10 May 2012


'Does Living by the Sword Mean Dying by the Sword?" by Charles Jalloh in 117(1) Penn State Law Review (2012) considers the right to self-representation in international criminal law and unsurprisingly concludes that self-represented litigants end badly.

Jalloh comments -
What do serial killer Ted Bundy, 9/11 terrorist Zacarias Moussaoui and alleged “Butcher of the Balkans” Slobodan Milošević have in common? Besides being accused of perpetrating some of the worst crimes known to law, they each insisted on representing themselves in court without the assistance of a lawyer. Not surprisingly, Bundy and Moussaoui were convicted. And although Milošević died just before trial judgment was rendered, it is widely speculated that he too would have been convicted by the International Criminal Tribunal for the former Yugoslavia.  
This article examines the right to self-representation in international criminal law. Using a comparative law methodology, it demonstrates how the interpretation of that right in international penal courts initially borrowed heavily from U.S. common law and later European civil law to address the problems caused by self-representing, disruptive, and uncooperative defendants. Although the right to self-representation is a Sixth Amendment right in U.S. law, and an equally fundamental one in international criminal law, I argue that it is the type of right that is better in theory than in practice. Since no self-representing defendant in international criminal law has ever succeeded in securing an acquittal, by choosing to represent themselves, accused persons who lack the distance, ability and experience raising a reasonable doubt in a complex criminal trial help pave the way to their own convictions.
He concludes that -
The international criminal law has come quite a long way in the last few decades. In a recent open session at the ICTY on 4 July 2011, the Trial Chamber in the Karadzic case, within just an hour in court, denied a request to give the defendant more time to review the indictment and supporting evidence before entering a plea, denied a request by counsel to withdraw due to a lack of communication with the accused, denied a request by the defendant to delay the trial until his counsel of choice could be assigned, removed the defendant from court for disruptive behavior, and continued entering pleas for the defendant after he was removed.All this occurred without the court-appointed duty counsel, filling in until permanent defense counsel could be assigned, raising a single word of either protest or caution regarding the court’s actions.
This is a remarkable transformation from the decisions discussed in this chapter granting extensive delays to ensure that all of the defendant’s rights were respected. The Šešelj court, for example, allowed the defendant to direct their rulings regarding the assignment of counsel rather than attempting to continue the trial without him being present. The approach in that case is reflective of a common recent trend in decisions issued at international tribunals. Since the heavily criticized handling of the Milošević trial, international courts have steadily become stricter in dealing with attempts by defendants to upset the continuity of the trial. 
Earlier in the days of the international tribunals, fairness trumped expediency in nearly every decision the court issued. With trials at the ICTY and ICTR wrapping up, however, courts have learned how to deal with frivolous attempts by the accused to cause delays while at the same time acknowledging and permitting legitimate exercise of their statutory rights.A much higher importance is now being placed on finishing the mission of the tribunals and completing the administration of justice for the crimes committed almost two decades ago.
There is more to the paradigm shift than simply wanting to complete the proceedings. After Milošević embarrassed the tribunal with his antics, and his death which meant that no formal judgment could be pronounced on his guilt or innocence, there was a definite backlash against the freedom he was granted by the ICTY. The results of this backlash may be reflected in the provisions in the statute of the STL, which allows for the trial of accused in absentia. These types of changes perhaps reflect lessons learned from learning by doing and the belief that stricter controls may be necessary during court proceedings as more and more international criminal trials are held. At the same time, the said changes also raise new concerns about the need to maintain the integrity and fairness of trials for those accused of serious international crimes. The more stringent controls, and especially the in absentia provisions of the STL Statute, are indicative of a steady rise of civil law principles within international law. This gravitational pull is perhaps also reflective of global changes in common and civil law systems. There has been scholarly documentation of the steady convergence of the two types of systems recently. Many of the distinguishing features of each particular system have been slowly adopted by countries of the opposing system as a set of agreed upon best practices has emerged. These developments may lead one to believe that systems of criminal justice at both the national and international level are finally “getting it right,” but there is still much to learn, and future international tribunals would do well not to forget about upholding the interests of justice in each decision.
One important element that has yet to be incorporated into international justice is the principles from alternative legal systems. Both the civil and common law traditions have a largely “western” background that excludes traditional African, Chinese, Indian, Islamic, and many other legal traditions and beliefs. How the major criminal justice belief systems can better adapt to situations where non-western notions of justice predominate is a question yet to be resolved. This question, like all those facing ad hoc criminal tribunals now and yet to exist requires a careful balancing of rights and interests.
If nothing else, this discussion of how courts handle the role of counsel should have illuminated how many different perspectives each decision at the international court can be seen through. Courts have to consider the fundamental rights of the defendant guaranteed by the rules of the court, the interests of the victims looking for the court to quench their thirst for justice, the larger interests, including the finding of truth, fair and expeditious justice, as well as an evidence-based trial, and possibly, even contributions to national healing reconciliation. 
When considering what lessons the international courts should draw from common law systems, civil law systems, and their own unique experiences that aim to balance rights may well be the key. As the international criminal law continues its pursuit to “end impunity”, it is unlikely that any single provision, such as allowing trials in absentia, will determine the success or failure of the provision of international justice. Provided that international tribunals apply such provisions, keeping in mind the interests of justice and the balancing of rights required, international justice will likely come out farther ahead than behind.
As evidence of this truth, consider the cases discussed in this chapter. Despite alleged gaffes in judgment at the Milošević, Šešelj, and Barayagwiza trials, the ICTY and ICTR have been largely successful in fairly prosecuting those responsible for persons accused some of the most gruesome crimes in the world’s recent history, and the legitimacy of those convictions is not substantially contested. It is too soon to judge how history will ultimately measure the success of the ICTR, ICTY, SCSL and the STL. What is clear is that the international community has tasked these tribunals with an exceedingly difficult task, one that requires a careful balancing of rights that no amount of rulemaking or statutory provisions will easily solve.