Charles A. Taku

Lead Defence Counsel UNICTR, SCSL & ICC

The Marginalized Intruder: Defence Perspectives on Progressive Development of International Justice

Almost 70 years after the Nuremberg trials, the defence in international criminal courts is still treated as a marginalized intruder by the systemic and structural relations within international justice mechanisms.

With the exception of the Special Court for Lebanon, the defence is almost an “after thought,” despite the fact that there is Rights of Accused sections in ICC, ICTR, and ICTY Statutes. Like the UNICTR, The ASP of the ICC foresaw no role and no place for the defence in the statute of the ICC.

One example is the treatment of the acquitted persons: it is as if no one expected there to be acquittals of defendants, and they now live under “house arrest” essentially although they are “free.”

Another example: equality of arms does not exist: unequal resources and budgets to Prosecution and Defence.

Why is this a problem? Why is it so important to vigorously defend those accused of the most heinous crimes??

International courts are expected to be platforms of fairness, independence and equality from which to assert and proclaim the primacy of the rule of law over impunity and international criminality.

But this is not the norm at international courts:

The real issue is that lack of equality of resources is an overt attempt to undercut the defence, and wither away at the fair trial guarantees of the Rome Statute.

Rather than address this problem, the defence is perceived as a marginalized intruder drafted on occasion to formalized egregious affronts on the tenets of the legal profession and the minimum guarantees of fair trials afforded accused in international criminal trials.

As I speak, the institutional arrangements that the judges at the ICC wisely put in place to mitigate the perverse impact of this institutional embarrassment may be under considerable threat.

The ReVision proposal wants to a) consolidate the Office of the Public Counsel for the Defence (OPCD) and Counsel Support Section) CSS into one unit.

This effectively puts Defence issues under the Registry, which eviscerates any appearances of independence of the Defence from the administrative arm of the ICC.

The Revision Project outline states: “The new Defence Office would be responsible for exercising the Registrar’s duty to promote the rights of the defence and will have the capacity to carry out the full range of defence-related functions, except for actual representation…..” (p. 3 of Registry Revision Project)

There is no problem with the Registry promoting rights of the Defence…in fact; we would expect the Registry to promote the rights under the International Covenant on Civil and Political Rights, etc. etc. However, this does not mean that the Registry should usurp the office of the Office of Public Counsel for the Defence (OPCD), and consolidate its power within the ICC Registry structure.

A second example: b) Revision Project implicitly suggests that all defence be represented by one organization, which is to be an “interlocutor for the Registry.”

The issue of how counsel are organized, and under what auspices and for what objectives is an issue for counsel to decide….and should not be part of a ReVision Project.

At stake is the independence of counsel and its organizations, and counsel’s right to determine its own course of action.

The fight against impunity in all its forms is meaningless without a credible institutional mechanism that guarantees the independence of the defence, the presumption of innocence and all the minimum fair trial guarantees contained in the Statutes of the Courts.

The institutional status of the defence as a marginalized intruder portrays the ICC as a limping giant of international criminal justice struggling to fulfil an elusive mandate.