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Remarks by Mark Ellis
Published online by Cambridge University Press: 28 March 2018
Extract
At 10:00 a.m. on Tuesday, May 7, 1994, the first trial under the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY) began. Dusko Tadić was charged, on the basis of individual criminal responsibility, with grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, and crimes against humanity. Tadić escaped only the charge of genocide.
- Type
- The Right to Fair Trials Under International Law
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- Copyright © by The American Society of International Law 2018
Footnotes
*
Ms. Brady, Ms. O'Leary, Ms. Prost, and Ms. Roberts did not contribute remarks for the Proceedings.
This panel was convened at 9:00 a.m., Thursday, April 13, 2017, by its moderator, Michelle Brady of the Rule of Law Unit, Office for Democratic Institutions, Organization for Security and Cooperation in Europe, who introduced the panelists: Mark Ellis of the International Bar Association; Marie O'Leary of the Office of Public Counsel for Defense, International Criminal Court; Kimberly Prost, Chef du Cabinet to the President of the International Criminal Court; and Michele Roberts, the National Basketball Players’ Association.*
References
1 Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 7(1), SC Res. 827 (May 25, 1993) [hereinafter ICTY Statute].
2 Id. Art. 2.
3 Id. Art. 3.
4 Id. Art. 5.
5 See Prosecutor v. Tadić, Case No. IT-94-1-1, Indictment of Dusko Tadić, at 5 (Feb. 13, 1995).
6 On April 27, 1995, Mr. Tadić provided the ICTY with a Declaration of Means, which resulted in the Registry's decision that he was indigent.
7 From August 15, 1994, to September 1996, Justice Richard J. Goldstone served as the chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda.
8 Mikhail Wladimiroff, Defending Individuals Accused of Genocide (2007–2009), 40 Case W. Res. J. Int'l L. 271, 274 [hereinafter Wladimiroff, Defending Individuals Accused of Genocide].
9 See Combating Serious Crimes in Postconflict Societies: A Handbook for Policymakers and Practitioners (Rausch, Colette ed., 2006)Google Scholar.
10 See Newton, Michael A., Evolving Equality: The Development of the International Defense Bar, 47 Stan. J. Int'l L. 379, 391 (2011)Google Scholar (repeating information gathered from Wippman, David, The Costs of International Prosecution, 100 AJIL 861, 872 (2006)CrossRefGoogle Scholar).
11 For example, in the Bangladesh International Crimes (Tribunal) Act of 1973, the accused does not have the right to counsel in the pretrial stage of the proceedings, nor does the accused have a right to remain silent so as not to incriminate himself. International Crimes (Tribunals) Act 1973, Act No. XIX of 1973 (July 20, 1973) (Bangladesh), available at http://www.internationallawbureau.com/wp-content/uploads/2010/07/The-International-Crimes-Tribunals-Act-1973.pdf.
12 See, e.g., Tom Odula, Rwandan Police Asked to Release US Attorney, San Diego Union Tribune, May 29, 2010, available at http://www.signonsandiego.com/news/2010/may/29/rwandan-police-asked-to-release-us-attorney/.
13 See Human Rights Watch, Bangladesh: Stop Harassment of Defense at War Tribunal (Nov. 2, 2011), at http://www.hrw.org/news/2011/11/02/bangladesh-stop-harassment-defense-war-tribunal.
14 Schabas, William A., Independence and Impartiality of the International Judiciary: Some Lessons Learned, and Some Ignored, in Atrocities and International Accountability: Beyond Transitional Justice 182 (Hughes, Edel, Schabas, William & Thakur, Ramesh eds., 2007)Google Scholar.
15 Id. at 183.
16 Diane M. Amann, Impartiality Deficit and International Criminal Judging, in Atrocities and International Accountability: Beyond Transitional Justice, supra note 14, at 208, 209–11.
17 Wladimiroff, Defending Individuals Accused of Genocide, supra note 8, at 274.
18 Gideon Boas, a former senior legal officer of the ICTY, argues that “[t]he issue of resources is a crucial aspect of ensuring equality of arms between the parties.” See Gideon Boas, The Milošević Trial: Lessons for the Conduct of Complex International Criminal Proceedings 263 (2007)Google Scholar.
19 See International Covenant on Civil and Political Rights, Art. 14, Dec. 16, 1966, 999 UNTS 171, 6 ILM 368.
20 Bužarovska, Gordana, Interpretation of “Equality of Arms” in Jurisprudence of Ad Hoc Tribunals and ICC, 11 SEEU Rev. 28, 29 (2015)CrossRefGoogle Scholar [hereinafter Bužarovska, Interpretation of “Equality of Arms”].
21 For example, the Court in Prosecutor v. Orić stated: “[a]t a minimum, equity of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case.” Prosecutor v. Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, paras. 7–8 (July 20, 2005).
