The defense teams for Germain Katanga and Mathieu Ngudjolo Chui, on trial before the International Criminal Court (ICC), have filed motions with Trial Chamber II seeking a review of a Registry decision that cuts their legal aid while they wait for delivery of the trial judgment. The closing arguments concluded on May 23, 2012 and the judgment is expected before the end of the year. The two defense teams were informed by the Registry in late May 2012 that, due to reduced judicial activity, as of July 1, 2012 the legal aid would be cut so that only lead lawyers would receive payment.

The defense counsel argue that the Registry’s decision violates the fair trial rights of Katanga and Ngudjolo, who are awaiting the trial judgment in their case for war crimes and crimes against humanity. In particular, the defense argues that the decision violates their right to adequate time and facilities to prepare a defense, equality of arms, the right to be tried without undue delay, and the right to legal assistance. It also raised the central questions of determining exactly when an accused is “at trial” and to what extent defendants need to be treated the same across ICC trials.

The motions requested the Trial Chamber to reverse the Registry’s decision and to maintain the integrity of the legal defense teams. They also requested payment so that it could keep the defense team together through potential hearings on sentencing, reparations and appeals. The Katanga defense asked the Court to ensure that the payment scheme for legal aid would not discriminate between Katanga, Ngudjolo, and Lubanga. Below, this post describes the defense motions.

Similar Decision in Lubanga

The decision of the Registry to cut the funding is very similar to a decision in the trial of Thomas Lubanga, who was convicted of war crimes earlier this year by Trial Chamber I of the ICC. In reviewing the Registrar’s decision in that case, Trial Chamber I held that the accused is entitled to a guarantee of his fair trial rights for the entirety of the trial. This includes the right to legal assistance, the Chamber stated. Trial Chamber I found that the “trial” ends when the judgment, sentence, and reparations decisions have been delivered, as appropriate.

The Lubanga Chamber acknowledged that the Registrar has a mandate to manage the Court’s limited funds and that the Registry must have the authority to make sure that these funds are not wasted. However, the judges considered that the protection of the fundamental right to a fair trial was more important. “If the accused’s right to an effective defense is infringed, a fair trial for the accused is no longer possible,” Trial Chamber I concluded.

The Lubanga Chamber considered that the allocation of resources should be context specific. If, for example, a year were to pass between closing arguments and judgment, significantly reduced legal aid might be appropriate. However, if the judgment were expected to only take a few months, then it would be more efficient to keep the defense team in place. The Lubanga Chamber said that the Registry must weigh the financial advantage of cutting legal aid with the disruption the cuts would mean for later proceedings. In particular, the Court advised the Registry to take into account the rule that appeals to the trial judgment must be filed within 30 days. The judges said it would very likely be “wholly unfair to the accused” to dissolve his defense team and then require the lead counsel to recruit a new team and file an appeal within 30 days. The Chamber acknowledged that this would lead to a significant advantage for the prosecution because the OTP would not be required to lay off staff members.

Trial Chamber II held that in making its determination on reducing legal aid, the Registrar should consult with the Chamber on the approximate schedule for the judgment, and:

i)   Ensure that a team of sufficient size remains in place to deal with any outstanding work during this period (this may vary, depending on the length of time involved);

ii)  If, after full consultation with the Chamber, the defense team and legal assistance is reduced, ensure that leading counsel is given sufficient warning of the approximate date of the final judgment so that additional members of the team (to the extent that they are likely to be necessary) can at least be identified and, to the extent appropriate, recruited in advance; and

iii)  Not place the defense in the position of having to prepare submissions on sentence, reparations, or for an appeal brief within an unreasonably short period of time (e.g. within 30 days for an appeal) with an inadequate legal team.

Trial Chamber I estimated that for the Lubanga defense, completing additional duties (such as reviewing court materials in order to file public versions and preparing for later stages of trial) would take about as long as the judges would take to draft the judgment. Therefore, the Trial Chamber granted the defense request to maintain the proposed defense team, given that it did not anticipate a long time between closing arguments and the final judgment.

Katanga’s defense counsel said that the notice of the Registry decision he received was very similar to the letter received by Lubanga’s defense team and did not appear to take into account Trial Chamber I’s decision in Lubanga. Although decisions of one trial chamber are not binding on another, the defense motions argue that it would be unfair to treat defendants differently in this regard.

Fair Trial Rights in the Katanga and Ngudjolo Trial

The decision to reduce legal aid at this stage of trial was an issue that directly concerned the fair trial rights of the accused, the two defense motions argued. The Katanga defense motion submitted that guaranteeing the protection of Katanga’s fair trial rights required that he continue to receive the same legal aid resources, or at least a substantial part of what he received during trial.

Article 67 of the Rome Statute provides for the fundamental fair trial rights of accused. Specific fair trial rights at issue include:

• Article 67(1)(b), the right to adequate time and facilities for the preparation of the defense;
• Article 67(1)(c), the right to be tried without undue delay; and
• Article 67(1)(d), the right to legal assistance.

These rights are also reflected in the major international human rights treaties, including the Universal Declaration of Human Rights (Article 11); The International Covenant on Civil and Political Rights (Article 14); the European Convention on Human Rights and Fundamental Freedoms (Article 6) and the American Convention on Human Rights (Article 8).

“In full equality”

Article 67 rights are minimum guarantees that must be accorded “in full equality.” Therefore, the Katanga defense argued, these rights must be accorded equally to all defendants appearing before the ICC:  the Registry cannot treat different accused differently before the ICC. The defense motions argued that their situation was identical to the situation in Lubanga, and therefore they should also be allowed to maintain the same legal team while they wait for the judgment. Furthermore, unfair treatment of the defendants in these two trials is especially unfair given that the men were fighting on opposite sides of the conflict in the DRC, the Katanga defense submitted.

The Registry’s decision was also a violation of the equality of arms with regards to the prosecution, the motions argued. The prosecution would benefit from having the same team with knowledge of and experience with the case that the defense would lose should its team be reduced, the defense teams argued. This would place Katanga and Ngudjolo at a significant disadvantage in future proceedings in the trial, the defense contended.

Balancing Funds and Rights

The Registry’s decision essentially means that all members of the defense teams except for lead counsel—co-counsel, legal assistants, case managers, and others—will have to work for free or find other jobs while they wait for the trial judgment. This is inherently unfair, the defense teams argue, and the negative consequences of these staffing concerns outweigh the Registry’s financial considerations.

By changing the amount of legal aid the team receives and limiting payment to only the lead counsel, other members of the team may be forced to look for new jobs, the motions submitted. This could preclude them from coming back to the Katanga or Ngudjolo defense for later stages of the trial, such as the trial judgment, sentencing, reparations, or appeals. For these important stages of the trial, the teams would therefore risk losing valuable members who have an intimate knowledge of the case. Reconstituting the teams at a later stage of the trial might cause significant delays, the Katanga and Ngudjolo motions suggested. As an alternative, the Katanga defense proposed an approximate 25 percent reduction in the overall financial costs of the team to help alleviate the Registry’s management of limited resources.

The Ngudjolo motion also notes that the Registry decision is paradoxical in that it cuts the pay of defense team members while simultaneously agreeing to provide them with computer access to trial files. The Ngudjolo defense argues that this would result in the team working pro bono, an unreasonable expectation.