SSRN Id2283820

Self-Representation before
the ICTY
A Case for Reform
Gideon Boas*
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 endeav-
oured 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 ç through infelicitous decision-making at the appellate level ç
developed a practically and legally indefensible approach to self-representation that
has derailed several trials already. The Milos› evic¤ trial serves as a chilling warning
to the failure to manage the issue of self-representation, while appellate rulings in
the Ses› elj case have turned those proceedings into a circus. While the arrest and
transfer of Karadz› ic¤ heralded claims from within the ICTY that the lessons of the
Milos› evic¤ 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.
1. Introduction
Self-representation has become something of a scourge on the trials of senior
political leaders who tend to use it as an opportunity to disrupt proceedings
and peddle a political agenda in what should be a tightly controlled criminal
trial. This article asserts that the achievement of best practice in the conduct
* Senior Lecturer in the Law Faculty of Monash University, Australia, and a former Senior
Legal Officer at the International Criminal Tribunal for the former Yugoslavia.
[Gideon.Boas@monash.edu]
............................................................................
Journal of International Criminal Justice 9 (2011), 53^83 doi:10.1093/jicj/mqq061
Advance Access publication 23 October 2010
Electronic
ß Oxford University copy
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All rights reserved. at: https://ssrn.com/abstract=2283820
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54 JICJ 9 (2011), 53^83
of complex international criminal trials will be greatly assisted by a presump-

tion against the right to self-representation. Such an approach, it will
be shown, is legally appropriate and a practical imperative. The effect of this
presumption should amount to limiting, and normally refusing, self-
representation. It is not the intention of this article to explore the complex
myriad of practical implications that go with the imposition of counsel upon
an unwilling accused; rather, this article will explore the legal basis and need
for a change in the current approach before the International Criminal
Tribunal for the former Yugoslavia (ICTY).
Of course, the ICTY is not the only international criminal tribunal to experi-
ence difficulties with self-representation. A curious similarity between the
trials of senior political defendants across the different tribunals is the
increased determination of these accused to represent themselves. This appears
to relate to the personality type of these accused. The desire to speak on their
own behalf, a mistrust of others to represent their understanding of events,
the wish to utilize the forensic trial process as a political podium from which
to attack the judicial process and the political powers and forces which
reduced them from positions of power and leadership to detention and trial,
all appear to be factors motivating this phenomenon. In the ICTY, Milos› evic¤,
Ses› elj, Krajis› nik, Prlic¤ and others, have sought to represent themselves, and at
the International Criminal Tribunal for Rwanda (ICTR), Barayagwiza and
Ntahobali have done likewise, as have Norman and Gbao before the Special
Court for Sierra Leone (SCSL) ç even Saddam Hussein before the Supreme
Iraqi Criminal Tribunal (SICT) had expressed his wish to do so. Whilst the
facts of each case differ, these cases all have similar indicia. They all concern
manipulative accused of relative or significant seniority who do not respect
the authority and legality of the court trying them and who use the forensic
trial process as a political platform and/or as a means to exploit their personal
interests ç even if that is only to obstruct and derail the trial against them.1
This issue has remained ç particularly before the ICTY ç unresolved, and
has again been raised in the context of the trial against Radovan Karadz› ic¤.
Thus far, the trial has already been subject to lengthy delays and postpone-
ments as the Trial Chamber attempts to balance a number of conflicting goals
in order to allow Karadz› ic¤ to represent himself. Whilst it is not possible to con-
clusively ascertain the extent to which Karadz› ic¤’s numerous appeals, requests
for adjournments and postponements are due to his genuine frustration with
the trial process and capacity to adequately prepare, as opposed to calculated
obstruction, it cannot be denied that the practical effect of allowing
self-representation thus far has been to lead to many months of delay. Indeed,
as the Karadz› ic¤ proceedings serve to further reinforce, trials without counsel
are generally substantially and unnecessarily longer than trials with profes-
sional counsel.
1 See G. Boas, The Milos› evic¤ Trial: Lessons for the Conduct of Complex International Criminal
Proceedings (Cambridge-New York: Cambridge University Press, 2007), at 267^268.
Electronic copy available at: https://ssrn.com/abstract=2283820

Self-Representation before the ICTY 55
At the ICTY, successive accused have been allowed to represent themselves

to the detriment of the efficient conduct of proceedings and possibly contrary
to the ability of the Court to ensure a fair trial. The development of the law
relating to self-representation has been less than satisfactory and reached a
farcical state in the S es› elj proceedings. Beginning with a poor legal ruling in
the Milos› evic¤ case, perpetuated by a succession of infelicitous appellate rulings
and further exacerbated by the contorted myriad of resourcing arrangements
engaged in by the Tribunal in an effort to sustain an unworkable regime of rep-
resentation, it is argued that the time has come to end the presumption in
favour of self-representation. While understandable in the early experience of
Milos› evic¤ , the ICTY should have learned from this and other cases and should
not be reliving the same unsatisfactory experience again in the Karadz› ic¤
proceedings.
Key to understanding the issues surrounding self-representation is an
understanding of what self-representation entails. However, the international
tribunals have so far avoided providing such a definition. There are differences
between the approach taken by common-law and civil-law states in interpret-
ing self-representation. Within common law jurisdictions, the right to
self-representation has been interpreted as meaning that the accused acts as
sole counsel, conducting his or her case in its entirety. By contrast, civil-law
jurisdictions require that in serious criminal cases an accused must not
appear in court without assistance of counsel. However, accused in such cir-
cumstances are generally allowed to speak at their trial and intervene.2 This
is because counsel is considered as assisting rather than representing the
accused.3
The position of the ICTY is different to both of these systems. The ICTY
Statute, in wording replicating the International Covenant on Civil and
Political Rights, appears to allow the accused a choice of self-representation
or to be assigned counsel. If the accused chooses self-representation, the ICTY
has interpreted this as meaning the accused may act as lead counsel, but may
be assisted. The Tribunal will generally provide substantial legal assistance,
the parameters of which are in principle set out in the ICTY Registry’s
‘Remuneration Scheme for Persons Assisting Indigent Self-Represented
Accused’. In reality, however, the Registry, President and Trial Chamber regu-
larly vary the support formally provided for ç usually in response to crises
in the proceedings directly resulting from the exercise by an accused of the
right to self-representation. Indeed, as the S es› elj and Karadz› ic¤ cases discussed
below show, the rules set out in this Scheme are not so much rules as
exceptions.
2 See, for instance, Arts 312, 317 and 332 of the French Code of Criminal Procedure; Arts 140 and
240 of the German Code of Criminal Procedure; Arts 421 and 494 of the Italian Code of
Criminal Procedure [see also Ordinanza 421 of 1997 cited in M. Chiavario, ‘Some
Considerations on Faces of Justice by a ‘Non-Specialist’, ’ 6 Journal of International Criminal Law
(JICJ) (2008), at 69].
3 A. Cassese et al. (eds), The Oxford Companion to International Criminal Justice (Oxford: Oxford
University Press, 2009), 508.

56 JICJ 9 (2011), 53^83
Part of the difficulty with grasping the practice of self-representation before

the ICTY (and other tribunals) and how to reform it lies with an uncertain
understanding of the meaning of this term. Despite allowing self-
representation with legally aided assistance being provided, the jurisprudence
has often tended to state the position in absolutes ç or as a ‘binary right’, as
the Appeals Chamber has put it. In reality, however, there may be shades of
self-representation that engage more the civil-law understanding of the con-
cept. A singular example of this arose in a ruling concerning the accused
Praljak.4 In this case, Praljak submitted that the right to counsel and the right
to self-representation are not mutually exclusive and that the assignment of
counsel does not negate the right of the accused to also participate directly in
the proceedings. The Appeals Chamber appeared to leave this possibility open,
stating that ‘the Trial Chamber has not removed the right of the Appellant to
participate directly in the proceedings alongside his counsel. It has merely
placed reasonable restrictions on that right to prevent the Appellant’s needless
waste of court time and to protect the rights of all accused to a fair and exped-
itious trial.’5 This would seem to allow some scope for counsel to be assigned
to an accused, whilst still permitting the accused to participate in the trial.
Despite such flirtation with a more nuanced approach to self-representation,
the key jurisprudence relating to the major accused ç Milos› evic¤, Ses› elj,
Karadz› ic¤ and others ç has reflected the more absolutist conception of the
common law system. As this article will argue, the approach taken by the
ICTY in particular, and the entrenched jurisprudence, leads to the inevitable
conclusion that considerable reform of the system of self-representation before
the ICTY is needed. It also speaks to the importance of the International
Criminal Court (ICC) not following the ICTY in this important area of interna-
tional criminal procedure.
2. Self-Representation in International Law: Defining

the Limits
The current position before the ICTY is unequivocally one of a robust right to
self-representation. The ICTY Appeals Chamber has interpreted Article
21(4)(d) of its Statute as granting the right of an accused to self-representation,
and has characterized this right as an ‘indispensable cornerstone of justice’.6
This proposition, first set out in the Milos› evic¤ case, has been reaffirmed in
4 Decision on Praljak’s Appeal of the Trial Chamber’s 10 May 2007 Decision on the Mode of
Interrogating Witnesses, Prlic¤ et al. (IT-04-74-AR73.11), Appeals Chamber, 24 August 2007,
see in particular x 11.
5 Ibid., x 11.
6 Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence
Counsel, Milos› evic¤ (IT-02-54-AR73.7), Appeals Chamber, 1 November 2004 (hereafter the
‘Milos› evic¤ Appeal Decision on Representation’), x 11.

