The Defendant in International Criminal Proceedings: Between Law and Historiography 9781472566157, 9781849462662

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A true commitment to fair trial procedure means . . . carefully listening to the story of the accused, however deeply the majority of people may disagree with it. Denise Groulx, President of the International Criminal Defence Attorneys Association1

  Groulx (2001) 21.

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Foreword This book is based on my Ph D thesis, entitled ‘The Position of the Defendant in International Criminal Proceedings – The Influence of the Historiographical Function of International Criminal Courts on Their Judicial Activities’. The thesis was submitted at the University of Kiel in January 2009 and defended in July 2009. As far as possible, references to case law and literature have been brought up to date as of December 2011. I owe thanks to a number of people who have helped me along the way. First of all, many thanks to my supervisor, Professor Dr Andreas Zimmermann, for support and many discussions, on this thesis and on various other questions of international law, which were always enlightening even if (or maybe precisely because) we often disagreed. I also wish to thank Professor Dr Heinz Wagner for carefully reviewing the thesis with the practitioner’s eye. This thesis could not have been written in a better environment than at the Walther Schücking Institute for International Law in Kiel – many thanks to all those associated with the Institute. Special thanks to Tobias Thienel, for helpful criticisms on the manuscript in various stages of its development and general pedantry-related support. Thanks also to Alexander Hoffmann and Martin Schaar for keeping me grounded in (German) criminal law during that time. Internationally, Judge Hans-Peter Kaul at the ICC allowed me to work with him as a law clerk in 2006, providing a great introduction to the practical side of international criminal law. Simon De Smet was a knowledgeable and engaging discussion partner on international criminal law issues, and colleagues from around the world made the whole experience unforgettable. During an internship with the Dr Karadžic´ defence team before the ICTY in 2009, Peter Robinson provided valuable discussions and served as a role model for future work in international criminal defence. I also wish to thank the members and friends of the ‘Dr K’ team who made my second stay in The Hague as unforgettable as the first. Last but certainly not least, I wish to thank my family, especially my parents, without whom I would certainly not be at this point today.

Table of Abbreviations ACHR ADRDM AFRC AfrCHPR AfrCmHPR AG AHRLJ AJCL AJIL ALR App BayObLG BGBl BGH BGHSt BOP Bull crim BVerfG BVerfGE CA Cass crim Cass plen CDF CFR Cir CJS

CLF CoC Comm CP CPP D

American Convention on Human Rights American Declaration of the Rights and Duties of Man Armed Forces Revolutionary Council African Charter on Human and Peoples’ Rights African Commission on Human and Peoples’ Rights Amtsgericht African Journal of Human Rights Law American Journal of Comparative Law American Journal of International Law American Law Reports Application Bayerisches Oberstes Landgericht Bundesgesetzblatt Bundesgerichtshof Entscheidungen des Bundesgerichtshofs in Strafsachen Bureau of Prisons Bulletin des arrêts de la chambre criminelle de la cour de cassation Bundesverfassungsgericht Entscheidungen des Bundesverfassungsgerichts Court of Appeals Cour de cassation, Chambre criminelle Cour de cassation, Assemblée plénaire Civil Defence Forces Code of Federal Regulations Circuit (Court) Corpus Juris Secundum: Complete Restatement Of The Entire American Law As Developed By All Reported Cases Criminal Law Forum Code of Conduct Communication Code Pénale Code de Procédure Pénale District

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Table of Abbreviations DAR DR DRC ECHR ECmHR ECtHR EJIL F 2d F 3d F Supp F Supp 2d fasc Fed Appx FRCP FRE FSG GA GA GG GVG GYIL HRC HRLR HRQ HRW IACmHR IACtHR ICC ICCPR ICLQ ICLR ICTR ICTY IWPR JO JICJ JR JZ LG LJIL

Deutsches Autorecht Decisions and Reports of the European Commission of Human Rights Democratic Republic of the Congo European Convention on Human Rights European Commission of Human Rights European Court of Human Rights European Journal of International Law Federal Reporter, Second Series Federal Reporter, Third Series Federal Supplement Federal Supplement, Second Series fascicule(s) Federal Appendix Federal Rules of Criminal Procedure Federal Rules of Evidence Federal Sentencing Guidelines Goldtammer’s Archiv für Strafrecht General Assembly Grundgesetz Gerichtsverfassungsgesetz German Yearbook of International Law Human Rights Committee Human Rights Law Review Human Rights Quarterly Human Rights Watch Inter-American Commission on Human Rights Inter-American Court of Human Rights International Criminal Court International Covenant on Civil and Political Rights International and Comparative Law Quarterly International Criminal Law Review International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Institute of War and Peace Reporting Journal Officiel de la République Francaise Journal of International Criminal Justice Juristische Rundschau Juristenzeitung Landgericht Leiden Journal of International Law

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Table of Abbreviations LPICT LRA KG Max Planck UNYB MDR mn NATO NGO NJW NStE NStZ NStZ-RR OAS OAU OLG OTP PTC Reg Rep Rep Res RIDP RPE RSt S Ct SchlHA SCSL Ser SG StGB STL StlCTR StlCTY StPO StSCSL StSTL StraFo StV StVollzG

The Law & Practice of International Courts and Tribunals Lord’s Resistance Army Kammergericht Max Planck Yearbook of United Nations Law Monatsschrift für Deutsches Recht marginal note North Atlantic Treaty Organisation non-governmental organisation Neue Juristische Wochenschrift Neue Entscheidungssammlung für Strafrecht Neue Zeitschrift für Strafrecht Neue Zeitschrift für Strafrecht – Rechtsprechungsreport Organization of American States Organisation of African Unity Oberlandesgericht Office of the Prosecutor Pre-Trial Chamber Regulation Report Reports of Judgments and Decisions of the European Court of Human Rights Resolution Révue internationale de droit pénale Rules of Procedure and Evidence Rome Statute of the International Criminal Court Supreme Court Reporter Schleswig-Holsteinische Anzeigen Special Court for Sierra Leone Series Secretary General Strafgesetzbuch Special Tribunal for Lebanon Statute of the International Criminal Tribunal for Rwanda Statute of the International Criminal Tribunal for the former Yugoslavia Strafprozessordnung Statute of the Special Court for Sierra Leone Statute of the Special Tribunal for Lebanon Strafverteidigerforum Strafverteidiger Strafvollzugsgesetz

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Table of Abbreviations TC TRC UN UNDF UNDU UNMIK US USC USCA USSC UVollzO VRS WL YbECHR YbIHL ZStW

Trial Chamber Truth and Reconciliation Commission United Nations United Nations Detention Facility United Nations Detention Unit United Nations Interim Administration Mission in Kosovo United States Reports United States Code United States Code Annotated United States Sentencing Commission Ordnung über den Vollzug von Untersuchungshaft Verkehrsrechts-Sammlung Westlaw Database Yearbook of the European Convention on Human Rights Yearbook of International Humanitarian Law Zeitschrift für die gesamte Strafrechtswissenschaft

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Note on Case Titles Generally, cases at international courts are cited by the last name(s) of the defendant(s); in cases with more than two defendants, only the first defendant’s name is given. First names are used where necessary to distinguish between defendants sharing a last name. Certain cases are cited by reference to their established short titles:

ICTR cases Butare Media Military I Military II

Joseph Kanyabashi, Elie Ndayambaje, Sylvain Nsabimana, Arsène Shalom Ntahobali, Alphonse Nteziryayo, Pauline Nyiramasuhuko Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze Théoneste Bagosora, Gratien Kabiligi, Anatole Nsengiyumva, Aloys Ntabakuze Augustin Bizimungu, Augustine Ndindiliyimana, François-Xavier Nzuwonemeye, Innocent Sagahutu

ICC cases Kenya I Kenya II

William Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, Mohammed Hussein Ali

SCSL cases AFRC CDF RUF

Alex Tamba Brima, Ibrahim Bazzy Kamara, Santigie Borbor Kanu Sam Hinga Norman (until his death), Moinina Fofana, Allieu Kondewa Issa Hassan Sesay, Morris Kallon, Augustine Gbao

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Introduction The idea for this book was born in the public visitor’s gallery of the Yugoslav Tribunal in the summer of 2004 while watching the trial of Pavle Strugar. Having been fascinated by the cross-examination of a witness in the centre of the courtroom, I realised about 15 minutes into the visit that I had not yet paid any attention to the defendant. Strugar was sitting towards the back of the courtroom, flanked by security guards, passively watching the proceedings against him. This was in striking contrast to my idea of criminal procedure as ensuring that the defendant is ‘a subject, not an object, of the proceedings’1 as well as to news reports on the Slobodan Miloševi´c trial. Looking into the literature on international criminal law questions, I further noticed that while a lot was being written about international criminal law, including applicable procedure, very little of that was from the perspective of the defence, let alone the defendant. This book strives to fill parts of that gap. The first part of the book aims to find out to what extent defendants before international criminal courts are able to take an active part in their trials. It takes an in-depth look at the procedural regimes of five international criminal courts, viewed against a benchmark provided by national provisions representing the main traditions of criminal procedure and by international human rights law. It focuses on several aspects of that regime which most directly concern the ability of the defendant to take an active role in the consideration of her2 case, both inside and outside of the courtroom. (Not so) coincidentally, all these aspects also concern the question of whether, how and by whom the history of the defendant’s role in the underlying conflict is written. Accordingly, the second part of the book then uses the results of the first part to shed light, from a practical point of view, on the often debated question whether (international) criminal trials should be used as a tool for writing history – or whether, as claimed by Martti Koskenniemi, pursuing this goal leads to a danger of ‘show trials’.3

  See, eg, BVerfG, NJW 1959, 427; NJW 2004, 2443.   This book uses the ‘generic feminine’ in the knowledge that the majority of professional actors in international criminal trials (judges, prosecutors, counsel) as well as the vast majority of defendants are male. 3   See below [204–205]. 1 2

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1 Can There Be Proceedings (in the Defendant’s Presence) at All? Inquiring into the position of the defendant in her trial is only worthwhile if there is a trial in her presence at all. Therefore, the question to what extent this is the case must be answered first. It can again be further divided into two somewhat related questions: first, the question is whether there will be proceedings at all – after all, a court may also choose not to conduct proceedings against a defendant. Inter alia, this may be because she is mentally or physically unfit to stand trial, or because there is a danger that proceedings could lead to a deterioration of her health. This chapter will only consider circumstances having to do directly with the defendant and her ability to actively participate in the trial. It will not deal with other Verfahrenshindernisse such as unlawful capture or violation of the defendant’s rights.1 The second question is whether the defendant will be present during trial. The trial may be conducted in her absence because she is not available to the court. Even if she is available, (parts of ) the trial may still be conducted without her for several reasons. Before dealing with these two questions, however, this chapter will very briefly deal with the question of what happens after the death of a defendant. One question not dealt with here is whether such proceedings as actually occur will be oral or written. This is because this question can be easily answered with regard to all relevant criminal proceedings: none of the international jurisdictions dealt with here allow purely written proceedings at first instance, and where national procedures allow such proceedings, they do so only for rather minor crimes.2 Finally, all relevant human rights instruments contain a general guarantee 1   This is not to say that  such questions do not arise in the context of international criminal justice. Two examples: at the ICTY, in Todorovic´, the issue of unlawful capture was raised, but not finally dealt with as the case was disposed of by plea agreement – see Sloane (2003). At the ICTR, in Barayagwiza, violations of defendant rights during detention led to an Appeals Chamber decision to release the defendant; this decision was later ‘reconsidered’, most likely due to pressure by the Rwandan Government – see Prosecutor v Barayagwiza (Decision) ICTR-97-19, Appeals Chamber (3 November 1999); (Decision (Prosecutor’s Request for Review or Reconsideration)) ICTR-97-19, Appeals Chamber (31 March 2000); Schabas (2000); Zahar and Sluiter (2008), 283–84. 2   One example: in Germany, § 407 StPO allows for conviction by penal order (Strafbefehl) only for minor crimes, and where the defendant does not accept the penal order, an oral hearing takes place.

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Proceedings in the Defendant’s Presence? of oral proceedings at least at first instance.3 Of course, even proceedings which are generally oral may, and often will, rely to a certain extent on written material. The law may, for example, allow reliance on written versions or even summaries of witness statements instead of having the witness testify in (open) court.4 This, however, mostly influences the position of the witness, not (directly) that of the defendant, in the trial.

A.  The Absolute Ban on Proceedings against Deceased Defendants It is clear in all jurisdictions dealt with here that a criminal trial cannot be started against a deceased person and that ongoing proceedings end with the defendant’s death. However, a quick look at the precise manner in which such cases have been dealt with may still shed some light on the jurisdictions under review.

I.  Domestic Criminal Procedures German law provides that if the defendant has died5 or has been declared dead6 during criminal proceedings, no decision on innocence or guilt may be taken and proceedings must by terminated.7 This also applies where a defendant who has appealed a conviction dies while the appeal is pending.8 The ban on proceedings against – or rather: concerning – a deceased defendant is not absolute, however, as review proceedings in her favour may still be conducted after her death.9 As concerns French procedure, the CPP explicitly states that ‘public prosecution . . . is extinguished by the death of the defendant’.10 However, revision and, 3   This is explicitly stated in Art 6(1) ECHR; Art 14(1) ICCPR; Art 8(5) ACHR. As to the African system, see the 2003 Principles, paras A1, A3. 4   For a criticism of such provisions see, eg Kay (2004). 5   BGH, NJW 1983, 463. 6   OLG Hamm, NJW 1978, 177. 7   BGHSt 45, 108. There is a debate on the fate of incidental proceedings, especially those concerning costs – see BGH, NJW 1983, 463 with references. Courts are also divided on the fate of separate proceedings under § 76a StGB, 440 StPO, aimed at the confiscation or seizure of proceeds from a crime or tools used in its commission – see OLG Frankfurt/Main, NStZ-RR 2006, 39, paras 5–6 with further references; OLG Stuttgart, NJW 2000, 2598. 8   BGH, NStZ-RR 2008, 146. 9   See §§ 361, 371 (1) StPO. Two specific laws allow rehabilitation, even after their death, of certain persons convicted by Nazi courts or courts of the GDR – Gesetz zur Aufhebung nationalsozialistischer Unrechtsurteile in der Strafrechtspflege; Gesetz über die Rehabilitierung und Entschädigung von Opfern rechtsstaatswidriger Strafverfolgungsmaßnahmen im Beitrittsgebiet. The former laws lead to the public rehabilitation of Marinus van der Lubbe, sentenced to death in December 1933 for allegedly setting fire to the Reichstag in Berlin – see Generalbundesanwalt, Press Release of 10 January 2008, available at www.generalbundesanwalt.de/prnt/showpress.php?newsid=298. 10   Art 6(1) CPP. However, where the defendant dies during the investigation, the investigating judge must in her discharge order ‘state . . . whether there is sufficient evidence to prove that the person concerned did commit the offences he is accused of ’ – Art 177(2) CPP.

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Deceased Defendants under certain conditions, rehabilitation proceedings remain possible after the death of the defendant.11 Under US law, too, the death of the defendant ends the proceedings and forces the dismissal of all charges. This also applies where a defendant dies after conviction, but before sentencing12 or before determination of a pending appeal.13

II.  Requirements Deriving from Human Rights Law The human rights treaties referred to here do not contain any direct reference to the result of a defendant’s death as they presuppose that ‘criminal liability does not survive the person who has committed the criminal act’.14 This presupposition would also seem to require that criminal proceedings generally end upon the death of the defendant. Similarly to the national systems considered above, the ECtHR does, however, allow individual complaints against conviction by family members of the convicted person.15

III.  International Criminal Procedure A number of ICTY defendants have passed away during ongoing proceedings. In all cases, proceedings were terminated shortly after their death, by the Prosecution with the Trial Chamber’s leave where death occurred before or during arrest,16 and directly by the Chamber where death occurred after the initial appearance.17 The same procedure was also applied when defendants passed away during ongoing proceedings at the ICTR.18   Art 623(1) No 3, 785(1) CPP.   US v Lay and Skilling (SD Tex, Houston Division, 17 October 2006). 13   Durham v US, 401 US 481, 483 (1971); US v Oberlin, 718 F 2d 894, 895 (9th Cir 1983); US v Bechtel, 547 F 2d 1379 (9th Cir 1977); US v Dudley, 739 F 2d 175 (4th Cir 1984) with further references. This does not apply to appeals based on writ of certiorari: Dove v US, 423 US 325 (1976). 14   AP, MP and TP v Switzerland ECHR 1997-V 1477, para 48. Art 7(3) AfrCHPR states that ‘punishment is personal and can be imposed only on the offender’; similarly Art 5(3) ACHR. 15   Sadik v Greece ECHR 1996-V 1634, para 26; Nölkenbockhoff v Germany (1987) Series A no 123, para 33. See also Bohlander (2010), 499–500. 16   See, eg ICTY Prosecutor v Gagovic´ (Order Granting Leave to Withdraw Indictment) IT-96-23, Judge Vohrah (30 July 1999). 17   See, eg Prosecutor v Slobodan Miloševic´ (Order Terminating the Proceedings) IT-02-54, Trial Chamber (14 March 2006); Prosecutor v Milan Kovacˇevic´ (Order Terminating the Proceedings against Milan Kovačević) IT-97-24, Trial Chambr (24 August 1998). The same procedure was also followed in the case of Janko Bobetko, who had not appeared before the Court for health reasons, but who had been served the indictment in his home country: Prosecutor v Bobetko (Order Terminating Proceedings Against Janko Bobetko) IT-02-62, Trial Chamber (24 June 2003). 18   Prosecutor v Musabyimana (Order Terminating the Proceedings against Samuel Musabyimana) ICTR-01-62, Trial Chamber (20 February 2003); Prosecutor v Karemera et al (Decision Relating to the Registrar’s Submission Notifying the Demise of the Accused Joseph Nzirorera) ICTR-98-44, Trial Chamber (12 August 2010). 11 12

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Proceedings in the Defendant’s Presence? In the case of Joseph Nzirorera, one of three defendants in Karemera et al, who died during trial proceedings, the Trial Chamber decided that the body of evidence amassed with respect to Nzirorera would remain on the trial record as it might be of value in the case against the other defendants.19 The decision was upheld on appeal.20 The ICTY also decided to terminate proceedings in two cases where defendants died shortly before a judgment could be pronounced. In the case of Slavko Dokmanovic´, who had committed suicide after the end of his trial, the Trial Chamber reportedly considered releasing the judgment anyway, but concluded that it was legally barred from doing so.21 The Appeals Chamber was faced with a somewhat different situation in the case of Rasim Delic´: here the accused had died after the appeal hearing, thus there already existed a trial judgment. The defendant’s son wished to continue the appeal to clear his father’s name. However, rather than either go through with the appeal or expunge the trial judgment, the Appeals Chamber ordered that appeal proceedings be terminated and that the trial judgment be considered final.22 In all cases, Chambers referred to some form of official documentation of the death of the defendant.23 In one case where there was a death certificate, but also information ‘suggest[ing] the possibility that the Accused might still be alive’, the Chamber allowed withdrawal of the indictment without prejudice, ie with the possibility of re-filing it should the defendant be found to be alive after all.24 Finally, an attempt by a Belgrade law student association to have fugitive indictee Ratko Mladic´ declared dead under the Serbian law on extrajudicial process was unsuccessful.25 At the ICC, PTC II terminated proceedings against Raska Lukwiya after his death in combat. This decision came almost one year after Lukwiya’s death – the Chamber not only took steps to ensure that the information of his death was accurate, but also waited several months for the official death certificate to be 19   Prosecutor v Karemera et al (Reasons for Oral Decision of 23 August 2010 and on Oral Applications for Certification to Appeal) ICTR-98-44, Trial Chamber (26 August 2010). The ICTY had decided similarly where a co-defendant had died after his case had been severed – Prosecutor v Brd-anin (Judgment) IT-99-36, Trial Chamber (1 September 2004), para 36. 20   Prosecutor v Karemera et al, (Decision on Interlocutory Appeal of Edouard Karemera and Matthieu Ngirumpatse against Oral Decision of 23 August 2010) ICTR-98-44, Appeals Chamber (24 September 2010). 21   Kerr (2004), 112; Prosecutor v Dokmanovic´ (Order Terminating Proceedings against Slavko Dokmanović) IT-95-13a, Trial Chamber (15 July 1998). The Chamber had ‘consulted the Office of the Prosecutor and the defence counsel who represented the deceased prior to his death’. 22   Prosecutor v Rasim Delic´ (Decision on the Outcome of the Proceedings) IT-04-83, Appeals Chamber (29 June 2010); (Decision on Motion for Continuation of the Appellate Proceedings) IT-0483, Appeals Chamber (29 June 2010). For a criticial discussion of these decisions, see Bohlander (2010). 23   In the case of Momir Talic´, who had died in Serbia on provisional release, the Chamber also took care to note that ‘the Prosecution accepts that the Death Certificate is an authentic death certificate’ – Prosecutor v Talic´ (Order Terminating the Proceedings Against Momir Talić) IT-99-36/1, Trial Chamber (12 June 2003). 24   Prosecutor v Borovnica (Order Granting Leave to Withdraw Indictment without Prejudice) IT-941, Trial Chamber (21 April 2005). 25   See IWPR, Tribunal Update No 476, 10 November 2006, ‘Move to Declare Mladić Dead’.

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Deceased Defendants filed.26 The termination of proceedings against Muammar Gadafi followed rather shortly after his death.27 However, it should be noted that Article 84(1) RSt allows revision proceedings aimed at overturning a conviction also after the convicted person’s death. Earlier, the Court had received reports that another Ugandan defendant, Dominic Ongwen, had been killed in combat.28 However, DNA tests had proved this information to be false,29 the proceedings are thus ongoing. Reports that two other defendants had been killed in 2007 and 200830 do not seem to have convinced the Chamber as they have not, as far as can be made out, led to any decisions. At the SCSL, two defendants passed away before the beginning of the trial. In both cases, the Trial Chamber endorsed an OTP request to withdraw the indictment under Rule 51(B) RPE-SCSL.31 Both decisions came several months after the death of the defendant and the filing of a death certificate. Another indictee, Johnny Paul Koroma, was reported dead by Liberian authorities, but the Court is apparently not satisfied that this information is true as the indictment against him remains in force.32 In May 2008, the SCSL judges introduced Rule 11bis RPESCSL, allowing the Court to refer an indictment to a national court, apparently to deal with Koroma should he turn out to be alive after the end of the Special Court’s mandate.33 Sam Hinga Norman, one of the defendants in the CDF case, died in February 2007, after his trial had been completed. As in Dokmanovic´, the Chamber was in a position to pronounce on his guilt or innocence. In addition, as in Karemera et al, in passing judgment upon his co-defendants, it might have had to make statements which could be read as relating to this question. In fact, his former defence team asked the Chamber to issue a verdict also in respect of Norman.34 The Chamber, however, terminated proceedings against Norman and declined to 26   Situation in Uganda, Prosecutor v Kony et al (Decision to Terminate the Proceedings against Raska Lukwiya) ICC-02/04-01/05, Pre-Trial Chamber (11 July 2007), 2–3. 27   Situation in Libya, Prosecutor v Gaddafi et al (Decision to Terminate the Proceedings against Muammar Mohammed Abu Minyar Gaddafi) ICC-01/11-01/11, Pre-Trial Chamber (22 November 2011). 28   ICC, Situation in Uganda, Prosecutor v Kony et al (Submission of Information Regarding Dominic Ongwen) ICC-02/04-01/05, Office of the Prosecutor (5 October 2005). 29   Situation in Uganda, Prosecutor v Kony et al (Notification that  Government of Uganda will Continue Efforts to Execute Warrant of Arrest Naming Dominic Ongwen) ICC-02/04-01/05, Office of the Prosecutor (11 April 2006), paras 4–6. 30   Situation in Uganda, Prosecutor v Kony et al (Submission of Information regarding Vincent Otti) ICC-02/04-01/05, Office of the Prosecutor (8 November 2007); BBC News, Ugandan LRA Deputy Leader ‘Killed’, 14 April 2008. 31   Prosecutor v Bockarie (Withdrawal of Indictment) SCSL-04-04, Trial Chamber (8 December 2003); Prosecutor v Sankoh (Withdrawal of Indictment) SCSL-03-02, Trial Chamber (8  December 2003). 32   See SCSL, Completion Strategy, June 2007, UN Doc S/2007/338 of 7 June 2007, Annex, para 6. 33   See the SCSL website, www.sc-sl.org/CASES/JohnnyPaulKoroma/tabid/188/Default.aspx. 34   CDF (Decision on Registrar’s Submission of Death of Accused Samuel Hinga Norman and Consequential Issues) SCSL-04-14, Trial Chamber (21 May 2007), paras  9–11. The OTP had asked the Chamber to make ‘findings of fact with respect to the elements of the crimes, the crime bases and the modes of liability with respect to Norman, without issuing a final verdict on his guilt or innocence’ (para 3).

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Proceedings in the Defendant’s Presence? make a determination as to his guilt or innocence.35 On the other hand, similar to the ICTR in Karemera et al, it also decided to use the entire evidence acquired in the proceedings, including the part concerning Norman, in deciding on the guilt or innocence of his co-defendants.36 The legal texts of the STL do not explicitly deal with the possibility of the defendant’s death during proceedings – one would expect this to be handled according to Rule 72 RPE-STL on withdrawal of the indictment.

IV. Conclusion The basic rule is the same in all jurisdictions under review here – criminal proceedings end with the death of the defendant, no matter at what stage of the proceedings it occurs. It is, however, apparent that international courts are particularly thorough in verifying whether reports of the defendant’s death are in fact true, which often leads to them taking several months to actually terminate proceedings, and will not terminate proceedings if there is even a slight chance the defendant might be alive. Finally, the decision of the ICTY in Rasim Delic´ is striking in simply declaring the trial judgment final despite a pending defence appeal, going against most national jurisdictions in this regard.

B.  Fitness of the Defendant to Stand Trial When dealing with the fitness of the defendant to stand trial, two main questions arise: first, what standard does the law set for fitness? Second, what are the legal consequences of finding a defendant unfit to stand trial – must proceedings be terminated, or can the court wait to see whether she becomes fit to stand trial later on? May a court even force a defendant to take steps to regain her fitness? Finally, a question that does not relate to the fitness of the defendant to stand trial in the strict sense, but that may still become relevant for the decision whether to begin or continue proceedings against her: may proceedings also be conducted against defendants who are, as such, fit to stand trial, but for whom the trial poses a serious health risk, or who must be expected to die before the end of the proceedings?

35   ibid, paras 12–18. The majority of the Chamber also decided, against a vigorous dissent by Judge Itoe, to remove Norman’s name from the cover sheet of all further proceedings in this case – see CDF (Dissenting Opinion of Hon Justice Benjamin Mutanga Itoe on the Majority Decision to Delete the Name of the First Accused, Samuel Hinga Norman (Now Deceased) from the Cover Sheets of Chamber Rulings, Decisions, Court Process and Records), SCSL-04-14, Judge Itoe (22 June 2007). 36   CDF (Decision on Registrar’s Submission of Death of Accused Samuel Hinga Norman and Consequential Issues) SCSL-04-14, Trial Chamber (21 May 2007), paras 19–22.

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Fitness of the Defendant to Stand Trial This aspect of proceedings relates to the position of the defendant in two ways: first, the rules laying down what the standard for fitness to stand trial is and what happens with defendants who are deemed unfit influence whether there will be proceedings in which the defendant could participate in the first place. Second, those defendants whose fitness to stand trial might be open to doubt will likely be less able to participate actively and effectively in their trial.

