The Evolution of Defense Counsel
Appearing Before the International
Criminal Tribunal for the Former
Yugoslavia
Mark S. Ellis
∗There is no question that history will judge the Tribunals for the former Yugoslavia and Rwanda on the fairness or unfairness of their proceedings. Whether there are convictions or whether there are acquittals will not be the yardstick. The measure is going to be the fairness of the proceedings. - Justice Richard J. Goldstone1
INTRODUCTION
In 1993, the International Criminal Tribunal for the Former Yugoslavia (“ICTY,” “Tribunal”)2 was created under Chapter VII, Article 39 of the U.N. Charter, which empowers the Security Council “to maintain or restore international peace and security.”3 Born in the aftermath of some of the worst human rights atrocities committed in the latter half of the twentieth century, the ICTY has the seemingly insurmountable task of bringing those responsible to justice.
The Tribunal’s Statute provides for jurisdiction over “serious violations
∗ Mark Ellis is currently the Executive Director of the International Bar Association,
headquartered in London, England. Prior to joining the IBA, he acted for ten years as the Executive Director of the American Bar Association’s CEELI program. The author would like to thank Jennifer Kent for her valuable research and editorial assistance.
1. Richard J. Goldstone, Address Before the Supreme Court of the United States, 1996 CEELI Leadership Award Dinner (Oct. 2, 1996) (transcript on file with author).
2. See Statute of the International Criminal Tribunal for Persons Responcible for
Serious Violation of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia Since 1991, U.N. SCOR, 48th Sess., 3217th mtg. at 28, U.N. Doc.
S/RES/827 at art.1. (1993) [hereinafter ICTY Statute].
3. U.N.CHARTER, art. 39.
of international humanitarian law.”4 This essentially covers four types of crimes. The first type of crime falls under the 1949 Geneva Conventions, which protect certain persons such as prisoners of war and civilians in time of international conflict against “grave breaches” like willful killing, torture, and inhumane treatment.5
Violations of the Laws and Customs of War (War Crimes), established under the 1907 Hague Convention, are the second type of crime under the Tribunal’s jurisdiction.6 For instance, a state is prohibited from using poisonous weapons, wantonly destroying cities, towns or villages, or willfully damaging institutions dedicated to religion, charity, and education. The third criminal act punishable under the Tribunal’s Statute is the Crime of Genocide.7 Codified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, genocide constitutes “the intent to destroy, in whole or in part, a national, ethnic, racial or religious group.”8 Lastly, the Tribunal has jurisdiction over crimes against humanity as first recognized in the Nuremberg Trials.9 Crimes against humanity involve ongoing, widespread and systematic attacks, including deportation, imprisonment and rape directed against a civilian population.10
In contrast to the Nuremberg prosecutions, where membership in the Nazi party was a punishable offence, the Tribunal’s jurisdiction extends only to “natural” persons, not to “juridical” persons such as organizations.11 In essence, the prosecutors must prove that the defendant engaged in acts constituting serious violations of international humanitarian law as outlined by the above-mentioned criminal definitions; association or membership with a certain group is not enough evidence for conviction.
Representing those accused of some of the most heinous crimes of the past century are the defense counselors of the ICTY. The position of defense counsel of the ICTY has improved considerably since the Tribunal’s first case. The ICTY has made important changes to its rules and procedures to alleviate some of the financial and work burdens that initially
4. Id.
5. See Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T 3316, 75 U.N.T.S 135.
6. SeeICTY Statute, supra note 2, art. 3.
7. See Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, art. 2 [hereinafter Genocide]; see also ICTY Statute, supra note 2, art. 4; Charter of the International Military Tribunal, Aug. 8, 1945, [hereinafter Nuremburg Charter].
8. Genocide, supra note 7, art. 2.
9. See Nuremburg Charter, supra note 7, art. 6(c).
10. See ICTY Statute, supra note 2, art. 5.
11. Compare Nuremburg Charter, supra note 7, art. 10 withICTY Statute, supra note 2, art. 6-7.
plagued defense counsel appearing before it.
This article identifies several key issues relevant to defense counsel appearing before the ICTY. The author discusses the evolution of defense counsel within the context of these issues and whether their status has improved during the past ten years.
THE FINANCIAL POSITION OF DEFENSE COUNSEL
The growth of the ICTY, both financially and in terms of human resources, has been significant. The staff of the ICTY numbers approximately 1,052 (up from 258 in 1995) and its current annual budget is $223,169,800 (up from $38,819,700 in 1995).12 The ICTY has spent millions of dollars to support defense counsel for the accused.13 Approximately 90% of suspects and accused appearing before the ICTY require assigned counsel.14 In 1999, the ICTY spent $14 million for payments to assigned counsel, roughly 15% of its entire budget.15
Issues such as financial remuneration for defense counsel are handled through the ICTY’s Registrar. In 1994, the Registrar established the Directive on the Assignment of Defense Counsel.16 The Directive has been amended a number of times since 1994.17 The Directive, including the
12. See Approved Level of Fiscal and Staffing Resources ICTY 1994-2003. E-mail from Rommel Loveranes, Staff Assistant at the ICTY, to Mr. Ellis (Nov. 29, 2002) (on file with author).
13. See ICTY Press Release JL/P.I.S./479-e, U.N., Remark of Judge Richard May, Judge of the International Criminal Tribunal for the former Yugoslavia, to the Fourth Session of the Preparatory Commission for the International Criminal Court (Mar. 20, 2000) [hereinafter Judge May] (transcript on file with author).
14. See Financing of 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; Financing of 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 Neighboring States between 1 January and 31 December 1994;U.N. GAOR,
54th Sess., Agenda Items 142 and 143, at 64, U.N. Doc. A/54/634 (1999) [hereinafter U.N. Financial Report].
15. Id.
16. See Directive on Assignment of Defense Counsel, 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, U.N.
Doc. IT/73/Rev 1 (1994) [hereinafter Original Directive] reprinted in 33 I.L.M. 1576 (1994).
17. The Original Directive has been amended seven times: on 30 January 1995 (50th Sess., U.N. Doc. IT/73/Rev. 2 (1995)) [hereinafter 1995 Directive]; on 25 June 1996 (51st Sess., U.N. Doc. IT/73/Rev. 3 (1996)) [hereinafter 1996 Directive]; on 1 August 1997 (52nd
amendments, governs the procedures for the assignment of defense counsel, their conduct and the calculation and payment of their fees.18
Compensation for defense counsel is one area that has drastically changed over the years. Current defense counsel salaries have substantially improved from the first ICTY case against Dusko Tadic.19 The original 1994 Directive on Assignment of Defense Counsel provided for limited remuneration for defense counsel.20 Assigned counsel was paid according to three separate schedules. First, attorneys were paid on a fixed rate basis at $400, payable at specific stages of the trial.21 In the Tadic case, there were two stages for a total of $800. The second type of payment was a daily allowance for the attorneys who came from outside of The Hague. The payment was based on the United Nations Schedule of Daily Sustenance Allowance Rates.22 The third type of payment and the most important was the daily fee. The daily fee was fixed to the number of days worked and, for assigned counsel, was limited to $200 a day.23 The reason for such low fees was that such payments were determined in 1995 and were premised on a pre-trial and trial stage that would last approximately nine months. The fact is that trials have lasted much longer than initially anticipated.24
Looking back at the Tadic case, assigned counsel spent twelve to fourteen hours a day, six days a week completing pre-trial and trial work.25 Counsel prepared for more than eighty-five cross-examinations, and for over thirty-five direct examinations of defense witnesses.26 When calculated on the basis of a seven and one-half hour workday, the lead defense counsel was paid $26 per hour, which also had to cover general
Sess., U.N. Doc. IT/73/Rev. 4 (1997)) [hereinafter 1997 August Directive]; on 17 November 1997 (52nd Sess., U.N. Doc. IT/73/Rev. 5 (1997)) [hereinafter 1997 November Directive]; on 10 July 1998 (53rd Sess., U.N. Doc. IT/73/Rev. 6 (1998)) [hereinafter 1998 Directive]; on 19 July 1999 (54th Sess., U.N. Doc. IT/73/Rev. 7 (1999)) [hereinafter 1999 Directive]; and on 15 December 2000 (55th Sess., U.N. Doc. IT/73/Rev. 8 (2000)) [hereinafter 2000 Directive]. See Rules of Procedure and Evidence, U.N. Doc. IT/32/Rev. 26 (2002) [hereinafter ICTY Rules]. The various Directives implement ICTY Rules 44 and 45 regarding qualification and assignment of counsel. See id.
