The Many Troubles of the ICC

December 6, 2012 Topic: International LawGlobal Governance

The Many Troubles of the ICC

The International Criminal Court's Kafkaesque bureaucracy and obstructive defendants are hindering justice. 

Difficult Defendants

Many delays in international criminal tribunals are caused by the attempts of accused persons to disrupt or boycott the proceedings. This oft-employed tactic has triggered two very different types of responses from international tribunals.

The more extreme response (but the one that typically results in the least delay) is to require defense counsel to continue to represent the accused as though he were acting under the accused’s instruction, but without his actual cooperation. For example, after a series of adverse rulings in the trial of Jean-Bosco Barayagwiza, a former Rwandan official who faced genocide charges before the International Criminal Tribunal for Rwanda (ICTR), a frustrated Barayagwiza fired his assigned lawyers and refused to attend any further hearings, telling the tribunal that it was incapable of rendering “independent and impartial justice.”

But when the fired lawyers filed a motion to withdraw, the ICTR denied the withdrawal motion because the tribunal’s rules only permitted withdrawal only “in the most exceptional circumstances.” The Chamber declared that its decision was “in the interest of preserving the Accused’s rights,” in hopes that Barayagwiza would change his mind after “further reflection.” When this hope was dashed, his attorneys refiled their motion, now arguing that continued representation of Barayagwiza would violate the ICTR Code of Conduct, as well as many national ethical codes that forbade attorneys from representing clients who have terminated their mandate. The ICTR again rejected their motion, noting that Barayagwiza’s lawyers were not obligated to recognize their firing when it was part and parcel of his attempt to boycott the proceedings. It cited the ICTR’s Rules and Code of Conduct, which required court-appointed counsel to “ensure that the Accused receives a fair trial” by “mount[ing] an active defence in the best interest of the Accused.” The ruling avoided the delay that appointing new counsel, or letting the accused represent himself, would cause, but only at the cost of a shotgun wedding between the accused and the lawyers he wanted to fire.

Some, like Southern Methodist University’s Jenia Iontcheva Turner, cite the Barayagwiza case as an example of an international tribunal that has gone too far to prevent delay. Indeed, locking a reluctant accused to assigned lawyers over his objection violates codes of conduct which often require that attorneys cease their representation after being discharged by a defendant. It also leads to a serious conflict of interest: attorneys must simultaneously consider their clients’ interests and satisfy the demands of the tribunal. Additionally, a discharged attorney’s continued “representation” of a defendant can create the dangerous illusion that the defendant’s interests are being defended, when in reality the defendant is taking no role in his own defense.

A more forgiving, but also more dilatory, response to such tactics by the accused is to appoint “standby counsel” (sometimes called “amici curiae”) to replace the counsel fired by the boycotting defendant. Standby counsel take over with the understanding that they are merely representing the accused’s interests in the abstract—the accused’s objective interests as standby counsel see them. Supporters of this approach argue that the “standby counsel” label makes the mandate of such attorneys clear to the public, the defendant, and (perhaps most importantly) to the attorney himself. But “reading in” the new lawyers also can take substantial time, often in the middle of trial. Appointing standby counsel may therefore simply substitute one delay for another.

It also does not necessarily avoid or reduce the delay caused by obstructive behavior of the boycotting defendant. Perhaps the most effective response to such a defendant is to find that he has “forfeited” certain fundamental rights by his behavior. Those rights and procedural protections are an amalgam of generally-shared due process principles from across the globe and are often the product of an uneasy marriage of common law and civil law rules. For example, an uncooperative defendant may be denied the right to counsel of his choice, or the right to represent himself. Defendants who threaten or harm witnesses may be denied the right to confront witnesses. Boisterously disruptive defendants can even be evicted from court and tried in absentia.

But international courts are usually reluctant to take away the already-diluted rights afforded to criminal defendants. They fear that stripping rights from the accused (even for good cause) will merely delegitimize the judicial process, which is exactly what the obstructive accused is seeking. These tribunals maintain that “the integrity of the proceedings” must ultimately be protected “to ensure that the administration of justice is not brought into disrepute.” They also often require that responses to disruptive behavior must be proportional to the offense. In other words, curbing the obstructive defendant is always a delicate balance between delegitimizing the process and tolerating delay and diversion.

A Long Road to Reform

Much work remains before international criminal tribunals are truly a “finished product.” Partly self-inflicted procedural delays and histrionic obstruction by accused parties currently serve as severe impediments to achieving the speed and efficiency that mark the best criminal justice systems.

But the impediments need not be permanent, as proposals by scholars and incremental reforms by the courts themselves suggest: justice can be done without delay, even if it will take time to figure out how to do so.

Kyle T. Jones is a third-year student at the George Washington University Law School and a member of the George Washington International Law Review.

Image: Flickr/Charles Hutchins.