Global Policy Forum

Defending the Defenders


By Katy Glassborow *

Institute for War and Peace Reporting
August 21, 2006

New ICC department aims to create a level playing field for defence and prosecution.

The International Criminal Court has introduced a dedicated support team for defence lawyers in an effort to ensure that trials are conducted as fairly as possible. With some media outlets already rushing to pronounce war crimes indictees guilty before they've even been arrested, the ICC is determined that suspects remain innocent until otherwise proven. In order to do this, the ICC has created a special department, independent of the rest of the court, to support defence teams, the Office of Public Counsel for the Defence, OPCD. The OPCD aims to raise the profile of the defence and to make sure that everything the court does "factors in the presumption of the innocence of the accused", said Melinda Taylor, a onetime lawyer at The Hague's International Criminal Tribunal for the former Yugoslavia, ICTY, who has been tasked with overseeing the department.

Level Playing Field

The OPCD's mandate is to see that there is "equality of arms": that the prosecutor does not have a head start over the defence. Before a suspect is even arrested, the OPCD plans to start identifying areas of concern in order to be able to give proactive advice to the defence teams once they're assembled, building up their capacity to respond quickly, and so protect the interests of their clients. Taylor is also pressing for lawyers acting for accused to be allowed to have access to confidential documents relating to other cases so that they acquire an understanding of how prosecution policy is implemented.

George Gebbie, a lawyer from the European Criminal Bar Association, whose name is on the list of ICC defence counsel, said the assistance provided by the OPCD is vital for lawyers from developing countries and helps to create a level playing field in general. A specific example of the kind of advice the new body will offer is an explanation of what they are entitled to from the prosecutor in the form of relevant and exculpatory evidence. It is the prosecutor's job to conduct investigations into allegations of war crimes, but the onus is also on his team to hand over any evidence that might exonerate an individual. Gebbie explained that if the prosecution does not investigate a line of enquiry, which could potentially clear the accused, a case could be dismissed.

Logistical Support

Further assistance for the defendants and their lawyers is provided by the Division of Victims and Counsel, a court body responsible for administering legal aid; helping the accused understand their rights; and assisting their legal representatives in the field with visas, travel arrangements and encouraging governments to cooperate with them. Ad hoc tribunals are also working to secure logistical support for defence teams. Sebastian Van de Vliet, head of the Office of Legal Assistance and Detention, OLAD, at the ICTY, told IWPR that its legal aid provisions entitle an accused to a permanent defence team, including field investigators.

Mark Ellis, the executive director of the International Bar Association, said ensuring equality of arms by supporting defence teams in the field is especially necessary in countries emerging from, or still embroiled in, conflict. If in a situation like Sudan it is not possible for the defence to have the same access and support as the prosecutor, Ellis says "the trial of the accused should not go forward".

New Role for Victims

For the first time in the history of international justice, victims of war crimes are participating in cases against suspected war criminals at the ICC in ways other than as witnesses. They are being invited to give their opinions through legal representatives and could potentially even question the accused in court. But some human rights lawyers that IWPR spoke to are concerned that victims might act as second prosecutors, which could prejudice the rights of the accused. As there are normally several sides to a conflict, Taylor believes victims could play an instrumental role in ensuring that the right person is convicted, although she cautioned that victims should be considered independent participants, and "must not be automatically aligned to the prosecution".

While the ICC's declared aim is to ensure that the prosecution and the defence are on equal footing, the court has not helped itself in this regard by moving the defence teams to a separate building near The Hague's central station. Taylor said it would have made sense to have moved both the prosecution and defence from the main building, so both parties are treated equally.

Ringing the Changes

Being the newest tribunal has advantages for the ICC. The court is staffed by many who previously worked at the likes of the ICTY and the International Criminal Tribunal for Rwanda, ICTR, bringing with them their experience of past errors and best practice. That said, the older tribunals are also learning from their own mistakes, and trying to implement new policies to remedy them. Several years ago at the ICTY, defence teams were not allowed into the cafeteria because of fears they might overhear confidential information.

Things changed after the Association of Defence Counsel, ADC, an association of lawyers set up to champion the rights of defence, gained official recognition by the tribunal in 2002. Van de Vliet told IWPR that although it is too late in the life of the ICTY to create an equivalent OPCD, OLAD is supporting the ADC to be very active at the court. According to Van de Vliet, the days of the defence not being allowed into the cafeteria have long gone, and that policies like this were changed following cooperation between the ICTY's Registry and the ADC.

To raise the profile of defence at the ICTY, there are now stricter regulations on who can be a tribunal defence lawyer. Standards are a lot higher than they were, with lawyers needing seven years experience in criminal proceedings, as well as established competence in international human rights law and a clean disciplinary record. They also need to be a member of the ADC.

Local Conduit for International Justice

It is not just important to build up the credentials of international defence lawyers at the war crimes tribunals, but also those of indigenous lawyers who might one day be faced with defending accused from their own country. Cases are only referred to the ICC if the country in question is unwilling or unable to prosecute those suspected of war crimes on its territory. Some observers argue that one of the most complex tasks faced by the ICC is helping to build up the rule of law in the countries it deals with, so that local judiciaries are in a position to try war crimes suspects rather than referring them all to The Hague. To this end, Taylor is committed to providing local defence lawyers and NGOs with legal resources and arranging outreach seminars on the application of law and defence rights. She said this is money well spent because local courts "can be a sustainable conduit for international justice".

Important Legacy

All the countries that have signed up to the ICC must knit implementing legislation, based on the Rome Statute that governs the ICC, into their national laws, so that lawyers dealing with crimes at a national level will prosecute in compliance with the Rome Statue. However, Ellis said it is too much to ask the ICC to ensure local jurisdictions conduct fair trials that are commensurate with those in The Hague.

He stressed that the ICC was not created to oversee the reconstruction of a country's legal system, but that it is "the UN's responsibility, through bilateral and multilateral assistance, to build a country's trial capacity". He said international justice will achieve continuity if all member states successfully adapt domestic legislation to enable them to try international crimes. This, he concluded, would be the ICC's most important legacy.

About the Author: Katy Glassborow is an IWPR reporter in The Hague.

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