18. See Stuart Beresford, The International Criminal Tribunal for the Former
Yugoslavia and the Right to Legal Aid and Assistance, 2 INT’L J.HUM.RTS. 49 (1998).
19. See Prosecutor v. Tadic, Case No.: IT-94-1-T, Judgement, 13 Feb. 1995.
20. See Original Directive, supra note 16.
21. See id. art. 24.
22. See id. art. 23.
23. See id. art. 25.
24. See U.N. Financial Report, supra note 14, at 75-76.
25. See Telephone Interview with Stephen Kay (Sept. 10, 2002).
administrative costs for the counsel’s office.27 The remuneration was hardly commensurate with the amount of time devoted to the case.
Since Tadic, changes in compensation for counsel have generally improved. The 2000 Directive countermanded earlier directives and raised the fixed rate from $400 to $2,000.28 The fixed daily rate has also been raised considerably. The Tadic defense counsel petitioned the ICTY Registry for an increase in his daily fee.29 In what would be an extremely important decision by the Registrar to assist the defense counsel, an informal agreement was negotiated, increasing the fee from $200 to $825 a day ($110 per hour).30 The 1996 Directive formally legitimized this arrangement by increasing the rate to $110 per hour for counsel with twenty years or more experience.31
Presently, lead counsel at the ICTY is remunerated at a rate of between $80 and $110 per hour (depending on the years of experience) up to a maximum of 175 hours per month.32 Thus, today an experienced counsel could earn more than $230,000 per year.33 Expenditures such as phones, mailing, office equipment, rent, fax services and secretarial support are included in the payment to counsel of fees and costs.34 On average, a defense team in the ICTY at the pre-trial stage costs the Tribunal $22,000 to $25,000 per month and during the trial, the costs increase to about $45,000.35 These new pay scales are sufficient to attract quality European and North American attorneys.36
As to defense counsel fees, the Tribunal does not distinguish between an assigned counsel from the U.S. and one from the former Yugoslavia, although the latter would receive a significant windfall in comparison to
27. William W. Horne, For the Record: Mikhail Wladimiroff, AM.LAW.,Apr. 1996, at 71, 75.
28. See 2000 Directive, supra note 17, art. 25.
29. See Telephone Interview with Alphons Orie (Sept. 10, 2002).
30. Seeid.
31. Other figures provided for 1996 were: Counsel with 15-19 years of experience ($100/hr); 10-14 years of experience ($90/hr); 5-9 years of experience ($80/hr). See 2000 Directive, supra note 17, annex VI.
32. See 1999 Directive, supra note 17, annex I.
33. In addition to the hourly rate, counsel is paid a fixed rate for each stage of the proceedings, in order to allow counsel familiarity with the pertinent documents of the case and applicable law. Since 1998, that amount has been established at $2,000 per stage (i.e., pre-trial, trial and appeal). Co-counsel receives a fixed rate of $80 per hour, up to a monthly maximum of 175 hours (up to $14,000 per month). See 2000 Directive, supra note 17, ch. 7.
34. See 2000 Directive, supra note 17, art.2.2.(B)
35. See U.N. Financial Report, supra note 14, at 64.
36. See Developments in the Law: III. Fair Trials and the Rule of International
their “normal” fees. For attorneys who work in developing economies, such as attorneys from the former Yugoslavia, the money is remarkable by local standards.37 Considering that on average an attorney in Belgrade earns $100-$215 per client,38 the ICTY work is significant compensation.
Due to the large bureaucracy associated with the current method of billing, the ICTY is currently considering a plan that could provide a lump-sum payment for each case.39 The ICTY Registrar and a number of defense counsel support this change because it would eliminate the significant burden of preparing, reviewing and paying individual invoices.40
THE ASSIGNMENT OF COUNSEL
Another major change regarding defense counsel has been the actual assignment of counsel by the ICTY. The Original Directive entitled the suspect or the accused to one attorney as assigned counsel.41 The word “one” was literal.42 However, due to the enormous amount of work involved in the Dusko Tadic case, the assigned counsel successfully petitioned the ICTY for an additional defense attorney.43 In 1996, as a result of the Tadic trial, the Original Directive was amended again to allow the possibility of assigning a second counsel to the accused “[u]nder
37. See Tracy Wilkinson, One Reason to Take onWar Crimes Tribunal Lawyers are Scrambling to Represent Suspects in the Balkans. It Means Long Hours and Risking Death
Threats. But it also offers a Chance to Rewrite Case Law—and the Pay’s Good, L.A. TIMES,
May 15, 1998, at A3.
38. See Interview with Blazo Nedic, Attorney, in Belgrade, Yugoslavia (Nov. 26, 2002) (on file with author). Attorneys in the former Yugoslavia charge a fee per action. The amount of the fee depends on the maximum stipulated sanction. For example, for a possible sanction of up to three years’ imprisonment, an attorney would charge 3,000 dinars (50 USD) to draft a legal document, and 3,500 dinars (58.33 USD) for a court appearance. For 3-5 years’ imprisonment a lawyer earns about 100 USD per action. For 5-10 years’ imprisonment a lawyer earns about 175 USD per action. For 10 years’ and above imprisonment a lawyer earns about 215 USD per action. See id.
39. See U.N. Financial Report, supra note 14, at 76.
40. See Interview with Hans Holthuis, ICTY Registrar (Oct. 11, 2002) [hereinafter Holthuis Interview].
41. See Original Directive, supra note 16, art. 16A.
42. See id.Article 16A of the Directive stated 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 the procedure and all matters arising out of the representation of the suspect or accused or of the conduct of his defense.” Id.
43. See Mark S. Ellis, Achieving Justice Before the International War Crimes
Tribunal: Challenges for the Defense Counsel, 7 DUKE J.COMP.&INT’L L. 519, 528 (1997).
