154, 160 Rule 44, 175-181 Rule 44 bis: Duty counsel, 139, 156-157, 159, 160, 161 Rule 45: Assignment of counsel, 139,159,175-181 Rule 45 quater, 183-185 Rule 45 ter (A), 181-182

890 • Defense in International Criminal Proceedings

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR) (continued) Right to counsel under the statute and rules (continued) Rules of procedure and evidence (continued) Rule 62: Initial appearance of accused and plea, 139, 159, 162 Rule 63: Questioning of the accused, 139-140, 159, 162 Rule 82 bis: Trial in the absence of the accused, 140, 159 Rule 107: General provision, 140, 159 Statutes, rules and official legal documents, 137-142 Art. 17: Investigation and preparation of indictment, 137-138 Art. 17(3),142-148,160 Art. 20: Rights of the accused, 138, 162 Art. 20(2) and 4(b), 150-151 Art. 20(4),148-149 Withdrawal of counsel, 205-229 Case law and practice, 207-229 See also CASE TABLE Directive on Assignment of counsel Art. 15: Scope of the assignment, 206,216 Art. 18: Withdrawal when no longer indigent, 206, 216 Art. 19: Withdrawal of assignment in other situations, 206, 216-229 Art. 20: Replacement, 207 Rules of procedure and evidence, 205 Rule 45: Assignment of counsel, 205,207-214 Rule 45 ter. Availability of counsel, 205,214-215 Rule 46: Misconduct of counsel, 205,215-216 Witnesses, defense access to, 315-435 Case law, 325-435 See also CASE TABLE Detention Rules covering awaiting trial or appeal, 324-325

Art. 64, 324-325 Introduction, 315 Rules of procedure and evidence, 316-324 Section 2: Orders and warrants, 316 Rule 54: General provision, 316 Section 3: Production of evidence Rule 66: Disclosure of materials by the prosecutor, 316 Rule 67: Reciprocal disclosure of evidence, 317 Rule 68: Disclosure of exculpatory evidence, 317-318 Rule 69: Protection of victims and witnesses, 318 Rule 70: Matters not subject to disclosure, 318 Rule 71: Depositions, 319 Rule 75: Measures for the protection of victims and witnesses, 319-320 Rule 85: Presentation of evidence, 320 Rule 90: Testimony of witnesses, 321 Rule 90 bis: Transfer of a detained witness, 321-322 Rule 92 bis: Proof of facts other than by oral evidence, 322-323 Rule 94: Judicial notice, 323 Rule 94 bis: Testimony of expert witnesses, 323 Rule 95: Exclusion of evidence, 324 Rule 96: Rules of evidence in cases of sexual assault, 324 Rule 98: Power of chambers to order additional evidence, 324 Statutes Art. 20: Rights of the accused, 316 Art. 21, Protection of victims and witnesses, 316 Art. 28: Cooperation of states, 316 INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (IClY), 31, 67-136 See also CASE TABLE Art. 20: Commencement and conduct of trial proceedings, 67-68

Index • 891 INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (IClY) (continued) Art. 21: Rights of the accused, 68-78 Arrest warrant, 450 Assignment of counsel, 79-87, 468 Accused right to choose counsel, 90-91 Accused right to have a second ounsel, 91-92 ADC membership in good standing, 97 Art. 6: Right to assigned counsel, 81 Art. 7: Request for assignment of counsel, 81 Art. 8: Determination of the means of suspects and accused, 81 Art. 9: Certification of the declaration of means, 82 Art. 10: Information, 82 Art. 11: Decision by the Registrar, 82, 92-93 Art. 12: Notification of the decision, 83 Art. 13: Remedy against the Registrar's decision, 83 Art. 14: Qualifications and standing of counsel, 83-85, 94-95 Art. 15: Professional certification, 85-86 Art. 16: Basic principles, 86, 91-92 Art. 17: Assignment of counsel away from the seat of the Tribunal, 87 Availability of counsel, 97 Competency in criminal law, 96 Disciplinary and criminal record, 96-97 Initial assignment, 4.2.4.4.3 Pro bono counsel, refusal of audience to, 119 Procedure for assignment of counsel, 98-100 Remedy against the Registrar's decision, 99 Removal from the Rule 45 and Duty Counsel Lists, 97 Right to assigned counsel, 98 Right to choose counsel, 98 Scope of assignment, 99

