Report of the Registry on the Experts Conference

II. Defence Office

A. Proposal submitted to the discussion

The proposal of the Registrar on the creation of a single Defence Office (“DO”) was also detailed in the Concept Note and Basic Outline documents distributed to the participants ahead of the Expert Conference. The Registrar proposed the creation of a single Defence Office which would consolidate most of the functions currently performed by the Office of the Public Counsel for the Defence (“OPCD”) and the Counsel Support Section (“CSS”). The envisaged Defence Office would be responsible for exercising the Registrar’s duties under Rule 20 of the Rules to promote the rights of the defence and to support the defence, and would have the capacity to carry out the full range of defence-related functions, except for the actual representational functions, which would continue to be carried out by independent external counsel only. The Defence Office (DO) would be situated within the Registry, but measures would be taken to preserve the confidentiality of defence related issues and privileged information pertaining to any counsel-client relationship. The representational functions, including any duty Counsel or ad hoc assignments, would be carried out by an external counsel. The main goals would be to enhance the support received by the defence teams and further empower the role of the defence within the proceedings and within the organisation. The proposed DO would also improve efficiency by rationalising the resources and alleviating the current obstacles to providing high quality services within the current resource constraints. Such a structural change would optimise the utilisation of existing resources and would improve the services provided to the defence. This would not adversely affect the resources available for legal aid.

B. Framework of the discussion

During the discussions held at the seminar, different proposals were formulated which, in order to be implemented, would require an amendment to the Rome Statute or to the RPE, which would need to be approved by the ASP. One such proposal was to have the list of counsel administered by the proposed Association of Counsel. These proposals fall out of the scope of the proposed discussion, which can only result in proposed amendments to the Regulations of the Court submitted to the Plenary and/or amendments to the Regulations of the Registry. As such, these proposals have not been considered in the present report.

C. Resources

Throughout the discussions, many defence teams raised the insufficiency of resources available through the legal aid system as their main issue of concern. Current resources provided under the legal aid scheme were criticised as being insufficient with respect to legal representation, investigations and expert support. The current legal aid system was also criticised for not sufficiently taking into account the complexity of cases. As a consequence, defence teams spend a significant amount of time in justifying their expenses for purely administrative purposes and are often obliged to litigate for additional resources before Chambers, when they should be focusing on the preparation of their case.

Besides the resources allocated to the defence teams under the legal aid scheme, the human resources given to CSS, for the purpose of administrating legal aid, and OPCD, were also described as insufficient. In this respect, the Registrar’s proposal of rationalising the existing resources by avoiding duplication and focusing on providing assistance and support to the defence teams was welcomed. In particular, it was suggested that the future DO might alleviate the defence teams from their current administrative burden, as the current Office of the Defence in the Special Tribunal for Lebanon (“STL”) does.

D. Voicing the Interests of the Defence in the Institutional Framework

The placement of the defence within the Court’s administrative structure was also generally described as inadequate to properly defend the interests of the defence and the independence of counsel. Participants identified a need for a representative body authorized to represent the Defence before the ASP and the Plenary of Judges. In the current situation, OPCD does not have standing to play this role. Comparisons were again made with the role of the Office of the Defence in the STL, and its role in voicing the interests of the defence within the institution. The envisaged Association of Counsel would help ameliorate these concerns, but this would be an external body, which would work alongside the proposed DO, situated within the Court. The DO would be an institutional voice of the defence within the Court, complemented by the Association of Counsel. Together, these two bodies would ensure that the interests of the defence are safeguarded at both the administrative and substantive levels.

E. Independence

The need to protect the independence of counsel was generally emphasized. Regardless of the structure to be adopted, the participants considered it necessary to ensure that the independence of counsel will be preserved and reinforced. In relation to the independence of the Office itself, different views were expressed: Some insisted that the current structure with an independent Office provides an additional safeguard and should be reinforced. Other participants submitted that as long as the resources and services provided are effective, an independent office might not be required. Certain participants challenged the very concept of having an “independent” office within the Court’s institutional framework and posited that the STL Office of the Defenceoften hailed as a positive development in relation to ICL institutionswas independent in the budgetary sense only. The notion of “autonomy” was suggested as a more accurate description, while “independence” would apply to external counsel only, as it is a key condition for their representational functions.

F. Representation of Suspects and Accused

It was recalled that, when the OPCD was established, the main intention was to reduce the cost of legal representation by relying on internal counsel for the representational functions. This solution proved to be inadequate for two reasons: One, it was limiting the choice of counsel by the suspects and accused; and, two, it created numerous conflicts of interests for the defence of all suspects and accused in the different cases before the Court. In practice, reliance on OPCD to represent suspects and accused has been extremely limited. Most participants emphasised the need to ensure that the counsel representing suspects and accused remain independent, which is the reason why it was submitted that the DO should not have any representational function at all.

G. Support and Assistance Functions

According to the participants representing the defence, at present, the assistance that is sought from OPCD is largely of a general nature, as opposed to case-specific assistance. Once a defence team commences work on the substance of its case, the assistance that OPCD can provide is by definition extremely limited, for reasons including counsel-client privilege. The resources for case-specific research should therefore remain in the defence team itself, without need to rely on a DO. What defence teams expect to receive in terms of assistance is basic assistance for the induction of team members; the provision of general background information relating to the ICC proceedings; the development of a judicial database for access to ICC case law; IT support, etc. In short, the DO should be able to support defence teams with institutional knowledge.

Participants identified a potential limitation in the support that the proposed DO could provide to the defence teams with respect to challenging decisions regarding legal aid. If the DO is also in charge of administering legal aid, it cannot at the same time assist the defence teams in their challenges against the decisions on legal aid. In this regard, the need for a fundamental review of the legal aid system, including how it is applied and administered, was emphasized by both the Registrar and the participants as one of the cornerstones for improving Registry’s support to the Defence.

H. Counsel-Client Privilege

It was emphasised several times that the staff of the DO should be bound by strict confidentiality rules, as they may receive privileged defence information in the performance of their functions of support and assistance, or in connection with the administration of legal aid. Certain participants submitted that the measures proposed by the Registrar to protect confidentiality were not sufficient. It was agreed that all staff of the DO will need to be carefully instructed on the importance of preserving strict confidentiality with respect to defence-privileged information.

I. Single Portal for Defence Teams

Another aspect that was often mentioned is the need for the defence teams to have one single “portal” to facilitate their interactions with the Registry, without needing to chase support from the different relevant sections. The proposed DO would be in charge of coordinating the requests received from the defence teams and dispatching them to the relevant service-providers. The STL Office of the Defence model was referenced as an example. The proposed DO would work as a buffer and manage administration for the defence teams, so that they can focus on the substance of their mandate.

J. Counsel List

The issue of the responsibility for managing the list of counsel was also discussed. The question was whether this list should be managed by the Registry. All participants agreed that there should be one single list only, for defence counsel and legal representatives of victims alike. This means that neither the DO nor the VO would be in an adequate position for managing the list. It was noted that in the STL, there is only one list for all counsel, but a specific office of victims is in charge of admission on the list for victims’ representatives.

III. Victims Office

A. Proposal Submitted to the Discussion

The proposal of the Registrar on the creation of a single Victims Office (“VO”) was detailed in the Concept Note and Basic Outline documents distributed to the participants ahead of the Experts Conference. The Registrar is proposing to create a single Victims Office that would consolidate and preserve the core functions currently being performed by the Office of Public Counsel for Victims (“OPCV”), external legal representatives of victims and the Victims Participation and Reparations Section (“VPRS”). The main goals are to integrate all services related to victim participation into one consolidated structure in order to ensure a coherent approach to victim participation that includes fluid engagement with victims and a more optimised deployment of existing resources both in headquarters and in the field. The Victims Office would be divided into two separate and distinct units (a judicial services unit and legal representation unit) mandated to carry out their respective functions under the administrative structure of the Registry. The neutral, judicial service functions of the VPRS would continue to be carried out by a distinct unit within the Office with the neutrality and distinction in function (from the legal representation unit) guaranteed by the Head of Office. The core functions of the OPCV and external legal representatives would be merged into a new legal representation unit with external legal representatives appointed as lead counsel on an ad hoc basis for the duration of the proceedings and staff from a pool of in-house lawyers appointed to support the lead counsel and provide ICC-specific support on victims’ issues. The field related functions of both units within the Victims Office would be supported by the new Division of External Relations within the Registry which would ensure that adequate resources are made available for effective and meaningful participation. It is envisaged that such a structural change would create space for more effective planning and use of resources, maximize the use of limited resources by creating synergies and removing some overhead costs, and enable rapid deployment and targeting of resources where they are needed.

B. Framework of the Discussion

There was a general consensus among the participants of the victims sessions of the Expert Conference that the principles of victim participation enshrined in the Court’s texts are largely sound and that the major challenge for the Court is how to make those principles more meaningful for victims. The participants kicked off discussions by cataloguing many of the challenges that the Court has faced so far in the implementation of the victim participation mandate. With these recognised challenges in mind, the participants submitted proposals that were largely in line with the overarching framework of the Registrar’s proposed Victims Office and included many valuable insights on how to ensure that the newly proposed structure honours the rights enshrined in the Court’s texts and builds on the positive models utilised thus far.