I.  Domestic Criminal Procedures 1. Germany According to the general definition, a defendant is fit to stand trial if she is able to ‘reasonably safeguard [her] interests during and outside the hearings, lead the defense in a capable and understandable manner and bring and receive motions and other procedural acts’.37 She must be able to use the options provided her to influence the proceedings, ie to make statements, bring motions, question witnesses and be heard before decisions of the court.38 Courts may generally assume that adults of average physical and mental health are fit to stand trial.39 An oftrepeated formula is that ‘only severe mental or physical defects’ lead to unfitness, although this is somewhat misleading as the level of mental and physical health required also depends on the complexity of proceedings.40 If the defendant is only partially fit to stand trial, for example if she is only able to concentrate for short periods at a time, if her condition may change quickly during the proceedings or if she is able to take part in the proceedings, but unable to travel, the trial may only proceed if this can be taken into account, for example by shortening the trial days, by having a physician present in the court room, or by holding the trial at her place of residence.41 As the defendant’s fitness to stand trial is a necessary precondition for proceedings (Verfahrensvoraussetzung), the Court must determine whether the defendant is fit to stand trial if there is any reason to doubt this. Where it finds that the defendant is unfit to stand trial, or where there remain doubts on whether or not this is the case,42 the court may not continue proceedings against the defendant, regardless of whether or not she is present and of whether or not she is represented by counsel. The only exception to this rule applies if the defendant has deliberately brought about her unfitness.43

  BVerfG, NStZ-RR 1996, 38; BVerfG, NJW 1995, 1951; BGH, NStZ 1996, 242; BGHSt 41, 16, 18.   BGH, NStZ 1996, 242; BGHSt 41, 16, 18. 39   BGH, NStZ-RR 1996, 38. 40   BVerfG, StV 1989, 239; Stuckenberg in Löwe and Rosenberg (2006), § 205, mn 21. 41   Meyer-Goßner (2011), Introduction, mn 97. 42   BGH, NStZ 1984, 520, 521; BGH, NStZ 1996, 242. 43   According to § 230(2), 231a StPO, the court may continue without the defendant in such cases – see below [39]. 37 38

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Proceedings in the Defendant’s Presence? In all other cases, the legal consequences depend on the expected duration of the condition. If it is certain that the defendant will not regain her fitness to stand trial, the proceedings must be (finally) terminated.44 If she may be expected to regain her fitness later on, or if there are doubts whether her unfitness is lasting,45 proceedings are ‘provisionally terminated’,46 that is they may be taken up again later if circumstances change. Finally, if the defendant is unfit to stand trial for a short time only, for example because of an acute but treatable illness, the court must suspend or interrupt the main hearing.47 In all cases, the defendant may not waive the protection afforded by these norms.48 While unfitness to stand trial means that criminal proceedings may not be conducted against the defendant, this does not mean that all proceedings before criminal courts are unavailable. Where the defendant’s unfitness is the only bar against criminal proceedings, the prosecution may initiate proceedings aimed at her preventative detention.49 There is no obligation on the defendant to take active steps to regain her fitness to stand trial.50 If she refuses such steps, however, this may potentially lead to proceedings being conducted in her absence under the theory that she has deliberately rendered herself unfit to stand trial.51 Questions of forcible measures such as force-feeding of detainees are regulated by the laws on conditions of detention passed by the federal Länder, responsibility for detention matters having devolved to them after the 2006 reform of the Constitution (so-called federalism reform). Most Länder have passed specific laws on conditions of detention, many of which are based on a Model Code.52 The provisions on forcible measures in health matters are based, more or less verbatim, on section 101 of the Strafvollzugsgesetz.53 As there is so far little jurisprudence on the Länder codes,54 the following will be based on section 101. Until 1985, this provision mandated forcible medical intervention, including forcefeeding, inter alia, in the case of imminent danger of the detainee’s death. Since   OLG Nuremberg, MDR 1968, 516.   BGH, NStZ 1996, 242. 46   § 205 StPO. This applies to all stages of the proceedings – Meyer-Goßner (2011), § 205, mn 3. 47   Under §§ 208, 209 StPO. 48   Stuckenberg in Löwe and Rosenberg (2006), § 205, mn 17. 49   § 413 StPO. 50   Stuckenberg in Löwe and Rosenberg (2006), § 205, mn 18. 51   §§ 230 (2), 231a StPO, see below [39]. 52   Meyer-Goßner (2011), § 119, mn 2–2a. 53   This provision was, until 2006, applicable to pre-trial detainees according to § 178 StVollzG. 54   Brandenburgisches Untersuchungshaftvollzugsgesetz, § 21; Berliner Untersuchungshaftvollzugsgesetz, § 21; Bremisches Untersuchungshaftvollzugsgesetz, § 21; Zweites Buch Justizvollzugsgesetzbuch Baden-Württemberg, § 61; Hessisches Untersuchungshaftvollzugsgesetz, § 18; Hamburgisches Untersuchungshaftvollzugsgesetz, § 63; Untersuchungshaftvollzugsgesetz SachsenAnhalt, § 21; Untersuchungshaftvollzugsgesetz Mecklenburg-Vorpommern, § 21; Niedersächsisches Justizvollzugsgesetz, § 93; Landesuntersuchungshaftvollzugsgesetz Rheinland-Pfalz, § 21; Sächsisches Untersuchungshaftvollzugsgesetz, § 21; Untersuchungshaftvollzugsgesetz Saarland, § 21; Thüringer Untersuchungshaftvollzugsgesetz, § 21. The only provision with differences in the wording, though likely not in the restrictions put on detainees, is Untersuchungshaftvollzugsgesetz NordrheinWestfalen, § 28. 44 45

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Fitness of the Defendant to Stand Trial 1985, it only mandates forcible measures where the defendant is in a state precluding rational exercise of her free will. While not mandated, forcible measures are still allowed where there is a danger of the detainee’s death or a severe danger to her health, provided that such measures do not place an undue burden on those involved. Courts have seldom had to pronounce on the question of forcefeeding since the reform. Commentators are divided with some holding that force-feeding in such situations is prohibited generally,55 or at least where it clashes with medical ethics,56 while others hold that force-feeding57 or measures such as replacing the detainee’s drinking water with nourishing liquids58 are generally allowed. Where conducting proceedings against a defendant would lead to a concrete risk (not the mere possibility)59 of her death or of severe damage to her health, such proceedings may not go forward as this would be contrary to the fundamental right to life and bodily integrity protected by the German Constitution.60 It is unclear whether a defendant would be allowed to waive this protection to try to ‘clear her reputation’ even at the cost of endangering her life, as this case seems not to have arisen so far.61 The question how to deal with a defendant who must be expected to die before the end of the trial arose in the case of former GDR head of state Erich Honecker, who had been diagnosed with cancer with a very short life expectancy. Upon a constitutional complaint, the Constitutional Court of Berlin held that a trial which could not be concluded before the defendant’s death could not fulfill its purpose of clarifying and adjudicating on the alleged crimes – trying the defendant in this knowledge would violate his human dignity.62 The Landgericht Berlin thus had to terminate the proceedings.63 One should note that this is a decision by a state constitutional court based on a fundamental right laid down in a state constitution;64 the Federal Constitutional Court and the Federal Court of Justice have not yet pronounced on the question. In addition, the decision has been severely criticised not only by legal commentators,65 but also by the State Attorney’s office.66 On the other hand, such criticism may well have been due to the particular features of the case; those   Brühl and Walter in Feest (2006), § 101, mn 21 et seq.   Calliess and Müller-Dietz (2005), § 101, mn 3. Already under the pre-1985 version of § 101, some commentators had held that force-feeding was not allowed if it had to be conducted against the active resistance of the defendant – Weichbrodt (1983), 313–14. 57   Arloth and Lückemann (2004), § 101, mn 3. 58   ibid, with reference to a judgment by the LG Nürnberg-Fürth. 59   OLG Frankfurt/Main, NJW 1969, 570. 60   BVerfGE 51, 324, 345–46; see also BVerfG, StV 1992, 553, 554; OLG Karlsruhe, NJW 1978, 601, 602; OLG Düsseldorf, NStZ 1993, 554. 61   See, eg Stuckenberg in Löwe and Rosenberg (2006), § 205, mn 28. 62   Verfassungsgerichtshof Berlin, NJW 1993, 515, 517. 63   See KG, NJW 1993, 673. 64   Albeit one that is protected, in identical terms, in the Federal Constitution – see Art 1 GG. 65   eg Wassermann (1993), 1567. 66   NJW 1993, 905. Such public criticism of courts by the prosecution is a rare occurrence in Germany. 55 56

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Proceedings in the Defendant’s Presence? focusing on the abstract procedural question have found good reasons to treat such cases as similar to unfitness to stand trial.67

2. France The CPP does not explicitly deal with the fitness of the defendant to stand trial – it only explicitly deals with medical examinations during police custody to determine fitness to be further held in custody.68 The Cour de Cassation has held that, where the defendant’s health might render her unable to appear before the court, the court may order a medical examination.69 Where the result of that examination is that she is unfit to stand trial, the court must adjourn the proceedings until the next session of the Cour d’assises.70 For temporary unfitness due to, for example, acute illness, the court must interrupt the proceedings; where this proves insufficient it must adjourn until the next session.71 In misdemeanor trials, where the defendant is only unfit to appear before the court, but not unfit to be questioned, she may be questioned at home or in detention by the judge; the rest of the procedure is then conducted in her absence.72

3.  The United States In the United States, courts are prohibited by the due process clause from conducting a trial against a defendant who lacks competence to stand trial.73 This prohibition, which the Supreme Court found to be ‘fundamental to an adversary system of justice’,74 is also reflected in the procedural law applicable to federal courts.75 The Supreme Court first defined competency in Dusky v United States as ‘sufficient present ability . . . to consult with his lawyer with a reasonable degree of rational understanding’ and ‘a rational as well as factual understanding of the proceedings against him’.76 Later decisions refer to this standard or use similar 67   Limbach (1998), 100–01, 117–18; Stuckenberg in Löwe and Rosenberg (2006), § 206a, mn 47 with further references. Finally, the Federal Court of Justice made an obiter dictum following similar reasoning in StV 1994, 329, 330 when it stated that in deciding on whether or not to grant such release in order to safeguard the right to life and bodily integrity, courts may not differentiate between illnesses caused by the detention and those which existed independent of the detention. 68   Art 63-3 CPP. Art 81 also grants the investigating judge the general power to order medical or psychological examinations, but this does not concern fitness to stand trial. 69   Cass crim, 26 November 1969, Bull crim No 316. 70   Angevin (1978), Arts 317–22, fasc 20, para 6 with further references. 71   ibid, para 7. 72   Art 416 CPP. 73   Medina v California, 505 US 437, 439 (1992). 74   Drope v Missouri, 420 US 162, 172 (1975). 75   18 USC c 313. 76   Dusky v US, 362 US 402 (1960).

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Fitness of the Defendant to Stand Trial formulations.77 The standard is now codified in 18 USC s 4241(a), which defines as incompetent a defendant who is ‘suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense’. It applies not only to the trial, but also to guilty pleas.78 The standard of proof required for a finding of incompetence is ‘preponderance of evidence’;79 the allocation of the burden of proof depends on the specifics of the case.80 The court must order a competency hearing if there is reasonable cause to believe that the defendant may be incompetent.81 It may also order a psychiatric or psychological examination.82 Concerning state procedures the due process clause requires them to be adequate to protect the right to be tried only when competent.83 The prime legal consequence of a finding of incompetence is that the defendant is hospitalised for treatment for up to four months so the court can determine whether there is a substantial probability that she will regain competency ‘in the foreseeable future’.84 If there is such probability, the defendant may be further hospitalised for treatment until she becomes competent and the trial can proceed.85 The statutes require that this second period of commitment be ‘reasonable’ and based on a finding of substantial probability of competency ‘in the foreseeable future’. Nonetheless, the period of committal may last years and may even exceed the maximum possible prison sentence.86 If the defendant is found, in a new competency hearing, to have regained her competency, she is released from the institution and a date for trial is set.87 If the defendant cannot be expected to regain her competency in the foreseeable future, or has not regained it after a reasonable period of commitment, the state must release her or institute civil commitment proceedings.88 The criminal charges must be dismissed.89   Drope v Missouri, 420 US 162, 171 (1975).   Godinez v Moran, 509 US 389, 397–400 (1993). 79   18 USC § 4241(d). 80   The Constitution allows laying the burden of proof on the defendant (Medina v California, 505 US 437, 445–53, 455 (Concurring Opinion of Justice O’Connor) (1992)). Regarding criminal proceedings at the state level, the Supreme Court has found that they may place the burden of proof on the defendant (ibid), which several states in fact do (see references in Cooper v Oklahoma, 517 US 348, 357–58 (1996)), but may not require a higher standard of proof than ‘preponderance of the evidence’ (ibid, 354). 81   18 USC § 4241(a), on the procedural prerequisites for such hearings see 18 USC § 4247(d). 82   18 USC §§ 4241(b), 4247(b)–(c). 83   Pate v Robinson, 383 US 375, 378 (1966). This means that also in state proceedings, there must be a hearing where doubts arise concerning the competency of the defendant – ibid, 385–86; Drope v Missouri, 420 US 162, 180 (1975). 84   18 USC § 4241(d). 85   Unless the charges are disposed in some other way – 18 USC § 4241(d)(2). 86   US v Sahhar, 56 F 3d 1026, 1028–29 (9th Cir 1995). 87   18 USC § 4241(e). 88   18 USC § 4241(d) in fine, 4246. 89   See Jackson v Indiana, 406 US 715, 740 (1972) with further references. 77 78

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Proceedings in the Defendant’s Presence? Given the rather harsh consequences of a finding of incompetency, defendants may be inclined to waive their right not to be tried while incompetent and to ‘take their chance’ at trial instead of being committed to a mental health institution. However, courts have generally not allowed such waiver, as it could lead to defendants being tried while incompetent.90 The only proceedings which may still take place are those which might lead to a favourable disposition of the charges and which may fairly be conducted without the defendant. In this respect, the Supreme Court has mentioned ‘certain defenses such as insufficiency of the indictment, or . . . certain pretrial motions’.91 The question to what extent a defendant may be obliged or forced to take steps to regain her competency is, in the US context, mostly discussed in the context of forced treatment with antipsychotic drugs. The Supreme Court has held that an otherwise incompetent defendant may be forced to take such medication, for the sole purpose of rendering them competent to stand trial, in limited circumstances. Most importantly, serious crimes must be at issue, the government interest in combating such crime may not mitigated by the possibility of civil commitment, and the drugs must render the defendant competent without ‘significant sideeffects’ affecting a fair trial, such as changing her behaviour.92 The treatment of detainees on hunger strike is regulated by 28 CFR Pt 549 on medical services. Detainees on hunger strike are usually transferred to a medical facility and closely monitored; where their life or health is in danger, forced medical treatment including force-feeding may be initiated.93 Force-feeding was widely used on inmates of the military prison in Guantanamo Bay; reports particularly of brutal methods used by prison staff led to massive protests from human rights groups.94 Where the defendant is suffering from health problems which may impair her ability to conduct her defence, she may ask the court for a continuance. Courts have rather wide discretion whether or not to grant such continuance, 95 and the requirements for proving that grounds for a continuance exist are quite high.96 A continuance may also be refused where the health condition is self-induced.97 The defendant may also ask for a continuance where her health or life may be endangered by the trial; in extreme cases, this may lead to a trial being postponed sine die.98 However, here too the requirements for a sufficient showing of danger to health or life are rather high.99   See also Riggins v Nevada, 504 US 127, 140 (Concurring Opinion of Justice Kennedy) (1992).   Jackson v Indiana, 406 US 715, 740 (1972). 92   Sell v US, 539 US 166, 180–81 (2003). 93   28 CFR 549.62–549.64 (monitoring), 549.65 (forced medical treatment). Further details are regulated by the Bureau of Prisons Program Statement 5562.05 of 29 July 2005. 94   See Carol D Leonnig, ‘More Join Guantanamo Hunger Strike’, Washington Post, 13 September 2005; Tim Golden, ‘Tough US Steps in Hunger Strike at Camp in Cuba’, New York Times, 9 February 2006. 95   Goldsby v US, 160 US 70, 72–73 (1895). 96   US v Bernstein, 417 F 2d 641, 643 (2nd Cir 1969). 97   See the various state cases cited in 66 ALR 2nd 232, para 10. 98   US v Doran, 328 F Supp 1261 (DC NY 1971). 99   US v Keegan, 331 F 2d 257, 263 (7th Cir 1964). 90 91

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Fitness of the Defendant to Stand Trial

II.  Requirements Deriving from Human Rights Law 1.  The European Convention Under the ECHR, the right not to be tried if unfit to stand trial derives from the general fair trial right under Article 6(1)100 or more specifically the right to actively take part in one’s defence as derived from Article 6(1) and (3).101 What little jurisprudence there is shows that the ECHR will only in extreme cases require courts to stop the proceedings. A defendant is fit if she is able to ‘submit all facts and arguments [she] consider[s] relevant’ or, if represented by counsel, to instruct counsel ‘in order to be defended in an adequate manner’. 102 Under this standard, even a ‘mentally handicapped person with an unsound personality’ is fit to stand trial if defended by counsel.103 The clearest enunciation of the low standard set arose in T and V v United Kingdom. This case concerned two 11-year-old children, one of whom had diminished mental capacities equivalent to that of an eight or nine-year-old,104 tried for murder and convicted in an adult court. While the court did find a violation of the right to a fair trial in this case, this finding did not arise from the fact that the two were tried at all, but rather from the way in which the trial was conducted.105 In other words even someone with the mental capacity of an eight-year-old may generally be considered fit to stand trial under the ECHR,106 at least if that person is defended by counsel and if ‘steps are taken to promote his ability to understand and participate in the proceedings’.107 Finally, the ECtHR has also dealt with defendants who were generally fit to stand trial, but who were, for reasons brought about by the state, in a state ‘of lowered physical and mental resistance’ at a specific hearing. Here, too, it has set a rather low bar for the defendant to be nonetheless found fit to stand trial. In the first case, the ECtHR found a violation of Article 6 ECHR despite the fact that the defendants were represented by counsel,108 but only after stressing that this occurred at a ‘vital moment’ of a trial that was ‘vitally important’ to the   Kusyk v Poland App no 7347/02 (ECtHR, 19 May 2005), para 2.   Mielke v Germany App no 30047/96 (ECmHR, 25 November 1996), para 3b. 102   IH v Germany App no 14453/88 (ECmHR, 12 February 1990), para 2 (emphasis added). 103   Kusyk v Poland App no 7347/02 (ECtHR, 19 May 2005), para 2. 104   V v United Kingdom ECHR 1999-IX 111, para 82. 105   ibid, para 88. 106   The Court also noted, without apparent condemnation, that in four European countries, minors as young as seven or eight may be subjected to criminal proceedings (ibid, para 48.) 107   ibid, para 84. The effect of this standard is described well in the Partly Dissenting Opinion of Judge Baka: he found no violation of Art  6, noting that  V’s position was ‘not significantly different from that of accused persons who are lacking legal knowledge, suffering mental disease or of low intelligence, such that they can be said to be subjects of the criminal process rather than active participants in it’. 108   ECtHR, Barberà, Messegué and Jabardo v Spain (1994) Series A no 285-C, paras 70, 89. 100 101

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Proceedings in the Defendant’s Presence? defendants who were charged with serious crimes, and that there had been other procedural irregularities.109 In a later judgment concerning a state of extreme exhaustion following a 17 hour trial session, the court noted that this state extended not only to the defendants, but also their counsel and the judges.110 Finally, the ECtHR found a violation of Article 6 ECHR where a defendant’s ability to concentrate on the trial was diminished due to conditions of detention amounting to inhuman and degrading treatment.111 Where the defendant is only partially fit, for example only able to attend hearings for a limited time, the trial may proceed if this fact can be taken into account.112 Where the defendant deliberately brings about her unfitness, proceedings may be conducted in her absence.113 Force-feeding of defendants on hunger strike may be permissible under narrow circumstances, but only where it is ‘of therapeutic necessity’114 – that is in order to save the life of the defendant, rather than to simply re-establish her fitness to stand trial.

2.  The International Covenant and the Inter-American and African Systems Neither the two other regional conventions nor the ICCPR explicitly deal with the fitness of the defendant to stand trial. Under the ICCPR, the HRC generally accepts a right to be tried only if fit to stand trial under the general fair trial provision,115 but has not had an opportunity to decide on the particulars. There is no jurisprudence concerning the other conventions, but both contain provisions similar to those from which the Strasbourg organs have derived that right under the ECHR.116 This would likely lead to the conclusion that these conventions also safeguard this right. There does not seem to be any jurisprudence on whether or not force-feeding is permissible under the ICCPR, the American Convention or the African Charter, nor is there any pronouncement for the parallel question under the UN Convention Against Torture. The closest thing to an authoritative statement is a joint report by several UN Special Rapporteurs on the detention camp in Guantanamo Bay, in which it is stated that ‘treating a competent detainee without 109   ibid, paras 69–70, 89. Eight of the 17 judges found that there had been no violation of Art 6 at all: Joint Dissenting Opinion of Judges Bindschedler-Robert, Thór Vilhjalmsson, Gölcüklü, Matscher, Walsh, Russo, Valticos and Torres Boursault. 110   Makhfi v France App no 59335/00 (ECtHR, 19 October 2004), paras 40–41. 111   Moiseyev v Russia App no 62936/00 (ECtHR, 9 October 2008), paras 121, 222 et seq. 112   IH v Germany App no 14453/88 (ECmHR, 12 February 1990), para 2; Mielke v Germany App no 30047/96 (ECmHR, 25 November 1996), para 3b. 113   See below [45]. 114   Nevmerzhitsky v Ukraine ECtHR 2005-II 307, para  94; Ilijkov v Bulgaria App no 33977/96 (ECmHR, 20 October 1997), para 1. 115   HRC, Bech v Norway, Comm 881/1999, paras 2.1–2.4 and 4.2. 116   See Art 8(1) and (2) ACHR; Art 7(1)(c) AfrCHPR and para 2 of the 1992 Resolution.

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Fitness of the Defendant to Stand Trial his or her consent – including force-feeding – is a violation of the right to health’.117 Given that medical interventions, including force-feeding, are usually carried out by physicians, medical ethics may also become relevant. The World Medical Association is categorically opposed to force-feeding. Its Declaration on Hunger Strikers was revised in October 2006 and now states in pertinent part that ‘Forcible feeding is never ethically acceptable. Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading treatment’.118 Similar provisions are contained in several standard-setting instruments concerning treatment of prisoners and intramural medicine.119

III.  International Criminal Procedure 1. The Ad hoc Tribunals The procedural texts applicable at the ad hoc Tribunals do not explicitly deal with the question of the defendant’s fitness to stand trial. Rule 74bis RPE-ICTY/ RPE-ICTR allows the Trial Chamber to order a medical, psychiatric or psychological examination of the defendant at the request of a party or proprio motu, but it does not indicate what consequences are to be drawn from the results of such examinations. Similarly, Rule 65bis(A)(ii) RPE-ICTY specifies that one of the purposes for pre-trial status conferences is to allow the defendant to ‘raise issues . . . including [her] mental and physical condition’, but again the provision does not deal with the legal consequences to be attributed to any such issues. Both Tribunals have, however, found that there is a requirement that the defendant be fit to stand trial.120 According to the ICTY, this is implied by several norms of the Statute, such as Article 20(3) (according to which the Trial Chamber must at the beginning of the trial confirm that the defendant understands the indictment) and several of the defendant’s rights contained in Article 21.121 117   ‘Situation of detainees at  Guantanamo Bay’, Report of the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, Leila Zerrougui; the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Special Rapporteur on freedom of religion or belief, Asma Jahangir; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, UN Doc E/CN 4/2006/120, 27 February 2006, paras 79–82. 118   At para 21. The Declaration is reprinted in: 52 World Medical Journal 90–92. 119   See the various references in Prosecutor v Tolimir (Order Regarding the Nightly Monitoring of the Accused) IT-05-88/2, Trial Chamber (25 August 2010), paras 21–22. 120   For the ICTR, see, eg Media (Judgment and Sentence) ICTR-99-52, Trial Chamber (3 December 2000), para  52; Military I (Decision on Nsengiyumva Motions to Call Doctors and to Recall Eight Witnesses) ICTR-96-12, Trial Chamber (19 April 2007), para 12. 121   Prosecutor v Strugar (Decision Re the Defence Motion to Terminate Proceedings) IT-01-42, Trial Chamber (26 May 2004), paras 21–24. The Chamber further references the provisions of national legal systems, the requirements drawn from human rights instruments, the jurisprudence of the ICTR and Rule 135 RPE-ICC – ibid, paras 29–34.

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Proceedings in the Defendant’s Presence? While there have been quite a number of decisions concerning fitness to stand trial before the ICTR and the ICTY, and while some defendants have even been found at least temporarily unfit to stand trial from the very beginning of ICTY proceedings,122 the first decision actually defining the standard for fitness was issued in 2004 in the Strugar case. The Chamber held that a defendant was fit to stand trial if she was able to effectively exercise her express and implied rights, especially to ‘plead, to understand the nature of the charges, to understand the course of the proceedings, to understand the details of the evidence, to instruct counsel, to understand the consequences of the proceedings, and to testify’.123 The Trial Chamber stressed that it was not necessary for the abilities named to be ‘present at their notionally highest level, or at the highest level that a particular accused has ever enjoyed’.124 A mental disorder was seen as neither a necessary nor a sufficient requirement for a finding of unfitness.125 Following, inter alia, the US Supreme Court, the Chamber placed on the defence the burden to prove unfitness, requiring proof ‘on the balance of probabilities’.126 On appeal, the Appeals Chamber upheld the decision of the Trial Chamber in both regards.127 The Chamber in Strugar did not definitively pronounce on the legal consequences of a finding of unfitness, instead noting that these would vary depending on the severity and expected duration of the impairment. The possible consequences mentioned ranged from alleviation of the impairment through technical and other measures or through provision of legal assistance, to adjournment of the trial until the defendant’s condition had ameliorated,128 to outright abandonment of the trial.129 So far, however, the ICTY has never relinquished the chance to try a defendant for reasons of unfitness or other health-related Verfahrenshindernisse. To the contrary, the case of Vladimir Kovacˇevic´ indicates that such termination will be very rare. Already at his first appearance on 3 November 2003, the Chamber had not allowed him to enter a plea and instead ordered medical examinations to determine his fitness. Seven months later, the Chamber found that due to a serious mental disorder, Kovacˇevic´ was ‘temporarily’ unfit to enter a plea or to stand trial.130 It suspended the proceedings and ordered that Kovacˇevic´ be provisionally released, under strict conditions, to a mental health facility institution in Serbia 122   See Prosecutor v Erdemovic´ (Sentencing Judgment) IT-96-22, Trial Chamber (5 March 1998), paras 5–6. 123   Prosecutor v Strugar (Decision Re the Defence Motion to Terminate Proceedings) IT-01-42, Trial Chamber (26 May 2004), para 36. 124   ibid, para 37; see also para 49. 125   ibid, para 35; similarly para 46. 126   ibid, para 38. 127   Prosecutor v Strugar (Judgment) IT-01-42, Appeals Chamber (17 July 2008), paras 55–56. 128   This option was also mentioned in Prosecutor v Rutaganda (Decision on the Request Submitted by the Defence) ICTR-96-3, Trial Chamber (25 September 1996). 129   Prosecutor v Strugar (Decision Re the Defence Motion to Terminate Proceedings) IT-01-42, Trial Chamber (26 May 2004), para 39. 130   See ICTY, Prosecutor v Vladimir Kovacˇevic´ (Decision on Provisional Release) IT-01/42/2, Trial Chamber (2 June 2004), 1.