both the S es› elj and Krajis› nik cases.7 In particular, the Appeals Chamber, in a
series of decisions in the S es› elj case, has shown that even where an accused ap-
pearing pro se significantly obstructs the proceedings, his or her right to
self-representation will still be preserved. The Appeals Chamber has further
ruled that, while an accused’s right to self-representation may be limited in
rare circumstances, any such limitation must be to the minimum extent neces-
sary to protect the Tribunal’s interest in assuring a reasonably expeditious
trial.8 The Karadz› ic¤ Trial Chamber recently reinforced this position. In re-
sponse to the refusal of the accused to attend the commencement of his trial,
the Trial Chamber ordered an adjournment of nearly 4 months. This decision
was justified on the basis that the delay was necessary to give appointed coun-
sel time to prepare for the trial. However, the practical impact of this decision
was to effectively give in to the accused’s wishes, with the court backing
down from its threat to proceed in Karadz› ic¤’s absence and to appoint counsel
to conduct his case.9 It is now poised to proceed with the trial, with a standby
counsel of sorts (Richard Harvey) waiting in the wings should Karadz› ic¤ refuse
to attend and cooperate in his trial.10
Despite the considerable latitude allowed accused persons in the decision to
appear self-represented, the Appeals Chamber has also asserted that, at least
in principle, the right to self-representation is not absolute.11 According
to statements of the Appeals Chamber, the right can be limited if self-
representation, intentionally or unintentionally,12 is ‘substantially and persist-
ently obstructing the proper and expeditious conduct of the trial’.13
Unfortunately, such statements of general principle by the ICTY Appeals
Chamber are not borne out in its rulings concerning particular cases; it has
persistently overruled Trial Chambers which are better placed to determine
the extent to which the exercise of this right is interfering with the fair and ap-
propriate conduct of the proceedings, and has established a confusing and
7 See Reasons for Decision (No. 2) on Assignment of Counsel, S es› elj (IT-03-67-PT), Trial Chamber,
27 November 2006; Decision on Assignment of Counsel, S es› elj (IT-03-67-PT), Trial Chamber,
21 August 2006 (hereafter the ‘Second S es› elj Decision’); Decision on Appeal against the Trial
Chamber’s Decision on Assignment of Counsel, S es› elj (IT-03-67-AR73.3), Appeals Chamber, 20
October 2006 (hereafter the ‘Ses› elj Appeal Decision’); Reasons for Oral Decision Denying
Mr Krajis› nik’s Request to Proceed Unrepresented by Counsel, Krajis› nik (IT-00-39-T), Trial
Chamber, 18 August 2005.
8 Milos› evic¤ Appeal Decision on Representation, supra note 6, x 17.
9 The Chamber did instruct the Registrar to appoint counsel to prepare to step in if in future it
should determine that Karadz› ic¤ had lost his right to self-representation: Decision on
Appointment of Counsel and Order on Further Trial Proceedings, Karadz› ic¤ (IT-95-5/18), Trial
Chamber, 5 November 2009.
10 The Appeals Chamber, on 31 March 2010, dismissed an appeal from a Trial Chamber ruling that
the trial should proceed over the objections of the accused that he has not had adequate time
and facilities to prepare his defence: Decision on Appeal from Decision on Motion for Further
Postponement of Trial, Karadz› ic¤ (IT-95-5/18-AR73.7), Appeals Chamber, 31 March 2010
(hereafter the ‘Appeal Decision on Postponement’).
11 Milos› evic¤ Appeal Decision on Representation, supra note 6, xx 12^13.
12 Ibid., x 14.
13 Ibid., x 13.

58 JICJ 9 (2011), 53^83
unsatisfactory line of precedent. This line of authority commenced with the

Appeals Chamber’s ostensible reversal of the Trial Chamber’s imposition of
defence counsel on Slobodan Milos› evic¤.
3. Development of the ICTY Jurisprudence on

Self-Representation
A. The Milos› evic¤ Case
Early on in his proceedings, Milos› evic¤ informed the Trial Chamber in writing,14
as well as orally during his initial appearance for the Kosovo Indictment in
July 2001,15 that he did not wish to be represented by a lawyer. The Trial
Chamber rejected the prosecution’s suggestion that it should assign a defence
counsel to the accused over his objections, stating:
We have to act in accordance with the Statute and our Rules which, in any event, reflect the
position under customary international law, which is that the accused has a right to coun-
sel, but he also has a right not to have counsel. He has a right to defend himself, and it is
quite clear that he has chosen to defend himself. He has made that abundantly clear.16
However, it has been argued that the right to self-representation does not in
fact amount to a rule of customary law, and that, given the contrary wide-
spread practice of civil-law countries, this proposition would be difficult to con-
clude.17 Furthermore, even in countries where the right to self-representation
is protected,18 there has been a gradual legislative erosion of that right.19
In addition, it is common practice in civil-law criminal justice systems to
14 Written Note by the Accused, Milos› evic¤ (IT-99-37-I), 3 July 2001, Registry pages 3371^3372.
15 Hearing, Milos› evic¤ (IT-02-54-T), Transcript, 3 July 2001, 1^2.
16 Ibid. This ruling was followed by a written decision: Reasons for Decision on the Prosecution
Motion Concerning Assignment of Counsel, Milos› evic¤ (IT-02-54-T), Trial Chamber, 4 April
2003 (hereafter the ‘First Reasoned Decision’).
17 M. Scharf and C. Rassi, ‘Do Former Rogue Leaders Have an International Right to Act as Their
Own Lawyers in War Crimes Trials?’ 20 Ohio State Journal on Dispute Resolution (2004) 1, at 14.
18 For the United States, see Art. [VI], Amendments to the Constitution of the United States of
America; Faretta v. California, 422 US 806 [1975]; United States v. Farhad [190 F3d 1097, 1101
(9th. Cir. 1999)], cert. denied, 529 US 1023 [2000], 1101; Strickland v. Washington, 466 US 668
[1984]; Mayberry v. Pennsylvania, 400 US 455 [1971]; Estes v. Texas, 381 US 532 [1965]; Duncan v.
Louisiana, 391 US 145 [1968]; Martinez v. Court of Appeal, 528 US 152 [2000]; Illinois v. Allen,
397 US 337 [1970]. For Canada, see Constitution Act 1982, Art. 10 (incorporating the Canadian
Charter of Rights and Freedoms); R v. Swain [1991] 1 SCR 933. For England and Wales, see R v.
Woodward [1944] KB 118; R v. De Oliveira [1997] 9 Criminal Law Review 600; R v. Lyons, 68 Cr.
App. R. 104.
19 For Canada, see Criminal Code, RS 1985, x 486(2.3). For England and Wales, see Youth Justice and
Criminal Evidence Act (England) 1999, xx 34, 36, 38. For Scotland, see Criminal Procedure
(Scotland) Act 1995, x 288D(3) and Scottish Executive, ‘Redressing the Balance:
Cross-Examination in Rape and Sexual Offence Trials’ (Scottish Executive Consultations)
available online at http://www.scotland.gov.uk/consultations/justice/rtb-05.asp#b7 (visited
6 April 2010). For Australia, see Crimes Act 1914 (Cth), xx 15YF and 15YG; Criminal Procedure

require representation by counsel in serious criminal matters.20All of this sug-

gests that an assertion that there exists a rule of customary international law
giving rise to a right to self-representation must be incorrect. Finally, these
early comments by the Milos› evic¤ Trial Chamber are the comments of a
three-judge trial bench made during a status conference, and the two subse-
quent reasoned decisions of that Trial Chamber make no claim to the effect
that the right to self-representation amounts to a principle of customary
international law.
In 2004, after two and a half years of trial and many interruptions and ob-
struction to the trial process, the Trial Chamber finally imposed assigned de-
fence counsel over Milos› evic¤’s objections, citing his parlous state of health,
manipulation of his medication regime, and the obstructive impact of these
factors on the capacity of the chamber to ensure that the accused receive a
fair and appropriately expeditious trial.21 Far from removing the accused from
the courtroom or terminating his involvement in presenting his defence, the
Trial Chamber issued an order detailing the manner in which his defence
would proceed, including allowing him the opportunity to both cooperate
with assigned counsel and, where appropriate, to examine witnesses and
make submissions directly to the Chamber.22
The Trial Chamber based its competence to impose counsel on an unwilling
accused on its overarching obligation to ensure a fair trial, as defined
in Articles 20 and 21(4) of the ICTY Statute.23 The Chamber held that the
Act 1986 (NSW), s 294A; New South Wales Law Reform Commission, Questioning of
Complainants by Unrepresented Accused in Sexual Offences Trials, Report No. 101 (2003);
Evidence (Children) Act 1997 (NSW), x 28; Sexual Offences (Evidence and Procedure) Act 1983
(NT), x 5; Domestic Violence Act (NT), x 20AD; Evidence Act 1977 (Qld) x 21 (amendments intro-
duced by Evidence (Witness Anonymity) Amendment Act 2005 (Qld)); Evidence Act 1906
(WA), x 106G. For New Zealand, see Evidence Act 1908, x 23F.
20 See Code of Criminal Procedure of Germany, x 145; Austrian Code of Criminal Procedure, x 41;
Zu«rich (Switzerland) Code of Criminal Procedure, x 11; Swedish Code of Criminal Procedure,
x 21:3. See also Portuguese Code of Criminal Procedure, Arts 62^64. In Spain and Norway,
the accused is required to be represented by counsel unless he is charged with only minor crim-
inal offences for which a prison sentence does not attach: Spanish Code of Criminal
Procedure, Art. 118; Norwegian Code of Criminal Procedure, Art. 94. Outside of Europe, other
civil law countries have similar provisions: see Code of Criminal Procedure of the Republic of
Korea, Arts 282 and 283; Code of Criminal Procedure of Argentina, Arts 463 and 467; Code of
Criminal Procedure of Colombia, Art. 127.
21 First Reasoned Decision, supra note 16, xx 64^68.
22 See Order on the Modalities to Be Followed by Court Assigned Counsel, Milos› evic¤ (IT-02-54-T),
Trial Chamber, 3 September 2004 (hereafter the ‘Order on the Modalities’).
23 Reasons for Decision on Assignment of Defence Counsel, Milos› evic¤ (IT-02-54-T), Trial Chamber,
22 September 2004 (hereafter the ‘Milos› evic¤ Trial Decision on Representation’), x 53, footnote
113. The right to a fair trial encapsulated in these provisions is reflected in the major interna-
tional and regional human rights treaties, including the International Covenant on Civil and
Political Rights (ICCPR), Art. 14(3)(b), (d); European Convention on Human Rights (ECHR),
Art. 6(3)(c); American Convention on Human Rights (ACHR), Art. 8(2)(d). The jus cogens status
of this right is uncontroversial (see e.g. F. Martin et al., International Human Rights and
Humanitarian Law: Treaties, Cases, and Analysis (Cambridge-New York: Cambridge University
Press, 2006), at 36).

60 JICJ 9 (2011), 53^83
minimum guarantees contained in Article 21(4), including the right of an

accused ‘to defend himself in person or through legal counsel of his own
choosing’, are mere elements of this overarching requirement of a fair trial.
The Chamber reasoned that, whether by way of self-representation or legal as-
sistance, the purpose of this provision is to secure the accused’s right to a de-
fence ç itself an essential ingredient for a fair trial. The Chamber considered
that, ‘if at any stage of a trial there is a real prospect that it will be disrupted
and the integrity of the trial undermined with the risk that it will not be con-
ducted fairly’, then it had a duty to implement a regime to avoid that.24 Where
self-representation has such an impact, the Trial Chamber considered it appro-
priate to assign counsel to conduct the defence case.25 In assigning counsel,
the Chamber removed the accused from the control panel of his case, and
required imposed defence counsel to take responsibility for the conduct and
presentation of the defence case.26 This was done on the basis that, ‘if the
Accused was permitted to continue to represent himself, it was inevitable that
his health would suffer, that his life could be at risk, and that he was unfit to
continue to represent himself’.27 The Chamber found that at the very least the
trial would continue to be interrupted frequently to enable him to recover
sufficiently to proceed.28
In the first of a series of regrettable appellate rulings on this issue, the
Appeals Chamber overruled the Trial Chamber, characterizing its decision as
having imposed ‘sharp restrictions’ on Milos› evic¤ that ‘were grounded on a fun-
damental error of law: the Trial Chamber failed to recognize that any restric-
tions on Milos› evic¤’s right to represent himself must be limited to the
minimum extent necessary to protect the Tribunal’s interest in assuring a
reasonably expeditious trial’.29 Although reluctantly upholding the Trial
Chamber’s conclusion that an accused’s right to self-representation could be
limited,30 the Appeals Chamber found that the Trial Chamber’s restriction on
Milos› evic¤’s right of self-representation was not proportionate to the Tribunal’s
interest in an expeditious resolution of the case, and referred in support of
this position to an odd assortment of non-binding rulings from a variety of
jurisdictions, unrelated to the assignment of counsel, asserting a principle
of ‘proportionality’.31
24 First Reasoned Decision, supra note 16, x 33.