Case law and practice, 87-95, 118-123 See CASE TABLE Chambers, 87-93 Code, 124-127 Complaints, 125 Communication, 131 Confidentiality, 131-132 Consultations with clients on provisional release or at liberty, 132 Proof beyond a reasonable doubt, 126 Rationale behind, 124-125 Commentary: 123-127 Communications with a client in custody,127-136 Code, 131-132 Communication (Art. 12), 131 Confidentiality (Art. 13), 131 Consultations with clients on provisional release or at liberty (Art. 17), 132 Correspondence, 128 Regulation 11: 128 Regulation 20:; 129 Regulation 21: 129 Regulation 22: 129 IClY applicable Rules, 127-132 Introduction, 127 Rule 67: Legal assistance, 128 Rule 97: Lawyer-client privilege, 127 Rules of detention, 127 UN Detention Unit Regulations Visits to an communication with detainees, 126-132 Visits, 129-131 Regulation 29: 129 Regulation 30: 129 Regulations 31-44: 130-131 Directive as to, 80 Introduction, 79 Prerequisites for, 83-85 Scope of assignment, 86-87 Language requirement, 96 Legal framework of legal aid system, 79-87 President of, 94 Professional background, 95 Practice, 132-136 Attorney-client privilege, 132-133 Justification and purpose of the privilege, 133-134

892 • Defense in International Criminal Proceedings INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (IClY) (continued) Practice (continued) Limits to the privilege, 134 Professional ethics, 100-127 See PROFESSIONAL ETHICS (IClY) Registrar's refusal to assign counsel (indigency), 92-93 Right to counsel, 67-79 Rule 44B, 94 Rule 45: Assignment of counsel, 79-80 Rule 45: bis: Detained persons, 80 Rule 45: List, 95 Rules of procedure and evidence, 79-80 Withdrawal of the assignment of defense counsel, 92-93 International human rights law Legal assistance in, 8-21 See also LEGAL ASSISTANCE Procedural safeguards for the defense in, 7-30 International Law Association Committee on Extradition and Human Rights, 453 International Legal Assistance Consortium Public defender system in East Timor, 721-722 INTERNATIONAL MILITARY TRIBUNAL AT NUREMBERG (IMTN) Assigned counsel Pay rates, 39 Charter, 38 Art. 16(d), 38 Control Council Law No. 10, 48, 49 Dachau prosecutions, 48, 49 Defendant's Information Center, 39 Defense counsel Kranzbuhler for Admiral Doenitz, 45-48 Interrogatories, use of, 46 Tu quoque defense, 45-46 Distinguished from ICTR and ICn:, 502-503 Prosecutions conducted by Britain, China, et al, 48

Defense council, limited information as to their role, 49 Prosecutions of Nazis outside Germany, 48 Selection of defense counsel, 39-40 Structural and procedural limitations on the defense, 42-44 Document problems, 43 Interrogation problems, 42-43 Threats to their safety, 42 Time constraints, 42-43 Structures for defense services, 39-40 Subsequent international trials of, 49-50 Witness Notification and Procurement Section, 39 INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (IMTFE) Adversarial nature of trial, 41 Charter, 38 Defense structure, 40-42 Defense counsel Reel for General Yamashita, 50-55 Atrocities, 50, 53 Command responsibility issue, 52 Hurdles faced by defense, 51 Speed factor, 51 Impact of race and culture, 55 Prosecutions conducted by Britain, China, et al, 48 Defense council, limited information as to their role, 49 International Defense Panel, 41 Prosecutions outside Japan, 48 Role of U.S. attorneys, 41-42 Structural and procedural limitations on the defense, 42-44 Alternate judges and, 43 Bias ofjudges, 44 Joint decisionmaking, 44 U.S. Supreme Court and, 43 Subsequent international trials of, 49-50 INTRODUCTION AND OVERVIEW, 1-5 IRAQ Conclusion, 830 Defense counsel, 826-827 Assignment of counsel, 829 Disclosure obligations, 830

