Fair trials


Defendants have a range of fundamental rights under the Rome Statute, such as the presumption of innocence, the right to defense counsel, and rights under the principle of equality of arms. Only if these rights are truly respected and effectively enjoyed, can the ICC be a model institution of law.


The ICC Bar Association

The International Criminal Court Bar Association (ICCBA) is the bar association for counsel and assistants practicing before the Court.  It was established in 2016 with the purpose of strengthening the quality of justice. In particular, the ICCBA seeks to enhance the equality of arms at the ICC, reinforce the independence of counsel, and protect the professional interests of counsel.

Equality of arms is a fundamental principle to ensuring a fair trial and is intended to ensure conditions place the defense on equal footing as the prosecution, enabling defense counsel to provide quality representation that meets the high legal standards expected in ICC processes.


Legal aid

Civil society has advocated that the Court allocate resources toward preserving fair trial rights like equality of arms. The ICC legal aid system is one such avenue and was established to benefit both defendants and victims before the Court. In the defense context, ICC legal aid ensures that the Court pays for legal representation of an accused where he or she has been deemed to lack sufficient financial means.

While an ultimate finding by the Court may be necessary to determine whether an accused was in fact indigent at the time of ordering legal aid, providing such aid based on a formal preliminary finding reduces the risk of violating an indigent defendant’s right to fair and speedy proceedings.


The Office of Public Counsel for the Defence

Unlike ICC prosecution teams, defense teams are independent from the Court. The Office of Public Counsel for the Defence (OPCD) serves as an internal office at the ICC tasked with providing legal support and assistance to the defense and ensuring institutional representation of defense teams. Among other activities, the OPCD advocates for the rights of the defense, maintains a list of qualified defense counsel from around the world, and familiarizes defense teams operating within the ICC system.


Trust Fund for Family Visits

With the ICC based in The Hague, detainees often find themselves far-removed from their countries of origin during ICC proceedings, which may hinder access to defense family visitation rights. This right derives from international standards of detention, as well as from the right of a detainee to have access to family life. Members of civil society have strongly welcomed the 2010 move by the Court to establish a voluntary fund—the Trust Fund for Family Visits (TFFV)—to help give effect to the right, and particularly in the case of indigent defendants.

An absence of voluntary contributions by most state parties has meant that the Court has consistently only been able to maintain a minimum level of financing through the TFFV. In 2016, the ICC expressed concerns over the TFFV reaching critically low levels.

The inability of the Court to secure family visits not only infringes on the rights of the detainee, but can also undermine the legitimacy of the Court. Civil society calls for urgent voluntary contributions to ensure the ICC can safeguard the human rights of its detainees and satisfy the highest possible standards of criminal administration.


Voluntary Cooperation

Voluntary cooperation of states is instrumental in building the effectiveness of the Court. In the context of fair proceedings, states are sometimes called on to host detainees where they have been released temporarily or acquitted, as well as to enforce sentences. One option is for states to enter into ad hoc agreements with the Court when specific requests arise.

Voluntary framework agreements go a step further to establish, in advance of any specific request, states with capacity to accommodate types of requests—creating a pool of states that the ICC can rely on to satisfy international human rights law standards when approached with a request.

The Court has been criticized for lengthy proceedings. The ICC pre-trial phase can result in a prolonged period of detention before trial proceedings begin, and even then the complex nature of international crimes cases may push a final conviction or acquittal well into the future. Avoiding excessive time in detention makes it particularly important that a defendant who cannot return to his country of origin can be relocated to a host state when a right to interim release has been recognized or in the event of acquittal.

The number of voluntary agreements concluded with the Court remains shockingly low. Only one state—Belgium—has concluded a framework agreement on interim release, and no state has signed such an agreement to host acquitted persons.

2016 saw the first enforcement of sentences framework agreement concluded in four years as well as two ad hoc agreements by the DRC to host transferred ICC convicts Thomas Lubanga and Germain Katanga.

Civil society continues to urge states to comply with voluntary cooperation requests and to enter into voluntary framework agreements with the Court to ensure the protection of defense rights at the ICC.