C. Identified Challenges

The participants wanted to take stock of the main challenges facing victim participation before considering the Registrar’s proposal on the new Victims Office. Some of the challenges identified include:

· Managing large numbers of applications;

· Ensuring effective engagement with victims, including through consultations on all relevant decisions made on their behalf;

· Conducting outreach to victims more effectively;

· Striking the balance between courtroom appearances and field presence in relation to the lead counsel of victims;

· More effectively linking participation with the support and assistance mandate of the Trust Fund for Victims (“TFV”);

· Carving out a distinct role for the legal representative for victims and avoid perceptions that victims’ counsel are acting as a second prosecutor;

· Ensuring that the legal representative teams are sufficiently trained on victims related issues (psycho-social, gender, etc.);

· Ensuring greater coordination between the various offices working on victims related issues.

D. Principles and Functions of the Legal Representation Unit

1. System

Participants of the Expert Conference considered that the new structure should give meaning to rule 90 of the Rules of Procedure and Evidence (“RPE”) by ensuring that victims are systematically consulted on the criteria to be applied in the selection of their legal representative(s). The participants considered that following the consultation with victims, the selection process of the victims’ legal representative should be open, transparent and accountable and that the legal representative selected should always be the lead counsel. It was also widely recognised that the system should have some inherent flexibility built-in so that decisions on where the counsel will be based (HQ or in the field) can be made on a case-by-case basis taking into account inter alia the preferences of victims and the security situation on the ground. Though principally a matter for judicial determination, when based in the field, the participants considered that the lead counsel should be put in a position to determine “critical junctures” for which his/her presence in the courtroom would be beneficial for the victims participating in a case.

2. Functional Independence of Victims Counsel

The participants considered functional independence of counsel to be a critical factor in the overall success of the proposed Victims Office. Questions were raised on whether or not counsel could exercise independence from within the Registry and what the roles and responsibilities would be of the Head of Office vis-a-vis the lead counsel of a respective victims’ legal representation team. Many participants expressed concerns about having the Head of Office involved in the case specific strategy of the lead counsels and how this might impact independence and effective representation. The moderator explained that according to the Registrar’s proposal, the role of the Head of Office would be administrative in nature and would not include a supervisory mandate on substantive issues. Instead, to ensure independence is preserved, all strategic and professional issues pertaining to legal representation would be subject to the Code of Professional Conduct (“CPC”). This includes the strategic decisions and actions of the lead counsel and all members of the victims’ legal representation team.

3. Lead Counsel for Victims

The participants of the Expert Conference expressed a strong preference in favour of external legal representatives being appointed as “Lead” counsel for victims in all cases before the Court. The reasons behind the preference varied but many referred to the text of rule 90 and suggested that the model whereby an external lead counsel is selected in each case, following a consultation with victims on the criteria to be applied, is the best way to honour the wording of the rule and the principle that victims are entitled to choose their legal representative. It may also be the best way to ensure that the practice of victims’ participation in proceedings continues to develop together with the Court. There was a perception amongst many of the participants that a system of exclusively in-house legal representation will stifle innovation in favour of standardisation and potentially lead to a one-size fits all approach to victims’ representation. Participants also stressed that the lead counsel should be made aware at the outset of his/her appointment what resources are available for effectuating participation in a given case and that counsel should be included in discussions on resource allocation. Participants also stressed that should it be necessary, counsel should be in a position to challenge the resource distribution decisions of the Head of Office in the event that it becomes necessary to meet his/her professional obligations in the representation of victims.

4. Flexibility on Where Counsel Will be Based

On the subject of whether or not the lead counsel should be based in the field in each case, the Participants agreed that a flexible approach may be more appropriate. While acknowledging the benefits of having counsel based in the field, participants considered that there are a number of reasonably foreseeable issues that may make this impracticable or inefficient like security concerns or low numbers of participating victims. Many participants suggested that decisions on the location of counsel should be made on a case by case basis and take into consideration any information gathered ahead of the selection process of the lead counsel at the outset of proceedings. Participants referred to the consultation with victims on legal representation as one useful tool in gathering information pertaining to the location where counsel will be based, including security and logistical considerations.

