Self-Representation Before the ICTY: A Case for Reform

Abstract

This article examines the development of self-representation as a serious threat to the conduct of fair and expeditious international criminal trials. Senior-level accused across the international criminal courts and tribunals have for some time endeavoured to self-represent. Some of these institutions have adapted better than others. The ICTY, as the richest source of law on these and most areas of international criminal law, has - through infelicitous decision-making at the appellate level - developed a practically and legally indefensible approach to self-representation that has derailed several trials already. The Milosevic trial serves as a chilling warning to the failure to manage the issue of self-representation, while appellate rulings in the Seselj case have turned those proceedings into a circus While the arrest and transfer of Karadzic heralded claims from within the ICTY that the lessons of the Milosevic case would be learned, the course of that trial revealed the same pathology that has plagued other proceedings. This article recommends that international criminal courts and tribunals exercise a presumption against self-representation in an endeavour to achieve the requirement under international law that these trials be fair. Representation by counsel should be the norm, derogated from only in exceptional circumstances and only to the extent that the trial can still be rendered fairly and expeditiously.

Keywords: self-representation, international criminal trials, ICTY, Miosevic trial, Seselj case, fair trial

JEL Classification: K00, K14, K33, K40, K41, K49