New Zealand Yearbook of International Law
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Yearbook of International Law |
|
Last Updated: 9 February 2019
ASSIGNMENT OF COUNSEL OF CHOICE TO INDIGENT ACCUSED AT THE ICTR: AN ANALYSIS OF A THREAT TO FAIR TRIAL RIGHTS AND WHAT MAY BE DONE ABOUT IT
Erica
Leaney[∗]
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 proceedings.
Justice Richard J
Goldstone[1]
I. INTRODUCTION
International criminal prosecutions must contribute to the promotion of
international human rights norms. To ensure this, international
criminal
tribunals should accord fair trial guarantees to all accused. Since its
inception in 1995,[2] the
International Criminal Tribunal for Rwanda (ICTR or Tribunal) has issued 76
indictments, resulting in 37 convictions, 6 acquittals
and 2
withdrawals.[3] Its legacy will be
shaped by the human rights outcomes of the Tribunal: ultimately the Tribunal
will contribute to global human rights
not only by promoting accountability for
atrocity crimes, but also in terms of developing a precedent for the recognition
of procedural
fairness in international criminal justice.
The ICTR must
guarantee that procedural fairness is equally available to all parties to ensure
accountability of its processes. Therefore,
there must not be two standards of
justice: one for the wealthy and one for the
poor.[4] The majority of accused
appearing before the ICTR cannot afford to fund their own defences and are
classified as
indigent.[5]
The ICTR assigns indigent accused defence counsel via a legal aid system. This
ensures universal legal representation for all of
the ICTR accused. However
several fair trial issues have arisen from the application of the legal aid
system.
This paper will address one of the more pervasive issues in the
application of the Tribunal’s legal aid system: the extent to
which
indigent accused may choose their own counsel. The Tribunal’s legal aid
system ensures legal representation for all accused.
The right to choose
one’s own counsel however remains a fundamental distinction between
accused that can afford their own legal
representation, and those that must rely
on the Tribunal’s aid system. There are several circumstances where the
right to this
choice may be legitimately restricted, for example chosen counsel
should meet the qualification requirements of the ICTR and also,
preferably be
listed on the list of available Duty Counsel. These restrictions on the right to
counsel of choice must, however, remain
the exception, not the norm. This paper
will argue that the ICTR must adopt a formal recognition of the right to counsel
of choice,
subject to limited exceptions, such as basic qualification
requirements and conflicts of interest. At the very least, counsel should
not be
assigned or denied due to arbitrary and unjustifiable reasons. Currently, the
ICTR does not recognise a right to counsel of
choice. This leads to manifest
unfairness in some circumstances, warranting examination and reform. Greater
recognition of the right
to counsel of choice would provide both symbolic and
practical benefits.
Section II of this essay will address the policy reasons
for a principled recognition of the right to counsel of choice before the
ICTR.
Section III will examine the problems arising from the current position of the
ICTR with respect to recognition of this right.
It will demonstrate how the
ambiguities and other shortcomings of the ICTR’s formal legal tests have
impacted on the fair trial
rights of accused. Following this, Section IV of this
essay will examine alternative approaches to recognition of a right to counsel
of choice. By surveying the various shortcomings and merits of international
approaches to this issue, this essay will conclude that
the approach taken by
the European Court of Human Rights (ECrtHRs) provides effective guidance for the
reform of ICTR assignment
structures.
II. THE IMPORTANCE OF ASSIGNING COUNSEL OF CHOICE TO ICTR ACCUSED
The nature of the relationship between an accused and their defence
counsel is shaped by the legal context in which that relationship
operates: the
less interventionist the court, the more important the defence counsel is for
ensuring the accused’s fair trial
rights.[6]
The ICTR is commonly described as broadly reflecting an adversarial trial
model.[7]
Traditionally, adversarial trials involve a contest between two parties with
comparably minimal procedural safeguards to protect
the accused. As this model
is characterised by a contest between the parties, this adversarial element of
the ICTR means that a strong
defence lawyer to act as advocate for the accused
is vital to ensuring a fair
contest.[8]
In adversarial
proceedings, a defence counsel is positioned as the legal advocate for the
accused’s interests. Fundamentally,
the accused must feel that the counsel
assigned to them is somebody that they are comfortable working with, both in
terms of their
professional aptitude and their personal qualities. The accused
must be confident in their counsel’s ability to mount a strong
defence and
comfortable confiding in and relying on the counsel. It is therefore important
that the process of their assignment does
not add an obstacle to gaining their
client’s trust and confidence. This would occur where an accused person
felt that their
counsel had been assigned in a careless fashion, or for
alternative motives other than securing strong representation for them. It
is
clear that the more personal input the accused has into the selection of their
counsel, the more likely the assigned counsel is
to possess the qualities sought
by the accused as a basis for his or her trust and confidence.
Given the
importance of a strong lawyer-client relationship, it is critical that this
relationship is only compromised where there
are justifiable reasons for doing
so. Undercutting this relationship—due to
financial,[9]
political or other questionable considerations—has potentially serious
consequences for the Tribunal’s legitimacy. In
order to maintain
international legitimacy the ICTR must appear to guarantee justice, both in the
eyes of the people it accuses and
other observers. It is important that people
tried before the ICTR have no credible claim that the proceedings against them
lacked
legitimacy.[10] If the
accused has poor legal representation imposed upon
them,[11] then this disadvantage
undermines the Tribunal’s claim that the trial is a fair contest between
the Prosecutor and Defence.
Financial considerations, in particular, should
not have a determinate legitimate role in assignment of counsel. This is mainly
due
to the fact that the choice of counsel assigned can only make a very
marginal difference to expenses, owing to the pay structure
of ICTR defence
counsel. All assigned counsel are paid on a set pay scale, at a rate
‘based on the Counsel’s seniority
and
experience’.[12]
Counsel possessing greater levels of experience must be remunerated at a
slightly higher rate than less experienced counsel. This
difference is, however,
marginal, and may be balanced by the likely financial benefits, for example less
frivolous motions, that
may arise from employment of reasonably experienced
defence counsel. Moreover, refusal to assign counsel for this reason would
expose
the ICTR to criticism. As such, in this author’s opinion there is
no strong basis behind the proposition that recognising a
right to counsel of
choice would undermine the Tribunal’s control of its
finances.[13]
Moreover, as a
well-funded model of international justice, the ICTR should set aspirational
human rights standards with respect to
its treatment of accused persons. By
providing a strong and reputable example of international criminal justice, the
ICTR serves
as a basis for future international criminal
prosecution.[14] The provision of
legal assistance for indigent accused is an area of international human rights
law where the ideal standard is not
universally met, especially in many domestic
jurisdictions. There is still a vast discrepancy in the level of legal
assistance provided
to indigent accused compared to those able to fund their own
defence.[15] Indeed, several highly
developed countries—such as Australia, Finland and the United
Kingdom—have expressed reluctance
to sign up to treaty obligations that
would oblige them to provide legal aid to indigent
defendants.[16] It sets a troubling
precedent when even these countries, which are considered to have high levels of
human
development,[17]
express reluctance to guarantee even rudimentary legal assistance to indigent
accused. Well-funded models of international justice,
such as the ICTR, must
therefore reinforce the importance of this right. This would ensure the
promotion of the development of global
justice systems where all defendants are
provided with ‘‘equality of arms’’ regardless of their
liquidity.
III. THE ISSUE: PROBLEMS WITH THE STATUS QUO AT THE
ICTR
1.
Legal Provisions Defining the Assignment of Counsel
The right of
indigent accused to have counsel assigned to them derives from Article 20 of the
Statute of the International Criminal
Tribunal for Rwanda (Statute of the
ICTR).[18] Article 20(4)(d) titled
‘‘Rights of the Accused’’ provides that the accused is
entitled
[t]o 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.
This article provides that,
where a person can afford to provide their own defence, they may employ legal
assistance of their ‘own
choosing’, whereas legal assistance is
assigned to the accused where they cannot provide their own. This provision,
reflecting
both Article 14(4)(d) of the International Covenant of Civil and
Political Rights (ICCPR)[19] and
Article 21(4)(d) of the Statute of the International Tribunal for the Former
Yugoslavia (ICTY Statute),[20] has
commonly been interpreted as limiting the right of the indigent accused to
counsel of their
choice.[21]
This provision does however entail a general right to be represented by legal
counsel. Article 2 of the Directive on Assignment of
Defence Counsel (the
Directive)[22] builds on this notion
by establishing a general right to legal representation for all people indicted
by the Tribunal. Through drafting
this provision of the Directive in these
terms, the Chamber has indicated that it considers that it will always be in the
interests
of justice to have counsel provided to those accused who cannot afford
their own defence, in lieu of a waiver of this right. This
approach of allowing
all accused the opportunity of legal assistance has been enforced by the Trial
Chamber,[23] which has not yet
denied counsel to an accused.
This provision is complemented by the
Tribunal’s Rules of Procedure and
Evidence.[24] Rules 44-45 define the
substance of this right. Rule 44 lays down the requirements for appointment and
qualification of counsel.
Rule 44bis establishes that the Registrar
should keep a list of duty counsel who fulfil the criteria of Rule 44 and are
able to be summoned
by the Registrar. Rule 45(A) sets out the procedure for
assignment of counsel, including the relevant threshold qualifications that
must
be met by counsel.