The ICTY Registrar reasoned that the Directive, while limiting counsel to one attorney, nevertheless allowed discretionary use of funds to secure the services of a defense counsel consultant. See id.
exceptional circumstances.”44
By 2000, the ICTY again relaxed the ruling regarding co-counsel. The current Directive provides that, “[i]n the interests of justice and at the request of the person assigned as counsel, the Registrar . . . may assign a second counsel to assist the lead counsel.”45 In fact, the current ICTY Registrar has made it a pro forma practice to provide not only co-counsel to the defendant but investigators and translators as well.46 The Registrar has also provided defense counsel with “language assistants” who help identify relevant issues from the copious volumes of transcripts and evidentiary documents.47
Attorneys interested in becoming ICTY defense counsel join a long list of attorneys from all over the world who have met U.N. requirements to be added to the list of persons willing to represent indigent accused and detainees.48 Between 1996 and 1997 alone, the attorneys willing to represent indigent suspects rose from thirty-one attorneys from eleven countries to two hundred-thirty attorneys from seventeen countries.49 The lawyers represent a variety of countries in the world including Bosnia Herzegovina, Croatia, Serbia and Montenegro, Canada, France, the United States and the United Kingdom.50 The vast majority of defense attorneys come from the former Yugoslavia (66%). Presently, there are four hundred-thirty attorneys registered under the Rule 45 list.51 Any attorney who wishes to be considered for defense counsel simply notifies the Registrar.52
44. 1996 Directive, supra note 17, art. 16. “Under exceptional circumstances and at the request of the person assigned as counsel, the Registrar may, in accordance with Article 14 . . . assign a second counsel to assist the lead counsel. The counsel first assigned shall be called the lead counsel.” Id. The 1996 Directive also outlined the roles of lead counsel and co-counsel, stating that “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 defense. Lead counsel shall sign all documents submitted to the Tribunal unless he authorizes co-counsel.”
Id.
45. 2000 Directive, supra note 17, at Ch. V, art. 16(c).
46. See Holthuis interview, supra note 40.
47. See id.
48. See Statement by the Registrar, Mr. Adama Dieng, on Some Issues Relating to the
Defence of Accused Persons,ICTR/INFO-9-3-02.EN, (June 13, 2001).
49. See Beresford, supra note 18, at 59.
50. The percentage breakdown of nationalities of defense counsel appearing before the ICTY, as of October 1999, is: Former Yugoslavia (66%); USA (20%); UK (8%); France (4%); Canada (2%); and others (34%). See Michael Bohlander, International Criminal Defence Ethics; the Law of Professional Conduct for Defense Counsel Appearing Before
International Tribunals, 1 S.D. INT’L L.J. 75-78 (2000).
51. See Telephone Interview with Laurent Wastelain, ICTY Staff (Dec. 10, 2002) [hereinafter Wastelian Interview].
When the criteria are met, the ICTY Registrar assigns counsel from the list to a defendant found to be indigent. The criteria to join the list are not too burdensome. The ICTY requires defense counsel to have knowledge of its two working languages (French or English), unless there are exceptional circumstances.53 It requires the defense counsel only to be admitted to practice law in any country (not necessarily in their home country) or have a position as a university professor of law.54 One of the major ongoing problems with the selection of defense counsel is that these minimal standards were and still are insufficient to guarantee qualified counsel. The standards lack any proof of continual legal education, trial experience, or knowledge of international humanitarian law.55 The main objective of keeping these minimal standards is to be as inclusive as possible in having the widest number of available counsel.56 The ICTY did try to strengthen the standards for counsel by amending its Directive in 2000 to require
of his interest in acting as counsel to indigent suspects. On October 19, 1994, the Acting Registrar for the ICTY, Theo van Boven, responded to Mr. Wladimiroff in a letter stating the following:
Rule 45(a) of the Rules of Procedure and Evidence requires for the Registrar to keep a list of counsel who speak one or both of the working languages of the Tribunal, meet the requirements of Rule 44 and have indicated their willingness to be assigned by the Tribunal to indigent suspects or accused. In light of the information provided in your letter and your curriculum vitae your name will be placed on the list.
Telephone Interview with Michail Wladimiroff (Sept. 10, 2002).
53. See 2000 Directive, supra note 17, art. 14. An amendment to the ICTY’s Rules of Procedure and Evidence allows for the appointment of counsel who does not speak English or French. Rule 45 (A) (ii) now reads:
In particular circumstances, upon the request of an indigent suspect or accused, the Registrar may be authorised, by a Judge or a Trial Chamber, seized of the case, to assign counsel who speaks the language of the suspect or the accused but does not speak either of the two working languages of the Tribunal.
Rules of Procedure and Evidence, Amendments Adopted during the Eleventh Plenary
Meeting, Rule 45 [hereinafter Rules]. This same language is found in the 1997 Directive,
supra note 17, art. 14. This change is also reflected in the 1996 Directive, which reads:
In particular circumstances, a Judge or the Trial Chamber seized of the case may, upon the request of the suspect or the accused, authorise the Registrar to assign counsel who speaks the language of the suspect or the accused but does not speak either of the two working languages of the Tribunal.
1996 Directive, supra note 17, art. 14(B).In the Erdemovic case, the defense counsel was assigned to the accused even though he did not speak English or French. The Court felt that he had already earned the trust of the accused. See Beresford, supra note 18, at 56.
54. SeeRules, supra note 53, art. 44.
55. See Richard J Wilson, Assigned Defense Counsel in Domestic and International
War Crimes Tribunals: The Need for a Structural Approach, 2 INT’L CRIM.L.REV. 145, 167
(2002).
counsel to possess “reasonable experience in criminal and/or international law.”57 However, these new standards are still vague and ineffectual in attracting the most qualified lawyers.
The lack of experience and general legal knowledge is only exacerbated for non-western attorneys. For these attorneys, the ICTY is often seen as an alien land. Often the local Yugoslav attorneys who appear in front of the ICTY lack the skills necessary to undertake a massive international war crimes case.58 War crimes trials are often long and grueling affairs.59 They also involve a blend of international and domestic concepts that require a unique set of skills.60 Many of the “qualified” non-western attorneys were trained in the communist/socialist era, in a system that is antithetical to the Tribunal’s substantive and procedural laws. The repertoire of skills used in a “domestic” criminal case, while relevant, does not necessarily include the legal background required in an international war crimes case.
For instance, the substantive law of the ICTY is uncharted legal waters. The crimes within the subject matter jurisdiction of the ICTY genocide, crimes against humanity, and war crimes – are still relatively new concepts in international law. Not since the Nuremberg trials have these crimes been addressed; therefore, the defense attorneys find themselves struggling to comprehend the meaning and legal precedence of the ICTY substantive law.
An example of the difficulties faced by a defense attorney in understanding the ICTY substantive law can be found in the Erdemovic case.61 In that case, the defendant originally pled guilty to crimes against humanity, a crime much more serious than the original charge of war crimes. This was overturned by the Appeals Chamber who ruled that the crimes were so clearly more nefarious than war crimes that Erdemovic’s attorney could not have possibly understood the substantive law when he
57. 2000 Directive, supra note 17, art. 14(A)(iii).The Draft Rules of Procedure and Evidence of the International Criminal Court actually tries to expand these new standards by requiring counsel to have “established competence in international or criminal law and procedure, as well as the necessary relevant experience whether as a judge, prosecutor, advocate[,] or [other in] similar capacity, in criminal proceedings.” Report of the Preparatory Commission for the International Criminal Court Finalized Draft Text of the
Rules of Procedure and Evidence, 7th Sess., Rule 22, U.N.PCNICC, U.N. Doc
PCNICC/200/1/Add.1. [hereinafter ICC Rules].