Index • 893 IRAQ (continued) Defense counsel (continued) International counsel, 826 Iraqi nationality required, 826 Legal assistance provided, 826-827 Qualifications of, 826-827 Requests, filing of, 829-830 Role of, 828-830 Zealous advocacy, 827 Inquisitorial and adversarial nature of law, 829 Introduction, 817 Iraqi Special Tribunal (1ST), 817-830 Art. 18: Investigation and indictments, 818 Art. 20: Rights of the accused, 818-819 Art. 21: Trial proceedings, 819 Art. 33: Ba'ath Party, 819 Art. 34: Arabic is official language, 819,828 Office of the Defense, 825-826 International advisers to, 827-828 Rules of Procedure and Evidence (RPE) , 819-825 Rule 39: Functions of the Non-Iraqi advisors/observers, 819-820 Rule 42: Conduct of investigation, 820 Rule 46: Rights of suspects during questioning, 821 Rule 48: Appointment defence counsel, 821 Rule 49: Defense office, 822 Rule 50: Misconduct of counsel, 822-823 Rule 46: Rights of suspects during questioning, 821 Rule 48: Appointment defence counsel, 821-822 Rule 49: Defense office, 822 Rule 50: Misconduct of counsel, 822-823 Rule 53: General provisions, 823 Rule 60: Disclosure of materials by prosecutor, 823 Rule 61: Reciprocal disclosure of evidence, 823-824 Rule 62: Disclosure of exculpatory evidence, 824-825

Rule 64: Depositions, 825 Rule 65: Proceedings before trial chambers, 825 JUDICIAL SYSTEM AND MONITORING PROGRAM OSMP), 717, 724 JUVENILES Right to counsel and legal assistance, 28-29 KHMER ROUGE, 62, 838 The International Criminal Court, 437-482 KIRSH, STEFAN, xxxii, 4 The International Criminal Court, 437-482 KOSOVO, 619-703 Administrative Department ofjustice (ADOO, 623 Advocacy, law on, and other legal assistance, 674-692 Advocate's trainees, 686-687 Common work of advocates, 680-682 Disciplinary responsibility, 688-689 General provisions, 675 Legal assistance, 689-690 Main provisions, 676-688 Obtaining the license to practice advocac~ 682-684 Specialization, 684 Representation of parties from persons not advocates, 690-691 Rights and duties of, 678-680 Transitory and final provisions, 691-692 Applicable law in Kosovo, 619 Code of lawyers' professional ethics, 632 Criminal Defense Resource Center (CDRC),626 Legal assistance to defense lawyers, 626 Criminal law and criminal procedure law, 619-621 Defense counsel Confidentiality, 634 Defense counsel of one's choice, 628 Duties and discipline, 630-631

894 • Defense in International Criminal Proceedings KOSOVO (continued) Defense counsel (continued) Ex officio lawyers at public expense, 628-630 Law on Advocacy and Other Legal Assistance of 1979,630-633 Legal assistance, 628-630 Right to have, 626-630 Rights of, 633-634 Termination of, 631-632 Waiving right to, 627-628 Kosovo Bar Association Administration of, 674 Personal income, 692 Suspension and termination of right to practice, 684-686 Bar's Registers, 648-650 Bar's structure, 654-664 Appeal Assembly commission, 661 Assembly of the Bar, 655-657 Disciplinary Prosecutor, 661-663 Executive Council of the Bar, 657-660 Higher Disciplinary Court, 663-664 President of the Bar, 660-661 Disciplinary liability for lawyers and assistants Commencement of the disciplinary procedure, 666-667 Disciplinary Court procedure, 667-669 Statute of limitations, 669-670 Types of infringements and disciplinary measures, 664-666 Final and transitional provisions, 674 Finances, 672-673 General provisions, 644-646 Inscription and stamps of, 673 Lawyer's interim substitute and authorized representative, 653-654 Lawyer's specializations, 671-672 List of, 671 Library of the bar, 670 Licensing of advocacy, 646-648 Professional assistant, 648 Publication of a bulletin, 672

Rights and duties of lawyers and professional assistants, 651-653 Statute of, 644-674 Mandatory legal assistance, 627 Mixed tribunals and, 634-644 Procedure applicable, 634 Role of defense counsel at the appeal stage, 643-644 Grounds for, 643 Nature of Kosovo Supreme Court's decision, 644 Role of defense counsel at the main trial, 640-643 Closing statement, 642-643 Evidence, 641-642 Guilty plea, 640-641 Role of defense counsel at the pre-trial state, 635 Confirmation hearing, 639-640 During the investigation, 635-637 Filing and confirmation of the indictment, 637-640 Guilty plea, 639-640 Observance of human rights standards, 621-624 List of treaties, conventions, etc., 621-622 Professional Ethics, Code of Lawyers' , 692-703 Advertising and soliciting, 701-702 Basic principles, 692-694 Defense and representation in criminal cases, 696 Legal assistance to people in need, 700 Management of lawyer's office, 700 Mutual relations between lawyers, 698-699 Obligation to inform regarding compensation, 697 Professional secrecy, 694 Relations of lawyer with opposite party, 697-698 Relations with Bar Association, 696 Relations with client, 694-695 Relations with Courts, Administrative Bodies, et seq., 696-697 Relations with Praktikants (law students, etc.), 699-700 Representation expenses, 702-703