2. The Rule 44bis List of Duty
Counsel
Rule 44bis establishes that the Registrar must keep a
list of duty counsel. The ICTR provides the indigent accused with this list
along with
a description and curriculum vitae of each candidate. The accused
makes a selection of three
counsel.[25]
Taking into account these preferences if he or she chooses, the Registrar then
assigns counsel to the accused. This list has steadily
grown, reaching 250
lawyers from all continents in
2002.[26]
The provision of a list
of duty counsel in this fashion appears on its face to reinforce a preference
for honouring the choice of
the accused. Despite this, the Chambers and
Registrar are reluctant to officially acknowledge any legal consequence arising
from
the accused’s indication of preference. In the case of Prosecutor
v Kambanda, the Appeals Chamber clearly stated that ‘the right to free
legal assistance by counsel does not confer the right to choose
one’s
counsel’.[27] This principle
was reiterated by the Appeals Chamber in the case of Prosecutor v
Akayesu.[28]
However, in
this same case, the Appeals Chamber provided a more nuanced approach to this
right, when addressing this issue during
the crisis of legitimacy created by the
Registrar’s moratorium (see below, Section III(C)(1)). The Appeals Chamber
stated that
the provision of a list of duty counsel created a ‘legitimate
expectation’ that any preference expressed for counsel
on that list would
be honoured by the Registrar.[29]
The Trial Chamber took this right a step further in the case of Prosecutor v
Ntakirutimana et al. stating that the Registrar should grant the preference
of the accused ‘unless the Registrar has reasonable and valid grounds
not
to grant [it]’.[30] Although
on its face this reasoning appears to affirm the primacy of the accused’s
preference, this preference was undermined
by a broad definition of what amounts
to ‘reasonable and valid grounds not to grant the request of the
accused.’[31]
3. What amounts to ‘reasonable and valid grounds not to grant the request of the accused’?
This phrase is liable to more than one interpretation due to the normative judgment that its definition requires. Some commentators have argued that a plain reading of this test requires the Registrar to explicitly recognise the rights of the accused before finding ‘reasonable and valid grounds’ to depart from their preference.[32] In practice though, the test has not resulted in increased recognition of the accused’s preference.[33]
The main case on the application of this test is Prosecutor v Ntakirutimana et al.[34] In this case, the accused, Mr Gérard Ntakirutimana, was seeking the replacement of counsel whom he had originally employed prior to his declaration of indigence. The accused was originally represented by Ms Moise-Bazie (of the Cote-d’Ivoire Bar Association). His relationship with Ms Moise-Bazie deteriorated and she submitted a request to the Registrar to be withdrawn as counsel. The Registrar promptly removed Ms Moise-Bazie, replacing her with Mr Loomu-Ajare (of the Tanzanian Bar Association). The accused raised two objections to the assignment of Mr Loomu-Ajare. The accused lacked confidence in Mr Loomu-Ajare due to his Tanzanian nationality. In the submission of the accused, this meant that he belonged to a nation with close ties to the Tutsi government of the Republic of Rwanda. Further, the accused submitted that the Registrar should never have ‘imposed’ Mr Loomu-Ajare upon him without taking into account his preference for counsel.
Both of the accused’s submissions failed. The Chamber found that Mr Loomu-Ajare’s Tanzanian nationality did not constitute ‘exceptional circumstances’ for the purposes of Rule 45(H) replacement of counsel. In respect to the second submission, the Chamber found that the accused had no right to choose the counsel to be assigned to him. The Chamber found that, while the accused had been given prior scope to select his counsel, his subsequent claim of indigence meant that his preference would be curtailed by the procedure for assignment for indigent accused.
The Chamber majority (Laity Kama and Lennart Aspergren JJ) found useful guidance from the interpretation of Article 14(d) of the ICCPR by the Human Rights Committee. The Human Rights Committee has held that this provision gives no right to indigent accused to select their counsel.[35] The Chamber adapted this principle to the procedures of the ICTR, arguing that the existence of the Directive and the assignment provisions under the Rules of Procedure and Evidence meant that the Registrar was bound exclusively by his or her obligations under these rules. In the opinion of the Chamber majority, the Registrar could not be expected to have potentially conflicting obligations between following the procedures established by these rules and respecting the accused’s preference of counsel. The judges felt that such a conflict may arise if the Registrar were to be expected to honour the accused’s choice. In this case, this argument may have been made because the counsel sought by Mr Ntakirutimana was not actually on the list of Duty Counsel. It is not however clear how such an argument would work if the counsel requested was included on the list of Duty Counsel. In such a case, the Registrar’s obligations to assign counsel according to the procedural rules and to honour the preference of the accused are surely complementary.
In this author’s opinion, while the Chamber majority reaffirmed the interests of respecting the accused’s preference to ensure the most ‘efficient defence possible’,[36] they placed too much emphasis on the list of duty counsel as a constraint on the Registrar. There is no necessary conflict between the existence of this list and respecting the preference of the accused. Although Rule 45 states that indigent accused shall be assigned counsel from the list of duty counsel, this Rule applies no temporal restriction on when the assigned counsel may be added to the list. Hence, under these Rules it is possible for an indigent accused to choose a counsel who satisfies the requirements of Rule 44 and subsequently have that counsel added to the list of duty counsel for the purposes of having that specific counsel assigned to them. Consequently the only restrictions on counsel eligibility under the Rules are those explicitly imposed by Rule 44. Any further restrictions on the Registrar’s deference to the accused’s choice of counsel, merely based on the existence of an administrative list, should not be allowed. This reading of the Rules of Procedure and Evidence would have the negative policy outcome of subjugating the preference of the accused.
Further, there are normative reasons why the ICTR Statute should be differentiated from the ICCPR, the former being the Statute of an international criminal tribunal and the latter being a human rights treaty designed to deal primarily with rights in domestic legal systems. Due to the special importance of the role that international criminal prosecution plays as a role model for international justice, it is important that the highest standards of fair trial rights are met to set a precedent for the development of international justice (see above, Section II). Even though these two provisions share almost identical wording,[37] treaty terms must be interpreted in accordance with their ordinary meaning, in light of their context and purpose.[38] In the case of the ICCPR, its provisions are designed to promote the realisation of civil and political rights in domestic jurisdictions. This purpose must be distinguished from that of the ICTR, which seeks the promotion of international justice through fighting impunity.
Moreover, whilst the Chamber majority seek guidance from the application of
international human rights law, the exact nature of the
right to counsel of
choice remains ambiguous at international law. The cases of Little v
Jamaica[39] and Wright v
Jamaica[40] do indeed state that
an accused does not have an absolute right to counsel of choice. Conversely, the
European case of Croissant v Germany, also cited by the Chamber, came
closer to affirming a right for indigent accused to counsel of choice. Although
the Chamber only
considered a small portion of the international jurisprudence
on this right, it is clear even from this survey that there is no definite
international standard or consensus on how this right should be treated (see
also, below Section IV). As a consequence, any guidance
that the Chamber
received from the international jurisprudence cannot in itself determine a
conclusive test for what constitutes
‘reasonable and valid grounds not to
grant the request of the
accused.’[41]
4. Removal
of Assigned Counsel under Rule 45(H)
On its face, the requirement for
removal of assigned counsel is a strict test. Rule 45(H) provides that, upon the
request of the suspect
or accused, a chamber may recommend to the Registrar that
assigned counsel be replaced under ‘exceptional circumstances’.
This
test is subject to the further requirement that the replacement cannot be
exploited by the accused for the reason of delaying
proceedings. The power to
replace assigned counsel directly, without instruction from the Chamber, is
given to the Registrar by Article
19 of the Directive. Article 19(A) further
reflects the ‘exceptional circumstances’ test contained in Rule
45(H). If
the accused requests replacement, they bear the burden of proving
‘exceptional
circumstances’.[42] In
practice, the Chamber ordinarily grants requests for replacement of counsel by
the accused. Many of these replacements have arisen
from circumstances that have
meant that the assigned counsel has inadequately represented the interests of
the accused.
If a defence counsel is unable or unwilling to adequately
perform their duties to their client, this may constitute ‘exceptional
circumstances’ under Rule 45(H). In Prosecutor v Akayesu, counsel
was replaced owing to their failure to appear at trial, as a result of a
financial dispute that they were having with the
Registrar.[43] Likewise in
Prosecutor v Musema, a case where counsel of choice was assigned to the
accused, counsel was replaced for refusing to appear at the initial appearance
of her client owing to a financial dispute with the Registrar involving
pre-payment of her airfare to
Arusha.[44] Further to this,
situations beyond the control of the defence counsel that inhibit their ability
to be physically present at the
Tribunal constitute ‘exceptional
circumstances’.[45]
A
breakdown of the relationship of trust and confidence is the second major form
of ‘exceptional circumstance’ for Rule
45(H) removal. Defence
counsel are removed when the accused shows reasonable grounds for feeling a lack
of confidence in their
representation,[46] or where
unfortunate circumstances cause a breakdown of their
relationship.[47] However the Trial
Chamber has made it clear that the accused cannot initiate the breakdown of this
relationship. In Prosecutor v Ngeze, the accused requested replacement of
his counsel (Mr Floyd) because Mr Floyd would not follow his directions to
appoint specific
defence
investigators.[48] Since such
appointments are a matter to be left to lead
counsel,[49] this tension in their
relationship was caused by illegitimate pressure exerted by the accused over the
functioning of the defence
counsel.
It is clear from this precedent that,
subject to this process not being manipulated by the accused as a delaying
strategy, the accused
has greater influence over replacing counsel than they do
over the initial selection from the list of duty counsel. It is inconsistent
to
grant Rule 45(H) removal owing to a breakdown of trust and confidence between
accused and his or her counsel when these factors
are de-prioritised during the
initial process of counsel assignment. The rights of the accused would be better
protected, and the
process would be more efficient, if the issue of ensuring a
relationship of trust and confidence was given greater protection from
the
outset.
B. Legitimate Restrictions on the Right to Choose
Counsel
In general, the requirements for counsel to qualify for the list of duty
counsel (that is, counsel who may be assigned to indigent
accused) are less
demanding at the ICTY compared to those at the
ICTR.[50]
Whilst this is in part a reflection of the ICTY’s greater recognition of
the right to counsel of choice, the ICTR’s restrictions
may not be all
together problematic,[51] so long as
the restrictions are not extended beyond the formal practical restrictions
contained in the Rules of Procedure and Evidence.
