'Bring Forth the Accused!' Defendant Attitudes and the Intimate Legitimacy of the International Criminal Trial
69 Pages Posted: 10 Mar 2016
Date Written: December 8, 2005
The accused is, oddly, the great forgotten figure of the international criminal trial. There is much interest in the rights of the accused as a generic figure, but very little attention to the actual role of the accused in his own trial. This article argues that the agency of the accused and its impact on both the dynamics, impact and legitimacy of international criminal justice has been considerably underestimated. On the contrary, the accused is one of the most central figure of the trial and his decisions and attitudes will have considerable repercussions on what international criminal justice can hope to achieve. Drawing on socio-legal scholarship and the idea that law is also produced by its subjects, the article proposes a comprehensive typology of defendant attitudes towards their trial. The four attitudes are (i) defiance, the attitude of a defendant who denies a tribunal any legitimacy to prosecute him, (ii) engagement, that of a defendant who defends himself conventionally by denying the charges against him but not the legitimacy of his judges, (iii) sacrifice, that of a defendant who does not contest the charges against him because of an assumption that “someone must take the blame” even if he casts his wrongdoing differently than a tribunal does, and (iv) repentance, the attitude of contrition and remorse of an accused who acknowledges the crimes he committed. The article is not a normative defense of either attitudes but an attempt to understand them for what they are and examine their logic, manifestations and impact on the trial. The article concludes with a few thoughts on how tribunals might understand their relationship to defendants.
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