By Chief Charles A. Taku
The preamble of the United Nations Charter, establishes conditions under which“justice and respect for the obligations arising from treaties and other sources of international law” can be maintained for “promoting social progress and better standards of life in larger freedom”.To underscore this commitment, Article 1 of the United Nations Charter specifies that collective peaceful measures required for the prevention and removal of threats to peace; the maintenance of international peace and security should conformto “the principles of justice and international law”. The “right to defense and legal assistance of choice” before “competent, independent and impartial tribunals established by law” constitutes one of the minimum guarantees afforded by the UN System, multilateral and bilateral treaties for the attainment of this goal. The trials that were organized after WW II were a major test of the collective resolve of the civilized world to attain this goal. Was this goal attained? If it did, why then is the recognition of the defense as an independent organ of international tribunals and courts still elusive almost some 75 years after this stated goal? The main function of criminal trials is to establish the guilt or innocence of accused through fair processes. According to Professor JeniaIontcheva Turner, even the Nuremberg proceedings were expected to comply with notions of fairness and individual criminal responsibility. However, the Tribunals establish for that purpose like all other international criminal tribunals and this includesICTR whose legacy we are celebrating, had a mandate to establishedenduring standards for future trials.
It was in so doing that these tribunals could validly be said to present clear alternatives to international criminality, impunity and the scourge of war that threatened and still threatens humanity; jeopardizing our common destiny. To fulfill this purpose, the tribunals had legitimately to be seen as platforms of fairness, independence and equality from which to assert and proclaim the primacy of the rule of law over impunity and international criminality. Fairness, independence and equality in this context required institutional independence of Judges, the Registry, the Prosecutor and the Defense. The intendment of article 1 of the UN Charter is discernablein article 14 of the Intentional Covenant on Civil and Political Rights (1966) which laid down the minimum standards for the guarantees of fair trials. The Security Council through itsremarkable recognition of the defense as an independent organ of the Lebanon Tribunal led by example in the fulfillment of this pledge and indisputably set the standard for all international courts and tribunals to follow. The statutes of theICTR, art 20, ICTY art 21, SCSL art 17, ICC art 67, East Timor, Regulation 2000/30 as amended, recognize the minimum fair trial guarantees afforded accused persons under article 14 of the ICCPR but not the institutional independenceof the defense for the effective enforcement of these rights.This omission does not accord withthe“the principles of justice and international law” enshrined in article 1 and the preamble ofthe UN Charter and the minimum fair trial guarantees contained in their respective statutes.
The evolution of the Defense cannot be separated out from the implementation of all the fair trial guarantees to an Accused, under Articles 20 (ICTR), 21 (ICTY), 17 (SCSL) 67 ICC statutes.It is desirable that fora criminal trial process to be fair and seen to be fair; established values that serve the interest of humanity must be promoted and protected. To attain this goal, the principal participants in the trial process, and the defense is one, must be accorded equal recognition, independence and equal institutional status within which to function. The evolution of the defense from Nuremberg to the Special Court for Lebanon has been remarkable in some respects. Robert Gellately in his introduction to “The Nuremberg Interviews” by Leone Goldensohn states that the main proceedings comprising “prosecution and defense presentations, lasted over nine months” and that there were four judges, and four prosecutors (with alternates), each with a team of his own, all drawn from the victorious powers-the United States, Great Britain, and the Soviet Union, along with France. The defense at Nuremberg was only recognized for its participation and presentations during the trials and not for its institutional independence, relevance and the resources provided for an effective defense. Despite the paucity of resources and the lack of recognition as an independent organ of the tribunal, the defense still managed to secure three significant acquittals; an impressive result in such circumstances.
Administrative and supervisory role of the Registrar
Lacking institutional recognition, the administration of the defense in international criminal tribunals and courts is placed under the authority of the Registrars of the respective courts. In defining the functions of the Registrar, the statutes of these courts are silent on the administration of the defense.
The Rules of Procedure and Evidence of international criminal tribunals and courts provide for the assignment of counsel, appointment of counsel,misconduct of counsel, appointment of duty counsel, while their specific directives regulate the activities of counsel.
Roaster of competent counsel
The Registrars of different courts and tribunals have been fairly successful in attracting pools of very competent and professional lawyers from the major legal traditions of the world.