These current restrictions at
the ICTR are defined by Rule 45(A) of the Rules of Procedure and Evidence, which
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 seven
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
(emphasis
added).[52]
The
two aspects of this rule subject to criticism are the requirements of
experience, and fluency in at least one of the working languages
of the
Tribunal, these being English and
French.[53]
1. The
Requirement that Duty Counsel ‘have at least seven years relevant
experience’
This criterion has been evolving throughout the
functioning of the ICTR, at times requiring greater experience, and at times not
requiring
any experience at all. Originally, neither the Rules of Procedure and
Evidence,[54]
nor the Directive on Assignment of Defence Counsel imposed a limitation on the
minimum of number of years of experience. In mid-1999,
the documents were
amended so that Article 13(i) of the Directive and Rule 45(A) of the Rules of
Procedure and Evidence both required
counsel to have at least ten years’
experience to be eligible for the list of duty
counsel.[55] This ten-year rule
attracted considerable
criticism,[56]
especially since it was restrictive of the choice of accused and arbitrary in
its operation. Clearly counsel with seven or eight
years of relevant
legal experience are likely to be better qualified than counsel with ten years
of irrelevant legal
experience.[57]
This requirement
was modified in mid-2007 by amendments that reduced the required experience to
seven years.[58] This new rule
remains inadequate, as seven years is still an arbitrary requirement. There is a
further problem, however, with imposing
a requirement of experience specifically
related to international criminal law. One can only gain experience at
international criminal
law by being eligible to practice international criminal
law so such a requirement creates a barrier for entry into the field. A
better
solution would be a proactive training program whereby inexperienced counsel are
appointed as co-counsel to those with more
experience in international criminal
law.[59]
2. The
Requirement that Duty Counsel ‘speak one or both of the working languages
of the Tribunal’
This requirement has been an issue at the
ICTY, where most counsel do not speak the same language as the accused and most
of the accused
do not speak one of the official languages of the
Tribunal.[60] At the ICTR on the
other hand, most of the accused, although native speakers of Kinyarwanda, are
also proficient in French.[61] These
factors have led to two phenomena: an abundance of Francophones working as
defence counsel at the ICTR,[62] and
operational flexibility in the language requirements at the
ICTY.[63] This limitation is
unlikely to be debated at the ICTR due to the French language abilities of the
ICTR accused.
C. This Uncertain Recognition of the Right to Counsel
of Choice at the ICTR Has Caused Prejudice in At Least Two Instances
The exact position of the Chamber with respect to the amount of deference the
Registrar should give to the preferences of the indigent
accused remains
unclear. Although the Chamber recognises the importance of respecting the
accused’s preference,[64] the
ambiguous relationship between this right and the Registrar’s discretion
has sparked two notable situations where the nature
of this right required
scrutiny. The first of these was the Registrar’s moratorium on French and
Canadian defence counsel throughout
1997-1999 (see below, Section III(C)(1)).
More recently, the case of Prosecutor v Nshogoza showed how abuse of this
discretion could severely impact on the fair trial rights of indigent accused
(see below, Section III(C)(2)).
In both of these instances, the Chambers
eventually intervened to protect the rights of the accused and the legitimacy of
the Tribunal.
In the first crisis - the moratorium - the Trial Chamber was
complicit in allowing a flawed exercise of the Registrar’s discretion
and
the practice did not cease until the Appeals Chamber condemned it. In the second
crisis, the Trial Chamber had to issue two orders
and a decision before the
accused was finally assigned
counsel.[65] These issues
demonstrated that judicial review is inadequate to effectively safeguard the
rights of the accused. Both of these crises
undermined the ICTR’s public
legitimacy and damaged its claim to be protecting human
rights.[66] These events should
serve as a warning against maintaining an imprecise protection of indigent
accused’s right to have counsel
of choice.
1. The
Moratorium
The Registrar’s moratorium was instigated as a response to the Registrar’s perception of the dominance of French and Canadian defence counsel. There were indeed a high proportion of French and Canadian defence counsel, most likely because most of the accused speak French, and would therefore be more inclined to prefer French-speaking counsel to aid their communication.[67] The Registrar believed that this purported Francophone monopoly of the defence could allow Francophone defence counsel to manipulate the Tribunal and block proceedings.[68] Such an allegation is unfounded as there is no evidence that Francophone defence counsel have any less respect for the judicial process than defence counsel of other linguistic backgrounds.
After it became clear that the moratorium could not be justified on these grounds, the Registrar sought other grounds to justify the moratorium.[69] The Trial Chamber provided the new justification when the moratorium was challenged in the case of Prosecutor v Nyiramasuhuko and Ntahobali by stating that
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 [emphasis added].[70]
The ICTR accused responded to this decision with outrage. They saw it as undermining their ability to be represented by counsel with whom they were easily able to communicate. Their dissatisfaction was demonstrated by a mass hunger strike at the detention facilities in Arusha following this decision.[71]
This issue reached the Appeals Chamber in July 1999 in the case of Prosecutor v Akayesu. The Appeals Chamber criticised the moratorium, arguing that the Registrar’s provision of a list of duty counsel created a ‘legitimate expectation’: where the accused indicated a preference for counsel contained on the list, chosen counsel would be assigned to the accused, subject to their availability.[72] This decision effectively ended the moratorium, despite a subsequent attempt by the Trial Chamber to reinstate its operation.[73]
The strongest support for the moratorium arose from those who understood ensuring an even geographic distribution of staff to be a common feature of international organisations.[74] Although this policy is true of the recruitment of United Nations staff, and may have some justification in that respect, defence counsel are not United Nations staff.[75] Typically, the policy of ensuring a geographic distribution of the staff of international institutions is designed to safeguard ‘against institutional nepotism based on national preferences of ignorance and disdain of other legal systems’.[76] Defence counsel do not participate in the ICTR as national representatives. Their role is primarily as advocates for the rights of the accused. Consequently, the geographic distribution policy should not apply to defence counsel.
Moreover, the prioritisation of maintaining a geographic distribution of
defence counsel in preference to the choice of the accused,
seriously hinders
recognition of the fair trial rights of the accused. Clearly, defence counsel
will be able to more effectively
defend their clients if they can communicate in
a language that both understand.[77]
Whilst it is unclear whether this restriction caused any measurable
prejudice to the fair trial rights of the accused who were denied
counsel of
choice on this basis, indeed such prejudice would be difficult to quantify, it
is clear that the moratorium nonetheless
undermined the legitimacy of the
Tribunal by causing considerable resentment among
detainees.[78] This resulted in both
large-scale protest in the form of a hunger
strike,[79] and international
condemnation. The International Criminal Defence Attorneys Association (ICDAA)
issued a Resolution along these
lines, condemning the moratorium, arguing that
‘[n]o accused person should be denied the right to choose legal assistance
on
the basis of discrimination of any
kind’.[80] In practice, the
moratorium undermined the legitimacy of the Tribunal and amounted to the very
discrimination that the Tribunal was
claiming to avoid because it discriminated
primarily on the basis of ‘nationality’ rather than
‘geographic
distribution’.[81] It
demonstrated the potentially disastrous consequences of inappropriate exercises
of the Registrar’s
discretion.[82]
2.
Assignment of Counsel in Prosecutor v Nshogoza
Problems stemming
from unjustifiable exercises of the Registrar’s discretion did not cease
when the moratorium was abandoned.
Even recently, such issues have continued to
challenge the rights of accused persons. The latest example of this was the case
of
Prosecutor v Nshogoza. This case marked an occasion where the
interests of the accused were overridden by the administrative concerns of the
Registrar.
The accused, Mr Leonidis Nshogoza, assigned power of attorney to
Ms Allison Turner on 8 February
2008.[83] In the accused’s
submission, he completed the relevant paperwork to determine his indigence and
request Ms Turner as his counsel
of choice on 26 February
2008.[84] Following this, the
Registrar and Ms Turner communicated on various occasions about her assignment
as counsel for the accused.[85]
Although the Registrar made various offers to Ms Turner to assign her as
counsel, they could not agree on the terms of her
remuneration.[86] The Registrar
would not assign Ms Turner as counsel for the accused until the resolution of
this dispute. Throughout this feud, Ms
Turner continued to act for the accused
on a pro bono basis until 9 June 2008. At that point she expressed
intentions to cease representing the accused until an agreement was reached
regarding her
remuneration.[87]
In an attempt
to ensure that the accused had adequate legal representation, the Chamber issued
an Order on 24 July 2008, instructing
the Registrar to assign counsel to the
accused.[88] Following this Order,
the Registrar attempted to assign Ms Turner to the
accused,[89] on the condition that
she accept his terms of remuneration, which reflected the standard rates of
remuneration for ICTR defence counsel.
She refused this
offer,[90] and continued to pursue
remuneration in excess of the standard lump-sum payment given to defence
counsel. In response, the Registrar
approached the accused with the list of duty
counsel, requesting that he resubmit his
preferences.[91]
On 18 August
2008, as counsel had still not been formally assigned to the accused, the
Chamber issued a second Order instructing the
Registrar to assign defence
counsel without delay.[92] The
Registrar responded to this Order on 20 August 2008 by assigning Mr Philippe
Greciano as Lead Counsel for the
accused.[93]
The
Registrar’s assignment of Mr Greciano as counsel for the accused meant
that Mr Nshogoza was denied representation by the
counsel who had previously
been representing him for seven months. This situation was particularly
problematic, as the accused had
been in detention for almost eight months on
charges of contempt of court. As the trial was scheduled to commence on 29
September
2008,[94] and Mr Greciano
had indicated at the 28 August 2008 status conference that he would not be ready
to commence trial until January
2009,[95] it was clearly not in the
interests of efficiency, nor justice, for Mr Greciano to represent Mr Nshogoza.
In contrast, Ms Turner
was purportedly trial
ready.[96] Following this reasoning,
the Chamber removed Mr Greciano pursuant to Rule 45(H) and ordered the Registrar
to appoint Ms Turner.
Ultimately, Mr Nshogoza suffered real and demonstrable
prejudice of his fair trial rights. On 2 July 2009, Mr Nshogoza was convicted
on
a single count of Contempt of the Tribunal and acquitted of the other three
counts of Contempt of the
Tribunal.[97] He was sentenced to 10
months imprisonment. As Mr Nshogoza had been detained at the UN detention
facility since 8 February 2008,
he had already served the entirety of his
sentence, plus almost seven additional months. Of this time, over seven months
had occurred
whilst Mr Nshogoza was being held in detention without counsel due
to the dispute between his counsel of choice and the Registrar.
