Fair Trials at International Criminal Tribunals: Examining the Parameters of the International Right to Counsel
Kerr, Kate, Georgetown Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. THE RIGHT TO COUNSEL IN INTERNATIONAL AD HOC TRIBUNALS A. Right to Counsel and Waiver Standard B. Assignment of Counsel C. Equality of Arms D. Right to Self-Representation III. THE RIGHT TO COUNSEL AT THE SPECIAL COURT FOR SIERRA LEONE A. Right to Counsel and Waiver Standard B. Assignment of Counsel C. Equality of Arms D. Right to Self-Representation IV. THE RIGHT TO COUNSEL AT THE SPECIAL PANEL FOR SERIOUS CRIMES UNIT IN EAST TIMOR A. Right to Counsel and Waiver Standard B. Equality of Arms V. THE RIGHT TO COUNSEL IN FUTURE COURTS A. Right to Counsel as Currently Defined by International Criminal Proceedings B. Justification for Adhering to Right of Counsel Precedent VI. CONCLUSION
Crimes against humanity, war crimes, and genocide are international crimes. (1) Rape, torture, mass extermination, mutilation, abduction, and persecution are just some of the elements of the atrocity crimes recognized by the international community. (2) With the exception of the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East, government officials responsible for atrocity crimes in the past often avoided prosecution. (3) Those responsible for state-sponsored crimes against humanity, war crimes, and genocide have increasingly been brought to justice in recent years. In 1993, the international community drafted the statute for the International Criminal Tribunal for the Prosecution of Persons Responsible for Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia (ICTY), creating the first international tribunal since World War II in order to prosecute former regime leaders of Yugoslavia for crimes against humanity and war crimes. (4) Since the establishment of ICTY, the international community has also established an International Tribunal for Rwanda (ICTR), Special Panel for Serious Crimes Unit in East Timor (SCU), and Special Court for Sierra Leone (SCSL) to bring those responsible for atrocity crimes to justice. Ad hoc tribunals and hybrid courts (5) are fundamental in re-building nations ravaged by repressive regimes and represent an opportunity to transition to rule of law.
When the international community charges those responsible for atrocity crimes, trials must be fair. The tribunals should represent a model of justice independent and free from manipulation by the presiding government. The right to a fair trial is a basic human right. Article 10 of the Universal Declaration of Human Rights guarantees that "[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal." (6) One of the primary tools used to safeguard the right to a fair trial is the right to counsel. Traditionally, common-law adversarial systems equated the right to counsel as one of the "constitutional safeguards of human life and liberty." (7) For example, the United States constitutionalized the right to "Assistance of Counsel" in its Sixth Amendment. (8) International conventions also recognize the right to counsel. Article 6 of the European Convention for the Protection of Human Rights guarantees the right to counsel "when the interests of justice so require." (9) Article 14(d) of the International Covenant on Civil and Political Rights (ICCPR) states that a person has a right
to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. (10)
Although the convention and covenant provide little guidance on the parameters of the right to counsel, they establish the right as a norm of international law. …