One of the most significant factors inhibiting the independence and effectiveness of the defense is the lack of resources. Despite the fair trial guarantees contained in the statutes of many international courts and tribunals, the provision of adequate resources to the defense was and remains a significant challenge. The Appeals Chamber of the ICTY decided in the case of Prosecutor V. Tadic that an accused person is entitled to an equality of arms in the preparation and presentation of his defense, which at minimum means that an accused have adequate time and facilities for his defense. However the Appeals Chamber held that this right is circumscribed by the availability of resources by the international tribunal.
In any case, whatever one's position; whether the defense is inside or outside the judicial institution, there must be equality of resources. Equality of arms must mean the same monies to the Defense as to the Prosecution, same number of positions and the same privileges and possibilities to contribute meaningfully to the judicial processes intended to deliver free and fair justice to accused, victims and the world at large.
Security of counsel
Despite the protections and functional immunity provided lawyers in the performance of their duties provided by The Basic Principles on the Role of Lawyersadopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, Havana, Cuba, 27 August to 7 September, 1990”defense counsel at some international tribunals and courts were subjected to egregious violations, arrests and humiliating treatment. To their credit, the ICTR and the Special court for Sierra Leone will go down in history for affording the greatest protection possible to defense counsel in the fulfillment of their mandates. The arrest of lead counsel Gakwaya before and Peter Erlinder stand out among many. The Registrar Mr.AdamaDieng made appropriate representations to the UN and the states concerned that counsel appearing before the tribunal enjoyed functional immunity regarding the work they did relating to the defense of their clients appearing before the tribunal.The Appeals Chamber of the ICTR in the case of Peter Erlinder affirmed functional immunity and the privilege of counsel in the performance of his duties before the Tribunal and the privilege of all material relating to the case to which he was assigned. When the communication of Charles Taylor and his counsel were placed under surveillance and recorded at the ICC detention center at the Hague, upon appropriate representations made by the Registrar of the Special Court to the President of the court, the President made firm orders forthe immediate removal of the surveillance camera from any conference room used for legal consultations” and that“All communication between lawyer and client shall be regarded as privileged” unless otherwise ordered by a judge or a Chamber”.
Institutional defense management mechanisms
The ICTR established a Defense Counsel Management Section (DCMS) headed by a Senior Legal Officer working under the direct supervision of the Registrar. One enduring legacy of the ICTR is the establishment of the Lump sum system of payment of counsel professional fees after wide consultation with counsel and defense teams. This did not alleviate the dire budgetary constraints to which the defense was subjected. However, consulting the defense on a crucial matter concerning their mandate was a significant and unprecedented act of recognition and respect. The SCSL Registrar in Rule 45 of its Rules of Procedure and Evidence established the Office of the Public Defender whose functions were to ensure an effective defense at earlier stages, assign counsel and offer assistance to counsel. The Principal Defender exercised relative independence in providing support to counsel and accused persons and standing in for counsel at trial sessions when counsel for some reason could not attend court. The Office of the Public Defenderwas an improvement on the status of defense counsel.
Duties and obligations of the defense
Defense counsels are guided by ethical rules defined by the courts and tribunals. Defense counsels are officers of the court and thus, have duties towards their clients but also serve the proper administration of justice. The Appeals Chamber of the ICTR decided in Prosecutor V. Jean Bosco Barayagwiza that defense counsels participate in international tribunals to defend their clients but also to ensure the fairness and integrity of trial proceedings and the interest of justice. Permit me in conclusion to state thatthe journey from Nuremberg to the Tribunal for Lebanon has been long and tedious, takingclose toseventy-five years. Nevertheless, the wisdom of the Security Council and the International Community in according institutional recognition to the defense in the Lebanon Tribunal as an independent organ of the court must be celebrated. Unfortunately this solution has not been followed by other courts; in particular theICC where theRegistrarwho was in Sierra Leone and Lebanon when the successes being celebrated were recorded who regrettably is proposing to a solution that significantly undermines the independence of the defense. Additionally, the enduring legacies established by the ICTR and the Special Court for Sierra Leone regarding the protection of defense counsel and privileged communications, the lump sum system of payment and the Witness Protection Mechanism seems also not to have been followed. Yet this legacy belongs not to these courts and tribunals but to humanity at large and posterity. A disappointing lack of institutional dialogue between the courts and tribunals seem to have inhibited the application of the Lebanon Tribunal solution to a critical institutional problem. There is no acceptable justification to struggle with this matter any longer when an acceptable solution has been provided by the Security Council applying the principles of justice and international law” in recognizing the equality, independence, relevance and contributions of the defense to international criminal justice.
Chief Charles A. Taku is a Senior Contributing Editor of Cameroon Concord.