58. See Wilkinson, supra note 37.
59. See Wilson, supra note 55, at 150 (noting that a single trial has lasted five years).
60. See id.
61. See Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Judgement, 7 Oct. 1997,
reprinted in 111 I.L.R. 298, available at
http://www.un.org/icty/erdemovic/appeal/judgement/erd-aj971007e.htm (last visited Apr. 3, 2003).
allowed his client to plead to the greater charge.62 One of the judges noted that both Erdemovic and his attorney were neither familiar with “the concept of guilty pleas” nor “the relatively arcane area of international humanitarian law.”63
Many defense counsel also lack general familiarity with the ICTY and its procedures.64 Because of the character of the ICTY’s elaborate Rules of Procedure and Evidence (Rules) as well as its numerous directives, these attorneys find themselves unfamiliar with the Tribunal. For example, the former Yugoslavia is based on civil law where the judge assumes a dominant role in questioning and investigating and where the lawyer’s role includes acting as an independent organ of the administration of justice. However, Yugoslav lawyers appearing in front of the ICTY face an adversarial system and, therefore, are unfamiliar with and unskilled in examination and cross-examination techniques of these types of trials. Since the Rules65 are based largely on an adversarial model66 and do not follow the inquisitorial approach used in civil law systems, assigned counsel must be adept at arguing cases in an adversarial proceeding.67 Judges do not actively participate in the trial proceedings; responsibility for cross-examining witnesses rests with the defense attorneys. Despite the ICTY’s reliance on the adversarial model, however, the current Rules do not specifically require counsel to have common-law trial experience.
Generally, non-western attorneys that want to transfer their “local” knowledge and experience to The Hague find the rules are dramatically different.68 This has led to disjointed, prolonged trial proceedings because defense counsel is insufficiently prepared, or engages in frivolous or dilatory conduct.69 For example, in 1997 and 1998, there were over 500
62. See Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 Oct. 1997 at paras. 20-27, reprinted in 111 I.L.R. 298, 327-29, available at http://www.un.org/icty/erdemovic/appeal/judgement/erd-asojmcd971007e.htm (last visited Apr. 3, 2003).
63. Prosecutor v. Erdemovic, Case No.: IT-96-22-A, Separate and Dissenting Opinion of Judge Stephen, 7 Oct. 1997, para. 5, available at
http://www.un.org/icty/erdemovic/appeal/judgement/erd-asojste971007e.htm (last visited Apr. 3, 2003).
64. See Judge May, supra note 13.
65. See ICTY Rules, supra note 17.
66. The Rules were based heavily upon the U.S. proposal. See VIRGINIA MORRIS & MICHAEL P.SCHARF, 1-2 AN INSIDER’S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1995).
67. In a civil law system, the judge is an independent, active investigator. The prosecutor and defense attorney play a relatively passive role during the trial.
68. See Wilkinson, supra note 37.
69. See Report of the Office of Internal Oversight Services on the Investigation into
pre-trial motions, orders and applications in the ICTY, many of which were without merit and caused undue delays.70
A solution that has worked for the Tribunal is teaming a Yugoslav attorney with co-counsel familiar with Anglo-Saxon jurisprudence who is a more seasoned international criminal lawyer. The Yugoslav attorney brings expertise in the history of the region and access to contacts within Yugoslavia who would otherwise not be willing to speak to a “foreign” attorney, while learning the technical merits of ICTY procedure.71
The most successful experiment in this co-counsel approach before the ICTY was during the Tadic trial. Professor Michail Wladimiroff, one of the Netherlands’ most respected criminal lawyers was assigned as lead counsel for Mr. Tadic. Mr. Wladimiroff had impeccable credentials. He selected Alphons Orie as his co-counsel, who is currently a judge with the ICTY. However, recognizing their own lack of experience in an adversarial trial, Mr. Stephen Kay, a highly skilled English barrister was added to the defense team. Immediately, Mr. Kay took the responsibility of cross-examining witnesses72 while Wladimiroff and Orie continued to direct the overall case and move arguments. The Wladimiroff/Orie/Kay defense team approach is the paradigm for international war crime tribunals.
INDIGENCE
The right of the indigent suspect and the accused to have legal assistance assigned without costs is a fundamental tenet of international law.73 The Universal Declaration of Human Rights provides that: “[e]veryone charged with a penal offence has the right to all . . . the guarantees necessary for his defence.”74 By authority found in the ICTY Statute (8, 214 (4)), the Rules
the International Criminal Tribunal for Rwanda and the International Tribunal for the
Former Yugoslavia, U.N. GAOR, 55th Sess., U.N.Doc A/55/759 (2001),at 13 [hereinafter
U.N. Fee Splitting Report].
70. See U.N. Financial Report, supra note 14, at 27.
71. See Wilkinson, supra note 37.
72. Mr. Kay estimates that he handled 95% of witness cross-examinations. See Kay interview, supra note 26.
73. A person charged with a criminal offense has the right “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it.” International
Covenant on Civil and Political Rights, Feb. 23, 1967, 999 U.N.T.S. 171, 6 I.L.M. 368, 373,
art.14 (3)(d) (entered into force Mar. 23, 1976) [hereinafter ICCPR]. The U.N. Principles on the Role of Lawyersstate that governments “shall ensure the provision of sufficient funding and other resources for legal services to the poor.” The United Nations Basic Principles on
the Role of Lawyers, U.N. Doc A/CONF.144/28/Rev. 1 (1990), art. 3.
74. United NationsUniversal Declaration of Human Rights, G.A. Res. 217A (III), U.N. G.A.O.R., 3d Sess., art.11(1), U.N. Doc. A/810, (1948).
of Procedure and Evidence75 and the Directive on the Assignment of Counsel,76 suspects and accused persons in the ICTY are entitled to legal assistance if deemed “indigent” by the ICTY Registrar.77 In addition, the assigned counsel will have their legal fees and costs covered by the ICTY.
The International Covenant on Civil and Political Rights (ICCPR) ensures that every person charged with a criminal offence has the right to “have legal assistance assigned to him, in any case where the interests of justice so require. . . .”78 Other conventions that guarantee the right to legal assistance are the American Convention on Human Rights,79 the European Convention on Human Rights,80 and the African Charter on Human and People’s Rights.81 In fact, the ICTY’s provision dealing with the right to legal assistance is taken verbatim from the ICCPR.82
Pursuant to article 5 of the Directive, “a suspect or an accused shall be considered to be indigent if he does not have sufficient means to retain counsel of his choice.”83 As of December 2002, 98% of the accused have claimed indigence (only Mr. Kordic and Mr. Blaskic are not indigent).84 In
75. See ICTY Rules, supra note 17, Rule 45(B).
76. See Original Directive, supra note 16.
77. Rule 2 of the ICTY Rules defines a “suspect” as “[a] person concerning whom the Prosecutor possesses reliable information which tends to show that the person may have committed a crime over which the Tribunal has jurisdiction.” An “accused” is a “person against whom one or more counts of indictment have been confirmed”. See ICTY Rules,
supra note 17, at Rule 2.
