The ICTY's Continuing Struggle with the Right to Self-representation
The ICTY's Continuing Struggle with the Right to Self-representation
Abstract and Keywords
The right to legal assistance is a fundamental safeguard for a fair trial. There is no international legal standard as to how to deal with the waiver of legal representation. Nonetheless, the fact that the ICTY allowed alleged war criminals such as Milošević, Šešelj, and Karadžić to represent themselves has generated criticism. This chapter outlines the problems the ICTY has faced, and is still facing, in accommodating an accused's wish to conduct his or her own defence. For instance, should it allow the self-represented accused the assistance of legal advisors and provide legal aid to such accused? It scrutinizes the commendable efforts that the ICTY has made to uphold this right. But it also addresses the flaws in legal reasoning and inconsistencies, even within the course of a single case, that have accompanied the decisions of the ICTY allowing self-representation.
It has been noted that the International Criminal Tribunal for the Former Yugoslavia (ICTY) has a troubled relationship with defence counsel.1 Without a doubt, however, this Tribunal has an even more troubled relationship with accused who do without such counsel: so-called pro se 2 accused who represent themselves in their proceedings, such as Slobodan Milošević and Radovan Karadžić. The fact that the right to self-representation and its consequences is already touched upon by others in this book3 illustrates the potential influence of this issue on the ICTY's legacy. This is because, first, at no other international criminal court has the right to self-representation been invoked and granted as often as at the ICTY. At the International Criminal Tribunal for Rwanda (ICTR), this right was only granted to the accused, Akayesu, solely during the sentencing phase of his trial.4 No other accused has been allowed self-representation during the trial proceedings at the ICTR.5 The Special Court for Sierra Leone (SCSL) did not allow accused to go unrepresented.6 (p.346) At the International Criminal Court (ICC), so far, no self-representation requests have been made.
The second reason why the ICTY's approach to self-representation will influence its legacy is because many of its decisions regarding this right have been controversial. The ICTY's ambiguous approach to self-representation requests has gained a lot of criticism over the years. No international court has taken as many differing—and one might say experimental—approaches as the ICTY has in this respect. It was noted that ‘the decision on assigned counsel [for the self-represented accused, Milošević, in September 2004] may be one of those elements of the ICTY jurisprudence which cast a shadow over its work and further contributes to the Tribunal's negative image in parts of the former Yugoslavia’. The Tribunal's handling of the Milošević case and its approach regarding his right to self-representation ‘may affect the Tribunal's legacy, both in public opinion and in legal circles’.7 It has also been held that because Milošević was allowed self-representation, his trial failed, and ‘the integrity and professional competence of the Tribunal itself was impugned’.8 However, the main cause of his trial's failure was his death before the proceedings were completed and before a verdict could be issued. Critique has not just come from scholars. The issue of self-representation has made one Appeals Chamber judge resign from the bench, because he deemed the trial could no longer be fair.9 The inconsistency of the ICTY's legal reasoning when confronted with self-representation requests has arguably affected its legal credibility.
More and more provisions are made to support pro se accused. In 2010, the ICTY provided funding for eight defence team members for Karadžić during the pre-trial phase.10 In addition, a (standby) counsel was appointed, to be prepared to step in should Karadžić obstruct the fair and expeditious conduct of the proceedings. This counsel has support staff of his own. These developments invite the question as to the degree to which a self-represented accused in international criminal proceedings genuinely conducts his or her own defence, and the degree to which the right to legal assistance can genuinely be waived at the ICTY.
It is not surprising that this subject matter gives rise to controversy. Lawyers from different legal systems have different ideas on this right. Some are generally opposed to allowing self-representation in international criminal trials.
(p.347) This chapter analyses the handling of the right to self-representation by the ICTY. It does so not by covering the developments in each self-representation case in a chronological manner, but by separately discussing particular issues concerning self-representation requests. The international legal standards as to this right are examined first. The rationales for opting for self-representation are explored, as well as the disadvantages of an accused's desire to self-represent. Furthermore, the actual parameters to self-representation applied by the ICTY, and the modalities when allowing self-representation requests, including legal aid schemes, will be scrutinized.
No doubt, the ICTY's failure to develop a consistent and functional approach to be followed by other (international) courts constitutes a missed opportunity. But the ICTY's generous efforts to accommodate self-representation do deserve praise.
2. The right to self-representation as a minimum guarantee
The right to self-representation is one of the minimum guarantees of the right to a fair trial and is included as such in human rights treaties and statutes of international criminal courts.11 It is incorporated in Article 21(4)(d) of the Statute of the ICTY. The wording of Article 21 is very similar to that of Article 14 of the International Covenant on Civil and Political Rights (ICCPR). The accused is entitled to conduct his or her defence in person (pro se), or through legal assistance of his or her choice, and to have legal assistance assigned where the interests of justice so require, without payment, if the accused lacks sufficient means. One legal basis for the ICTY to restrict the right to self-representation is rule 45ter of the ICTY Rules of Procedure and Evidence (RPE). It provides that, in the interests of justice, the Trial Chamber may instruct the registrar to assign counsel to represent the interests of the accused. The adoption of this rule seems unnecessary, given that Article 21(4)(d) of the ICTY Statute already provides for this.
In principle, when opting for self-representation, the accused waives the right to defence counsel, or to legal representation. The right to legal assistance is considered a fundamental human right in criminal proceedings. Any waiver of a fundamental right should be made voluntarily, knowledgeably, and unequivocally. A proper opportunity to reflect on a waiver of legal assistance must be provided to ensure that the defendant is ‘fully aware of the legal consequences of such a waiver’.12
(p.348) Different legal systems have adopted differing approaches to self-representation. Initially in Milošević, the Chamber would not impose defence counsel upon the accused against his wishes, since this was considered ‘not normally appropriate in adversarial proceedings’ such as those at the ICTY.13 Not all legal systems allow a waiver of the right to legal assistance in criminal proceedings. Generally speaking, common law systems are more open to self-representation than civil law systems.14 In the United States, if an accused is mentally competent to stand trial and has made a knowledgeable, voluntary, and unequivocal waiver, he can represent himself in criminal proceedings.15 Autonomy is deemed an important value in the adversarial proceedings of the common law system.16 Civil law systems are more apt to prefer mandatory assistance over self-representation, particularly in complicated criminal cases carrying a heavy penalty.17
Nonetheless, common law jurisdictions increasingly restrict self-representation where alleged sex offenders are concerned.18 For obvious reasons, it can be very painful for victims of such crimes to be cross-examined by the alleged perpetrator. This is also an issue at international criminal courts. But one can also see the opposite development. In the essentially civil law jurisdiction of the Netherlands, the Supreme Court recently reasoned that accused are allowed to represent themselves as long as their waiver of the right to legal representation is unequivocal, knowledgeable, and voluntary. In complex cases, the court must nonetheless inform the accused (repeatedly) of the added value of legal representation.19
No international legal standard governs the process of addressing requests to assert the right to self-representation. The right of an accused to defend himself is the first option discussed in the general comments on Article 14 of the ICCPR. There it is stated that ‘when the accused does not want to defend himself in person…he should have recourse to a lawyer’.20 It is also noted that ‘the Committee has not always received sufficient information concerning…how the legal system assures his right either to defend himself in person or to be assisted by counsel of his own choosing’.21
Perhaps because most accused are represented by counsel, the body of case-law from the Human Rights Committee (HRC) and the ECtHR on self-representation is not large.
In Maxwell v UK, the accused was refused legal aid on appeal and therefore was left with no choice but to represent himself. Letting an appellant ‘present his own (p.349) defence unassisted before the highest instance of appeal’22 in a case involving a heavy penalty (five years’ imprisonment) violated Article 6(3)(c) of the ECHR. ‘Given the nature of the proceedings, the wide powers of the High Court, the limited capacity of an unrepresented appellant to present a legal argument and, above all, the importance of the issue at stake in view of the severity of the sentence…the interests of justice required that the applicant be granted legal aid for representation at the hearing of his appeal.’23
The applicant in Galstyan v Armenia argued that he had been ‘tricked into refusing a lawyer’.24 The ECtHR was not convinced, and concluded that self-representation was the accused's own choice. It reiterated ‘that the waiver of a right guaranteed by the Convention—insofar as it is permissible—must be established in an unequivocal manner and must be attended by minimum safeguards commensurate with its importance’.25 Furthermore, ‘it will normally not be contrary to the requirements of this Article [6(3)(c)] if an accused is self-represented in accordance with his own will, unless the interests of justice require otherwise’.26 Because the case concerned a minor offence with a maximum sentence of 15 days of detention, justice did not require mandatory legal representation. Article 6 had not been violated.27
Shulepov v Russia concerned a defendant who claimed never to have waived his right to counsel. He was represented in the first-instance proceedings.28 In the appeal proceedings, which were conducted by videoconference,29 he was left to represent himself. Given the penalty involved, Russian law required a defence counsel.30 The Court reiterated its findings in Maxwell v UK as to self-representation.31 Nevertheless, ‘neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial’.32 Such a waiver, however, must be unequivocal ‘and must not run counter to any important public interest’.33 The seriousness of the charges and the severity of the sentence made the assistance of a legal aid lawyer at this stage ‘essential’. As the appeal proceedings involved both legal and factual issues, and thus a full review, a lawyer ‘could effectively draw the appeal court's attention to any substantial argument in the applicant's favour, which might influence the court's decision’.34 The ECtHR does not seem to have ruled out that a defendant may represent himself on appeal. But in a case (p.350) involving a heavy penalty, it seems to favour legal assistance in some form, to protect the interests of justice.
In Foucher v France, the ECtHR ruled that an accused who chooses to conduct his own defence in criminal proceedings should have access to his case file and receive a copy of it in order to prepare an adequate defence. Withholding this information from a self-represented accused violates the principle of equality of arms. As the French court of first instance accurately put it, ‘the value of such access is sufficiently demonstrated by the use legal representatives make of it’.35
Three out of the four aforementioned ECtHR cases involved individuals representing themselves against their wish. These cases may be of little value for international courts faced with unequivocal self-representation requests. Somewhat undeservedly,36 the ECtHR case of Croissant v Germany has served as a legal basis at international criminal courts for assigning counsel to self-representing defendants unwilling to be represented by counsel.
