54.    […] The Trial Chamber did not consider the hardship element when ordering the Counsel to withdraw from the Appellant’s representation and the Appeals Chamber is not convinced that it was obliged to do so to the point where such an omission would constitute an abuse of discretion. The Appeals Chamber recalls that the question of prejudice was indeed discussed by the Trial and Appeal Chambers in their previous decisions related to the impact of the joinder on the Appellant’s right to have a counsel of his choice.[1] In the present instance, there is nothing that would oblige the Trial Chamber to consider this factor in relation to the conflict of interest.

55.    […] It further finds that, even though the replacement of counsel is generally likely to cause obvious inconveniences, including a delay in the proceedings, if the conflict of interests regarding the representation of the Appellant and Ademi is not resolved at the present stage of the proceedings, the administration of justice may be seriously prejudiced and have much more disastrous consequences in future.[2] The Appeals Chamber also notes that no imminent date has been established for the commencement of the trial in this case and, considering the current trial schedule of the International Tribunal,[3] it is not likely to commence within the next six months which the Appellant affirms to be necessary for the new counsel to get familiarized with the case.

At paras 11-14, the Appeals Chamber recalls that such exceptional circumstances, assessed case by case, might be constituted by a breakdown of trust, but not by an accused’s refusal to cooperate and, in the present case, by the alleged conflict between the Appellant and his Co-Counsel on issues of legal strategy.  

11. Under Article 19(A)(ii) of the Directive the Registrar may, in exceptional circumstances and at the request of lead counsel, withdraw the assignment of co-counsel.[1] The burden of proof of existence of such circumstances squarely lies on lead counsel.[2] The Appeals Chamber emphasizes that each case must be considered on its own and that what constitutes exceptional circumstances justifying a request for withdrawal may vary from one case to another. In addition, exceptional circumstances justifying withdrawal of a co-counsel might be substantially different from those applicable to withdrawal of a lead counsel.

12. The Appeals Chamber considers that the alleged conflict between the Appellant and his Co-Counsel on issues of legal strategy does not constitute an exceptional circumstance justifying a withdrawal of Co-Counsel. The Appeals Chamber notes that, in most decisions holding that a breakdown of trust between the accused and his legal representatives constituted an exceptional circumstance justifying the withdrawal of assignment, the breach of trust was attributable to one or more of the following circumstances: alleged incompetence or lack of knowledge of the Rwandan context and history; a lack of initiative in the defence of the accused; an exceptional workload incompatible with other professional commitments; a breach of professional responsibilities, including the obligation to communicate with the client; and misconduct or manifest negligence.[3] No allegations of this kind were made against Co-Counsel in the present case. Therefore, the Appeals Chamber is not convinced that the Registrar’s Decision and the President’s Decision contradict the Tribunal’s jurisprudence.

13. The Appeals Chamber recalls that, according to the jurisprudence of both the Tribunal and the ICTY, an accused’s refusal to cooperate with his lawyers does not constitute an exceptional circumstance warranting the Registrar’s withdrawal of assigned counsel.[4] More precisely, an accused does not have the right to unilaterally destroy the trust between himself and his counsel, or to claim a breakdown in communication through unilateral actions, in the hope that such actions will result in the withdrawal of his counsel by the Registrar.[5] A lack of trust in counsel based on disagreements in approach to one’s defence strategy is distinguishable from a lack of trust due to a breach by counsel in fulfilling his professional and ethical responsibilities in the course of representation.[6] Thus, a divergence of opinion as to the defence strategy cannot in itself justify that there is a loss of trust in the counsel’s abilities or commitment to the case. It is even more so when the divergence is between an appellant and a co-counsel, whose mandate is to assist the lead counsel.[7]

14. In the present case, Lead Counsel did not provide the Registrar with any specific complaints regarding the performance of Co-Counsel that may have warranted her disqualification on the grounds of ineffective assistance or breach of professional duties. The Appeals Chamber rejects the Appellant’s argument that it is sufficient “to state in broad terms” that the trust and confidence have broken down[8] and, consequently, finds that it was open to the Registrar and the President to conclude that the Appellant’s request for withdrawal was not justified.[9]

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BEING SEISED of a motion filed on 30 November 2017, in which Robinson seeks to withdraw as counsel for Ngirabatware, citing regulations governing professional conduct of defence counsel related to discontinuation of representation and conflict of interest;[1]

 […]

NOTING that, pursuant to Rule 43(G) of the Rules, under exceptional circumstances, at the request of assigned counsel, the Appeals Chamber may instruct the Registrar to replace the counsel upon good cause being shown and after being satisfied that the request is not designed to delay the proceedings;

CONSIDERING that the information contained in Annex A to the Motion demonstrates the existence of exceptional circumstances, which constitute good cause for the replacement of Robinson as counsel for Ngirabatware;