78. ICCPR, supra note 73.
79. The American Convention on Human Rights provides the accused the right “to be assisted by legal counsel of his own choosing” and “be assisted by counsel provided by the state . . . .” American Convention on Human Rights, Nov. 22, 1969, art. 8 (2)(d), (e), 9 I.L.M. 673, 678 (entered into force July 18, 1978).
80. The European Convention provides the accused the right to be given legal assistance when the interests of justice so require. See European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, art. 6(3), 213 U.N.T.S. 222 (entered into force Sept. 3, 1953).
81. The African Charter provides the accused “the right to defence, including the right to be defended by counsel of his choice.”African Charter on Human and Peoples’ Rights,
adopted on 27th June 1981, OAU Doc. CAB/LEG/67/3/Rev. 5, art. 7(1)(c), 21 I.L.M. 58, 60 (1982).
82. Both the ICTY Statute and the ICCPR state that an accused shall be entitled: [T]o 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 justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.
ICTY Statute, supra note 2, art. 21(4)(d); ICCPR, supra note 73, art. 14(3)(d).
83. Original Directive, supra note 16, art. 5.
addition, Mr. Martic, Mr. Mrksic, Mr. Sainovic, Mr. Ojdanic and Mr. Deronjic have to partially contribute to their defense.85 This is consistent with other international and domestic war crime trials, where the overwhelming majority of defendants cannot afford a private attorney.86
One of the issues that has emerged is the lack of a clear definition of “indigence.” The term “sufficient means” is not defined in the Directive,87 and this has to lead to abuse.88 The Directive, however, does set forth some guidelines in determining whether the accused is indigent. The Registrar can account for:
[M]eans 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 the suspect or accused, as well as those of person with whom he habitually resides.89
However, in reality, only the disposable income and capital of the accused are taken into account when determining their financial means.90
The only clarification on this issue is the ICTY’s decision to exclude real property from asset evaluation when determining “sufficient means.”91 The ICTY does have the authority to “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” for establishing indigence.92 However, because of the lack of resources, time, and experienced investigators, the ICTY’s Registrar is forced to rely on the
85. See id.
86. See Wilson, supra note 55, at 147.
87. U.N. Fee Splitting Report, supra note 69, at 6. The Report indicates that “currently, the term is interpreted as not having sufficient liquid means or means available for liquidation in order to support a defence.” Id. at 15.
88. Id.at 6. For example, one detainee of the ICTR has privately retained counsel before being transferred to the detention facility. The detainee subsequently claimed indigence and was assigned the same counsel. Id.
89. 2000 Directive, supra note 17, art.8(b).
90. See Beresford, supra note 18, at 57 (citing Prosecutor v. Dokmanovic, Case No.: IT- 95-13a-PT, Further Explanation of the Registrar regarding the Decision not to assign Toma Fila as Defence Counsel to Slavko Dokmanovic, 4 Sept. 1997).
91. See Prosecutor v. Dokmanovic, Case No.: IT-95-13ap-T, Decision on Defense
Preliminary motion on the assignment of Counsel, 30 Sept. 1997. (noting the difficulty of gaining information of the disposal of real property, the court ruled that the accused would be indigent but for the property in controversy).
“representations of the suspect/accused . . . themselves.”93 Only in special cases can the Registrar afford to send out its one full-time investigator.94 The ICTY’s Registrar, however, can withdraw the assignment of counsel if it is shown that the accused is no longer indigent.95 However, the burden of proof in reversing a showing of indigence is still with the Registrar, and the court remains reluctant to tamper with the finding that a defendant is indigent.96 This is due to the fact that, in view of international covenants and the ICTY statutory provisions dealing with the rights of the accused to assigned counsel, the Tribunal has always been reluctant to do anything that could be perceived as interfering with this right.97
A recently adopted experiment dealing with defense counsel is determining whether a defendant is “partially indigent.” If the Registrar finds the defendant to have financial resources that could be applied to funding his/her own defense, then the ICTY will pay only a portion of the fees attached to providing free legal counsel.98 The ICTY Registrar admits that this new experiment must still pass the ICTY’s own jurisprudence to determine if it violates the defendant’s fundamental right to legal assistance if he/she is indigent.
The ICTY has also developed guidance as to whether or not an indigent defendant has an absolute right to choice of counsel. The ICTY has generally followed its sister court – the International Criminal Tribunal for Rwanda (ICTR)99 – in leaving the administrative task of selecting counsel to the discretion of the Registrar. The result has been that the accused has no absolute right to choice of counsel. This position is consistent with rulings on this subject matter by the European Court of Human Rights.100 According to the European Court’s case law, indigent accused persons are not entitled to choose the lawyer who will represent them.101 The accused
93. U.N. Fee Splitting Report, supra note 69, at 6.
94. See Holthuis Interview, supra note 40.
95. Seeid.
96. See The Registrar Withdraws Assignment of Defence Counsel to Seven Accused,
JL/P.I.S./428-E (Aug. 11, 1999); Seven to Appeal Registrar’s Decision to Withdraw
Assignment of Defence Counsel, Jl/P.I.S./431-E (Aug. 23, 1999); and Decision to Withdraw
Seven Accused Assignment of Counsel Reversed by Trial Chambers, JL/P.I.S./434-E (Sept.
6, 1999). (stating that the Trial Chambers had reversed a decision of the Registrar to withdraw the assignment of counsel for a defendant who benefited from an art auction which raised money for ICTY detainees).
97. See U.N. Financial Report, supra note 14, at 30.
98. See Hothuis Interview, supra note 40.
99. See Statute of the International Criminal Tribunal for Rwanda, U.N. SCOR, 48th
Sess., 3217th mtg., U.N. Doc. S/RES/955 (1994) [hereinafter ICTR Statute].
100. See Beresford, supra note 18, at 52.
“should be offered the possibility of designating the counsel of his/her choice from the list drawn up by the Registrar for this purpose,” but that request may be denied on “reasonable and valid grounds.”102 Even the Appeals Chamber has upheld this principle, noting that “the right to choose counsel applies only to those accused who can financially bear the costs of counsel.”103 As for an indigent accused, the Registrar “has wide discretion” in assigning counsel.104 In practice, however, the ICTY Registrar has tried to respect the wish of the suspect or accused as much as possible, given the importance of the relationship between counsel and client.105 In the case of the Prosecutor v. Delalic, the court ruled that the “practice of the Registrar has been to permit the accused to select any available counsel from the list and to add counsel to the list if selected by an accused, provided that such counsel meets the necessary criteria.”106
EQUALITY OF ARMS
In the first case before the ICTY, the defense attorneys for Mr. Tadic argued that the “inequality of arms” had seriously handicapped preparation of the case.107 Mr Wladimiroff, in his opening statement before the Tribunal, framed the problem as:
In preparing the defence, we have struggled with the hostility and suspicion with which the Tribunal is viewed in the Serb Republic and, in particular, in the Prijedor area. Those in power in this area have blocked avenues of investigation. . . . It might be thought that they would be eager to help Dusko Tadic in his defence at this trial and treat him as one of their own. This, your Honours, has not been the case. The Defence of Dusko Tadic has been prepared with little or no help from the Prijedor authorities, and there have been active attempts to prevent us from obtaining evidence on behalf of our client to prove his innocence.108
The inability to enter key villages and towns in hostile states necessary to build the defense’s case had weakened counsel’s position. Whereas,
102. In Re Surrender of Ntakirutimana, 184 F.3d 419 (5th Cir. 1999).
103. Prosecutor v. Akayesu, Case No.: ICTR-96-4, Judgement, 1 June 2001.
104. Id.
105. See THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A
COMMENTARY 1431 (Antonio Cassese et aleds., 2002) [hereinafter Cassese]; see also U.N.