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Fitness of the Defendant to Stand Trial and Montenegro for treatment and that his mental health be reviewed later on.131 Two years later, he was still unfit to stand trial,132 but the Chamber refused to terminate the proceedings as his mental health condition did not ‘exclude the resumption of proceedings in the future’.133 Kovacˇevic´ thus remained under the jurisdiction of the Tribunal more than three years after his initial appearance and in the absence of any concrete indications that his condition might change for the better. Shortly thereafter, Kovacˇevic´ still being unfit to stand trial, the case was transferred to Serbia under Rule 11bis RPE-ICTY. The Referral Bench referred to Serbian criminal procedure under which the national court would have to consider the defendant’s mental health before proceeding with a trial.134 The Serbian War Crimes Prosecutor’s Office had indicated that if Kovacˇevic´ was found unfit to stand trial in Serbia, it was planning to have him institutionalised. The District Court of Belgrade on 5 December 2007 found him unfit to stand trial.135 There have been no reports of any further developments. It should be noted that this case is the only one transferred to Serbia under Rule 11bis, and that Kovacˇevic´ was accused of crimes committed in Croatia.136 In the case of Janko Bobetko, the question arose how to deal with a defendant whom a national court had declared unfit to stand trial or to travel and who could thus not be transferred to the custody of the Tribunal. The Chamber ordered that the indictment be served on Bobetko, but that the warrant for his arrest be suspended. Croat authorities were to provide monthly updates on his condition.137 Bobetko died two months afterwards and proceedings were terminated by an order of the Chamber.138 Parenthetically, it should be noted that after the Chamber in Erdemovic´ had ordered medical examinations of the defendant to resolve the question of his fitness to stand trial but before these examinations had been finished, Erdemovic´ testified as a witness in the Rule 61 hearing against Karadžic´ and Mladic´.139 However, Erdemovic´ had already pleaded guilty and had indicated his willingness to testify against Karadžic´ and Mladic´. As to whether defendants are obliged to take steps to maintain or regain their fitness, the jurisprudence of the ICTY seems to indicate that they are, within   ibid, 3–4.   Prosecutor v Vladimir Kovacˇevic´ (Public Version of the Decision on Accused’s Fitness to Enter a Plea and Stand Trial) IT-01-42/2), Trial Chamber (12 April 2006), paras 14–20, 50. 133   Prosecutor v Vladimir Kovacˇevic´ (Decision on Defence Motion to Dismiss the Indictment) IT-0142/2, Trial Chamber (1 September 2006). 134   Prosecutor v Vladimir Kovacˇevic´ (Decision on Referral of Case Pursuant to Rule 11bis) IT-0142/2, Referral Bench (17 November 2006), paras 48–63. This decision was upheld on appeal (Decision on Appeal Against Decision on Referral Under Rule 11bis), Appeals Chamber (28 March 2007). 135   See ICTY, Status of Transferred Cases, www.icty.org/sid/8934. 136   ibid. 137   Prosecutor v Bobetko (Decision on Motion of the Prosecutor to Schedule a Fitness Hearing and to Take Related Measures) IT-02-62, Judge Agius (19 March 2003). 138   Prosecutor v Bobetko (Order Terminating Proceedings Against Janko Bobetko) IT-02-62, Trial Chamber (24 June 2003). 139   Prosecutor v Karadžic´ and Mladic´ (Transcript of 5 July 1996) IT-95-5 and IT-95-18, 831 et seq. 131 132

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Proceedings in the Defendant’s Presence? limits. Defendants are generally obligated to acquiesce in medical examinations conducted in order to safeguard their health.140 The question of refusal of medical treatment arose in the Miloševic´ and Tolimir cases. In Miloševic´, medical reports had indicated that the defendant was not taking the prescribed blood pressure medication and the prosecution had asked that the Trial Chamber impose counsel because of ‘obstructionist’ conduct.141 The Trial Chamber did not decide whether refusal to adhere to the therapy plan could lead to consequences such as the imposition of counsel – it was ‘concerned to note’ the reports, but did not base its decision to impose counsel on this reason. On the other hand, neither did it reject the prosecution’s argument, instead simply basing its decision on a different reason, the risk of further delays.142 In Tolimir, the Chamber considered the question from the angle of the right to refuse treatment: it held that the defendant generally retained that right, but that it needed to be balanced against the effects of (refusal of ) treatment on her health. The right thus did not apply where the defendant ‘willingly puts his or her life in danger or has suicidal intentions’,143 and apparently the Chamber also considered that it could also be limited if ‘there are indications that the Accused . . . ceases to take a reponsible attitude towards his own health, or if the Chamber is otherwise convinced that [treatment] becomes necessary’.144 In Tolimir the Chamber was careful to distinguish the refusal of treatment from ‘voluntary protest fast’ as the latter was ‘not the refusal of proposed medical treatment but rather a protest which can ultimately lead to the death of the accused, if maintained to the end’.145 This must be taken as a reference to the question of force-feeding, which arose in the case of Vojislav Šešelj. Šešelj went on hunger strike shortly before the start of his trial in order to force the Tribunal to accede to several demands related to the conduct of his case. On 29 November 2006, his medical condition had deteriorated to the point that he was admitted to the prison hospital.146 After reports indicated that his condition was worsening, the 140   See, eg Prosecutor v Tolimir (Decision on Tolimir’s Submission on Violation of his Rights Submitted on 7 September 2007) IT-05-88/2, Trial Chamber (10 October 2007). 141   Prosecutor v Slobodan Miloševic´ (Reasons for Decision on Assignment of Defence Counsel) IT-02-54, Trial Chamber (22 September 2004), para 23. 142   ibid, para 67. 143   Prosecutor v Tolimir (Order Regarding the Nightly Monitoring of the Accused) IT-05-88/2, Trial Chamber (25 August 2010), para 23. 144   ibid, para 29. While this part of the order does not concern treatment as such, but rather nightly monitoring of the defendant to ensure that there were no medical emergencies, it does seem to consider the right to refuse treatment generally. See also Judge Antoine Mindua’s Separate and Concurring Opinion on the Order Regarding the Nightly Monitoring of the Accused, 25 August 2010, para 3, noting that ‘the Chamber has a responsibility to protect the health and wellbeing of an accused so that justice may be done – not only justice for the accused, but also justice for the alleged victims and the international community as a whole’ and that therefore the right to refuse treatment ‘has to be exercised bearing in mind the obligation of the accused . . . to be alive and in good health so that justice may be done’. 145   Prosecutor v Tolimir (Decision on Urgent Registry Submission Pursuant to Rule 33(B) Concerning the Order Regarding the Nightly Monitoring of the Accused) IT-05-88/2, Trial Chamber (1 September 2010), 2. 146   ICTY, Press Release of 30 November 2006, ‘Tribunal’s Grave Concern about Šešelj’s Actions which are Seriously Damaging his Health’.

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Fitness of the Defendant to Stand Trial Chamber on 6 December 2006 issued an order to the Dutch authorities to forcefeed Šešelj should his condition become life threatening. The exact basis for this order was left unclear – the Trial Chamber announced that it was concerned about Šešelj’s health and welfare, but also mentioned ‘the impact of the hunger strike on the exercise of [the Chamber’s] judicial function in furtherance of the mission of the Tribunal’.147 The Chamber did not deal with the question whether force-feeding might be contrary to law or medical ethics,148 but left this determination to the Dutch authorities.149 The order is thus open to an interpretation allowing force-feeding not only to save the defendant’s life, but also to render her fit to stand trial.150 In the end, the order was never carried out – Šešelj ended his hunger strike on 8 December after the Appeals Chamber had granted most of his demands.151 The UNDU, however, later produced a document entitled ‘Voluntary Protest Fasts – Information for Detainees’, which refers to the Declaration of the World Medical Association and ensures detainees that if they establish their intention ‘to take [their] protest to its ultimate end’ while still mentally competent, they ‘will be allowed to die with dignity rather than being resuscitated against [their] will’.152 In Stanišic´ and Simatovic´, the Trial Chamber decided not to grant provisional release to Jovica Stanišic´, who was being treated for various medical problems at the UNDU, because provisional release, and thus the disruption of his treatment, could lead to ‘a sudden deterioration of the Accused’s health’ and thus to a ‘serious disruptions of the trial proceedings’.153 Release was later granted, after new reports had shown that his health problems had ameliorated to some extent, under ‘a strict set of conditions for monitoring, treating, and reporting on the Accused’s medical condition outside of the UNDU’.154 As to partial fitness, this was most often taken into account in line with medical advice155 – most notably during the prosecution case in Miloševic´, where the Chamber several times interrupted the proceedings and twice reduced the amount

147   Prosecutor v Šešelj (Urgent Order to the Dutch Authorities Regarding Health and Welfare of the Accused) IT-03-67, Trial Chamber (6 December 2006), paras 2, 7–9, 10–11. See also Sluiter (2007), 531–32. 148   See the World Medical Association Declaration cited above n 118. 149   This is criticised by Sluiter (2007), 531–32. 150   This seems to have been the interpretation of the Dutch Government – see the statement by the Minister of Justice referred to by Sluiter (2007), 533, fn 22. 151   See IWPR, Tribunal Update 480, 8 December 2006, ‘Šešelj Protest Over’. 152   Voluntary Protest Fasts – Information for Detainees, Revised 25 March 2009, available at: icty. org/x/file/Legal%20Library/Detention/voluntary_protest_fast-info_for_dets_rev_090325.pdf. 153   Prosecutor v Stanišic´ and Simatovic´ (Public Redacted Version of the Confidential ‘Decision on Urgent Stanišić Defence Motion for Provisional Release on Humanitarian and Compassionate Grounds’ of 16 August 2010) IT-03-69, Trial Chamber (8 September 2010), para 8 with reference to an earlier decision holding the same. 154   Prosecutor v Stanišic´ and Simatovic´ (Redacted Version of the Confidential ‘Decision on Urgent Stanišić Motion for Provisional Release’ of 11 October 2010), Trial Chamber, 23 November 2010. 155   See, eg Prosecutor v Milan Simic´ (Transcript of 10 September 2001), 917; (Sentencing Judgment) IT-95-9/2, Trial Chamber (17 October 2002), para 7.

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Proceedings in the Defendant’s Presence? of trial days per week.156 For acute problems or doctor’s appointments, the Chambers sometimes adjourned proceedings157 or, where the defendants did not insist on being present, allowed them to be absent for the time needed.158 In some cases, however, the Chambers also continued in the absence of defendants even where the defendants did not consent,159 viewing partial fitness not from the angle of fitness to stand trial, but rather as a question of the defendant’s presence at trial.160 A reluctance to relinquish a case can also be detected in cases concerning terminally ill defendants. Several months into his trial, Momir Talic´ was diagnosed with an incurable form of lung cancer, with a life expectancy of about a year. Medical experts found that he was fit to stand trial for the short term, but would become unfit within weeks, that there was no hope of recovery and no expectation that Talic´ would live to see the end of the trial. The Chamber, however, did not even seem to consider terminating the proceedings. Instead, it granted provisional release under a stringent set of conditions, including contacting the local police daily and ‘return[ing] to the Tribunal at such time and on such date as the Trial Chamber may order’.161 As predicted, Talic´ died about eight months later while still on ‘provisional’ release; proceedings against him were terminated some days later.162 Another Chamber had already filed a similar decision in the proceedings against Đord-e Đukic´, who had also been diagnosed with cancer. In this case too, the Chamber only granted provisional release,163 despite the fact that Đukic´ had a life expectancy of weeks and that his condition at that time not only rendered him unfit to stand trial, but was ‘unequivocally incompatible with any kind of detention’.164 The prosecution had in fact requested to be allowed to withdraw the indictment, with or without prejudice, but this request was denied. Đukic´ died 156   See, Prosecutor v Slobodan Miloševic´ (Reasons for Decision on Assignment of Counsel) IT-02-54, Trial Chamber (22 September 2004), paras 9–11, 53–56. 157   eg Prosecutor v Semanza (Transcript of 4 December 2000) ICTR-97-20, Trial Chamber, 25–26. 158   eg Prosecutor v Karemera et al (Minutes of 29 November 2007) ICTR-98-44, Trial Chamber, para  1f; Butare (Minutes of 12 November 2007), paras  1a, 2a; (Minutes of 13 November 2007), paras 1a, 2a; (Minutes of 14 November 2007), paras 1a, 2a; (Minutes of 15 November 2007), paras 1a, 2a; (Minutes of 19 November 2007), para  1a; (Minutes of 20 November 2007), paras  1a, 2a, ICTR98-42, Trial Chamber; Military II (Minutes of 23 January 2008) ICTR-99-45, Trial Chamber, para 1a. 159   See, eg Prosecutor v Stanišic´ and Simatovic´ (Decision on Future Course of Proceedings) IT-0369, Trial Chamber (9 March 2008), especially para 6; Military I (Decision on Nsengiyumva Motion for Adjournment Due to Illness of the Accused) ICTR-96-7, Trial Chamber (17 November 2006); Prosecutor v Karemera et al (Minutes of 8 March 2006) ICTR-98-44, Trial Chamber, paras 1a, 2a. 160   See below 49–50. 161   Prosecutor v Brd-anin and Talic´ (Decision on the Motion for Provisional Release of the Accused Momir Talić) IT-99-36, Trial Chamber (20 September 2002), Disposition. The OTP had argued even against provisional release, stating that it would ‘damage the institutional authority of the Prosecutor and her ability to conduct investigations in the territory of the former Yugoslavia’ and that ‘victims and witnesses . . . in the context of their own suffering will not understand the humanitarian motivation behind such a release’. See the section on Introduction and Procedural Background. 162   Prosecutor v Talic´ (Order Terminating Proceedings Against Momir Talić) IT-99-36/1, Trial Chamber (12 June 2003). 163   Prosecutor v Đukic´ (Decision Rejecting the Application to Withdraw the Indictment and Order for Provisional Release) IT-96-20, Trial Chamber (24 April 1996), 2–3. 164   ibid, 4.

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Fitness of the Defendant to Stand Trial about four weeks after being ‘provisionally’ released; proceedings were terminated a few days later.165 The ICTR had to deal with a terminally ill defendant in the case of Joseph Serugendo, who had pleaded guilty and had fallen seriously ill shortly before the sentencing hearing. Although his condition was clearly terminal166 and Serugendo was apparently unable even to give a very short statement of remorse in person,167 the Chamber did not consider the question of fitness to stand trial at all.168 It only took his illness into account as a significant mitigating circumstance in sentencing.169 Serugendo died less than three months later.170

2.  The International Criminal Court The Rome Statute does not explicitly refer to the defendant’s fitness to stand trial. However, the right to be tried in one’s presence171 may be understood to encompass more than just physical presence.172 Similarly Article 64(8)(a) RSt obliges the Trial Chamber, at the beginning of the trial, to read the charges to the defendant and ‘satisfy itself that the accused understands the nature of the charges’ – this of course requires that the defendant is mentally able to do so.173 One may conclude that the ICC may in fact only try defendants who are fit to stand trial. Procedural questions are dealt with in some detail in the RPE-ICC: Rule 135(1) allows the Trial Chamber to order a medical, psychiatric or psychological examination of the defendant. This may be done to honour the obligation under Article 64(8) (a) RSt (‘satisfy itself that the accused understands the nature of the charges’) or ‘for any other reasons’, which will probably include cases where the defendant may be unfit to stand trial.174 The Pre-Trial Chamber has a similar power (Rule 113). While the RPE-ICC thus regulates the procedure for determining the fitness of the defendant to stand trial, they are silent when it comes to the standard for such fitness. Regarding the legal consequences of a finding of unfitness, the RPE only refer to the trial phase.175 If the Trial Chamber finds the defendant unfit to stand trial,   Prosecutor v Đukic´ (Order Terminating Proceedings) IT-96-20, Trial Chamber (29 May 1996).   Prosecutor v Serugendo (Transcript of 1 June 2006) ICTR-2005-84, Trial Chamber, 26. 167   Instead, his defence tendered two short statements of about one page each into evidence – ibid, 23. 168   It should be noted that Serugendo’s counsel had not raised this issue either and that Serugendo had earlier insisted on giving further statements to the prosecution even after he had fallen ill – ibid, 29–30. 169   Prosecutor v Serugendo (Sentencing Judgment) ICTR-2005-84, Trial Chamber (12 June 2006), paras 70–74, 92. 170   ICTR, Press Release of 22 August 2006, ‘Prisoner Joseph Serugendo Dies’. 171   Arts 63(1) and 67(1)(d) RSt. 172   In fact, a proposal in the drafting process which would have allowed proceedings to continue without the defendant in case of ill health were criticised as ill health was held to be grounds for an adjournment –Schabas in Triffterer (2008), Art 63, mn 5 with references. 173   Art 65(1)(a) sets up a similar requirement for guilty plea procedures, requiring the Chamber to ‘determine whether . . . the accused understands the nature and consequences of the admission of guilt’. 174   See also Lewis (2001), 544. 175   r 135(4) RPE-ICC. 165 166

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Proceedings in the Defendant’s Presence? the trial is adjourned. It may review the case at any time on request by the prosecution or the defence or on its own motion; it must review every 120 days ‘unless there are reasons to do otherwise’. Once the defendant has regained her fitness, the trial resumes. There is also no rule explicitly dealing with defendants partially fit to stand trial or unable to appear for a short time due to, for example, acute illness. This question would appear to be covered by provisions on proceedings conducted in the defendant’s absence.176 Finally, there is no provision for the case of a defendant who may not be expected to ever regain her fitness and/or who must be expected to die before the end of the proceedings. According to William Schabas, in the first case, ‘nothing in the Statute would appear to allow the court . . . to hold the accused, indefinitely, pending a change in circumstances’.177 This would mean that the prosecution and/or the Chamber would have to withdraw the charges under Article 61(4) or (9) RSt. However, the drafting history of Rule 135 indicates that the drafters in fact considered this problem and that the exception to the periodic review provision in para (4) (‘unless there are reasons to do otherwise’) was inserted precisely to deal with such cases.178 This seems to suggest that there is a good chance that such proceedings would not be terminated, but adjourned indefinitely, that is potentially until the death of the defendant. Thus the ICC may be similarly reluctant to relinquish the opportunity to try the defendant as the ad hoc Tribunals. So far, there is no jurisprudence on any of these questions as none of the defendants before the ICC seem to have suffered from mental or serious physical health problems.

3.  The Special Court for Sierra Leone Similar to other international courts, the StSCSL contains no provision on fitness to stand trial, but this requirement may be deduced from, inter alia, the right to be present at trial179 and the requirement that the defendant understand the nature of the charges.180 Also similarly to other courts, the RPE-SCSL deal with this question in a somewhat fragmentary manner: according to Rule 74bis(A), the court may order an examination of the defendant. If she is found to be unfit to stand trial, the trial is adjourned, the case is frequently reviewed, and the trial restarts when she has regained her fitness.181 The Rules give no standard for fitness, and while there was one case in which the defendant’s fitness was in question, this did not lead to a determination of that   See below 55.   Schabas in Triffterer (2008), Art 63, mn 13. 178   Lewis (2001), 545. 179   Art 17(4)(d) StSCSL. 180   r 61(ii) RPE-SCSL. 181   r 74bis(C) RPE-SCSL. 176 177

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Fitness of the Defendant to Stand Trial standard either. At his first appearance before the SCSL, Foday Sankoh, who had already been in bad physical and mental shape when first taken into custody, did not respond to questions and apparently was unable even to state his name. After an initial psychiatric report, Judge Itoe ordered a further and full psychiatric and physiological examination.182 The judge rejected a defence motion that proceedings be stayed until completion of that examination.183 The full examination never took place as Sankoh died shortly after the hearing on the motion.184 In the cases that went to trial, several defendants were unable to participate on various trial days due to illnesses or other acute conditions. As none of them insisted on their right to be present during court proceedings, the Chamber continued without them on those days. Thus the question of adjournment or stay of proceedings did not arise.185 There are no provisions on defendants who may not be expected to regain their fitness to stand trial186 or to survive the end of the trial. The question seems not to have arisen, although both Sam Hinga Norman and Foday Sankoh did not survive the end of their trials: in both cases, their deaths do not seem to have been foreseeable when the respective decisions on the course of the proceedings were taken.187

4.  The Special Tribunal for Lebanon As at other international courts, the legal texts of the STL do not explicitly refer to the defendant’s fitness to stand trial. However, the StSTL contains defendant rights similar to those before other tribunals, including a right to presence188 and a requirement that the Trial Chamber, at the commencement of proceedings, ‘confirm that the accused understands the indictment’.189 It is to be expected that if the case arises, the STL will follow the other tribunals and interpret these norms as showing that defendants may only be tried if fit to stand trial. Rule 132 RPESTL explicitly refers to a medical examination of the defendant, but neither the standard for competence nor the legal consequences of a finding of unfitness are regulated. 182   Prosecutor v Sankoh (Order for Further Physiological and Psychiatric Examination) SCSL-03-02, Judge Itoe (21 March 2003). 183   Prosecutor v Sankoh (Ruling on the Motion for a Stay of Proceedings Filed by the Applicant) SCSL-03-02, Judge Itoe (22 July 2003). 184   Prosecutor v Sankoh (Withdrawal of Indictment) SCSL-03-02, Trial Chamber (8 December 2003). 185   See below 56. 186   Judge Itoe, in the case of Foday Sankoh, stated that  a defendant who was unfit to stand trial would ‘certainly be entitled to neither a discharge [nor] acquittal’, but rather ‘subjected to other judicial measures’. He did not state in more detail what form such measures might take. Prosecutor v Sankoh (Ruling on the Motion for a Stay of Proceedings Filed by the Applicant) SCSL-03-02, Judge Itoe (22 July 2003), 8. 187   In the case of Sankoh, a precise diagnosis was not possible as the required medical equipment was not available in Sierra Leone and as no other country was willing to take Sankoh for treatment – see SCSL, Press Release of 11 June 2003, ‘No Country Found to Take Sankoh for Medical Treatment’. 188   Art 16(4)(d) StSTL. 189   Art 20(1) StSTL.

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Proceedings in the Defendant’s Presence? As to partial fitness, while the legal texts allow in absentia proceedings in a broad range of situations, these do not cover situations where the defendant is unable to be present due to illness.190

IV. Conclusions As far as the standard for fitness to stand trial is concerned, the international courts under consideration here do not differ markedly from national criminal procedures. First of all, the fact that the standard is not defined in any of the legal texts applicable to them is not particularly surprising as not all national laws contain such a definition, either. Second, the ICTY, the only court so far to have pronounced on a standard, has applied one that is rather similar to national standards. On the other hand, when it comes to the legal consequences of a finding of unfitness, international courts are significantly more reluctant than national courts to actually terminate proceedings. At the ICTY, despite several defendants suffering severe physical health problems and in fact dying while proceedings were ongoing, not in one case have proceedings been terminated before the actual death of the defendant. The ICTR went a bit further in Serugendo by actually conducting proceedings – albeit only a sentencing hearing – although the defendant was very arguably unfit to stand trial and could be expected to die very soon. A similar reluctance can be seen at the ICTY also in the case of mental illness. The ICC and the STL have not yet had to deal with these questions, but one may expect them to react somewhat similarly, particularly given that their respective RPE do not even take into account the possibility that some defendants may not be expected to regain their fitness or to live to see the end of their trial.

C.  Proceedings in the Absence of the Defendant The question whether proceedings may be conducted in the absence of the defendant can, as noted above, be further subdivided. Proceedings may be conducted entirely in the defendant’s absence, either because she is unavailable to the court or despite her availability. Proceedings may also be conducted partially in the absence of the defendant, either because the court does not allow her to participate for reasons such as disruptive behaviour or endangerment of witnesses, or because she is not able to participate for health or other reasons, or simply because she does not wish to participate. In all cases, the connection to the position of the defendant in relation to her proceedings is clear: the provisions to be considered here mostly answer the question whether there will be proceedings against the defendant at all; those provi  See also below 59.

190

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Proceedings in the Absence of the Defendant sions which allow her exclusion from the proceedings concern the question whether she has any role at all to play in these proceedings.

I.  Domestic Criminal Procedures 1. Germany German law does not allow in absentia proceedings strictly speaking. According to section 285(1) StPO, ‘No main hearing shall be held in respect of a person who is absent’.191 This total ban of true in absentia proceedings has been in the statutes since 1975, but a general reluctance towards such proceedings dates back much further. The RStPO of 1877 allowed in absentia proceedings only for very minor crimes;192 and with the exception of the Third Reich,193 this rule has continued to apply relatively unchanged until the abolishment of in absentia trials in 1975.194 Instead of in absentia proceedings, the StPO foresees two alternative proceedings. First, evidence may be secured for potential future proceedings,195 second, if the prerequisites for pre-trial detention of the defendant are fulfilled, the court may freeze her property in Germany until she either becomes available to the court or proceedings end for other reasons.196 Especially this latter type of proceedings is only very seldomly used.197 It should be noted that German law does acknowledge in absentia proceedings in other states, such as by allowing extradition of those convicted abroad. The Constitutional Court found that the mere fact that a conviction had been in absentia did not present an obstacle to such extradition, but that extradition was only contrary to the German Constitution and general principles of international law as applicable in Germany where the defendant had had neither adequate knowledge of the impending trial beforehand nor the ability to challenge the conviction afterwards.198 The StPO does, however, foresee the possibility to undertake proceedings entirely in the defendant’s absence after she has been properly summoned. Section 232 StPO allows the court under certain circumstances to conduct proceedings in the absence of a defendant who does not appear after having been properly 191   § 276 defines a defendant as absent if ‘his whereabouts are unknown, or if he is abroad and his presence before the competent court does not appear to be feasible or reasonable’. 192   § 319 et seq. Reichsstrafprozessordnung of 1877. 193   After a 1935 reform, § 276 StPO allowed in absentia proceedings in all cases ‘where the “legal feelings of the people” (Rechtsempfinden des Volkes) calls for the speedy condemnation of the crime’; a requirement to be found by the court upon non-reviewable prosecution motion. This reform was quickly reverted after 1945 – see LG Berlin, NJW 1949, 191, according to which the 1935 reform of § 276 was a ‘typical emanation of Nazi ideology’ and thus § 276 was to be applied in its pre-1935 version. 194   See Dünnebier (1972), 673–77. 195   See § 285 et seq StPO. 196   See § 290 et seq StPO. 197   cf Börner (2005). 198   See, eg BVerfG, NStZ 2006, 102, 103; BVerfGE 63, 332, 337–38.

