Defence Teams Demand Equality

Lack of resources undermines the accused’ rights to a fair trial,” argued Colleen Rohan, defence counsel for one of the Bosnian Serb officers accused of organising the 1995 Srebrenica massacre, in court last month.



Her colleague Natacha Fauveau Ivanovic was even more vehement.



“The accused did not ask to be indicted, and if the international community decides to try them then it must also meet the obligations in the statute which say the accused should have the means for their defence,” she said.



Lawyers representing six of the defendants were claiming that unless the registry granted them more money, they could not afford to prepare for their case.



The Hague tribunal’s own rules state that an accused must be tried “in full equality” – with the necessary facilities and legal aid – to ensure that there is “equality of arms” between prosecution and defence.



But the Dutch court, and its sister court dealing with the Rwanda genocide, set up by the United Nations Security Council in 1993 and 1994 respectively, have long faced claims that the position of the defence is far from being “equal” to that of the prosecution.



The problems surrounding the tribunals have led the next generation of international courts to take a radically different view of what constitutes “equality” for the defence.



John Jones, who is representing Naser Oric at the Hague tribunal, says money – which the registry dispenses to the defence – is one of the key issues.



Defence teams at the Hague court maintain that prosecution lawyer receive substantially more funding than them.



“The prosecution submits its own budgets, they can quite boldly ask for what they want,” Jones told IWPR. “The defence needs to be in the same position.”



However, registry officials in The Hague and Arusha argue that they have limited resources, and must guard against corruption by defence counsels.



Following investigations in 2001 and 2002, both tribunals tried to implement measures to prevent alleged fee-splitting where a lawyer agrees to share a part of his fee with his client, in order to get the job.



As the Hague tribunal’s spokesperson, Jim Landale, told IWPR, “[The tribunal] has a responsibility in all areas of its work to demonstrate that the public funds given to it are spent responsibly and effectively.”



Gregor Guy-Smith, the president of the Hague tribunal’s Association for Defence Counsels, ADC, insists that the problems faced by defence lawyers are more fundamental. “There is a systemic problem because the defence is not part of the tribunal,” he told IWPR.



It was not until September 2002, almost eight years after the Hague tribunal issued its first indictment, that the ADC was created to provide a “voice” for the defence.

Landale maintains that “the tribunal and especially the registry strongly advocated and worked towards the establishment of a bar association for defence counsel”.



Yet the defence counsels have no voice at the United Nations in New York. Hague judges decided in July this year that the ADC would not be permitted to submit a separate defence update for inclusion in the tribunal’s annual report.



However, it is during the court proceedings that the issue of equality between defence and prosecution really stands out.



In July this year, at the Oric trial, the “equality of arms” issue came under the spotlight. The chamber had ruled that the defence could only call 30 witnesses, rather than the 73 they had originally requested.



Oric’s defence co-counsel, John Jones, argued that this would be a “mockery of justice”, and that the defence’s 73 witnesses would take less court time than the prosecution had taken over the presentation of their case.



However, Judge Carmel Agius stated firmly that “equality of arms” was not based on any empirical comparisons between the two parties.



“[It] cannot be measured by the same number of witnesses…or by the same time or the same number of hours,” he said. “It is not qualified by numbers, Mr Jones, nowhere in the world.”



The alleged discrepancies between the prosecution and defence come into sharp relief when it comes to obtaining evidence from parties outside the court - such as in October this year, when Dragoljub Ojdanic’s defence lawyers made renewed attempts to get hold of intercepts and security information from NATO, Canada, the United States and the United Kingdom.



Peter Robinson, co-counsel for Ojdanic, told IWPR that the apparent reluctance to disclose was “definitely” to do with the fact that the intercepts were being requested by defence lawyers.



“These governments and countries regularly give intercepted information to the prosecution,” he said.



“The defence are individuals with very little moral or political clout to persuade countries or governments. It is not a level playing field from the outset.”



Within the Hague court, observers argue that it is up to judges to level that playing field.

In the Oric case, the appeals chamber overturned Agius’ ruling, claiming that it would be “only fair” to allow the defence more time and witnesses.



And in November this year, the Ojdanic judges decided that the majority of the defence’s submissions were valid. The chamber issued an order against the reluctant NATO states that the sources should be supplied.



By contrast with both the Hague and Arusha tribunals, the UN-backed Special Court for Sierra Leone, established nearly ten years later in 2002, has a defence office with an official figurehead, known as the Principal Defender, whose job is to “ensure the rights of the accused persons who appear before the court” and who “acts as a voice for the defence both inside and outside the court”.



The current Principal Defender, Vincent Nmehielle, told IWPR that one of the “primary reasons” for the creation of a defence office was the apparent failure by the Hague and Rwanda tribunals to protect defence interests.



Nmehielle’s predecessor, Simone Monasebian, who previously worked for the prosecution in Arusha, agrees.



She cites a memo sent by the special court’s president, Geoffrey Robinson, which explicitly stated that the Principal Defender’s post would “remedy the perceived shortcomings” of the other tribunals in respect of defence facilities.



Part of the remedy has been the way the newer court promotes the message that the defence plays an important role in establishing the guilt or innocence of an individual.



In the Balkans, says Human Rights Watch researcher Bogdan Ivanisovic, prejudices are deep-seated, adding that in Belgrade the public automatically assume that Bosniaks and Croats accused of crimes against ethnic Serbs are guilty.



“This conviction is most often not based on detailed knowledge of the charges; of the exact role of the accused in the relevant events; nor on following of the trial in The Hague,” he told IWPR.



The Hague tribunal has an outreach programme which regularly organises events in the Dutch city and the Balkan region. Outreach co-ordinator, Liam McDowall, told IWPR that he had frequently invited the ADC to provide speakers for outreach activities, but with little success.



“[The ADC] rarely engage in these offers,” he said.



Joeri Maas, senior ADC representatives, denied this, however, claiming that in the past two years “only once” had the ADC received an invitation from the outreach department to participate in their events.



In some cases, the lack of understanding about the role the defence plays can lead to problems with persuading witnesses to testify.



Aminatta N’Gum, a senior official at the Rwanda tribunal, says they have experienced such problems in Arusha. “We have had a couple of defence teams who’ve been to Rwanda to get witnesses who’ve come back with nothing,” she said.



In Kigali, the Rwandan capital, there is widespread mistrust of the motives of defence lawyers, and a sense of grievance that so much money goes to defend “genocidaires”.



Aloys Mutabingwa, special representative of the Rwandan government to the Arusha tribunal, told IWPR that although the government realised that defence was “part-and- parcel of the justice process” they were concerned about the “extravagance” of defence spending.



“If just a small portion of that money were to be used to help people dying of AIDS and living in abject poverty as a result of the [Rwandan] massacre, that would be better,” he said.



At the Special Court of Sierra Leone, Nmehielle organises monthly publicity events, and is given the opportunity to discuss defence issues with civil society organisations, parliamentarians, military personnel and the police.



“I explain why there should be a defence, I tell the story of the defence irrespective of national or international opinion,” he told IWPR.



However, even Nmehielle acknowledges that “[the public] see these accused people as animal, hooligans, and criminals – even human rights organisations see them in this way”.



Helen Warrell is an IWPR reporter in The Hague.