Hebrew University*
The phenomenon of self-representation manifested in the Milošević trial illustrates some of the internal contradictions that the ICTY’s quest for legitimacy entails. On the one hand, common considerations of procedural fairness and respect for the individual autonomy of defendants militate in favor of accommodating self-representation; on the other hand, there may be strong institutional interests in favor of conducting effective proceedings over a reasonable period of time, with which self-representation may collide. The relationship between these competing interests may be particularly complicated if a defendant’s litigation strategy under-protects his own legal interests; further complexity is introduced when a tribunal’s quest for legitimacy leads it to support, in the name of due process, a defendant’s litigation strategy that is bent on delegitimizing the institution itself.
In her chapter, Anoya discusses some of the difficulties that arose from Milošević’s insistence on defending himself. Although the ICTY and the RPE acknowledge the right of self-representation,1 the practical modalities for exercising this right were still underdeveloped by the time Milošević came to trial. Anoya describes the institutional response of the ICTY, a response of which she was an integral part: the designation of Amici Curiae to provide shadow defense, the establishment of a Pro Se Legal Liaison Office to help Milošević arrange and coordinate his defense efforts, and the abortive assignment of counsel over his objections. In subsequent cases, the Tribunal has allowed Legal Associates and legal advisors to occupy a more prominent role in the trial process and has undertaken to fund legal assistance for indigent self-representing defendants; the liaison process Anoya helped develop and define has also, itself, been instutionalized. Ultimately, she suggests, the creation of a fourth institutional “pillar”—a defense organ working alongside the Chambers, Prosecutor, and Registry—might offer a more stable institutional framework for addressing the challenges of self-representation, while ensuring the proper conduct of criminal trials.2
Anoya herself helped design the Tribunal’s self-representation assistance mechanisms, and understandably is well-versed in their technical features, possibilities, and limits. But if the self-representation crisis of the Milošević trial teaches us anything, it is that the problems associated with self-representation should not be understood exclusively, or even primarily, as technical in nature—that is, as problems stemming from the need to create a new administrative framework for a legal situation whose complexity and sensitivity were underestimated at the time in which the ICTY was established. Rather, self-representation raises issues of principle that go to the very heart of a paradox underlying the whole of international criminal justice—what we may call the legitimacy paradox. Thinking about self-representation in broad but substantive theoretical terms may help us to better understand the institutional resistance to the innovations surveyed by Anoya—resistance which she herself, as Liaison Officer, personally experienced. A theoretical approach may also contextualize the problem of self-representation, placing it within a broader set of legitimacy paradoxes and helping us draw relevant lessons from other operational problems that international criminal courts now face.
Like other international courts, the effectiveness of international criminal tribunals depends to a considerable extent on their perceived legitimacy. In the absence of strong enforcement machinery, state cooperation with international criminal tribunals often depends on acceptance of their legitimate authority by political and legal elites, as well as by the broader populace of the states most affected. Moreover, some of the more ambitious goals of international criminal justice—in particular, its aim of nurturing domestic processes of accountability and political transition*—require even deeper levels of internalization and acceptance by states and peoples of international criminal courts’ legitimacy.3 This combination of institutional weaknesses and ambitious mandates compels international courts to strive for a particularly high and broad measure of political and social legitimacy—a quest that appears to exceed, in its urgency and intensity, the parallel legitimacy-seeking efforts of municipal criminal courts.
Due process fulfills a critical role in establishing and maintaining the institutional legitimacy of international criminal tribunals.4 By invoking internationally accepted standards of judicial practice, these courts project an image of fairness and procedural justice that alleviates some of the unique legitimacy deficits associated with having trials conducted by foreign judges who lack the usual connections with and accountability toward the people and polities over which they preside.5 Commitment to due process norms also helps to legitimate and regularize the operation of judicial institutions that were created by international political bodies in a manner that is vulnerable to the criticism that they are selective in nature.6
The right of self-representation, regarded as part of the internationally recognized due process standards, plays such a legitimating role: It is a legal standard recognized in international instruments, such as the ICCPR and the European Convention on Human Rights,7 and it is supported by strong moral intuitions about fairness and the need to respect a Kantian autonomy of will.8 The right to self-representation is also consistent with the normal understanding of the role of the legal counsel as being first and foremost the long arm of the defendant, who remains the real party to the litigation.9 Thus, had the ICTY decided to significantly restrict Milošević’s right to self-representation, it would not only have violated the spirit (and letter) of its own constitutive instruments, it would have also exposed itself to accusations of a human rights violation and a breach of notions of fair play. Quite simply, by denying Milošević the right to represent himself, the Tribunal would have delegitimized itself.