Index • 895 KOSOVO (continued) Provisional Criminal Procedure Code of Kosovo (PCPCK), 626 et seq., 633 Order during trial, 633 Representation before mixed tribunals, 624-625 Members of Kosovo bar as defense counsel, 624-625 Representation by foreign lawyers, 625-626 LANGUAGE REQUIREMENT, 96 Arabic, 819, 828 LAWYERS Advocate as, 624 Basic Principles on the Role of Lawyers (UN), 12, 16 Definition, 581 LEGAL AID, 79-87, 185, 484, 487, 550, 558-559,711-716 LEGAL AID SOCIElY OF NEW YORK CIlY, 36 LEGAL ASSISTANCE See also COUNSEL, and as a subhead to major topics

Adequate facilities, 24 Counsel of choice, 17-18 Effective counsel, right to, 20-21 Harassment of counsel, 17-18 Interes~ofjustice,16-17 International human rights law, 8-21 Special situations, 28-30 Juvenile matters, 28-29 Non-lawyer, by a, 9-10 Notice of, 22 Prison inmates, 14 Pro se, 8 Right of accused to effective participation in the trial, 27 Right to in criminal matters, 13-23 Costs, 18-20 Duration of representation, 16-17 Minimum guarantees, 9-10 Presumption of innocence, 15-16 Principle of access to a court, 14 Principle of equality of arms, 15 Scope of, 16-1 7

Special situations under international human rights law, 26-28 Structural guidance as to implementation, 12-13 Students in law school clinical programs, etc. 11-12 Suspension of during national emergencies, 29-30 Through other state entities and NGOs, 10-11 Unwanted counsel, 17-18 LIEBER CODE, 33 MACARTHUR, DOUGLAS Supreme Commander of the Allied Powers (SCAP) , 49 Trials conducted in Yokohama, 49 Yamashita trial and, 49-50 MAME MANDIAYE, NIANG, xxxii, 4 MARTINEZ, MONICA, xxxii, 4 ICn:, 67-136 MILITARY COURTS Civilian or military courts for international criminal offenses, 31 Right to legal assistance and counsel, 29 MILOSEVIC, SLOBODAN, 1 See also CASE TABLE MIXED TRIBUNALS, 619-866 See specific countries for detailed indexing Cambodia, 830-866 East Timor, 703-730 Guantanamo Bay, 806-876 Iraqi Special Tribunal, 817-830 Kosovo, 619-703 Sierra Leone, 730-806 NATIONAL COURTS Right to before surrender to the ICC, 453-454 NATIONAL EMERGENCIES Suspension of right to legal assistance and, 29-30 NAZIS, 63 NIANG, MAME MANDIAYE ICTR, 137-435

896 • Defense in International Criminal Proceedings

NONGOVERNMENTAL ORGANIZATION, 10-11 Fair Trials Abroad, 586 NUREMBERG See INTERNATIONAL MILITARY TRIBUNAL AT NUREMBERG OFFICE FOR LEGAL AID AND DETENTION MATTERS (OLAD),487 OGETTO, KENNEDY, xxxiii, 4 ASSOCIATIONS OF DEFENSE COUNSEL, 483-617 OTHMAN, MOHAMED C., xxxiii, 5 Cambodia, 830-868 PRE-TRIAL RIGHTS TO COUNSEL, 22-26 Adequate facilities, 24 Adequate time to prepare, 23-24 Confidential communication with counsel, 24-26 Early access to counsel for detained persons, 22-23 Notice of, 22 Right of accused to effective participation in the trial, 27 Right to counsel at trial, 26-27 PRESUMPTIONS Facts, 412-423 Presumption of innocence, 15-16,597, 598-599,613,847 PROCEDURAL SAFEGUARDS See also COUNSEL, LEGAL ASSISTANCE Bibliography, 30 International human rights law and, 7-30 Introduction and overview, 7-8 PROFESSIONAL ETHICS-ICn:, 100-127 See also SPECIFIC CASES Conduct before the tribunal, 108-109 Art. 20: Rules of the Tribunal, 108 Art. 21: Disorderly conduct, 108, 480 Art. 22: Communications with the Chambers, 108 Art. 23: Candour toward the Tribunal, 108-109 Art. 24: Integrity of evidence, 109

