"Decisions"

26 November and 19 December 2001
Bruno Cathala, Deputy Registrar and Hans Holthuis, Registrar

Procedural Background

• From January 1996 to January 2000 and from September 1998 to November 1999 respectively, Mr. Rodney Dixon, Attorney-at-Law from London, and Mr. Stéphane Bourgon, Attorney-at-Law from Repentigny, Québec, were legal advisers to the Office of the Prosecutor of the Tribunal for issues of international, humanitarian and comparative law.

• In November 1999, Mr. Bourgon was appointed Chef de Cabinet at the Office of the President. His assignment ended on 31 December 2001.

• On 19 September 2001, Mr. Fahrudin Ibrisimovic, Defence Counsel assigned to Amir Kubura, filed a Request to have Mr. Dixon assigned as co-counsel to the accused.

• On 11 and 23 October 2001, Mr. Dixon sent two facsimiles to the Office of Legal Affairs and Detention Matters of the Tribunal (hereinafter "OLAD"), in which he stated that during his assignment with the Office of the Prosecutor he had provided advice, drafted documents on legal issues and assisted with two cases against accused relating to the central Bosnia region. He indicated however that he had not participated in investigations or presented evidence in court and acknowledged that he could not be assigned to represent the accused if there was a conflict of interest1. Still, Mr. Dixon submitted that he would in fact be faced with no conflict of interest in representing the accused nor any unfair advantage as a result of his previous work with the Office of the Prosecutor. He agreed to respect the confidentiality of any information to which he had had access whilst working with the Office of the Prosecutor and asserted that the burden of establishing a conflict of interest would rest with the Prosecutor if she objected to his assignment.

• On 10 October and 1 November 2001, the Prosecution sent two internal memoranda to OLAD in which it claimed that, in view of Mr. Dixon's previous involvement in the prosecution of a number of central Bosnia cases and his knowledge of the strategy and inner workings of its Office, his assignment as Defence counsel would result in a conflict between his on-going obligations of confidentiality towards the Office of the Prosecutor and his obligations to his client. The Prosecution contended that Mr. Dixon's assignment might adversely affect the appearance of justice and the integrity of the proceedings before the Trial Chamber. It submitted that because Mr. Dixon was formerly a staff member of the Office of the Prosecutor, it would always be possible to claim that the accused might be unduly affecting the interests of justice by seeking legal remedy against future Judgements.

• Mr. Edina Residovic, Defence counsel assigned to Enver Hadzihasanovic, filed a Request, received on 30 November 2001, that Mr. Bourgon be assigned co-counsel to the accused.

• On 20 November 2001, Mr. Bourgon sent a letter to the Registry in which he claimed that during his tenure at the Office of the Prosecutor he had provided and developed general international legal arguments but without reference to any specific factual information. He stated that as Chef de Cabinet he had access to information on the judicial management and administration of the Tribunal but not on any case before the Chambers. Mr. Bourgon agreed to respect the confidentiality of any information and presented a detailed affidavit in which he also stated that he would have no conflict of interest in representing Enver Hadzihasanovic nor any unfair advantage as a result of having worked with the Office of the President. He contended that the burden of establishing a conflict would rest with the President and the Prosecutor should they object to his assignment.

• On 26 November 2001, after having been informed of Mr. Dixon's previous work with the Office of the Prosecutor and Mr. Bourgon's previous assignment with the Office of the Prosecutor and that of the President, the two co-accused agreed in writing to be represented by Mr. Dixon and Mr. Bourgon. The two co-accused stated that they would not make a representation based on the fact that Mr. Dixon had been a staff member of the Office of the Prosecutor and that Mr. Bourgon had worked as a staff member at the Office of the Prosecutor and that of the President.

• On 12 December 2001, the President sent a memorandum to the Deputy Registrar and the Registrar in which he informed them that he saw no reason why Mr. Bourgon's name could not appear on the Rule 45(B)2 list of Defence Counsel willing to represent suspects or accused before the Tribunal.

• On 18 December 2001, the Prosecutor sent a memorandum to OLAD in which she submitted that it might be inappropriate for Mr. Bourgon to defend Enver Hadzihasanovic because of his previous involvement in a number of central Bosnia cases.
  

The Decisions

The Deputy Registrar and the Registrar granted the Requests for the assignment of Mr. Dixon and Mr. Bourgon effective 20 September 2001 and 2 January 2002.

The Reasoning

• The Deputy Registrar and the Registrar noted that the indictment had been confirmed more than 18 months after Mr. Dixon and Mr. Bourgon had left their assignment with the Office of the Prosecutor. Both considered that one might assert the possible existence and extent of a conflict of interest only at the trial stage. The Registrar added that establishing whether or not there is a conflict of interest is in the interest of the rights of the accused and justice and that an accused who requests the assignment of Defence counsel and a party which challenges the assignment must therefore substantiate such submissions.

• The Deputy Registrar and the Registrar considered that Mr. Dixon and Mr. Bourgon had provided detailed information on their prior involvement with the Office of the Prosecutor and of the President and that the existence of a conflict of interest was not apparent. The Deputy Registrar specified that the Prosecutor had not provided any specific information pertaining to the level of Mr. Dixon's involvement nor any reference to concrete knowledge which could result in such conflict.

• Furthermore, the Registrar noted that there are at least three former or present staff members of the Office of the Prosecutor or the Chambers whose names appear on the list of Counsel willing to represent suspects or accused before the Tribunal and that it does not appear unethical for advocates to work for Chambers, the Prosecution or the Defence. The Deputy Registrar and the Registrar concluded that the current information on the prior involvement of Mr. Dixon and Mr. Bourgon did not "show a conflict of interest which could be reasonably expected to affect the interests of justice". However, both underscored that if it became apparent at a later stage that there was a conflict of interest, the withdrawal of Mr. Dixon and Mr. Bourgon "from an assignment would have to be considered"3.
  

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1. Article 9(2) of the Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal (IT/125 of 12 June 1997) provides that "[i]n the course of representing a Client, Counsel must exercise all care to ensure that no conflict of interest arises."
2. "A list of counsel who, in addition to fulfilling the requirements of Rule 44, have shown that they possess reasonable experience in criminal and/or international law and have indicated their willingness to be assigned by the Tribunal to any person detained under the authority of the Tribunal lacking the means to remunerate counsel, shall be kept by the Registrar."
3. See also The Prosecutor v. Mehmed Alagic ("Central Bosnia"), Case No. IT-01-47-PT, Registrar, Decision, 24 September 2001, in which the Registrar decided to assign temporarily Mr. John R.W.D. Jones, who was employed by the Tribunal as an Associate Legal Officer in Chambers from January 1995 to September 1997 and from August 1998 to May 1999, as co-counsel to the accused as of 7 September 2001 for 106 days.