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Proceedings in the Defendant’s Presence? summoned. Section 233 StPO allows the court to absolve the defendant from her obligation to appear. Both provisions, however, only allow very limited punishment and thus do not apply to crimes of any gravity. There is only one case in which proceedings concerning serious crimes may be conducted entirely in the absence of the defendant after she has been properly summoned: section 231a StPO allows such proceedings if the defendant has deliberately brought about her unfitness to stand trial, for example through a hunger strike. This rule is basically an extension of the rule allowing courts to continue proceedings against defendants who bring about their unfitness during the trial199 which is considered further below. Finally, it may be the case that proceedings are conducted in part in the absence of the defendant. Generally speaking, the defendant has both a right and a duty to be present during the entire proceedings.200 However, this rule has a number of exceptions. Proceedings may continue in the absence of the defendant if she has been removed from the courtroom ‘for failing to follow orders of the court concerning the order in the courtroom’, that is for disruptive behaviour, but only ‘as long as it is to be feared that the defendant’s presence would be seriously detrimental to the course of the main hearing’.201 In other words, disruptive behaviour which the defendant can be expected not to repeat, or behaviour which does not constitute a serious detriment to the proceedings, does not justify exclusion from the proceedings. Proceedings may not continue without the defendant if her presence is indispensable, that is absolutely vital to the court’s ability to find a correct judgment or her ability to conduct a defence.202 The defendant must be allowed back into the courtroom once her behaviour ceases to pose a danger to the proceedings.203 Once allowed back, she must be informed ‘of the essential contents of the proceedings during [her] absence’.204 Section 247 StPO contains a number of further reasons for the defendant’s removal during parts of the proceedings. She may be removed if there is a danger that a witness will not tell the truth if testifying in her presence,205 which covers not only the danger that the witness will lie if the defendant is present, but also that the witness will rely on a right to refuse to testify.206 Second, the defendant may be removed during the testimony of a witness if testimony in her presence would lead to an imminent risk of serious detriment to the physical or mental health of the witness or, in case of a young witness, also to her general well-being. Finally, the defendant may be removed in her own interest where there would be a danger to her health if she were present during ‘discussions concerning the defendant’s condition and . . . treatment prospects’. The law does not require that   § 231(2) StPO.   § 230 StPO. 201   § 231b StPO. 202   Becker in Löwe and Rosenberg (2006), § 231b, mn 6; § 231a, mn 11. 203   KG Berlin, StV 1987, 519. 204   § 231b (2), 231 a (2) StPO. 205   BGH, NStZ 1990, 27. 206   BGH, NStZ 2001, 608; BGHSt 22, 18; BGHSt 52, 175, 176. 199 200

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Proceedings in the Absence of the Defendant the defendant be allowed to follow the proceedings via video-link, but the Federal Court of Justice has stated that this is preferable.207 In any case, after the testimony of the witness or the discussions concerning her condition, respectively, she must be allowed back and informed of the ‘essential contents of the proceedings, including the testimony’.208 Where the defendant is not able to participate in the proceedings for health reasons, proceedings may generally not proceed without her. The only exception to this rule applies where the defendant has deliberately brought about her unfitness in the knowledge that this will preclude proceedings in her presence.209 Ways in which the defendant may render herself unfit include any self-inflicted damage to her mental or physical health, ranging from drug or alcohol abuse,210 hunger strikes211 to ‘deliberately allowing oneself to succumb to an abnormal state of arousal’.212 Whether the provisions also apply to unsuccessful suicide attempts is subject to debate.213 As to a refusal of medical procedures, it is clear that defendants cannot be faulted for refusing major medical procedures or procedures entailing certain risks;214 the extent to which they may also refuse routine procedures not entailing such risks is still debated by the courts.215 Section 231(2) StPO, finally, deals with cases in which a defendant simply chooses not to appear for the proceedings. Where there are no reasons to justify or excuse the absence of the defendant,216 the court may continue without her. Courts may generally not allow defendants to absent themselves as presence during proceedings is considered not only a right, but also a duty of the defendant.217 Trial courts have sometimes attempted to work around this limitation by, instead of ‘allowing’ the defendant to remain absent, simply telling her that the court will (probably) not have her arrested for failure to appear. Such attempts have been accepted by the Federal Court of Justice.218 Where there are joint proceedings   BGH, NStZ 2001, 608; BGH, StraFo 2002, 191, 192.   Instead of providing such information to the defendant, the courts may also allow her to follow the proceedings via video-link – BGH, JZ 2007, 744. 209   See § 231a with regard to defendants rendering themselves unfit before the beginning of the main proceedings; where defendants render themselves unfit after the beginning of the main proceedings, this is treated as an unexcused absence in the sense of § 231(2) StPO – see Meyer-Goßner (2011), § 231, mn 17 with further references. 210   BGH, NStZ 1986, 372. 211   BGHSt 26, 228, 239 et seq. 212   BGHSt 2, 300, 304; OLG Hamm, NJW 1977, 1739. 213   See, contra, Becker in Löwe and Rosenberg (2006), § 231a, mn 7; pro, BGHSt 16, 178; MeyerGoßner (2011), § 231, mn 17; § 231a, mn 7. 214   BVerfGE 89, 120; BGH, StV 1992, 553; BGHSt 26, 228, 234. 215   This question was left open by BVerfGE 89, 120. The possible answers can be illustrated by two decisions in one case: LG Nürnberg-Fürth, NJW 1999, 1125 chose not to continue proceedings in the absence of a defendant who refused medical procedures for high blood pressure, noting that the defendant had refused such procedures also before being indicted. On appeal, OLG Nürnberg, NJW 2000, 1804 noted that the procedures did not entail significant risks and would not place an undue burden on the defendant; it mandated that the lower court continue proceedings in the absence of the defendant. 216   BGH, NStZ 1998, 476; BGHSt 37, 249. 217   BGH, StV 1987, 189; BGH, StV 1993, 285; BGH, NStZ 1989, 284; BGH, NJW 1973, 522. 218   BGHSt 37, 249, 252–53. 207 208

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Proceedings in the Defendant’s Presence? against several defendants, the court may absolve an individual defendant from her duty to be present for parts of the proceedings which do not concern her.219 In all cases, the court has a residual right to compel the presence of the defendant even where it would be entitled to continue in her absence.220

2. France French criminal procedure has historically relied to a large extent on trial by default where the court did not gain custody of the defendant. Certain aspects of this procedure have been found to violate Article 6 ECHR, which has led to a number of reforms of the procedural provisions.221 Nonetheless, the CPP still foresees trial in absentia for all crimes, including felonies, if the defendant is absent from the opening hearing ‘without valid reasons’ or absents herself after the trial has begun.222 In the latter case, however, the court may also decide to suspend the proceedings or to defer them to a later session and issue a warrant of arrest. The further procedure depends on whether or not counsel for the defendant is present: if this is the case, the trial is conducted in the absence of the defendant, but in the presence of her counsel and generally according to the usual procedure.223 This is the result of a recent reform: until recently an absent defendant could not be represented by defence counsel.224 If counsel is not present, the court may immediately rule on the accusation after hearing the prosecutor and the civil party; there is no need to appoint counsel ex officio.225 In both cases, if the defendant later surrenders or is arrested, she is entitled to an automatic retrial conducted according to the standard procedure.226 As to trials conduted partially in the absence of the defendant, the CPP allows for several exceptions to the general rule that the presence of the defendant is required for all parts of the trial.227 First, the defendant may be excluded in certain circumstances. Any person, including the defendant, may be excluded if she ‘disturbs order in whatever manner’.228 There is little jurisprudence on the prerequisites for such a decision; however it seems clear that the defendant needs to be somewhat persistent in dis-

  § 231c StPO.   § 236 StPO. 221   See Hodgson (2002), 783–84. 222   Art 379-2 CPP. 223   Art 379-3(2) CPP. 224   This was changed after the decision of the ECtHR in Krombach v France, which was followed by a successful complaint to the Cour de Cassation: Cass plen, 2 March 2001, Bull crim No 56. 225   Art 379-3(3) CPP. 226   Art 379-4(1) CPP. This retrial takes the place of the normal appeals process, which is not available to those tried by default: Art 379-5 CPP. 227   See, eg Cass crim, 22 June 1988, Bull crim No 286. See also Angevin (1978), Arts 317–22, fasc 20, paras 4–5. 228   Arts 321(1), 322 CPP. 219 220

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Proceedings in the Absence of the Defendant turbing the hearing,229 such as by shouting down the reading of the indictment.230 The defendant must usually be allowed back into the courtroom after she has regained her calm,231 and she must be apprised of the proceedings having been conducted in her absence after each hearing.232 The presiding judge may also order the defendant to withdraw for the hearing of a witness or co-defendant.233 After the testimony of the witness or the hearing of the co-defendant, the defendant must be allowed to return to the courtroom and must be apprised of the proceedings conducted in her absence.234 Where the defendant is unable to appear or stay in court due to health problems, the proceedings must be interrupted or, where this is not sufficient, adjourned until a later session of the court.235 This is true even if the defendant consents to proceedings continuing in her absence.236 Finally, where the defendant refuses to appear for the hearing, the court may order her to appear and, if she refuses, have her forcibly brought before the court237 – a solution seldom chosen.238 Alternatively, the court may decide to proceed without her.239 If it chooses the latter course, the defendant is informed of the proceedings in court and served with certain documents.240 While both expulsion and refusal to appear may lead to trials conducted entirely or nearly entirely in the absence of the defendant, the procedure is nonetheless ‘deemed to be adversarial’, that is it does not constitute a trial by default as dealt with above.241

3.  The United States Under the 5th and 6th Amendments to the US Constitution, criminal defendants have a right to presence at both arraignment and trial; trials in absentia are generally prohibited.242 However, as most fair trial rights, this right may be waived, and such waiver may be implied from the simple absence of the defendant provided that it is voluntary, that is that she knew of the indictment and the date set.243   Cass crim, 25 May 1965, Bull crim No 142; 22 November 1972, Bull crim No 353.   Cass crim, 16 January 2000, Bull crim No 42. 231   Cass crim, 9 July 1953, Bull crim No 241; 25 May 1965, Bull crim No 142; 22 November 1972, Bull crim No 353; 16 January 2000, Bull crim No 42. 232   Art 322(2) CPP. 233   And for the hearing of the partie civile: Cass crim, 17 December 1997, Bull crim No 431. 234   Art 339 CPP. 235   Angevin (1978), Arts 317–22, fasc 20, paras 6–7 with further references. 236   ibid, para 7. 237   Arts 319, 320 (1) CCP. 238   Angevin (1978), Arts 317–22, fasc 20, para 18. 239   Art 320-1 CPP. 240   Art 320(2) CPP. 241   Art 320(2) CPP; Angevin (1978), Arts 317–22, fasc 20, paras 12, 32. 242   Illinois v Allen, 397 US 337, 338 (1970). 243   US v Davis, 61 F 3d 291 (5th Cir 1995); US v Nichols, 56 F 3d 403 (2nd Cir 1995); US v Camacho, 955 F 2d 950 (4th Cir 1992). See also Diaz v US, 223 US 442, 457 (1912). 229 230

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Proceedings in the Defendant’s Presence? Thus the Constitution really only prohibits trials conducted ‘secretly’ without a defendant who wishes to attend. Under the FRCP, the defendant’s presence is required both for arraignment244 and for trial.245 However, regarding presence at trial, there are a number of exceptions to this rule, including the possibility of waiver of the right to presence through voluntary absence after the trial has begun.246 In other words, the defendant’s presence is really only required at the arraignment and the beginning of the trial.247 The FRCP also allow proceedings to be conducted partially in the absence of the defendant under several circumstances. The first is where the defendant has been excluded from the trial, particularly for disruptive behaviour. Under Rule 43(c)(1) (C), which is technically constructed as waiver of the right to presence, the court may remove a defendant ‘when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom’. The rule allows conducting the rest of the trial in the defendant’s absence; there is thus no need to allow her back into the courtroom to see whether her behaviour may have changed.248 The Supreme Court has stated obiter that courts may, instead of removing the defendant, elect to bind and gag her to keep her from disrupting the proceedings.249 There seem to be no other circumstances which allow the removal of the defendant from the courtroom during the actual trial. There are, however, provisions according to which her presence is not necessary for other parts of the proceedings such as ‘conference[s] or hearing[s] on a legal question’ and ‘proceeding[s] on sentence correction’.250 As noted above, if the defendant is unable to appear at the trial for medical reasons, she may ask the court for a continuance. While such requests for such continuances are often rejected, almost never has a court rejected a request after finding that the defendant was in fact unable to appear for court. Thus where the court finds that the defendant was able to appear, despite her illness or because she was not in fact ill, it may find that her absence amounts to a waiver of the right to presence.251 Where it finds, however, that she was in fact unable to appear, it generally may not continue without her unless she expressly waives her right to presence or unless her presence in the proceedings is not required for other reasons.252   r 10 FRCP.   r 43 FRCP. 246   r 43(c)(1)(A) FRCP. 247   See also Crosby v US, 506 US 255, 261 (1993). r 43(b) contains two instances in which the presence of the accused is not required even at the beginning of the trial, but none of those are of relevance for the purposes of this book ((r 43(b)(1) and (2)). 248   US v Nunez, 877 F 2d 1475 (10th Cir 1989). 249   Illinois v Allen, 397 US 337, 344. 250   r 43(b)(3) and (4) FRCP. The latter does not include an increase of the sentence: US v Marquez, 506 F 2d 620 (2nd Cir 1974). 251   Examples of state court decisions include State v King, 799 So 2d 1241 (La CA 2001); State v Boykins, 1980 WL 353034 (Oh CA 1980); State v Brown, 1977 WL 201487 (Oh CA 1977). 252   US v Achbani, 507 F 3d 598 (7th Cir 2007); Polizzi v US, 926 F 2d 1311 (2nd Cir 1991); US v Hoover-Hankerson, 511 F 3d 164 (DC Cir 2007). 244 245

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Proceedings in the Absence of the Defendant The defendant generally does not have a right to absent herself,253 but if she chooses to do so, her absence will be interpreted as a waiver of her right to presence and the court may continue without her.254 It may also, except in capital cases, proceed to sentencing in the absence of the defendant.255

II.  Requirements Deriving from Human Rights Law 1.  The European Convention While the ECHR does not explicitly lay down a right of the defendant to be present during the trial, the ECtHR has stated that ‘the object and purpose of the Article taken as a whole show that a person “charged with a criminal offence” is entitled to take part in the hearing’, especially since the specific rights provided in Article 6(3)(c)–(e) presuppose the defendant’s presence.256 In fact, the ECtHR derived from Article 6(1) a right ‘to participate effectively in [one’s] criminal trial’ (emphasis added).257 The right to be present may be waived, provided that such waiver is unequivocal and ‘attended by the minimum safeguards commensurate to’ the importance of that right.258 Waiver may not be implied simply from behaviour such as procedural objections or the refusal to address the Court in its official language.259 Courts may generally only draw conclusions from the non-appearance of the defendant if she has been summoned in a procedurally sound manner; that she has indirectly gained knowledge of the proceedings is not sufficient.260 Where the defendant does not attend a trial date and there are reasons to suspect that this is due to circumstances beyond her control261 or to the fact that she did not receive or understand the summons to appear,262 the court must investigate further and may not simply continue without the defendant. The Court has stated in general terms that, given the importance of the appearance of the defendant at trial and the fact that she might seek to obstruct justice by

  US v Sanchez, 790 F 2d 245 (2nd Cir 1986); US v Fitzpatrick, 437 F 2d 19 (2nd Cir 1970).   r 43(c)(1)(A) FRCP. 255   r 43(c)(1)(B) FRCP. 256   ECtHR, Colozza v Italy (1985) Series A no 89, para 27. 257   V v United Kingdom ECtHR 1999-IX 111, paras 85 et seq. The right to participate effectively also requires, inter alia, that the defendant be able to hear what is going on in the courtroom – Stanford v United Kingdom (1994) Series A no 282-A, para 26. 258   ECtHR, Poitrimol v France (1993) Series A no 277-A, para 31. 259   Zana v Turkey ECHR 1997-VII 2533, para 70. 260   Sejdovic v Italy App no 56581/00 (ECtHR, 10 November 2004), paras 34–36; ECHR 2006-II 241 (Grand Chamber), paras 98–99. An exception may be made where ‘certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution’. 261   ECtHR, FCB v Italy (1991) Series A no 208-B, para 33. 262   ECtHR, Brozicek v Italy (1989) Series A no 167, para 45. 253 254

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Proceedings in the Defendant’s Presence? not appearing, the state must be ‘able to discourage unjustified absences’.263 This does not mean, however, that a defendant who does not appear before the court may be barred from having counsel represent her at the proceedings, even if she has been correctly summoned and does not provide any reasons for her absence.264 The right to be present also requires a possibility to effectuate a re-trial after being convicted in absentia. In cases where the defendant had not been properly summoned, or had not been allowed to be represented by a lawyer, a re-trial must be granted in all cases and may not be made conditional on the defendant showing good cause for her absence265 or surrendering to custody.266 And even a defendant who had been properly summoned and represented by counsel of her choice (that is whose in absentia conviction as such had been in accordance with Article 6) must principally be granted a re-trial, but may be required to show good cause for her absence.267 The jurisprudence of the Strasbourg organs on proceedings conducted partially in the defendant’s absence is relatively sparse. Generally speaking, Article 6 ‘does not secure to the accused the right to be present in all circumstances’.268 Thus a defendant may be removed from the courtroom during a witness statement if there are ‘good reasons’ for doing so, for example if this would threaten the health of the witness (such as in rape cases)269 or if it is to be feared that the witness will not state the truth in the defendant’s presence.270 Counsel for the defendant must be allowed to be present and the defendant must be given a summary of the statement upon returning to the courtroom.271 Similar conditions apply for the removal of a defendant for disorderly conduct in the courtroom.272 As regards inability to attend for reasons of mental or physical health, hearings may only exceptionally be continued in the absence of the defendant, provided that her interests are sufficiently protected.273 Where proceedings involve an 263   ECtHR, Poitrimol v France (1993) Series A no 277-A, para 35. It has been noted that the jurisprudence of the ECtHR concerning ‘unjustified’ absences is in effect nothing more than an alternative explanation for waiver of the right to presence through non-appearance – after all, absence cannot be ‘unjustified’ under the ECHR as Art 6 grants only a right, not a duty, to be present at one’s trial (Esser (2002), 722). 264   ECtHR, Lala v Netherlands (1994) Series A no 297-A, para 33 (but see the Dissenting Opinion of Judge Matscher, who would limit this finding to cases concerning serious crimes); Pelladoah v Netherlands (1994) Series A no 297-B, para 40; Krombach v France, ECHR 2001-II 35, paras 88–90. This still applies if the defendant had the opportunity to have the conviction in absentia set aside in a later proceeding: van Geyseghem v Belgium ECHR 1999-I 127, para 34 (but see Dissenting Opinion of Judge Pellonpäa). 265   Sejdovic v Italy App no 56581/00 (ECtHR, 10 November 2004), paras 38–39; ECHR 2006-II 241 (Grand Chamber), paras 102–04. 266   Krombach v France ECHR 2001-II 35, para 87. 267   Medenica v Switzerland ECHR 2001-VI 109, paras 57–59. 268   Ensslin, Baader and Raspe v Germany App no 7572/76 (ECmHR, 8 July 1978), 14 DR 64, para 21. 269   NFB v Germany App no 37225/97 (ECtHR, 18 October 2001). 270   X v Denmark App no 8395/78 (ECmHR, 16 December 1981), 27 DR 50, 54–55. 271   ibid. 272   Ananyev v Russia App no 20292/04 (ECtHR, 30 July 2009), para 43 et seq. 273   Romanov v Russia App no 63993/00 (ECtHR, 20 October 2005), para 108; see also Ninn-Hansen v Denmark ECHR 1999‑V 321, 351.

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Proceedings in the Absence of the Defendant assessment of the personality and character of the defendant and her state of mind at the time of the offence, or where their outcome could be of major detriment to the defendant, the court may not proceed in her absence even if she is suffering from physical or mental health problems.274 However, according to an earlier ECmHR decision, where defendants deliberately render themselves unfit to participate in the proceedings (in this case through a hunger strike), proceedings may continue in their absence, provided that they are represented by counsel who can freely communicate with their clients.275 As Article 6 only lays down a right, not a duty, to be present,276 proceedings may continue in the defendant’s absence if she has unequivocally waived her right to presence.277

2.  The International Covenant The ICCPR contains an explicit right to be tried in one’s presence in Article 14(3) (d). According to the Human Rights Committee, trials in absentia ‘may in some circumstances be permissible in the interest of the proper administration of justice, i.e. when accused persons . . . decline to exercise their right to be present’.278 The Committee has also laid down in general terms the minimum steps that judicial organs must take before trying someone in absentia: the defendant must be ‘summoned in a timely manner and informed of the proceedings’ against her.279 The HRC has also reminded states that where trials in absentia are exceptionally allowed, the strict observance of defence rights is all the more necessary.280 The right does not apply to all appeals proceedings,281 but it does apply to those in which the appeals court has to (re-)evaluate the evidence282 and probably also to those where there is a lot at stake for the defendant.283 A violation of the right to be tried in one’s presence may be remedied by means of a full re-trial.284   Romanov v Russia App no 63993/00 (ECtHR, 20 October 2005), para 108.   Ensslin, Baader and Raspe v Germany App no 7572/76 (ECmHR, 8 July 1978), 14 DR 64, para 22. 276   See Esser (2002), 722. 277   Battisti v France App no 28796/05 (ECtHR, 12 December 2006); RR v Italy App no 42191/02 (ECtHR, 9 June 2005), paras 53–55. 278   HRC, General Comment No 32, 2007, para 36 with reference to Mbenge v Zaire, Comm 16/79, para  14.1. In its earlier General Comment No 13, 1984, para  11, the Committee had stated that  in absentia proceedings were only admissible ‘exceptionally for justified reasons’. 279   HRC, Maleki v Italy, Comm 699/1996, paras 9.2.–9.4 (under the fair trial guarantee of Art 14(1)). On procedural requirements, see also HRC, Mbenge v Zaire, Comm 16/79, para 14.1. The Committee’s Concluding Observations on Finland, UN Doc CCPR/C/79/Add 91, 1998, also show a relatively high standard before in absentia proceedings may be carried out. 280   HRC, General Comment No 13, 1984, para 11. This has not been explicitly stated in General Comment No 32, 2007, but one would assume that the HRC still holds this to be true. 281   HRC, RM v Finland, Comm 301/1988, para 6.4. 282   HRC, Karttunen v Finland, Comm 387/1989, para 7.3. 283   See HRC, Simmons v Jamaica, Comm 338/1988, para 8.4, where the fact that appeals proceedings were conducted in the absence of the defendant, together with other irregularities, was found to constitute a violation of Art 14(3)(b) and (d). 284   HRC, Maleki v Italy, Comm 699/1996, para 9.5. 274 275

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Proceedings in the Defendant’s Presence? Regarding partial absence, the state must first take ‘all reasonable measures to ensure . . . continued presence at the trial’.285 Only where these measures do not succeed may a defendant be banned from the courtroom for, for example, disruptive behaviour. The Committee has not, however, had occasion to delineate further what it considers to be ‘reasonable measures’ in this regard. The court may, however, continue proceedings in the defendant’s absence if she has waived her right to presence.286

3.  The Inter-American and African Systems The American Declaration does not explicitly guarantee a right to be present. The ACHR does not explicitly provide for such a guarantee either; it does, however, contain a right to defend oneself personally in Article 8(2)(d), which might be interpreted as containing or presupposing a general right to be present at one’s trial.287 So far, the treaty organs do not seem to have had an opportunity to pronounce on these questions. As concerns the African system, neither Article 7 AfrCHPR nor the 1992 Resolution explicitly provide for a right to be tried in one’s presence – Article 7(1) (c) only guarantees a general right to defence. The 2003 Principles, however, do deal with the right to presence: trials in absentia are generally prohibited unless the right to presence has been waived ‘in an unequivocal manner and preferably in writing’. Those tried in absentia without waiver have a right to re-trial if they had not been sufficiently and personally informed of the proceedings or if their ‘failure to appear was for exigent reasons beyond [their] control’.288 Proceedings conducted partially in the defendant’s absence are permissible: [O]nly in exceptional circumstances such as when a witness reasonably fears reprisal by the defendant, when the accused engages in a course of conduct seriously disruptive of the proceedings, or when the accused repeatedly fails to appear for trivial reasons and after having been duly notified.289

There is so far no jurisprudence of the Commission on any of these questions.

III.  International Criminal Procedure 1. The Ad hoc Tribunals Article 21(4)(d) StICTY, granting the defendant the right to be tried in her presence, has been interpreted by the court as prohibiting trials entirely in the absence   HRC, Domukovsky et al v Georgia, Comm 623/1995 et al, para 18.9.   HRC, Mbenge v Zaire, Comm 16/79, para 14.1. 287   See, eg Kokott (1998), 148. 288   2003 Principles, para N.6.c. 289   ibid, para N.6.f.1 – this section deals with the right to presence during witness testimony, but seems to apply generally to partial absence of the defendant. 285 286

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Proceedings in the Absence of the Defendant of a defendant, even if the defendant has clearly waived the right to presence.290 The same must be true of the identically worded Article 20(4)(d) StICTR.291 This formulation goes back to the Report of the Secretary-General on the establishment of the ICTY, where he had stated that trials in absentia would be contrary to Article 14 ICCPR.292 However, this does not mean that the legal texts at the Tribunals prohibit all proceedings concerning defendants not available to the Tribunal. When drafting the RPE, the ICTY judges were aware that the tribunal might not in all cases be able to gain custody over the defendants and that given the prohibition of in absentia trials, no significant procedural steps could be taken in such cases. Accordingly, they decided to institute, in Rule 61 RPE-ICTY, what one of them has called ‘an apology for formal criminal proceedings to be undertaken by way of a public hearing in the absence of the accused’.293 According to Rule 61 as adopted in 1994, if all reasonable steps to personally serve the indictment and to otherwise inform the defendant had been taken, the indictment could be submitted to a Trial Chamber. The Chamber would then hold a public session to determine whether there were reasonable grounds to believe that the defendant had committed the crimes charged in the indictment. If the Chamber confirmed the indictment, it was to be read out in open court and an international arrest warrant issued. Where it was found that a state was at least partly responsible for the failure to effect personal service, the ICTY President could also notify the UN Security Council. While on the face of it, Rule 61 hearings are mainly a precondition for measures to further the chances of actual arrest, it has been openly acknowledged from the beginning that such proceedings are also concerned with laying down the facts of which the defendants are accused.294 In addition, they were acknowledged as a useful tool allowing the court to show relevant activity and thus keep its mandate in the public eye at a time when it had very few defendants in custody.295 Rule 61 proceedings thus quickly evolved beyond mere confirmation of indictments; several revisions of Rule 61 led to them more closely resembling partial trials in absentia.296 The Chamber could now examine witnesses, including witnesses whose statement had not been used in the initial confirmation of 290   Prosecutor v Blaškic´ (Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997) IT-95-14, Appeals Chamber (29 October 1997), para 59. According to the Appeals Chamber, however, contempt proceedings could ‘in exceptional cases’ be carried out without the defendant (see also Rules 77(J)(i), (K)(i) RPE-ICTY). 291   See Prosecutor v Karemera et al (Decision on Severance of André Rwamakuba and Amendments of the Indictment) ICTR-98-44, Trial Chamber (7 December 2004), para 24. 292   SG Report on ICTY, para 101. 293   Vohrah (2004), 393. 294   See Prosecutor v Dragan Nikolic´ (Transcript of 9 October 1995) IT-94-2, Trial Chamber,  59; Prosecutor v Karadžic´ and Mladic´ (Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence) IT-95-5 and IT-95-18, Trial Chamber (16 July 1996), para 3. 295   Prosecutor v Rajic´ (Rule 61 Decision – Separate Opintion of Judge Sidhwa)) IT-95-12, Trial Chamber (13 September 1996); see also Arbour (2004), 399, who also notes some downsides, such as publicisation of the evidence before the actual trial leading to an increased risk of witness intimidation. 296   For a detailed description of the various reforms of r 61, see Furuya (1999) 642–49.

