The Association internationale des avocats de la défense (International Association for Defence Lawyers, the AIAD) has entered the fray. Taking advantage of Jean-Paul Akayesu's appeal over the freedom to choose his lawyer, the AIAD is asking to be heard as an amicus curiae. Having made this application on April 22nd, it has just filed its brief. In this logically-argued « requête en contrôle judiciaire » (motion for legal supervision), the association is « urging » the international court to set an example. This, in the terms of the AIAD, means ruling unambiguously in favour of free choice of defence counsel. A ruling on the admissibility of this motion by the Appeals Chamber is said to be imminent. It was thought that all the preparations for war had been completed. This was not the case, and no such instructive preparations had previously been made. The AIAD wanted to have its say in the debate over the accused at the ICTR having the right to choose their defence lawyers. In doing so, the association asked the Appeals Chamber, seized with the matter by Jean-Paul Akayesu, to give evidence as an amicus curiae and supported its application with a copious brief.

Setting an example for national communities

No prizes for guessing that the AIAD's stance is uncompromising. Regarding the dispute between the Registrar of the ICTR and the ex-bourgmestre of Taba, sentenced to life on October 2nd 1998, and his Canadian lawyer, John Philpot, rejected by the Registry since September, the Association gave the following statement: « We think that the accused ought to have the right to choose his assigned counsel from those fitting the criteria. In this case, the Registrar's interpretation and application of the legal rules have infringed the equal rights of the accused, a Rwandan before the International Criminal Tribunal for Rwanda, by treating him in a prejudicial manner, not only relative to the
accused at the ICTY, but also in comparison with those tried at Nuremberg and by the Tokyo Tribunal. All of those people had the right to choose their defence counsel. The ultimate objective of the list held by the Registrar (...) is to enable the indigent accused to have a fair trial by selecting a defender from those recognised by the Tribunal, according to the adjudged criteria, as having the expertise to assume the defence of the accused in the respect of his rights and the law applicable. Consequently, the Association internationale des avocats de la défense reiterates to the ICTR the heavy responsibility incumbent upon it to guarantee a fair trial to those who appear before it. The Association urges this honourable international Court to publicly proclaim its willingness to transcend short-term expedients and put forward legal rules relating to the choice of lawyers which will set an example for national communities seeking to follow the legal logic to its conclusion on this issue. With all due respect, the credibility of the court, concerning both acquittals and the sentences meted out, depends on it ».

Accountability, fairness and respect for human beings

Yet in order to arrive at this 'logical conclusion', the AIAD has provided a presentation of the facts and an analysis that while basically slanted towards its own point of view, nonetheless does provide a detailed and in-depth review of the subject, utterly free of the bitterness that has characterised the exchanges between Philpot and the Registrar. First of all, the context is outlined. « Since at least September 14th 1998, the Registrar has refused to appoint French or Canadian counsel selected by defendants who must answer charges of genocide, among other things, at the ICTR ». After analysing the press releases and correspondence between the opposing parties, the AIAD concludes uncompromisingly that: « This refusal to appoint Mr. Philpot has nothing to do with the law. It is a consequence of a »policy« whose basis indeed leaves room for questioning. It exemplifies and perpetuates the divide between the haves and the have-nots that international organisations are constantly criticising ». What is at stake in this argument is nothing less, according to the AIAD, than « the accountability of the legal process, the fairness of the trial itself and the complete respect for the rights of a human being, whatever he or she is charged with ». Moreover, there are four other contentious issues: i) Does an indigent accused have the right to freely choose his/her counsel from the Registry list? ii) Can the Registrar refuse to appoint counsel on the basis of nationality? iii) Can the Registrar refuse to appoint counsel on the basis of the legal system in which the counsel works? iv) Can the Registrar refuse to appoint counsel on the basis of the extent to which procedures engaged by the counsel are well-founded ?

