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The Right of the Accused to Self-Representation Before International Criminal Tribunals

Published online by Cambridge University Press:  27 February 2017

Nina H. B. Jørgensen
Nina H. B. Jørgensen*
Affiliation:
Special Court for Sierra Leone; International Criminal Tribunal for the Former Yugoslavia
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Extract

Conventional wisdom holds that a lawyer who represents himself has a fool for a client. Perhaps surprisingly, several of the highest profile accused persons before the International Criminal Tribunal for the Former Yugoslavia (ICTY) have received some form of legal training. Less surprisingly, it is precisely those accused who are asserting a right to self-representation. Slobodan Miloševic, for example, has a degree in law and by the end of his trial will have earned himself several years of advocacy experience. Vojislav Šešelj, a professor of law at Belgrade University, was somewhat affronted by the judge's suggestion that he should request legal assistance and exclaimed in open court, “I have never met a better lawyer dian I am in my whole life.” Are these accused fools to want to represent themselves? What about an accused with no legal experience at all who asserts this right in the face of charges of genocide and crimes against humanity? As one accused remarked when clarifying to the court that he did not wish to represent himself, “No. It would be insane if I did that ….”

Type
Notes and Comments
Information
American Journal of International Law , Volume 98 , Issue 4 , October 2004 , pp. 711 - 726
Copyright
Copyright © American Society of International Law 2004

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References

1 Prosecutor v. Šešelj, Status Conference, No. IT–03–67–PT, at 66 (Mar. 25, 2003) (transcript).

2 Prosecutor v. Blagojević, Pre–Trial Conference, No. IT–02–60–PT, at 258 (May 5, 2003) (transcript).

3 Moussaoui, Abd Samad, My Brother Zac, Guardian, Apr. 19, 2003, at 14Google Scholar, available in LEXIS, News Library, Major World Publications File; Gibeaut, John, Moussaoui May Speak for Himself, ABA J. E–Rep., June 14, 2002.Google Scholar

4 Gibeaut, supra note 3.

5 Denniston, Lyle, Appeals Court Rules US May Try Moussaoui; OK’s 9/11 Suspect’s Bid for Testimonies, Boston Globe, Apr. 23, 2004 Google Scholar, at A3, available in LEXIS, News Library, Major Newspapers File.

6 See Gibeaut, supra note 3.

7 Id.; see also Gélie, Philippe, Moussaoui gagne une manche devant la justice américaine, Le Figaro, Sept. 27–28, 2003 Google Scholar (stating that Judge Brinkema is sympathetic to the rights of the defense and may allow Moussaoui to call witnesses currently held as prisoners suspected of terrorism). Judge Brinkema ruled that the Department of Justice should allow Moussaoui to hear the evidence of detainees via satellite link, sparking a legal debate over whether there was any possibility of a fair trial if the U.S. government refused access to these witnesses for national security reasons. Westcott, Kafhryn, Moussaoui Case Tests US Justice, BBC News Online, Sept. 26, 2003, at <http://news.bbc.co.uk>Google Scholar .

8 Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827, annex, Art. 20(1) (May 25, 1993)Google Scholar, reprinted in 32 ILM 1203 (1993) (emphasis added in provisions cited). For the Statute as amended and the other ICTY documents cited below, see <http://www.un.org/icty> .

9 ICTY Statute, supra note 8, Art. 21.

10 Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, annex, Art. 20(4)(d) (Nov. 8, 1994)Google Scholar, reprinted in 33 ILM 1602 (1994). For die Statute as amended and die ICTR documents cited below, see <http://www.ictr.org> .

11 ICTR, Rules of Procedure and Evidence, June 29, 1995 Google Scholar, Rule 45 quater, as amended May 27, 2003.

12 Press Briefing by the Spokesman of the ICTR, Doc. ICTR/INFO–9–13–22.EN, Arusha (July 8, 2002).

13 ICTY, Rules of Procedure and Evidence, Feb. 11, 1994 Google Scholar, as amended Apr. 6, 2004 [hereinafter Rules]. Rule 80, “Control of Proceedings,” provides:

  • (A)

    (A) The Trial Chamber may exclude a person from die courtroom in order to protect the right of the accused to a fair and public trial, or to maintain the dignity and decorum of the proceedings.

