At the beginning of the new millennium, two cases before the International Criminal Tribunal for the former Yugoslavia (ICTY) — namely, Milosević and Šešelj — sparked an outburst of scholarly comment regarding the right to self-representation in the realm of international criminal law. The right that serves as an instrument of a fair trial suddenly became an interesting topic of research for at least two reasons. The first one relates to the status of the persons who invoked such right. Slobodan Milošević was the president of Yugoslavia during the war in the early 1990’s, while Vojislav Šešelj was arguably one of the most prominent political figures of that time, and most certainly, the second in line — after Milošević — who was tried before the ICTY. The second reason was the existence of a certain ambiguity in interpretation, since there was no jurisprudence concerning this matter before international criminal tribunals.
The right to self-representation is guaranteed under Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR). However, due to the plurality of legal systems and different approaches to the interpretation of legal instruments, the general consensus for the scope of interpretation and limitations is lacking in this area of law. In a civil law society, where criminal proceedings are of the inquisitorial character, the practice is to avoid self-representation in serious cases. Criteria for ‘seriousness’ varies from county to country, though the requirements are much more stringent than in a common-law tradition. Setting out such limitations does not necessarily violate the right to self-representation. The European Court of Human Rights (ECtHR) voiced this opinion, maintaining that the right to self-representation is not absolute. The ECtHR spelled out certain constraints that do not infringe the right to a fair trial, laid down in Article 6(3) of the European Convention on Human Rights (ECHR). On the other hand, in the common law countries — where proceedings are adversarial — the right to self-representation is frequently exercised without exacting requirements.
The rules that determine proceedings before the International Criminal Court (ICC) comprise both the inquisitorial and adversarial systems. Yet, indeed remotely, elements of the latter prevail. To that end, without neglecting the complexity of international criminal cases, the ICC should be more flexible when deciding upon the right of the accused to represent himself in person, contrary to the civil law tradition. It should strike a fair balance between the aspirations of the accused on the one hand, and the interests of justice on the other. Moreover, due to the large publicity which most cases before the ICC enjoy, the court should deliberate on this matter with a certain caution. Mainly, political leaders are those who are brought to justice in these cases and they tend to act in a disruptive manner so to challenge the authority of the court. By doing so, their goal is not to mount their defense, but rather to collect as many possible political points in their home countries. Without a proper reaction from the court, the courtroom could be easily turned into a political yard and the credibility of the whole ICC could be endangered.
Threshold for Interference into the Rights of the Accused
Generally speaking, exclusive self-representation is rare. The most common practice for the conduct of defense is for it to be left entirely with counsel. The incentive for self-representation could be a lack of trust towards lawyers, or, for political leaders, more leeway to express their political aspirations and to attract more support for their political ideas. For instance, one could say about Milošević’s appearance before the ICTY that he did not want to defend himself from charges as much as he wanted to prove that the Serbs were the true victims during the Yugoslavian war.
If this was truly the case, this behavior — regardless of any good intentions — amounts to what is classified as a disruption of the trial. The courtroom is not the place where political speeches are to be held. It is the place where one’s guilt should be proven or his or her acquittal directed. Individuals with such endeavors openly challenge the credibility of the court, make irrelevant theatrical speeches and browbeat witnesses. In cases where a lawyer is representing an accused, the judge would have the ability to expel him from the courtroom or disbar him and impose fines or prison time.
This begs a question of what is the threshold for the court’s interference into one’s right to self-representation? According to the ICC Statute, the accused has the right to be represented in person or through legal assistance. Conditions for curtailing his rights are not specified in that body of law. The threshold is undoubtedly crossed where an accused deliberately bullies witnesses, obstructs or boycotts the trial or by any other means behaves in a way that could amount to the forfeit of his right entirely. However, putting aside the obvious, what are the instances that could lead to the forfeiture of the right to be represented in person?
One of the justifications for interfering in the defendant’s rights could be found in the complexity of international cases. The ICC was founded precisely because of the complexity of international crimes as such. Putting on trial former high-political or military leaders for war crimes represents one of the biggest challenges for international judiciary in our time. There are at least four reasons why cases before the ICC should be considered as complex.
Firstly, international criminal law, as a branch of international law, is a system of secondary norms with the main purpose to protect primary norms, viz. international humanitarian law. In national proceedings it is sufficient enough for a lawyer to be acquainted with knowledge of a specific field of law in order to represent clients. On the contrary, a defense counsel, in order to act before the ICC, should master not only international criminal law, but also humanitarian law, law on the use of force and international procedural law at the very least.
Secondly, as afore mentioned, the nature of criminal proceedings could be categorized into two main traditions — inquisitorial and adversarial. The ICC represents a mixture of both models, with a slight prevalence of the latter. Consequently, the ICC is characterized as a hybrid court with judges from both systems, thus an representing additional challenge to even the most prominent international lawyers of our time.
The third reason comes as a logical conclusion. Mass atrocities are often committed by a large group of men. Prosecuting those who are alleged to be perpetrators involves preparing numerous numbers of witnesses, examining a large gamut of evidence, etc. Without a proper team of legal experts, this could be rather overwhelming.
And fourthly, mounting a defense should always include a visit to the actual crime scenes, so a clear picture about the crime can be produced. As the ICC is located in The Hague, crime scenes will be in most cases located in far-away countries where the knowledge of different languages will be required, i.e. only a group of international lawyers is suited to conduct the preparation of the defense. Moreover, it should be born in mind that many (if not every) accused would be incarcerated during the investigation process. Consequently, it would be practically impossible for them to collect the evidence outside their detaining institution.
All of these reasons stipulate the complexity of international trials before the ICC. If taken to its fullest extent, the norm in the ICC Statute prescribing the right to self-representation would not have much of a sense. It is then up to the court to decide upon which cases are highly complex and so require the presence of a defense counsel, and which ones do not meet this high threshold of complexity, which would require the imposition of a legal representative.