25 Ibid.
26 Order on the Modalities, supra note 22.
27 Milos› evic¤ Trial Decision on Representation, supra note 23, x 63.
28 Ibid.
29 See Order on the Modalities, supra note 22.
30 Milos› evic¤ Appeal Decision on Representation, supra note 6, x 15.
31 Ibid. The rulings relied on were Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture,
Fisheries, Lands, and Housing [1998] 1 AC 69 (Privy Council considering whether the appellant
acted in violation of statutory restrictions prohibiting civil servants from publishing their
political views on any matter to anyone in a public place); McConnell v. Federal Election
Commission, 540 US 93 (2003) (US Supreme Court considering whether the Bipartisan
Campaign Reform Act of 2002 violated the US constitutional guarantee of freedom of speech
and association); Chassagnou v. France, Case No. 25088/94, Judgment, 29 April 1999 (European

Although it upheld both the legal principle that a Chamber is competent to

impose defence counsel on an unwilling accused, as well as the exercise of
the Trial Chamber’s discretion to do so in this case, the consequence of the
ruling was to remove the lynchpin of the Trial Chamber’s decision ç the
control of the defence case by counsel. On the basis of the Appeals Chamber
decision, even an uncooperative accused, refusing to communicate with or in-
struct imposed counsel, can have control of the conduct of his case, imposed
counsel in effect being relegated to a standby counsel role. In the context of
the Milos› evic¤ case, the Appeals Chamber decision had the effect of returning
the accused to full control over the preparation and presentation of his
case ç the very thing that the Trial Chamber had sought to disallow on the
basis of medical advice that Milos› evic¤ was not fit to conduct his own defence
and that to continue allowing him to do so risked killing him. Milos› evic¤, fol-
lowing the Appeals Chamber ruling, resumed the conduct of his own case in
full and, some 16 months later, died as a direct result of the cardiovascular
condition with which these matters are concerned.32
B. The Ses› elj Case

In August 2006, almost two years after the Appeals Chamber Decision in
Milos› evic¤ , the Trial Chamber preparing for trial in the S es› elj case determined
that the time had come to impose defence counsel, abandoning a more tenta-
tive ‘standby counsel’ mechanism employed earlier in the proceedings.33 After
recounting Ses› elj’s extraordinary obstructionist behaviour,34 the Chamber
revoked his right to self-representation and imposed counsel.
Court of Human Rights (ECtHR) considering a challenge based on proportionality by a French

landowner required under French law to automatically transfer hunting rights over his land
because it did not meet a certain size); The Edmonton Journal v. Alberta, [1989] CarswellAlta 198
(Supreme Court of Canada concluding that a restrictive ban imposed on publication by certain
legislation did not, as required, impair the right to freedom of expression as little as possible
and went much further than necessary to protect privacy); and Decision on Fatmir Limaj’s
Request for Provisional Release, Limaj, Bala, and Musliu (IT-03-66-AR65), Appeals Chamber,
31 October 2003 (Appeals Chamber itself holding that, when interpreting provisions of the
ICTY Rules governing interim release of accused pending or during trial or appeal, the general
principle of proportionality must be taken into account). Whilst a ‘proportionality principle’
has been adopted by human rights bodies such as the ECtHR and HRC (e.g. Robert Faurisson v.
France, Communication No. 550/1993, UN Doc. CCPR/C/58/D/550/1993[1996], x 8), the specific
jurisprudence relied upon by the Appeals Chamber to justify finding a lack of proportionality
is unconvincing and peculiar.
32 Boas, supra note 1, at 221.
33 See Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Ses› elj with
His Defence, S es› elj (IT-03-67-PT), Trial Chamber, 9 May 2003 (hereafter the ‘Ses› elj Standby
Counsel Decision’).
34 Second S es› elj Decision, supra note 7, Part III. Among other things, Ses› elj has published books
entitled Genocidal Israeli Diplomat Theodor Meron, In the Jaws of the Whore Del Ponte, and The
Lying Hague Homosexual, Geoffrey Nice. See ibid., x 30. He has written to the Tribunal in one
submission stating ‘you, all you members of the Hague Tribunal Registry, can only accept to
suck my cock’ (ibid., x 48), among many other obscene and improper statements.

62 JICJ 9 (2011), 53^83
In coming to this decision, the Trial Chamber determined the applicability of

the following test: whether the conduct of the accused ‘warrants the impos-
ition of restrictions on his right to represent himself in the interests of justice’
and, if so, whether imposing counsel is in the interests of ‘a reasonably exped-
itious trial’.35 The reliance on the interests of justice is an unfortunately
(although no doubt conveniently) nebulous principle, and it might be reason-
ably assumed that what the Chamber had in mind was the more concrete and
accepted right to a fair trial.
The Appeals Chamber promptly overturned the Trial Chamber’s decision,
ruling that the Trial Chamber had not previously explicitly warned Ses› elj that
his conduct might have the effect of the Court removing his right to act in his
own defence; the Trial Chamber had therefore, according to the Appeals
Chamber, acted precipitously.36 This was so, even after the Chamber in its
Second Decision had set out Ses› elj’s extraordinary conduct in great detail. The
Trial Chamber had clearly put the accused on notice of its concern and the
possibility that he would not be allowed to appear pro se. It had appointed
standby counsel in its First Decision with a specific brief to act as Ses› elj’s as-
signed lawyer should the accused’s behaviour mandate such a course of action.
The Appeals Chamber held that, in reference to Rule 80(b) of the ICTY Rules,
a specific warning is required to be given by a Trial Chamber before it takes
measures, and those measures are to be specific in nature and respond to
obstruction caused by the accused. This approach taken by the Appeals
Chamber appears to build a legal principle around a discrete Rule regarding
in-court obstructive behaviour,37 without explaining in any detail how the pro-
vision which concerns a specific type of obstruction under the ICTY Rules is
applied broadly to an accused’s right to appear self-represented. Subsequent in-
terpretations of this rule have enhanced the specificity of the warning that is
required. In its 24 November 2009 Decision, the Trial Chamber stated that
warnings must be issued for the same behaviour, and that even if an accused
is given a number of warnings for one particular kind of disruptive behaviour,
if they then continue to disrupt the proceedings using a different kind of be-
haviour, a new set of warnings must be issued before any action can be
taken.38 This serves to further unnecessarily draw out the process of imposing
counsel on an uncooperative self-represented accused.
Following the Appeals Chamber’s ruling on 20 October 2006, the Trial
Chamber reinstated the terms of its initial ruling imposing standby counsel
on Ses› elj on 25 October 2006, and was forced to delay the scheduled start
35 Decision on Assignment of Counsel, supra note 3.

36 S es› elj Appeal Decision, supra note 7, xx 23^26.
37 Ibid.
38 Public Version of the ‘‘Consolidated Decision on Assignment of Counsel, Adjournment and
Prosecution Motion for Additional Time with Separate Opinion of Presiding Judge Antonetti in
Annex’’, S es› elj (IT-03-67-T), Trial Chamber, 11 December 2009 (hereafter the S es› elj Decision
regarding Consolidation), xx 74^75.

of trial.39 Ses› elj objected to re-imposition of standby counsel and went on a

hunger strike in protest.40 In the meantime, in accordance with the Appeals
Chamber’s ruling, the Trial Chamber issued regular warnings during the
hunger strike, detailing Ses› elj’s obstructive behaviour and stating that if he per-
sisted, the Chamber would again impose counsel. On 27 November 2006, the
Trial Chamber again decided to revoke Ses› elj’s right to represent himself, and
ordered standby counsel to take over the conduct of his defence.41
In a convoluted ruling on 8 December 2006, the Appeals Chamber once
again overruled the Trial Chamber. In doing so, the Appeals Chamber did not
impugn the reasoning in the Trial Chamber’s 27 November 2006 decision ç
the decision that the Appeals Chamber acknowledged it was actually seized
of ç and indeed declared it a lawful application of the principles it set forth
in its own previous ruling.42 Instead, the Appeals Chamber faulted the Trial
Chamber’s 25 October 2006 decision reinstating standby counsel, revealing its
preoccupation with the ‘collision course’ on which that decision had placed
Ses› elj and the Trial Chamber ç evidenced by Ses› elj’s hunger strike.43 The
Appeals Chamber acknowledged that Ses› elj had not satisfied the formal re-
quirements entitling him to appeal; nonetheless, it accepted to consider the
merit of the appeal, intimating that Ses› elj’s hunger strike justified this excep-
tional measure.44 In this way, Ses› elj effectively blackmailed the Appeals
Chamber into hearing his appeal and, it would seem, granting him relief.45
In its ruling, the Appeals Chamber stated:
The Appeals Chamber Decision to ::: [consider the appeal] ::: should in no way be construed
as evidence of the Appeals Chamber rewarding Ses› elj’s behaviour, rather it is recognising
that he does have a right to appeal the impugned decision and that resolution of this issue
is of utmost importance to Ses› elj and to the interests of the tribunal. It is also recognition
of the fact that after 28 days of refusing to take food and medicine, Ses› elj’s condition is
such that he is simply unable to do more to comply with the practice decision, albeit due
to his own actions.46
39 Order Concerning Appointment of Standby Counsel and Delayed Commencement of Trial,

S es› elj (IT-03-67-PT), Trial Chamber, 25 October 2006 (hereafter the ‘Ses› elj Decision Reinstating
Standby Counsel’).
40 Ibid., x 8.
41 Reasons for Decision (No. 2) on Assignment of Counsel, S es› elj (IT-03-67-PT), Trial Chamber,
27 November 2006.
42 Decision on Appeal against the Trial Chamber’s Decision (No. 2) on Assignment of Counsel,
S es› elj (IT-03-67-AR73.4), Appeals Chamber, 8 December 2006 (hereafter the ‘Second S es› elj
Appeal Decision’), x 20.
43 Ibid.
44 Ibid., xx 13^14.
45 Ibid., x 15. Following the Appeals Chamber ruling, preparations for trial in the S es› elj case were
placed on hold and his trial, which commenced later before a different Trial Chamber, has
been plagued by continuing obstructions and delays, including, most recently, a contempt trial
and finding of guilt against Ses› elj, resulting in a 15-month jail term. Decision on Allegation of
Contempt, S es› elj (IT-03-67-R77.2), Trial Chamber, 21 January 2009.
46 Second S es› elj Appeal Decision, supra note 42, x 15.