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Proceedings in the Defendant’s Presence? charges,297 and it could impose a sanction in the form of the freezing of the defendant’s assets.298 Nonetheless, Chambers repeatedly stressed that Rule 61 proceedings were not ‘trials’ and accordingly refused requests of counsel to participate on behalf of defendants.299 After a change in the procedure for indictments (which were now usually kept under seal until arrest) and after international troops started arresting suspects, no further Rule 61 proceedings were conducted and the Court instead concentrated on full trials. Rule 61 RPE-ICTR is substantially identical to Rule 61 RPE-ICTY and has over time been revised in a similar manner. However, no proceedings have ever been conducted under this provision at the ICTR. The ICTR did, however, conduct proceedings concerning referral of the case to national jurisdictions in the case of fugitive defendants, that is in their absence.300 Towards the end of the Tribunal’s mandate, the judges adopted Rule 71bis RPE, which allows for the ‘preservation of evidence by special deposition for future trials’ in cases where it appears likely that the defendant will not be arrested and/or transferred to the ICTR soon. Before conducting such proceedings, a public notice is issued to apprise the indictee of their imminent beginning. Proceedings are conducted in closed session by a single judge in the presence of the prosecution and duty counsel to represent the interests of the defendant. In case a trial is conducted later on, evidence collected in such proceedings is not admitted automatically, but only where admitted by the Chamber conducting that trial if certain conditions are met, particularly that they are ‘of a probative value not outweighed by their prejudicial effect’. Rule 71bis proceedings have so far been initiated in three cases concerning rather high level indictees.301 In Kabuga, the Chamber noted that Rule 71bis ‘seeks to prevent fugitive accused from avoiding effective prosecution and obstructing the proper administration of justice’. While it was true that proceedings under the Rule “appear to impose some restrictions on the accused’s fair trial rights”, the Chamber stressed that they were not trials in absentia.302 297   r 61 (B) as amended 30 January 1995; r 61 (C); Prosecutor v Rajic´ (Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence) IT-95-12, Trial Chamber (13 September 1996). 298   r 61 (D) as amended 23 April 1996. 299   Prosecutor v Karadžic´ and Mladic´ (Decision Rejecting the Request Submitted by Mr Medvene and Mr Hanley III, Defence Counsels for Radovan Karadžić) IT-95-5 and IT-95-18, Trial Chamber (5 July 1996). 300   Prosecutor v Fulgence Kayishema (Decision on the Referral of the Application to Appoint Defence Counsel) ICTR-2001-67-I, Trial Chamber (2 May 2008). 301   Prosecutor v Mpiranya (Decision on the Prosecutor’s Request for Preservation of Evidence by Special Deposition for a Future Trial (Rule 71bis of the Rules of Procedure and Evidence)) ICTR-200056, Trial Chamber (3 March 2011); Prosecutor v Kabuga (Decision on the Prosecutor’s Request for Preservation of Evidence by Special Deposition for a Future Trial (Pursuant to Rule 71bis)) ICTR-9944B, Trial Chamber (15 March 2011); Prosecutor v Bizimana (Decision on the Prosecutor’s Request for Preservation of Evidence by Special Deposition for a Future Trial (Pursuant to Rule 71bis)) ICTR-9844, Trial Chamber (5 May 2011). 302   Prosecutor v Kabuga (Decision on the Prosecutor’s Request for Preservation of Evidence by Special Deposition for a Future Trial (Pursuant to Rule 71bis)) ICTR-99-44B, Trial Chamber (15 March 2011), paras 15–16.

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Proceedings in the Absence of the Defendant Proceedings may also be conducted partially in the absence of the defendant in a number of circumstances. Rule 80(B) RPE-ICTY/RPE-ICTR allows the removal of the defendant from the courtroom and the continuation of the trial in her absence if she ‘has persisted in disruptive conduct following a warning that such conduct may warrant the removal of the accused from the courtroom’. The wording (‘has persisted in . . . following a warning’) sets rather high prerequisites for removal; and in fact the rule has hardly ever been applied. Vojislav Šešelj was removed after he had several times interrupted the presiding judge and his standby counsel despite a specific warning that such conduct would lead to his removal.303 Radovan Stankovic´ was removed when he referred to the Bosnian Court to which his case was to be transferred as, among others, ‘Ustasha Mujahedin judges’ and continued to speak despite several warnings.304 Finally, Ratko Mladic´ was removed from the courtroom during his further initial appearance after he had several times interrupted the presiding judge.305 The defendant will also, as a matter of course, not be present in hearings conducted ex parte, that is without the defence being present at all. This may concern, for example, hearings on sensitive evidence or on protective measures for witnesses.306 Of course, where the evidence discussed in such proceedings is relevant for the case, it will likely be revisited during the trial conducted in the presence of the defendant. As to defendants unable to appear, mostly for medical reasons, most Chambers have in such cases interrupted the trial until the defendant’s condition improved, unless the defendants had explicitly waived their right to presence.307 In some cases, however, Chambers have also decided to continue the trial in the absence of defendants: in Stanišic´, the defendant had been suffering from several medical conditions which rendered him unable to appear in court for some weeks, with no clear end in sight.308 The defence had asked for the trial to be postponed for several months to allow the defendant to recover. The Chamber instead decided to begin without Stanišic´, relying on expeditious trial reasons generally and his co-defendant’s right to a speedy trial in particular.309 Stanišic´ was to be enabled to   Prosecutor v Šešelj (Transcript of 1 November 2006) IT-03-67, Trial Chamber, 635–36.   Prosecutor v Jankovic´ and Stankovic´ (Transcript of 4 March 2005) IT-96-23/2, Trial Chamber, 235–36. Stanković was allowed back into the courtroom a few minutes later – see ibid, 248–49, 250 et seq. 305   Prosecutor v Mladic´ (Transcript of 4 July 2011) IT-09-92, Trial Chamber, 44–47. 306   See, eg Prosecutor v Blagoje Simic´ et al (Decision on (1) Application by Stevan Todorović to reopen the Decision of 27 July 1999, (2) Motion by ICRC to re-open Scheduling Order of 18 November 1999, and (3) Conditions for Access to Material) IT-95-9, Trial Chamber (28 February 2000), paras 38 et seq. 307   See above 31–32. In Milan Simic´, the Chamber, with the consent of the defendant, held a number of trial days in the physical absence of the defendant who was, however, able to follow the proceedings via video link – see (Sentencing Judgment) IT-95-9/2, Trial Chamber (17 October 2002), para 8 and fn 18. 308   Prosecutor v Stanišic´ and Simatovic´ (Transcript of 18 March 2008) IT-03-68, Trial Chamber, 701– 02; (Decision on Future Course of Proceedings) IT-03-69, Trial Chamber (9 March 2008), paras 5–6. 309   ibid, paras 11–13. 303 304

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Proceedings in the Defendant’s Presence? follow the proceedings via video-link and to communicate with his defence team during the trial.310 The ICTR had earlier decided similarly in some cases of medical absences, also referring prominently to the speedy trial rights of codefendants.311 Similarly, the ICTY Trial Chamber conducted parts of the proceedings in Miloševic´ in the absence of the defendant due to his illness.312 Finally, the Zigiranyirazo case seems to indicate that proceedings might even be held in the absence of a defendant who is not only willing, but who would, were it not for obstacles imposed by the Chamber, be able to appear: the Trial Chamber had decided to hold a hearing in the Hague to hear a witness who was detained there at the UNDU. The defendant, however, was refused entry into the Netherlands. In this situation, the Chamber decided to hold the hearing in the Hague without him and allow him to participate via video-link from Arusha.313 So far, in all cases where such decisions were challenged by way of an interlocutory appeal, they ended up being overturned by the Appeals Chamber. However, this was in all cases based on considerations of proportionality.314 The Appeals Chamber has not found proceedings in the absence of a defendant unable to appear for trial to be impermissible per se, but has rather confirmed that such proceedings may be conducted where necessary to avoid ‘substantial trial disruptions’.315 Where defendants have refused to attend, the Chambers have held that defendants may waive their right to presence316 and have accordingly not forced them to appear, rather only asking the Registry to remind them that appearance was in   ibid, para 14.   Military I (Decision on Nsengiyumva Motion for Adjournment Due to Illness of the Accused) ICTR-98-41 (17 November 2006), para 11 (Nsengiyumva’s defence case had already been concluded); Prosecutor v Karemera et al (Decision on Joseph Nzirorera’s Motion for Stay of Proceedings while Unfit to Attend Trial or Certification to Appeal) ICTR-98-44, Trial Chamber (11 July 2007) (cross-examination of a witness concerned only co-defendants). 312   Prosecutor v Slobodan Miloševic´ (Transcript of 19 April 2005) IT-02-54, Trial Chamber, 38577 et seq. 313   Prosecutor v Zigiranyirazo (Scheduling Order) ICTR-01-73, Trial Chamber (26 May 2006); (Extremely Confidential Decision on Defence Motion Concerning the Hearing of Witness ADE), Trial Chamber (5 June 2006). 314   Prosecutor v Karemera et al (Decision on Nzirorera’s Interlocutory Appeal Concerning His Right to Be Present at Trial) ICTR-98-44, Appeals Chamber (5 October 2007), paras 15–17; Prosecutor v Zigiranyirazo (Decision on Interlocutory Appeal) ICTR-01-73, Appeals Chamber (30 October 2006), paras 17–22, 24–25; Prosecutor v Stanišic´ and Simatovic´ (Decision on Defence Appeal of the Decision on Future Course of Proceedings) IT-03-69, Appeals Chamber (16 May 2008), paras 15–22. The Trial Chamber had already earlier restricted the scope of its decision such that there would be no proceedings on those days on which the accused was too ill even to follow via video-link (Order Establishing a Procedure for the Monitoring of and Reporting on the Accused Stanišic´’s Ability to Attend Court in Person and/or to Participate in the Court Proceedings via the Video Conference Link), Trial Chamber (8 May 2008), 3–4. 315   Prosecutor v Zigiranyirazo (Decision on Interlocutory Appeal) ICTR-01-73, Appeals Chamber (30 October 2006), para 14; Prosecutor v Stanišic´ and Simatovic´ (Decision on Defence Appeal of the Decision on Future Course of Proceedings) IT-03-69, Appeals Chamber (16 May 2008), para 15. This reasoning is criticised below 223–24. 316   See particularly Media (Judgment) ICTR-99-52, Appeals Chamber (28 November 2007), paras 99–109. 310 311

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Proceedings in the Absence of the Defendant their interest and the interest of justice.317 This has led to large parts of quite a few trials being conducted without the defendant at the ICTR.318 In May 2003, the judges also introduced Rule 82bis RPE-ICTR, which lays down the procedure for dealing with defendants refusing to attend the proceedings. Prerequisites for continuing without a defendant who refuses to attend are that the defendant has had a first appearance, has been notified of the trial date and is represented by counsel. At the ICTY too, the Chambers have granted the defendants leave to remain absent319 or have heeded requests by present defendants to be removed from the courtroom.320 A motion by a defendant to be granted provisional release during the rest of the trial after he had waived his right to presence was, however, denied.321 In Mucic´, the defendant had voluntarily refrained from attending, but had stated through his counsel that he had ‘not waived his right to be present’. The court first continued without him; only after several hours and upon a prosecution motion did it order the defendant to be brought before the court to explain what he meant by this statement.322 In the Karadžic´ case, after the selfrepresenting accused defendant had absented himself from the proceedings, the Chamber decided not to continue in his absence, but to appoint standby counsel and to resume proceedings a few months later to give standby counsel time to familiarise himself with the facts of the case such that he could take over the defence should the defendant remain absent once the trial resumed.323 Status conferences at the ICTY may also be conducted in the defendant’s absence if she has given written consent after receiving advice from counsel,324 and her presence is not required at all for certain technical pre-trial hearings and meetings.325

317   Media (Decision on Defence Counsel Motion to Withdraw) ICTR-99-52, Trial Chamber (2 November 2000), paras 5–7; Military I (Minutes of Proceedings of 2 April 2002) ICTR-98-41, Trial Chamber, para 1. 318   Two examples: in the Media case, Barayagwiza remained absent from 23 October 2000 until the end of the trial on 22 August 2003 – see (Judgment) ICTR-99-52, Appeals Chamber (28 November 2007), para  95. Similarly, Rwamakuba was absent for the entirety of his defence case: (Judgment) ICTR-98-44C, Trial Chamber (20 September 2006), para 9. 319   eg Prosecutor v Mucic´ et al (Transcript of 16 April 1998) IT-96-21, Trial Chamber, 11255-56; Prosecutor v Simic´ (Sentencing Judgment) IT-95-9/2, Trial Chamber (17 October 2002), para 8 with further references. 320   Prosecutor v Šešelj (Transcript of 14 September 2006) IT-03-67, Trial Chamber, 574; Prosecutor v Prlic´ et al (Transcript of 13 November 2008) IT-04-74, Trial Chamber, 2584–85. 321   Prosecutor v Prlic´ et al (Decision on the Accused Prlić’s Motion for Provisional Release) IT-04-74, Trial Chamber (9 April 2009). 322   Prosecutor v Mucic´ et al (Transcript of 16 April 1998) IT-96-21, Trial Chamber, 11188–90, 11253 et seq. 323   See Elberling (2010), para 1.1 with references. 324   r 65bis(3) RPE-ICTY. 325   r 65ter(D)(vi), (I) RPE-ICTY.

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Proceedings in the Defendant’s Presence?

2.  The International Criminal Court Articles 63(1) and 67(1)(d) of the Rome Statute provide for a general right of the defendant to be present during the trial. In other words, true in absentia proceedings are not allowed before the ICC. The drafting history shows that some state delegations had considered in absentia trials indispensable given that the ICC has no means to compel attendance and that its ‘intended influence and role in the promotion of peace, justice and reconciliation’ would be endangered without the option of in absentia proceedings.326 Therefore such proceedings were still on the table as one of several options at the Rome Conference, but when no agreement could be reached in Rome, all options for in absentia proceedings were dropped from the Rome Statute. While the wording of Articles 63 and 67 implies that the right to be present applies only to the trial itself, Rule 121(1) RPE grants suspects the rights under Article 67 during the entirety of the pre-trial proceedings, beginning with their first appearance before the court.327 However, Article 61(2) allows the confirmation of charges hearing, the culmination of the pre-trial proceedings, to be conducted in the defendant’s absence in two cases, one of which concerns a defendant who has ‘fled or cannot be found’.328 Commentators do not agree whether this refers only to defendants who have already appeared before the court, but later fled or not returned from pre-trial release, or also to those who have not appeared before the Court in the first place.329 The wording of Article 61 is not entirely clear on this point. On the one hand, the two alternatives ‘fled’ and ‘cannot be found’ seem to speak for the second interpretation – defendants who have appeared before the ICC and then absconded may be said to have fled’, while those who have not yet appeared before the Court ‘cannot be found’. On the other hand, it does not seem too big a stretch to apply the wording ‘fled’ to defendants who actively absconded from detention and ‘cannot be found’ to those who have merely failed to return from pre-trial release, thus applying both wordings to defendants who have already appeared before the court.

326   See Schabas in Triffterer (2008), Art 63, mn 9. For an argument that in absentia proceedings should be introduced into the Rome Statute during the review conference, see Bellelli (2010), 387, 433 et seq. 327   That this applies to the entire pre-trial proceedings follows from a systematic interpretation: the clause in Rule 121(1) granting the rights under Art 67 follows immediately after that mandating the first appearance of the accused upon arrival at the court, showing that the rights under Art 67 begin to apply at the first appearance. On the other hand, the rights under Art 67 are granted ‘subject to . . . Art 61’, which deals with the confirmation hearing, showing that they are granted not only during the first appearance, but for the remainder of the pre-trial proceedings up to and including the confirmation hearing. 328   Art 61(1)(b) RSt. 329   Marchesiello (2002), 1241, 1244 argues for the first option; Terrier (2002), 1283 and Schabas (2010), 737 prefer the latter reading.

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Proceedings in the Absence of the Defendant Then again, the Pre-Trial Chamber is required, before holding a hearing in absentia, to take ‘all reasonable steps . . . to inform the person of the charges and that a hearing to confirm those charges will be held’. Such a requirement would not be necessary for those who have already had an initial appearance before the Court, as they would have been informed of these facts as a matter of course. This would seem to imply that the provision also applies to defendants who have never appeared before the Court. No further enlightenment may be drawn from the RPE, especially Rule 123. On the one hand, Rule 123(3) specifically refers to defendants whose arrest warrants have ‘not been executed within a reasonable period of time’, which would seem to mean defendants who have never appeared before the court at all. On the other hand, a warrant of arrest may also be issued to secure the return of a defendant from pre-trial release,330 thus the rule may also refer to such a ‘second’ warrant of arrest and thus to defendants who have already appeared before the court. However, the drafting history of Rule 123 might be used to argue in support of an application of Article 61(2) also to those who have never appeared before the Court. The relevant wording is taken almost verbatim from a draft provided by the Preparatory Committee.331 That draft had also included that defendants who had fled or could not be found ‘shall not be represented by counsel’ – a measure reminiscent of attempts by states to compel attendance at trial by threatening to curb defence rights, and thus of measures (also) targeting those who had never been in the court’s custody.332 To conclude, while it is not clear that Article 61(2) allows confirmation hearings in absentia where the defendant had never been in the Court’s custody, neither should the Pre-Trial Chambers have much difficulty interpreting it that way. Whether they will indeed do so and thus use Article 61(2) in a similar capacity as Rule 61 at the ICTY333 remains to be seen. So far they have not done so – the most that has been done when defendants remained at large was to conduct admissibility hearings in the LRA case.334 In any event, the confirmation hearing may only be conducted in the defendant’s absence if a warrant of arrest has been issued in vain and ‘all reasonable steps . . . taken to locate and arrest’ the defendant and after consultations with the prosecutor. The defendant’s counsel, if known to the court, must be allowed to be present ‘unless the Pre-Trial Chamber decides otherwise’.335

  Art 60(5) RSt.   Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Draft Statute for the International Criminal Court, UN Doc A/CONF 183/2/Add 1, 96. 332   See above 40, 43–44. 333   On parallels between r 61 RPE-ICTY and Art 61(2) RSt, see Furuya (1999). The prospect of such proceedings led to some criticism during the drafting process – see Friman (2001), 528. 334   Situation in Uganda, Prosecutor v Kony et al (Decision Initiating Proceedings under Article 19, Requesting Observations and Appointing Counsel for the Defence) ICC-02/04-01/05, Pre-Trial Chamber (21 October 2008). 335   r 123(2)–(3) RPE-ICC. 330 331

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Proceedings in the Defendant’s Presence? Confirmation hearings may also be conducted without the defendant if she has waived her right to be present and the Chamber has, after consultations with the parties, satisfied itself that this waiver is informed.336 The defendant may be allowed to observe the hearing through a video-link and/or to submit written observations.337 Chambers have allowed several defendants to be absent during the confirmation hearing.338 However, Pre-Trial Chamber II decided in Kenya I that defendants could not choose to appear on certain dates and remain absent on others.339 Where the Chamber holds the confirmation hearing in the defendant’s absence, it must decide whether it is ‘in the interests of justice’ that the defendant be represented by counsel340 – in practice, counsel were present in all cases. Where a fugitive defendant is later arrested (again), and she is committed to the Trial Chamber for trial, there is no need to repeat the confirmation hearing in her presence.341 Article 63 (2) allows the court to remove the defendant from the courtroom if she ‘continues to disrupt the trial’. The word ‘continues’ shows that the disruption must be persistent.342 Furthermore, removal is restricted to ‘exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required’. Rule 170 RPE, which generally deals with disruption of proceedings, adds the requirement of a warning before any person may be ordered to leave or be removed from the courtroom. A defendant who has been removed may ‘observe the trial and instruct counsel from outside the courtroom’.343 As at the ad hoc Tribunals, there may be ex parte hearings in the absence of the defendant and her counsel, for example under Article 72(7) RSt concerning disclosure of information which might endanger a state’s national security interests.344 In addition, Article 56 RSt on unique investigative opportunities grants a power to the PTC to authorise counsel for suspects to participate,345 implying that, as a general rule, Article 56 proceedings will be conducted in the absence of both counsel and defendants. This is because measures under Article 56 are   Art 61(2)(a) RSt; r 124(1)–(2) RPE-ICC.   r 124(3)–(4) RPE-ICC. If the Chamber does not accept the waiver, it orders the appearance of the suspect at the hearing – r 125(4) RPE-ICC. 338   Situation in DR Congo, Prosecutor v Katanga and Ngudjolo (Transcript of 11 July 2008) ICC01/04-01/07, Pre-Trial Chamber, 23–24; Situation in Sudan, Prosecutor v Banda and Jerbo (Decision on Issues Related to the Hearing on the Confirmation of Charges) ICC-02/05-03/09, Pre-Trial Chamber (17 November 2010); (Transcript of 8 December 2010), Pre-Trial Chamber. 339   Situation in Kenya, Kenya I, (Decision on the ‘Defence Request Pursuant to Rule 124(1) for Mr William Ruto to Waive his Right to be Present for Part of the Confirmation of Charges Hearing’) ICC01/09-01/11, Pre-Trial Chamber (29 August 2011). 340   Art 61(2) in fine RSt; r 125(1) RPE-ICC. 341   r 126(3) RPE-ICC. 342   See Schabas in Triffterer (2008), Art 63, mn 15; Schabas (2010), 755. 343   Art 63(2) RSt. 344   Other situations in which the Chamber may hold ex parte hearings are codified in the RPE-ICC in rr 74(4) (concerning assurances to witnesses who may incriminate themselves if they testify) and 88(2) (concerning special measures for vulnerable witnesses) – see Schabas in Triffterer (2008), Art 67, mn 29. 345   Art 56(2)(d) RSt. But see also r 114 RPE-ICC. 336 337

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Proceedings in the Absence of the Defendant usually considered situation-related measures, that is they do not normally concern individual defendants, even though they may sometimes be or become relevant for individual cases. As at the ad hoc Tribunals, any evidence discussed or preserved that is relevant for the case will be revisited during trial with the defendant present. Interestingly, Article 76(4) RSt states that the sentence shall be pronounced in the presence of the defendant ‘wherever possible’. This has been read as showing that the right to presence does not apply strictly for this phase of the proceedings.346 However, the inclusion of the words ‘wherever possible’ is probably due to editorial oversight, as these words were originally inserted at a point in the drafting process when the possibility of trials in absentia was still seriously considered and were accidentally not deleted when references to in absentia proceedings were deleted.347 As there is no specific provision dealing with the inability of a defendant to appear in the courtroom for, for example, medical reasons, the general rule of Article 63(1) RSt applies. Accordingly, unless the defendant has waived her right to presence, proceedings must be interrupted until she is again able to participate.348 The legal texts likewise do not explicitly state the legal consequences of the defendant’s refusal to attend the trial. In practice, Chambers have, not only in confirmation hearings but also during trial proceedings, continued without the defendants only where it was clear that they had waived their right to presence.349

3.  The Special Court for Sierra Leone According to Article 17(4)(d) of the SCSL Statute, defendants before the Special Court have the right be tried in their presence. However, if the defendant has already had an initial appearance before the court, proceedings may continue in her absence if she refuses to appear at the trial or before the court at all.350 The court must be satisfied that the defendant has, through her behaviour, waived the right to be present; this waiver may, however, be an implied one. The defendant may be represented by counsel, including counsel of her choice. There have been no cases in which this rule has led to proceedings being undertaken entirely in the defendant’s absence after first appearance.   Terrier (2002), 1316.   Schabas in Triffterer (2008), Art 67, mn 29. 348   See Situation in DR Congo, Prosecutor v Lubanga (Transcript of 12 May 2009) ICC-01/04-01/06, Trial Chamber, 1. 349   See Situation in DR Congo, Prosecutor v Lubanga (Transcript of 12 May 2009) ICC-01/04-01/06, Trial Chamber, 1 (defendant absent due to medical reasons, but waives right to presence – trial continues; (Transcript of 12 February 2009) ICC-01/04-01/06, Trial Chamber, 57 et seq (defendant leaves courtroom when witness enters, Trial Chamber has witness take solemn undertaking, but then immediately adjourns proceedings so that counsel and client can confer). 350   r 60A(i) and (ii) RPE-SCSL. 346 347

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Proceedings in the Defendant’s Presence? However, proceedings before the SCSL may also be continued in the absence of a defendant who was initially present, and in fact, all three group trials before the SCSL have been conducted to a significant extent in the absence of some or all defendants. Rule 80(B) RPE-SCSL allows the removal of the defendant if she has ‘persisted in disruptive conduct following a warning that [she] may be removed’. The defendant should, ‘where possible’, be allowed to follow proceedings via video link. This rule has led to the brief exclusion of Issa Sessay when, in a statement to the judges, he continued to refer to jurisdictional questions which he had been warned not to address.351 There is no specific norm on whether proceedings may continue in the absence of defendants who are unable to attend for health or other reasons. While TC I has sometimes granted its ‘indulgence’ and ‘allowed’ defendants who had health problems not to take part in the proceedings, this was after the defendants had stated that they would prefer the proceedings to continue without them.352 However, TC II has in at least one case held proceedings without a defendant who was absent due to circumstances beyond his control. This situation arose when Charles Taylor failed to appear in time for the beginning of a hearing early in his case. The Chamber was aware of Taylor’s stated wish to appear for the hearing, but nonetheless stated that it was ‘implied that he’s waived his right to be here’.353 When Taylor later appeared and was allowed to attend the hearing – his presence was in fact necessary as he had to enter a plea to the amended indictment – it transpired that his tardiness was due to a failure of the Registry to transport him from the UNDU to the Court in time.354 Refusal by the defendant to attend trial is regulated by Rule 60(A)(i). This is the legal basis for most absences so far. In the CDF and RUF trials, defendants had at some point chosen not to attend hearings anymore, either out of protest over certain decisions of the Chamber355 or because they ‘did not recognise the Court’.356 In each case, after ascertaining that the defendants were in good health and thus able to attend the trial, TC I decided that proceedings could continue in their absence under Rule 60.357 The chief of the detention facility was instructed to maintain a daily record of their waiver so that the Chamber could be notified if 351   SCSL, RUF (Transcript of 11 January 2005), Trial Chamber, 12–13. Sesay was allowed back into the courtroom shortly afterwards – ibid, 19 et seq, 22. 352   CDF (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) SCSL-04-14, Trial Chamber (4 October 2004), paras 3, 7; (Transcript of 20 September 2004) SCSL-0414, 114–16; (Transcript of 21 September 2004), Trial Chamber, 3–4. 353   Prosecutor v Taylor (Transcript of 3 July 2007) SCSL-03-01, Trial Chamber, 1. 354   ibid, 8. 355   CDF (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) SCSL-03-01, Trial Chamber (4 October 2004), paras 1, 5 and 6. 356   RUF (Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days) SCSL-04-15, Trial Chamber (12 July 2004), para 2. 357   ibid, paras 11–12.