  • (B)

    (B) The Trial Chamber may order the removal of an accused from the courtroom and continue the proceedings in die absence of the accused if the accused has persisted in disruptive conduct following a warning that such conduct may warrant the removal of the accused from the courtroom.

14 Statute of the Special Court for Sierra Leone (SCSL), as amended Jan. 16, 2002 Google Scholar, Art. 17. For the Statute and SCSL documents cited below, see <http://www.sc–sl.org> .

15 Rome Statute of the International Criminal Court, July 17, 1998 Google Scholar, Art. 67, UN Doc. A/CONF.183/9*(1998), 37 ILM 999 (1998), corrected through Jan. 16, 2002, at <http://www.icc–cpi.int> .

16 See also Statute for the Iraqi Special Tribunal, Dec. 10, 2003, Art. 20, available at <http://www.cpa–iraq.org>>Google Scholar (containing a similar provision).

17 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 14(3), 999 UNTS 171 (entered into force Mar. 23, 1976).

18 European Convention on Human Rights and Fundamental Freedoms, Nov. 4, 1950 Google Scholar, Art. 6(3), 213 UNTS 222 (entered into force Sept. 3, 1953), as amended by Protocol No. 11, May 11, 1994, ETS No. 155, 33 ILM 943 (1994).

19 American Convention on Human Rights, opened for signature Nov. 22, 1969, Art. 8(2)(d), 114 UNTS 123 Google Scholar (entered into force July 18, 1978).

20 GA Res. 43/173, annex, princ.11 (Dec. 9, 1988).

21 M. Bassiouni, Cherif, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235, 284 (1993)Google Scholar.

22 Strafprozeflordnung [StPO] §§140, 240.

23 Code de Procédure Pénale [C. pr. Pén.] (Partie Législative) Arts. 274, 317.

24 Promulgated State Gazette, No. 89, 1974, as amended.

25 C. PÉN. Art. 294.

26 Bekendtgørelse af Lov om Rettens Pleje, Justisministeriets lovbekendtgørelse, No. 752, Aug. 15, 1996, §731.

27 Criminal Procedure Act of the Federal Republic of Yugoslavia, as amended 2002, Art. 13, available at <http://www.legislationline.org>>Google Scholar . The code remains in force for Serbia.

28 Criminal Procedure Code for the Federation of Bosnia and Herzegovina, Art. 66, available at <http://www.legislationline.org>>Google Scholar .

29 Michael and Brian Hill v. Spain, Communication No. 526/1993, para. 3.2, in 2 Report of the Human Rights Committee, Un Gaor, 52d Sess., Supp. No. 40, UN Doc. A/52/40, available at <http://www.unhchr.ch/tbs/doc.nsf> .

30 Id., para. 14.2.

31 Croissant v. Germany, 237–B Eur. Ct. H.R. (ser. A) (1992).

32 Id., para. 27.

33 Id., para. 28.

34 Id.

35 Philis v. Greece, 1997–IV Eur. Ct. H.R. 1074.

36 Exceptions to the Exhaustion of Domestic Remedies (Articles 46(1), 46(2)(a) and 46(2)(b) of the American Convention on Human Rights), Advisory Opinion OC–11/90, 11 Inter–Am. Ct. H.R. (ser. A) para. 25 (1990).

37 Id., para. 26. For Article 8, see text at note 19 supra.

38 Exceptions to the Exhaustion of Domestic Remedies, supra note 36, para. 28.

39 See note 24 supra.

40 The Handbook of the Criminal Justice Process 313 (Mike McConville & Geoffrey Wilson eds., 2002).

41 Sprack, John, Emmins on Criminal Procedure 288 (9th ed. 1997)Google Scholar.

42 McKenzie v. McKenzie, [1970] 3 All E.R. 1034.

43 Faretta v. California, 422 U.S. 806 (1975).

44 Id. at 834–35 n.46.

45 Id.

46 McKaskle v. Wiggins, 465 U.S. 168 (1984).

47 Id. at l77.

48 Id. at 178.

49 Williams, Marie Higgins, Comment, The pro se Criminal Defendant, Standby Counsel, and the Judge: A Proposal for Better–Defined Roles, 71 U. Colo. L. Rev. 789, 790–91 (2000)Google Scholar.