Had Mr Nshogoza
been immediately and effectively assigned counsel of choice, it is highly likely
that his trial would have commenced
earlier, thus avoiding this additional jail
time.
This dispute demonstrates how the human rights of the accused may be
compromised by illegitimate exercises of the Registrar’s
discretion. Fault
in this case was clearly attributable to multiple parties, including Ms Turner
who allowed her personal interest
in attempting to secure favourable terms of
remuneration to undermine the interests of her client. Ultimately, however, this
case
demonstrated how, without protection of the importance of an indigent
accused’s right to choose their counsel, other, arguably
less important,
considerations, such as payment disputes, may significantly undermine the fair
trial rights of the accused.
IV. COMPARATIVE APPROACHES IN OTHER
INTERNATIONAL CONTEXTS
From the above analysis, it is clear that the
current policy of counsel assignment to indigent accused is inadequate.
Theoretically,
defence counsel play an indispensible role in ensuring the fair
trial rights of the accused. Defence counsel can only effectively
fulfil this
role if they maintain relationships of trust and confidence with their
clients.[98] Considering the
inadequacies demonstrated by the aforementioned crises, the law of the ICTR
provides insufficient protection of the
right to counsel of choice.
Fundamentally, the ICTR approach to this right suffers from its ambiguity.
Although clear rules exist to determine the basic eligibility
requirements of
counsel, the majority reasoning in Prosecutor v Ntakirutimana et al
inflects ICTR jurisprudence with uncertainty. Without a clear test describing
what amounts to ‘reasonable and valid grounds
not to grant the request of
the accused’,[99] the
Registrar has a broad discretion to interpret this test in a way that renders
meaningless any protection of the right to counsel
of choice.
In response,
this section will analyse the alternative approaches to protecting the
accused’s preference for counsel. It will
conclude that the approaches of
other international courts and several human rights treaties provide ineffective
guidance for the
ICTR, as they too are unclear; they provide imprecise guidance
of customary international practice, and they are mostly ambiguous
in their own
right. Similarly, the approach of the ICTY is inappropriate, as it relies too
heavily on discretionary deference to
be effective at remedying the ICTR
approach. The inadequacies of many of these approaches reflect the various
failings of the ICTR
approach: the interpretative hazards of equivocally worded
legal provisions and the lack of clear guidance from international norms.
Conversely, this section examines the approach of the ECrtHRs as potentially
more effective, as it provides clear protections of
the right to counsel of
choice through tighter limitations on the exercise of administrative discretion
to disregard this choice.
This approach gives guidance on how to remedy the
deficiencies of the current ICTR approach.
A. Ambiguous Approaches: Other Courts Prosecuting Serious Crimes against Humanity and Several Human Rights Treaties
Multiple approaches to the right to choose one’s own counsel exist
in international law. These approaches range from very strong
protections of
indigent rights, to a failure to recognise fair trial rights, to approaches that
are unclear or ambiguous.
1. Jurisdictions that have Demonstrated
Strong Protection for the Accused’s Choice of Assigned Counsel
The right to a fair trial has been an important tenet of
international criminal law from its inception. The earliest war crimes Tribunals
also offered strong protection of the accused’s preference for counsel. At
the Nuremberg Military Tribunals, the practice was
to afford maximum deference
to the accused’s preference of
counsel.[100] The theory behind
this custom was simple: ‘these men must not be given the slightest excuse
to protest that they had been denied
a fair
trial’.[101] This meant that
the national origin of counsel was never cause for refusing their
assignment,[102] nor was suspected
complicity in illegal activities related to the Holocaust. The process was the
same at the International Military
Tribunal for the Far
East.[103] This level of deference
would be too high for the ICTR, as clearly there would be public outcry if the
Tribunal’s funds were
being used to pay former Interahamwe to act
as defence counsel. However, the experience in the post-WWII Tribunals
demonstrates early recognition of the importance of
this right.
2.
Jurisdictions that have Demonstrated Weak Protection for the Accused’s
Choice of Assigned Counsel
The former United Nations Transitional Administration in East Timor (UNTAET) Serious Crimes Unit of East Timor failed to affirm fair trial rights. As such, it is highly unlikely that any of their practices would be at all persuasive for the development of the right to counsel at the ICTR. Although the Serious Crimes Unit had a Public Defender’s Office, it was unclear whether the defence officially had a budget.[104] The fact that the defence was unable to call a single defence witness in any of the first 14 trials suggests that, even if there were a budget, it was insufficient to secure the fair trial rights of the accused.[105]
Although the right to counsel was guaranteed by Section 27 of the Statute of the Serious Crimes Unit,[106] the level of protection of this right has been the subject of significant criticism.[107] On occasion, the Serious Crimes Unit effectively disregarded this right, even admitting evidence obtained while an accused was denied the right to legal counsel.[108] Even where this right was broadly fulfilled, the accused were provided with inadequate representation: while the international defenders appearing before the Serious Crimes Unit were required to have at least three years’ trial experience, Timorese defence counsel were only required to have a law degree.[109]
Considering the extensive criticism faced by the Serious Crimes Unit, none of its practices with respect to protection of fair trial rights could be considered within the norms of practice at international criminal tribunals. The contrast between the strong fair trial guarantees of the earlier International Tribunals and the weak position of defence rights at the Serious Crimes Unit demonstrates a lack of international customary norm. Without any international customary norm to inform the practice of fair trial rights for accused appearing before international criminal courts the Tribunal should consider all of the current approaches to this issue and adopt whichever is most suited to addressing the problem at the ICTR.
3. Jurisdictions that Provide Ambiguous Protection of the
Right to Counsel of Choice
Several international and regional
contexts provide unclear degrees of protection for the right to counsel of
choice. This uncertainty
demonstrates how the deficiencies with the ICTR
jurisprudence extend beyond the ICTR, as ambiguity regarding fair trial rights
occurs
in several international and regional contexts.
(i) The
International Criminal Court
There is no jurisprudence determining
the application of the assignment policies of the International Criminal Court.
Article 67(1)(d)
of the Rome Statute reflects Articles 20(4)(d) of the
ICTR Statute and 21(4)(d) of the ICTY Statute. Likewise, the ICC will also
provide indigent accused
with a list of duty counsel pursuant to Rule 21(2) of
the Rules of Procedure and Evidence.
(ii) The Extraordinary Chambers
of the Cambodian Courts
There are multiple ambiguities in the
provisions of the Cambodian
Agreement[110] that deal with the
right to counsel of choice. Article 13(1) of the Agreement provides that
[t]he rights of the accused enshrined in Articles 14 and 15 of the 1966
International Covenant on Civil and Political Rights shall
be respected
throughout the trial process. Such rights shall, in particular, include the
right: to engage a counsel of his or her
choice; ... to have counsel provided if
he or she does not have sufficient means to pay for it; ...
The use of
the semi-colons separating the rights, as if they exist as discrete rights,
implies that there are two rights to counsel:
first, a right to counsel of
choice, and second, a right to have counsel provided where one is indigent. On
the other hand, the start
of the provision mentions that the rights of the
accused reflect those enshrined in Article 14 of the ICCPR, which has been
interpreted
as limiting right to counsel of choice for indigent
accused.[111] The second paragraph
of this provision supports this interpretation, providing that:
The United Nations and the Royal Government of Cambodia agree that the
provisions on the right to defence counsel in the Law on the
Establishment of
Extraordinary Chambers mean 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 [emphasis added].
These elements of the
provision provide an immediate context for the interpretation of its terms
following the customary rules of
treaty interpretation provided by Article 31(1)
of the Vienna Convention on the Law of Treaties. Reading Article 13(1) in
light of this context suggests that the right to counsel of choice is limited in
the same way that Article
14 of the ICCPR imposes limitations on the rights of
indigent accused.
(iii) The Special Court for Sierra
Leone
The Special Court for Sierra Leone provides a comparable level
of legal right to counsel in Article 17 of its Statute. Article 17(4)(d)
provides that the rights of the accused include:
to defend himself of herself in person or through legal assistance of his or
her own choosing; ...; 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;... .
Once again, the separation of rights by semi-colons causes a
possible ambiguity. This could be interpreted as allowing the right to
be
represented by counsel of one’s own choosing and the right to have counsel
provided if indigent as two separate and cumulative
rights. Without any case law
on this issue, it is unclear how the Special Court will interpret Article
17(4)(d).
The main innovation of the Special Court was the development of its
innovative Defence Office pursuant to Rule 45 of the Rules of
Procedure and
Evidence.[112] This Defence Office
has the potential to provide a more structured approach to defence at the
Special Court by ensuring mutual support
for defence teams, which have been
historically disenfranchised by the Special
Court.[113] Functioning Defence
Offices are a useful innovation for newly established Tribunals. The ICTR
however is completing its final cases.
Therefore the ICTR must prioritise
ensuring the rights of all accused above initiating institutional reform through
the development
of a similar office.
(iv) Human Rights
Treaties
Several international conventions protect fair trial rights,
including the rights to counsel. The most significant of these is Article
14(3)(d) of the International Covenant on Civil and Political Rights,
which provides for an accused:
[t]o 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
justice so require, and without payment by him in
any such case if he does not have sufficient means to pay for it;...
.[114]
This wording is very
similar to that of Article 20(4)(d) of the Statute of the ICTR and Article
21(4)(d) of the Statute of the
ICTY.[115] This provision does not
guarantee counsel of choice to indigent
accused.[116]
Multiple regional
agreements also protect the right to
counsel.[117]
Article 7(1) of the African Charter of Human and People’s Rights
(the Banjul Charter)[118] provides
that ‘[e]very individual shall have the right to have his cause heard.
