The right to self-representation and its challenges to the administration of fair trial at the International Criminal Tribunal for the Former Yugoslavia : lessons for the International Criminal Court

Abstract

Although the prosecution of international crimes is complex and relatively new with voluminous technical evidence and a blend of common law and civil law principles not j'an1iliar to many lawyers, some defendants, especially former political and army leaders, have insisted on self-representation thereby waiving their right to counsel. Consequently, such trials have been muddled up and inordinately delayed due to impunity and obstructionist behaviour of the defendants, and caused harm to all those involved as well as the international criminal justice system. The study examines the challenges to the implementation of self-representation and the administration of fair trials at the International Criminal Tribunal for the Former Yugoslavia (ICTY), and draws lessons for future trials at the International Criminal Court (ICC). In response to the challenges and problems caused by self-representation, some authors have advocated for the total abolition of this right while others support the appointment of amicus curiae or standby counsel and or court appointed counsel to assist the defendant in addition to other administrative facilities. The researcher argues that rights, including that to self-representation, are attachments to human beings and cannot be revoked or restricted lightly. Further, ·that the above ntodalities of representation are insufficient to assist a self-represented defendant to attain a fair trial. Instead, it is recommended that a hybrid scheme of representation be introduced where the defendant is allowed to fully participate in the defence of his case in conjunction with a counsel to be appointed on full time basis, from beginning to end of the case, to assist him in securing a fair trial, even if such appointment may be against the will and wishes of the defendant. Further, that a legislative reform be effected to incorporate the above proposals in the ICC legal framework.