50 Id. at 790 n. 15.

51 Martinez v. Ct. of Appeal of Cal., 528 U.S. 152, 162 (2000).

52 Id.; see also Sogabe, Kenneth S., Note, Exercising the Right to Self–Representation in United States v. Farhad: Issues in Waiving a Criminal Defendant’s Sixth Amendment Right to Counsel, 30 Golden Gate U.L. Rev. 129 (2000)Google Scholar.

53 Sogabe, supra note 52, at 150.

54 Prosecutor v. Barayagwiza, Decision on Defense Counsel Motion to Withdraw, No. ICTR–97–19–T (Nov. 2, 2000).

55 Id. at 8–11.

56 Id. at 10.

57 Prosecutor v. Milošević, Order Inviting Designation of Amicus Curiae, No. IT–02–54 (Aug. 30, 2001).

58 Id., Status Conference, No. IT–99–37–PT, at 6–7 (Aug. 30, 2001) (transcript); see also id., Order Inviting Designation of Amicus Curiae, supra note 57; id., Order Concerning Amici Curiae, No. IT–02–54 (Jan. 11, 2002).

59 Milošević, Status Conference, supra note 58, at 15–18.

60 Id., Hearing, No. IT–02–54, at 2797 (Apr. 10, 2002) (transcript).

61 Id., Order (Apr. 16, 2002).

62 Prosecutor v. Milošević, Submission from the Office of the Prosecutor on the Future Conduct of the Case in the Light of the State of the Accused’s Health and the Length and Complexity of the Case, No. IT–02–54 (Nov. 8, 2002) (not available as of Aug. 16, 2004, on the ICTY Web site).

63 Id., Oral Ruling by the Trial Chamber at 14,574 (Dec. 18, 2002) (transcript).

64 Id., Reasons for Decision on Assignment of Counsel, para. 40 (Apr. 4, 2003) (referring to Rule 80(B) of the Rules, supra note 13).

65 Id.

66 Prosecutor v. Milošević, Decision on Appeal by Amici Curiae, No. IT–02–54–AR73.6 (Jan. 20, 2004).

67 Id.,para. 3.

68 The final paragraph of Rule 73(C), see Rules, supra note 13, states: “If certification is given, a party shall appeal to the Appeals Chamber within seven days of the filing of the decision to certify” (emphasis added).

69 Milošević, Decision on Appeal by Amici Curiae, supra note 66, para. 4.

70 Id., para. 5.

71 Id., Separate Opinion of Judge Shahabuddeen, paras. 4–6.

72 Id., paras. 9–11, 13.

73 Id., para. 15.

74 Milošević, Decision on Appeal by Amici Curiae, supra note 66, para. 19 (footnote omitted).

75 Id., para. 20.

76 He stated, “It is possible that I will engage an assistant and a legal advisor who will never appear on my behalf in this courtroom. They will never appear in this courtroom. I retain this exclusivity of appearing in the courtroom on the side of the accused.” Prosecutor v. Šešelj, Initial Appearance, No. IT–03–67, at 6 (Feb. 26, 2003) (transcript).

77 Prosecutor v. Šešelj, Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence, No. IT–03–67–PT (Feb. 28, 2003).

78 Id., para. 11, quoted in Prosecutor v. Šešelj, Decision on Prosecution’s Motion for Order Appointing Counsel, No. IT–03–67, paras. 4, 22 (May 9, 2003).

79 Šešelj, Decision on Prosecution’s Motion for Order Appointing Counsel, supra note 78.