In Croissant, the ECtHR held that an appointment of a defence counsel running counter to the wishes of the accused ‘will be incompatible with the notion of fair trial under Article 6 para. 1 if…it lacks relevant and sufficient justification’.37 The court's considerations in Croissant to appoint a third lawyer against the wishes of the defendant, who had two lawyers of his own choosing already, were that ‘having regard to the subject matter of the trial, the complexity of the factual and legal issues involved and the defendant's personality, he offered the best guarantees of an adequate defence’.38 These were ‘relevant and sufficient’ grounds to the ECtHR, the accused's wishes notwithstanding.39
It has been argued that protecting the accused's interests against his own decisions can only be justified in exceptional cases, such as when the accused is of unsound mind.40 The ECtHR's threshold for justifying assigning counsel against the wishes of the defendant seems to be relatively low. The ECtHR allows judges ‘to decide whether the interests of justice require that the accused be defended by Counsel appointed by them’.41 Factors allowing restrictions to the right to self-representation in the form of mandatory legal assistance include the complexity of the proceedings, the capacity of the accused to present legal arguments, and the sentence involved.
All cases before the ICTY involve a heavy maximum sentence. In addition, they are generally extremely complex in terms of issues of fact and law involved. In principle, therefore, the jurisprudence of the ECtHR would seem to allow international courts to deny requests for self-representation and require that, ‘in the (p.351) interests of justice’, an accused is represented by counsel. Nonetheless, the ICTY has yet to refuse a self-representation request because of the complexity of the proceedings or because of the heavy maximum sentence involved.
An argument against restricting the right to self-representation in international criminal cases is the HRC decision of Hill v Spain.42 The self-representation request was denied despite the insistence of the accused. Spanish law did not allow self-representation. The HRC concluded that the accused's ‘right to defend himself was not respected, contrary to article 14, paragraph 3(d), of the Covenant’.43 While the ECtHR stressed that the complexity of proceedings and the severity of the potential sentence could be factors allowing mandatory assistance in criminal proceedings, the HRC did not touch those issues in Hill v Spain. Even so, since this case involved an unequivocal request for self-representation, it is particularly relevant for the ICTY. This was confirmed in 2003 in the Milošević case.44 As a reason not to (at first) impose counsel on Milošević, the Trial Chamber emphasized that while it must ensure pursuant to Article 20 of the Statute that a ‘trial is fair and expeditious, a Trial Chamber must also ensure that the rights of the accused, as set out in Article 21 of the Statute, are not infringed’.45 According to the Appeals Chamber in 2004 in Milošević, ‘given the text's binary opposition between representation “through legal assistance” and representation “in person”, the Appeals Chamber sees no reasonable way to interpret Article 21 except as a guarantee of the right to self-representation.…The drafters of the Statute clearly viewed the right to self-representation as an indispensable cornerstone of justice.’46 The Appeals Chamber utilized another argument against imposing counsel on Milošević from the US Supreme Court's ruling Faretta v California, stating that ‘an unwanted counsel “represents” the defendant only through a tenuous and unacceptable legal fiction’.47 It concluded that accused persons at the ICTY ‘have the presumptive right to represent themselves notwithstanding a Trial Chamber's judgment that they would be better off if represented by counsel’.48
It was not wrong to allow Milošević to represent himself. Even so, it would have also been legitimate in the light of the case-law of the ECtHR to have assigned counsel to him against his wishes. However, the negative consequences of assigning counsel to an unwilling accused may outweigh the requirements of a fair trial. But (p.352) the reason that made the Chamber finally assign counsel to Milošević lacked legal precedent.49
The ICTY has also allowed self-representation in appeal proceedings. The Appeals Chamber in Krajišnik stressed that ‘it may never be in an individual's interest to represent himself, either at trial or at appeal, but he nonetheless has a “cornerstone” right to make his own case to the Tribunal’.50 Krajišnik was nonetheless allowed the assistance of counsel exclusively for the purpose of filing arguments on the legal issue of joint criminal enterprise. Furthermore, an amicus curiae was appointed to assist the Tribunal.51
Setting the parameters for self-representation is a difficult task indeed. Naturally, each case is different and may require a case-specific approach. There should be room for discretion. However, taking into account the jurisprudence of the ECtHR, it is somewhat of an exaggeration to think of the right to self-representation as ‘an indispensable cornerstone of justice’. Even the HRC does not go that far. But this particular choice of wording may have made it more difficult for the ICTY to justify restricting this right.
The importance of Hill v Spain was marginalized as soon as the Trial Chamber decided to impose counsel on Milošević.52 While considering the right to self-representation a cornerstone, at the same time, the ICTY acknowledged early on in its history that it is not an absolute right.53 It is only one out of many so-called minimum guarantees. An accused has a choice between the right to self-representation or to regular representation by counsel to the extent that his choice does not impinge upon ‘the interests of justice’.
3. Rationales for requesting self-representation
It has been argued that self-representation entails no gains whatsoever.54 Whether one agrees with this observation or not, it invites the question as to why individuals would choose to represent themselves in the first place. Three broad categories of motives can stir the accused's wish to conduct his or her own defence.
First, practical considerations may dictate the choice for self-representation. It can emanate from the simple fact that the accused's lawyer is not providing quality (p.353) legal assistance;55 or from the fact that the legal aid system will not fund a defence counsel.56 In the ICTY case of Stanković and Janković, one of the accused requested to represent himself because he was unable to keep his preferred defence counsel, due to the latter's suspension for alleged misconduct.57 In Krajišnik's case, he opted for self-representation as a means to acquire more funding for his defence team,58 as well as to participate in the cross-examination of witnesses.59
A second and probably more common reason for accused persons to represent themselves is that it allows the defendant to have more control over the proceedings.60 The ICTY aims to prosecute those persons who are allegedly the most responsible for the atrocities committed in the former Yugoslavia. These include persons who held a high leadership position in the army or in politics. These individuals are more likely to prefer being in control of their proceedings than lower-level accused. The pro se defendants Karadžić, Milošević, and Šešelj easily fall into the former category.
A third reason why self-representation may be favoured over representation by counsel is that pro se accused will have more freedom. Milošević could conduct himself in court towards witnesses and the prosecution in ways no professional counsel would.61 Nonetheless, according to Schabas, pro se defendants ‘may be held responsible for a lack of due diligence in the proceedings, and may not always be able to rely on claims of inexperience’.62 The ECtHR has held that due diligence is particularly required of a pro se accused who is ‘well versed in the routines of judicial procedure’.63 Nonetheless, Milošević's legal background did not make the ICTY judges hold him to a higher standard than other pro se accused.
A self-representing accused could have more freedom than counsel to pursue a wholly different goal than simply to answer the case of the prosecution—for example, using the court as a political stage. Since proceedings of the ICTY are broadcast, there is ample opportunity to do so. According to Scharf, Milošević was able to make ‘unfettered speeches’ in court and play ‘to the court of public opinion’ in Serbia, as opposed to the court of law in The Hague.64 It has also been (p.354) suggested that Šešelj ‘bend[s] the trial procedure to the requirements of his political populism’.65
The view that self-represented accused ‘are only out to “politicize”, “disrupt” and generally disrespect their trials…would overlook [the fact] that accused opting for representation by counsel face a severe limitation…if they wish to…bring their specific knowledge of their home country and its conflict into the courtroom’.66 Defendants represented by counsel at the ICTY ‘are not allowed to take part in the everyday defence by questioning witnesses, commenting on [in-court] developments or addressing the court on legal questions’.67 An accused ‘is ordinarily able to address the court only when he takes the stand to give testimony during the defense's case-in-chief, and in the usual case, the defendant is limited to giving evidence that is relevant to the charges, and he is subject to cross-examination by the prosecution’.68 When represented by defence counsel, accused have ‘a very passive role in their trial’.69
There is a lot at stake for an individual who is prosecuted by an international criminal tribunal. Only the gravest crimes fall under the jurisdiction of the ICTY. The available sentences are severe. Therefore, the conduct of the defence is fundamental. It is logical for an accused to wish to influence his or her defence. Self-representation allows an accused to maximize such influence.
4. Disadvantages of self-representation
Even though the choice of self-representation is understandable, there are clear disadvantages. They not only concern the self-representing defendant, but also others involved in the proceedings. According to Ellis, self-representation could be unworkable in international criminal trials, for instance, because ‘extensive work is required to adequately mount a defense in international criminal cases’.70
The most obvious disadvantage of self-representation is the fact that it constitutes a waiver of a fundamental fair-trial safeguard: namely, representation by counsel. Defence counsel fulfil an important role in international criminal proceedings.71 International criminal courts require counsel to meet certain qualification conditions, such as a certain number of years of experience in practice, and to be fluent in one of the court's working languages.72 In theory, counsel guarantee a high (p.355) standard of representation. Individuals who conduct their own defence are not likely to fulfil all the conditions that counsel should meet, and they are not held to those standards. Even though Milošević had a background in law, the judges advised him to choose to be represented by counsel.73
According to the ICTY Appeals Chamber, self-representation ‘require[s] familiarity with a daunting set of procedural rules’.74 Generally, an accused does not just have a legal-knowledge deficit, but also a legal-skills deficit, as compared to a qualified defence counsel at the ICTY. It is not surprising that the ECtHR in complex cases finds the appointment of legal assistance to be in the interests of justice. The pro se accused might put forward arguments that are irrelevant as to his individual criminal responsibility. Instead of responding to the prosecution's case, the accused might follow a purely political agenda.75 The accused might be unaware of how one could ruin one's own interests just by posing a single ill-considered question to a witness. It will be extremely difficult for anyone without previous experience to filter and process huge amounts of evidentiary materials disclosed by the prosecution. According to Zahar, self-representation carries a high risk ‘of self-incrimination, of non-comprehension or misunderstanding of substance and procedure, [and] of ineffective cross-examination’.76
To take an example. When allowed to participate in cross-examination, Krajišnik would reveal information about protected witnesses. The judges frequently cautioned him ‘for his improper questions and misunderstandings of procedure’.77 Furthermore, the judges reasoned that ‘the Accused does not know, and has no reason to know, how to run a criminal defence. If his request [for self-representation] were honoured, he would end up receiving a very poor defence, which would only serve to bring the international criminal process into disrepute’.78 Whereas self-representation is no licence to disrespect procedural rules, and whereas each participant should be held to those rules, I disagree with the above assumption. A poor or even a very poor defence as a result of a knowledgeable, voluntary, and unequivocal choice of self-representation will not automatically bring the process into disrepute. Self-representation may certainly make the defence of an accused less effective than representation by counsel. But conducting the most effective defence in light of the allegations may not be the primary goal of a determined self-representing accused. Due process requires that the rights of the accused are respected. If an accused prefers one of his minimum guarantees over another, this does not necessarily bring the proceedings into disrepute. It could hurt the defence of an accused. Each accused has the right to remain silent and not to incriminate himself, but nevertheless is free to do the opposite.
