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Rules 20-22 of the ICC Rules of Procedure and Evidence
Three advocacy campaigns of the ICDAA in 1997-2000 convinced government delegates to the ICC to adopt Rules 20-22 of the ICC Rules.
The adoption of Rule 20 into the ICC Rules of Procedure and Evidence was only a partial victory in the recognition of the independence of defence lawyers. It did not create a formal structure but was nevertheless an improvement on the ad hoc tribunals. Independence of the legal profession was explicitly recognized (Rule 20(2)) and connected to the right to a fair trial. The Registrar finds itself with the responsibility of taking measures to protect the independence of defence lawyers. The rule means that the defence is no longer invisible or without any official status.
Specifically, Rule 20 imposes a duty on the Registrar to "organize the staff of the Registrar in a manner that promotes the rights of the defence, consistent with the principle of fair trial as defined in the Statute." For this purpose, the Registrar has the tasks (a) to facilitate the protection of confidentiality; (b) to provide support, assistance, and information to all defence counsel appearing before the Court; (c) to assist arrested persons and persons subject to questioning (Art. 55-2) as well as the accused in obtaining legal advice and the assistance of legal counsel; (d) to advise the Prosecutor and Chambers on relevant defence-related issues; (e) to provide the Defence with the necessary facilities; and (f) to facilitate the dissemination of information and case law of the Court to defence counsel and promote training of defence counsel. Rule 20(2) makes specific mention of the responsibility of the Registrar to ensure the professional independence of defence counsel.
Rule 20(3) opened the door to the establishment of an international criminal bar. Subsequently, ICDAA joined forces with other key partners amongst bar associations from around the world to lead a movement that enabled the creation of a global bar. This new bar, the ICB, established in Montreal in June 2002 brought together, under the same umbrella, individual practitioners, bars and professional legal organizations as well as non-governmental organizations (NGOs) with a focus on legal issues.
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United Nations |
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Preparatory Commission for the |
Distr.: General 2 November 2000 |
New York
13-31 March 2000
12-30 June 2000
Report of the Preparatory Commission for the International Criminal Court
Addendum
Finalized draft text of the Rules of Procedure and Evidence *
Rules of Procedure and Evidence
Subsection 3
Counsel for the defence
Rule 20 - Responsibilities of the Registrar relating to the rights of the defence
1. In accordance with article 43, paragraph 1, the Registrar shall organize the staff of the Registry in a manner that promotes the rights of the defence, consistent with the principle of fair trial as defined in the Statute. For that purpose, the Registrar shall, inter alia :
(a) Facilitate the protection of confidentiality, as defined in article 67, paragraph 1 (b);
(b) Provide support, assistance, and information to all defence counsel appearing before the Court and, as appropriate, support for professional investigators necessary for the efficient and effective conduct of the defence;
(c) Assist arrested persons, persons to whom article 55 , paragraph 2, applies and the accused in obtaining legal advice and the assistance of legal counsel;
(d) Advise the Prosecutor and the Chambers, as necessary, on relevant defence-related issues;
(e) Provide the defence with such facilities as may be necessary for the direct performance of the duty of the defence;
(f) Facilitate the dissemination of information and case law of the Court to defence counsel and, as appropriate, cooperate with national defence and bar associations or any independent representative body of counsel and legal associations referred to in sub-rule 3 to promote the specialization and training of lawyers in the law of the Statute and the Rules.
2. The Registrar shall carry out the functions stipulated in sub-rule 1, including the financial administration of the Registry, in such a manner as to ensure the professional independence of defence counsel.
3. For purposes such as the management of legal assistance in accordance with rule 21 and the development of a Code of Professional Conduct in accordance with rule 8, the Registrar shall consult, as appropriate, with any independent representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties.
Rule 21 - Assignment of legal assistance
1. Subject to article 55, paragraph 2 (c), and article 67, paragraph 1 (d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, sub-rule 3.
2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list.
3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances.
4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity.
5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.
Rule 22 - Appointment and qualifications of Counsel for the defence
1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise.
2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity.
3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties.