Cognizant of the need to ensure fair trials, the International Criminal Tribunal for Rwanda through the Registrar, assigns defence counsel to accused persons who cannot afford the costs of their own defence and remunerates such lawyers for their services. Extensive additional support, such as offices, faxes, telephones, transportation, library facilities, visa referrals for official travel, etcetera is provided to defence teams in a systematic and consistent manner whenever they are present in Arusha for trial or related proceedings. The independence of the Defence has been scrupulously respected by the Tribunal’s Chambers and Registry. Several defence lawyers and other members of defence teams have exhibited high professional standards in their dealings with the Tribunal. However, indications that there may be abuses of the legal aid regime led to investigations by the United Nations Office of Internal Oversight Services (OIOS) and the subsequent report of the OIOS on the investigation into possible fee-splitting arrangements between defence counsel and indigent detainees at the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia. The OIOS investigation found evidence of abuse of the legal aid system of the two Tribunals: Some defence teams at both Tribunals have hired friends or relatives of their clients as defence investigators; some defence teams at the ICTR have given gifts to their clients’ relatives and other forms of indirect support; and several former defence counsel at both Tribunals have been solicited and have accepted requests for fee-splitting between them and their clients. While the OIOS found credible information about possible on-going fee-splitting arrangements, enough evidence has not yet been produced to substantiate this information. In view of a recent development involving the arrest of a suspect, Siméon Nshamihigo, who was a defence investigator, and having given due consideration to the findings and recommendations of the OIOS report, the ICTR Registry adopted a series of measures to prevent abuses of the legal aid system and to protect the integrity of the Tribunal’s judicial process. Some of these measures include:
Restrictions on the giving of gifts by defence teams to their clients;
Strict personal searches of persons visiting or meeting with detainees in the United Nations Detention Facilities in accordance with Rule 61 of the Tribunal’s Rules of Detention;
Restrictions preventing members of defence teams from meeting with accused persons other than their own clients while visiting UNDF;
Personal history forms to be filled by individuals who are hired by defence counsel as defence investigators, requiring more detailed information about the backgrounds of such individuals to ensure, among others, that they are not related to accused persons detained by the Tribunal. The information requested of such potential investigators is not as detailed as that required of staff members directly employed by the United Nations, which demonstrates that this is part of a normal process and is not discriminatory;
Enhanced screening of potential and serving defence investigators to ensure that no members of defence teams obtain positions by false pretences as to identity or have engaged in activity incompatible with the purposes of the Tribunal;
The establishment by the Registrar of an internal panel to further review the legal aid regime. There have been attempts by some interests to wrongly depict these measures as an assault on the independence of the Defence. They are not. These measures are necessary to ensure that the financial resources provided by Member States for the provision of legal aid to ensure a fair trial are not abused, and that persons who should not be involved in the work of a Tribunal established to seek justice for the Rwandan genocide are not so involved in any manner. Further measures will be taken in this connection as and when required. Obviously, defence teams that are professional in their conduct and individuals with nothing to hide have nothing to be worried about in this context.
It is pertinent, in this whole context of the defence of accused persons, to recall some recent decisions by Judges of the Tribunal which have clarified aspects of the legal/judicial work and policy of the Tribunal that have been the subject of misconceptions or deliberate distortions.
Assignment of defence counsel to indigent accused. This has been a matter over which much media controversy has been generated in the past. In its judgement on 1 June 2001 in the appeal filed by Jean Paul Akayesu against his conviction and sentence for Genocide and Crimes against Humanity, in which he argued as a major ground of appeal that he was denied the right to counsel of his own choosing, the Appeals Chamber decided on this point as follows: “The Appeals Chamber holds that the right to free legal assistance by counsel does not confer the right to counsel of one’s own choosing … The right to choose one’s counsel is therefore guaranteed only for accused who can bear the financial burden of retaining counsel. The Appeals Chamber recalls the Tribunal’s practice in respect of indigent accused: the Registrar assigns counsel to an indigent accused from a list of available counsel whom he considers qualified under the Tribunal’s official criteria. To be sure, the Tribunal’s case law gives the opportunity to choose from amongst the counsel on that list. It is, nevertheless, also true that the Registrar is not necessarily bound by the wishes of an indigent accused. Indeed, he has wide discretion, which he exercises in the interests of justice. (Emphasis added).
Independence of the Tribunal. In its decision of 1 June 2001 on the appeals filed by Clément Kayishema and Obed Ruzindana against their judgement and sentence by Trial Chamber II, the Appeals Chamber stated: "..The Appeals Chamber finds that clearly the actions of the other United Nations bodies have no bearing on the Tribunal's independence and impartiality. Moreover, the Tribunal itself is not implicated in the events that occurred in Rwanda in 1994, as it was not in existence then". Regarding relations between the Tribunal and Rwanda, the Chamber ruled: "The Appeals Chamber is satisfied that the mere fact of the Tribunal maintaining good relations with the Government of Rwanda or enjoying good cooperation from it does not mean that it is not independent. The Tribunal is dependant on State cooperation in the discharge of its activities, .. other than making general allegations, Kayishema fails to provide evidence of any specific pressure exerted on the Tribunal in the case at bar".
Equality of arms between the Prosecution and the Defence. On this matter, the Appeals Chamber in the Kayishema/Ruzindana appeal ruled that "It is clear from the case law … that in criminal cases, equality of arms between the defence and the prosecution does not necessarily amount to the material equality of possessing the same financial and/or personal resources… equality between the parties must not be confused with the equality of means and resources. The issue is whether the provisions of Article 20(2) and 20 (3) of the Statute were complied with".
Impartiality of the Tribunal. It is self-evident that the Tribunal is impartial as between the prosecution and the defence. In the judgement of Trial Chamber 1 in Prosecutor v Ignace Bagilishema on 7 June 2001, the Chamber acquitted Bagilishema because the prosecution failed to prove its case against the accused beyond reasonable doubt. In the Kayishema/Ruzindana appeal, the Appeals Chamber dismissed the Prosecutor's appeal because it was filed outside required time limits. And in the case of the recently arrested defence investigator referred to above, the Tribunal denied a prosecution request to have documents seized from Nshamihigo handed over to the prosecution. The Tribunal instead ordered that the documents should be handed over to Nshamihigo's defence counsel.
These decisions have reaffirmed and clarified basic legal principles on which the work of the Chambers and Registry stand: fairness, impartiality, equality of the parties before the law of the Tribunal, the presumption of innocence of accused persons until proof of guilt is established beyond a reasonable doubt, and respect for the right of an indigent accused to be assigned counsel while firmly recognizing that there is no right of such an accused to be assigned the lawyer of his or her choice.
The Registrar has very much appreciated the support and cooperation so far extended to the Registry by the defence counsel, through their official representatives with whom he has held very constructive and positive discussions over all these issues. The Registrar recognizes the vital role and contribution of all Defence counsel to the trial proceedings and intends to always rely on their understanding in order to assist the Registry in the discharge of its mandate.