Most accused at international criminal courts remain in the Tribunal's custody during their trial. A pro se accused's detention on remand causes several practical (p.356) disadvantages. It is impossible to travel or conduct on-site investigations. The self-representing accused will therefore have to rely on others to an important extent for assistance in his defence.79 As I argued elsewhere, because of their complexity and magnitude, cases tried by international criminal courts generally generate more research and require better organization of the defence than cases tried in national jurisdictions. International investigations are generally more time-consuming than investigations in typical domestic cases. This implies that larger teams and more preparation time is necessary to effectively conduct the defence in a case than in typical domestic trials.80 Although the ICTY has been generous in terms of granting facilities to self-representing accused,81 their genuine ability to conduct or lead investigations will be severely restricted. According to the Appeals Chamber of the ICTY in Krajišnik, the fact that some arguments regarding ‘evidence outside the trial record may…go unmade’ is a consequence of the deliberate choice of the accused to represent himself, and therefore does not affect the fairness of his trial.82
Self-representation could result in an inequality of arms between the prosecution and the defence. This procedural principle is violated if the defence is put at a substantial disadvantage vis-à-vis the prosecution. There should be proportionality between the capability of the defence and the prosecution to present their respective cases. Does self-representation at the ICTY actually lead to inequality of arms? It could be said that Karadžić can make use of so much legal and other assistance, that the balance might even go against the prosecution.83
Apart from the consequences for the individual pro se defendant, self-representation also has broader implications. It has been argued that allowing Milošević to represent himself undermined the goal of the UN Security Council of educating the Serbs about the crimes that were committed by Milošević's regime.84 A practical disadvantage of allowing self-representation is that it affects the communication channels between the defence and the Tribunal. Defence counsel usually handle the communications with the prosecution, Chambers, and the Registry. In terms of the effects of self-representation on the conduct of the trial in general, it has been contended that had Saddam Hussein been allowed self-representation, the trial would probably ‘have collapsed into complete chaos’.85
Judges should not just watch over the accused's interests but also those of other trial participants. Perhaps most importantly, the interests of co-accused should be taken into account. If accused are jointly tried, the interests of co-accused in a fair (p.357) and expeditious trial may compete with those of a pro se defendant.86 In addition, witnesses (those of the prosecution in particular) may prefer to be cross-examined by a trained lawyer. This problem arises in the context of sexual crimes.87 In Stanković, the Trial Chamber considered it appropriate to appoint a standby counsel to undertake cross-examination of vulnerable witnesses. Such a measure would not significantly impact upon the accused's right to self-representation.88 That would be different in a case where essentially all the charges concern sex offences, such as that of Kunarac et al. 89
The ICTY's mandate is temporally limited.90 Proceedings take a very long time to be completed because of the complex legal and factual issues involved, because of the adversarial mode of the proceedings, and because numerous trials involve multiple accused. Proceedings will inevitably take even longer in cases of self-representation. In the absence of defence counsel, judges will need to be even more alert about the process, giving directions to the pro se accused where necessary. Obviously, the judges’ task ‘is facilitated if a knowledgeable person [ie a professional lawyer] acts intelligently and rationally in the interests of the defence’.91 A layperson is likely to be less efficient than a professional. The pro se defendant should be afforded some leniency and indulgence. But the challenge remains to determine where a judge should draw the line.
5. Parameters of the right to self-representation at the ICTY
Even though the ICTY has allowed many individuals to represent themselves, it has acknowledged that restrictions to this ‘indispensable cornerstone’ of justice are warranted. Pursuant to Article 20(1) of the ICTY Statute, ‘Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.’ Judges should balance the expeditiousness of proceedings, the protection of victims and witnesses, as well as the adherence to the rules of procedure and evidence, against the accused's fair-trial guarantees. Allowing self-representation also requires balancing of the right to an effective defence and the right of an accused to choose between the minimum guarantees of Article 21 of the ICTY Statute.92 The question is, may the court decide for the accused which of the minimum guarantees should prevail over the other?
(p.358) As noted in section 2 above, judges can assign counsel against the wishes of the accused if this is deemed to be ‘in the interests of justice’. Which interests does the ICTY include under this term? According to an SCSL Trial Chamber, ‘the interests of justice…is a multi faceted legal concept which is all encompassing and a vital component of the principle of the Rule of law’.93 For instance, where an accused is in detention on remand, the interests of justice require the accused to be tried ‘without undue delay’.94 According to Sluiter, aspects of the interests of justice justifying limitations on the right to self-representation are ‘avoiding disruptions of the trial’ and ensuring ‘a minimum standard of (effective) defence’.95 The interests of justice also comprise the ‘integrity of the proceedings’, as explained below.
One reason to refuse to allow self-representation is the ill-timing of the request.96 Rule 44(F) of the ICTY RPE requires a defendant ‘electing’ self-representation to notify the Registry at the earliest opportunity of such a wish. In principle, the earlier a request for self-representation is made, the more chances it has to succeed. According to the Trial Chamber in Krajišnik, a self-representation request made during the trial gives the trial bench considerable discretion to dismiss it. The judges must assess ‘the extent to which the requested change in status will disrupt trial proceedings’97 and ‘make a legal determination as to the acceptability of any disruption, taking into account the general interest in an expeditious trial and the accused's right to self-representation’.98 Although ‘there is no necessary incompatibility between the self-representation right and the orderly administration of justice…a late assertion of the right tends to undermine the integrity of trial proceedings’.99
Milošević, Šešelj, and Karadžić all applied to represent themselves from the start of their cases and were allowed to do so. When Krajišnik made this request in the middle of his trial, his request was denied.100 Interestingly, in Šešelj, at a certain point the ICTY considered that the disadvantages of reversing the accused's right to self-representation at a late stage of the proceedings outweighed the advantages of having him continue to represent himself. It would be disproportionate to assign counsel at such a stage, as it would cause a delay of at least six months.101
The most important reason for the ICTY to limit self-representation has been because of the self-representing accused's obstructionist behaviour. According to the Trial Chamber in Milošević, ‘clearly, an accused whose behaviour has resulted in his removal from the courtroom…has also relinquished his right to defend himself (p.359) in person’.102 The problem is that there is no set standard as to the threshold for obstructionist behaviour requiring an accused to be removed from the courtroom or to be restricted in his self-representation.103 It is up to a Chamber's discretion.
The US Supreme Court in Faretta held that the accused should not use his right to self-representation as ‘a license not to comply with relevant rules of procedural and substantive law’.104 The Appeals Chamber in Milošević noted that the US Supreme Court in that case concluded that ‘since the right of self-representation is not a license to abuse the dignity of the courtroom, a trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct’.105 However, instead of adopting this same test of obstruction, the ICTY chose to adopt its own. This has had serious consequences.
At the ICTY, the Chamber can curtail the right to self-representation if ‘a defendant's self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial’.106 Perhaps the specific circumstances in the Milošević case were the reason to leave ‘deliberately’ out of the ICTY's test. His bad health caused the bench to restrict his right to self-representation. Due to his condition, hearings were conducted only a few days per week and never for more than half a day at a time. According to the Trial Chamber, ‘disruption of a trial, whatever the circumstances, may give rise to the risk of a miscarriage of justice because the whole proceedings have not been conducted and concluded fairly’.107 The Chamber perceived no principled difference in deliberate misconduct disrupting proceedings and ‘any other circumstance which so disrupts the proceedings as to threaten the integrity of the trial’.108 The Appeals Chamber agreed and held that ‘it cannot be that the only kind of disruption legitimately cognizable by a Trial Chamber is the intentional variety’.109 But how are we to reconcile with the principle of equality allowing a physically ill110 accused fewer rights than a healthy individual?111 It seems obvious that deliberate obstructive conduct could lead to restrictions on the right to self-representation. But the legal reasoning of the ICTY, that illness would allow such restriction, lacks precedent and is not convincing.112
In the Stanković case, the right to self-representation was denied because of the deliberate and serious misbehaviour of the accused before the court. The accused ‘deliberately obstructed the smooth and effective functioning of the proceedings (p.360) with inflammatory and abusive language’.113 As an example of how the accused intended to disrupt the proceedings, the Chamber noted that he went on a four-day hunger strike on the basis that he was allowed ten minutes instead of an hour to read a letter.114
Karadžić refused to appear in court at the start of his trial in October 2009, because he needed more time to prepare. After warning him, the Chamber appointed counsel. However, it allowed the accused to continue representing himself on the condition that he would not obstruct the proceedings any further. It reasoned:
the Accused has indeed substantially and persistently obstructed the proper and expeditious conduct of his trial by refusing to attend the proceedings until such time as he considers himself to be ready…The Accused's conduct has effectively brought the trial to a halt, which is evidently his purpose. Furthermore, he has made it clear that he wishes to control when the trial will resume, rather than the Chamber. These are blatant examples of deliberately obstructive conduct, no matter how co-operative the Accused has been up until the commencement of the trial.115
The Chamber emphasized that it did not consider that the accused had been rude or disrespectful towards the Tribunal.116 The Chamber also made it clear that self-representation does not mean that the self-representing accused gets to control all aspects of his trial. The judges are to remain in control of the proceedings. On the other hand, by assigning counsel and granting counsel time to prepare, Karadžić gained three-and-a-half months of extra preparation time.