64 JICJ 9 (2011), 53^83
However, despite its claim to the contrary, rewarding Ses› elj for his behaviour is
precisely what the Appeals Chamber did. It capitulated to him and the very ob-
structionist tactics that led the Trial Chamber to impose counsel in the first
place. This decision is clearly not in the interests of justice, regardless of how
this concept is defined, nor in the interests of ensuring a fair trial. If applied
to its fullest, this decision risks derailing the crucial balance between respect
for an apparent right of an accused to represent himself in international crim-
inal law and the exercise of discretion by a trial chamber to limit that right
where obstruction threatens the fairness of the trial or the interests of
justice.47
Commentators have questioned whether the 8 December 2006 decision was
a sound development in the case law. They have argued, for example, that the
Appeals Chamber was ‘capitulating to pressure’48 and, in so doing, ‘twisting
process and law’49 to move against the emerging case law that entitled a Trial
Chamber to curtail self-representation if obstructionist conduct could be
established.50
The S es› elj decisions, apart from being something of a theatre of the absurd,
further entrenched the earlier Appeals Chamber ruling in the Milos› evic¤ case,
and serve to create an unfortunate precedent to be argued by future accused,
such as Karadz› ic¤.51
C. The Stankovic¤ Case

The case of Radovan Stankovic¤, charged with war crimes committed in the
municipality of Foc›a, Bosnia and Herzegovina,52 is another interesting ex-
ample in the history of self-representation before the ICTY. Stankovic¤ originally
requested counsel and was assigned Milenko Radovic¤.53 Radovic¤ was then sus-
pended by the Court acting upon information that he had engaged in profes-
sional misconduct.54 Consequently, Stankovic¤ was assigned replacement
47 See Boas, supra note 1, 234^235.

48 G. Sluiter, ‘Compromising the Authority of International Criminal Justice: How Vojislav Ses› elj
Runs His Trial’, 5 JICJ (2007) 529, at 534.
49 A. Zahar, ‘Legal Aid, Self-Representation, and the Crisis at the Hague Tribunal’, 19 Criminal Law
Forum (2008) 241, at 244.
50 Sluiter, supra note 48, at 535 (comparing the decision to the ICTR’s decision in Barayagwiza
where, under threat from the Rwandan Government to cease all cooperation, the Appeals
Chamber reversed termination of the case in a final decision with dubious legal reasoning).
See Decision, Barayagwiza (ICTR-97-19-AR72), Appeals Chamber, 3 November 1999; Decision
(Prosecutor’s Request for Review or Reconsideration), Barayagwiza (ICTR-97-19-A), Appeals
Chamber, 31 March 2000.
51 See e.g. Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, Karadz› ic¤
(IT-95-05/18-AR73.6), Appeals Chamber, 19 February 2010, xx 32^44.
52 Decision following Registrar’s Notification of Radovan Stankovic¤’s Request for Self-
Representation, Jankovic¤ and Stankovic¤ (IT-96-23/2-PT), Trials Chamber, 19 August 2005
(hereafter the ‘Stankovic¤ decision’), x 2.
53 Ibid., x 3.
54 Ibid.

counsel. In response, Stankovic¤ demanded that either Radovic¤ be assigned to

him as counsel, or alternatively he be allowed to represent himself. The
Chamber considered ‘whether there exist circumstances under which the exer-
cise by the Accused of his right to self-representation would obstruct the fair
conduct of proceedings in this case and which would call for an exception
and require the Chamber to insist on legal assistance.’55 In determining that
such obstruction would indeed occur, Stankovic¤’s application was eventually
denied.56
The Court firstly considered, as accepted by the Appeals Chamber in
Milos› evic¤ , that ‘the right of self-representation is not a licence to obstruct the
dignity of the court proceedings’,57 and that the ‘Accused deliberately ob-
structed the smooth and effective functioning of the proceedings’.58 Examples
of this behaviour included abusive language, refusal to attend court proceed-
ings and undertaking a four-day hunger strike.59 The Chamber further noted
that the Accused was
restricted from having contacts with any persons other than his family, legal counsel and
diplomatic or consular representatives because he threatened to reveal the identities and
whereabouts of protected Prosecution’s witnesses. The disrespect for protective measures
ordered by the Chamber does not only disqualify the Accused from representing himself in
person but also brings him in a position where he practically relinquished the vital facilities
required for the preparation of what could be called even by the lowest standards a
defence.60
The Chamber concluded by stating that

it is not in the interest of justice, in particular that of a fair trial, to allow the Accused to
waive his right of legal assistance. The Accused’s deliberate and serious misbehaviour
before this Tribunal, in itself, requires that the Chamber insists on legal assistance to be
imposed on the Accused.61
This decision is clearly a more restrictive interpretation of self-representation

than other ICTY decisions, such as those outlined above in Milos› evic¤ and
S es› elj. Such an interpretation places more emphasis upon to the right of a fair
trial being the overarching consideration in determining whether or not to
allow the accused to self-represent.
The subsequent rulings of the Appeals Chamber in the S es› elj case have cast
doubt over whether the more rigorous Stankovic¤ ruling can be seen as good
law. Indeed, the Appeals Chamber in S es› elj, rejecting a prosecution argument
based on the reasoning in Stankovic¤ , noted that Stankovic¤ was a pre-trial deci-
sion and that subsequent appellate rulings have made the conditions for
55 Ibid., x 19.
56 Ibid., x 25.
57 Ibid., x 22.
58 Ibid.
59 Ibid.
60 Supra note 52, x 24.
61 Ibid., x 25.

66 JICJ 9 (2011), 53^83
imposition of counsel more onerous.62 This reasoning is somewhat dubious,

particularly when one considers the extent of obstruction by Ses› elj, allegations
of and convictions for contempt in relation to violated protective measures
orders concerning witnesses in his trial and the vastly different and deferential
treatment he received in response to his hunger strike. A better, if more un-
comfortable, reason for the differing responses of the Appeals Chamber would
appear to be the effectiveness of Ses› elj’s obstructive behaviour.
D. The Krajis› nik Case

In May 2007, the question of self-representation again returned to the Appeals
Chamber for consideration. The issue was whether to allow the convicted
Bosnian Serb leader, Momc› ilo Krajis› nik, to represent himself on appeal. The
majority concluded, on the basis of its reasoning in the Milos› evic¤ and S es› elj rul-
ings, that the right extended to appeal and that Krajis› nik could represent
himself.63
In a strong dissent, Judge Schomburg registered his ‘fundamentally dissent-
ing opinion’, which he opened by stating: ‘If I were tasked to show that interna-
tional criminal jurisdiction cannot work I would draft the decision in the
same way as was done by the majority of the Appeals Chamber. Therefore,
with all due respect, I have to fundamentally disagree with the decision.’64
Referring to the standing authority on self-representation, Judge Schomburg
continued:
Due to time constraints and considering the particular question before this bench of the
Appeals Chamber, I have to restrict my analysis to whether there is a right to self-
representation in proceedings at the appellate level. This does not mean, however, that I
hold the Appeals Chamber’s past jurisprudence on self-representation during trial to be cor-
rect, having never been assigned to a bench of the Appeals Chamber ruling on this issue.
My necessary self-restraint is based on the fact that this is the first Appeals Chamber deci-
sion dealing with self-representation on appeal.65
Judge Schomburg argued at length that the extension of this right to appeal
proceedings, as understood by the Appeals Chamber, added to a line of author-
ity that already renders it unlikely that a self-represented accused charged
with such complex crimes will receive a fair trial. His concerns, shared by
this author, are reminiscent of the eloquent and disturbing US Federal Court
62 S es› elj Decision regarding Consolidation, supra note 38, x 62.

63 Decision on Momc› ilo Krajis› nik’s Request to Self-Represent, on Counsel’s Motion in Relation to
Appointment of Amicus Curiae, and on the Prosecutor’s Motion of 16 February 2007, Krajis› nik
(IT-00-39-A), Appeals Chamber, 11 May 2007 (hereafter the ‘Krajis› nik Appeal Decision’),
xx 13, 24.
64 Krajis› nik Appeal Decision, supra note 63, Fundamentally Dissenting Opinion of Judge
Schomburg on the Right to Self-Representation. Judge Pocar also dissented from this decision.
65 Ibid., x 5.

appeal ruling in one case, where Justice Reinhardt referred to the accused’s en-
deavours to represent himself at trial as a ‘train wreck or a freeway crash’.66
E. Fast Foreward in Reverse: The Karadz› ic¤ Case

The trial of Radovan Karadz› ic¤ has been the latest development in self-
representation before the ICTY. Karadz› ic¤ is charged with genocide, crimes
against humanity and war crimes. Upon being indicted after 13 years in
hiding, he requested to represent himself. He sought the services of an experi-
enced defence counsel who had represented other accused at the ad hoc
Tribunals, Peter Robinson, who was appointed as Karadz› ic¤’s ‘legal associate’.67
The interesting difference in Karadz› ic¤’s case is the engagement of a large inter-
national team of pro bono lawyers working with Robinson and the Registry
and Trial Chamber formally recognizing these lawyers as rendering legal
assistance to the accused.68
Unlike previous accused, such as Milos› evic¤ and Ses› elj, Karadz› ic¤ gave every
impression of model cooperation up until the scheduled commencement of his
trial in October 2009. He then refused to attend the start of the trial until he
had been given more time and resources to prepare his defence.69 The Trial
Chamber, while threatening to proceed with the trial in his absence, backed
down and adjourned the trial until 1 March 2010,70 stating that the delay was
necessary to give the appointed counsel sufficient time to prepare. At the
same time it started the process of appointing a counsel in waiting, who
would make preparations to take over the presentation of Karadz› ic¤’s case
should he subsequently refuse to attend and participate.71 The Registry
appointed an experienced English barrister, Richard Harvey. While Karadz› ic¤
appealed, Mr Harvey was assigned and is, at least in theory, now in a position
to assume his role as assigned counsel.72
66 United States of America v. Farhad [190 F3d 1097, 1101 (9th. Cir. 1999)], 1102.
67 See Decision on Accused Motion for Adequate Facilities and Equality of Arms, Karadz› ic¤
(IT-95-5/18-PT), Trial Chamber, 28 January 2009 (hereafter the ‘Karadz› ic¤ Adequate Facilities
Decision’), x 2.
68 See Status Conference Transcript, Karadz› ic¤ (IT-95-5/18-PT), 17 August 2009, at 145^148; Mike
Corder, ‘Karadz› ic¤ Wages Paperwork Blitz in War Crimes Trial’, Associated Press, 29 August
2009. The author of this article was one of the lawyers providing pro bono legal assistance in
the preparation of preliminary motions relating to points of law.
69 Motion for Postponement of Trial, Karadz› ic¤ (IT-95-5/18-T), Trial Chamber, 1 February 2010.
70 Decision on Appointment of Counsel and Order on Further Trial Proceedings, Karadz› ic¤
(IT-95-5/18-T), Trial Chamber, 5 November 2009.
71 Ibid.
72 See Registrar’s Response to Motion to Vacate Harvey, Karadz› ic¤ (IT-95-5/18-T), Trial Chamber,
15 December 2009; Reply Brief: Motion to Vacate Appointment of Richard Harvey, Karadz› ic¤
(IT-95-5/18-T), Trial Chamber, 18 December 2009; Decision on the Accused’s Motion to Vacate
Appointment of Richard Harvey, Karadz› ic¤ (IT-95-5/18-T), Trial Chamber, 23 December 2009;
Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, Karadz› ic¤ (IT-95-5/
18-AR73.6), Appeals Chamber, 19 January 2010; Reply Brief #1: Appeal from Decision on
Motion to Vacate Appointment of Richard Harvey, Karadz› ic¤ (IT-95-5/18-AR73.6), Appeals