A liberal interpretation, which follows historical trend

Both the Registrar and the plaintiff had already provided extracts from case law in their respective briefs that validate their positions. The former's being that there is no such thing as freedom of choice of counsel, and the latter's that it is a necessity. The AIAD has followed the same pattern of analysis of the « relevant legal literature », but with an exceptionally stringent methodical presentation, plus a remarkable review of the most advanced legal thinking in this area. The debate is focussed in the following way: « This controversy is not concerned with the rules on the registration of counsel on the Registrar's list. It is rather to decide whether the accused might freely choose a lawyer out of those registered on this list ». From this viewpoint, the AIAD deliberately rocks the boat and a evokes an historical trend,
stating that « the provisions relating to the appointment of assigned defence counsel should be interpreted liberally so that the fairness of the trial can best be guaranteed » and to ensure that the Tribunal « is safe from any criticism (...) On one hand those being tried at the two Tribunals are charged with the worst crimes that a human being can commit. On the other, the objective of national reconciliation must be borne in mind, as well as the fact that the entire international community feels involved in the legal process under way at these two tribunals. These factors unique to the ad hoc Tribunals have no equivalent whatsoever in the procedures governing the various national courts. These distinctions militate in favour of a generous interpretation of the relevant provisions to ensure that the rulings made by the two International Criminal Tribunals cannot be challenged on the pretext that the Registry, one part of the Tribunal - like the OTP, which is a separate and independent unit - imposed its choice of counsel on an accused. Future generations will be inspired by the work of the two ad hoc Tribunals as we were ourselves by the Nuremberg and Tokyo trials ». The AIAD acknowledges that « case law on the interpretation of the equivalent provisions of the International Pact [on civil and political rights] and the [European] Convention [of Human Rights] can be involved by some to support the advocacy of a restrictive interpretation ». However, this is soon followed by the observation that the special nature of international courts and the considerations they involve « have no parallel on a national level ». Consequently, « this militates against a restrictive interpretation » of the provisions in question.

One single criterion: the fairness of the trial

So the first question is: « Does an indigent accused have the right to freely choose his counsel from the Registry list at the ICTR ? » From the basic ICTR case law established on this issue in the Ntakirutimana case, in June 1997, and the Nyiramasuhuko case, in March 1998 - the AIAD first draws the lesson that « all the judges were in agreement that the will of the accused could not be denied except with reasonable and valid reasons ». It then studies the key phrase of the March 1998 ruling: « In taking his decision, the Registrar should also bear in mind, among other things, the Tribunal's resources, the established expertise and experience of the counsel, the criteria of geographical distribution and the balance between the world's main legal systems, without discrimination by age, sex, race or nationality of the candidates ». Considering that « the criteria of geographical distribution and the balance between the world's main legal systems are the source of the current controversy » the Association finds that « these criteria should not justify the refusal to appoint a counsel chosen by the accused. Moreover, they are in no way relevant to the only determining factor, the fairness of the trial. As a result, the appointment of defence counsel should be carried out without regard to such criteria ». Moreover, recalling the case law of the Tribunal for the former Yugoslavia, it is noted that « the questioning of the freedom for an accused to choose the counsel appointed to defend him/her seems to be unique to the ICTR ». A very recent ruling on this matter, on March 25th 1999 in the Simic case, is used by the AIAD to demonstrate the ICTY's generous interpretation of the rules on this issue, as advocated by the Association, and argue that the equivocal nature of the Statute on the question of freedom to choose counsel should consequently be made unambiguous.