The judges in the Tolimir case decided to issue a warning to the accused after he had refused for almost a year all materials not rendered in the Cyrillic script. He claimed solely to understand Serbian written in the Cyrillic script. The judges held that this impeded the expeditious pace of the proceedings and would make defence preparation impossible. They warned that they would impose counsel if he were to further disrupt the proceedings.117
No doubt, the ICTY in the Šešelj case raised the threshold for disruptive behaviour to its highest level.118 In 2003, standby counsel was assigned to Šešelj because of his disruptive behaviour.119 This counsel did nothing but stand by. In August 2006 the Trial Chamber decided to severely restrict Šešelj's right to self-representation by allowing him to ‘participate in the proceedings through Counsel only’.120 His ‘obstructionist and disruptive behaviour; deliberate disrespect for the (p.361) rules; intimidation of, and slanderous comments about, witnesses’121 prompted this decision. However, the Appeals Chamber reversed that decision solely because of the absence of a formal prior warning to the accused about the consequences of his conduct.122 Soon afterwards, the Trial Chamber again decided to impose counsel on Šešelj.123 Šešelj at this point started a hunger strike. The Trial Chamber did not decide on the fundamental issue of whether or not to order force-feeding.124 But it noted that this self-induced physical condition prevented the accused from attending the hearings and warned him again that this behaviour could result in standby counsel taking over his defence.125 The Appeals Chamber acknowledged that the accused, due to his own actions, could no longer comply with certain procedural rules.126 Under the applicable law, and according to the standard of review of the Appeals Chamber, the Trial Chamber had not erred in imposing counsel.127 Šešelj's behaviour, which included submitting motions exceeding the word limit by tens of thousands of words, and refusing to appear in court, warranted this. However, because the Trial Chamber had failed to give Šešelj a ‘clean slate’ after the October decision of the Appeals Chamber to restore his right to self-representation, the Appeals Chamber ruled that ‘the Trial Chamber abused its discretion by immediately ordering the imposition of standby counsel, without first establishing additional obstructionist behaviour on the part of Šešelj warranting that imposition, with the clear possibility to take over proceedings’.128 Moreover, the Appeals Chamber ‘in interests of fairness to Šešelj’ nullified the trial proceedings conducted up to that date and ordered a restart of the trial.129 Šešelj was also allowed time to regain his health.130 The Appeals Chamber emphasized that its decision should not be interpreted as rewarding the accused's behaviour.131
In a nutshell, Milošević's bad health led the Chamber to impose counsel; Stanković's hunger strike was one reason to refuse his self-representation request; after Šešelj's deliberately self-inflicted health situation as a result of his hunger strike, his self-representation was restored in full and his trial restarted ‘with a clean slate’. Perhaps, all the Appeals Chamber wanted was to avoid another deceased pro (p.362) se accused that year.132 In any case, according to Sluiter, ‘the Appeals Chamber could not have approached the matter in a worse manner’ and has ‘damaged the Tribunal's authority’.133 Its decision seems to betray the Trial Chamber's ‘sincere efforts to achieve optimal trial management’134 and may even ‘turn the law regarding self-representation on its head’.135
Perhaps as a result of the clean slate, the newly appointed Trial Chamber did not revoke Šešelj's self-representation, not even after he was sentenced to prison for a year and a half for contempt of court for revealing the names of protected witnesses. The Chamber chose to consider this ‘an isolated act that cannot legitimately be considered as continually disruptive and such that it would substantially and persistently obstruct the proper and expeditious conduct of the trial’.136 It is astonishing that a conviction for contempt of court did not lead to the restriction of the right to self-representation. But the Chamber in Šešelj considered that the practical disadvantages of imposing counsel outweighed the call of the prosecution for restricting self-representation. It would be too costly and time-consuming at such a late stage, it said. And it might not be effective ‘with a view to preventing future conduct by the Accused that could endanger victims and witnesses’.137 Obviously, time and costs are of vital importance to a tribunal that is fully dependent on external financing. But the measure of assigning counsel should not be simply to prevent future misconduct. It may also be in order to enable the court to control the orderliness and integrity of the proceedings. But the Chamber in Šešelj seems to reason that no right of the accused can be upheld if the right to self-representation is restricted: ‘Even if restrictions may be applied to the right to self-representation, these restrictions abolish the other fundamental guarantees provided for in Article 14 of the ICCPR and re-transcribed to Article 21 of the Statute.’138
Such poorly explained assumptions do not live up to the expectations of a bench of an international criminal court. The extremely high threshold set in Šešelj for obstructive conduct warranting a restriction of the right to self-representation is an unfortunate precedent. To preserve the integrity of its proceedings and to preserve a legacy of doing justice to its optimistic goals,139 the ICTY should set clear limits on self-represented accused.
Judges play an important role in drawing a clear and consistent line in this respect. A pro se accused, being in detention for the course of the trial, might lack any incentive to take notice of warnings from judges to observe time limits and be efficient while conducting his defence. Milošević would digress at length during cross-examination of witnesses, even after being warned to desist.140 His microphone would sometimes be (p.363) turned off by the presiding judge.141 The presiding judge made it clear that as long as the accused followed the rules and dealt with relevant matters, he would be able to speak.142 If a pro se accused refuses to follow a court's instructions, after due warning, he should be dealt with firmly. Preferably, then, only an experienced trial bench should be assigned cases involving self-represented accused.143
6. Direct support for self-representing accused
The fair-trial rights of the accused should be granted effectively. But how to grant an effective right to self-representation? Should the pro se accused's defence be denied any assistance because of the deliberate choice for self-representation? Leaving an accused to fend for himself, even though it may be the unequivocal choice of the accused, inevitably raises concerns for the fairness of the trial. Probably even more so in the proceedings of an international criminal court, involving a myriad complicated issues of law and fact. Each accused in criminal proceedings has the right to an effective defence. In cases of self-representation, should the pro se accused therefore be allowed some legal assistance? And, in terms of the right to have adequate facilities to prepare for the trial (another important fair trial requirement), what facilities will be adequate for an effective right to self-representation at an international criminal court such as the ICTY?
6.2 Adequate facilities
Already in Milošević, the ICTY realized that without any extra facilities, such as computers, printers, and telephone lines, and without any personal assistants, an accused who wished to conduct his defence pro se would in practice not be able to do so.144 But where to draw the limits? In Krajišnik, the Appeals Chamber deemed the provision of 24-hour access to telephone lines, a scanner, a fax, and a photocopier to go ‘far beyond what is necessary to ensure the provision of adequate facilities’.145
An accused's right to a fair trial also includes the right to participate in it effectively and ‘to follow the proceedings effectively’.146 Some pro se accused at (p.364) the ICTY have demanded translations of all the documents in evidence and of all communications. Had they been represented by counsel, translations of all of the evidentiary materials would not have been necessary. As noted above, defence counsel at the ICTY must be fluent in one of its working languages.147 The ICTY makes one exception to this rule where counsel speaks the native language of the client.148 According to the Directive on Assignment of Defence Counsel, such counsel can only be assigned as co-counsel.149 Thus, at least one of the two counsel (namely, the lead counsel) must be able to work in one of the Tribunal's working languages. Any resulting extra translation and interpretation costs can be charged to the defence's expense account, and no extensions of time can be requested for this reason.150 If the accused is unrepresented, how far should the right of effective participation extend, at least in terms of the ICTY paying translation costs?
According to the ECtHR in the Lagerblom case, an accused who cannot understand or speak the language used in court should have the free assistance of an interpreter. Article 6(3)(e) of the ECHR applies to those documents in the proceedings that are ‘necessary for the accused to understand or to have rendered into the court's language in order to have the benefit of a fair trial’.151 The interpretation assistance should ‘enable the accused to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events’.152 The HRC in Hill v Spain held that ‘the right to fair trial does not entail that an accused who does not understand the language used in Court, has the right to be furnished with translations of all relevant documents in a criminal investigation, provided that the relevant documents are made available to his counsel’.153 Even though this case involved a defendant who had wished to represent himself, and it was found that his right to self-representation pursuant to Article 14(3)(d) of the ICCPR had been violated, the Committee did not consider the right to have adequate facilities (also under Article 14(3)(b)), to have been violated for the lack of translated materials. It remains unclear what standard should be applied to a self-representing accused with no defence counsel.
Clearly, not every wish of a self-representing accused can be accommodated. The rejection of requests for translation will not automatically lead to unfairness. The ICTY does not entitle the pro se accused to choose a particular translator or interpreter.154 The refusal in Tolimir to have documents converted into the Cyrillic script was on the basis that the pro se accused seemed able to read and understand the documents in Roman script.155 Šešelj demanded that all evidentiary materials, (p.365) including the transcripts in English and French of witness interviews, which were available in audio format in Serbo-Croatian, be typed-up in hard copy.156 It would be too costly and too time consuming, given the budget and time frame of the ICTY, to meet every demand for translation of a pro se accused. Obviously, in self-representation cases, the burden to translate documents for the accused cannot be passed on to counsel. It is reasonable to assume that a greater number of documents will need to be translated for the accused than in cases of accused represented by counsel. On the other hand, the ICTY allows pro se accused a number of direct support staff to assist with the defence. It might be reasonable to expect that one of these persons helps with translation.
6.3 Direct support staff
Milošević—the first accused person to be allowed to represent himself at the ICTY—was allowed to have the help of three legal advisers. In addition, the ICTY appointed a person to liaise between the accused and the Victims and Witnesses Section.157 Allowing the pro se accused a few assistants has become a standard practice at the ICTY. Karadžić appears to be the pro se accused to have received the most help. At a certain point during the pre-trial phase, he had three legal advisers, three case managers, and two investigators. In addition, approximately five academic volunteers were involved in writing his briefs. Is this consonant with the waiver by the accused of the right to defence counsel? The answer depends on whether one considers the right to self-representation as a waiver of legal assistance or as a waiver of legal representation. Apparently the ICTY has chosen the latter interpretation.
Direct assistance to a self-representing accused serves various ends. Management and administrative assistance will facilitate the accused's conduct of the case. It will assist in the efficient and effective presentation of the defence case. It will also save time, because judges need not explain the procedures to the accused all the time.
The fact that the individuals chosen by the accused as his assistants are not required to fulfil the qualification requirements of defence counsel raises problems. Most importantly, should the pro se accused be allowed to have privileged communication with his legal associates? This is a privilege that usually only qualified lawyers are trusted with.158 Milošević was allowed such communication with his advisers. The accused Šešelj did not have qualified legal associates, and therefore was not allowed this privilege. Nonetheless, in December 2006, just after the Appeals Chamber restored his right to self-representation, his legal associates signed a confidentiality agreement with the Registry. They thereby became ‘privileged associates’, enabling them to communicate with the accused in private, like regular lawyers.159 Two years later, following (p.366) allegations of witness intimidation, disclosure of confidential information to a third party, and the making of ‘public statements aimed at discrediting the Tribunal’, the Registry removed the associates’ privileged status.160 It also stopped its reimbursement of their travel expenses to the Tribunal.161 Although the President upheld the registrar's decision, the Trial Chamber sitting in the case reinstated the privileges to a significant extent. Even though it considered that the refusal to reinstate the formerly privileged associates did not, as such, ‘constitute a violation of the Accused's right to a fair trial’,162 the Chamber allowed the two individuals to assist the accused ‘in the open sessions of the presentation of the Defence case’. Furthermore, it ‘invited’ the Registry to start reimbursing their travel expenses again.163 The Chamber attached importance to the accused's right ‘to prepare his defence and be properly assisted by associates who are well acquainted with his file’164 and deemed that Šešelj's defence rights would be ‘better served’ by their assistance.
Had counsel assigned by the Tribunal become engaged in the activities these associates were accused of, there is little doubt that they would have been dismissed. The Trial Chamber's efforts to facilitate this particular pro se accused's defence seem inexhaustible. A different Trial Chamber that had been dealing with Šešelj's case before the current one was much firmer in this respect. It did not recognize Šešelj's legal adviser and his legal assistant, and refused them access to all hearings.165 Apart from the entitlement to have privileged communication with legal associates, there has been debate as to what degree the role of legal associate can be expanded to doing more than advising the accused. Should they have a right to be present in the courtroom and a right of audience, including addressing the court or examining witnesses on behalf of the pro se accused?
The Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused, issued by the Registry, includes the rule that legal associates have no right of audience before the court unless the Chamber permits it.166 The Trial Chamber in Karadžić established the parameters as to the functioning of the legal associates and case managers in considerable detail at an early stage. The accused can have privileged communication with the legal associates. A total of two support staff members may be present in the courtroom. Only one legal associate has a right of audience, which is limited to addressing the Chamber on legal issues, upon the request of the accused, and upon this request being granted by the Chamber.167 This clarity provides certainty for the accused and those involved in his defence.
(p.367) The adviser to the pro se accused Tolimir did not meet the qualification requirements for defence counsel under rules 44 and 45 RPE.168 The Chamber on this basis refused to allow him to undertake cross-examination of witnesses for Tolimir. It held that allowing an unqualified associate, with little experience in criminal proceedings, and not under the supervision of an experienced counsel, to conduct the examination of witnesses could affect ‘the integrity of the proceedings and the quality of the evidence as a whole’.169 The Chamber reasoned that the pro se accused had accepted the consequences of his choice of defence, meaning that he would have to cross-examine witnesses without any previous experience in doing so. But when allowing a legal adviser to a self-represented accused, ‘who is not eligible to act as counsel pursuant to the Rules, the right to examine witnesses, it is the Chamber, and not the Accused, who would have to take the responsibility for any adverse effects this may have on the proceedings, in particular, on the defence case’.170 Had the adviser in question been a member of a national bar, the situation might have been different.171
Even so, on the basis of Article 20(1) of the ICTY Statute, the Trial Chamber decided it was in the interests of justice to allow the presence of Tolimir's legal adviser in the courtroom during the proceedings and to allow him an attenuated right of audience. Given the nature of the legal adviser's work and his direct communications with the prosecution, the adviser's right of audience would be confined to ‘exclusively administrative matters’, such as the scheduling of witnesses and disclosure of evidence. This would benefit the expediency and efficiency of the proceedings.172
Because of the ICTY's duty to guarantee a fair trial to the accused, allowing the pro se accused some assistance in conducting the defence is certainly warranted. For the same reason, it could also be warranted to require that assistants meet qualification requirements similar to that of counsel, particularly if the accused wishes to have privileged communication with these assistants, or for them to have a right of audience or examine witnesses. A court should not lightly step over such requirements—for they are not considered ‘privileges’ without reason. It would go too far to allow any individual who is not trained as a lawyer to undertake all sorts of lawyer's duties where the pro se accused does not feel fit for the task. A more lenient approach could be allowed, on a case-by-case basis, to assistants of the accused who do qualify as lawyers. But to what degree such a hybrid approach to the conduct of the defence is desirable has been subject to debate.173
(p.368) 6.4 Self-representing accused and the entitlement to legal aid
A fundamental issue is whether or not a pro se accused is entitled to legal aid.174 When the partially indigent accused, Krajišnik,175 first requested to represent himself, he was informed that, in choosing self-representation, the registrar would no longer be ‘in a position to provide any funding for the costs of his defence, or to assign Tribunal-paid support staff to assist the Accused’.176 This rigid approach was surprising, as the ICTY had previously funded certain defence facilities for the pro se accused Milošević.177 In later cases, legal aid has also been provided to self-representing accused. Karadžić's legal assistance is partly financed by the ICTY, and partly pro bono.
These inconsistencies illustrate that it is a delicate issue whether or not a self-representing accused should be entitled to legal aid. Logic dictates that an accused who is not represented by counsel needs more help than someone who is. Should an indigent pro se accused therefore be entitled to funding from an international court for defence costs? In all legal systems, including in that of the United States, it is perfectly acceptable to appoint (standby) counsel to assist a self-represented accused with legal matters, such as how to abide by procedural rules. In a complex international criminal trial, it is doubtful whether a self-representing accused can conduct an effective defence without any legal assistance. Should the court fund assistance if the accused is indigent? Tolimir contended that ‘it is not contrary to the nature of self-representation to receive adequate legal aid’.178 Zahar similarly argues that self-representation should not preclude the financing of legal assistance in cases of indigence.179 This is particularly true if self-representation is not considered as a waiver of legal assistance, but merely of legal representation.
The Appeals Chamber held in Krajišnik, that a self-represented accused is not entitled to legal aid. Even so, it said, the accused's right under Article 21(4)(b) to have adequate facilities to prepare his defence, allows for some funding for legal associates. The Appeals Chamber stressed that this funding should not equal that of counsel, as the pro se accused remains responsible for preparing written submissions and the like.180 Advisers to pro se accused have thus been paid according to the rate of legal assistants.181 In 2010, however, the ICTY President decided to compensate one of Karadžić's legal advisers at the rate of co-counsel. This was warranted (p.369) because the adviser's work was at the level of co-counsel rather than a legal assistant.182
In Šešelj, a judge persuaded the accused to obtain funding for his legal associates.183 As a result of the ICTY's rulings in Šešelj,184 the ICTY's Registry issued a special ‘Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused’. It prescribes that a pro se accused would receive funding for the following direct support: one legal associate, one case manager, one investigator, and one language assistant. In comparison, the standard legal aid received by an indigent accused represented by counsel is one defence counsel, one co-counsel, one case manager, one legal assistant, and one investigator. Based on an estimation of the magnitude and complexity of the case in advance, a higher lump sum allowing for more full-time staff can be allocated.185
In Karadžić, because of the high volume of disclosure by the prosecution and the large number of witnesses to be involved in the case, during the latter part of the pre-trial phase, 1,200 remunerable hours were afforded as legal aid to the accused, which was sufficient to pay eight individuals working full-time.186 The assistance for the defence of Karadžić thus seems to comprise no less than the legal assistance assigned to a represented accused. During the trial phase, to enable him to adequately represent himself, Karadžić was allocated a lump sum of 750 remunerable hours per month for the funding of five full-time support staff members, the same number of remunerable hours as granted to represented accused in cases of comparable complexity and magnitude.187
The right to self-representation should not become a publicly funded crash course in how to become an effective lawyer for oneself.188 But the Appeals Chamber's stance in Krajišnik—that any funding for defence costs can only be provided on the basis of the right to have adequate facilities—seems unwarranted, particularly where it concerns legal associates providing legal advice. The choice to self-represent should be understood as a waiver of legal representation rather than as a waiver of legal assistance.
The accused should be made aware of any entitlements to legal aid by the court. A problem arises where different Chambers of the ICTY apply different standards in this respect to pro se accused. The ‘Remuneration Scheme for Persons Assisting (p.370) Indigent Self-Represented Accused’ issued by the ICTY's Registry is therefore an improvement.
7. Approaches to self-representation requests
Where the ICTY has allowed self-representation, it has come up with differing modalities of mandatory assistance complementing or substituting self-representing accused: amici curiae, court-assigned or appointed counsel, and standby counsel. The main reason for the inconsistencies in the ICTY's approach is probably the lack of guidance in international law. The judges’ differing legal backgrounds may influence their legal opinions. The lack of a trias politica or the fact that there is no stare decisis at the ICTY189 could also be to blame.190
Scharf and Cerruti are strongly opposed to allowing self-representation in international criminal trials. Ellis deems it ‘permissible’ and perhaps ‘appropriate’ to prohibit self-representation in such trials.191 In two cases, the ICTY refused to allow self-representation. In the trial stage in Krajišnik, this was done because the accused had not made an unequivocal waiver.192 And in Stanković this was decided on the basis of the accused's obstructive conduct. The problem of a complete prohibition is evident. It would necessitate an amendment to Article 21 of the Statute, it conflicts with the case law of the HRC, and mandatory legal representation involves all sorts of practical and ethical difficulties, including for the individual lawyers involved.
In the United States, the concept of a standby counsel in self-representation cases has not been very successful, and the role of this counsel has never been clearly defined.193 For instance, it is not always clear what it would mean for a pro se defendant to request the assistance of standby counsel. Would he thereby forfeit his right to self-representation?194 Another question concerns the positive duties of standby counsel. What are they meant to do? In Šešelj, the experiences with standby counsel were not particularly satisfactory. After being on standby for a substantial period, standby counsel was simply dismissed. Nonetheless, it would save a lot of time in complicated proceedings to have a lawyer able to step in to assist whenever necessary. It is not surprising, then, that the ICTY chose such a solution in Karadžić. If by again obstructing the proper conduct of his trial, Karadžić would forfeit his right to self-representation, he would no longer be entitled to assistance from his assigned defence team; and the so-called ‘appointed counsel’ would take over his representation. As long as Karadžić continues to act pro se, appointed counsel attends proceedings and remains ‘available to step in at any time the (p.371) Chamber determines it to be necessary’.195 Counsel should ‘engage actively in ongoing substantive preparation of the case’.196
The mandatory variety of court-assigned counsel (as in Milošević) or, to put it simply, imposed counsel (as in Šešelj) may be the most problematic. When being imposed in mid-trial, the lawyer will have a huge amount of catching up to do. Allowing the lawyer sufficient time to prepare will delay the proceedings. This was elegantly solved in Milošević by appointing the former amici curiae, who were already familiar with the case. As noted earlier, Karadžić benefited from the appointment of counsel in the sense that the postponement of the trial to allow counsel to prepare gave the accused extra preparation time. This was just what he wanted. In the case of Tolimir, whose trial proceedings started at the end of February 2010, neither counsel, nor amici curiae were appointed. This may become a problem.
Even though the value of the legal associates involved should not be underestimated, if they do not meet the qualification requirements of defence counsel and cannot undertake any representational tasks other than administrative ones,197 the judges will depend solely on the accused, who is a lay person, for arguments. Given the adversarial mode of the ICTY's proceedings, judges strongly rely on the parties’ input. It may be difficult to reach informed decisions, particularly on the legal issues at hand, if no qualified lawyer is ever involved on the side of the accused.