68 JICJ 9 (2011), 53^83
On appeal, Karadz› ic¤ argued that whilst he had elected to be self-represented,

if the Court was to choose counsel to step in on his behalf, he should have a
degree of choice over who that would be, as is the right granted to those who
opt not to request self-representation and instead rely on counsel.73 He relied
on the S es› elj case, where Ses› elj was granted the right to have a role in choosing
counsel to step in on his behalf, even though Ses› elj was representing himself.74
The Appeals Chamber upheld the Trial Chamber’s decision, and noted that the
choice to self-represent was a binary option ç and that by electing to represent
himself, Karadz› ic¤ forfeited the choice over which counsel would replace him if
this was required.75 The Court also noted that the S es› elj decision was rendered
in a unique factual and procedural context very different to Karadz› ic¤’s, and
therefore was not relevant to his present circumstances.76 The Court further
noted that Mr Harvey would only take over the case if Karadz› ic¤’s own actions
in refusing to cooperate with the Court made it impossible to effectively con-
duct the trial, and that this was an additional reason why Karadz› ic¤’s appeal
should be dismissed.77
The Karadz› ic¤ case has recently resumed. Already, issues have been raised as
to whether the case can be conducted in a fair and expeditious manner. On
the first day of cross-examination, Karadz› ic¤ requested exceptionally long
periods in which to cross-examine witnesses. For example, for the witness
Ambassador Okun, the prosecution sought three hours to examine the wit-
ness, whilst Karadz› ic¤ requested 14 hours to cross-examine ç a request
described by presiding Judge Kwon as not ‘responsible or realistic’.78 Judge
Morrison noted that Karadz› ic¤ was making a number of fundamental mistakes
in cross-examination, raising questions about whether Karadz› ic¤’s self-
representation can be consistent with a ‘fair trial’. Judge Morrison noted, for
example, that the accused was making comments in the process of
cross-examining, which the Judge noted could be taken as an admission and
therefore be used as evidence by the Prosecution.79 It is also unclear how the
arrangement with standby counsel, Richard Harvey, is to function, himself
noting that until 13 April he felt as though he and his team were unclear of
their role and had been on ‘tender hooks’.80
Chamber, 1 February 2010; Decision on Radovan Karadz› ic¤’s Appeal from Decision on Motion
to Vacate Appointment of Richard Harvey, Karadz› ic¤ (IT-95-5/18-AR73.6), Appeals Chamber,
12 February 2010.
73 Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, Karadz› ic¤ (IT-95-5/
18-AR73.6), Appeals Chamber, 19 January 2010, xx 15, 46^55.
74 Ibid., xx 32^45.
75 Decision on Radovan Karadz› ic¤’s Appeal from Decision on Motion to Vacate Appointment of
Richard Harvey, Karadz› ic¤ (IT-95-5/18-AR73.6), Appeals Chamber, 12 February 2010, xx 28^29.
76 Ibid., xx 30^32.
77 Ibid., x 27.
78 Karadzic, Transcript, page 1002, lines 3^17, 13 April 2010.
79 Ibid., at 1085.
80 Ibid., at 999, line 9.

The rulings in the Karadz› ic¤ case raise serious questions about the legal rea-
soning and policy underpinning the legal position on self-representation
before the ICTY. It is ironic that the Appeals Chamber should approve Mr
Harvey’s assignment and admonish Karadz› ic¤ for seeking a role in the decision
of counsel who might ultimately represent him should he refuse to participate
or cooperate in his trial. It is the Appeals Chamber that has set a precedent by
which it is almost impossible to remove a professed right to self-representation.
Yet, as the Appeals Chamber has held that removal of this right could only be
exercised to the most limited extent essential to ensure a fair trial,81 it would
seem prudent to enable appointment of counsel who may ultimately conduct
his case to comport to some degree with the accused’s own choice. To put it an-
other way, the Appeals Chamber is, on the one hand, requiring that an accused
be given considerable latitude in the exercise of his right to self-representation
and, on the other hand, insisting that once an accused has chosen to represent
himself he forfeits any say in the choice of counsel who may present his case.
As is clear from the practice of the ICTY, there are clearly shades on the repre-
sentation scale that render the represented by counsel/self-represented
dichotomy (or a ‘binary’ decision, as put by the Appeals Chamber) an over-
simplification of what in fact occurs.
4. Attempts by the International Tribunals to Respond

to the Issue of Self-Represented Accused
A. ICTY
The ICTY has, at least formally, recognized problems relating to self-
represented accused by creating Rule 45ter of the Rules of Procedure and
Evidence in 2008.82 This rule states: ‘The Trial Chamber may, if it decides that
it is in the interests of justice, instruct the Registrar to assign a counsel to rep-
resent the interests of the accused’. Rather than developing the position regard-
ing self-representation before the ICTY, this rule has been interpreted as doing
no more than consolidating existing jurisprudence on this issue. The Appeals
Chamber in the S es› elj case, for example, rejected an interpretation of Rule 45
as suggesting the imposition of counsel (as in the Stankovic¤ case), stating
rather that ‘the clear terms of Rule 45 ter of the Rules indicate that the object-
ive pursued by the adoption of this provision was to codify, and not modify,
case-law by specifically recognizing the discretionary power of a Chamber to
assign counsel in the interests of justice’.83 Thus, whatever the intention of
the plenary of Judges in creating this rule, it has had no practical effect.
81 Milos› evic¤ Appeal Decision on Representation, supra note 6.

82 Rules of Procedure and Evidence of the International Criminal Tribunal for the former
Yugoslavia, Rev. 44, 10 December 2009, Rule 45ter, ‘Assignment of Counsel in the Interests of
Justice’ (hereafter the ‘ICTY RPE Rule 45 ter’).
83 S es› elj Decision regarding Consolidation, supra note 52, x 63.

70 JICJ 9 (2011), 53^83
B. Special Tribunal for Lebanon

The problems that plague the ICTY have been specifically addressed in the
recently created Special Tribunal for Lebanon (STL). Rule 59 of the STL Rules
of Evidence and Procedure states:
A suspect or an accused electing to conduct his own defence shall so notify, in writing, the
Pre-Trial Judge or a Chamber of his election. The Pre-Trial Judge or a Chamber may
impose counsel present or otherwise assist the accused in accordance with international
criminal law and international human rights where this is deemed necessary in the inter-
ests of justice and to ensure a fair and expeditious trial.84
While both the ICTYand STL permit the imposition of counsel where the ‘inter-
ests of justice’ require it, the STL goes a step further and expressly provides
for the imposition of counsel to ensure a ‘fair and expeditious trial’. While the
emphasis upon a ‘fair trial’ is prima facie consistent with ICTY jurisprudence
on this issue, STL Rule 59(F) is asserted as a positive development, apparently
expressly designed to deal with a number of the problems that have emerged
with self-represented accused from the ICTY. This can be seen by the explana-
tory memorandum of the President. In explaining the need for Rule 59(F), the
President specifically refers to the ‘recent unfortunate experiences at
the ICTY’, and aims to make Rule 59(F) ‘consistent with the case law of the
European Court of Human Rights’, and ‘major decisions of national courts’.85
Thus the right of the accused provided under Article 16 of the STL Statute to
‘defend himself or herself in person’ is construed ‘as the right of the accused to
ask questions, call witnesses or examine or cross-examine witnesses either
himself or ç whenever required by the interests of justice ç with the assist-
ance of defence counsel (of the accused’s own choosing or assigned by the
Tribunal)’.86 Counsel may be imposed where ‘the judges find that this is neces-
sary in the interests of justice and to ensure a fair and expeditious trial’.87
This appears to suggest that the right to self-representation will be interpreted
in a more qualified manner than the ICTY.
C. Special Court for Sierra Leone

The issue of self-representation has also been addressed by the SCSL. The Court
has recognized a ‘qualified right to self-representation’.88 In the Norman case,
84 Special Tribunal for Lebanon Rules of Procedure and Evidence, Rev. 1, 10 June 2009, Rule 59 F,
‘Assignment of Counsel’ (hereafter the ‘STL RPE Rule 59 F’).
85 Special Tribunal for Lebanon, Rules of Evidence and Procedure (as of 10 November 2009),
Explanatory Memorandum by the Tribunal’s President (hereafter the ‘STL Explanatory
Memorandum’), x 31.
86 Ibid.
87 Ibid.
88 Decision on the Application of Samuel Hinga Norman for Self Representation under Article
17(4)(d) of the Statute of the Special Court, Norman, Fofana, and Kondewa (‘CDF Case’)
(SCSL-04-14-T), Trial Chamber, 8 June 2004 (hereafter the ‘Norman Decision on

decided in 2004, the Trial Chamber considered that there were six consider-
ations for deciding whether the right to self-representation should be limited:
(1) the right to counsel is predicated upon the notion that representation by counsel is an es-
sential and necessary part of a fair trial; (2) counsel relieves the burden on the trial judges
of explaining and enforcing basic rules of courtroom protocol and assisting the accused;
(3) given the complexity of such trials, permitting an inexperienced (and likely untrained)
accused to present his or her own defence risks unfairness to the accused; (4) there is a
public interest, national and international, in the expeditious completion of the trial;
(5) there is the high potential that self-representation would further disrupt the Court’s
timetable and calendar; and (6) there is a tension between giving effect to the right of an
accused to self-representation and that of his co-accused to a fair and expeditious trial as
required by law.89
It is clear that these six considerations represent a significantly more

qualified and restricted right to self-representation, than the right as inter-
preted by the ICTY. The Norman decision appears to address the specific
trial-related concerns relating to an accused, as well as engaging the funda-
mental issue of the fairness of the trial and apprehending the broader public
interest at stake.
5. Relevance of the European Convention on Human

Rights and International Covenant on Civil and
Political Rights Jurisprudence on Self-Representation
The significance of the human rights regime to international criminal proced-
ure is evident from the persistent reference by the international criminal tribu-
nals in their work to human rights standards and their application in the
human rights regime.90 Indeed, the early rulings on self-representation made
reference to the limited European Convention on Human Rights (ECHR) and
HRC jurisprudence, although their interpretation and treatment of these
Self-Representation’), x 8. Art. 17(4) SCSLSt. reproduces the language of Art. 21(4) ICTYSt. and
Art. 20(4) ICTRSt.
89 Ibid., x 26. Following the decision, standby counsel were imposed. When Norman subsequently
refused to appear in Court, however, his right to self-representation was revoked and standby
counsel were transformed into ‘court appointed counsel’. Ruling on the Issue of
Non-Appearance of the First Accused Samuel Hinga Norman, the Second Accused Moinina
Fofana, and the Third Accused, Allieu Kondewa at the Trial Proceedings CDF
(SCSL-04-14-PT), 1 October 2004; Consequential Order on the Role of Court Appointed
Counsel, 1 October 2004, CDF (SCSL-04-14-PT). See also Nina H.B. Jrgensen, ‘The Problem of
Self-Representation at International Criminal Tribunals: Striking a Balance between Fairness
and Effectiveness’, 4 JICJ (2006) 64, 67^68 (discussing this case).
90 For a discussion of the right to a fair trial, see generally S. Zappala', Human Rights in
International Criminal Proceedings (Oxford: Oxford University Press, 2003); C.J.M. Safferling,
Towards an International Criminal Procedure (Oxford: Oxford University Press, 2001), 21^30.

