Trial Chamber II of the International Criminal Court (ICC) responded orally to two motions about legal aid from the defense teams of Germain Katanga and Mathieu Ngudjolo Chui, who are being tried for war crimes and crimes against humanity. After closing arguments in the case were heard in May, the Registry cut their legal aid so that only lead counsel would be paid while the parties awaited a judgment from the Trial Chamber. The defense teams argued that this would be a violation of the accuseds’ fair trial rights, including the right to adequate time and facilities to prepare a defense and the right to legal assistance. The motions of the accused are discussed in more detail here.

The Registry’s decision was especially unfair, the defense contended, given that Thomas Lubanga, the first accused to sit before the ICC, had been allowed to keep his defense team during this period in his trial. Indeed, the Katanga and Ngudjolo defense counsel based many of their arguments on a Lubanga trial decision. The Registry applied the same cuts in that case, which Lubanga’s defense team challenged. Trial Chamber I decided that Lubanga should continue to receive legal aid for a defense team while the parties waited for the trial judgment. The defense counsel for Katanga and Ngudjolo insisted that it would be fundamentally unfair if their clients were treated differently from other defendants at the ICC.

In its response, the Registry argued that it is the Registrar’s responsibility to manage legal aid. This requires balancing the fair trial rights of the accused while ensuring that the limited resources allocated for legal aid are disbursed responsibly and judiciously, the Registry submitted.

The Lubanga decision could not be directly applied in the Katanga-Ngudjolo trial, the Registry argued, because this case is distinct. Moreover, the Registrar noted that the Lubanga motion was decided on the basis of a proposed court calendar that anticipated only a few months between closing arguments and judgment. However, the Registrar complained, Trial Chamber I did not comply with that calendar and the Lubanga defense team was compensated for a long period (about six and a half months).

In reality, the Registrar argued, the Katanga and Ngudjolo defense teams were questioning the very authority of the ICC’s legal aid system that is defined in several Assembly of States Parties (ASP) reports. These reports, the Registrar stated, are based on high-level discussions and decisions of the ICC’s ASP and Committee on Budget and Finance. They take into consideration the rights of the accused as well as financial considerations of the Court, the Registry noted. In particular, the Registry argued that the defense counsel should have the opportunity to make detailed requests for additional resources should the need arise.

The Registry was concerned with maintaining the “continuity” of the trial and for ensuring that the defense could remain “operational and effective,” the motion explained. However, considering the amount of money necessary to keep the defense teams intact and the reduced amount of work they would have while awaiting the judgment, the Registrar asked the Trial Chamber to uphold its decision and dismiss the defense motions.

In its oral decision, Trial Chamber II referred to the Lubanga decision in making its findings. The judges are responsible for ensuring the fair trial rights of the accused until the trial has concluded, the Chamber found. Trial Chamber II agreed with the Lubanga decision that the “trial” period ends after the judgment and, as appropriate, sentencing and reparations decisions. It does not end after the closing arguments, the judges found.

The Trial Chamber agreed with the Lubanga decision that reports from the ASP can be useful indicators to the Court. However, they should in no way “even partially compromise the full right of the exercise of defense rights, which is a statutory obligation,” the judges stated.

The Chamber also found that the Registrar’s decision breached the equality between the defense and the prosecution, given that the prosecution would not be required to reduce its staff and would unfairly benefit from that continuity if the defense counsel were required to lay off their teams. Being in a position where they would have to recruit new members of staff at this late stage would be seriously prejudicial to the defense teams, the Court found. Furthermore, any newly constituted team would require time to familiarize itself with the trial, which could lead to delays.

The Chamber also recognized that the defense teams would have a reduced workload during the period between closing arguments and judgment but noted that this reduction was difficult to quantify. Moreover, the judges suggested that various points of litigation might arise during this period and there may be developments relating to the asylum applications of three defense witnesses that would require submissions from the defense teams. The Chamber considered that lead counsel alone could not complete the work required of the defense teams during this period.

The Trial Chamber acknowledged the delicate balancing that the Registrar must do in order to properly manage the Court’s resources and balance the fair trial rights of the accused. However, the Registrar’s concerns over financial management cannot affect the rights of the defense, the Chamber found. Therefore, the Trial Chamber held that the defense teams were to continue to receive remuneration sufficient for a legal assistant and two part-time legal assistants in order to ensure the continuity of their defense teams and their permanent knowledge base so that they could fully perform their duties.