For this reason, it is important for a pro se accused to know what he is up for at the time of the request for self-representation. If different modalities apply in each and every case, how can the choice to waive legal representation be a genuinely informed one? In addition, as Jørgensen has argued, ‘consistency and clarity in the manner of appointment and modalities for standby counsel, duty counsel or court assigned or appointed counsel are essential from the perspective of counsel placed in such positions’.198 It is difficult to conduct an effective defence on the accused's behalf if the accused remains unco-operative. According to former assigned counsel and amici curiae in the Milošević case, counsel's ‘lack of communication and cooperation [with the accused] simply makes it impossible to guarantee a solid defence’.199 Nonetheless, Kay and Higgins claim that whilst acting as amici curiae, ‘a working relationship [with Milošević] gradually developed, eventually resulting in the incorporation of the Amici Curiae's assistance into Milošević's defence strategy’.200 At the SCSL, where counsel was not discharged upon the accused's wish to go unrepresented, the defence argued: ‘the order to counsel to continue to represent the accused even in the absence of authority and instructions from the (p.372) client requires counsel to do the impossible’.201 In case of a dispute between a lawyer and the client, should the court follow the lawyer or the client? According to Trechsel, ‘the tribunal will have to give preference to the position of the client rather than that of the lawyer’.202 Ultimately, representing an unwilling client could result in an unfair trial.203
If the accused is given the chance to choose imposed counsel, this might enhance the chances of co-operation. In Šešelj, the Appeals Chamber held that should the Trial Chamber impose counsel on the accused, he should be permitted to select counsel from the rule 44 list of counsel.204 When this issue arose in Karadžić, the accused was only allowed to choose from a list of five lawyers, not one of whom spoke his native tongue. According to the Appeals Chamber, its decision to allow Šešelj to choose his standby counsel ‘was rendered in a unique factual and procedural context very different from Karadžić's’.205
In an earlier paper on this subject, I recommended that the ICTY reinstate its practice of assigning amici curiae to cases involving a self-represented accused.206 Schabas noted already in 1999 that ‘in rare cases of a stubborn defendant who refuses all assistance by counsel, the Court might opt to appoint an amicus curiae in order to ensure that justice is not offended’.207 The first time the ICTY was faced with a self-representation request, in Milošević, it chose this solution at first. Only later did it impose ‘court assigned counsel’ on the accused. An amicus was also appointed while Krajišnik represented himself on appeal ‘to keep an eye on his interests’.208 The Appeals Chamber set clear limits on the role of this amicus in the proceedings.209 The amicus's mandate would not be extended on his request where this could have rendered the amicus's role ‘essentially equivalent to that of defence counsel rather than limited to helping the Appeals Chamber assess whether the Trial Judgment and other relevant rulings…are fair to Mr Krajišnik in light of the evidence at trial and the applicable law’.210
Jørgensen has expressed a preference for amici curiae to ‘serve as a more neutral assistant to the Court’,211 in combination with an imposed counsel. The role of the amicus would include ‘guarding against any attempt by the accused to play the (p.373) assigned counsel off against the Court’.212 No doubt, an amicus would increase the workload of the judges, as well as that of the prosecution, especially if the amicus can file motions. Another suggestion is to adopt a more hybrid approach, which would allow the accused a more active role in the proceedings,213 while having the assistance of counsel as well.214 As noted earlier, in Krajišnik, the accused was exceptionally allowed to supplement his counsel's cross-examinations and put some questions to witnesses himself.215 But this did not go very well according to the judges.216 During the appeal proceedings, Krajišnik was allowed partial self-representation involving an amicus curiae and counsel. In Tolimir, the Trial Chamber suggested proceeding in a hybrid fashion.217
International criminal courts and tribunals must address the inherent tensions between the right to self-representation and the due process guarantee of a fair trial or the interests of justice in a systematic fashion.218 At the end of the day, the problem is not that the ICTY allows self-representation, but that it does so in such an unsystematic fashion. Despite all the efforts of the Chambers involved, and all the attention to the subject in the literature, solutions as to how to approach self-representation at the ICTY are still implemented ad hoc for the most part.
8. Concluding remarks
The ICTY has clearly struggled with the issue of self-representation, which has been raised before it more often than at any other international or internationalized criminal court. This may be a result of its generous accommodation of this right in the Milošević case, where it was first raised. Even though it has also restricted this right, and in two cases refused to grant it in full, its generous attitude towards accused who wished to represent themselves—honouring one request if only to prevent a fatal ending to a hunger strike—has deservedly generated criticism.
The ICTY deliberately chose to resort to case-by-case, ‘context-limited’ decisions.219 Given the substantial number of accused before it who invoked this right, there were chances enough to develop a more consistent approach. Even though standards of international law give little guidance on this delicate issue, the ICTY's (p.374) handling of it has been so inconsistent and ad hoc that it may negatively reflect on its legacy.
The one pattern in the ICTY's approach to self-representation is that in the majority of cases, the ICTY upholds the accused's right to self-representation even where other legitimate interests may warrant restrictions to this right. It is commendable that the ICTY has made a substantive effort to uphold the minimum rights of the accused in this respect. There are good reasons why self-representation should remain a minimum guarantee.220 Most importantly, because at the end of the day it is the accused who bears the consequences of how the defence is conducted. If the defendant seeks to waive the assistance of counsel, knowing that it might protract the proceedings,221 that is the accused's legal and human right, even though not an absolute one. The ICTY's proceedings are predominantly adversarial. It is therefore not particularly surprising that the accused has a considerable say in how the defence is to be conducted.
It is therefore all the more unfortunate that the decisions of the ICTY allowing self-representation were generally not accompanied by solid legal reasoning. The ICTY Trial and Appeals Chambers’ weakly founded conclusion in 2004 in Milošević that unintentional disruption of proceedings is no different than intentional disruption has triggered bewilderment. Even more frowned upon was the Appeals Chamber's decision to give in to Šešelj's hunger strike, despite his failure to abide by the rules. Somehow, again and again, despite blatantly obstructionist behaviour, including a contempt of court conviction resulting in a prison sentence, the ICTY has been inclined to restore Šešelj's right to self-representation.
As long as there is no wilful obstruction of proceedings, an accused should be able to represent himself, even in complicated proceedings. However, the ICTY should instal clear parameters to the exercise of the right to self-representation, to avert abuse of this right. Over-indulgence towards self-representing accused does not do the legacy of this war crimes court any favours.
If the ICTY does not grasp its last opportunity in the Karadžić and Tolimir cases to enhance its record, its body of case-law on self-representation will not be of much use to other Chambers, let alone to other courts that are faced with self-representation requests. Thus, it remains to be seen to what extent the self-representation case-law of the ICTY can contribute to the development of international criminal law.
A positive note is that the ICTY, given the lenient policy towards self-representing accused, has not left them to fend for themselves. To grant the pro se right effectively, it has allowed the accused the assistance of legal associates and provided them a greater amount of office facilities than represented accused. One should not underestimate how the assistance of legal associates, in particular, can contribute to the objective of ensuring a fair and expeditious trial. The issuance of the ‘Remuneration Scheme for (p.375) Persons Assisting Indigent Self-Represented Accused’ has at least provided some legal certainty for self-representing accused as to the consequences of their choice to waive legal representation. Before this scheme was issued, the accused Krajišnik was told that there would be no funding whatsoever for him. However, Milošević's facilities were funded, and Šešelj was even invited to apply for legal aid for his associates. By allocating funding for eight individuals on a full-time basis to prepare for trial with Karadžić,222 and for a standby counsel, who receives the help of two assistants, the ICTY's efforts in funding (prospective) legal assistance in this self-representation case went quite far.
If self-representation were to be considered a waiver of legal assistance, one might conclude from the above that the right to legal assistance cannot actually be waived at the ICTY. But it is more appropriate to regard self-representation as a waiver of legal representation. In which case it is not inconsonant with the right to self-representation to receive the help of legal advisers and other staff.
Nonetheless, the duties of so-called legal associates of self-representing accused should be better delineated. Because of the international context in which the ICTY operates, at least one legal adviser should comply with the requirement of knowing one of the working languages and be able to explain the content of materials to the accused. Qualification as a lawyer is appropriate if the accused is allowed privileged contact with the associate, because this privilege is supposed to protect the communication between a lawyer and the client. On the other hand, in practice, at the ICTY defence team members of accused represented by counsel are usually allowed to speak with the accused in private when visiting the detention facility. So in this respect, a more lenient approach is not necessarily a problem. Qualification as a lawyer is essential for the right of audience in the court on legal issues and if the adviser is to assist in the conduct of witness examinations. Moreover, for vulnerable witnesses, it is advisable to have a qualified lawyer in court who is available to step in for the pro se accused, if necessary. Therefore, in order to maximize the chances of the legal associates’ ability of offering effective legal assistance to the accused, it is advisable that at least one qualifies as a lawyer and fulfils the necessary requirements for defence counsel at the Tribunal.
Preferably, the legal adviser meeting the necessary qualification requirements should agree to step in for the defendant who is no longer allowed to proceed pro se. If another counsel were imposed, and the accused persists in the refusal to co-operate, it is unclear how counsel could effectively help safeguard a fair trial for the client. However, it also remains a problem how the former adviser shall meet his or her professional ethical obligations when representing the pro se defendant against his or her will without receiving any instructions. It will no doubt have implications for the effective functioning of the defence.
Finally, that the ICTY has allowed self-representation in the complex proceedings before it is not the problem. The problem remains this court's inconsistent approach in dealing with self-representing accused, even within the course of a single case. It is unfortunate that the ICTY did not stick to the amici curiae solution (p.376) that it adopted at first in Milošević. The later appointment of court-assigned counsel in Milošević and standby counsel in Šešelj and the absence of any of the above at a later stage in Šešelj and in Tolimir have not brought about any visible improvement. Ideally, the ICTY should complement the defence of a self-representing accused with amici curiae advising the court and with one or two legal advisers advising the accused directly, who will be able to take over the defence if necessary. In this ideal scheme, at least one adviser should qualify as defence counsel. In Karadžić, this scheme is still an option.223
(1) See D Tolbert, ‘The ICTY and Defence Counsel: A Troubled Relationship’ (2003) 37 New England LJ 975–8.
(2) Literal Latin translation: for oneself.
(4) See Sentence, Akayesu ICTR-96-4-T, ICTR Tr Ch, 2 October 1998, 1.
(5) Kambanda temporarily waived his right to counsel after his arrest. See Judgment, Kambanda ICTR 97-23-A, ICTR App Ch, 19 October 2000, paras 16–20. Barayagwiza refused to mount any defence at all and tried but did not succeed to discharge his lawyers. See Decision on Defence Counsel Motion to Withdraw, Barayagwiza ICTR-97-19, 2 November 2000, ICTR Tr Ch I, para 16.
(6) In two cases, ambiguous requests to go unrepresented were made but not granted. See Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, Norman, Fofana and Kondewa SCSL-04-14-T, 8 June 2004, SCSL Tr Ch, (hereafter: Decision on the Application), para 32; Decision on Application for Leave to Appeal Gbao—Decision on Application to Withdraw Counsel, Sesay, Kallon and Gbao SCSL-2004-15-T, 4 August 2004, SCSL Tr Ch, para 56; Gbao—Decision on Appeal against Decision on Withdrawal of Counsel, Sesay, Kallon and Gbao SCSL-04-15-AR73, SCSL App Ch, 23 November 2004, paras 26, 29, 41, 47, and 49.
(7) GK Sluiter, ‘Fairness and the Interests of Justice, Illusive Concepts in the Milošević Case’ (2005) 3 J of Intl Crim Justice 9–19, at 19.
(8) E Cerruti, ‘Self-Representation in the International Arena: Removing a False Right of Spectacle’ (2009) 40 Georgetown J of Intl L 919–84, at 973.