72 JICJ 9 (2011), 53^83
precedents varied in accuracy and applicability to the regime of international

criminal law.
The root of an articulated right of an accused person to self-representation
is to be found in many of the regional human rights conventions. Article
21(4)(d) of the ICTY Statute is derived from Article 14(3)(d) of the
International Covenant on Civil and Political Rights (ICCPR) and is similar to
Article 8(2)(d) of the American Convention on Human Rights, Article 6(3)(c)
of the ECHR and Article 67 of the Rome Statute of the ICC. Its application in
the human rights regime has generally yielded an interpretation of there
being some right to self-representation which reposes in an accused, but that
this right is and can be limited for various reasons.91 The ICTY rulings that
have referred to some of this human rights jurisprudence have often reflected
its relevance and applicability rather unconvincingly (for example, by prefer-
ring the sparsely reasoned decision of the HRC in Hill to the superior reason-
ing of the ECHR in Croissant because Hill was based on the ICCPR, which is
the root of Article 21 of the ICTY Statute92) and reinforced a robust right to
self-representation by reference to US case law (particularly early on in the
development of this area of law), where the most extreme application of such
a right exists.93
While the human rights jurisprudence dealing with this issue provide expli-
cit reference to the fairness of the proceedings as fundamental to the accept-
ance and limitation of a right to self-representation, the ICTY jurisprudence
itself makes reference to this principle. What is of greatest significance is the
content of the principle as it is applied in international criminal law.
91 See the jurisprudence of the ECtHR: Croissant v. Germany [1992] A237-B Eur Court HR (Ser A);
Correia de Mateos v. Portugal [2001] Eur Court HR, Case No. 48188/95; X. V. Norway, Decision,
30 May 1975, DR 3, 43; Weber v. Switzerland [1990] 12 EHRR 508; X v. Austria, Case No. 7138/
75, Commission decision, 5 July 1977, DR 9, 50. Contra one case of the Human Rights
Committee: Michael and Brian Hill v. Spain, Human Rights Committee, Communication No.
526/1993, UN Doc. CCPR/C/59/D/526/1993, 2 April 1997 (the relevance of this decision was chal-
lenged by the Trial Chamber in a decision rendered in the Milos› evic¤ case: Reasons for Decision
on Assignment of Defence Counsel, Milos› evic¤ (IT-02-54-T), Trial Chamber, 22 September 2004,
x 44, as well as in the S es› elj case: Decision on Prosecution’s Motion for Order Appointing
Counsel to Assist Vojislav Ses› elj with his Defence, S es› elj (IT-03-67-PT), 9 May 2003, x 18. See
also, scholarly challenge to the view that Art. 14(3)(d) ICCPR, from which the relevant provi-
sions derive, supports a right to self-representation: Scharf and Rassi, supra note 17, at 11; D.
Weissbrodt, The Right to a Fair Trial under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights ^ Articles 8, 10, 11 of the Universal Declaration
of Human Rights (The Hague: Martinus Nijhoff, 2001), 45; M. Nowak, UN Covenant on Civil and
Political Rights: CCPR Commentary (Kehl, Artlington: N.P. Engel, 1993), at 258.
92 See, Reasons for Decision on Assignment of Defence Counsel, Milos› evic¤ (IT-02-54-T), 22
September 2004, footnote 44.
93 For a detailed discussion of the human rights and comparative law jurisprudence and its
application by the ICTY, see Boas, supra note 1, chapters 1 and 4; M.P. Scharf,
‘Self-Representation versus Assignment of Defence Counsel before International Criminal
Tribunals’, 4 JICJ (2006) 31^46.

6. Resources Issues Associated with Allowing

Self-Representation: Procedural Contortion
Another aspect of the incoherence that the system of self-representation brings
to international criminal procedure is the procedural contortion that has been
required to facilitate this right and allow the proceedings to continue in a
manner that might be considered consistent with the equality of arms, the
need to provide an expeditious trial and the overarching requirement of a fair
trial.
The proceedings in the Milos› evic¤ case provide an excellent example of this
phenomenon. The contortion engaged in by the ICTY in continuing to allow
Milos› evic¤ to represent himself included the appointment of numerous amici
curiae to act as quasi-defence counsel, the creation of a full-time professional
staff post in the Office of the Registry to act as a liaison between Milos› evic¤
and the Tribunal, the appointment of three legal associates with the right of
privileged communication with the accused and the provision of extraordinary
resources at the UN Detention Unit and at the Tribunal.94
The Karadz› ic¤ case has also engaged a circus of argument relating to ad-
equacy of resources, leading to judicial and administrative appeals. On 19
February 2010, Karadz› ic¤ was granted additional resources in a ruling of the
President overturning the Registrar.95 In his appeal, Karadz› ic¤ submitted that
depriving a self-represented accused of support equal to that deemed necessary
for a represented accused violates Article 21(4)(d) of the Statute of the
Tribunal which grants an accused the right to have adequate time and facil-
ities for the preparation of the defence96 ç a right the Appeals Chamber has
linked clearly to the jus cogens right to a fair trial.97 He requested an increase
in remunerable out-of-court hours per month from 250 to 1,200, and a pay in-
crease for his lead assistant, Peter Robinson. The President held that it was in
the interests of justice to meet Karadz› ic¤’s request by increasing the court
funded legal assistance from 250 remunerable hours a month to 1,200 until
the resumption of trial, and then following the resumption of trial 750 remu-
nerable hours a month.98 The President took into account the facts that Mr
Robinson had been granted by the Trial Chamber a ‘right of audience limited
to addressing the Trial Chamber on legal issues that arise during the proceed-
ings’ on Karadz› ic¤’s request, and that this went beyond the tasks, functions and
legal responsibility of legal associates as envisaged by the Appeals Chamber,
and more closely reflected work undertaken by co-counsel.99 He, therefore,
increased his wages from E25 an hour to E71.100
94 See Boas, supra note 1, at 258^264.

95 Decision on Request for Review of OLAD Decision on Trial Phase Remuneration, Karadz› ic¤
(IT-85-5-18/T), Trial Chamber, 19 February 2010.
96 Ibid., x 16.
97 Judgment, Krajis› nik (IT-00-39-A), Appeals Chamber, 17 March 2009.
98 Ibid., xx 45^46.
99 Ibid., x 51.
100 Ibid., x 53.

74 JICJ 9 (2011), 53^83
Buoyed by the acknowledgement by the President that he required greater

resources to enable preparation for his trial, Karadz› ic¤ sought an adjournment
of the trial to enable further preparation time.101 The Trial Chamber refused
this motion.102 On appeal, Karadz› ic¤ argued that the President in coming to
his conclusion and knowing that the trial was to begin in a matter of days,
made his decision on the basis of an assumption that the trial would be post-
poned, to give Karadz› ic¤ further time to prepare trial and make use of the allo-
cated 1,200 hours a month.103 He was subsequently granted leave to appeal,
and his case was stayed pending the outcome.104
It would seem odd for the President to order that Karadz› ic¤ is to receive
almost four times the assistance he had been granted to date, but only for a
nine-day period before the trial recommenced. Yet, this was exactly the ruling
made by the Appeals Chamber. The Chamber held that the President, in order-
ing the provision of greater resources, was simply responding to the issue of
the level of resourcing, which was an entirely different question to the material
effect of the resourcing level on the commencement or continuation of the
trial ç indeed, it was held that any problems this caused could be remedied
by measures other than the postponement of the trial.105
While not an inherently erroneous holding by the Appeals Chamber, there is
something absurd in the recognition on the one hand of the President that
Karadz› ic¤ was receiving grossly inadequate assistance over an extensive period
of time in pre-trial, while on the other hand holding that this has nothing to
do with the question of whether he could reasonably be expected to be ad-
equately prepared to conduct his defence. The questions this raises in relation
to the equality of arms and fairness of the trial cannot be easily dismissed.
This dilemma raises profound questions about the appropriate response to a
self-represented accused in a trial of enormous scope and complexity.
7. An Erroneous Legal Basis for the Right to

Self-Representation
The initial ruling of the Milos› evic¤ Trial Chamber relied heavily on the terms of
the ICCPR as providing a right to self-representation. In fact, a proper interpret-
ation of the plain meaning of Article 14(3)(d) of the ICCPR is far from obvious.
Michael Scharf and Christopher Rassi have reviewed some of the drafting
work for this article. The initial proposal for Article 14 of the ICCPR contained
101 Motion for Stay of Proceedings: Violation of Burden of Proof and Presumption of Innocence,
Karadz› ic¤ (IT-95-05/18-T), Trial Chamber, 2 March 2010.
102 Decision on the Accused’s Motion for Postponement of Trial, Karadz› ic¤ (IT-95-5/18-T), Trial
Chamber, 26 February 2010, x 49.
103 Appeal from Decision on Commencement of Evidence, Karadz› ic¤ (IT-95-05/18-AR73.7), Appeals
Chamber, 9 March 2010, x 24^47.
104 Oral Decision on Certification to Appeal and Stay Pending Appeal, Karadz› ic¤ , Transcript, 2
March 2010, at 993-95.
105 Appeal Decision on Postponement, supra note 10, x 22.

no mention of a right to self-representation, and subsequent discussion leading

to the final provision concerned the right to access counsel and indigence.106
This history suggests that the drafters placed limited weight on the relevance
of the provision to a right to self-representation.107 Manfred Nowak, in his
authoritative commentary on the ICCPR, has also stated that it is a matter of
dispute whether, under the provisions of Article 14(3)(d), defence counsel can
be imposed on an unwilling accused.108
A further weakness in the initial conceptualization of the right to
self-representation in the ICTY is the unquestioning adherence in this early
ruling to the significance of self-representation before adversarial systems of
criminal justice. The Trial Chamber in its initial decision reasoned:
Adversarial proceedings are a feature of the common law and find little echo in systems
based on civil law ::: [T]he imposition of a defence counsel upon an accused who does not
want one is a feature of inquisitorial systems, but not of adversarial systems.109
But why did the Trial Chamber adhere to a common law approach? The recog-
nition that the ICTY, like all international criminal tribunals, is founded osten-
sibly on an adversarial model in no way mandates that resolution of
procedural questions invariably require following the practice of common law
systems, as opposed to civil-law systems. The ICTY is bound only to apply inter-
national law derived from the traditional sources of international law,110 most
notably customary international law.111 This seemingly blind adherence to ad-
versarial precedent of no binding nature in international criminal proceedings
is motivated by the traditional common law approach found in the case law of
the United States, where the Supreme Court has held that the right to
self-representation is a constitutional right. The treatment of the issue in this
jurisdiction ‘is typically robust and focussed on an extravagant respect for the
exercise by an individual of his free will’.112 In the leading case on the matter,
Faretta v. California,113 which has never been overturned and is still considered
106 Scharf and Rassi, supra note 17, at 11, citing Weissbrodt, supra note 91, at 45.
107 Ibid.
108 Nowak, supra note 91, at 258, cited in ibid. See also Boas, supra note 1, chapter 4.
109 First Reasoned Decision, supra note 12, x 21.
110 As international criminal procedure is a creature of public international law, its primary legal
sources are those enumerated in Art. 38 of the Statute of the International Court of Justice
(ICJ): treaties or conventions; customary international law, or the consistent practice of
states undertaken in the belief that the conduct is permitted, required, or prohibited by inter-
national law; the general principles of law recognized by, and typically derived from the
domestic legal systems of, states; and, as a subsidiary source, commentaries in judicial deci-
sions and academic writings of the ‘most highly qualified publicists’.
111 See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808,
UN Doc. S/25704, 3 May 1993, x 34.
112 G. Boas, ‘The Right to Self-Representation in International and Domestic Criminal Law ^
Limitations and Qualifications on that Right’, in H. Abtahi and G. Boas (eds), The Dynamics of
International Criminal Justice: Essays in Honour of Sir Richard May (Leiden: Nijhoff Publishers,
2004), at 3.
113 Faretta v. California, 422 US 806 (1975) (hereafter ‘Faretta’).