This comprises: (a) ... (c) the right to defence,
including the right to be
defended by counsel of his choice’. The Banjul Charter is silent on the
right to assigned counsel
for indigent accused. As such, Article 7(1)(c)
provides the extent of the right to counsel contained in the Banjul Charter. The
only
right expressed by the Banjul Charter is the right to counsel of choice.
The Charter is silent on whether this right is restricted
for indigent accused,
therefore this right should be interpreted broadly as applying to all accused
regardless of their financial
status. Otherwise, not applying this right to
indigent accused would render this provision partially inutile, especially
considering
that most of the accused appearing before African courts would
likely not have sufficient financial means to effectively fund their
own
defence.
This approach would however likely be inappropriate for the
interpretation of the Banjul Charter. The Banjul Charter is a human rights
agreement between African nations. As most African nations are developing
countries,[119] it is unlikely
that the intent of the Charter was to place positive obligations on its
signatories requiring them to provide significant
financial support to indigent
accused within their countries. Moreover, the full title of the Banjul Charter,
that is, the African Charter on Human and Peoples’ Rights,
emphasises that the purpose of the Charter is to avoid threats to human rights.
These factors suggest that the primary focus of the
Banjul Charter is not to
impose obligations on states to create sophisticated legal aid systems, but to
signify an aspirational recognition
of individual freedoms.
The formal
legal rules of the ICTY reflect a similar approach to that taken by the ICTR.
Article 21 of the ICTY Statute reflects Article
20 of the ICTR Statute. The ICTY
Registrar also holds a list of duty counsel, pursuant to Rule 45(C) of the Rules
of Procedure and
Evidence of the ICTY.
In practice, however, the assignment
procedure of the ICTY is more flexible than that of the
ICTR.[120] The ICTY Registrar has
historically given maximum reverence to the preference of counsel shown by the
accused.[121] In the case of
Prosecutor v Sljivancanin the Chamber stated that the right to chose
one’s own counsel is limited for indigent
accused.[122] However, in
practice, other cases, such as Prosecutor v Simic et al., have weighted
the balance of factors in favour of respecting the accused’s choice of
counsel.[123] The ICTY has even
upheld the preference of the accused where the chosen counsel does not speak
either language of the
Tribunal.[124] This represents
just one element of the markedly different approach taken by the two Tribunals.
The ICTR consistently limits the
choice of indigent accused, whereas the ICTY
adopts a flexible approach in order to uphold the preference of the
accused.[125]
Plainly, the
ICTY has been an exemplar in recognising the importance of fostering an organic
relationship of trust and confidence
between accused and
counsel.[126] This is attributable
to a culture at the Tribunal that recognises the hazards of imposing a counsel
that the accused might not feel
comfortable working with. Such an administrative
culture encourages the exercise of discretion in favour of upholding the
accused’s
choice of counsel.
Whilst this approach has been effective at
the ICTY, it is not a viable alternative for the ICTR. The administrative
culture of valuing
the choice of the accused is the crux of the ICTY’s
approach. Without this culture, the ICTY would suffer similar drawbacks
to the
ICTR, including inadequate legal rules to ensure protection of the
accused’s preference of
counsel.[127] The ICTR repeatedly
demonstrates a culture antithetical to preserving the preference of the accused.
Institutional cultural values
would be difficult to effectively impose upon the
ICTR. Therefore, it is unlikely that such an approach would be effective at the
ICTR in the absence of formal legal rules dictating recognition of the
accused’s preference of counsel.
C. An Effective Alternative: The ECrtHRs Approach
The most important regional human rights agreement in the development of
potential guidance for the development of ICTR procedure
is the European
Convention for the Protection of Human Rights and Fundamental Freedoms (the
‘European Convention’). Article 6(3)(c) of the European
Convention provides the accused with the right:
[t]o 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 of justice so require. [128]
This provision is in substance identical to the terms in Article 20(4)(d) of the ICTR Statute, which led to the ICTR Chambers making references to the case law on this provision.[129]
In general, the ECrtHRs adopts a relatively strong approach to the protection
of the right to choose one’s counsel. The right
to choose one’s
legal representation only extends to those who can pay for their legal
representation.[130] However, the
ECrtHRs suggests that it is generally desirable to uphold the choice of indigent
accused. The ECrtHRs recognised the
importance of protecting this choice in the
case of Croissant v Germany. Here, the relevant test was that the state,
as the party wishing to override the choice of the accused, has the burden of
showing
that ‘there are relevant and sufficient grounds for holding that
this is necessary in the interests of
justice’.[131] This
precedent has been inappropriately interpreted as standing merely for the
proposition that the right to choose is not
absolute,[132] without regard for
the strong burden required to override the accused’s wishes. This strong
burden was reinforced in the case
of Pakelli v Germany in which the
ECrtHRs extended this right, finding:
a “person charged with a criminal offence” who does not wish to
defend himself in person must be able to have recourse
to legal assistance of
his own choosing; if he does not have sufficient means to pay for such
assistance, he is entitled under the
Convention to be given it free when
the interests of justice so require [emphasis added].
[133]
As the adverb
‘‘it’’ in the final clause refers to the term
‘legal assistance of his own choosing’,
this statement by the
ECrtHRs stands for the proposition that indigent accused should have the legal
counsel of their choosing assigned
when the interests of justice require. The
ECrtHRs reached this conclusion by comparing the English and French language
versions
of the European Convention, both of which are equally
authoritative under treaty law as official versions of the
text.[134] Both versions of
the text provide three rights: (a) to defend oneself in person; (b) to have
recourse to counsel of one’s own
choosing; (c) to have counsel assigned if
unable to remunerate one’s own counsel. There is one crucial difference
between the
two official versions of this text. Whereas the English text links
all three rights with the disjunctive ‘‘or’’,
the French
text only links rights (a) and (b) with the disjunctive
‘‘au’’ (‘‘or’’)
and links the
final right, (c), with the conjunctive ‘‘et’’
(‘‘and’’). This suggests
that the final right should be
additional to the previous
rights.[135] Therefore, under this
reading, an accused has the right to counsel of his or her choosing and an
additional right to have that counsel
assigned if indigent.
A similar
argument could be made about the French text of Article 20(4) of the ICTR
Statute. It provides that the accused has the
right:
[e]tre présente au procès et se défendre
elle-même ou [‘or’] avoir l’assistance d’un
défenseur de son choix; si elle n’a pas de défenseur,
être informée
de son droit d’en avoir un, et
[‘and’], chaque fois que l’intérêt de la
justice l’exige, se voir attribuer d’office un défenseur,
sans frais, si elle n’a pas les moyens de le
rémunérer;... .
[136]
This text similarly
provides three rights: (a) to defend oneself in person; (b) to have recourse to
counsel of one’s own choosing;
(c) to have counsel assigned if indigent.
There are two elements of this text supporting the cumulative reading of rights
(b) and
(c). First, a semi-colon separates the first and second clauses, rights
(a) and (b). This grammatical structure implies the listing
of these two rights.
Second, rights (b) and (c) are separated by the conjunctive ‘et’
suggesting that they are cumulative,
not alternative. As such, similarly to the
French text of the European Convention, the use of the disjunctive semi-colon
between
the first two rights compared to the use of the conjunctive
‘et’ between the final two rights suggest that the final
two rights
are cumulative.
While the European Convention provides useful guidance
for possible textual interpretations, it applies primarily to domestic courts,
which clearly occupy a very
different legal context to the ICTR. The ICTR, as an
international criminal tribunal administered by the United Nations, with its
raison d’etre being to protect human rights, should, if anything,
be held to a higher standard than domestic European courts. For example,
domestic
courts are not established to prosecute crimes as serious as genocide
or crimes against humanity. The severity of trials and the
interests at stake
(such as the potential gravity of a conviction) are frequently not as severe.
Indeed, there is significant European
jurisprudence on whether assignment of
counsel would be required by the ‘interests of
justice’.[137] Clearly,
considering the gravity of the charges of crimes against humanity and genocide,
legal representation will always be required
at the ICTR for the
‘interests of justice’.
It is clear however that this approach of
recognising the existence of a right to counsel of choice would remedy some of
the shortcomings
of the current ICTR approach. By requiring anybody wishing to
act against the wishes of the accused to show ‘relevant and sufficient
grounds’ to support their decision, this approach would discourage
arbitrary restrictions of the right to counsel of choice.
V. CONCLUSION
The ICTR Chambers were right to note in Prosecutor v Nyiramasuhuko and
Ntahobali that there are necessarily some limitations to the right of
indigent accused to counsel of
choice.[138] This essay has shown
however that significantly limiting this right has become the default position
of the ICTR. Despite the Tribunal
recognising the desirability of assigning
counsel of choice,[139] the
Chamber has been reluctant to adopt any formal acknowledgment of a right to
counsel of choice. Whilst such a position has been
adequate for the other
international Tribunal, the ICTY, it is insufficient to protect the rights of
indigent accused at the ICTR.
Through its practice of failing to adopt a policy
of formal recognition of a limited right to counsel of choice, the ICTR has
repeatedly
compromised the fair trial rights of accused. This essay has argued
that the ICTR must adopt a recognition of a limited right to
counsel of choice,
which may only be overridden where chosen counsel does not fulfil basic
qualification criteria, is unavailable,
or is prevented from representing the
accused due to other ‘relevant and sufficient
grounds’.[140]As explored in
Section II, the strong theoretical basis for recognising a right to counsel of
choice means that unnecessary incursions
onto this right may potentially
challenge the legitimacy of the Tribunal. It stands to reason then, that a
haphazard approach to
assignment of counsel to indigent accused exposes the
Tribunal to criticism by undermining the strength of its claim to promoting
the
fair trial rights of accused. Indeed, the practice of assignment at the Tribunal
has shown how crises of legitimacy may arise
from a reluctance to recognise a
right to counsel of choice. Subsequent analysis of the Registrar’s
moratorium and the assignment
dispute in Prosecutor v Nshogoza revealed
how repeated threats to ‘equality of arms’ at the ICTR undermined
its claim to legitimacy. These instances demonstrated
the hazards of maintaining
the status quo legal position on right to counsel of choice.