Art. 25: Meritorious proceedings and claims, 109 Art. 26: Counsel as witness, 109 Disciplinary regime, 113-118 Art. 37: Purpose, 113 Art. 38: Inherent powers of the Tribunal, 113 Art. 39: Filings, Decisions and Orders, 113 Art. 40: Disciplinary Panel, 113-114 Art. 41: Submission of complaints, 114 Art. 42: Summary dismissal of complaints, 114 Art. 43: Withdrawal of complaints, 114 Art. 44, Investigation of alleged misconduct, 114-115 Art. 45: Interim suspension from practice, 115 Art. 46: Charges against counsel and proceedings and hearings, 115-116 Art. 47: Findings and sanctions, 116-117 Art. 48: Appeal to the Disciplinary Board, 117-118 Art. 49: Costs, 118 Art. 50: Non bis in idem, 4.3.2.3 Introduction, 79 Maintenance of the integrity of the profession, 112 Art. 35: Misconduct, 112 Art. 36: Reporting misconduct, 112 Obligations of counsel Art. 7: Purpose, 103 Art. 8: Scope of representation, 103 Art. 9: Declining, terminating or withdrawing representation, 104 Art. 10: Competence, integrity and independence, 104 Art. 11: Diligence, 105 Art. 12: Communication, 105 Art. 13: Confidentiality, 105 Art. 14: Conflict of interest, 105-106, 120 Art. 15: Sexual relations with clients, 106

Index • 897 PROFESSIONAL ETHICS-IClY (continued)

Obligations of counsel (continued) Art. 16: Client under a disability, 107 Art. 17: Consultations with clients on provisional release or at liberty, 107 Art. 18: Fee-splitting, 107 Art.19: Fees and compensation, 107-108 Obligations of counsel to others, 109-111 Art. 27: Persons facilitating or participating in the proceedings, 109-110 Art. 28: Victims and witnesses, 110 Art. 29: Unrepresented persons, 110 Art. 30: Prospective clients, 111 Art. 31: Referral fees, 111 Rule 46: Misconduct of counsel, 101 Rule 77: Contempt of the Tribunal, 101, 119, 123 Supervisory and subordinate conduct, 111-112 Art. 32: Responsibilities of supervisory counsel, 111 Art. 33: Responsibilities of subordinate counsel, 111 Art. 34: Responsibility for other team members, 112 REEL, FRANK, 50-56 RIGHT TO COUNSEL See as subheading to other topics

SERVATIUS, ROBERT, 57-61 SHAM PROSECUTIONS, 722-723 SIERRA LEONE, 730-806 Articles, 786 Defence Unit, 801-802 Legal assistance free of charge, 789-791 No Peace withoutJustice, 786-803 Requirement of a defense system, 787-791 Public Defender or List System, 791-801 Assignment of counsel, 744-756 Art. 1. Use of terms, 744-746

Art. 2: Right to counsel, 746 Art. 3: Right to counsel if indigent, 746 Art. 4: Indigence and partial indigence, 746-747 Art. 5: Request for assignment of counsel, 747 Art. 6: Applicant's financial condition, 747 Art. 7: Declaration of means, 747 Art. 8: Investigation, 747 Art. 9: Decision by the principal defender, 748 Art. 10: Assignment of counsel in the interests ofjustice, 748 Art. 11: Notification of the decision, 748 Art. 12: remedy against a decision not to assign counsel, 748 Art. 13: Placement of counsel on the list of qualified counsel, 749-750 Art. 14: Scope of the assignment, 750 Art. 15: Applicable law, 750A Art. 16: Provisional assignment agreement and legal services contract, 751 Art. 17: Statement of remuneration, 752 Art. 18: Provisional payment, 752 Art. 19: Sharing of payment, 752 Art. 20: Travel expenses, 752-753 Art. 21: Approval of remuneration and expenses, 753 Art. 22: Settlement of disputes, 753 Art. 23: Withdrawal of assignmentaccused no longer indigent, 753-754 Art. 24: Withdrawal of assignment in other situations, 754 Art. 25: Replacement, 755 Art. 26: Provision of facilities, 755 Art. 27: Amendment of the directive, 756 Art. 28: Entry into force, 756 Preamble, 744 Case law and practice, 764-786 See also CASE TABLE Additional resources, 769