5. In-House Pool of Lawyers

The participants of the Expert Conference were generally in support of preserving in-house lawyers as a means of ensuring that institutional knowledge on victims’ issues is preserved and that external counsel are met with ICC-specific support as soon as they are appointed. The participants asked questions on the selection process of the in-house pool of lawyers and raised concerns over geographical representation and available expertise on gender and psycho-social issues. The participants were widely in agreement that the role of the in-house pool of lawyers should primarily be one of supporting external lead counsel in the exercise of his/her duties and also considered that each member of the in-house pool of lawyers should also belong to the list of counsel (or association of counsel) and be subject to the CPC.

E. Principles and Functions of the Neutral Judicial Service Unit

1. System

The participants of the Expert Conference considered that a neutral, judicial service, function needs to be maintained and that this function should be separate and distinct from the legal representation function. Participants raised concerns over how the same office could be charged with taking administrative decisions over the admission of applications for participation and at the same time represent victims accepted to participate. The moderator explained that one of the key roles of the Head of Office would be to ensure that the neutral and legal representation functions of the Victims Office would remain separate and distinct while at the same time encouraging synergies and greater coordination between the functions wherever possible. Many of the participants argued that in order for this model to be workable, it must be possible for counsel to challenge decisions, particularly those pertaining to the victims’ admission process, made by the neutral unit of the Victims Office.

2. Head of Victims Office

The participants considered that the Head of Office position should be administrative in nature and profile and that the Head of Office should not represent victims in proceedings. It was discussed that the Head of Office should be responsible for allocating resources to the legal representation teams, managing general staff issues and ensuring that no conflicts of interest arise. Participants considered that the role of the Head of Office should be more of a coordinator position, ensuring that all units and functions within the Victims Office are sufficiently resourced and operating efficiently and effectively. The participants agreed that the Head of Office should not interfere with the strategy of the legal representation teams and should not supervise counsel operating under the CPC.

F. Resources Available for Victim Participation in the Field

The participants were concerned about the resources that would be made available for effective participation in the field. Many suggested that locally recruited field assistants, with varying professional backgrounds, often times serve as the interface between counsel and the victims and are therefore crucially important. The moderator explained that the Registrar’s proposal entails the recruitment of one field assistant per counsel to assist in ensuring that counsel would be able to build a relationship of trust with the participating victims and facilitate effective communication. For additional resource requirements, the Registry’s newly created multi-functional teams based in the respective field offices could be called on for additional support. These teams would be composed of Registry staff with professional backgrounds in outreach and interaction with victims. The participants stressed that in cases with large numbers of participating victims, counsel should be in the position to request additional resources from the Head of Office if so required.

IV. Association of Counsel

A. Introduction

The joint session during the morning of 24 March 2015 brought together all participants at the Conference to discuss the possible establishment of an association of counsel at the ICC. The questions that the participants were asked to tackle concerned the ways in which the prompt establishment of such an association could be ensured and how an association could strengthen the institutional representation of collective interests of counsel at the Court. It was noted by participants that the issue of an independent Association of Counsel has been discussed ever since the signing of the Rome Statute. Many participants agreed that an independent representation of the collective interests of all counsel practicing before the Court is indispensable. As the collective interests of counsel may require the adoption of positions independent from, or contrary to, those of the Registrar, the Registry is not in a position to fulfil this task. The establishment and formal recognition of an independent self-governing Association of Counsel would be a key element of the reform of the support structure that the Registry provides to counsel.

B. Principles and Defining Features

One of the issues debated by the participants concerned the nomenclature to be used. It was pointed out that the terms “bar” and “association” mean different things. To give an example, the creation of a bar would entail compulsory membership. The legal framework of the Court needs to be carefully reviewed to ascertain the competencies that an Association of counsel may have. At the same time, a number of participants suggested that too strict an adherence to the way in which national bar associations are constituted and operate would be too restrictive and that the ICC’s unique operational realities should be taken into account. With respect to the legal basis of an Association of Counsel, the prevailing view was that it should be constituted under Dutch law.

A fundamental concern raised with respect to the establishment of an Association of Counsel related to its recognition by the ASP. Formal recognition by the ASP would be a prerequisite for the proper and effective representation of the interests of counsel vis-à-vis both the Court and States Parties. It was also suggested that financial assistance by either the ASP or the Court would be necessary, at least in the early stages, for an Association to stand on its own feet.

Participants discussed the link that an Association intended for the ICC should have with other international or hybrid tribunals. While extending membership to cover other courts along with the ICC, was seen as positive in theory, the prevailing view was that aiming to cover the international criminal justice system as a whole would be too ambitious and could undermine the practical support that counsel appearing before the Court urgently need.

A majority of the participants preferred an ICC-centred approach and advocated that counsel should focus first on establishing an association before taking on the challenges associated with developing a fully-fledged bar. Participants considered that a lighter structure in the beginning may also alleviate the funding pressures associated with building new institutions.

