(In)equality of Arms at the International Tribunals

My thanks to everyone at Opinio Juris for inviting me to guest blog for the next couple of weeks – especially Julian, who proves his graciousness by letting me blog even though I’ve often used the comments section to criticize his posts.

As Peggy said, I currently teach international criminal law and evidence at the University of Georgia; I’ve been on the faculty since 2004. In June I will be leaving Georgia to join the Faculty of Law at the University of Auckland, where I’ll teach international criminal law and domestic (New Zealand) criminal law. In the spirit of full disclosure, I am nowhere near as expert in public international law as my hosts; I’m a former criminal-defense attorney, and my writing to date has largely focused on various theoretical issues in substantive criminal law.

Because I am a relative newcomer to international law, I thought I would focus this initial post on a topic I do know something about: how difficult the international tribunals make it for persons charged with serious international crimes to receive an effective defense. The right to such a defense is firmly ensconced in international law; to take only one example, Article 14(d) of the ICCPR guarantees criminal defendants “a fair and public hearing by a competent, independent and impartial tribunal established by law.” One of the key element of that guarantee, according to the European Court of Human Rights (and many other courts), is “equality of arms” between the prosecution and the defense – the idea that the defense should never be placed at a “substantial disadvantage” vis-à-vis the prosecution in terms of its ability to present its case.

In practice, however, the right to equality of arms between the prosecution and defense is often honored only in the breach. First, the international tribunals simply allocate far more resources – financial, material, human – to the prosecution than to the defense. Consider, for example, the Special Court for Sierra Leone, a hybrid tribunal established by agreement between Sierra Leone and the UN. Alone among the tribunals, the SCSL has a permanent organ within the Court, the Office of the Principal Defender, dedicated to ensuring that defendants receive a fair trial. Moreover, the SCSL has embraced the idea that “equality of arms” means equality of resources, whereas the ICTY and ICTR have said, following the latter’s decision in Prosecutor v. Kayishema, that it means only equality of rights.

Unfortunately, despite these lofty ideals, there is no equality of arms between the prosecution and the defense at the SCSL. Here’s James Cockayne:

The Prosecution has been overseeing investigations for two years; most Defense teams are only began investigations after the commencement of trial. The Prosecution investigates with court vehicles, satellite phones, dedicated drivers and security, translators, and professional international investigators; Defense team staff are not formally permitted to use Court transport (transport costs are supposed to be covered by each team’s budget), have no dedicated drivers or security or access to logistical equipment, and must find their own translators and investigation staff, with only national-level salaries for those staff covered by their budgets. Until recently, investigators (who are employed – and therefore approved – by the Defense Office) had to have a background in policing; many of the defendants are charged with attacks on police as a crime against humanity. That policy was recently changed, but only after a significant delay resulting in some defendants starting trial without investigators. The Prosecution, in contrast, has relied heavily on skilled, practiced international investigators, many with ICTY and ICTR experience. The Prosecution budget takes up a large percentage of the overall U.S. $83 million budget; the Defense teams receive around U.S. $4 million altogether. Prosecution staff are permanently stationed in Freetown; many Defense counsel come and go (with the associated travel costs significantly eroding Defense budgets). The Prosecutor is an Assistant Secretary General; the head of the Defense Office is many rungs lower in the U.N. employment hierarchy. The Prosecution has until recently received approximately five times the office space assigned to the Defense, and also greater access to office resources.

Nor is the SCSL exceptional. Although the Special Panel for Serious Crimes Unit in East Timor is dramatically underfunded as a whole, the lack of funds is particularly acute for the defense. Because of budgetary constraints, for example, the Public Defender’s Office did not call a single witness in any of the SCU’s first fourteen trials. Similarly, although the ICTY has come a long way since its inception – in its first case, Tadic, the defense attorney was paid $26/hour – the funding gap between the prosecution and defense remains unacceptable: for the biennial period 2004 and 2005, the defense budget was $29.5 million, while the prosecution’s budget was $99.9 million.

The inequality of arms at the international tribunals, however, is not limited to funding. The quality of defense counsel is equally problematic, especially relative to the quality of the prosecutors. Although the ICTY now requires defense counsel to have at least seven years of experience in criminal law, prior to 2004 it only required counsel to have “reasonable experience in criminal and/or international law” – a requirement that the tribunal interpreted generously, to say the least. In practice, many attorneys who appeared before the ICTY had little criminal-defense experience, and even less knowledge of public international law. Moreover, most of the defense attorneys came from the non-adversarial systems of criminal law in the Balkan states, and were thus often unprepared – no matter how dedicated – to navigate the largely adversarial system embraced by the ICTY. As Patricia Wald, the former Chief Judge of the DC Circuit and a judge at the ICTY pointed out, the results weren’t pretty:

It is too soon to tell whether the ICC will do a better job of guaranteeing equality of arms than its predecessors. On paper, there is reason to be optimistic: the Court has adopted comprehensive regulations governing the qualifications required of defense counsel and the provision of resources to the defense. In terms of qualifications, the ICC requires all defense counsel to have at least 10 years experience in international or criminal law and procedure, including relevant experience – whether as judge, prosecutor, or defense attorney – in criminal proceedings. Moreover, the Court has created an Office of Public Counsel for the defense that is responsible for protecting the rights of the defendant during the initial stages of the investigation (before counsel has been chosen or appointed) and providing the defense with research and advice during trial. Most importantly, the Office of Public Counsel is wholly independent of the ICC’s Registry – a significant improvement over the structure of the ad hoc tribunals, where the Registries served the prosecution as well as the defense and were, as a result, often viewed with considerable suspicion by defendants.

Regarding resources, the ICC has also adopted a regulation that guarantees that the Court will cover “all costs reasonably necessary” for an “effective and efficient” defense. Those costs include payments to counsel and staff, expenses involved in gathering evidence, overhead, translation and interpretation costs, and travel costs. Best of all, the ICC Regulations specifically require parity between the salaries of attorneys in the Office of the Prosecutor and the fees paid to members of the defense team.

These regulations are steps in the right direction. One can only hope that, despite the magnitude of the crimes committed by defendants brought before the ICC, the political will exists to make sure they are honored in practice, not simply in the breach.