Financial Report, supra note 14, at 70.
106. Prosecutor v. Delalic et al, Case No.: IT-96-21-PT, Decision on Request by Accused Mucic for Assignment of New Counsel, 24 June 1996.
107. See Ellis, supra note 43, at 533.
108. Prosecutor v. Tadic, Case No.: IT-94-1-T, Michail Wladimiroff, Opening Remarks, 7 May 1996, at 69.
most of the prosecution witnesses were outside Bosnia, all of the defense witnesses were inside the conflict zone.109
Often times the defense attorney is regarded as an “enemy” to the state, which in turn will persistently try to stymie the defense case.110 For instance, in one of the earliest cases tried before the ICTY, once the defense team questioned a witness, the local police chief would have the individual brought to the police station for questioning.111 In the end, the Court allowed witnesses the opportunity to testify through a satellite-linked video unit set up in Banja Luka.112 Unlike the prosecutors and judges, who have the full authority of the ICTY, defense lawyers are independent actors whose only standing is that they are there to carry out work on behalf of their clients.113
According to interviews with current ICTY defense counsel and the Registrar, the problems of access for defense counsel to the region of the former Yugoslavia have greatly diminished over the years. In addition, the archives held by state authorities in Bosnia and Croatia have been liberalized to the extent that defense counsel now have access to the documents.114 There are very few complaints now as to this element of equality of arms.
However, because documents are now so readily accessible, there has emerged another very serious equality of arms issue for defense counsel. The myriad of documents needed to be reviewed by defense counsel is simply overwhelming.115 For defense counsel, this is the number one concern raised with the Registrar.116 Defense counsel are demanding more financial resources to hire more translators and the ICTY continues to state that it simply has no further funds to allocate.117
FEE-SPLITTING ARRANGEMENTS
Another persistent issue for the ICTY has been “fee-splitting” arrangements between indigent detainees and their counsel. This arrangement is usually manifested in one of two ways: (1) a regular
109. See Stephen Kay, International Criminal Court Law; Justice, Where Now?The
Society for the Reform of Criminal Law 10th Anniversary International Conference, London,
The Reformer (1998) (on file with author).
110. See Cassese, supra note 105, at 1424.
111. See Kay, supra note 109.
112. See id.
113. See Cassese, supra note 105, at 1425.
114. See Holthuis Interview, supra note 40.
115. See id.
116. See id.
apportionment of a percentage of the counsel’s fee to the detainee, or (2) providing gifts and other indirect support and maintenance for the detainees and their relatives.118 This would also include the hiring of friends or relatives of the suspect/accused person as investigators.119 Under these types of pernicious arrangements, U.N. funds have been wasted through the allocation of public money to the suspect/accused or their families.120
Both the ICTY and the ICTR have indicated that fee-splitting is “unacceptable and merits sanctions under the Rules.”121 In fact, the ICTR adopted a new provision in its Code of Conduct for Defense Counsel that expressly prohibits fee-splitting in various forms between defense counsel remunerated by the Tribunal and their clients.122 If counsel is being encouraged to enter into this type of illicit arrangement, he/she must advise his client on the unlawfulness of such practice and report the incident to the Registrar.123
Fee-splitting also results in longer trials. It has not been uncommon for the suspect/accused and Defense counsel to engage in lethargic acts that would lengthen the pre-trial and trial stage of the case in order to generate additional fees.124 Reports from the ICTY indicate that some counsel seek remuneration for legal work that far exceeds what would be otherwise expected during the pre-trial and trial stages (e.g., during summer and
118. See U.N. Fee Splitting Report, supra note 69, at 7.
119. See id at 9. For example, the ICTR Registrar dismissed an investigator for a defense team, who himself was accused of genocide and who was a colleague of the defendant. See Statement of the Registrar Concerning the Contract of Employment of a
Defense Investigator, ICTR/INFO-3-04.EN (August 17, 2001), available at
http:www.ictr.org/wwwroot/ENGLISH/PRESSREL/2001/9-03-04.htm (last visited Apr. 2, 2003).
120. See U.N. Fee Splitting Report, supra note 69, at 5. The ICTY and the ICTR expended $8.5 million a year in 1999 and anticipated expending the same in 2000 for defense counsel support. Seeid. at 6.
121. Statement by the Registrar, Mr. Adama Dieng on Allegations of Fee Splitting
between a Detainee of the ICTR and his Defence Counsel, ICTR/INFO-9-3-06.EN (October
29, 2001), available at http://www.ictr.org/wwwroot/default.htm (last visited Apr. 3, 2003).
122. The ICTR has adopted a series of measures to prevent abuse of the Tribunal legal aid system. The measures include (1) restrictions on gifts given by defence counsel to their client, (2) strict personal searches of persons visiting or meeting detainees (in order to prevent the transfer of gifts and money) and (3) requiring personal history forms to be filled in by individuals who are hired by defence counsel as defence investigators to ensure that they are not related to the accused persons. See U.N. Fee Splitting Report, supra note 69, at 8-9.
123. CODE OF PROFESSIONAL CONDUCT FOR DEFENCE COUNSEL FOR THE INTERNATIONAL
CRIMINAL TRIBUNAL FOR RWANDA art. 5 bis, available at
http://www.ictr.org/wwwroot/ENGLISH/basicdocs/codeconduct.htm).
Christmas recess periods).125
This has led to many disagreements between the Tribunal and assigned counsel regarding invoices.126 The ICTY judges themselves have witnessed numerous defense counsels that submit “completely ridiculous motions” as a way to delay trial and collect as much in fees as possible.127 The ICTR judges have become more active in imposing financial penalties on counsel who advance these types of motions.128 However, the judges of the ICTY have yet to implement a policy of denying remuneration on frivolous motions.
ETHICS
The issues of ethics and discipline for defense counsel developed into a very serious problem for the ICTY. Because the Tribunal has defense counsel from various countries, the ethical codes attached to the attorneys remain diverse. In domestic jurisdictions, ethical issues are handled by professional bar associations or regulatory bodies.129 However, there is no comparable body for an international court such as the ICTY.
One of the significant developments of the ICTY was the promulgation of a Code of Professional Conduct. The Code was created in 1997 and came into force on June 12, 1997, two years after the first war crimes case was tried at the ICTY.130 The Code was adopted to countervail a number of allegations of ethical misconduct endemic to assigned counsel and pressure from the U.N. to “clean up” the problem.131 The Code was based on the authority of Rules 44-46 of the Rules of Procedure and Evidence132 which confers on the Tribunal the responsibility of ensuring that only counsels who are qualified appear before the Tribunal. However, the Code
125. See id. at 12. For example, several defense counsel claimed to have studied the Nuremberg cases during the Christmas break when in fact the trials of their respective clients had ended in mid-November. See id. At the ICTR, the Registrar dismissed a UK solicitor who was acting lead counsel on a case. The solicitor was found to have inflated his bills, which constituted a serious violation of the Code of Professional Conduct for Defence Counsel. See Press Release, International Criminal Court for Rwanda, Defence Lawyer Removed for Financial Dishonesty, ICTR/INFO-9-2-299.EN (Feb. 6, 2002).