These crises beg
the question of how to resolve the issue of a right to counsel of choice, whilst
balancing this right with legitimate
exceptions that must limit the right. This
issue remains unsettled in international law. Likewise, other international
jurisprudence
has struggled to find an appropriate level of recognition of this
right. Many of these systems also suffer from statutory ambiguities
or
institutional marginalisation of their defence teams. In contrast, the ICTY and
the ECrtHRs have both provided strong protection
of the right to counsel of
choice. Although the ICTY approach has produced strong protection of fair trial
rights, its formal legal
elements reflect those of the ICTR approach, with much
of its success arising from an institutional culture of recognising the
importance
of assigning counsel of choice. The ECrtHRs, on the other hand, has
been more willing to formally recognise a right to counsel of
choice,[141] subject to limited
exceptions.
This essay has demonstrated that a simple reform of the test for
restricting the right to counsel of choice would provide a stronger
protection
of the fair trial rights of indigent accused. Requiring ‘relevant and
sufficient grounds for holding that [it] is
necessary in the interests of
justice’[142] to override
the accused’s preference would mitigate arbitrary infringements on the
accused’s rights that may arise from
unjustifiable exercises of the
Registrar’s discretion not to assign counsel of choice. Although the ICTR
is attempting to enact
its completion strategy, it is essential that it entrench
an approach of promoting human rights through international criminal procedure.
Through constantly reassessing its protection of fair trial rights, the ICTR
will build a legacy of international justice that protects
the rights of both
victims and accused.
[∗] LLB candidate, University
of Melbourne. An earlier version of this article was submitted in
completion of the LLB subject ‘Legal
Internship’ at the
Melbourne Law School. I am grateful to Professor Stuart Kaye for his ongoing
commitment and help throughout
the writing process. I would also like to thank
all of those who worked with me through my internship at the ICTR, making it an
invaluable
experience. In particular, I'd like to thank Clair Duffy, my
supervisor, and Janewa Osei-Tutu, Nusrat Chagtai and David Kinnecome.
[1] Quoted in Mark Ellis,
‘The Evolution of Defence Counsel Appearing Before the International
Criminal Tribunal for the Former
Yugoslavia’ (2003) 37 New England Law
Review 949, 949.
[2]
Resolution 955, SC Res 955, UN SCOR, 49th sess,
3453rd mtg, UN Doc No S/RES/955
(1994).
[3] See Cases
then Status of Cases (2009) International Criminal Tribunal for
Rwanda
<http://www.ictr.org/default.htm>
at 13 June
2009.
[4] The United Nations,
Basic Principles on the Role of Lawyers, Article 3, UN Doc
A/CONF.144/28/Rev.1 (1990).
[5]
Caroline Buisman et al, ‘Trial and Error– How Effective is Legal
Representation in International Criminal Proceedings?’
(2005) 5
International Criminal Law Review 1, 9; Ellis, above n 1, 960-1; Kate Kerr, ‘Fair Trials at
International Criminal Tribunals: Examining the Parameters of the International
Right to
Counsel’ (2004) 36 Georgetown Journal of International Law
1227, 1235; William Schabas, The UN International Criminal Tribunals: The
Former Yugoslavia, Rwanda and Sierra Leone (2006),
616.
[6] Antonio Cassese,
International Criminal Law (2nd ed, 2008),
362.
[7] See e.g., John Ackerman,
‘Assignment of Defence Counsel at the ICTY’ in Richard May et al
(eds), Essays on ICTY Procedure and Evidence (2001), 167, 170; Michael
Bohlander, ‘The Defence’ in Gideon Boas and William Schabas (eds),
International Criminal Law Developments in the Case Law of the ICTY
(2003), 35, 36; Ellis, above n 1,
958.
[8] See e.g., Prosecutor v
Bikindi (Trial Chamber III) Case No. 01-72-T (2 December 2008) (Judgment)
(‘Bikindi’).
[9]
See e.g., Michael Bohlander (ed), International Criminal Justice: A Critical
Analysis of Institutions and Procedures (2007), 46; Stuart Beresford,
‘The International Criminal Tribunal for the Former Yugoslavia and the
Right to Legal Aid and
Assistance’ (1998) 2 The International Journal
of Human Rights 49, 52; 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 Neighbouring States between 1 January and 31
December 1994, GA Res 58/253, UN GAOR, 58th sess, UN Doc No
A/RES/58/253 (2004); Report 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 Neighbouring States between 1 January and 31 December 1994, UN
GAOR, 56th sess, UN Doc No A/56/351-S/2001/863
(2001).
[10] Although there have
been baseless allegations made by accused about the legitimacy of the ICTR,
these may easily be distinguished
from credible claims that the proceedings lack
legitimacy. See eg, Prosecutor v Barayagwiza (Trial Chamber I) Case No
ICTR-97-19-T (2 November 2000) (Decision on Defence Counsel Motion to Withdraw)
(‘Barayagwiza’).
[11]
See e.g., Prosecutor v Erdemovic (Trial Chamber) Case No IT-96-22-PT (28
May 1996) (Order on the Appointment of Defence Counsel)
(‘Erdemovic’).
[12]
International Criminal Tribunal for Rwanda, Directive on the Assignment of
Defence Counsel (14 March 2008), Article
22.
[13] Cf. Bohlander,
International Criminal Justice, above n 9, 46; Beresford, above n 9,
52.
[14] Bohlander, ‘The
Defence’, above n 7,
71.
[15] Liesbeth Lijnzaad,
Reservations to UN-Human Rights Treaties: Ratify or Run? (1995),
212.
[16] Ibid
212.
[17] United Nations
Development Program, Human Development Indices: A Statistical Update 2008
– HDI Rankings (2008) Human Development Reports
<http://hdr.undp.org/en/statistics/>
at 12 June
2009.
[18] Statute 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, SC Res 827, UN SCOR, 48th sess,
3217th mtg, UN DOC S/Res/827
(1993)
[19] International
Covenant on Civil and Political Rights, opened for signature 19 December
1966, 999 UNTS 171 (entered into force 23 March 1976)
(‘ICCPR’).
[20]
Statute 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, SC Res 827, UN SCOR,
48th sess, 3217th mtg, UN DOC S/Res/827
(1993)
[21] See e.g., Human
Rights Committee, Views of the Human Rights Committee Under Article 5,
Paragraph 4, of the Optional Protocol to the International Covenant on Civil
and
Political Rights Concerning Communication No 607/1994, UN Doc
CCPR/C/58/D/607/1994 (1996) (‘Adams v Jamaica’); Human Rights
Committee, Kelly v Jamaica, Communication No 253/1987, UN Doc
CCPR/C/41/D/253/1987 (1991) (‘Kelly v Jamaica’); Human Rights
Committee, Pratt and Morgan v Jamaica, Communication No 210/1986 and
225/1987, UN Doc A/44/40 222 (1989) (‘Pratt and Morgan v
Jamaica’); Human Rights Committee, Wright v Jamaica, Communication
No 459/1991, UN Doc CCPR/C/55/D/459/1991 (1995) (‘Wright v
Jamaica’).
[22] The
Directive, above n 12, art
2.
[23] Prosecutor v
Bicamumpaka (Trial Chamber II) Case No ICTR-99-50-I (6 October 1999)
(Decision on the Motion Requesting the Assignment of Francine Veilleux as
Defence Counsel for
Jérôme Clément Bicamumpaka)
(‘Bicamumpaka’), [4].
[25]
Taru Spronken, ‘Commentary’ in André Klip and Gören
Sluiter (eds), Annotated Leading Cases of International Criminal Tribunals:
The International Criminal Tribunal for Rwanda 2000—2001 (2003) 296,
298.
[26] Ibid
296.
[27] Prosecutor v
Kambanda (Appeals Chamber) Case No ICTR-97-23-A (19 October 2000) (Judgment)
(‘Kambanda’),
[33].
[28] Prosecutor v
Akayesu (Appeals Chamber) Case No ICTR-96-4-A (1 June 2001) (Judgment),
[61]-[62].
[29] Prosecutor
v Akayesu (Appeals Chamber) Case No ICTR-96-4-A (27 July 1999) (Decision
Relating to the Assignment of
Counsel).
[30] Prosecutor v
Ntakirutimana et al. (Trial Chamber I) Case No ICTR-96-17-T (11 June 1997)
(Decision on the Motions of the Accused for Replacement of Assigned Counsel
Corr.) (‘Ntakirutimana’),
5.
[31]
Ibid.
[32] Jamie Williamson,
‘Overview of the Assignment of Defence Counsel for the ICTR’ in
Christof Heyns (ed), Human Rights Law in Africa 1998 (2001), 102, 105;
Michaïl Wladimiroff, ‘The Assignment of Defence Counsel Before the
International Criminal Tribunal for
Rwanda’ (1999) 12 Leiden Journal of
International Law, 961.
[33]
See, e.g., Ntakirutimana (Trial Chamber I) Case No ICTR-96-17-T (11 June
1997) (Decision on the Motions of the Accused for Replacement of Assigned
Counsel Corr.).
[34]
Ibid.
[35] See, e.g.,
Human Rights Committee, Adams v Jamaica, above n 21; Human Rights Committee, Kelly v
Jamaica, above n 21; Human Rights
Committee, Pratt and Morgan v Jamaica, above n 21; Human Rights Committee, Wright v
Jamaica, above n 21.
[36]
Ntakirutimana (Trial Chamber I) Case No ICTR-96-17-T (11 June 1997)
(Decision on the Motions of the Accused for Replacement of Assigned Counsel
Corr.), 5.
[37] The only
distinction between the two provisions is the addition of gender neutrality to
the ICTR provision.
[38]
Vienna Convention on the Law of Treaties, opened for signature 23 May
1969, 1155 UNTS 331, (entered into force 27 January 1980) (‘Vienna
Convention’), art
31(1).
[39] Human Rights
Committee, Little v Jamaica, Communication No 283/1988, UN Doc
CCPR/C/43/D/283/1988 (1991).
