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

Published online by Cambridge University Press:  27 February 2017

Nina H. B. Jørgensen
Nina H. B. Jørgensen*
Affiliation:
Office of the Prosecutor, Special Court for Sierra Leone
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Extract

In its decision on assigned counsel's motion for withdrawal in the Milosevic case, the trial chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) observed “that assignment of counsel against the wishes of the accused is a developing area of the law both in national and international jurisdictions.” This area of law witnessed rapid development by international criminal tribunals in the latter half of 2004.

Type
Current Developments
Information
American Journal of International Law , Volume 99 , Issue 3 , July 2005 , pp. 663 - 668
Copyright
Copyright © American Society of International Law 2005

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References

1 Prosecutor v. Milošević, Decision on Assigned Counsel’s Motion for Withdrawal, No. IT–02–54–T, para. 22 (Dec. 7, 2004). The documents on the Milošević case that are cited below are available on the ICTY Web site, <http://www.un.org/icty>, unless another reference is given.

2 This Note updates a contribution to the October 2004 issue of the Journal, Nina H. B., Jørgensen, The Right of the Accused to Self-Representation Before International Criminal Tribunals, 98 AJIL 711 (2004)Google Scholar.

3 Milošević, Hearing, at 32, 357 (Sept. 2, 2004) (transcript). The trial chamber had previously carried out a radical review of the future conduct of the trial and formed the view that it might be necessary to assign counsel. Id., Order on Future Conduct of Trial (July 6, 2004).

4 Steven Kay and Gillian Higgins were appointed. Id., Decision (Sept. 3, 2004).

5 Id., Hearing, supra note 3, at 32, 359.

6 Id., Order on Certification to Appeal Decision on Court Assigned Counsel (Sept. 10, 2004).

7 Id., Appeal Against Decision on Assignment of Defence Counsel, Corrigendum, No. IT–02–54–AR73.7, para. 39 (Sept. 29, 2004) (emphasis omitted).

8 Id., Decision on Interlocutory Appeal on Assignment of Defense Counsel (Nov. 1, 2004).

9 Id., Reasons for Decision on Assignment of Defence Counsel, No. IT–02–54–T (Sept. 22, 2004).

10 Id., Decision on Interlocutory Appeal on Assignment of Defense Counsel, supra note 8, para. 12; see also id., Reasons for Decision on Assignment of Counsel, No. IT–02–54–T, para. 40 (Apr. 4, 2003) (trial chamber stating that the right to self-representation is not absolute and that it would keep the position under review).

11 Id., Reasons for Decision on Assignment of Defence Counsel, supra note 9, para. 1 (setting forth Oral Ruling on Assignment of Defence Counsel of Sept. 2, 2004). The trial chamber was guided in its decision by the reports of both an independent physician and Milošević’s regular cardiologist.

12 Id., paras. 29, 32.

13 Id., para. 32. The trial chamber did not feel bound to “indulge the wish of an accused to conduct his own defence where his capacity to do so is so impaired that, were he to continue to do so, there would be a material risk that he would not receive a fair trial.” Id.

14 Id., para. 65.

15 Id., Hearing, supra note 3, at 32, 358.

16 Id., Reasons for Decision on Assignment of Defence Counsel, supra note 9, para. 33.

17 Id., Decision on Interlocutory Appeal on Assignment of Defense Counsel, supra note 8, para. 16.

18 Id., Order on Modalities to Be Followed by Court Assigned Counsel, No. IT–02–54–T (Sept. 3, 2004).

19 The question of Milošević’s Fitness to stand trial at all was raised by assigned counsel and may resurface, but thus far the medical reports have focused on Milošević’s health in the context of self-representation. See id., Order on Future Conduct of the Trial (July 6, 2004); id., Reasons for Decision on Assignment of Defence Counsel, supra note 9, paras. 52–63. On the question of fitness to stand trial, see Prosecutor v. Strugar, Decision re Defence Motion to Terminate Proceedings, No. IT–01–42–T (May 26, 2004).

20 Letter from Assigned Counsel to Registrar, Re: The Prosecutor v. Slobodan Milošević IT–02–54–T—Withdrawal of Assigned Counsel (Oct. 27, 2004), cited in Milošević, Decision on Assigned Counsel’s Motion for Withdrawal, supra note 1, para. 3 n.10.

21 ICTY Registrar, Directive on Assignment of Defence Counsel, Doc. IT/73/Rev. 10, Art. 19(A) (July 28, 2004).

22 Milošević, Decision on Assigned Counsel’s Motion for Withdrawal, supra note 1, para. 19 (emphasis added).

23 Id., para. 17.

24 Id., Decision (Dec. 14, 2004).

25 Id., Assigned Counsel’s Request to President for Review of Decision Refusing Application to Withdraw (Dec. 28, 2004), cited in id., ICTY President, Decision Affirming Denial of Assigned Counsel’s Application to Withdraw, para. 1 (Feb. 7, 2005).

