By Sophie van Leeuwen
This week, the Assembly of States Parties (ASP) is talking about the ICC budget in New York. According to defence lawyer Nick Kaufman, it’s disproportional.
Q: It looks like you will lose 23% of your budget in 2015. Are you surprised?
A: “One of the fundamental principles underpinning a fair trial is the equality of arms between prosecution and defence. For every prosecution, there is a corresponding need for an effective defence. This is a non-negotiable requirement.
“As practicing defence counsel at the ICC, responsible for several legal aid cases, I have never been consulted as to my annual budgetary requirements. The prosecutor makes her yearly demands and, invariably, those demands are met.
“The legal aid budget for the defence, however, is dictated by the Registry, and the underlying trend is a progressive cut in defence salaries and defence investigative resources.”
Q: So? What would you like to change?
A: “The prosecutor is at liberty to dictate the course of her investigations; to invest, for example, countless resources in her much vaunted ‘technological advances’.
“The defence, on the other hand, has to request permission from the Registry for every procedural step. This is a wholly unacceptable state of affairs and should, particularly, be re-examined in light of recent developments at the Court.”
Q: Is it unacceptable? Would it hurt justice?
A: “The Registry’s required independence has been tainted recently by the demands placed on it in the Bemba contempt proceedings. In this case, the Registrar has acted as both the custodian of Court exhibits and the financer and executor of investigative steps, at the combined request of the single judge and prosecution.
“This raises serious questions as to a conflict of interest, especially when the funding of a defence investigation is not a prerogative, as is the case with the prosecutor, but subject to the discretion of the Registry.”
Q: How would the budget cuts affect you?
A: “The institutionalised prejudice towards the defence exists and is ignored. By way of example, apart from the cost of a flight ticket and a basic living allowance, defence investigations are never funded in advance and mission expenses are reimbursed with a delay of several months.
“As a result, defence lawyers are forced to fund missions – including witness expenses, food and accommodation – out of their own pocket. Just recently, I had to advance a loan of 1000 euros to my own legal assistant in order to prevent him from exceeding his overdraft while on mission in Ghana.
“These are just some of the many difficulties facing the defence, which are being ignored. The ASP does not need to hear about the achievements of the Court. It needs to deal with the real live issues affecting the administration of justice.
“And solutions exist. Cutting the need for unnecessary court staff attendance at self-congratulatory events such as ASP13 and ensuring the more prudent funding of publicity and outreach would generate funds which could benefit the legal aid budget.”