76 JICJ 9 (2011), 53^83
good law, the US Supreme Court held that in its federal courts, the right to
self-representation had been protected since 1789.114
This common law approach can be contrasted with the more restricted ap-
proach taken by the ECtHR in determining whether the legislation of civil-law
states, restricting the right to self-representation, is compatible with Article 6
of the ECHR. The Court’s approach is clearly more aligned with the approach
taken by civil-law jurisdictions, that while an accused may in certain circum-
stances waive their right to legal representation, such a right is not absolute,
and is subject to at least three qualifications.
First, in choosing whether to accept such a waiver,‘account must be taken of
the entirety of the proceedings conducted in the domestic legal order and the
role of the appellate or cassation court therein’. An example of this is where
an accused facing a heavy penalty presented his own defence unassisted
before the highest Court, an occurrence held to be not in conformity with
Article 6 of the ECHR.115 Another example is Croissant, where the ECtHR held
that a provision in the German Criminal Code requiring an accused to be
represented in serious criminal matters was in conformity with Article 6.116
Secondly, neither the letter nor the spirit of Article 6 of the ECHR allows a
person, either expressly or tacitly, to waive the entitlement to the guarantees
of a fair trial. Therefore, if an accused choosing to self-represent will impact
negatively on their ability to receive a fair trial, an application for self-
representation will be rejected.
Finally,‘such a waiver ::: must be established unequivocally and must not run
counter to any important public interest’.117
It is noteworthy that the approach to self-representation is not entirely uni-
form within civil-law states (as it is neither in common law jurisdictions). In
The Netherlands, for example, accused are allowed to represent themselves so
long as it can be established that they have made an unequivocal, knowledge-
able and voluntary waiver of the right to legal representation, although in
complex cases, the court must (repeatedly) inform the accused of the added
value of legal representation.118 However, the overwhelming practice of
civil-law states favours qualification of the right to self-representation.119 It is,
therefore, clear from both the approach taken by civil-law jurisdictions and by
the ECtHR, that there are strong grounds for rejecting the common law ap-
proach to self-representation as being a customary international norm and,
therefore, directly applicable international criminal proceedings.
How the ICTY and other international criminal tribunals fill holes in their
procedural infrastructures is to look to the sources of international law. If no
customary international law principle can be identified then general principles
114 Ibid., at 812.

115 Shulepov v. Russia (Appl. No. 15435/03), ECtHR, 26 June 2008 (hereafter Shulepov decision),
x 32.
116 Croissant decision, supra note 91, x 27.
117 Shulepov decision, supra note 115, x 32.
118 Case No. BI2315, Dutch Supreme Court (Hoge Raad), 17 November 2009.
119 See sources cited in supra note 20.

of international law may be referred to.120 Such an exercise requires the identi-
fication of a sufficiently consistent practice across a number of states represent-
ing different legal systems and cultures.121 As the Trial Chamber in the
Milos› evic¤ case noted early on, although common law systems traditionally
allow for self-representation even in serious criminal cases, the preponderance
of civil-law systems do not.122 Furthermore, even common law systems have
begun a process of erosion of this right (perhaps with the exception of the
United States), acknowledging that there are circumstances and interests that
outweigh a conception that such a right should be robustly granted.123
In short, the legal basis for the assertion that the ICTYand other internation-
al criminal tribunals must, as a starting point, allow an accused
to self-represent is premised on a fiction, articulated without adequate founda-
tion in the Milos› evic¤ case and unquestioningly perpetuated ever since. That is
not an adequate basis for the development of a legal principle with such far
reaching consequences for the conduct of complex international criminal
trials.
8. The Problems Arising from Self-Representation at

the ICTY are Manifold
Three core problems arise from the continuing regime of self-representation
before the ICTY: (i) violation of the equality of arms principle, borne of the in-
herent shortage of legal and practical resources such an accused faces; (ii) the
negative impact of self-representation on the expeditious conduct of these
complex and inherently lengthy proceedings; and (iii) the inevitable use of
self-representation of senior political accused of their pro se status to peddle a
political agenda and obstruct the proper conduct of the criminal proceedings.
Each of these factors, in isolation and certainly in combination, threaten to
undermine the inviolable obligation incumbent on the Court to ensure the
trial is fair.
A. Equality of Arms
Inequality of resources between the accused and the prosecution is a persistent
refrain in these cases. Article 21(1) of the ICTY Statute (like Article 14(1) of
the ICCPR) mandates that ‘[a]ll persons shall be equal before the
International Tribunal’. The issue has come into sharpest focus when ad-
dressed in the context of a self-represented accused in a highly complex inter-
national criminal trial setting. Indeed, while the legal aid system is largely
120 Judgment, Furundz› ija (IT-95-17/1-T), Trial Chamber, 10 December 1998, x 182.
121 Ibid.

78 JICJ 9 (2011), 53^83
adequate, the disparity in defence funding available to service trials of high

level officials when compared with the resources of the Office of the
Prosecutor may be considerable. This can be seen by the number of challenges
to resource decisions by the Registry in these cases.124 An example of this im-
balance can be seen in the Milos› evic¤ trial, where the prosecution at one point
had more than 20 lawyers and investigators working during its case-in-chief.
One filing by the prosecution concerning compliance with its disclosure obliga-
tions is interesting:
At various times, between twenty and forty members of the OTP, including attorneys, inves-
tigators, analysts, legal interns, trial support assistants, language assistants, computer spe-
cialists and administrators were mobilised to sustain a comprehensive and reasonably
expeditious review of all the materials in the OTP’s possession that might be exculpatory
for the Accused. Just one part of this project, electronic searches of the OTP’s collections
by the OTP’s Information Support Unit ::: required the equivalent of twenty-six ‘‘person
years’’ of labour and cost nearly 1.5 million US dollars. To date, the Prosecution team has re-
viewed nearly two million pages of documentary material (apart from hundreds of videos
and other items) and has identified and disclosed (electronically and in ‘hard copy’) more
than 441,751 pages of material pursuant to Rule 68.125
Processing hundreds of thousands of pages of material disclosed by the pros-

ecution, sorting through them and working out what is useful and what is
not is a task a self-represented accused cannot himself easily undertake.
While the processing of such a volume of material is invariably at the heart of
requests for trial postponement or refusal to continue to cooperate, this is far
less apparent in cases where accused people are represented by counsel.
Milos› evic¤, responding to being disclosed more than 1.2 million pages of mater-
ial by the prosecution, had this to say: ‘What is the purpose of providing mater-
ial that nobody has time to read? What occurs to me [is that there is] ::: no
human being able [sic] of handling such a trial. Perhaps that is precisely what
the Prosecutor is guided by’.126 He may have been one of the first
self-represented accused to make such an argument but he was certainly not
the last. The same issue relating to equality of arms permeates the myriad of
administrative and judicial applications and appeals made by Karadz› ic¤. Like
Milos› evic¤, he has been able to complain that he has been served with a vast
124 There have been numerous applications dealing with such issues, the vast majority of which
have ç for obvious reasons ç been rendered confidentially. An example of one such public
decision rendered by the Appeals Chamber is Decision on Appeal by Bruno Stojic¤ against
Trial Chamber’s Decision on Request for Appointment of Counsel, Prlic¤ et al.
(IT-04-74-AR73.1), Appeals Chamber, 24 November 2005.
125 Prosecution’s Comprehensive Report Concerning Its Compliance to Date with Rule 68,
Milos› evic¤ (IT-02-54-T), 20 February 2004, x 2. Rule 68 is the provision in the ICTY Rules
which deals with the disclosure of potentially exculpatory or mitigatory material. The Rule
has radically changed since, but at the time read as follows: ‘The Prosecutor shall, as soon as
practicable, disclose to the defence the existence of material known to the Prosecutor which
in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect
the credibility of prosecution evidence.’
126 Hearing, Milos› evic¤ , Transcript, 25 July 2002, at 8639.

quantity of material in disclosure before even the commencement of his trial.

In his ‘Appeal From Decision on Commencement of Evidence’ filed on 9 March
2010, Karadzic noted that only days away from the scheduled recommence-
ment of his trial, ‘400,000 pages of disclosure remained unreviewed and other
trial preparation tasks remained unperformed’ as a result of the Registrar’s
underfunding of his defence team.127 The inequality in time (let alone re-
sources) between a prosecution, which had over 10 years to prepare, and the
accused, who had about 18 months, raises serious questions about the capacity
of the ICTY in this case, and international criminal tribunals more broadly, to
meet their statutory requirements to provide adequate time and facilities for
the preparation of defence and a procedural equality of arms between the
parties.128
The late Sir Richard May, first presiding judge of the Milos› evic¤ case, had this
to say about the equality of arms in international criminal proceedings:
Although it is clear that the question of equality of arms cannot be reduced to an exact
equation, there must, in the least, be an approximate equality in terms of resources. Any
substantial inequality will call into question the fairness of the trial.129
It is suggested that this is the very crux of the argument about self-
representation. Self-represented accused invariably cries foul and can hold out
considerable evidence of a disparity in time and resources between himself
and the prosecution. Where professional counsel conduct an accused’s case,
such counsel are able to control the flow of material, make forensic choices,
dedicate resources to the right place at the right time and dispassionately
assess the capacity of that legal team to respond to the different phases of the
case. A self-represented accused often functions without legal training (or rele-
vant legal training), they are emotionally connected to every aspect of their
case and are invariably inhibited in the choice of where and when to dedicate
resources in the preparation for and conduct of the trial, and they are often
peddling a political agenda quite inconsistent with best forensic practice. All
this must be considered in the context of the extraordinary scale and complex-
ity of these proceedings.
B. Complexity of ICTY Trials

Milos› evic¤ was tried for 66 counts of genocide, crimes against humanity, grave
breaches of the Geneva Conventions and violations of the laws and customs
127 See Appeal Decision on Postponement, supra note 10, x 15 (note 57).
128 See Decision on Prosecution Appeal Following Trial Chamber’s Decision on Remand and
Further Certification, Prlic¤ et al. (IT-04-74-Ar73.4), Appeals Chamber, 11 May 2007;
Judgment, Nahimana, Barayagwiza, and Ngeze (ICTR-99-52-A), Appeals Chamber, 28
November 2007; Decision on the Prosecutor’s Motion for an Order Requiring Advance
Disclosure of Witnesses by the Defence, Delalic¤ et al. (IT-96-21-T), Trial Chamber, 4 February
1998, x 49.
129 R. May and M. Wierda, International Criminal Evidence (Ardsley, NY: Transnational Publishers,
2002), at 271.

