Does Living by the Sword Mean Dying by the Sword?
49 Pages Posted: 22 Mar 2012 Last revised: 13 Oct 2017
Date Written: March 21, 2012
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.
Keywords: International Criminal Law, Criminal Law, right to counsel, right to self-representation, court-appointed counsel, standby counsel, counsel as amicus curiae, duty counsel, Prosecutor v. Milosevic, Prosecutor v. Barayagwiza, Prosecutor v. Norman, Prosecutor v. Taylor
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