A "Fair and Expeditious" Trial: A Reappraisal of Slobodan Milosevic's Right to Self-Representation before the International Criminal Tribunal for the Former Yugoslavia
Hotis, Constantinos, Chicago Journal of International Law
Slobodan Milosevic elected to conduct his own defense in his initial appearance before the International Criminal Tribunal for the Former Yugoslavia ("ICTY" or "Tribunal").1 The Trial Chamber granted the request2 and later reaffirmed the right to self-representation,3 explaining that the rights of the accused could not be "infringed" even in the interests of a "fair and expeditious trial."4 It was careful to emphasize, however, that there may be certain "circumstances" when the appointment of counsel would be necessary.5
Circumstances clearly changed at the ICTY. The Trial Chamber frequendy postponed its proceedings because poor cardiovascular health prevented Milosevic from directing his own defense even with a reduced working schedule. It responded by assigning Steven Kay and Gillian Higgins to assume control over Milosevic's defense6 "in the interests of justice."7 In reaching this decision, the Tribunal weighed competing interests and concluded that the need to conduct a "fair and expeditious" trial superseded Milosevic's right to self-representation.8
The decision to impose counsel on Milosevic was affirmed on appeal.9 The Appeals Chamber reasoned that assigning counsel ensured that the trial would close within a reasonable amount of time,10 but sharply criticized and reversed the modalities11 of the order because they relegated Milosevic to a "visibly second-tier role in the trial."12
Following the Tribunal's order, defense witnesses declined to testify13 and Milosevic refused to cooperate.14 In light of these difficulties, Milosevic's counsel requested to be relieved of their duties to avoid violating the code of ethics governing defense counsel at the ICTY. The Trial Chamber rejected their motion, maintaining that the "presence of assigned counsel is essential to ensure the fair and expeditious conduct of the proceedings."15
This Development analyzes and critiques recent cases on Milosevic's in propna persona defense. Contrary to some arguments that the assignment of counsel will aid the trial process,16 it contends that the ICTY cannot impose counsel because all of the reasons that it used to justify its ruling are inadequate. This Development specifically argues that the "fair and expeditious" rationale, with its emphasis on judicial management, does not legitimize the Tribunal's decision to retract Milosevic's right to self-representation. In fact, it is a poor proxy for justice and may countervail any type of fairness that the ICTY wishes to achieve in its proceedings. This Development concludes that the Tribunal should formally sustain Milosevic's right to self-representation so as to bolster its own legitimacy and positively influence the acceptance of present and future international tribunals.
To these ends, the Development is divided into three parts. In the First Section, the Development will piece together and analyze the various rationales that the ICTY used to justify the imposition of counsel. There will be a corresponding focus on cases outside of the ICTY, particularly from other war crimes tribunals such as the International Criminal Tribunal for Rwanda ("ICTR") and the Special Court for Sierra Leone ("SCSL"). These arguments will be critically assessed and ultimately rejected in the second section. The Third section will question the adequacy and application of the "fair and expeditious" rationale to impose counsel on Milosevic. In a brief Conclusion, the reasons for rejecting the recent decisions from the ICTY will be reassessed.
I. "FAIR AND EXPEDITIOUS" AND OTHER REASONS FOR IMPOSING COUNSEL AT THE ICTY
The Appeals Chamber recognized that individuals before the ICTY have a presumptive right to self-representation.17 Article 21(4)(d) of the Statute for the International Criminal Tribunal for the Former Yugoslavia ("ICTY Statute") expressly provides that an individual has the right "to defend himself in person or through legal assistance of his own choosing. …