[40]
Human Rights Committee, Wright v Jamaica, above n 21.
[41]
Ntakirutimana (Trial Chamber I) Case No ICTR-96-17-T (11 June 1997)
(Decision on the Motions of the Accused for Replacement of Assigned Counsel
Corr.), 5.
[42] Williamson, above
n 32,
106.
[43] Prosecutor v Akayesu
(Trial Chamber I) Case No ICTR-96-4-T (31 October 1996) (Decision Concerning
a Replacement of an Assigned Defence Counsel and Postponement of the
Trial).
[44] Prosecutor v
Musema (Trial Chamber I) Case No ICTR-96-13-I (18 November 1997) (Decision
to Withdraw Assigned Counsel and to Allow the Prosecutor Temporarily to Redact
Identifying Information of her
Witnesses).
[45] Prosecutor v
Munyakazi (Registrar) Case No ICTR-97-36-PT (18 September 2006) (Decision on
Withdrawal of the Assignment of Mr Callixte Gakwaya, Lead Counsel for the
Accused Person, Mr Yussuf
Munyakazi).
[46] Prosecutor v
Muvunyi (Trial Chamber III) Case No ICTR-2000-55-I (18 November 2003)
(Decision on the Accused’s Request to Instruct the Registrar to Replace
Assigned
Lead Counsel); Prosecutor v Akayesu (Trial Chamber I) Case No
ICTR-96-4-T (20 November 1996) (Decision on the Request of the Accused for the
Replacement of Assigned
Counsel).
[47] Prosecutor v
Bagosora (Trial Chamber II) Case No ICTR-96-7-T (26 June 1997) (Decision on
the Request of the Accused for Change of Assigned Counsel)
(‘Bagosora’).
[48]
Prosecutor v Ngeze (Trial Chamber I) Case No ICTR-97-27-I (29 March 2001)
(Decision on the Accused’s Request for Withdrawal of his Counsel),
(iv).
[49]
Ibid.
[50] David Tolbert,
‘The ICTY and Defence Counsel: A Troubled Relationship’ (2002-2003)
37 New England Law Review, 975; Ackerman, above n 7,
170.
[51] Beresford, above n 9,
51.
[52] International Criminal
Tribunal for Rwanda, Rules of Procedure and Evidence (14 March 2008),
Rule 45.
[53] Statute of the
International Criminal Tribunal for Rwanda, annexed to Resolution
955, SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN
Doc S/RES/955 (1994), art
31.
[54] See, International
Criminal Tribunal for Rwanda, Rules of Procedure and Evidence (5 July
1996), Rule 44.
[55]
International Criminal Tribunal for Rwanda, Rules of Procedure and
Evidence (1 July 1999), Rule 45; International Criminal Tribunal for
Rwanda, Directive on the Assignment of Defence Counsel (1 July 1999),
Rule 13(i).
[56] Michael
Greaves, ‘The Right to Counsel before the ICTY and the ICTR for Indigent
Suspects: An Unfettered Right?’ in Richard
May et al (eds), Essays on
ICTY Procedure and Evidence (2001) 177, 179; Tolbert, above n 50, 979; Ackerman, above n 7,
980.
[57] Greaves, above n 56,
180.
[58] International Criminal
Tribunal for Rwanda, Directive on the Assignment of Counsel (15 June
2007), Rule 13(i).
[59] Ackerman,
above n 7, 171; Ellis, above n 1, 956; Tolbert, above n 50,
979.
[60] Schabas, above n 5, 525; Greaves, above n 56, 181.
[61] Greaves, above n 56, 177; Schabas, above n 5,
525.
[62] Greaves, above n 56,
181.
[63] See, e.g.,
Prosecutor v Kupreskic et al. (Trial Chamber) Case No IT-95-16-T (10
March 1998) (Decision on Defence Requests for Assignment of Counsel)
(‘Kupreskic’); Erdemovic Case No IT-96-22-PT (28 May
1996) (Order on the Appointment of Defence Counsel).
[64] See generally,
Ntakirutimana (Trial Chamber I) Case No ICTR-96-17-T (11 June 1997)
(Decision on the Motions of the Accused for Replacement of Assigned Counsel
Corr.).
[65] Prosecutor v
Nshogoza (Trial Chamber III) Case No ICTR-2007-91-PT (24 July 2008) (Order
to Assign Counsel); Prosecutor v Nshogoza (Trial Chamber III) Case No
ICTR-2007-91-PT (18 August 2008) (Order for Immediate Assignment of Counsel);
Prosecutor v Nshogoza (Trial Chamber III) Case No ICTR-2007-91-PT (13
October 2008) (Decision on Motions Requesting Assignment of Counsel of
Choice).
[66]
Marie-Bénédicte Dembour and Tobias Kelly (eds), Paths to
International Justice (2007),
72.
[67] Greaves, above n 56,
183.
[68] Wladimiroff, above n 32, 957 and
963.
[69] Greaves, above n 56,
184.
[70] Prosecutor v
Nyiramasuhuko and Ntahobali (Trial Chamber II) Case No ICTR-97-21-T (13
March 1998) (Decision on a Preliminary Motion by the Defence for the Assignment
of a Co-counsel to Pauline
Nyiramasuhuko) (‘Nyiramasuhuko’),
[6].
[71] Wladimiroff, above n 32,
957.
[72] Prosecutor v Akayesu
(Appeals Chamber) Case No ICTR-96-4-A (27 July 1999) (Decision Relating to
the Assignment of Counsel).
[73]
Bicamumpaka (Trial Chamber II) Case No ICTR-99-50-I (6 October 1999)
(Decision on the Motion Requesting the Assignment of Francine Veilleux as
Defence Counsel for
Jérôme Clément Bicamumpaka),
[4].
[74] Salvatore
Zappalà, Human Rights in International Criminal Proceedings
(2003), 63; Schabas, above n 5,
616.
[75] Tolbert, above n 50, 981; Schabas, above n 5, 616; Bohlander, ‘The
Defence’, above n 7,
51.
[76] Bohlander, ‘The
Defence’, above n 7,
51.
[77] Kupreskic (Trial
Chamber) Case No IT-95-16-T (10 March 1998) (Decision on Defence Requests
for Assignment of
Counsel).
[78] Greaves,
above n 56,
185.
[79] Wladimiroff, above n 32,
957.
[80] ICDAA response to
Nyiramasuhuko (Trial Chamber II) Case No ICTR-97-21-T (13 March 1998)
(Decision on a Preliminary Motion by the Defence for the Assignment of a
Co-counsel to Pauline
Nyiramasuhuko), quoted in Bohlander, ‘The
Defence’, above n 7,
50.
[81] Greaves, above n 56, 185; Tolbert, above n 50,
982.
[82] Wladimiroff, above n 32,
957.
[83] The Prosecutor v.
Nshogoza, Case No. ICTR-2007-91-PT, ‘Power of Attorney signed by
Leonidas Nshogoza’ dated 8 February 2008. See Annex A to
Nshogoza, ‘Urgent Motion for Assignment of Counsel’, filed on
16 May 2008 (‘Motion to Assign
Counsel’).
[84]
‘Defence Motion to Assign Counsel’, [5] and Annexure
D.
[85] Prosecutor v Nshogoza
(Trial Chamber III) Case No ICTR-2007-91-PT (24 July 2008) (Order to Assign
Counsel).
[86] Prosecutor v
Nshogoza (Trial Chamber III) Case No ICTR-2007-91-PT (13 October 2008)
(Decision on Motions Requesting Assignment of Counsel of Choice), fns 4 and
5.
[87] Nshogoza,
‘Requete au fins de constat d’entrave a la justice, Article 77 du
RPP du TPIR’, filed 13 August 2008 (‘Accused’s Request of
13 August 2008’), annexed letter dated 9 June 2008 from Ms.
Turner to DCMS
cited in Prosecutor v Nshogoza (Trial Chamber III) Case No
ICTR-2007-91-PT (13 October 2008) (Decision on Motions Requesting Assignment of
Counsel of Choice), fn 6.
[88]
Prosecutor v Nshogoza (Trial Chamber III) Case No ICTR-2007-91-PT (24
July 2008) (Order to Assign
Counsel).
[89] Nshogoza,
‘Requete pour la commission d’un Conseil de defense’, 5
August 2008 (‘Accused’s Request of 5 August 2008’), annexed
letter from DCMS dated 25 July
2008.
[90] Prosecutor v
Nshogoza (Trial Chamber III) Case No ICTR-2007-91-PT (13 October 2008)
(Decision on Motions Requesting Assignment of Counsel of Choice), fn
9.
[91] Prosecutor v Nshogoza
(Trial Chamber III) Case No ICTR-2007-91-PT (13 October 2008) (Decision on
Motions Requesting Assignment of Counsel of Choice), fn
10.
[92] Prosecutor v Nshogoza
(Trial Chamber III) Case No ICTR-2007-91-PT (24 July 2008) (Order to Assign
Counsel).
[93] Nshogoza,
Commission D’ Office De Me Philippe Greciano a Titre de Conseil dans
L’Interet de la Justice pour la defense des interest
de M. Leonidas
Nshogoza, Accuse Devant Tribunal Penal International Pour le Rwanda, dated
20 August 2008 (‘Registrar’s Notification of Assignment of
Greciano’).
[94] This did
not occur following the Pre-Trial Conferences of 22 and 30 October 2008. See,
Prosecutor v Nshogoza (Trial Chamber III) Case No ICTR-2007-91-PT (11
December 2008) (Scheduling
Order).
[95]Prosecutor v
Nshogoza (Trial Chamber III) (28 August 2008) (Transcript of
Proceedings) (closed session),
9.
[96] Prosecutor v Nshogoza
(Trial Chamber III) (28 August 2008) (Transcript of Proceedings)
(closed session), 9.
[97]
Prosecutor v Nshogoza (Trial Chamber III, (2 July 2009) (Summary of
Judgment).
