Batya Friedman: Do you think in, in a future tribunal would you want to keep the overarching structure? The defense sits in a sort of not full time employees of the tribunal but clearly not outside the tribunal either; sort of in an intermediary space. Do you think that that’s a good overall, a good working structure?
BF: Or do you think something where they were more akin to the prosecution so that they were, you know, salaried and long-term employees of the tribunal on the side of defense? Could that kind of structure w-, would work better?
Okay, I’m, I'm, I'm not sure. First of all let me say I’m not generally in favor of ad hoc tribunals and I’m happy that there is now, you know, after much struggle and remaining struggle certainly over the crime of aggression, there is an ICC established.
Because I think that, you know ad hoc tribunals whether established by the Security, established by the Security Council or, or perhaps or even some that are part UN and part local, they may be better.
I don’t know enough about Cambodia or Sierra Leone, but I certainly feel that ad hoc tribunals by a Security Council are a stopgap measure and the importance of not just the, the rules and statute but the rules of evidence and procedure.
You know, there’s never any opportunity to have any input from the GA for example into what they are, and so that the rules of this tribunal as opposed to the rules of the, the ICC were never discussed or argued about or, or, or concluded by, you know, the, the member states of the UN.
It was five plus whoever the per-, non-permanent members were – so that’s on that question of ad hoc tribunals. I’m not looking for, I’m not, I'm not, I'm not holding ad hoc tribunals in general up as a model.
But I think that there's been (___), in the, in the, in the PrepCom discussions with the ICC there was a lot of debate of whether defense should be a pillar of the, the tribunal.
Look, I think that the defense, in order to carry out its, its ob-, its objective but also its professional responsibility both in national jurisdictions and as defined by what it is supposed to do under international law, needs to maintain independence. Now, so I don’t have, I’m interested in a structure that maintains that independence.
I don’t have an intelligent comment to make now about whether salary et cetera, et cetera, and you know, but I think that there has to be at least a recognition that defense is a full time job, which is not necessarily the recognition here. The defense needs, minimally, equality of resources, which is not the situation in the ICTR.
I’m aware of a prior decision Kayishema and Ruzinda-, Ruzinda-, Ruzindana which said that, “Equality of arms does not make, mean equality of resources.” I think that’s wrong. We have to have at least the same resources, right.
And I think that, that those, that those are the issues to me that are important. How it’s structured is, is, is another, is, is another question but I think that that’s what we need and I do know certainly here – I don’t know about The Hague, I don’t know about Sierra Leone or Cambodia – but I know here there is no equality of resources.