126. See U.N. Financial Report, supra note 14, at 66.
127. See U.N. Fee Splitting Report, supra note 69, at 13.
128. See id.
129. See Judge May, supra note 13.
130. See CODE OF PROFESSIONAL CONDUCT FOR COUNSEL APPEARING BEFORE THE
INTERNATIONAL TRIBUNAL, ICTY Doc. IT/125 (June 12, 1997) [hereinafter ICTYCODE].
131. See Holthuis Interview, supra note 40.
132. See Rules, supra note 54, arts. 44-46. Although Article 46 relates to the Tribunal’s ability to regulate the conduct of persons appearing before it, the Rules do not specifically give the Registrar the power to draft and promulgate a Code. See id.
was drafted by the ICTY judges, not its lawyers.133
The Code incorporates many obligations, restrictions and responsibilities found in national Codes of Conduct.134 In fact, the Registry relied on a number of national codes when drafting the ICTY code.135 In particular, the ICTY relied extensively on the American Bar Association’s Model Rules of Professional Conduct, which greatly influenced the ICTY Code.136
One of the main reasons that the Code was created was to make counsel aware of their rights and obligations toward the Tribunal since they are subject to disciplinary proceedings under Rule 44.137 Failure by a counsel to specifically adhere to the Code may lead to withdrawal of counsel by the Trial Chamber.138 However, while the Code does fill the void of established standards, there are no effective mechanisms to monitor or enforce attorneys’ general adherence to the Code.139 General ethical requirements expected of defense cannot be monitored by the Court.140
For example, the Code is still inadequate on the issues of fee-splitting and counsel’s billings. For instance, the Code prohibits assigned counsel
133. The Code was submitted to an Advisory Panel of practicing ICTY attorneys.See
Cassese,supranote 111,at 1434.
134. For instance, the Code refers to competence, diligence, communications, confidentiality, conflict of interest, and conduct before the Tribunal. See ICTYCODE, supra
note 136.
135. The following Codes of Professional Conduct and related sources were used by the Registry: Australia, New South Wales Bar Association, Barrister’s Rules; Belgium, Code Judiciaire; Bosnia & Herzegovina, Bar Association Code of Legal Ethics, 1989; European Community, Commission Consultative des Barreaux de la Communauté Européenne (CCBE), Code of Conduct for Lawyers in the European Community; France, Reglement interieur de l’ordre des Avocats à la cour de Versailles, deliberé par le Conseil de l’Ordre en sa séance du 7 decembre 1992, (mise a jour le 01/01/93) Code de Procedure Civile, Decr. 27 Nov. 1991, Titre III; International Association of Penal Law and International Commission of Jurists, 1982 Draft Principles on the Independence of the Legal Profession (“Noto Principles”); Netherlands Bar Association, Rules of Conduct; Spain, Estuto General de la Abagocia, Real Decreto 2090/1982; Union Internationale des Avocats, International Charter of Defence Rights; United States of America, American Bar Association, Model Rules of Professional Conduct (1992). See ICTYCODE, supra note 130.
136. See Bohlander, supra note 50, at 82.
137. See ICTY CODE, supra note 130, at Preamble. The Code of Conduct takes
precedence over domestic Codes; Article 19 contains the general rule that the Code shall override any conflict between it and a national Code of Conduct. See id., art. 19.Article 19 of the Code reads: “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 the counsel’s conduct before the Tribunal.” Id.
138. See U.N. Fee Splitting Report, supra note 69, at 6.
139. See Judge May, supra note 13.
from accepting outside compensation other than from the Tribunal unless the client consents after consultation.141 So long as the assigned counsel is being paid by the Tribunal, there should be a strict prohibition against any additional outside compensation. Furthermore, the Code’s response to billing is to require counsel to “account in good faith for the time working on a case and maintain and preserve detailed records of time spent.”142 This one-sentence discussion on an issue that has become so controversial is inadequate to resolve the problem of “padding” billing statements.
In only two instances did ethical violations result in removal of assigned defense counsel from the ICTY’s defense counsel list. The first occurred in the case involving Dusko Tadic. The Appeals Chamber convicted attorney Milan Vujin of contempt and he was subsequently removed by the Registry from the list of assigned counsel.143 The Court also informed the Serbian Bar.144 In another case, a defense counsel was fined 10,000 guilders for contempt of the Tribunal, by knowingly disclosing the identity and occupation of a protected witness.145
The need for a Code of Conduct has also been recognized by the ICC. The rules permit the Registrar to develop a Code of Professional Conduct in consultation with appropriate legal associations.146 The International Bar Association is taking the lead on drafting the code, to be presented to the ICC Registrar.147
DEFENSE COUNSEL ASSOCIATION
The ICTY has recently established the Association of Defense Counsel of the ICTY (“Association”), after more than a year of work by a special ad hoc working group.148 The working group which included judges, the
141. See ICTYCODE, supra note 130, art. 9 (4) [19(B)(i)].
142. Id. art. 11.
143. See Prosecutor v. Dusko Tadic, Case No. IT-94-1-A-R77, Judgement on
Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000; and
Prosecutor v. Dusko Tadic, Case No.: IT-94-1-A-AR77, Appeal Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 27 February 2001.
144. See id.
145. See Prosecutor v. Zlatko Aleksovski, Case No.: IT-95-14/1-T, Finding of
Contempt of the Trial Chamber 1, 11 Dec. 1998.
146. See ICC Rules, supra note 57, Rule 20(3).
147. After the Rome Conference failed to include a defence unit several countries have petitioned the ICC to create an independent defence office. SeeRevised Proposal to Create
a Defence Unit Submitted to Preparatory Commission 10 August 1999, U.N. Doc.
PCNC/1999/WERPE/DP.2/Rev.1 (Aug. 6, 1999).
148. The working group was established by the ICTY’s Registrar. See Association of
Defense Counsel Formally Recognized by the ICTY, JA/P.I.S/720e (Dec. 19, 2002)
office of the Prosecutor, current defense counsel and the Dutch Bar Association finalized the statute for the new Association in September of 2002.149 The Registrar calls the Association a “milestone” and a “major breakthrough” in the ICTY’s focus on defense issues.150 With the creation of the Association of Defense Counsel, the ICTY has officially recognized its authority on ethical matters dealing with defense counsel. The Association has, in fact, adopted its own code of conduct which covers a number of contentious issues, including fee-splitting.151 Although not a “proper” Bar Association, the Association will have the same structure, including a board of Directors, appeals board and fee requirements for members.152
The Association has been established as a private association according to Dutch law and recognized by the Tribunal as the official representative of defense counsel appearing in front of the ICTY.153 This has been accomplished by amending Article 45 of the Rules of Procedure and Evidence to require membership in an association of counsel participating before the ICTY as a qualification for counsel.154 Thus, membership in the Association is now compulsory.
The Association will also oversee the amendment of the current Code of Conduct.155 The objectives of the Association are:
• To support the function and the efficiency of Defence Counsel at ICTY[;]
• To encourage Defence Counsel to participate in the Tribunal activities[;]
• To advise the Tribunal regarding proposed procedural changes[;] • To oversee the performance of Defence Counsel at ICTY.156
Furthermore, any person who is qualified to practice before the ICTY and
149. See Hans Holthuis, Operational Aspects of Setting Up the International Criminal
Court: Building on the Experience of the ICTY, 27 INT’L LEGAL PRAC. 43, 43 (June 2002).