[98] See, e.g.,
Bagosora (Trial Chamber II) Case No ICTR-96-7-T (26 June 1997) (Decision
on the Request of the Accused for Change of Assigned Counsel); Prosecutor v
Kabiligi et al. (Trial Chamber I) Case No ICTR-98-41-T (24 March 2005)
(Decision on Maitre Paul Skolnik’s Application for Reconsideration of the
Chamber’s
Decision to Instruct the Registrar to Assign him as Lead Counsel
for Gratien Kabiligi); Prosecutor v Ntahobali et al. (Trial Chamber II)
Case No ICTR-97-21-T (22 June 2001) (Decision on Ntahobali’s Motion for
Withdrawal of Counsel).
[99]
Ntakirutimana (Trial Chamber I) Case No ICTR-96-17-T (11 June 1997)
(Decision on the Motions of the Accused for Replacement of Assigned Counsel
Corr.), 5.
[100] See, e.g.,
United States of America v Alstötter et al. (1948) 3 TWC 1, 6 LRTWC
1, 14 ILR 278, 97.
[101] Biddle
J, quoted in Wladimiroff, above n 32,
965.
[102] Wladimiroff, above n
32,
964.
[103] Ibid
965.
[104] Bohlander,
‘The Defence’, above n 7,
53; David Cohen, ‘Seeking Justice on the Cheap: is the East Timor Tribunal
Really a Model for the Future?’ (2002) 61
Asia Pacific Issues: Analysis
from the East-West Center
5.
[105] Cohen, above n 104,
5.
[106] Statute of the
Special Court for Sierra Leone, annexed to Resolution 1315, SC Res
1315, UN SCOR, 55th sess, 4186th mtg, UN Doc S/RES/1315
(2000), art 27.
[107] See eg,
Judicial System Monitoring Programme, The Los Palos Trial (March 2002);
Judicial System Monitoring Programme, The Lolotoe Case: A Small Step
Forward (July 2004); Kerr, above n 5,
1248.
[108] General
Prosecutor v Joni Marques and 9 Others (Trial Chamber) Case No 09-2000 (17
December 2001) (Judgment) (‘The Los Palos Case’); see
also Kerr, above n 5,
1249.
[109] Suzanne
Katzenstein, ‘Hybrid Tribunals: Searching for Justice in East Timor’
(2003) 16 Harvard Human Rights Journal 245, 263; Richard Wilson,
‘Assigned Defence Counsel in Domestic and International War Crimes
Tribunals: The Need for a Structural
Approach’ (2002) 2 International
Criminal Law Review 145,
161.
[110] Agreement Between
the United Nations and the Royal Government of Cambodia Concerning the
Prosecution Under Cambodian Law of Crimes
Committed During the Period of
Democratic Kampuchea, opened for signature 6 June 2003, 2329 UNTS 117
(entered into force 29 April 2005).
[111] See e.g., Human Rights
Committee, Adams v Jamaica, above n 21; Human Rights Committee, Kelly v
Jamaica, above n 21; Human Rights
Committee, Pratt and Morgan v Jamaica, above n 21; Human Rights Committee, Wright v
Jamaica, above n 21.
[112]
Special Court for Sierra Leone, Rules of Procedure and Evidence (27 May
2008), Rule 45; For further information, see: Special Court for Sierra Leone,
The Defence Office (2009)
<http://www.sc-sl.org/ABOUT/CourtOrganization/Defence /tabid/91/Default.aspx>
at 10 April
2009.
[113] See, e.g.,
Prosecutor v Norman (Trial Chamber) Case No SCSL-04-14-PT (23 June 2004)
(Decision on Request by Samuel Hinga Norman for Additional Resources to Prepare
his Defence).
[114]
International Covenant on Civil and Political Rights, opened for
signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
(‘ICCPR’).
[115]
The only distinction between the two provisions is the addition of gender
neutrality to the ICTR
provision.
[116] See, e.g.,
Human Rights Committee, Kelly v Jamaica, above n 21, [5.10]; Human Rights Committee,
Pratt and Morgan v Jamaica, above n 21.
[117]
American Convention on Human Rights, opened for signature 22 November
1969, 1144 UNTS 123 (entered into force 18 July 1978) (‘Pact of San
José’); European Convention for the Protection of Human Rights and
Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221
(entered into force 3 September 1953) (‘European
Convention’); African Charter on Human and Peoples’
Rights, opened for signature 27 June 1981, 1520 UNTS 217 (entered into force
21 October 1986) (‘Banjul
Charter’).
[118]
Banjul Charter, above n 117.
[119]
United Nations Development Program, Human Development Indices, above n 17.
[120]
Prosecutor v Akayesu (Appeals Chamber) Case No ICTR-96-4-A (27 July 1999)
(Decision Relating to the Assignment of Counsel), [2]; Ntakirutimana (Trial
Chamber I) Case No ICTR-96-17-T (11 June 1997) (Decision on the Motions of
the Accused for Replacement of Assigned Counsel Corr.), [6]; Prosecutor v
Delalic et al. (Trial Chamber) Case No IT-96-21-PT (24 June 1996) (Decision
on Request by Accused Mucic for Assignment of New Counsel)
(‘Delalic’), [2]; Tolbert, above n 50, 978; Wladimiroff, above n 32, 962; Michaïl Wladimiroff,
‘Rights of Suspects and Accused’ in Gabrielle Kirk McDonald and
Olivia Swaak-Goldman
(eds), Substantive and Procedural Aspects of
International Criminal Law: The Experience of International and National
Courts (2000), 419, 424-5; Schabas, above n 5,
526.
[121] Ellis, above n 1,
963.
[122] Prosecutor v
Sljivancanin (Trial Chamber) Case No IT-95-13/1-PT (Decision on Assignment
of Counsel), [20].
[123]
Prosecutor v Simic et al. (Trial Chamber III) Case No IT-95-9-T (25 March
1999) (Decision on the Prosecution Motion to Resolve Conflict of Interest
Regarding Attorney Borislav
Pisarevic).
[124] See, e.g., Kupreskic
(Trial Chamber) Case No IT-95-16-T (10 March 1998) (Decision on Defence
Requests for Assignment of
Counsel).
[125] See,
e.g., Erdemovic Case No IT-96-22-PT (28 May 1996) (Order on the
Appointment of Defence Counsel); Prosecutor v Dokomanovic (Trial Chamber)
Case No IT-95-13a-PT (30 September 1997) (Decision on Defence Preliminary Motion
on the Assignment of Counsel); Delalic et al. (Trial Chamber) Case No
IT-96-21-PT (24 June 1996) (Decision on Request by Accused Mucic for Assignment
of New Counsel); see also Zappalà,
above n 74,
61.
[126] Wladimiroff, above n
32,
962.
[127] See generally,
Ngaire Woods, ‘Good Governance in International Organizations’
(1999) 5 Global Governance
39.
[128] European
Convention for the Protection of Human Rights and Fundamental Freedoms,
opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3
September 1953) (‘European
Convention’).
[129]
See, e.g., Prosecutor v Akayesu (Appeals Chamber) Case No ICTR-96-4-A (1
June 2001) (Judgment), [61]; Kambanda (Appeals Chamber) Case No
ICTR-97-23-A (19 October 2000) (Judgment), [33]; Ntakirutimana (Trial Chamber
I) Case No ICTR-96-17-T (11 June 1997) (Decision on the Motions of the
Accused for Replacement of Assigned Counsel Corr.),
5.
[130] D J Harris et al,
Law of the European Convention on Human Rights (1995), 263; Wladimiroff,
above n 32,
965.
[131] Croissant v
Germany, Application No 13611/88 (Unreported, European Court of Human
Rights, Chamber, 25 September 1992),
[29].
[132] Ntakirutimana
(Trial Chamber I) Case No ICTR-96-17-T (11 June 1997) (Decision on the
Motions of the Accused for Replacement of Assigned Counsel Corr.),
5.
[133] Pakelli v
Germany, Application No 8398/78 (Unreported, European Court of Human Rights,
Chamber, 25 April 1983),
[31].
[134] Vienna
Convention on the Law of Treaties, opened for signature 23 May 1969, 1155
UNTS 331, (entered into force 27 January 1980) (‘Vienna
Convention’), art
33(1).
[135] Pakelli v
Germany, Application No 8398/78 (Unreported, European Court of Human Rights,
Chamber, 25 April 1983),
[31].
[136] English translation
courtesy of Ms Hannah Richardson: ‘To be present at the trial and defend
himself or to have the assistance of counsel of his choice; if he does
not have counsel, to be informed of his right to have one and, if the
interests of justice so require, to be assigned counsel, without charge, if he
does not have the means to
pay’.
[137] See, e.g.,
Boner v The United Kingdom, Application No 18711/91 (Unreported, European
Court of Human Rights, Chamber, 28 October 1994); Goddi v Italy,
Application No 8966/80 (Unreported, European Court of Human Rights, Chamber, 9
April 1984); Quaranta v Switzerland, Application No 12744/87 (Unreported,
European Court of Human Rights, Chamber, 24 May
1991).
[138] Nyiramasuhuko
(Trial Chamber II) Case No ICTR-97-21-T (13 March 1998) (Decision on a
Preliminary Motion by the Defence for the Assignment of a Co-counsel to Pauline
Nyiramasuhuko), [6].
[139]
Ntakirutimana (Trial Chamber I) Case No ICTR-96-17-T (11 June 1997)
(Decision on the Motions of the Accused for Replacement of Assigned Counsel
Corr.), 5.
[140] Croissant v
Germany, Application No 13611/88 (Unreported, European Court of Human
Rights, Chamber, 25 September 1992),
[29].
[141] See e.g.,
Croissant v Germany, Application No 13611/88 (Unreported, European Court
of Human Rights, Chamber, 25 September 1992), [29]; Pakelli v Germany,
Application No 8398/78 (Unreported, European Court of Human Rights, Chamber, 25
April 1983), [31].
[142]
Pakelli v Germany, Application No 8398/78 (Unreported, European Court of
Human Rights, Chamber, 25 April 1983), [31].
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/NZYbkIntLaw/2008/29.html