Legal aid at the ICC: What implications for the future of the Court?

"The review of legal aid is not solely a budgetary matter" — Aurélie Roche-Mair © IBA
IBA ICC & ICL Programme
Fair trials call for adequate legal representation by lawyers to defend an accused. When defendants don’t have the financial means to pay for their lawyers, it is up to the Court to pay the bill – at least to a reasonable extent. With the ICC striving to be a model institution, how can its legal aid system guarantee the fundamental human right to a fair trial? Here, the International Bar Association's Aurélie Roche-Mair answers your questions...

In this Q&A, Aurélie Roche-Mair, Program Director of the International Bar Association (IBA)’s ICC & ICL Programme in The Hague, evaluates the legal aid system at the ICC and its impact on the Court’s future. The IBA’s work includes analysis on issues which could potentially affect the rights of defendants, the impartiality of proceedings and the development of international justice.

 

Having given input to the Court at various stages in the development of the legal aid system, why does the IBA consider a review timely?

As the IBA has emphasized in the past, legal aid is a fundamental component of the ICC’s administration of justice. There are multiple issues to be considered in the review of the legal aid system.

What has been needed is a comprehensive analysis of the current scheme and how to address its challenges in terms of structure of teams, funding and legal aid management. Now that it has tried a number of cases through to the reparations phase of proceedings, the Court has a great deal of relevant information about what has and has not been working in the Legal Aid Scheme ("LAS"), making a review timely. The role of the defence within the unique context of international criminal tribunals also means that comparative analysis and lessons learnt from other international tribunals are very relevant to any review of the legal aid at the ICC.

 

What equality of arms issue do you see within the legal aid scheme discussion and review?

The defence function before international criminal tribunals is fundamental but experience has shown that defence rights at international tribunals are fragile. The position of the defence should always be viewed in juxtaposition to the institutional strength of the prosecution and its high degree of institutional independence, relatively substantial budget and large number of permanent, experienced counsel.

It is well established that equality of arms does not mean absolute equality in resources of the parties; the principle of equality of arms is more concerned with procedural equality. However, the achievement of procedural equality does have implications in terms of resource allocation.

To safeguard fair trials, equality of arms must be at the centre of the debate regarding any reform of the LAS. In our comments on the LAS Concept Note for instance, we highlighted the limited resources available for defence investigations and the fact that the current LAS does not contain specific provision for experts. Excluding funding for experts from the core legal aid budget is both inconsistent with the realities of international criminal cases, and inconsistent with the current standards applied by other international criminal tribunals. 

In addition, the IBA anticipates that the need for experts will become more urgent in ICC cases. Trial practice at the ICC is evolving to incorporate different sources and types of evidence, in particular technologically-derived and digital evidence. The ability to analyse and present such evidence is heavily reliant on experts, and as such advances in evidence have clear resource implications. This should be accounted for when revising the legal aid framework, to ensure that the defence has the means to access experts and technology as needed for sufficient periods of time, consistent with the right guaranteed to the accused under Article 67(1)(b) to have adequate time and facilities to prepare the defence.

 

The IBA has been advocating to change perceptions that legal aid is an ICC cost-driver as well as a mere budgetary issue. Could you share more about the IBA’s view?

First of all, the review of legal aid is not solely a budgetary matter. Legal aid is a technical and operational matter that requires the balancing of core principles, to ensure the fairness of judicial proceedingsIt is therefore crucial to not reduce legal aid to its budgetary aspect.

Beyond that, the manner in which the issue of legal aid for indigent defendants is addressed could have significant implications for the credibility of the Court. The Court’s reputation as a fair and impartial institution may be undermined if there are indications that these defendants are being short-changed in the assistance they receive from the Court to mount an effective defence.

The quality of legal representation has an impact on the fairness of the judicial process. States parties must recognise that the costs for the Court in this regard—including perceptions about the fairness of its trials—may be far greater than the actual expenses associated with operating the legal aid system.

To that extent, it also has a "complementarity" dimension as, by ensuring that defence rights are fully respected at the ICC, the Court is setting standards relevant to all States prosecuting international crimes.

 

The IBA has put forward the question of efficiency in the current legal aid review.

Indeed, there are a number of management and operational issues in relation to the current legal aid system at the Court. Many of those issues can be improved or addressed within the current framework by streamlining processes and looking at other international criminal tribunals to identify best practices in the management of legal aid schemes.

In that respect, the IBA has identified several processes to be improved, in particular a more detailed and transparent budgetary process that outlines more specifically the functions and activities supported by legal aid. The legal aid budget, which represents 3.25% of the total ICC budget,  could be broken down to clearly provide information related to: the number of persons employed and at what level; the number of investigation activities; and the number of ad hoc and duty counsel assigned and the length of assignments.

Management and operational issues within the administration of legal aid have a real impact on the Court’s efficiency and counsel’s ability to provide an effective defence. The IBA agrees with the LAS Concept Paper that "LAS procedures should be lean, meaningful, and transparent."

 

Related

Review of the International Criminal Court Legal Aid System concept paper

IBA Comments on ‘Concept Paper: Review of the International Criminal Court Legal Aid System’ (9 June 2017)

Related comments and submissions from civil society and others participating in the ICC legal aid system review

 

About the IBA ICC & ICL Programme

The International Bar Association (IBA)’s ICC & ICL Programme based in The Hague, where Aurélie Roche-Mair serves as Program Director, was started in 2005 to monitor issues related to fairness and equality of arms at the ICC and other Hague-based war crimes tribunals and encourage the legal community to engage with the work of these Courts. The IBA’s work includes thematic legal analysis of proceedings, and ad hoc evaluations of legal, administrative and institutional issues which could potentially affect the rights of defendants, the impartiality of proceedings and the development of international justice.