22 Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgment, para. 52 (July 15, 1999).
23 Bužarovska, Interpretation of “Equality of Arms,” supra note 20.
24 Delcourt v. Belgium, 11 Eur. Ct. H.R. (ser. A), para. 34 (Jan. 17, 1970).
25 Bužarovska, Interpretation of “Equality of Arms,” supra note 20, at 29.
26 Hentrich v. France, 296 Eur. Ct. H.R. (ser. A) (Sept. 22, 1994), para. 56. See also Dombo Beheer B.V. v. The Netherlands, 274 Eur. Ct. H.R. (ser. A) (Oct. 27, 1993), para. 40.
27 Prosecutor v. Tadić, Judgment, supra note 22, at para. 52.
28 Id.
29 Id.
30 Prosecutor v. Aleksovski, Case No. IT-95-14/1, Decision on Prosecutor's Appeal on Admissibility of Evidence, para. 25 (Feb. 16, 1999). The accused cannot be favored at the expense of the prosecution beyond a strict compliance with those fundamental protections that the general law or the ICTY Statute provide to him, i.e., it is for the prosecution to prove the guilt of the accused beyond a reasonable doubt, while the accused cannot be compelled to testify against himself or to confess guilt. ICTY Statute, Art. 21.
31 Prosecutor v. Tadić, Judgment, supra note 22, at para. 44.
32 Morael v. France, Communication No. 207/1986, UN Doc. CCPR/8/Add/1, 416 (July 28, 1989).
33 B. d. B et al. v. The Netherlands, Communication No. 273/1988, UN Doc. A/44/40, 442 (Mar. 30, 1989). See Prosecutor v. Tadić, Judgment, supra note 22, at para. 50.
34 Prosecutor v. Tadić, Judgment, supra note 22, at para. 44.
35 Bužarovska, Interpretation of “Equality of Arms,” supra note 20, at 35.
36 Prosecutor v. Tadić, Judgment, supra note 22, at para. 51.
37 Id.
38 Id., para. 51.
39 Bužarovska, Interpretation of “Equality of Arms,” supra note 20, at 35.
40 Id. at 30.
41 Prosecutor v. Kayishema and Ruzindana, Case Nos. ICTR-95-1-T and ICTR-96-10-T, Order on the Motion by the Defence Counsel for Application of Article 20(2) and (4)(b) of the Statute of the International Criminal Tribunal for Rwanda, at 3 (May 5, 1997).
42 Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, para. 60 (May 21, 1999).
43 Approximately 90 percent of the suspects and accused appearing before the ICTY require assigned counsel. See Financing 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; 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; UN GAOR, 54th Sess., Agenda Items 142 and 143, at 64, UN Doc. A/54/634 (1999).
44 See Directive on Assignment of Defense Counsel, 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, UN Doc. IT/73/Rev 1 (1994), reprinted in 33 ILM 1576 (1994).
45 See Ellis, Mark S., The Evolution of Defense Counsel Appearing Before the International Criminal Tribunal for the Former Yugoslavia, 37 New Eng. L. Rev. 949 (2003)Google Scholar.
46 Id.
47 See Sylvia de Bertodano, Report on Defence Provision for the Special Court of Sierra Leone, No Peace Without Justice (Feb. 28, 2003), cited in 1 The Law Reports of the Special Court for Sierra Leone 501 (Jalloh, Charles C. & Meisenberg, Simon M. eds., 2012)Google Scholar.
48 Prosecutor v. Orić, Interlocutory Decision on Length of Defence Case, supra note 21, at para. 7.
49 Beth S. Lyons, Prosecutorial Failure to Disclose Exculpatory Material: A Death Knell to Fairness in International (and All) Justice, Remarks at Third International Criminal Defence Conference, International Criminal Justice: Justice for Whom?, Montreal, Quebec, Canada (Sept. 29, 2012), at 3, available at http://studylib.net/doc/7370118/prosecutorial-faiilure-to-disclose-exculpatory-material [hereinafter Lyons, Prosecutorial Failure].
50 Prosecutor v. Karamera et al., Case No. ICTR-98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor's Electronic Disclosure Suite in Discharging Disclosing Obligations, para. 9 (June 30, 2006). The prosecution has an obligation to participate in the administration of justice by disclosing to the defense, as required by Rule 68(A), material that may suggest the innocence or mitigate the guilt of the accused, or affect the credibility of the prosecution evidence. Id.
51 See Lyons, Prosecutorial Failure, supra note 49, at 3.
52 See ICC Rules of Procedure and Evidence (RPE) 20, 21, 22; ICC Regulations of the Court, ch. 4; ICC Code of Professional Conduct for Counsel (Code of Conduct).