898 • Defense in International Criminal Proceedings

SIERRA LEONE (continued) Case law and practice (continued) Court appointed counsel, 782 Issue of non-appearance, 775 Self-representation, 764 Standby counsel, 772-774 Withdrawal of counsel, 782 Constitution, 756-760 Protection for privacy of home and other property, 758 Recognition of fundamental human rights-freedom of individual, 756-760 Secure protection of law, 758-760 Principal Defender, Office of (OPD), 730 Administration support, 806 Assignment of counsel, 805 Duty of counsel, 804-805 Legacy,806 Legal basis in statute and RPE, 803-804 Legal support, 805 Outreach, 806 Reconciliation Commission, et al Statement from person in custody, 760-762 Rules of Procedure and Evidence, 732-744 Investigations, Rights of Suspects and Accused, Rule 42: Rights of suspects during investigation, 732-733 Rule 43: Recording questioning of suspects, 733 Rule 44: Appointment and qualification of counsel, 733 Rule 45: Defence office, 733-734 Rule 45 bis: Declaration of means by the accused, 734 Rule 46: Misconduct of counsel, 735 Rule 60, 780 Rule 61: Initial appearance of accused and plea, 735-736 Rule 62: Procedure upon guilty plea, 736 Rule 63: Questioning of the accused, 736 Rule 64: Detention and remand, 736 Rule 65: Bail, 736-737

Rule 65 bis: Status Conference, 737 Rule 66: Disclosure of materials by the Prosecutor, 737-738 Rule 67: reciprocal disclosure of evidence, 738-739 Rule 68: Disclosure of exculpatory evidence, 739 Rule 72: Preliminary motions, 739 Rule 72 bis: General provisions on applicable law, 740 Rule 73: Motions, 740-741 Rule 73 ter. Pre defence conference, 741-742 Rule 74: Amicus Curiae, 742 Rule 77: Contempt of the Special Court, 742-743 Rule 97: Lawyer-client privilege, 744 Special Court (SCSL) for, 730 First Annual Report, 762-764 Headquarters Agreement, 760-764 Art. 18: Counsel, 760 Statute of the Special Court for Sierra Leone, 731-732 Art. 14: Rules of Procedure and Evidence Art. 16: the Registry, 731 Art. 17: Rights of the accused, 731-732 SILENT, RIGHT TO REMAIN, 613 SIMMONS, ALAN, xxxiii, 5 Kosovo, 619-703 SKILBECK, RUPERT, xxxiii, 5 Sierra Leone, 730-806 SPIES, 33 STATUTE OF LIMITATIONS, 561, 669-670 STUDENTS, LAW, 11-12,699-700 Law school clinical programs, etc. 11-12 THOMAS,].F., COUNSEL FOR BREAKER MORANT, 33 TIMOR-LESTE, 723-724 TREATIES, 34 TREAlY OF VERSAILLES, 35 UNAC, HELEYN, xxxiii Kosovo, 619-703 UNITED NATIONS Bringing grievances to, 506-507

Index • 899 UNITED NATIONS (continued) Economic and Social Council, 29 Office of Internal Oversight Services (IDjOIOS), 268 ET SEQ. Secretary General East Timor, 724-726 United Nations Detention Facility (UNDF), 174, 300-305, 305-307 United Nations Detention Unit (UNDu),133-134 United Nations-Cambodia Agreement, 840-842 See also CAMBODIA UNITED STATES Assigned counsel Scope of right to, 35-38 Court martial, 37 Due process of law, 36 Forced confessions of black suspects, 38 Fourteenth Amendment, 36 Law school clinical programs, 11-12 Sixth Amendment, 36, 69 UNIVERSAL DECLARATION ON HUMAN RIGHTS Procedural safeguards and, 7-8 VIENNA CONVENTION ON THE LAW OF TREATIES (VCLT), 450-451 VIETNAM, 55

WILLIAMS, SARAH, xxxiii, 5 The Iraqi Special Tribunal, 817-830 WILSON, RICHARD J. xxxi, 2, 4, 5 Defending Detainees at Guatanamo Bay, 806-81 7 Defense Counsel in International Criminal and War Crimes Tribunals. 31-66 Procedural Safeguards for the Defense in International Human rights Law, 7-30 WITNESSES, 39, 110,321-323,552-556, 810 See also CASE TABLE Communication with, 482, 863-865 Counsel as, 109, 239 Experts as, 842 Protection of, 316, 318-320, 842 Testimony of, 321 WORDEN, SCOTT, xxxiii, 5 Cambodia, 830-868 WORLD WAR II Scope of right to assigned counsel in U.S. and Europe, 35-38 ZACKLIN, RALPH, 506