But, what if a self-representing defendant’s main strategy is to delegitimize the tribunal that tries him? And what if—even where this is not the defendant’s intention—the recourse to self-representation places serious strains on the trial process and tarnishes its reputation? Allowing a legally suboptimal defense and tolerating exceptionally long delays in the proceedings may also have serious human rights implications: A weak defense may lead to a wrongful conviction and thereby violate substantive due process;10 excessive delays may violate the right to a speedy trial and the prohibition against prolonged preconviction detention.11 Moreover, the extra time and material costs required for self-representation can erode the cost-effectiveness of tribunals, which in turn may further diminish the support afforded to them by key constituencies, such as contributing states.* As a result, an international criminal tribunal may find itself between a rock and a hard place: it would lose legitimacy if it does not allow for self-representation, but also lose legitimacy if it does.
The Milošević trial illustrates this paradox to its full extent. Milošević’s principal strategy was to delegitimize the ICTY and the proceedings against him;12 his defense has been described as legally weak (indeed, it is commonly observed that Milošević was not interested in mounting a legal defense) and disruptive, as well as being the cause of many delays in the trial process.13 In other words, his chosen defense presented challenges to the legitimacy of the ICTY on many levels. At the same time, the specter of the Chamber barring Milošević—a trained lawyer and a former head of state—from representing himself would have lent support to his claims that the trial process was biased against him and violated his human rights.14 Either approach—acquiescence in Milošević’s combative, political defense, or denial of his right to defend himself as he chose—created real risks for the Tribunal’s claim to be a legitimate judicial institution.
Against this backdrop, the institutional dilemmas facing the ICTY and discussed by Anoya acquire heightened significance. The Chamber’s affirmation of Milošević’s right to self-representation may have been intended not only to uphold a due process right, but also to induce Milošević’s to cooperate with the trial process—thus conferring upon it a greater degree of legitimacy,15 although at the cost of allowing him to make full use of the courtroom to denounce the Tribunal and to obstruct its proceedings. The appointment of the Amici Curiae at the beginning of the trial was meant to ensure that Milošević’s litigation interests were ensured notwithstanding his self-representation;16 however, this introduced an additional layer of procedural complication, and may have contributed to further delays in the process caused by the existence, in effect, of two defense teams. Finally, the less-than-successful move to assign counsel over Milošević’s objections17 was intended to address the issue of chronic delays,18 but resulted in another round of legal motions and new challenges to the fairness of the process.
Perhaps of even greater interest are the creation of the Pro Se Office and the decision to fund legal assistance for self-representing indigent defendants. The technical responsibilities of the new Office and the availability of qualified legal assistants do not give rise, at first glance, to a serious conflict of policies—helping defendants to prepare and present materials for their defense and to coordinate with other Tribunal organs serves both procedural fairness and procedural efficiency. But this ignores the political context for the decision to self-represent, which is often made for nonlegal reasons, as was the case in Milošević; given this, we may well question the degree to which the Tribunal should actively support, through allocating human resources and funds, litigation efforts ultimately aimed, not simply at winning cases, but at destroying the institution’s legitimacy. This tension may find expression in some of the objections to the establishment of the Pro Se Office described by Anoya,19 as well as in the Appeals Chamber’s decision in Krajišnik to refrain from ordering payment of an indigent self-representing defendant’s legal assistance costs.20
The legitimacy paradox described above does not only pertain to self-representation. It relates to other challenges the Tribunal faced in the course of the Milošević proceedings, such as the latitude afforded to Milošević in conducting his defense, the number of witnesses summoned, the concealment of witness identities, the disciplining of the defendant, and more besides.* With regard to all these issues, protecting the defendant’s interests (or, at least, his self-perceived interests) may have inflicted costs on the legitimacy of the ICTY as an institution. Interestingly enough, one may analyze through an analogous conceptual framework the Prosecution’s decision to join the indictments for all three wars into a single trial: Although this aimed to increase the legitimacy of the Tribunal in the eyes of the wars’ victims by telling a comprehensive story of the conflict,21 it may have resulted in such an exponential increase in the complexity and length of the trial as to jeopardize its fundamental fairness and challenge the Tribunal’s ability to conduct the proceedings effectively.22 This, in turn, constitutes its own challenge to the Tribunal’s legitimacy.