150. See Holthuis Interview, supra note 40.
151. See Draft Rules for the Association for Counsel Practising Before the
International Criminal Tribunal for the Former Yugoslavia, (July 12, 2002) (on file with the
author) [hereinafter Draft Rules].
152. See id.
153. See Holthuis Interview, supra note 40.
154. See Hans Holthuis, Memo on Amendment of Professional Conduct for Defense
Counsel, (Apr. 12, 2002), (on file with author).
155. See id.
is a current or former ICTY defense counsel is eligible to be a full member of the Association.157 Any person who intends to practice before the ICTY and is qualified to practice before the ICTY is eligible to be an aspirant member of the Association.158
An important aspect of the Association Rules is that a member can be removed if he/she “acts contrary to the articles, regulations and resolutions of the Association, or when the conduct adversely affects the Association in an unreasonable manner.”159 Expulsion of a member can also occur if “the Association cannot reasonably be expected to allow the membership to continue.”160
Equally important is the right of the Association to monitor the conduct of its members when representing a suspect or accused.161 The conduct is assessed by what is required under the ICTY Statute, the Rules, the Code of Professional Conduct, the Directive and the Detention Rules and Regulations of the ICTY.162 In addition, the Association can judge the conduct of a member under the code of practice governing the profession of the member in his/her home jurisdiction.163
This type of Association will also be of tremendous value to the cadre of defense counsel who will now rely on the Association for training and professional development. The only legal assistance currently provided by the ICTY to assigned counsel is a publication entitled Manual for
Practitioners, a publication designed to assist defense counsel in appearing
before the Court.164 Though helpful and very solid, the Manual cannot substitute for trial advocacy experience. In short, there is a lack of training by the ICTY, which is a major shortcoming in ICTY proceedings.
The complexities of undertaking the defense of an alleged war criminal in an international tribunal are daunting. In such trials the defense counsel must master substantive and procedural legal aspects as numerous and as
157. See id. art. 3(1). 158. See id. art. 3(2). 159. Id. art. 4 1(d). 160. Id. art. 4 1(c)(39). 161. See id. art. 14(b). 162. See id. 163. Id. art. 14(c).
164. The Manual for Practitioners reviews the Tribunal’s procedures and provides information on courtroom protocol. The Manual is intended to educate practitioners on the specific requirements for appearing before an international judiciary body. Topics covered include: the facilities of the Tribunal, the status of defense counsel, and the relationship between defense counsel and the Court, the relationship between a client and defense counsel, and procedures before the Court. See Int’l Crim. Tribunal for the Former
Yugoslavia, Manual for Practitioners, Version 1.1, available at
diverse as international humanitarian law, comparative law, trial and written advocacy skills. This type of expertise is rarely found in a domestic legal setting; therefore, there is a great need for specialized training programs in the area of practice before war crimes tribunals.
There has always been the need for extensive training courses for defense counsel. There has been a call for mandatory training for all defense counsel.165 With the creation of the Association of Defense Counsel, all future training for ICTY attorneys will be conducted through the Association. The ICTY Registrar has entered into a “gentlemen’s agreement” to transfer the responsibility of defense counsel training from the ICTY to the Association.166
The Association has already planned a very active training program. The first of these will be a “basic course” which will be implemented in 2003.167 This introductory course will be mandatory for those who have been assigned their first case at the ICTY.168 The Association also plans to create an “advanced course” as a means of continuing education for those practicing at the ICTY.169
The Association will also assist in providing defense counsel with a support mechanism when preparing their cases so that they do not reinvent the “case wheel” by working alone and duplicating what others have already done.170 The Association has also created a “Saturday Forum,” a roundtable exchange of experience, information, and ideas between lawyers working on cases before the ICTY.171 The Association will also act as a lobbying arm for defense counsel before the ICTY’s Registrar,172 as well as contributing to the process of amending ICTY rules and participating in disciplinary proceedings against counsel.173
One of the corresponding areas that has hindered defense counsel is the lack of an independent defense unit within the Registry. The ICTY is still perceived to have an institutional bias in favor of the prosecution and, to a lesser extent, in favour of the judges.174 Even with the creation of a Defense Association, the Registry was required to formally recognize the
165. See Judge May, supra note 13.
166. See Holthuis Interview, supra note 40.
167. SeeAssociation, supra note 148.
168. See id. 169. See id.
170. Seeid.
171. See id.
172. Id.; see also, Fair Trials, supra note 36, at 10.
173. See Holthuis Memo, supra note 146.
Association.175 The close connection between the Association and the ICTY is reflected in the Rules requiring the Association to provide its full financial records on an annual basis to the ICTY Registrar.176 A permanent defense unit would provide a balance against the strength of the existing prosecutorial and judicial branches.177 It would also assist in acting as an “inside voice” to coordinate the concerns of and needs expressed by the Defense Counsel Association, which will be outside the ICTY structure.
The need for an Association of Defense Counsel has already been recognized by the newly created International Criminal Court (ICC). The ICC’s Rules of Procedure and Evidence foresee a creation of an “independent representative body of counsel.”178
CONCLUSION
In the ten years since the U.N. Security Counsel created the ICTY, the international community has witnessed a growing recognition of the body of the law that is referred to as international humanitarian law. The role of the ICTY and the ICTR in this evolution of legal thought cannot be underestimated. The ICTY’s output, in both procedural and substantive law, has established legal standards in the field of international humanitarian law and its perceived success is certainly a major reason for the creation of the ICC.
The ICTY has also shown a propensity to adapt to changing circumstances and needs. Representing those accused of some of the most heinous crimes of the past century is one of the most crucial aspects of the Tribunal. Yet, at the genesis of the ICTY, issues addressing the needs of the defense counsel were not a priority for the newborn Tribunal.
However, because of the foresight of the ICTY’s first prosecutor, Richard Goldstone, and the Registrar, Dorothy de Sampayo, issues pertaining to the defense counsel slowly gained greater importance. Although the last ten years have not been a panacea for all of these issues, the overall structure of the defense counsel has reached a new zenith. The financial support for defense counsel has significantly improved over this period. The number of assigned counsel and support staff provided to indigent defendants has also increased significantly. The right of the suspect or the accused to have free legal assistance has been constantly upheld by the Tribunal. Over 90% of all suspects and accused appearing before the ICTY have assigned counsel. Although not required, the ICTY has adopted a very liberal policy with respect to permitting the accused to
175. See Association, supra note 148.
176. See Draft Rules, supra note 163, art. 9(2).
177. SeeFair Trials, supra note 37, at 2004.
select any available counsel who is qualified to appear in front of the Tribunal.
The ICTY has also made significant progress in improving the integrity of the defense structure. Fee-splitting arrangements between indigent detainees and their counsel have been reduced by tougher standards and sanctions imposed by the ICTY. The adoption of a Code of Professional Conduct for defense counsel also represented a milestone in countering the unsavory allegations of ethical misconduct by assigned counsel. Finally, one of the hallmark changes is the recent formation of the Association of Defense Counsel of the ICTY. Notwithstanding the years needed for its formation, the Association represents the titanic progress made by defense counsel over the past ten years within the Tribunal.