80 JICJ 9 (2011), 53^83
of war. The alleged conduct encompassed more than 7,000 allegations of

wrongdoing over eight years of conflict in the former Yugoslavia.130 By
November 2005, some months before the premature end to the Milos› evic¤ trial,
the record consisted of 46,639 pages of transcript and 2,256 separate written
filings amounting to 63,775 pages.131 The prosecution had introduced 930
exhibits, amounting to 85,526 pages (excluding the content of DVDs
and CD-ROMs containing further material), as well as 117 videos.132 The
most extraordinary statistic, however, concerns the scale of material disclosed
to Milos› evic¤. The combination of Rule 66(A)(ii),133 Rule 66(B)134 and Rule
68135 material disclosed amounted to over 1.2 million pages of documenta-
tion.136
As discussed earlier, Karadz› ic¤’s position is not materially different. Add to the
extraordinary disclosure of material the dramatic increase in the amount of
evidence being led in written form, and the complexity of his case clearly re-
quires a highly organized and resourced forensic defence. Indeed, in the
Karadz› ic¤ case, the prosecution made the extraordinary move of applying to
adduce the evidence of all but two witnesses in whole or in part through writ-
ten statements or transcripts of prior testimony, pursuant to ICTY Rules 92
bis, ter and quater.137
The complexity of these proceedings and the effect of this upon the capacity
of a tribunal to provide a fair trial are well documented.138 The tension created
130 See Boas, supra note 1, at 1.

131 Hearing, Milos› evic¤ , Transcript, 29 November 2005, at 46701.
132 Ibid.
133 ‘(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the
defence in a language which the accused understands within the time-limit prescribed by
the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter ::: (ii) copies of
the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and
copies of all written statements taken in accordance with Rule 92 bis; copies of the statements
of additional prosecution witnesses shall be made available to the defence when a decision is
made to call those witnesses.’
134 ‘The Prosecutor shall, on request, permit the defence to inspect any books, documents, photo-
graphs and tangible objects in the Prosecutor’s custody or control, which are material to the
preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or
were obtained from or belonged to the accused.’
135 ‘Subject to the provisions of Rule 70, (i) the Prosecutor shall, as soon as practicable, disclose to
the Defence any material which in the actual knowledge of the Prosecutor may suggest the
innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evi-
dence; (ii) without prejudice to paragraph (i), the Prosecutor shall make available to the de-
fence, in electronic form, collections of relevant material held by the Prosecutor, together
with appropriate computer software with which the defence can search such collections
electronically.’
136 Hearing, Milos› evic¤ , Transcript, 29 November 2005, at 46701.
137 Hearing, Karadz› ic¤ (IT-95-5/18-PT), Transcript, 8 September 2009, at 445 [Judge Kwon refer-
ring to Prosecution Submission Pursuant to Rule 73bis(D), Karadz› ic¤ (IT-95-5/18-PT), 31
August 2009].
138 See Boas, supra note 1; Zappala', supra note 90; Safferling, supra note 90, at 21^30; P. Robinson,
‘Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the former
Yugoslavia’, 11European Journal of International Law (2000) 569.

by the need for adequate time and resources for an accused to mount an effect-
ive defence to such complex trials and the considerable pressure on the ICTY,
in particular to finish its case load, provide further cause for anxiety over the
choice to allow senior accused in such trials to self-represent.
C. Obligation of an Expeditious Trial

Many procedural developments at the ICTY have evolved in an effort to exped-
ite trials, often appearing as codifications in the Rules of Procedure and
Evidence of principles developed in the jurisprudence.139 While the judges
have invoked the right of the accused to a speedy trial as the motivation
behind these efforts, the primary driving force has clearly been the completion
strategies, a development that has exposed the judges to charges of corner-
cutting that ultimately undermines, rather than vindicates, the accused’s
rights.140
Creating a presumption against self-representation is an area in which the
ICTY could appropriately further its objective of an expeditious trial. In both
Milos› evic¤ and S es› elj, legal counsel was imposed after a considerable period of
obstruction and delay. Even then, the overturning of these rulings by the
Appeals Chamber led to further delay and worse. Where you have an intransi-
gent accused, and one who appears motivated not just by a desire to mount a
forensic case but to assert a political position, it is difficult to implement an ef-
fective regime to ensure that the trial is fair and expeditious. Yet the current
mechanism for allowing self-representation challenges the Tribunals’ ability to
meet these crucial objectives. Even where an accused is outwardly and clearly
uncooperative, the ICTY has struggled to control proceedings and to conduct
them fairly and expeditiously. Milos› evic¤ and S es› elj have provided abundant evi-
dence of the shortcomings of allowing such accused to continue to
self-represent. Based on his behaviour thus far, Karadz› ic¤ appears committed
to disrupting the court process, even if it is with the purpose of insisting on a
reasonable opportunity to prepare and present a defence (invariably more
prolix and complex a proposition than where professional counsel are conduct-
ing such a defence), and he has made it clear in his opening address that he
will use the Court as a platform for peddling a political message.141 Past juris-
prudence from the ICTY would suggest that if Karadz› ic¤ is to go down this
path, the Court will face a struggle in keeping the trial running both fairly
139 See O. Kwon, ‘The Challenge of an International Criminal Trial as Seen from the Bench’, 5 JICJ
(2007) 360, at 364^375; Boas, supra note 1, at 64^66, 189^193.
140 For criticism from within the Appeals Chamber, see Dissenting Opinion of Judge David Hunt
on Admissibility of Evidence in Chief in the Form of Written Statements (Majority Decision
Given 30 September 2003), Milos› evic¤ (IT-02-54-AR73.4), 21 October 2003, at 20^22; Decision
in the Matter of Proceedings under Rule 15bis (D), Nyaramasuhuko et al. (ICTR-98-42-A15bis),
Appeals Chamber, 24 September 2003, Dissenting Opinion of Judge David Hunt, x 17. For aca-
demic criticism, see e.g. G. Lombardi, ‘Legitimacy and the Expanding Power of the ICTY’, 37
New England Law Review (2003) 887.
141 Hearing, Karadz› ic¤ (IT-95-5/18), Transcript, 1 March 2010, at 808.

82 JICJ 9 (2011), 53^83
and expeditiously. If Karadz› ic¤’s conduct leads to the imposition of Richard

Harvey as counsel, the Appeals Chamber will face a dilemma: follow its erro-
neous line of jurisprudence granting a robust right to self-representation, lim-
ited to the least extent feasible, or overturn its own precedent and take a
stronger position on the issue in this case. If it does the former, the bountiful
lessons of past cases render the outcome quite clear. If the latter, one is left to
question why Karadz› ic¤ was allowed to represent himself for so long in the
first place and why it has taken so long for the Tribunal to realize the error of
its ways.
9. A Presumption Against Self-Representation

It is argued that the time has long past for a serious reconsideration of the pos-
ition with respect to self-representation before the ICTY. The problems that
have plagued and continue to plague this and other tribunals because of a
robust and (seemingly) absolute right to self-representation are many. The
international criminal tribunals may be forgiven for much as they develop the
substantive and procedural international criminal law and are at the frontier
of international law making. However, such excuses cease to be acceptable
when practice and experience dictates a simple and legally proper solution.
Lessons learned from past cases, and even now being relived in the Karadz› ic¤
proceedings, dictate a different response from the most experienced interna-
tional criminal tribunal.
Contrary to the poorly reasoned early jurisprudence of Milos› evic¤ ç never
properly revisited or questioned ç nothing in international criminal law dic-
tates that the meaning of Article 21(4)(d) of the ICTY Statute, based on
Article 14(3)(d) of the ICCPR, requires the ICTY ç or any other international
criminal tribunal ç to allow an accused the right to self-representation,
where that right leads to obstruction, delay and abuse that compromises not
just the expeditious conduct of proceedings but their very fairness. Despite
the potential for self-representation to be interpreted with a greater nuance,
more in line with its treatment in civil-law systems, the ICTY in particular
has made it clear that, at least in principle, an accused may appear represented
by counsel or self-represented ç not a mix of the two.
In such circumstances, it is argued here that a presumption against
self-representation in complex international criminal proceedings is both avail-
able in law and is most certainly the best approach available. This can be
seen in a far more sober articulation of the rule before the Special Court for
Sierra Leone142 and from the fact that in other tribunals where an extravagant
right is unavailable ç and where representation by professional counsel pre-
vails ç the kind of crippling problems that characterize self-representation by
high-level accused are far less apparent.
142 See supra note 88.

Given that the ICTY is in its twilight, it is hoped that the Court might itself
remedy the position it has carved for itself; more importantly, however, it is to
be hoped that the International Criminal Court and other international crim-
inal tribunals will not follow the ICTY practice to date. The stakes in these
trials, particularly where they involve high level accused charged with a large
array of crimes giving rise to considerable breadth and complexity, are high.
The capacity of the apparatuses of international criminal law to deliver on the
crucial bottom line of fair and expeditious trials militates in favour of a
presumption against the right to self-representation and an insistence that
an accused be represented by professional defence counsel.

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Self-Representation before

of complex international criminal trials will be greatly assisted by a presump-

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At the ICTY, successive accused have been allowed to represent themselves

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Part of the difficulty with grasping the practice of self-representation before

2. Self-Representation in International Law: Defining

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unsatisfactory line of precedent. This line of authority commenced with the

3. Development of the ICTY Jurisprudence on

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require representation by counsel in serious criminal matters.20All of this sug-

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minimum guarantees contained in Article 21(4), including the right of an

24 First Reasoned Decision, supra note 16, x 33.

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Although it upheld both the legal principle that a Chamber is competent to

B. The Ses› elj Case

Court of Human Rights (ECtHR) considering a challenge based on proportionality by a French

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In coming to this decision, the Trial Chamber determined the applicability of

35 Decision on Assignment of Counsel, supra note 3.

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of trial.39 Ses› elj objected to re-imposition of standby counsel and went on a

39 Order Concerning Appointment of Standby Counsel and Delayed Commencement of Trial,

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C. The Stankovic¤ Case

47 See Boas, supra note 1, 234^235.

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counsel. In response, Stankovic¤ demanded that either Radovic¤ be assigned to

The Chamber concluded by stating that

This decision is clearly a more restrictive interpretation of self-representation

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imposition of counsel more onerous.62 This reasoning is somewhat dubious,

D. The Krajis› nik Case

62 S es› elj Decision regarding Consolidation, supra note 38, x 62.

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E. Fast Foreward in Reverse: The Karadz› ic¤ Case

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On appeal, Karadz› ic¤ argued that whilst he had elected to be self-represented,

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4. Attempts by the International Tribunals to Respond

81 Milos› evic¤ Appeal Decision on Representation, supra note 6.

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B. Special Tribunal for Lebanon

C. Special Court for Sierra Leone

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It is clear that these six considerations represent a significantly more

5. Relevance of the European Convention on Human

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precedents varied in accuracy and applicability to the regime of international

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6. Resources Issues Associated with Allowing

94 See Boas, supra note 1, at 258^264.

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Buoyed by the acknowledgement by the President that he required greater

7. An Erroneous Legal Basis for the Right to

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no mention of a right to self-representation, and subsequent discussion leading

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114 Ibid., at 812.

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