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Proceedings in the Absence of the Defendant they changed their mind and wished to appear again.358 In all cases of proceedings conducted in the absence of the accused they continued to be represented by counsel.359 In AFRC, the defendants did not appear for several trial days out of protest over contempt proceedings instituted against their wives. TC II simply recorded that their absence had been voluntary and continued without them.360 A very similar course was followed when Charles Taylor refused to appear in the courtroom at the very beginning of the proceedings against him.361 Finally, towards the end of the trial, during the hearing in which the prosecution made its closing arguments, Taylor’s head counsel left the courtroom in disagreement with a Chamber decision to reject the defence’s final trial brief as filed late. Taylor tried to leave the courtroom at the same time, but was stopped by security personnel. However, he remained absent after a break in proceedings and on the next trial day and the Chamber continued without him.362

4.  The Special Tribunal for Lebanon363 While the StSTL contains a right of the defendant to be tried in her presence,364 this right is subject to Article 22, which allows true in absentia proceedings in a number of cases. Two of these cases are not surprising, namely express written waiver of the right to be present and flight.365 The third reason for trials in absentia, however, is somewhat surprising: it covers defendants who ‘ha[ve] not been handed over to the Tribunal by the State authorities concerned’.366 This provision can be explained by the fact that the STL, which will deal with at the most a handful of cases,367 would be hit much harder by refusal of state cooperation than other tribunals. Article 22(2) deals with the preconditions before a defendant may be tried in her absence: first, she must have been given notice of the indictment, through notification or service in person or otherwise ‘through publication in the media or communication to the State of residence or nationality’. Second, she must be   ibid, para 12.   For Norman, who had represented himself with the aid of standby counsel, self-representation was revoked and representation by former standby counsel was ordered. 360   AFRC (Transcript of 5 April 2005) SCSL-04-16, Trial Chamber, 3. See also (Transcript of 6 April 2005), Trial Chamber, 3; (Transcript of 29 April 2005), Trial Chamber, 5. 361   Prosecutor v Taylor (Transcript of 4 June 2007) SCSL-03-01, Trial Chamber, 17–18. 362   Prosecutor v Taylor (Transcript of 8 February 2011) SCSL-03-01, Trial Chamber, 49144–45, 49187 et seq; (Transcript of 9 February 2011), Trial Chamber, 49286 et seq. As to Taylor trying to leave the courtroom see, Alpha Sesay, ‘Déjà Vu at the Charles Taylor Trial’, The Trial of Charles Taylor Blog, 16 February 2011, available at: www.charlestaylortrial.org/2011/02/16/deja-vu-at-the-charles-taylortrial/. 363   See generally Elberling (2008), 535–38. 364   Art 16(4)(d) StSTL. 365   Art 22(1)(a) and (c) StSTL. 366   Art 22(1)(b) StSTL. 367   See SG Report on STL, para 32(b). 358 359

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Proceedings in the Defendant’s Presence? represented by counsel; if she does not designate counsel of her choice, counsel is assigned by the STL’s Defence Office. These provisions are fleshed out by the Rules of Procedure and Evidence: under Rule 76, personal service of the indictment is to be attempted. Where this is unsuccessful, Rule 76bis calls for a notice of the indictment to be transmitted ‘to the authorities of any relevant State or entity for publication in newspapers and/ or for broadcast via radio, television and/or other media, including the internet’. Where the defendant is not in custody 30 days after such advertisement, the pretrial judge shall ask the Trial Chamber to initiate proceedings in absentia under Rule 105bis. The specific requirements for proceeding in the absence of the defendant are laid down in Rule 106: either the defendant has waived her right to presence, or she ‘has absconded or cannot be found and all reasonable steps have been taken to secure’ both her information of the charges and her appearance before the Tribunal. Where the defendant has not been handed over by the state, the Trial Chamber must not only ensure that the requirements under Article 22(2) are met, but also that ‘all necessary steps have been taken with a view to ensuring that the accused may, in the most appropriate way, participate in the proceedings’. In the first case before the STL, the procedure foreseen under these rules was begun on 18 August 2011 after efforts to arrest the defendants had proved unsuccessful;368 as of the time of writing, there has not yet been a final decision on the issue.369 If the proceedings result in conviction, the defendant is given the option of a retrial in her presence (or of accepting the judgment). No retrial is granted, however, if the defendant had been represented by counsel of her choice.370 Under Rules 108 and 109 RPE, appearance of the defendant during in absentia proceedings entitles her to seek a retrial; if she consents, the Chamber may decide to utilise part of the in absentia proceedings in the retrial. The right to retrial may only be utilised once – where a defendant absconds during retrial, proceedings continue in her absence under Rule 108(D). A defendant appearing after the conclusion of the in absentia proceedings has a choice not only of accepting the judgment and/or sentence or requesting a re-trial, but also of simply appealing under the usual provisions. On the other hand, where a defendant has at least once appeared in proceedings, including via video conference, proceedings are from them on not consid-

368   See STL, Prosecutor v Ayyash et al (Order Pursuant to Rule 76(E)) STL-11-01, President (18 August 2011); (Order on Composition of the Trial Chamber), President (8 September 2011); (Ordonnance de saisine de la Chambre de première instance conformément à l’article 105bis, para A) du règlement de procédure et de preuve aux fins de statuer sur l’engagement d’une procédure par défaut) STL-11-01, Pre-Trial Judge (17 October 2011); (Scheduling Order in Respect of Rule 106 of the Rules of Procedure and Evidence) STL-11-01, Trial Chamber (20 October 2011). 369   See STL, Prosecutor v Ayyash et al (Interim Decision Under Rule 106 (Proceedings in absentia)) STL-11-01, Trial Chamber (23 November 2011). 370   Art 22(3) StSTL.

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Proceedings in the Absence of the Defendant ered in absentia even if the defendant, on her own volition or due to circumstances beyond her control, does not appear for further proceedings.371 The RPE also foresee, in Rule 105, that a defendant may be allowed to participate in proceedings via video-conference provided that their counsel participates in person. This rule could be used to achieve a ‘mixed’ procedure allowing defendants not handed over to Tribunal by a state to remain physically absent from their trial, but to nonetheless participate actively in such proceedings ‘in the most appropriate way’, as foreseen by Rule 106 (B)372 To enable such proceedings, the RPE even foresee the possibility of summoning a defendant to appear373 under a safe-conduct procedure, allowing her to make an initial appearance before the Tribunal and then leaving again without fear of being arrested.374 While the RPE do carefully lay down a number of requirements for in absentia proceedings, these provisions, particularly as concerns defendants who have not been handed over by a state, are rather broad. In fact, as shown below,375 they are arguably so broad as to be in violation of the right to presence under human rights law. As to parts of proceedings conducted in the absence of the defendant, Rule 138(B) of the RPE allows the removal of the defendant under virtually the same conditions as before other international tribunals. There is no specific provision on defendants unable to appear for health or other reasons. On the one hand, given the right to be tried in one’s presence, one would assume that proceedings would not be conducted in the defendant’s absence in such cases. On the other hand, the fact that proceedings are not considered in absentia after the defendant has appeared at least once (Rule 104 RPESTL) might also lead the Trial Chamber to consider it possible to continue in her absence in such cases.376 Finally, despite there being no precise statement to this effect in the RPE, it is to be presumed that the defendant may waive her right to attend proceedings not only for the entirety of the proceedings, but also for individual trial dates. Given Rule 108(D), the Trial Chamber might interpret flight as an implied waiver.

IV. Conclusions 1. True in absentia Proceedings Regarding defendants who cannot be reached, it may seem at a first glance that only the STL may conduct true in absentia proceedings, and this is in fact true if   r 104 RPE-STL.   See RPE – Explanatory Memorandum by the Tribunal’s President, 25 November 2010 (hereinafter: Memorandum RPE STL), para 42, as well as an article by the Tribunal’s Vice-President, Riachy (2010), 1300–01. 373   At the STL premises or at some other specified location – see r 78(D) RPE-STL. 374   r 81 RPE-STL; see Memorandum RPE STL, para 27. 375   214–16. 376   See Jordash and Parker (2010), 508. 371 372

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Proceedings in the Defendant’s Presence? one looks only at trials. However, most other international courts also have some sort of in absentia procedure: the ICTY has access to Rule 61 proceedings, and so does the ICTR, even though it has never made use of this option. Similarly, the ICC may well choose to conduct confirmation hearings in absentia. While such proceedings are obviously not full trials, they still allow the courts to undertake somewhat serious reviews of the facts of the case.377 Only the SCSL requires at least initial appearance before any trial or trial-like procedure may begin. The extent to which such procedures are used and/or available depends to a large extent on the problems that the various courts face in managing to apprehend defendants. Thus the ICTY in the beginning could not rely on any cooperation from countries involved in the conflict in arresting indictees, and the international community did not prove very helpful either. Accordingly, the Court had hardly any cases – at the time when the first four Rule 61 proceedings were conducted, only Duško Tadic´ , a rather ‘small fish’, was in its custody. When the Rule 61 proceedings against Karadžic´ and Mladic´ started, some additional defendants had just had their first initial appearances. Accordingly, the Tribunal used Rule 61 to at least show some activity. Later, when states started to cooperate, albeit sometimes reluctantly, and when international forces started arresting defendants, the Tribunal had a number of defendants in custody and thus dropped Rule 61 proceedings in favour of ‘real’ trials. The ICTR, too, had Rule 61 at its disposal, but it had no need to make use of this instrument – after all, the Rwandan Government, as well as several neighboring states, proved quite willing in arresting Hutu suspects and transferring them to the Tribunal.378 The SCSL does not have an option of in absentia trials – but then again, it has the support of the government on whose territory most defendants were to be found, as shown by the fact that Norman was arrested apparently without incident while he was Minister of the Interior. The only defendant379 whose arrest proved somewhat difficult was Charles Taylor, and he too was eventually arrested and transferred to the court. The STL has the strongest in absentia proceedings of any international court. It is also the court that may have the biggest need for such procedures. After all, a foreign state, Syria, is thought to have been involved in crimes and is likely to refuse cooperation with the STL, and the exact amount of cooperation that Lebanon will provide may well depend on the further internal developments in 377   This may be even more true for confirmation hearings at the ICC – the first few confirmation hearings were somewhat akin to a mini-trial, with several months’ preparation followed by several days of hearings, structured, similarly to a trial, into opening statements, evidence, and closing statements. Accordingly, the Confirmation Decision in Lubanga is not only of similar length as some judgments, at 157 pp, but also reads almost like a short judgment (Situation in DR Congo, Prosecutor v Lubanga (Decision on the Confirmation of Charges) ICC-01/04-01/06, Pre-Trial Chamber (29 January 2007)). 378   It would probably have proved a lot harder for the Tribunal to ensure the arrest of any Tutsi indictees. However, had the court initiated proceedings against Tutsi suspects, it would likely have found r 61 proceedings to endanger the necessary cooperation of Rwanda just as much as ‘real’ trials could. 379   Besides Johnny Paul Koroma, who is likely dead – see above 17.

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Proceedings in the Absence of the Defendant that country.380 In addition, the Tribunal cannot afford to wait long for the beginning of its first actual trials as it is expected to conduct its entire business in the space of a few years. Finally, whether the ICC will use the option of confirmation hearings in absentia remains to be seen. So far, the Court is not faced with a situation in which it is unable to conduct trials at all and thus in danger of losing the public’s attention, and the prosecution seems to be using various methods to attempt to gain state cooperation.381 Thus so far there may be no need for such limited in absentia proceedings.

2.  Proceedings Conducted Partially in the Absence of the Defendant International criminal courts are not more eager than national courts to exclude defendants from the proceedings – as far as concerns exclusion because of disruptive behaviour, the preconditions for exclusion under the applicable provisions are at least as stringent as those applicable in national proceedings, and courts have so far been rather lenient in applying these rules to defendants. Also, contrary to, for example, German or French law, international criminal procedure does not foresee exclusion of the defendant for other reasons such as witness protection. International courts have, however, shown a certain tendency towards continuing proceedings in the absence of a defendant who is unable to appear before the court. At the ad hoc Tribunals, the ‘unintentional substantial trial disruption’ doctrine allows precisely this course of action; and even if the Appeals Chamber has so far struck down all Trial Chamber decisions relying on this doctrine to come before it, the decision in Miloševic´ shows the Chamber seriously considering the possibility of conducting substantive parts of the proceedings in the absence of the defendant.382 This even applies to instances in which the inability of the defendant to appear for the trial is entirely due to a decision of the court, as in Zigiranyirazo. Similarly at the SCSL, the Chambers have not openly stated that they would conduct proceedings in the absence of a defendant who was unable to appear – but at least in Taylor, the Trial Chamber has in fact done so, again in a situation in which his non-appearance was entirely due to the actions of court personnel. Finally, all courts faced with that situation have willingly, if not gladly, accepted the defendants’ decision to remain absent, including where defendants had claimed to be not only unwilling, but also unable to attend. This tendency may be   See below 214–16.   On the practice of self-referrals, and the ICC’s tendency in such cases to focus on the opponents of the government, despite allegations that government forces had also committed core crimes, see, eg Olara A Otunnu, ‘The Secret Genocide’ 155 Foreign Policy 44–47 (Uganda); Kevin J Heller, ‘Why is the ICC Prosecutor Ignoring the Congolese Government’ Opinion Juris weblog, 22 October 2007, www. opiniojuris.org/posts/1193101615.shtml (DR Congo). 382   For more on the Appeals Chamber decision in Slobodan Miloševic´, see below 223–24. 380 381

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Proceedings in the Defendant’s Presence? welcomed as a refusal of the courts to turn the right to presence into a duty of the defendant. At the same time, courts may also welcome such absences as an opportunity to simply conduct proceedings without the danger of interruptions by the defendant.

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2 The Position of the Defendant in the Trial The question of the position of the defendant in the actual trial can, again, be subdivided into three main questions. The first concerns her position vis-à-vis her counsel, which determines, inter alia, to what extent she will speak for herself during the trial and to what extent someone else will speak for her. The second question concerns her position vis-à-vis other participants in the trial, namely the prosecution and the chamber – the more constrained the defendant is in how she may interact with these organs, the less able she will be to fully give her side of the story in the way she would wish to. Finally, besides her position towards other participants in the trial, one must consider her participation rights as defendant, particularly her ability to make statements.

A.  Position vis-à-vis Counsel The defendant’s position vis-à-vis her counsel encompasses four main questions.1 The first is whether she may choose whether to be represented by counsel at all, in other words, whether she has a right to represent herself, and if so, what limits there are to such a right. Where a defendant has chosen to be, or is required to be, represented by counsel, three follow-up questions arise: first, to what extent does the defendant have a say in determining who represents her? The answer may depend on whether the defendant is able to pay for counsel herself or whether counsel is provided for her by the state/court. Once counsel has been chosen, the next question is what the internal relationship is between defendant and counsel – who gets to decide how to conduct the defence? Finally, what is the external relationship between the defendant and her counsel – may the defendant exercise certain participation 1   Besides the four questions given below, there are additional circumstances concerning counsel which may effect the position of the defendant, such as their dependence on the court or on third parties for remuneration or the possibility to threaten them with proceedings under national or international codes of conduct. While such circumstances may well impact on the ability of that counsel’s client to ‘tell her story’, they do not concern the position of the defendant stricto sensu and thus will not be considered here.

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The Position of the Defendant in the Trial rights beside her counsel and does she retain certain participation rights to be exercised only by her? These issues all impact on the position of the defendant in that they regulate to what extent she can influence the way her defence is conducted, either by conducting it herself (through self-representation or by participating in the defence beside her counsel) or by choosing the person who conducts it for her and giving instructions to that person.

I.  National Criminal Procedures 1. Germany German criminal procedure does not allow self-representation in major cases, including all of the cases dealt with here. The fact alone that the defendant is charged with a Verbrechen2 and/or that the trial is conducted in the first instance before the Regional Court or the Court of Appeals is enough to render the assistance of counsel mandatory.3 Mandatory defence means that the defendant must be represented by counsel, regardless of whether or not she wishes to be represented. Even if the defendant is herself a criminal defence attorney, she may not function as her own counsel since ‘the position of defendant and that of defence counsel are irreconcilable’.4 Thus in cases of the type dealt with here, every defendant will have to be represented by defence counsel. In practice, this means that where a defendant does not yet have counsel, one will be appointed shortly before the main hearing at the latest.5 The rules on choice of counsel differ between counsel hired directly by the defendant (Wahlverteidiger (counsel of choice)) and counsel appointed by the court (Pflichtverteidiger (mandatory counsel)). Where the defendant hires counsel herself, she is not generally limited in her choice. She may, however, not have more than three counsel representing her in court6 and may not share counsel with co-defendants.7 Certain counsel may be excluded where there is a high level of suspicion of their involvement in the crime itself or of criminal activity conducted under the guise of the defence.8 In cases concerning certain political crimes, counsel may also be excluded where there is reason to believe that their 2   This includes, inter alia, all core crimes under the VStGB (the only exceptions being violation of the duty of supervision and failure to report a crime under §13 and 14 VStGB), as well as serious domestic crimes such as murder (§ 211 StGB) or rape (§ 177 StGB). 3   § 140(1) (No 1)–(No 2) StPO. 4   BVerfG, NJW 1980, 1677, 1678; BVerfG, NStZ 1988, 282; BGH, NJW 1954, 1415. 5   § 201(1) StPO. § 201(3) allows for counsel to be appointed even earlier in the proceedings if the prosecution deems this to be necessary. 6   § 137(1) StPO. 7   § 146(1) StPO. 8   § 138a StPO.

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Position vis-à-vis Counsel participation would lead to a ‘danger for the security of the Federal Republic of Germany’.9 If the defendant does not hire counsel herself, one is appointed for her, regardless of whether or not she is indigent. In this case, the court grants the defendant the opportunity to name an attorney of her choice, who shall be appointed unless there are compelling reasons not to do so.10 There is no legal right that counsel of choice be appointed,11 but the defendant’s wishes must be respected ‘if possible’12 and refusal to do so without valid reasons violates her right to a fair trial.13 This will often result in the appointment of the so-called Wahlpflichtverteidiger (chosen mandatory counsel or mandatory counsel of choice), that is counsel first hired by the defendant and later appointed by the court. The court may, however, choose not to appoint the counsel of choice if there are important reasons for doing so,14 for example where counsel has misbehaved in earlier cases,15 where there is a concrete and foreseeable conflict of interest16 or where counsel lacks the necessary expertise in difficult cases.17 The defendant, on the other hand, may under narrowly defined circumstances refuse to be represented by the counsel appointed by the court and may ask to have her replaced. This is the case if concrete facts have led to a crisis of trust between defendant and counsel which cannot be resolved and which hinders an adequate defence.18 As stated, this is a narrow exception, thus a mere statement by the defendant that she does not trust the counsel appointed by the court does not suffice,19 neither does a crisis of trust deliberately brought about by the defendant.20 Finally, the defendant may have her mandatory counsel replaced by hiring (and thus immediately paying for) counsel of choice – this will lead to withdrawal of the appointment of mandatory counsel.21 As to the internal relationship, counsel’s duty is, in the first instance, towards her client and her interests. However, she is also an ‘independent organ of criminal justice’. As such, she must take into account the wishes of the defendant as to how these interests should be implemented in terms of trial strategy, but she is not bound by such wishes;22 in fact she may even act against the express wishes of her client.23   § 138b StPO.   § 142(1) StPO. 11   Such right is granted neither by the German Constitution – BVerfG, NJW 1959, 571, 572; BVerfG, NWJ 1975, 1015, 1016 – nor by the StPO – BGH, NStZ 1987, 217; BGH, MDR 1979, 108. 12   BVerfG, NJW 1959, 571, 572. 13   BVerfG, NJW 1975, 1015; BGH, StV 1987, 428. 14   See the various references given by Laufhütte in KK-StPO (2008), § 142, mn 7. 15   KG Berlin, JR 1987, 524. 16   BVerfG, NStZ 1998, 46; BGH, NStZ 1992, 292. 17   OLG Schleswig, StV 1987, 478, 479. 18   BVerfG, NJW 2001, 3695, 3697; BGH, NStZ 2004, 632; BGHSt 39, 310, 314–15. 19   BGH, NStZ 1992, 292. 20   BGH, NStZ 1998, 267. 21   § 143 StPO. 22   BGHSt 13, 337. 23   BGHSt 39, 310, 313; OLG Frankfurt, NStZ-RR 1996, 236; OLG Celle, NStZ 1988, 426. 9

10

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The Position of the Defendant in the Trial A special problem arises in the case of the so-called Sicherungsverteidiger,24 mandatory counsel appointed against the will of a defendant already represented by counsel of choice. While there is no explicit legal basis for the appointment of such additional counsel,25 courts have generally found the practice permissible where necessary to ensure a fair and/or speedy trial.26 The main reason for the appointment of a Sicherungsverteidiger is a risk that counsel of choice will withdraw or be excused from the case and the defendant will thus be without counsel.27 However, such risks must go beyond mere inconveniences such as scheduling problems.28 While courts have acknowledged that a defendant being represented by different counsel who may follow different trial strategies may have repercussions on the quality of the defence,29 they have not pronounced on how to solve such problems (other than by exchanging the mandatory counsel in cases of concrete problems).30 As to the external relationship, defendants who are represented by counsel may, if they so choose, still take a rather active role in their defence. Certain participation rights are granted only to counsel and cannot be exercised by the defendant herself. These are the right of access to the court file,31 the right to ask questions of co-defendants32 and the option, to be exercised by counsel and prosecution jointly, of choosing common law style cross-examination of witnesses instead of questions by the court followed by questions by the parties.33 Most other participation rights, however, are granted to both the defendant and her counsel, thus the defendant may exercise these rights even in addition to her counsel. Where there are conflicting statements by both defendant and coun24   Sicherungsverteidiger may roughly be translated as ‘security counsel’, ie counsel securing the trial and/or adequate representation. The appointment of Sicherungsverteidiger will not always be against the wishes of the defendant – on the contrary, where the additional counsel has the defendant’s trust, the defendant may be quite content with adding an additional member to the defence team and may indeed actively request such an appointment. Accordingly, critics of the practice of appointing Sicherungsverteidiger also against the wishes of the defendant often refer to such counsel pejoratively as Zwangsverteidiger, ie ‘forced counsel’ – see, eg Neumann (1991); Haffke (1981). 25   In fact, § 143 StPO, according to which the appointment of mandatory counsel must be revoked if counsel of choice is hired, rather points to a general rule against the appointment of mandatory counsel where there already is a counsel of choice – see Neumann (1991). 26   BVerfGE 39, 238, 246; BVerfGE 63, 45, 68; BGHSt, 15, 306, 309. See also the decisions cited by Schmidt-Leichner (1975), 421. 27   OLG Düsseldorf, NStZ 1986, 137; OLG Zweibrücken, NStZ 1982, 298; OLG Frankfurt/Main, NJW 1972, 2055, 2056. 28   OLG Celle, StV 1988, 100; Meyer-Goßner (2011), § 141, mn 1. 29   OLG Hamm, NJW 1978, 1986; OLG Frankfurt/M, NJW 1972, 2055, 2056. 30   OLG Hamm, NJW 1978, 1986. Proposals in the literature (eg Schmidt-Leichner (1975), 421– 22) to replace the system in place by a concept of an Ergänzungs- or Ersatzverteidiger (‘additional’ or ‘standby counsel’), who only takes over the defence once counsel of choice ceases to represent the defendant, or to consider the mandatory counsel strictly bound by the client’s instructions, do not seem to have gained widespread acceptance in the courts. 31   § 147(1) StPO. The defendant does not have a right of access to the court file, even if she is herself an attorney – BVerfGE 53, 207, 214. Howerver, the StPO has recently been reformed to allow that the defendant be provided with copies of parts of the file under § 147(7) StPO. 32   § 240(2) StPO. 33   § 239 StPO. This option is hardly ever exercised in practice.

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Position vis-à-vis Counsel sel, however, the statement by counsel will usually take precedence.34 Also, where the defendant abuses her personal participation rights to derail the trial, she may be enjoined from personally exercising these rights.35 There are also a number of rights, such as the right to make statements on the facts underlying the indictment, which may only be exercised by the defendant unless she explicitly grants counsel the right to exercise these rights in the defendant’s name.36 Finally some rights, such as that to a ‘last word’,37 may only ever be exercised by the defendant herself and may not be conferred upon counsel.

2. France In France, as in Germany, the defendant is not given the choice to represent herself in serious cases. For trials before the Cour d’assises, Article 274 CPP specifies that if she declines to choose an advocate, one is appointed ex officio;38 the presence of counsel throughout the proceedings is mandatory.39 In misdemeanor proceedings, the assistance of an advocate is mandatory if ‘the defendant suffers of an infirmity liable to compromise [her] defence’,40 as well as for the procedures of negotiated justice.41 The choice of counsel is left to the defendant. The court will appoint counsel if the defendant declines to do so, but the defendant may override this appointment later on by appointing counsel of her own.42 The CPP does not foresee any restrictions on the choice of counsel, provided that they are generally qualified to appear; it even allows the court, at its discretion,43 exceptionally to authorise a family member or friend of the defendant, that is a person not an attorney, to function as counsel.44 The defendant will, however, have little choice if she is unable to pay for her lawyer. In such cases, an attorney will be assigned to her by the court, usually selected from the duty rota which is in most cases staffed by younger advocates, including apprentice advocates.45 The choice of such counsel is up to the court, the defendant does not have any recourse concerning which attorney is assigned as counsel.46 34   Laufhütte in KK-StPO (2008), Introduction to § 137, mn 3–4. Counsel may, however, not bring an appeal if the defendant explicitly contradicts her and may only withdraw an appeal with the explicit approval of her client – § 297 and § 302(2) StPO. On appeals see also OLG Düsseldorf, MDR 1993, 676. 35   BGHSt 38, 111. 36   See BGH, NJW 1956, 1727, 1728; BayObLG, VRS 1974, 115. 37   § 258(2)–(3) StPO, on which see below 137–38. 38   Art 274 CPP. 39   Art 317 CPP. The defendant may not waive or refuse assistance by counsel: Cass crim, 8 August 1959, Bull crim No 387. 40   Art 417(4) CPP. 41   Art 495-8 CPP. 42   Art 274 CPP; Cass crim, 23 May 1991, Bull crim No 217. 43   Cass crim, 6 December 1850, Bull crim No 413; 27 August 1852, Bull crim No 302. 44   Art 275 CPP. 45   See Hodgson (2002), 790; Cohen (1992). 46   Cass crim, 10 December 1885, Bull crim No 342.

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The Position of the Defendant in the Trial As to the internal relationship, the defendant is not guaranteed a say in setting up her defence strategy. Rather, the choice of this strategy is up to counsel and not subject to review on appeal.47 Finally, as far as the external relationship is concerned, various provisions show a general expectation that the defence will be conducted by counsel, but the defendant does retain some direct influence. Thus, counsel may question witnesses directly, while the defendant herself may only ask questions ‘through the intermediary of the president’.48 Counsel also has privileged access to the case file during the investigation, although the defendant is later provided with a copy of her own.49 As to conduct of the proceedings generally, however, a number of provisions50 refer to ‘the accused or his advocate’, indicating that the division of labour as to these questions may be decided internally by the defence.51 Finally, the provision on final statements states that ‘The accused and his advocate present their defence arguments’ and that ‘The accused and his advocate will always have the final word’,52 indicating that this part of the defence will generally be conducted by both lawyer and client.

3.  The United States The Supreme Court has found, in Faretta v California,53 that defendants have a nearly absolute right to represent themselves in all criminal proceedings. Such decision must be taken voluntarily and intelligently – this requirement does not require a high level of knowledge or intelligence of the defendant, but rather that the defendant is made ‘aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open” ’.54 The right of self-representation may be revoked where the defendant engages in deliberate, serious obstructionist misconduct.55 If the defendant only requests to represent herself after the trial has begun, the court may more easily deny this right, particularly where it appears to be a delaying tactic.56 There is no right to self-representation in appeals proceedings, but courts may at their discretion allow self-representation nonetheless.57 47   Cass crim, 5 August 1858, Bull crim No 222; 10 March 1893, Bull crim No 68; 13 March 1914, Bull crim No 16; 14 January 1961, Bull crim No 91. 48   Arts 312, 332 CPP. 49   Arts 279, 280 CPP. 50   Arts 292 (delaying hearing), 297 (challenges to the jurors); Art 315 (motions to the court) CPP. 51   See also Angevin (1978), Arts 317–22, fasc 20, paras 127 et seq. 52   Art 346(2), (3) CPP. 53   Faretta v California, 422 US 806 (1975). 54   ibid, 835. 55   ibid, 834. 56   See, eg, Armant v Marquez, 772 F 2d 552 (9th Cir 1985); US v Flewitt, 874 F 2d 669 (9th Cir 1989); Robards v Rees, 789 F 2d 379 (6th Cir 1986). 57   Martinez v Court of Appeal of California, Fourth Appellate District, 528 US 152, 154 (2000).