C. Internal Structure of an Association

An Association of Counsel needs to further the interests of both counsel acting for the defence and for victims. The counsel for the defence and legal representatives of victims will come from the same pool of practitioners. In addition, at the ICC counsel may also appear on behalf of witnesses or represent States in admissibility proceedings. All counsel are subject to the same ethical and disciplinary standards. This would not differ from the practice in national jurisdictions. The American Bar Association was presented as an example where both prosecutors and defence lawyers are represented within a single organisation. It was considered essential that an association of counsel represents the legal profession as a whole.

Participants nevertheless highlighted the inherent conflict of interests between victims and defence as a source of possible tensions within an association. Accommodating both defence counsel and legal representatives of victims under one roof will require arrangements whereby the interests of both groups can be upheld. A suggestion was made to create two separate committees, one for the defence and one for victims’ representatives, which will be able to take into consideration the interests of suspects and accused on the one hand and those of victims on the other. It was noted that the way in which decision-making within an association, especially voting procedures, are determined, will have a major impact on the way that the interests of defence and victims counsel are balanced.

D. Membership

The question of membership within an association resulted in extensive debate among the participants. Various criteria were suggested that could define the eventual membership: current or past representation of clients before the Court, membership on the list of counsel and membership of a national bar association were mentioned as possible standards for membership. The view was expressed that an association needs to be as inclusive as possible. Indeed, if an association is to rely, even partly, on funding by its members, the membership base cannot be too limited. It was also pointed out that one of the problems identified by counsel is that their collective voice is not heard at the ICC. An exclusive club could not claim to represent the interests of counsel as a whole. The Association of Defence Counsel Practicing before the ICTY was presented as an example where both lawyers with cases currently before the Tribunal and those without are represented. This avoids the difficulty associated with having only counsel with active cases, whereby membership would fluctuate each time a case came to a close. In practise, counsel who are actively involved before a court tend to put themselves forward as candidates for committees where most of the substantive work is done. A contrary opinion was raised that an association must first and foremost protect the interests of counsel practicing before the Court. This argument posited that including counsel who have no practical interaction with the ICC would weaken any association. Participants agreed that an association needs to be able to address issues that arise on a daily basis and be in constant interaction with the Registry.

Another query with respect to membership relates to the role that staff members of the ICC who represents clients before the Court should have in an association. Since in-house lawyers acting in such a capacity adhere to the same standards and requirements as external counsel, there would be no need to exclude ICC staff. With respect to membership fees, participants enquired as to possible reductions or exemptions for counsel with limited financial means.

E. Functions of an Association

The participants welcomed the Registrar’s support for the establishment of an association. At the same time the exact delineation of functions between an Association and the Registry, as well as the support provided by the latter to the former, raised questions. It was widely agreed that an association should be complementary to the support provided to counsel by the Registry. Without adequate resources to those organisational units within the Registry responsible for the defence and victims functions, an association of counsel would be stillborn. The Registry needs to maintain an effective interface for defence issues with which an association can liaise.

An association would be an interlocutor with the Registrar and others in the Court dealing with defence and victims issues. Through an association, counsel could become more involved in the development of policies that impact on both the defence and victims. An Association could participate in various consultative bodies at the ICC that deal with legal texts. It could also make submissions to judges on matters concerning the collective interests of counsel.

The exact division of labour between an Association of Counsel and the Registry needs to be carefully thought through. Participants expressed the wish that an association would provide training to counsel who practice before the ICC. An association could also be responsible for providing advice and opinions on issues concerning the ethical conduct of counsel. Some of the functions currently carried out by the Registry, for example in relation to admission to the list of counsel, could be carried out by an independent association. Any arrangement agreed upon the establishment of an association should however not be set in stone and over time the Registrar could delegate more functions to an association.

Some participants expressed hesitation with respect to the role of an Association of Counsel in relation to the disciplinary regime for counsel practicing before the Court. The current disciplinary regime was felt to be adequate and an association should have only an advisory role to play in this regard.

F. Next Steps and Drafting of a Constitution

The counsel present at the Expert Conference formed an ad hoc committee to pursue a consolidated draft for a constitution of an Association of Counsel. The committee plans to consult with all counsel on the ICC list of counsel to present a complete proposal to the Registrar. The Registrar has indicated his full support for this endeavour and looks forward to the creation of an Association of Counsel that complements the envisaged support structure within the Registry. The Registrar is fully committed to advancing the interests of an association vis-à-vis the ASP, most notably in the case of formal recognition and provision of initial funding.

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