(9) See Decision on Prosecution Request for Clarification of President's Order of 16 May 2007, Krajišnik IT-00-39-A, 28 June 2007, ICTY Pres, paras 3 and 4; Decision on Momčilo Krajišnik's Request to Self-represent, on Counsel's Motions in relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, Krajišnik IT-00-39-A, 11 May 2007, ICTY App Ch (hereafter: Decision on Momčilo Krajišnik's Request), Fundamentally Dissenting Opinion of Judge Schomburg on the Right to Self-Representation. Perhaps Judge Schomburg's stance derives from his background in the civil law tradition.
(10) See Decision on Request for Review of OLAD Decision on Trial Phase Remuneration, Karadžić IT-95-5/18-T, 19 February 2010, ICTY Pres, para 45 (1200 remunerable hours per month).
(11) See Art 67(1)(d) ICC Statute; Art 20(4)(d) ICTR Statute; Art 14(3)(d) ICCPR; Art 6(3)(c) European Convention on Human Rights (ECHR); Art 8(2)(d) American Convention on Human Rights. A notable exception is Art 19(4) of the Statute of the Iraqi High Tribunal. The right was removed at the last moment. See NHB Jørgensen, ‘The Problem of Self-Representation at International Criminal Tribunals. Striking a Balance between Fairness and Effectiveness’ (2006) 4 J of Intl Crim Justice 77; MS Ellis, ‘The Saddam Trial: Challenges to Meeting International Standards of Fairness with Regard to the Defense’ (2006–2007) 39 Case W Res J Intl L 171–93.
(12) Galstyan v Armenia Application 26986/03, 15 November 2007, (2010) 50 EHRR 25, ECtHR, Partly Dissenting Opinion of Judge Fura-Sandström Joined by Judge Zupančič, para 9.
(13) See Transcript, Milosevic IT-02-54-T, 18 December 2002, ICTY Tr Ch I, 14574.
(14) Cf Temminck Tuinstra, Defence Counsel in International Criminal Law (TMC Asser Press, 2009) 246 and 247.
(15) See Faretta v California, 422 US 806 (1975), at 807; Godinez, Warden v Moran, 509 US 389 (1993) 399 and 400.
(16) Nonetheless, the concept of autonomy is normative and does not necessarily equal unlimited choice for the defendant. Cf Cerruti (2009) 945, 946.
(17) Cf Temminck Tuinstra (2009) 246, 247.
(18) Cf, for instance, Jørgensen (2006) 70.
(19) Netherlands Supreme Court (Hoge Raad), Case No BI 2315, 17 November 2009 (in Dutch).
(20) See ICCPR General Comment 13 (twenty-first session 1984) on Art 14 of the ICCPR, para 9.
(22) Maxwell v United Kingdom, Series A No 300-C, (1994) 19 EHRR 97, ECtHR, para 40.
(24) Galstyan v Armenia, para 54.
(28) See Shulepov v Russia, Application 15435/03, 26 June 2008, ECtHR, para 26.
(29) The prosecutor was in court, the defendant remained in his cell.
(30) See Shulepov, n 28 above para 28.
(35) Foucher v France (1997) 25 EHRR 234, ECtHR, paras 10 and 36.
(36) Croissant did not concern self-representation, but the assignment of a third defence counsel against the wishes of the accused.
(37) Croissant v Germany, Series A, No 237-B, (1993) 16 EHRR 135, ECtHR, para 27.
(39) See idem.
(40) See S Trechsel, Human Rights in Criminal Proceedings, Collected Courses of the Academy of European Law, vol 12/3 (Oxford University Press, 2005) 264.
(41) Croissant v Germany, para 29.
(42) Michael and Brian Hill v Spain Communication No 526/1993, UN doc CCPR/C/59/D/526/1993, 2 April 1997, Human Rights Committee. According to Sluiter, it ‘seems to contain a rather general rule against restricting the right to self-representation’ Sluiter (2005) 16.
(43) See Hill v Spain, para 14.2.
(44) See Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, Milošević IT-02-54-T, 4 April 2003, ICTY Tr Ch I (hereafter: Reasons for Decision on the Prosecution Motion), paras 36 and 37.
(46) Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel, Milošević IT-02-54-AR 73.7, 1 November 2004, ICTY App Ch (hereafter: Decision on Interlocutory Appeal), para 11, emphasis added.
(49) See infra, section 5.
(50) Decision on Momčilo Krajišnik's Request, Krajišnik, para 11.
(51) See Decision on Momčilo Krajišnik's Motion to Reschedule Status Conference and Permit Alan Dershowitz to Appear, Krajišnik IT-00-39-A, 28 February 2008, ICTY App Ch, paras 5 and 11; Decision on Prosecution's Motion for Clarification and Reconsideration of the Decision of 28 February 2008, Krajišnik IT-00-39-A, 11 March 2008, ICTY App Ch (hereafter: Decision on Prosecution's Motion for Clarification), paras 7–11.
(52) See Reasons for Decision on Assignment of Defence Counsel, Milošević IT-02-54-T, 22 September 2004 (hereafter: Reasons for Decision on Assignment), ICTY Tr Ch, para 44. Cf Sluiter (2005) 17.
(53) See Reasons for Decision on the Prosecution Motion, Milošević, para 40. Cf Decision on the Application, Norman, Fofana and Kondewa, para 11.
(54) Cf Cerruti (2009) 946–8.
(55) In Hill v Spain, the appointed legal aid lawyer did not follow the client's instructions. See infra section 6.3.
(56) The latter situation occurred in Maxwell v the United Kingdom, ECtHR, para 13.
(57) Decision Following Registrar's Notification of Radovan Stankovic's Request for Self-representation, Stanković and Janković IT-96-23/2-PT, 19 August 2005, ICTY Tr Ch I (hereafter: Decision Following Registrar's Notification), paras 3 and 7.
(58) His request for self-representation was denied, but his funding was increased as a result. See Reasons for Oral Decision Denying Mr Krajišnik's Request to Proceed Unrepresented by Counsel, Krajišnik IT-00-39-T, 18 August 2005, ICTY Tr Ch I (hereafter: Reasons for Oral Decision Denying Mr Krajišnik's Request), paras 10, 20–1.
(60) Cf GK Sluiter, ‘Karadžić on Trial’ (2008) 6 J of Intl Crim Justice 617–26, at 618.
(61) Cf MP Scharf and CM Rassi, ‘Do Former Leaders have an International Right to Self-Representation in War Crimes Trials?’ (2005) 20 Ohio St J on Dispute Resolution 3.
(62) WA Schabas, ‘Article 67. Rights of the Accused’, in O Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article, (Nomos Verlagsgesellschaft, 1999) 845–68, at 857.
(63) Melin v France Application 12914/87, Series A No 261-A, ECtHR (1993), paras 24, 25.
(64) MP Scharf, ‘The Perils of Permitting Self-Representation in International War Crimes Trials’ (2005) 4 J of Human Rights 513–20, at 513, 514.
(65) A Zahar, ‘Legal Aid, Self-Representation, and the Crisis at the Hague Tribunal’ (2008) 19 Crim L Forum 241–63, at 241.
(66) B Elberling, ‘Some Observations on Defence Aspects of the Karadzic Case—And a Plea for “Hybrid” Representation in International Criminal Law’, available at 〈http://www.haguejusticeportal.net/eCache/DEF/11/496.html#_edn63, (accessed 13 May 2010).
(68) Scharf (2005) 513.
(70) Ellis (2006–2007) 185.
(71) Cf JPW Temminck Tuinstra, ‘Defending the Defenders. The Role of Defence Counsel in International Criminal Trials’ (2010) 8 J of Intl Crim Justice 463–86.
(72) See rule 44 ICTY RPE; rule 44 ICTR RPE; rule 22 ICC RPE and reg 67 ICC Regulations of the Court (ICC-BD/01-01-04).
(73) See Reasons for Decision on the Prosecution Motion, Milošević, para 39.
(74) Decision on Momčilo Krajišnik's Request, Krajišnik, para 11.
(75) See supra section 3.
(76) Zahar (2008) 246.
(77) Cf Reasons for Oral Decision Denying Mr Krajišnik's Request, Krajišnik, para 34.
(80) Cf Temminck Tuinstra (2009) 266.
(81) See infra, note 144.
(82) See Decision on Motion of Amicus Curiae regarding Appellate Ground of Ineffective Assistance of Counsel, Krajišnik IT-00-39-A, 20 July 2007, ICTY App Ch (hereafter: Decision on Motion of Amicus Curiae), para 8.
(83) Although the prosecution has requested compensation for suffering from inequality of arms in cases before the Tribunal, it is questionable whether it is justified for the prosecution to rely on this fair trial principle. For a discussion hereof, see Temminck Tuinstra (2009) 180–4.
(84) Scharf (2005) 514.
(85) Ellis (2006–2007) 185.
(86) Cf Decision on the Application, Norman, Fofana and Kondewa, paras 13–15, 19.
(87) Cf supra section 2.
(88) See Decision following Registrar's Notification, Janković and Stanković, para 21.
(89) Cf Third Amended Indictment against Kunarac and Kovač, Kunarac et al IT-96-23 and 23/1, 8 November 1999.
(91) Trechsel (2005) 264.
(92) Cf Sluiter (2008) 618.
(93) Decision on the Application, Norman, Fofana and Kondewa, para 10.
(94) See idem.
(95) Sluiter (2005) 12.
(96) Cf Jørgensen (2006) 71.
(97) Reasons for Oral Decision Denying Mr Krajišnik's Request, Krajišnik, para 31.
(100) Cf infra, note 191.
(101) See Public Version of the ‘Consolidated Decision on Assignment of Counsel, Adjournment and Prosecution Motion for Additional Time with Separate Opinion of Presiding Judge Antonetti in Annex’, Šešelj IT-03-67-T, 24 November 2009, ICTY Tr Ch II (hereafter: Public Version of the Consolidated Decision), para 80.
(102) Reasons for Decision on the Prosecution Motion, Milošević, para 40.
(103) Cf J Williams, ‘Slobodan Milosevic and the Guarantee of Self-Representation’ (2007) 32 Brook J Intl L 553–602, at 586.
(104) Faretta v California, 422 US 806 (1975), at 835.
(105) Decision on Interlocutory Appeal, Milošević, para 12, emphasis added. Original quotation marks omitted. Cf Faretta, 834 fn 46.
(106) Decision on Interlocutory Appeal, Milošević, para 13.
(107) Reasons for Decision on Assignment, Milošević, para 33.
(109) Decision on Interlocutory Appeal, Milošević, para 14.
(110) The mentally ill cannot represent themselves in proceedings if their mental illness is preventing them from understanding their proceedings.
(111) Cf Williams (2007) 591.
(112) See Jørgensen (2006) 70–1; Sluiter (2005) 16–19; Williams (2007) 588–91.