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Position vis-à-vis Counsel The court may appoint standby counsel to aid the defendant.58 Such counsel may participate in the trial also beyond the wishes of the defendant; their participation may not, however, have any significant influence on the way the case is presented, particularly in those parts of the trial conducted in front of the jury.59 Where the defendant does retain counsel herself, she has the right to choose her counsel,60 subject to the usual requirement that counsel be licensed and admitted to practice before the court.61 There is, however, no right to choice of counsel in case of indigent defendants.62 Such defendants are represented by lawyers from the Federal Public Defenders’ Offices or other organisations set up for the representation of indigents63 and have no say in determining which of the lawyers employed by that office or organisation represents them. Only exceptionally, such as where there is a potential for conflict of interest, may indigent defendants be represented by private attorneys and granted a say in determining who represents them. Concerning the internal relationship between counsel and defendant, certain fundamental decisions – how to plead, whether to waive the right to a trial by jury, whether to testify and whether to appeal64 – are made by the defendant. Even in this regard, however, counsel is not always and entirely bound by the defendant’s wishes: concerning testimony, counsel may refuse to call the defendant as a witness if it is apparent that the defendant would commit perjury.65 As to appeals, counsel must heed the defendant’s wishes and bring an appeal if there is a nonfrivolous argument to be made, but she is not bound by the defendant’s wishes as to which arguments to include in the appeal.66 As concerns behaviour at trial otherwise, US criminal procedure is more concerned with the effectiveness of representation67 than with such representation conforming strictly to the wishes of the defendant.68 Thus counsel must ‘consult with the defendant on important decisions and . . . keep [her] informed of important developments in the course of the prosecution’,69 but the final decision on how to conduct the defence rests with counsel. This includes the decision whether or not to call a certain witness.70 The relative freedom of counsel in conducting   Faretta v California, 422 US 806, 834 (1975).   McKaskle v Wiggins, 465 US 169, 178–79 (1984). 60   Wheat v US, 486 US 153 (1988). This applies, with very few exceptions, even where there is a potential for a conflict of interest: US v Perez, 325 F 3d 115 (2d Cir 2003). 61   Wheat v US, 486 US 153 (1988); US v Martin, 790 F 2d 1215 (5th Cir 1986); US v Tedder, 787 F 2d 540 (10th Cir 1986); US v Price, 798 F 2d 111 (5th Cir 1986). 62   US v Martin, 790 F 2d 1215 (5th Cir 1986); US v Allen, 789 F 2d 90 (1st Cir 1986); US vMitchell, 788 F 2d 1232 (7th Cir 1986). 63   18 USC § 3006A. 64   Jones v Barnes, 463 US 745, 751 (1983) with further references. 65   US v Curtis, 742 F 2d 1070 (7th Cir 1984). 66   Jones v Barnes, 463 US 745, 751–54 (1983). 67   Strickland v Washington, 166 US 668 (1984); Yarborough v Gentry, 540 US 1 (2003); US v Cronic, 466 US 648 (1984); Mickens v Taylor, 535 US 162 (2002). 68   However, where counsel’s strategy is based on an (implied or explicit) choice of the defendant, this tends to negate a later claim of ineffectiveness: Strickland v Washington, 566 US 668, 691 (1984). 69   ibid, 688 (1984). 70   US v Gutterman, 147 F 2d 540 (2nd Cir 1945). 58 59

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The Position of the Defendant in the Trial the trial is also reflected in pronouncements that there is no right to a ‘meaningful relationship’ between defendant and counsel.71 Where the defendant is represented by counsel, it is generally counsel alone who conducts the defence.72 US procedure does not generally foresee ‘hybrid representation’,73 although courts may in their discretion allow the defendant to conduct specific aspects of the defence in person.74 Other than that, the defendant only performs those acts which require her personal decision, that is she enters a plea and she testifies if she decides to do so.

II.  Requirements Deriving from Human Rights Law 1.  The European Convention Article 6(3)(c) ECHR grants every defendant the right ‘to defend himself in person or through legal assistance of his own choosing’. At first glance, this might seem to grant the defendant an absolute choice whether to represent herself or have counsel represent her. The ECtHR has found, however, that states may require defendants to be ‘assisted’ by counsel and that counsel may even be assigned in addition to counsel of choice.75 This also applies to defendants who are themselves attorneys.76 While the ECtHR has allowed such forced assignment only where necessary ‘in the interest of justice’, this is a broad category which includes the avoidance of interruptions and adjournments.77 For the most part, a defendant representing herself must be granted the same participation rights that her counsel, were she represented by one, would have. For certain rights, however, the ECtHR has indicated that these may be reserved to counsel and thus denied (self-representing) defendants, as long as this does not endanger the adversarial character of the trial and the equality of arms.78 Article 6(3)(c) also provides for a general right of the defendant to choose her counsel. However, national courts are only required to ‘have regard to’ her wishes and may ‘override [them] when there are relevant and sufficient grounds for   Morris v Slappy, 461 US 1 (1983); Siers v Ryan, 773 F 2d 37 (3rd Cir 1985).   Counsel may even waive the defendant’s right to presence if she has been instructed to do so: Polizzi v US, 926 F 2d 1311 (2nd Cir 1991); US v Weinstein, 511 F 2d 622 (2nd Cir 1975). 73   US v Mitchell, 137 F 2d 1006 (2nd Cir 1943); Lee v State of Alabama, 406 F 2d 466 (5th Cir 1968); US v Halbert, 640 F 2d 1000 (9th Cir 1981); US v Hill, 526 F 2d 1019 (10th Cir 1975); Cross v US, 893 F 2d 1287 (11th Cir 1990); US v Swinney, 970 F 2d 494 (8th Cir 1992). 74   US v Bennett, 539 F 2d 45 (10th Cir 1976); US v Dellinger, 472 F 2d 340 (7th Cir 1972). 75   ECtHR, Croissant v Germany (1992) Series A no 237-B, para  27; see also Lagerblom v Sweden App no 26891/95 (ECtHR, 14 January 2003), para 50; Philis v Greece App no 16598/90 (ECmHR, 11 December 1990), 66 DR 260, 263; X v Norway App no 5923/72 (ECmHR, 30 May 1975), 3 DR 43, 44. 76   Correia de Matos v Portugal ECtHR 2001-XII 161, para C. 77   ECtHR, Croissant v Germany (1992) Series A no 237-B, paras 27–28. 78   See, concerning access to the Advocate-General’s submissions to the court in cassation proceedings, Voisine v France App no 27362/95 (ECtHR, 8 February 2000), paras 29–34 and Adoud and Bosoni v France App no 35237/97 et al (ECtHR, 27 February 2001), paras 20–21; concerning access to the case file, Foucher v France ECHR 1997-II 452, para 36. 71 72

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Position vis-à-vis Counsel holding that this is necessary in the interests of justice’ and as long as this does not ‘adversely affect the defence’.79 Indigent defendants to whom counsel is provided free of charge do not have the same right to choose counsel as do defendants who pay counsel themselves or are assigned counsel against their wishes.80 The right to choose one’s defence counsel is limited by the right of states to regulate the appearance of counsel before their courts and to lay down principles of professional conduct binding on defence lawyers.81 Among others, this also means that courts may refuse for a defendant to be represented by an attorney who is not capable of appearing before the domestic courts, such as a foreignqualified attorney.82 As to the relationship between counsel and defendant, the ECmHR has held that ‘the Convention does not entitle the accused to require his lawyer to adopt a particular defence strategy which the latter regards as impossible to maintain, especially if the accused is given the opportunity to address the court himself’.83 The ECtHR, in the context of claims of ineffective representation, has made similar statements.84 Exceptions may be made where counsel is ‘wholly ineffective’ in that she, for example, refuses to pursue certain legal remedies.85 Where a defendant is represented by counsel, Article 6 ECHR generally allows national rules according to which certain defence rights, such as the right of access to the court file, may only be granted to counsel and not to the defendant.86 This rule is not without exceptions, however. In Öcalan, the ECtHR found that granting access to the case file only to counsel and not to the defendant himself was a violation of the right under Article 6(3)(b), on the basis that Öcalan would have been better able to deal with the evidence than his counsel had been.87 Whether there are further exceptions, especially whether there are certain rights which must always be granted to the defendant, even if she is represented by counsel, does not seem to have been decided so far. 79   ECtHR, Croissant v Germany (1992) Series A no 237-B, para  29 (but see Dissenting Opinion of Judge De Meyer). Similarly Mayzit v Russia App no 63378/00 (ECtHR, 20 January 2005), para 66; Lagerblom v Sweden App no 26891/95 (ECtHR, 14 January 2003), para 54. 80   Franquesa Freixas v Spain ECtHR 2000-XI 531, para  1; Erdem v Germany App no 38321/97 (ECtHR, 9 December 1999), para 3e. The ECmHR had even held that the defendant did not have a right to be consulted with regard to the choice of an official defence counsel – see, eg X v Germany App no 6946/75 (ECmHR, 6 July 1976), 6 DR 114, 116–17. 81   V v United Kingdom App no 11465/85 (ECmHR, 3 March 1986); Ensslin, Baader and Raspe v Germany App no 7572/76 (ECmHR, 8 July 1978), 14 DR 64, paras  19–20. States may also limit access to higher courts to specific groups of lawyers: Claudel v France App no 23038/93 (ECmHR, 30 November 1994). 82   V v United Kingdom App no 11465/85 (ECmHR, 3 March 1986). 83   X v Switzerland App no 9127/80 (ECmHR, 6 October 1981), 26 DR 238, 240. 84   See, eg ECtHR, Kamasinski v Austria (1989) Series A no 168, paras 63 et seq. See also Lagerblom v Sweden App no 26891/95 (ECtHR, 14 January 2003), para 55. 85   See, eg Rutkowski v Poland ECtHR 2000-XI 455, para 2. 86   ECtHR, Kamasinski v Austria (1989) Series A no 168, para 88. 87   ECtHR, Öcalan v Turkey App no 46221/99 (ECtHR, 12 March 2003), para 161; 2005-IV Rep 131 (Grand Chamber), paras 138 et seq.

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The Position of the Defendant in the Trial

2.  The International Covenant Article 14(3)(d) grants the defendant the right to ‘defend himself in person or through legal assistance of his own choosing’. While the HRC has initially made statements which could be understood as endorsing an absolute right of selfrepresentation,88 it has later stated that the right is not absolute and that imposition of counsel may be required by: [T]he interests of justice . . ., particularly in cases of persons substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in their own interests, or where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused.89

The HRC thus allows a wide range of restrictions of the right to self-representation, but has also warned that such restrictions require an ‘objective and sufficiently serious purpose’ and are subject to considerations of proportionality.90 A general ban on self-representation was held to be in violation of Article 14.91 Defendants must generally be granted the right to choose their counsel; any limitations to this right must be justified.92 However, the HRC so far has only had to deal with rather egregious cases, where defendants were allowed to ‘choose’ between two military lawyers93 or from a list of military lawyers controlled by the government,94 or had to accept a certain military lawyer although civilian lawyers were willing to take the case.95 One may expect that the HRC would find more reasonable limitations of the choice of counsel to be permissible under Article 14 ICCPR. Regarding indigent defendants, the HRC has consistently held that a defendant ‘is not entitled to choice of counsel if he is being provided with a legal aid lawyer, and is otherwise unable to afford legal representation’.96 As to the relationship between counsel and defendant, the HRC has stated in general that defendants ‘have the right to instruct their lawyer on the conduct of their case, within the limits of professional responsibility’,97 but has not had much to say about how to deal with disagreements between defendants and counsel.98 It has, however, laid down certain boundaries to counsel’s behaviour in the interest 88   HRC, Hill and Hill v Spain, Comm 526/93, para 14.2. See also Nowak (2005), Art 14, mn 60–62 with further references. 89   HRC, Correia de Matos v Portugal, Comm 1123/2002, para 7.4; General Comment No 32, 2007, para 37. 90   ibid. 91   HRC, Correia de Matos v Portugal, Comm 1123/2002, para 7.5. 92   See McGoldrick (1991), para 10.41. 93   HRC, Estrella v Uruguay, Comm 74/1980, paras 1.8, 10. 94   HRC, Burgos v Uruguay, Comm R.12/52, UN Doc A/36/40, 176, para 13. 95   HRC, Acosta v Uruguay, Comm 110/1981, para 2.6. 96   See, eg HRC, Teesdale v Jamaica, Comm 677/1996, para 9.6. 97   HRC, General Comment No 32, 2007, para 37. 98   See, eg HRC, Henry v Jamaica, Comm 230/1987, para 8.3.

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Position vis-à-vis Counsel of effective representation; most importantly that counsel must at least consult with the defendant before abandoning an appeal.99 The Committee has not had occasion to pronounce on whether defendants represented by counsel retain certain participation rights which they can exercise independently.

3.  The Inter-American and African Systems Article 8(2)(d) ACHR contains the general right to a defence in terms very similar to those of the ECHR. While quite a number of decisions of the treaty bodies concern legal representation, most of them deal with denial of access to counsel or with inadequacy of counsel.100 Only very few cases concern any of the questions dealt with here. As regards self-representation, the Court has noted that this ‘would only be possible where permitted under domestic law’, showing that it would allow a wide range of limitations to this right.101 The only relevant statement on the right to choose one’s counsel seems to be the finding by the Court that a law providing that one attorney may not represent more than one defendant in a case was not a violation of this right.102 There seems to be no jurisprudence on the relationship between counsel and defendant. As to the African system, Article 7(c) of the Charter grants every defendant ‘the right to defence, including the right to be defended by counsel of his choice’. The 2003 Principles deal in more detail with several aspects of the right to counsel. They also deal with self-representation, but do not explicitly refer to the scope or limits of a right to self-representation.103 The Commission has not decided on 99   HRC, Kelly v Jamaica, Comm 253/1987, para 5.10; Reid v Jamaica, Comm 250/1987, para 11.4 Both cases concerned defendants sentenced to death in first instance. See also Pinto v Trinidad and Tobago, Comm 232/1987, para 12.5 100   See IACtHR, Hilaire, Constantine and Benjamin et al Case, Judgment of 21 June 2002, Ser C No 94, para 148; Exceptions of the Exhaustion of Domestic Remedies (Arts 46(1), 46(2)(a) and 46(2) (b) of the American Convention on Human Rights, Advisory Opinion of 10 August 1990, Ser A No 11, paras 25–29; IACmHR, Rudolph Baptiste v Grenada, Case 11.743, Rep 38/00, paras 141 et seq.; Desmond Mckenzie et al v Jamaica, Case 12.023 et al, Rep 41/00, paras 311 et seq (all on legal aid counsel in general); Lamey et al v Jamaica, Case 11.826 et al, Rep 49/01, para 214 (delays in providing access to counsel); Lorenzo Enrique Copello Castillo et al v Cuba, Case 12.477, Rep 68/06, paras 100 et seq, Whitley Myrie v Jamaica, Case 12.417, Rep 41/04, paras 62 et seq (adequacy of counsel); IACtHR, Petruzzi et al v Peru, Judgment of 30 May 1999, Ser C No 52, para 147 (systemic reasons why counsel were unable to put up an adequate defence); Castillo Páez Case, Judgment of 3 November 1997, Ser C No 34, paras 75 et seq. (attacks on counsel by third parties). 101   IACtHR, Exceptions of the Exhaustion of Domestic Remedies (Arts 46(1), 46(2)(a) and 46(2)(b) of the American Convention on Human Rights, Advisory Opinion of 10 August 1990, Ser A No 11, para 25. Many legal systems in the Americas in fact foresee mandatory representation – Medina Quiroga, 328. 102   IACtHR, Petruzzi et al v Peru, Judgment of 30 May 1999, Ser C No 52, para  147. This seems to be an obiter dictum, though, as the Court found a violation of Art 8(2)(d) for other reasons. The Commission had, in the same case, noted that attorneys were only allowed to represent one person nationwide in cases concerning certain offences and had found this to be a violation of Art 8(2)(d) – see ibid, para 144. 103   See 2003 Principles, para N.2.a.

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The Position of the Defendant in the Trial this question – so far it has only had to deal with the opposite case.104 However, given the rather limited language of the Charter and the jurisprudence of other human rights treaty bodies referred to above, it seems unlikely that the Commission would find such a right to exist without serious limitations. Regarding the right to choose one’s own counsel as contained in Article 7 lit c, the Commission has only had to deal with egregious cases and has found violations where defendants were not allowed to choose their own counsel at all,105 where the court retained the right to ‘veto the choice of counsel of defendants’106 or where the counsel of choice was ‘harassed and intimidated to the extent of being forced to withdraw from the proceedings’.107 One may assume that the Committee would find other limitations acceptable, especially in legal aid cases. Under the 2003 Principles, the defendant has ‘a right to choose his or her own legal representative at all stages of the case’ and ‘the right to choose his or her own counsel freely’.108 On the other hand, the Principles also state that the defendant ‘may contest the choice of his or her court-appointed lawyer’,109 thus seeming to provide less choice in the case of legal aid lawyers. The Commission has not yet had to deal with the intricate question of the relationship between defendants and their counsel or with the remaining participation rights of defendants represented by counsel, and it seems unlikely that it will interpret Article 7 as saying much on this question. The 2003 Principles do not provide much guidance either.110

III.  International Criminal Procedure 1. The Ad hoc Tribunals (a) Self-Representation The Statutes of the ad hoc tribunals grant the defendant the right to ‘defend himself in person or through legal assistance of his own choosing’.111 This seems to 104   AfrCmHPR, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v Burundi, Comm 231/99, para 30. Similarly, in Malawi African Association and others v Mauritania, a declaration by the national court ‘that the refusal of the accused persons to defend themselves was tantamount to an admission of guilt’ was found to be in violation of Art 7 lit b) of the Charter (Comm 54/91 et al, para 95). 105   AfrCmHPR, Civil Liberties Organisation v Nigeria, Comm 151/96, para 24; Law Office of Ghazi Suleiman v Sudan, Comm 222/98 and 229/99, paras 57–60. This is also the case for indigent defendants: Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, Comm 218/98, paras 28–31. 106   AfrCmHPR, Amnesty International and others v Sudan, Comm 48/90 et al, para 64. 107   AfrCmHPR, The Constitutional Rights Project (in respect of Zamani Lakwot and Six Others) v Nigeria, Comm 87/93, para 12. 108   2003 Principles, paras H.d and N.2.d. 109   2003 Principles, para H.d. 110   See 2003 Principles, para I.j. However, para N.6.f.5, allowing limitations to the defendant’s right to cross-examine child witnesses and witnesses who are victims of sexual violence, may be taken to imply that the defendant may generally be quite active in her defence. 111   Art 21(4)(d) StICTY; Art 20(4)(d) StICTR.

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Position vis-à-vis Counsel imply that the defendant may freely choose whether or not to defend herself. This reading is supported by the accompanying procedural rule in the RPE, which simply states that ‘an accused electing to conduct his or her own defence shall so notify the Registrar in writing at the first opportunity’.112 The Tribunals have accepted that Article 21 grants a right to self-representation which ‘should [not] be taken lightly’,113 but have in fact found several reasons for restrictions of this right, leading to varying regimes of imposed counsel. One such reason is a fear that the defendant’s behaviour may obstruct the trial. In Šešelj, various actions of the defendant ‘indicative of obstructionism on his part’ led to the assignment of standby counsel.114 In Stankovic´, defendant behaviour which was ‘deliberately disrespectful and inappropriate to say the least’ was one of several reasons for denying self-representation.115 Chambers have also referred to the risk of non-deliberate obstruction of proceedings. Thus according to the Trial Chamber in Krajišnik, a request for selfrepresentation may be denied if it is made after the trial has begun as granting it would require delaying the proceedings for quite some time.116 In Miloševic´, the Trial Chamber assigned counsel based on the argument that the defendant’s health might not withstand the pressures attendant with self-representation. While the Chamber professed some concern over the impact on Miloševic´’s health as such, the main reason for imposing counsel was the disruption of the trial that would be caused.117 Other reasons mentioned in denying requests for self-representation were the fact that the defendant was accused of crimes of sexual violence and should not be allowed to personally cross-examine vulnerable victim-witnesses118 and that the defendant was barred from most contact with the outside world, due to concerns of witness intimidation, and thus would not be able to defend himself.119 The mere fact that the defendant would not be qualified to conduct a good defence has been alluded to as a possible reason for assigning counsel against the defendant’s   r 45(F) RPE-ICTY; very similar r 45(F) RPE-ICTR.   Prosecutor v Slobodan Miloševi´c (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel) IT-02-54, Appeals Chamber (1 November 2004), para 11. 114   Prosecutor v Šešelj (Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence) IT-03-67, Trial Chamber (9 May 2003), para 26. For more on the Šešelj case, see below 226–29. 115   Prosecutor v Jankovi´c and Stankovi´c (Decision Following Registrar’s Notification of Radovan Stanković’s Request for Self-Representation) IT-96-23/2, Trial Chamber (19 August 2005), paras 22–23. 116   Prosecutor v Krajišnik (Reasons for Oral Decision Denying Mr Krajišnik’s Request to Proceed Unrepresented by Counsel) IT-00-39, Trial Chamber (18 August 2005), paras 31–33. 117   Prosecutor v Slobodan Miloševi´c (Reasons for Decision on the Assignment of Defence Counsel) IT-02-54, Trial Chamber (22 September 2004), paras  33, 65–66. This reasoning was accepted by the Appeals Chamber – (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel) IT-02-54, Appeals Chamber (1 November 2004), para  11. The Miloševi´c case is considered in greater detail below 220–26. 118   Prosecutor v Jankovi´c and Stankovi´c (Decision Following Registrar’s Notification of Radovan Stanković’s Request for Self-representation) IT-96-23/2, Trial Chamber (19 August 2005), para 21. 119   ibid, para 24. 112 113

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The Position of the Defendant in the Trial wishes,120 but has never been in fact used as a decisive factor for doing so. However, it was presumably a decisive factor for the appointment of amici curiae, under the Chamber’s duty to ensure the fairness of the proceedings, in Miloševic´ and in the appeals phase in Krajišnik.121 Besides these substantive restrictions, there are certain procedural prerequisites which must be fulfilled for self-representation to be allowed. The request must be informed, intelligent, unequivocal, and made of the defendant’s own free will.122 In Krajišnik, the Trial Chamber did not grant a request for self-representation because it found that the defendant in fact wished for better representation by counsel.123 In Ntahobali, the defendant wished to withdraw his counsel, but wanted to have new counsel assigned eventually, and only offered to represent himself pending appointment of new counsel so as to avoid delays in the trial. Here the Chamber granted the withdrawal, but appointed duty counsel to take over until a new permanent counsel was appointed.124 Additionally, the wish must also be explicit: in Barayagwiza, the defendant had stated that he did not wish his counsel to represent him anymore, and counsel had asked to withdraw from the case. While it was clear that Barayagwiza did not wish to be represented by other counsel either, he had not explicitly requested to represent himself either; the Chamber treated this simply as a request for withdrawal of counsel, which it denied under the applicable Rule 45(I) RPE-ICTR.125 The Directives on Assignment of Counsel foresee that where the defendant does not clearly state her wishes as to defence, the Registrar may appoint counsel in the interests of justice.126 Despite these limitations, some defendants, particularly at the ICTY, have in fact conducted at least parts of their case on their own, and some of them have used this opportunity to promulgate their own view of the facts of the case. The 120   Prosecutor v Krajišnik (Reasons for Oral Decision Denying Mr Krajišnik’s Request to Proceed Unrepresented by Counsel) IT-00-39, Trial Chamber (18 August 2005), para  34. In Stankovi´c, the Chamber found that self-representation should not be denied ‘solely’ on this ground – Prosecutor v Jankovi´c and Stankovi´c (Decision Following Registrar’s Notification of Radovan Stanković’s Request for Self-representation) IT-96-23/2, Trial Chamber (19 August 2005), para 20. 121   Prosecutor v Slobodan Miloševi´c (Order Inviting Designation of Amicus Curiae) IT-02-54, Trial Chamber (30 August 2001); Prosecutor v Krajišnik (Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007) IT-00-39, Trial Chamber (11 May 2007), paras 17–19. 122   Prosecutor v Krajišnik (Reasons for Oral Decision Denying Mr Krajišnik’s Request to Proceed Unrepresented by Counsel) IT-00-39, Trial Chamber (18 August 2005), para  5; similarly Butare (Decision on Ntahobali’s Motion for Withdrawal of Counsel) ICTR-98-42, Trial Chamber (22 June 2001), para 20. See also Prosecutor v Akayesu (Judgment) ICTR-96-4, Appeals Chamber (1 June 2001), para 65. 123   Prosecutor v Krajišnik (Reasons for Oral Decision Denying Mr Krajišnik’s Request to Proceed Unrepresented by Counsel) IT-00-39, Trial Chamber (18 August 2005), paras 6–7, 9–21. 124   Butare (Decision on Ntahobali’s Motion for Withdrawal of Counsel) ICTR-98-42, Trial Chamber (22 June 2001), paras 17–20. 125   Prosecutor v Barayagwiza (Decision on Defence Counsel Motion to Withdraw) ICTR-97-19, Trial Chamber (2 November 2000), paras 20–27. See also the Concurring and Separate Opinion of Judge Gunawardana, who notes that the defendant had not explicitly asked for permission to represent himself. 126   Art 11(C) ICTY Directive; Art 10bis ICTR Directive.

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Position vis-à-vis Counsel obvious cases of Miloševic´ and Šešelj are considered in more detail in chapter 6. Others have represented themselves for a while in pre-trial proceedings.127 At the time of writing Zdravko Tolimir is representing himself at trial, but has been warned that counsel may be imposed due to obstructive behaviour.128 Radovan Karadžic´ is also representing himself, but had standby counsel imposed after he refused to appear for the beginning of the trial.129 Finally, it is worth noting that the Appeals Chamber, by majority, granted Momcˇilo Krajišnik the right to represent himself in appeals proceedings.130 At the ICTR, Jean-Paul Akayesu withdrew his counsel after conviction but before sentencing and defended himself in sentencing proceedings; a new counsel took over for the appeal. The case is noteworthy because, from looking at the trial transcript, it appears that the defendant was not in fact very keen on representing himself.131 In November 2008, the ICTY judges introduced Rule 45ter RPE-ICTY, which allows the Trial Chamber to impose counsel on a defendant ‘if it decides that it is in the interests of justice’. This revision most probably constitutes a reaction to, inter alia, Radovan Karadžic´’s announcement of his wish to represent himself.132 However, so far Karadžic´ continues to represent himself, as do Tolimir and Šešelj. The exact regime of representation depends on the way in which counsel were appointed. Where self-representation was denied outright and counsel appointed, the relationship between counsel and defendant was similar to what it would have been had the defendant never requested self-representation in the first place. However, some Chambers which denied requests for self-representation did allow the defendant to take a slightly more active role in the proceedings.133 Standby counsel in Karadžic´ does not take an active role in the case. The same was true for standby counsel in Šešelj while the defendant was still in charge.134 127   See Prosecutor v Kovacˇ (Motion Against the Indictment) IT-96-23, Accused (2 September 1999); Prosecutor v Kambanda (Judgment) ICTR-97-23, Appeals Chamber (19 October 2000), para 16. 128   As reported in IWPR, Tribunal Update No 581, 12 December 2008, ‘Doubts Raised About Rule Letting Judges Impose Counsel’ – the relevant Transcript is not publicly available. 129   See for more details Elberling (2010) with references. 130   Prosecutor v Krajišnik (Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007) IT-00-39, Appeals Chamber (11 May 2007), paras  9–13. The decision was strongly criticised by Judge Schomburg (Fundamentally Dissenting Opinion of Judge Schomburg on the Right to SelfRepresentation), who in fact withdrew from what  he perceived to be a fundamentally unfair trial (Decision on Prosecution Request for Clarification of President’s Order of 16 May 2007) IT-00-39, President (28 June 2007). 131   Prosecutor v Akayesu (Transcript of 28 September 1998) ICTR-96-4, Trial Chamber, 4–6. 132   See the various statements quoted in IWPR, Tribunal Update No 581, 12 December 2008, ‘Doubts Raised About Rule Letting Judges Impose Counsel’. 133   See Prosecutor v Krajišnik (Reasons for Oral Decision Denying Mr Krajišnik’s Request to Proceed Unrepresented by Counsel) IT-00-39, Trial Chamber (18 August 2005), para 3; (Transcript of 26 May 2005), Trial Chamber, 13415–17; 13439–40; (Transcript of 31 August 2006) Trial Chamber, 27502 et seq. 134   The decision appointing standby counsel did include among their duties ‘to address the Court whenever so requested by the Accused or the Chamber’ (Prosecutor v Šešelj (Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence) IT-03-67, Trial Chamber (9 May 2003), para 30), but such a request was not made while Šešelj was still conducting the defence.