80 Id., para. 30 (footnote omitted).

81 Id., para. 28.

82 Prosecutor v. Šešelj, Decision of the Registrar Assigning Standby Counsel, No. IT–03–67–PT (Sept. 5, 2003).

83 See id., Decision of the Deputy Registrar (Feb. 16, 2004).

84 Id.

85 Rule 44(A) states, in part:

[A] counsel shall be considered qualified to represent a suspect or accused if the counsel satisfies the Registrar that the counsel is admitted to the practice of law in a State, or is a University professor of law, speaks one of the two working languages of the Tribunal, and is a member of an association of counsel practising at the Tribunal recognised by the Registrar.

86 On the first day of the so–called Civil Defence Forces trial before the Special Court for Sierra Leone (June 3, 2004), just after the prosecution’s opening speech, Samuel Hinga Norman, minister of the interior of Sierra Leone when indicted, announced his intention to represent himself. In its Decision on the Application for Self–Representation, No. SCSL–04–14–T–125, para. 9 (June 8, 2004), the trial chamber held that the “right to self representation by an accused person is a qualified and not an absolute right and particularly so because Article 17(4)(d) provides that legal assistance could be assigned . . . in ‘any case where the interests of justice so require’.” In determining whether Norman should be permitted to represent himself, the Court considered various factors, including the potential effect on the rights of Norman’s two co–accused, the assertion of the right to self–representation on the eve of trial, the function of defense counsel, the complexity of the case, the public interest in the expeditious completion of the trial, and the potential for disruption to the Court’s timetable. The trial chamber decided that in the circumstances, the right to self–representation could be granted only with certain qualifications or preconditions and that the assistance of counsel in some capacity was required. In a letter of June 9, 2004, Norman informed the Court that if his right to self–representation could be exercised with the assistance of counsel of his own choosing, or “counsel in the interest of justice,” then this team of counsel should be composed of members of his former defense team. The Court subsequently ordered the assignment of standby counsel to perform a role similar to the one set out in the Šešelj case, see id., Consequential Order on Assignment and Role of Standby Counsel, No. SCSL–2004–14–T–133 (June 14, 2004)Google Scholar. On June 15, 2004, the registrar appointed four standby counsel, including two members of Norman’s former defense team, Order for Assignment of Standby Counsel for Samuel Hinga Norman. The trial has proceeded with a form of hybrid representation by Norman and standby counsel.

87 Šešelj, Decision on Prosecution’s Motion for Order Appointing Counsel, supra note 78, para. 20.

88 Id., para. 21.

89 Prosecutor v. Tadić, Appeals Judgment, No. IT–94–1–A (July 15, 1999).

90 Id., para. 48.

91 190 F.3d 1097 (9th Cir. 1999).

92 Id. at 1106.

93 Id. at 1107–08.

94 Zappalà, Salvatore, Human Rights in International Criminal Proceedings 64 (2003)Google Scholar.

95 Prosecutor v. Blagojević, Decision on Independent Counsel, No. IT–02–60–T (July 3, 2003).

96 Michael and Brian Hill v. Spain, supra note 29, Individual Opinion of Eckart Klein.

97 Zappalà, supra note 94, at 63.

98 Prosecutor v. Akayesu, Appeals Judgment, No. ICTR–96–4, para. 59 (June 1, 2001).

99 Parren v. State, 523 A.2d 597, 599–602 (Md. 1987); see also Howard, Joshua L., Hybrid Representation and Standby Counsel: Let’s Clear the Air for the Attorneys of South Carolina, 52 S.C. L. Rev. 851, 864 (2001)Google Scholar.

100 Bassiouni, supra note 21, at 283.

101 Id. at 283–84.

102 People v. Gordon, 688 N.Y.S.2d 380, 382 (Sup. Ct. 1999), quoted in Colquitt, Joseph. A., Hybrid Representation: Standing the Two–Sided Coin on Its Edge, 38 Wake Forest L. Rev. 55, 63 (2003)Google Scholar.

103 Šešelj, Decision on Prosecution’s Motion for Order Appointing Counsel, supra note 78, para. 23.