Another tension, which Anoya briefly touches upon, involves the conflicting loyalties of appointed liaisons and Amici Curiae. Although in some legal traditions all lawyers involved in litigation simultaneously serve as party representatives and officers of the court,23 legal representative of defendants before international tribunals are normally expected to prioritize the best interests of their clients.24 Court officials, such as the members of the Registry and amici, on the other hand, may be expected to prioritize the court’s institutional interests.25 Thus, Milošević’s resistance to the designation of the Amici Curiae, originally appointed as advisors to the Chamber, as his Assigned Counsel may have derived from the Amici’s mixed loyalties and their lack of perfect identification with his interests.* In the same vein, one can understand Anoya’s own concern about the possibility that Milošević would reject her liaison services as lacking in impartiality and neutrality, even if such concerns ultimately proved to be unjustified—the concern suggests the structural nature of the problem of ensuring effective and legitimate representation that can respond to the different interests of differently situated actors in the institution.
Lurking underneath this question of conflicting loyalties is a deeper tension between the need to promote procedural fairness in international criminal trials and considerations of judicial efficiency. Although it has been suggested that the ICTY should not be measured by its number of indictments and convictions, but rather on the fairness of its proceedings,26 output-related efficiency concerns cannot be neglected altogether. Fairness and efficiency concerned are at times intertwined—delays in trials may infringe both values of fairness and efficiency, for example—yet even when these two notions pull in different directions, efficiency may serve, alongside fairness, as one of the building blocks of institutional legitimacy.27 Indeed, the decision whether to assign amici curiae or other court officials responsibilities for representing the interests of a defendant can generate a conflict between the expectation that they aid the accused in mounting an effective defense and the court’s broader institutional interests (which may also reflect the interests of victims). Such a conflict may be particularly acute in cases, such as Milošević, in which the defendant’s litigation strategy centers on obstructing the proper conduct of the trial, or otherwise seeks to delegitimize the court. In such cases, the legitimacy paradox may translate itself also into a conflict of interests for court officials and other legal professionals who find themselves entrusted with the task of aiding the defendant.
The phenomenon of self-representation, as manifested in the Milošević case, illustrates some of the internal contradictions that the ICTY’s quest for legitimacy entails. On the one hand, common considerations of procedural fairness and respect for the individual autonomy of defendants militate in favor of accommodating self-representation; on the other hand, there may be strong institutional interests in favor of conducting effective proceedings over a reasonable period of time, with which self-representation may collide. The relationship between these competing interests may be particularly complicated if the defendant’s litigation strategy under-protects his own legal interests, and further complexity is introduced when a court’s quest for legitimacy leads it to support, in the name of due process, a defendant’s litigation strategy bent on delegitimizing the court itself.
The potential conflict between competing demands of representing the defendant and the court’s interests, in which court officials and amici curiae may find themselves, can be addressed to some degree by the solution Anoya identifies: the establishment of a “fourth pillar”—an independent Office of Defense. Still, even then, questions would remain about the quantity and quality of resources allocated to such an Office, its procedural powers, and the ultimate loyalty of its employees. These go to the heart of the legitimacy paradox in modern international criminal justice, which is neither reducible to, nor solvable by, purely technical fixes.