From Nuremberg to the European Court

Once again the brief refers to the Nuremberg model, where the accused had the right to be represented by the lawyer of their choice, and where the nationality of these lawyers was never « a factor for exclusion », and they were even paid for by the Tribunal « because all the bank accounts belonging to the accused had been seized ». In the AIAD's eyes, « the Nuremberg Tribunal realised the importance of respecting the principle of the freedom to choose a defence lawyer so that the accused could not later allege that they had had an unfair trial ». In this regard, a book by Joseph Persico, published in 1994, is quoted: « The London Charter [which established the Military Tribunal at Nuremberg] stated unequivocally that defendants were to be allowed the counsel of their choice. It said nothing about excluding Nazi, Communist, or vegetarian lawyers, for that matter. The point, said Biddle [the American judge], was that these men must not be given the slightest excuse to protest afterward that they had been denied a fair trial (...) It was agreed that Nazi defense lawyers could be appointed ». The AIAD's conclusion is that « The same logic should prevail at the ICTR ». The AIAD has regularly called on the learned opinion of experts in the matter. In a letter attached to the brief, Professor Peter Leuprecht, former Human Rights Director and Deputy Secretary General of the Council of Europe, stated that « in practice, in every case, an indigent defendant can obtain the assistance of his or her counsel of choice at the European Court of Human Rights ». The case law of that Court, referred to by the Registrar and Jean-Paul Akayesu in their own briefs, is confined to one ruling, in the case of Croissant vs. Germany, in 1992. On this, the AIAD first stresses that « Mr. Croissant was facing accusations in no way comparable to those which the ICTR is addressing ». However, it does take from this case that the only reason for not taking the defendant's wishes into consideration is « if the interest of justice dictates it ». In the case of Jean-Paul Akayesu, which justifies its motion, the Association observed that « nothing indicates that the objective set is to ensure that the chances of a fair trial are maximised. The only criterion invoked by the Registrar, namely geographical distribution, is of a political nature ». Lambasting what it sees as an inappropriate reference to European Court of Human Rights case law from 1989 made by the Registrar in his brief, the AIAD asks: « What has a defendant charged with crimes open to life imprisonment got left but the relationship of trust on which his conviction that he can offer a full defence against the charges brought ? »

The natural trend of the law

Like the parties concerned, the authors of the amicus review the issue of freedom of choice of counsel in several countries. New food for thought is found, such as the conference held in Syracuse, in Italy, in 1991 where ten European countries and the USA and the former USSR met. The conference organisers commented that « the lack of an independent judiciary, the excessive power of the procuracy, the method of selection of individual procurators, the role of the procuracy, in criminal proceedings, and the procedural and organizational constraints on the role of defense counsel were at the root of the corruption of the administration of justice in these countries ». However, the work of this conference remains indicative. But freedom of choice of counsel is supported as a rule. The AIAD's suggestion is simple and revolves either around pre-established practical reality, or on what seems to be the natural trend of the development of the law. This has meant that « in Europe, freedom of choice of defence counsel is favoured ». Although the authors acknowledge that the four rulings on the issue given by the UN Committee for Human Rights concerning the interpretation of the International Pact on Civil and Political Rights « does not recognise the right of the accused to choose defence counsel », they stress even harder that despite everything, « this has not been done in the context of the crimes for which the international Tribunals are responsible for judging » and that consequently, « this is a very different context from that of an International Criminal Tribunals set up to punish the perpetrators of serious violations of international law ». The message again seeks to push the international tribunals towards providing an example: « International courts must act as a guide and a collective memory for the international community ». According to the AIAD, legal texts, case law and supporting analyses, the indigent accused has the right to choose defence counsel in France, England and Wales, Italy, and several Canadian provinces (Quebec, Ontario, Nova Scotia and Alberta). A ruling this year handed down by the Appeal Court of Ontario stated that « the accused should have the opportunity to fully trust the lawyer representing his/her interests, as trust is an essential part of any relationship, and concluded that the accused does have the right not only to retain the services of a lawyer, but also to a lawyer of their choice.
The State and the Court should not be involved in the defendant's choice of lawyer unless there are reasons in the public interest. The right to free choice is an important component of justice and of the perception of equity in the legal system. Criminal procedure is by nature contradictory, as it confronts the defendant with State authority. The basic right to free choice banishes the spectre of State or court interference in a personal decision, while opposing interests must be emphasised. The fact that the accused is unjustifiably denied the lawyer of his/her choice, detracts from the right to a fair trial. The right to free choice is subject to the criteria of the lawyer's expertise and consent to act, plus availability in a reasonable time scale, without being in a situation of conflicting interests ».