(113) Decision following Registrar's Notification, Janković and Stanković, para 22.
(114) See idem.
(115) Decision on Appointment of Counsel and Order on Further Trial Proceedings, Karadžić IT-95-5/18-T, 5 November 2009, ICTY Tr Ch I (hereafter: Decision on Appointment of Counsel), para 21.
(116) See idem.
(117) Transcript Status Conference, Tolimir IT-05-88/2-PT, 30 June 2008, ICTY P-Tr Ch, 176, 177.
(118) Zahar diligently elaborated on the room Šešelj was given to abuse the integrity of the ICTY's proceedings. See Zahar (2008).
(119) Decision on Prosecution's Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence, Šešelj IT-03-67-PT, ICTY Tr Ch II, 9 May 2003 (hereafter: Decision on Prosecution's Motion), paras 22–6.
(120) Decision on Assignment of Counsel, Šešelj IT-03-67-PT, 21 August 2006, ICTY P Tr Ch, para 80.
(122) See Decision on Appeal against the Trial Chamber's Decision on Assignment of Counsel, Šešelj IT-03-67-AR73.3, 20 October 2006, ICTY App Ch, para 52.
(123) See Reasons for Decision (No 2) on Assignment of Counsel, Šešelj IT-03-67-T, 27 November 2006, ICTY Tr Ch.
(124) ICTY, Urgent Order to the Dutch Authorities Regarding Health and Welfare of the Accused, Šešelj IT-03-67-PT, Tr Ch, 6 December 2006. Cf GK Sluiter, ‘Compromising the Authority of International Criminal Justice. How Vojislav Šešelj Runs His Trial’ (2007) 5 J of Intl Crim Justice 529–36, at 531–3.
(125) Decision on Appeal Against the Trial Chamber's Decision (No 2) on Assignment of Counsel, Šešelj IT-03-67-AR73.4, ICTY App Ch, 8 December 2006 (hereafter: Decision on Appeal Against the Trial Chamber's Decision (No 2)), paras 8–10.
(130) See idem.
(132) Milošević died on 11 March 2006.
(133) Sluiter (2007) 533.
(136) Public Version of the Consolidated Decision, Šešelj, para 73.
(138) Idem, emphasis added.
(139) Cf Temminck Tuinstra (2009) 118–25.
(140) Scharf (2005) 514.
(141) Cf A Zahar, ‘Legal Aid, Self-Representation, and the Crisis at The Hague Tribunal’ (2008) 19 Crim L Forum 241–63, at 242.
(142) See Transcript Status Conference, Milošević IT-02-54-T, 30 August 2001, 19.
(143) At the ICTY, and at international criminal courts in general, individuals without any experience on a criminal trial bench can qualify as a judge. Cf Temminck Tuinstra (2009) 127, 128. Cf also M Bohlander, ‘The International Criminal Judiciary: Problems of Judicial Selection, Independence and Ethics’, in M Bohlander (ed), International Criminal Justice: A Critical Analysis of Institutions and Procedures (Cameron May, 2007) 325–90.
(144) Cf Temminck Tuinstra (2009) 247–8.
(145) Decision on Krajišnik Request and on Prosecution Motion, Krajišnik IT-00-39-A, ICTY App Ch, 11 September 2007 (hereafter: Decision on Krajišnik Request), para 46.
(146) Lagerblom v Sweden Application 26891/95, 14 January 2003, ECtHR, para 49.
(147) Rule 44(A)(ii) ICTY RPE.
(148) See Rule 44(B) ICTY RPE.
(149) See Arts 14(C) and 16(D) ICTY Directive on Assignment of Defence Counsel (IT/73/REV. 11).
(150) See rule 44(B) ICTY RPE.
(151) Lagerblom v Sweden, para 61.
(153) Michael and Brian Hill v Spain, para 14.1.
(154) Decision on Krajišnik Request, Krajišnik, para 44.
(155) See supra note 117; Transcript of Status Conference, Tolimir IT-05-88/2-PT, 11 December 2007, 115, 116.
(156) Cf Zahar (2008) 257.
(157) See ICTY Weekly Press Briefing of March 2004.
(158) See Temminck Tuinstra (2009) 209–12.
(159) See Decision on the Accused's Oral Request to Reinstate Messrs Zoran Krasić and Slavko Jerković as Privileged Associates, Šešelj IT-03-67-T D6-1/46233 BIS, 15 February 2010, ICTY Tr Ch III, para 2 (hereafter: Decision to Reinstate Privileged Associates).
(160) Decision to Reinstate Privileged Associates, Šešelj, para 3.
(161) See idem.
(163) See idem.
(165) See Decision on Prosecution's Motion, Šešelj IT-03-67-PT, ICTY Tr Ch II, 9 May 2003, para 23.
(166) See para 5.1(B) Remuneration Scheme.
(167) See Order on the Procedure for the Conduct of Trial, Karadžić IT-95-5/18-PT, ICTY Tr Ch I, 8 October 2009, 8. A legal intern could only on an exceptional basis be allowed to be present in the courtroom, but certainly not ‘as a reward for their work’. Cf Decision on Accused's Request for Authorisation for Legal Interns to Be Present in the Courtroom, Karadžić IT-95-5/18-T, ICTY Tr Ch I, 5 May 2010, paras 7 and 9.
(168) See Decision on Accused's Request to the Trial Chamber concerning Assistance of his Legal Advisor. Public Redacted Version, Tolimir IT-05-88/2-T, 28 April 2010, ICTY Tr Ch II (hereafter: Decision on Accused's Request to the Trial Chamber), para 16.
(170) See idem.
(173) Cf infra, section 7.
(175) Monthly, he received around US$36,500 in legal aid from the Tribunal.
(176) Reasons for Oral Decision Denying Mr Krajišnik's Request, Krajišnik, para 8, emphasis added.
(177) Cf Temminck Tuinstra (2009) 248.
(178) Decision on Accused's Request to the Trial Chamber, Tolimir, para 4.
(179) Zahar suggests the condition that the accused ‘does not personally receive funds from the scheme but has the funds managed by an accountable professional’. Zahar (2008) 252.
(180) See Decision on Krajišnik Request, Krajišnik, paras 38–43.
(181) The experience of such assistants as members of defence teams in regular cases generally ranges from recent law graduates to defence lawyers with less than seven years’ experience. With seven years of relevant experience, lawyers are eligible to be accepted on the registrar's list of defence counsel to be assigned under the legal aid system.
(182) See Decision on Request for Review of OLAD Decision on Trial Phase Remuneration, Karadžić IT-95-5/18-T, 19 February 2010, ICTY Pres, paras 51–3.
(183) Cf Zahar (2008) 245 ff.
(184) Most notably, Decision on the Financing [of] the Defence of the Accused, Šešelj IT-03-67-PT, ICTY Pre-Tr Ch, 30 July 2007.
(185) Cf ICTY Defence Counsel – Trial Legal Aid Policy, 1 November 2009, section F and ICTY Defence Counsel – Pre-Trial Legal Aid Policy, 1 May 2006, available at 〈http://www.icty.org〉 (accessed 11 January 2011).
(186) See Decision on Request for Review of OLAD Decision on Trial Phase Remuneration, Karadžić IT-95-5/18-T, 19 February 2010, ICTY Pres, para 45.
(188) Of course, this could potentially be the side effect. But most people still argue the opposite: that those who represent themselves are having a fool for a client.
(189) Cf Sluiter (2005) 17.
(190) At the ICTY, the judges are responsible for judging as well as amending the Rules of Procedure and Evidence.
(191) Ellis (2006–2007) 183, 185.
(192) See Reasons for Oral Decision Denying Mr Krajišnik's Request, Krajišnik, paras 7, 9–21.
(193) Cf Cerruti (2009) 949.
(195) Decision on Appointment of Counsel, Karadžić, para 27.
(196) Decision on Designation of Standby Counsel, Karadžić IT-95-5/18-T, 15 April 2010, ICTY Tr Ch I, para 9.
(197) See supra notes 167 ff.
(198) Jørgensen (2006) 72.
(199) G Higgins and S Kay, ‘The Right of Self-Representation—The Lawyers in the Eye of the Storm, International Criminal Law Bureau 2010’, available at 〈http://www.internationallawbureau.com/blog/?p=1640〉 (accessed 11 January 2011) 21.
(201) The accused refused representation because he did not recognize the SCSL. Gbao—Decision on Appeal against Decision on Withdrawal of Counsel, Sesay, Kallon and Gbao SCSL-04-15-AR73, SCSL App Ch, 23 November 2004, para 30(g).
(202) Trechsel (2005) 264.
(203) See DD Ntanda Nsereko, ‘Ethical Obligations of Counsel in Criminal Proceedings: Representing an Unwilling Client’ (2001) 12 Crim L Forum 487–507.
(204) Decision on Appeal Against the Trial Chamber's Decision (No 2), Šešelj, para 28.
(205) Decision on Radovan Karadžić's Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, Karadžić IT-95-5/18-AR73.6, 12 February 2010, ICTY App Ch, para 31.
(206) See JPW Temminck Tuinstra, Assisting an Accused to Represent Himself: Appointment of Amici Curiae as the Most Appropriate Option’ (2006) 4 J of Intl Crim Justice 47–63. Temminck Tuinstra (2009) contains an updated version of this article. See 245–61.
(207) Schabas (1999) 857.
(208) Decision on Momčilo Krajišnik's Request, Krajišnik, para 18.
(210) Decision on Motion of Amicus Curiae, Krajišnik, para 8.
(211) Jørgensen (2006) 72.
(213) This can already be achieved for accused represented by counsel by changing the seating arrangement at the ICTY. Because the accused is sitting behind his counsel and in between two guards, it is difficult for an accused to give ad hoc instructions to counsel. Preferably, the accused should sit next to counsel, such as at the ICTR.
(215) See Reasons for Oral Decision Denying Mr Krajišnik's Request, Krajišnik, para 3.
(216) See supra note 77.
(217) See Decision on Accused's Request to the Trial Chamber, Tolimir, para 32.
(218) Cf Williams (2007) 555.
(219) See Decision on Radovan Karadžić's Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, Karadžić IT-95-5/18-AR73.6, 12 February 2010, ICTY App Ch, para 31; Reasons for Oral Decision Denying Mr Krajišnik's Request, Krajišnik, para 24.
(220) See supra section 3.
(221) Arguably, at the ad hoc Tribunals, the time it consumes to try more than one accused in a joint trial is not much longer than trying each of those accused separately in a pro se trial. Particularly in an adversarial procedural system, complex trials intrinsically consume a lot of time, whether the accused is represented or not.
(222) See supra section 6.4.
(223) Peter Robinson, one of Karadžić's advisers, is an experienced international criminal defence counsel.