53 See ICC Regulations of the Court, Reg. 68; ICC Regulations of the Registry, Regs. 124−27; Code of Conduct, Arts. 7(4), 8(3), 24(1), 32.
54 See ICC Regulations of the Court, Reg. 2(1); Agreement on Privileges and Immunities of the International Criminal Court, Art. 1(l); Headquarters Agreement Between the ICC and the Host State, Art. 1(v).
55 ICC Regulations of the Court, Reg. 73(2).
56 Article 55(2) of the Rome Statute grants suspects the right to have counsel of their choice be present during the interrogation.
57 Prosecutor v. Lubanga Dyilo, ICC-01/04-01/06-937 on the ‘Demande Urgente en vertu de la Règle 21(3) du Règlement de procédure et de preuves’ and on the ‘Urgent Request for the Appointment of Duty Counsel’ filed by Thomas Lubanga Dyilo before the Presidency on 7th May 2007 and 10th May 2007 respectively (July 18, 2007).
58 ICC RPE 89. This was done in the Situation in the DRC, Pre-Trial Chamber I Decision Appointing Ad Hoc Counsel and Establishing a Deadline for the Prosecution and Ad Hoc Counsel to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06, Public, Situation No ICC-0 1/04-147 (May 18, 2006), available at www.icc-cpi.int/iccdocs/doc/doc183532.pdf.
59 Rome Statute, Art. 56(2)(d).
60 See Prosecutor v. Lubanga Dyilo, supra note 57.
61 See ICC RPE 21, 22.
62 Vincent O. Nmehielle, The Office Counsel for the Defence at the International Criminal Court: Sharing the Experience of the Office of the Principal Defender of the Special Court for Sierra Leone, paper delivered at the Seminar on Defence Counsel Issues at the International Criminal Court, The Hague, The Netherlands (May 31, 2006) (on file with author), at 19.
63 ICC Regulations of the Court, Reg. 76.
64 See Beresford, Stuart, The International Criminal Tribunal for the Former Yugoslavia and the Right to Legal Aid and Assistance, 2 Int'l J. Hum. Rts. 49, 54 (1998)Google Scholar.
65 See Ellis, supra note 45, at 963.
66 Id.
67 Archbold: International Criminal Courts: Practice, Procedure & Evidence 562 (Dixon, Rodney & Khan, Karim eds., 2002)Google Scholar.
68 Id. at 569.
69 See Tolbert, David, The ICTY and Defense Counsel: A Troubled Relationship, 37 New Eng L. Rev. 975, 979 (2003)Google Scholar; id. at 978 (citing Press Release, ICTY, Association of Defense Counsel Formally Recognized by the ICTY (Dec. 1, 2002)).
70 See Ellis, supra note 45, at 963.
71 See Bertodano, supra note 47, at 480.
72 See International Bar Association, Responses of the International Criminal Bar to the Registry's Draft Strategy Paper on Relations with the Counsel (April 8, 2008) (on file with author).
73 Organisation for Security and Cooperation in Europe, Kosovo Criminal Defence Resource Centre Opens Its Doors (Sept. 26, 2001), available at http://www.osce.org/kosovo/53842.
74 See Extraordinary Chambers in the Courts of Cambodia (ECCC), Approved ECCC Budget 2010–2011, para. 82 (Apr. 5, 2010), available at http://www.eccc.gov.kh/sites/default/files/2010-2011_Budget_Document.pdf.
75 Rules of Procedure and Evidence of the Special Court for Sierra Leone, Rule 45 (Jan. 16, 2002, as amended May 31, 2012), available at http://www.sc-sl.org/LinkClick.aspx?fileticket=Psp%2bFh0%2bwSI%3d&tabid=176.
76 See Nmehielle, supra note 62.
77 Interview with Deputy Minister of Justice and the President of the Libyan Bar Association (Tripoli, Jan. 2013). See also International Legal Assistance Consortium, ILAC Rule of Law Assessment Report: Libya 2013 (May 9, 2013), available at http://www.ilac.se/2013/05/09/ilac-assessment-report-libya-2013/.
78 Prosecutor v. Gaddafi and Al-Senussi, ICC-01/11-01/11-344-Red, Decision on the Admissibility of the Case Against Saif Al-Islam Gaddafi, para. 91 (May 31, 2013).
79 Id., para. 138.
80 Id., paras. 212–14.
81 Id., para. 213.
82 See Human Rights Watch, Libya: Flawed Trial of Gaddafi Officials, Defendants Alleged Limited Access to Lawyers, Ill-Treatment (July 28, 2015), available at https://www.hrw.org/news/2015/07/28/libya-flawed-trial-gaddafi-officials.
83 See Amnesty International, Annual Report, Libya: 2015/2016 (2016), available at https://www.amnesty.org/en/countries/middle-east-and-north-africa/libya/report-libya/.