26 Id., Decision Affirming Denial of Assigned Counsel’s Application to Withdraw, supra note 25, para. 13.

27 Prosecutor v. Sesay (No. SCSL–03–05), Brima (No. SCSL–03–06), Kallon (No. SCSL–03–07), Gbao (No. SCSL–03–09), Kamara (No. SCSL–03–10), Kanu (No. SCSL–03–13), Decision and Order on Prosecution Motions for Joinder (Jan. 27, 2004); see also Prosecutor v. Norman (No. SCSL–03–08), Fofana (No. SCSL–03–11), Kondewa (No. SCSL–03–12), Decision and Order on Prosecution Motions for Joinder (Jan. 27, 2004). The case against Norman, Fofana, and Kondewa commenced on June 3, 2004; the case against Sesay, Kallon, and Gbao commenced on July 5, 2004; and the case against Brima, Kamara, and Kanu commenced on March 7, 2005. The documents on these three cases that are cited below are available on the Special Court’s Web site, <http://www.scsl.org>, unless another reference is given.

28 Prosecutor v. Norman, Fofana, and Kondewa, Decision on Application of Norman for Self-Representation, No. SCSL–04–14–T, para. 26 (June 8, 2004).

29 Id., paras. 19, 9.

30 Id., Consequential Order on Assignment and Role of Standby Counsel (June 14, 2004) (on file with author). The order sets out the tasks of standby counsel, which mirror those set out by the ICTY in the Šešelj case. Prosecutor v. Šešelj, Decision on Prosecution’s Motion for Order Appointing Counsel, No. IT–03–67 (May 9, 2003).

31 Norman, Fofana, and Kondewa, SCSL Registrar, Order for Assignment of Standby Counsel for Samuel Hinga Norman, No. SCSL–2004–14–T (June 15, 2004) (on file with author). Norman was provided with facilities in the detention unit to enable him to prepare his own defense. Decision on Request by Norman for Additional Resources, No. SCSL–04–14–PT (June 23, 2004).

32 Proceedings were ordered to continue under Rule 60 of the Special Court’s Rules of Procedure and Evidence, as amended, dealing with trial in the absence of the accused.

33 Prosecutor v. Norman, Fofana, and Kondewa, Ruling on Non-Appearance of First Accused, Second Accused, and Third Accused at Trial Proceedings, No. SCSL–04–14–PT (Oct. 1, 2004).

34 Id, para. 17.

35 Id.,para. 23.

36 The role of court-appointed counsel was to

  • a.

    a. represent the Accused by investigating and preparing for the testimony of Prosecution witnesses and cross-examining them;

  • b.

    b. prepare for and examine those witnesses Court Assigned Counsel deem it appropriate to call for his defence;

  • c.

    c. make all submissions on fact and law that they deem it appropriate to make in the form of oral and written motions before the court;

  • d.

    d. seek from the Trial Chamber such orders as they consider necessary to enable them to present the Accused’s case properly, including the issuance of subpoenas;

  • e.

    e. discuss with the Accused the conduct of the case, endeavour to obtain his instructions thereon and take account of views expressed by the Accused, while retaining the right to determine what course to follow; and

  • f.

    f. act throughout in the best interests of the Accused.

Prosecutor v. Norman, Fofana, and Kondewa, Consequential Order on Role of Court Appointed Counsel, No. SCSL–04–14–PT (Oct. 1, 2004) (on file with author); see also supra note 18 and corresponding text.

37 Prosecutor v. Sesay, Kallon, and Gbao, Decision on Application to Withdraw Counsel, No. SCSL–04–15–T (July 6, 2004).

38 Id., oral ruling, in Hearing, at 14 (July 7, 2004) (transcript); id., Ruling on Refusal of Third Accused to Attend Hearing (July 12, 2004) (containing written reasons for oral ruling of July 7, 2004).

39 Id., Decision on Application for Leave to Appeal Decision on Application to Withdraw Counsel (Aug. 4, 2004). Judge Bankole Thompson dissented, arguing that the court should not allow itself to be the subject of judicial blackmail by embarking on an imaginary and speculative quest for various legal options open to the accused. Id., Application to Withdraw Counsel (Sept. 7, 2004).

40 Id., Decision on Appeal Against Decision on Withdrawal of Counsel, No. SCSL–04–15–AR73 (Nov. 23, 2004).

41 SCSL, Rules of Procedure and Evidence, as amended, Rule 45 te(B).

42 Sesay, Kallon, and Gbao, Decision on Appeal Against Decision on Withdrawal of Counsel, supra note 40, para. 49.

43 Prosecutor v. Šešelj, Decision on Motion for Order Appointing Counsel, No. IT–03–67 (May 9, 2003).

44 Milošević, Appeal Against Decision on Assignment of Defence Counsel, Corrigendum, supra note 7, para. 66.