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The Position of the Defendant in the Trial Once they were asked to take over the case, they were fully in charge of the defence.135 The Appeals Chamber, however, later found that an explicit warning was required before the defence could be handed over to standby counsel.136 The situation of assigned counsel in Miloševic´ constitutes a special case. According to the Trial Chamber decision,137 it was largely the role of counsel to conduct the defence, with little active control left to the defendant, even while Miloševic´ was still healthy enough to conduct the defence. The role of assigned counsel was thus close to that of counsel in the standard case not involving selfrepresentation at all. The Appeals Chamber allowed Miloševic´ to head his defence while able to do so, but still did not relegate counsel entirely to the sidelines.138 The role of counsel could thus be described as akin to a slightly more active standby counsel. Amici curiae, finally, were appointed not to represent the defendant, but ‘to assist the . . . Chamber’.139 Thus the defendant retained full control over the defence, but had to accept that someone else also spoke for his interests. Where defendants were allowed to represent themselves, the Chambers granted them certain privileges to make up for the fact that they had to undertake their defence while incarcerated. Such assistance included computer equipment, liaison officers etc, as well as access to lawyers who dealt with their case outside the courtroom.140 The Registry was at first not very receptive of the idea that indigent defendants should be granted any funding for such outside lawyers.141 The Appeals Chamber in Krajišnik, however, found that while a self-representing defendant does not have a right to full legal aid, she may receive some funding for legal associates.142 The Registry accordingly set up a payment scheme to deal with such questions.143 However, the funding granted to self-representing accused is still 135   Prosecutor v Šešelj (Decision on Assignment of Counsel) IT-03-67, Trial Chamber (21 August 2006), 25; (Transcript of 27 November 2007), Trial Chamber, 824–25. 136   Prosecutor v Šešelj (Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel) IT-03-67, Appeals Chamber (20 October 2006). For more on the related second Appeals Chamber decision overturning imposition of counsel, see below 227–29. 137   Prosecutor v Slobodan Miloševic´ (Order on the Modalities to be Followed by Court Assigned Counsel) IT-02-54, Trial Chamber (3 September 2004). 138   Prosecutor v Slobodan Miloševic´ (Decision on Interlocutory Appeal Against the Trial Chamber’s Decision on the Assignment of Defence Counsel) IT-02-54, Appeals Chamber (1 November 2004), paras 19–20. 139   Prosecutor v Slobodan Miloševic´ (Order Inviting Designation of Amicus Curiae) IT-02-54, Trial Chamber (30 August 2001); similarly Prosecutor v Krajišnik (Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007) IT-00-29, Trial Chamber (11 May 2007), paras 17–19. 140   See Prosecutor v Krajišnik (Decision on Krajišnik Request and on Prosecution Motion) IT-00-39, Appeals Chamber (11 September 2007), paras 29 et seq. See also Temminck Tuinstra (2006), 50–51 with references. 141   See, eg Prosecutor v Krajišnik (Reasons for Oral Decision Denying Mr Krajišnik’s Request to Proceed Unrepresented by Counsel) IT-00-39, Trial Chamber (18 August 2005), para 8 with further references. 142   Prosecutor v Krajišnik (Decision on Krajišnik Request and on Prosecution Motion) IT-00-39, Appeals Chamber (11 September 2007), paras 40–42. 143   Remuneration Scheme for Persons Assisting Indigent Self-Representing Accused; see Prosecutor v Tolimir (Decision) IT-05-88/2, Deputy Registrar (3 June 2008).

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Position vis-à-vis Counsel significantly less than that provided to lead counsel in comparable cases, which has led to extensive litigation in the Karadžic´ case.144 One of the reasons that self-representation is such a thorny issue is that it overlaps with many other issues concerning the position of the defendant in the proceedings. Where, as in Miloševic´, counsel is imposed because self-representation might endanger the defendant’s health, one could also ask whether it is not in fact the trial as such that is endangering the defendant’s health, raising the question of fitness to stand trial. Similarly, the Appeals Chamber decision seemed to imply that counsel was imposed so that the Chamber could continue without Miloševic´ if he fell sick again, raising the question whether the court may continue in the absence of the defendant. Where, as in Šešelj, standby counsel is imposed because of disruptive behaviour, this implies that counsel will take over the case if the defendant is excluded from the trial for such behaviour, again raising the question of proceedings in the defendant’s absence. The same case, of course, raises the question to what extent cooperative and/or respectful behaviour may in fact be expected. Finally, where, as in Stankovic´, counsel is imposed because the defendant has been restricted from communicating with the outside world, this concerns the defendant’s ability to participate in events beside the trial. In other words, questions of self-representation often arise in cases concerning ‘problem defendants’; or in other words and seen from the perspective of the defendant, denial of self-representation often goes along with other restrictions of her position in the trial. Some of these constellations are considered in more detail in chapter 6. (b)  Choice of Counsel The defendant has full freedom of choice if she pays for counsel herself and if counsel fulfills the necessary criteria regarding, inter alia, expertise.145 The situation is different, however, for (partially) indigent defendants, who make up over 90 per cent of defendants before the ad hoc Tribunals.146 The ICTY has held that indigent defendants only have a ‘limited right’ to choice of counsel, and that the Registrar may override their wishes if ‘relevant and sufficient grounds exist for holding that this is in the interests of justice’.147 However, the defendant’s choice ‘should be respected unless there exist well-founded reasons not to assign counsel of choice’.148 Similarly at the ICTR, indigent defendants do not have a right of   See Elberling (2010).   See, eg Prosecutor v Ntakirutimana (Decision) ICTR-96-10&17 (11 June 1997),  4. 146   Rhode et al (2003), paras 20-3. 147   Prosecutor v Blagojevi´c (Decision on Independent Counsel for Vidoje Blagojević’s Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel) IT-02-60, Trial Chamber (3 July 2003), para 117. See also Proscutor v Šljivancˇanin (Decision on Assignment of Defence Counsel) IT-95-13/1, President (20 August 2003), para 20. 148   Prosecutor v Marti´c (Decision on Appeal Against Decision of the Registry) IT-95-11, Trial Chamber (2 August 2002). 144 145

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The Position of the Defendant in the Trial choice of their assigned counsel,149 but should be granted a say and should be assigned counsel of choice unless there are ‘reasonable and valid grounds’ not to do so.150 The requirements to be fulfilled by counsel paid by the defendant are rather basic – counsel must be a professor of law or a member of the bar in good standing and with a clean record; no specific experience is required.151 The requirements are significantly higher for counsel appointed to indigent defendants. Such counsel must have significant competence as shown by seven years’ experience in criminal trials.152 A more significant restriction concerns languages: counsel must be fluent in one of the working languages, that is English or French.153 This posed a problem in the case of the ICTY, where several defendants wished to be assigned counsel who spoke neither language, but who spoke the defendants’ mother tongue, referred to at the ICTY as Bosnian/Croat/Serb or B/C/S. An exception to the language requirement was introduced for such cases, allowing the assignment of B/C/S speaking counsel ‘where the interests of justice so demand’.154 The Registy, however, soon began interpreting the ‘interests of justice’ requirement quite strictly – some B/C/S speaking counsel were refused for reasons not applicable to their English or French speaking colleagues, such as their activities in former judicial and/or political positions.155 The Registry also required that at least one member of the defence team speak one of the working languages; the amended Directive on Assignment of Counsel now foresees that those who speak only B/C/S may only be appointed as co-counsel.156 While there was no shortage of counsel speaking the language of the defendants at the ICTR, language questions still led to some problems. As French is both a working language of the court and many defendants’ mother tongue, French and French speaking Canadian lawyers were soon representing many defendants before the Tribunal. However, the Trial Chamber in Nyiramasuhuko had mandated that in assigning counsel, the Registrar should consider the geographical distribution of counsel.157 Accordingly, the Registrar imposed a moratorium on 149   Prosecutor v Kambanda (Judgment) ICTR-97-23, Appeals Chamber (19 October 2000), para 33; Prosecutor v Akayesu (Judgment) ICTR96-4, Appeals Chamber (1 June 2001), para 61. 150   Prosecutor v Ntakirutimina (Decision on the Motions of the Accused for Replacement of Assigned Counsel) ICTR-96-10&17, Trial Chamber (11 June 1997), 5. 151   r 44(A) RPE-ICTY, r 44(A) RPE-ICTR. 152   r 45 RPE-ICTY, Art 14(A) ICTY Directive, r 45(A) RPE-ICTY, Art 13 ICTR Directive. 153   r 44(A)(ii), 45(B)(i) RPE-ICTY, Art 14(A)(ii) ICTY Directive. For the ICTR, this only applies to counsel for indigent defendants: r 45(A) RPE-ICTR, Art 13(ii) ICTR Directive. 154   r 44(B) RPE-ICTY as amended on 4 August 2004. 155   This practice was in general upheld by the President: Prosecutor v Šljivancˇanin (Decision on Assignment of Defence Counsel) IT-95-13/1, President (13 August 2003), para 23. 156   eg Prosecutor v Staniši´c and Simatovi´c (Decision) IT-03-69, Registrar (18 July 2003); Prosecutor v Radi´c (Decision) IT-95-13/1, Registrar (15 July 2003); Art 14 (C) ICTY Directive, on which see Prosecutor v Rasim Deli´c (Decision on Request for Review) IT-04-83, 8 June 2005, President, paras 10–13. 157   Butare (Decision on the Motion on the Decision on a Request for Assignment of Counsel) ICTR98-42, Trial Chamber (13 March 1998).

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Position vis-à-vis Counsel assignment of French and Canadian lawyers.158 This moratorium, which led to widespread protest among defendants,159 did not last long, however. In Akayesu, the Appeals Chamber found that the Registrar could not refuse to assign the defendant’s lawyer of choice simply because of nationality.160 The Registrar lifted the ban on French and Canadian lawyers,161 but the requirement of ‘geographical distribution’ was never formally abandoned. Counsel may generally only represent one defendant at a time before each Tribunal.162 Family members and close friends may not be assigned as counsel to indigent defendants.163 Counsel who have been found guilty of contempt or misconduct before the Tribunals may be excluded from the list of counsel eligible to represent defendants.164 (c)  The Relationship between Defendant and Counsel Under the Codes of Conduct, counsel are quite independent in respect of trial strategy, etc: at the ICTY, counsel must ‘abide by the client’s decisions concerning the objectives of representation’, but as far as the means of representation (trial strategy) are concerned, she only has to ‘consult with the client . . ., but is not bound by the client’s decision’.165 The Code of Conduct at the ICTR lays down a similar rule, but adds that counsel only has to abide by the decision on objectives of representation ‘if not inconsistent with Counsel’s ethical duties’.166 In Ntahobali, the Trial Chamber clarified that ‘in the exercise of his professional judgement, Counsel is independent of the Accused, even if Counsel is expected to maintain a proper Counsel-Client relationship’.167 Refusal by the defendant to provide instructions to her counsel,168 or instructions not to represent her,169 is not a reason for counsel to withdraw from the case; rather counsel remains under an obligation to represent the defendant to the best of her abilities.   See ICTR, Statement of the Registrar on the Assignment of Counsel, 27 October 1999.   See Wladimiroff (1999). 160   Prosecutor v Akayesu (Decision Relating to the Assignment of Counsel) ICTR-96-4, Appeals Chamber (27 July 1999). 161   ICTR, Registrar, Statement of the Registrar on the Assignment of Counsel, 27 October 1999. 162   Art 16(G) ICTY Directive, Art 15(A) ICTR Directive. 163   Art 16(E) ICTY Directive. 164   See Art 47(C) CoC-ICTY. 165   Art 8(2) CoC-ICTY. In addition, counsel may ‘seek or accept only those instructions which emanate from the client and which are not given as the result of an inducement from any person, organisation or State’ – Art 8(3) CoC-ICTY. 166   Art 4(2) CoC-ICTR. 167   Butare (Decision on Ntahobali’s Motion for Withdrawal of Counsel) ICTR-98-42, Trial Chamber (22 June 2001), para 22. 168   Prosecutor v Slobodan Miloševi´c, (Decision Affirming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw) IT-02-54, President (7 February 2005); Prosecutor v Slobodan Miloševi´c, (Decision on Assigned Counsel’s Motion for Withdrawal) IT-02-54, Trial Chamber (7 December 2004); Military I (Decision on Maitre Paul Skolnik’s Application for Reconsideration of the Chamber’s Decision to Instruct the Registrar to Assign Him as Lead Counsel for Gratien Kabiligi) ICTR-98-41, Trial Chamber (24 March 2004), para 30. 169   Prosecutor v Barayagwiza (Decision on Defence Counsel Motion to Withdraw) ICTR-97-19, Trial Chamber (2 November 2000), paras 20–27. 158 159

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The Position of the Defendant in the Trial Where a defendant is represented, counsel will generally conduct the defence in its entirety, with very little participation by the defendant. This is shown quite clearly by a decision in Prlic´ in which even the defendant’s request to be allowed to use a laptop and sit next to his counsel during proceedings was denied.170 There are some exceptions to the general rule, but they are of little relevance. In the Prlic´ case, the Chamber first allowed a co-defendant to conduct part of the examination of witnesses himself, but later restricted this right to exceptional circumstances where the testimony related to events in which the defendant had personally participated or subjects in which he had specific expertise.171 The Appeals Chamber later slightly broadened this participation right.172 As noted above, defendants assigned counsel against their will were also sometimes allowed a somewhat more active role.173 The legal texts do not generally grant the defendant explicit participation rights to be exercised only in person, with the exception of the right to make statements.174

2.  The International Criminal Court Article 67(1)(d) RSt grants the defendant the right ‘to conduct the defence in person or through legal assistance of the defendant’s choosing’ – a wording very similar to that of the ICTY and ICTR Statutes. Also similarly to the Tribunals, the RPE-ICC do not contain a provision on assignment of counsel against the defendant’s wishes – the only provision on self-representation is Rule 21(4) RPE-ICC, according to which ‘a person choosing to represent himself or herself shall so notify the Registry in writing at the first opportunity’. Thus, what limitations there will be to the right to self-representation in cases before the ICC depends on the future jurisprudence of the Court. So far, no defendant has indicated a wish to self-represent. Contrary to the ad hoc Tribunals, the ICC legal texts seem to grant an absolute right to choose counsel, provided counsel fulfills certain conditions, even where the defendant is indigent. According to Rule 21(2) RPE-ICC, the defendant may ‘freely choose his or her counsel from [the list of counsel] or other counsel who meets the required criteria and is willing to be included in the list’. Similarly, Regulation 75 on the procedure for choice of counsel states that even where the counsel chosen is not included in the list of counsel, the Registrar’s task is limited 170   Prosecutor v Prli´c et al (Decision on the Oral Request of the Accused Jadranko Prlić for Authorisation to Use a Laptop Computer at Hearings or to Be Seated next to His Counsel) IT-04-74, Trial Chamber (29 June 2006). 171   Prosecutor v Prli´c et al (Decision on the Mode of Interrogating Witnesses) IT-04-74, Trial Chamber (10 May 2007), paras 8–12. 172   Prosecutor v Prli´c et al (Decision on Slobodan Praljak’s Appeal of the Trial Chamber’s Decision on the Direct Examination of Witnesses dated 26 June 2008) IT-04-74, Appeals Chamber (11 September 2008). 173   See above n 133. 174   On which see below 141–45.

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Position vis-à-vis Counsel to ascertaining whether she fulfills the requirements for inclusion in the list. The only situation in which the Registrar must only ‘tak[e] into account the wishes of the person’, but is not strictly bound by them, is when she appoints duty counsel to represent a defendant who does not yet have permanent counsel.175 Counsel must have ‘established competence in international or criminal law and procedure’ and 10 years’ experience in criminal proceedings, must be fluent in one of the working languages of the Court and have a clean record.176 Counsel found to have violated the Code of Conduct or to have committed misconduct before the Court may be suspended or removed from the list of counsel and thus denied the right of audience.177 The ICC contains an Office of Public Counsel for the Defence, which however does not represent defendants before the Court, but rather represents the right of the defence in the investigation stage and within the institution and in some cases provides assistance to defence teams and defendants.178 As concerns the internal relationship, the ICC Code of Conduct lays down similar rules as at the ad hoc Tribunals: counsel must ‘Abide by the client’s decisions concerning the objectives of his or her representation’, but only ‘consult the client on the means by which the objectives of his or her representation are to be pursued’ (emphasis added).179 Finally, as to the external relationship, Regulation 74(2) states that a defendant represented by counsel shall generally ‘act before the Court through his or her counsel’, exceptions to be authorised by the Chamber. The only remaining participation right explicitly mentioned is the right to make statements under Article 67(1)(h) RSt. Hybrid representation is thus not generally foreseen. To what extent the Chambers will nonetheless exceptionally authorise more active participation by defendants remains to be seen; so far there do not seem to have been any such requests.

3.  The Special Court for Sierra Leone Article 17(4)(d) StSCSL on self-representation is worded very similarly to provisions at other tribunals: the defendant has the right ‘to defend himself or herself in person or through legal assistance of his or her own choosing’. Similarly to the case of the ICC, the only statement in the RPE-SCSL is that that if a defendant ‘elects to conduct his own defence, he shall so notify the Registrar in writing at the first opportunity’.180 While acknowledging that the Statute thus generally grants a right to self-representation, the Special Court has found a number of limitations   Reg 73.   r 22(1) RPE-ICC and Reg 67(1)–(2). 177   Reg 71. 178   Registry of the ICC (2010), 69–70. 179   Art 14(2) CoC-ICC. 180   r 45bis(B) RPE-SCSL. 175 176

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The Position of the Defendant in the Trial to this right, to such an extent that all requests for self-representation before the Court have been denied. The first decision in this respect came in the case of Sam Hinga Norman. Norman had been represented by counsel since his initial appearance, but stated on the first day of trial that he wished to represent himself. The Court found that the right to self-representation was not absolute181 and denied Norman’s request. Among the reasons for this denial were that the request was made only on the first trial day and that there was thus a danger of delays in the proceedings182 and that Norman was tried together with two co-defendants who might be negatively affected (although how they would be affected was not stated).183 The Chamber appointed standby counsel to assist the defendant in his defence.184 This ruling was sharply criticised as ‘effectively reduc[ing] the right of self-representation to an ineffective platitude’ and showing that the judges ‘simply found the whole business of self-representation to be a big inconvenience’.185 When Norman later declined to appear for trial, the Court formally revoked the right to self-representation and changed the status of counsel from standby to full (court-appointed) counsel.186 The Court also had to decide on the issue in the case of Augustine Gbao, who, on the second day of his trial, stated that he did not recognise the Court and wished to withdraw his counsel.187 While this in effect amounted to an evocation of the right to self-representation,188 the Court treated it as a simple request for withdrawal of counsel which it denied, finding that exceptional circumstances did not exist.189 Before the Appeals Chamber, both defence and prosecution presented the case as one concerning, inter alia, the right of self-representation.190 The Appeals Chamber, however, simply referred to the fact that Gbao did not recognise the Tribunal and had not appeared before it and dismissed the appeal as ‘merely an academic exercise’.191 Finally, Charles Taylor at one point early in his trial announced that he wished to represent himself; but this request was denied since he also refused to appear 181   Prosecutor v Norman (Decision on the Application of Samuel Hinga Norman for SelfRepresentation Under Art 17(4)(d) of the Statute of the Special Court for Sierra Leone) SCSL-04-8, Trial Chamber (8 June 2004), paras 8–9. 182   ibid, paras 15–20. 183   ibid, paras 13–14, 19. 184   Prosecutor v Norman (Consequential Order on Assignment and Role of Standby Counsel) SCSL04-8, Trial Chamber (14 June 2004). 185   Schabas (2006), 531. 186   CDF (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) SCSL-04-14, Trial Chamber (4 October 2004), para 3. 187   RUF (Decision on Application to Withdraw Counsel) SCSL-04-15, Trial Chamber (6 July 2004), para 7. 188   See RUF (Transcript of 6 July 2004) SCSL-04-15, Trial Chamber, 35–36. 189   RUF (Decision on Application to Withdraw Counsel) SCSL-04-15, Trial Chamber (6 July 2004), paras 11–17. 190   RUF (Decision on Appeal Against Decision on Withdrawal of Counsel), SCSL-04-15, Appeals Chamber (23 November 2004), paras 30–32 (Defence), 33–34 (Prosecution). 191   ibid, para 61.

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Position vis-à-vis Counsel before the court at the time.192 Taylor later stated that he did indeed wish to be represented by counsel.193 Concerning choice of counsel, the only relevant rule is that on legal aid counsel as all SCSL defendants are at least partially indigent. Initially the plan was for all legal aid defendants to be represented directly by the Defence Office194 – this would of course have significantly diminished the choice of counsel. However, this plan was scrapped due to a potential for conflicts of interest.195 Instead, all defendants before the Court are now represented by individual defence counsel paid for by the Defence Office under a legal services contract.196 The choice of counsel rests with the Principal Defender, ‘after consultation’ with the defendant.197 In other words, indigent defendants do not have an absolute right to choose counsel, but rather a right that those appointing counsel consult them and take their wishes into account.198 However, the Registry or Defence Office may only terminate or refuse representation if there is a valid reason for doing so.199 Counsel for indigent defendants must be admitted to the bar, have ‘reasonable experience’ in at least one of the areas of law applied by the SCSL and seven years’ experience ‘as counsel’, and be fluent in English. As usual, they must have a clean record.200 They may generally only represent one SCSL defendant at the same time.201 Further limitations arise through the legal contract specifications – the composition of the defence team must be approved by the Principal Defender, who may require that the team have certain experience.202 In practice, it has required that   Prosecutor v Taylor (Transcript of 25 June 2007) SCSL-03-01, Trial Chamber, 40.   Prosecutor v Taylor (Decision Assigning New Counsel to Charles Ghankay Taylor) SCSL-03-01, Principal Defender, (17 July 2007), 2. 194   Jones et al (2004), 213. 195   ibid. 196   See HRW, ‘Bringing Justice: The Special Court for Sierra Leone – Accomplishments, Shortcomings and Needed Support’, September 2004, 22. This is also true for Charles Taylor, who has been rumoured to have substantial financial resources: Prosecutor v Taylor (Decision to Provisionally Assign Counsel to Charles Ghankay Taylor) SCSL-03-01, Principal Defender (5 April 2006). Defence Office personnel did act as duty counsel for most defendants during the early phases of their trials, and they continued to work besides individual counsel once those had been appointed, supporting and sometimes covering for individual counsel – see UC Berkeley War Crimes Studies Center, Interim Report on the Special Court for Sierra Leone, April 2005, 16 and fnn 78–79. 197   Art 9(A) (i) and (ii) SCSL Directive. 198   AFRC (Decision on Brima-Kamara Defence Appeal Motion Against Trial Chamber II Majority Decision on Extremely Urgent Confidential Joint Motion for the Re-appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara) SCSL-04-16, Appeals Chamber (8 December 2005), paras 89–90; see also the Separate and Concurring Opinion of Justice Robertson paras 55 et seq. 199   AFRC (Brima – Decision on Applicant’s Motion Against Denial by the Acting Principal Defender to Enter a Legal Service Contract for the Assignment of Counsel) SCSL-04-16, Trial Chamber (6 May 2004), paras 121 et seq. 200   r 45(C) RPE-SCSL and Art 13(B) SCSL Directive. The requirements for non-legal aid counsel are somewhat lower – see r 44(A) RPE-SCSL. 201   Art 14(C) SCSL Directive. This does not apply if the other defendant has not yet had a first appearance –AFRC (Brima – Decision on Applicant’s Motion Against Denial by the Acting Principal Defender to Enter a Legal Service Contract for the Assignment of Counsel), SCSL-04-16, Trial Chamber (6 May 2004), paras 103–04. 202   Art 16(F) SCSL Directive. 192 193

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The Position of the Defendant in the Trial the combined team members have experience in criminal procedure, international criminal law and Sierra Leonean criminal law.203 Apart from this requirement, it seems that the Defence Office is somewhat liberal in practice – Sam Hinga Norman was represented by a counsel who had been a political ally of his during the conflict in Sierra Leone.204 As to the internal relationship, the Code of Professional Conduct grants counsel at the SCSL more independence in terms of trial strategy than do similar rules at other international courts. Counsel must consult with the client regarding the objectives of representation, but may even override the client’s decision where it is ‘inconsistent with . . . counsel’s best professional judgment’. Regarding the means of representation, counsel only has to consult with the client.205 Where defendants refused to appear before the court and to instruct their counsel,206 the status of counsel was changed to that of court-appointed counsel. The court has generally stated that such counsel ‘are subjected to the same obligations [as other counsel] to act both in the interests of the Accused and in the overall interests of justice’.207 However, it has also laid down a list of specific duties of court appointed counsel,208 and the CoC subjects such counsel to increased duties vis-à-vis the court, but grants them more freedom vis-à-vis the client. Court-appointed counsel must abide by any orders of the court concerning the scope of representation and shall ‘discuss with his client the conduct of the case, endeavor to obtain his instructions thereon and take account of views expressed by the client, while retaining the right to determine what course to follow’.209 The Court has been reluctant to change the status of court-appointed counsel back to that of assigned counsel once the defendants have again appeared in court.210 Where counsel were unavailable for short periods, such as after Charles Taylor’s head counsel had walked out of the courtroom in protest over a decision to treat 203   See UC Berkeley War Crimes Studies Center, Interim Report on the Special Court for Sierra Leone, April 2005, 16 and fnn 81–82; Legal Services Contract, Contract Specifications, as quoted in: HRW, ‘Justice in Motion – The Trial Phase of the Special Court for Sierra Leone’, November 2005, 17. 204   See UC Berkeley War Crimes Studies Center, Second Interim Report on the Special Court for Sierra Leone, ‘Bringing Justice and Ensuring Lasting Peace – Some Reflections on the Trial Phase at the Special Court for Sierra Leone’, April 2006, 12. 205   Art 14(A) CoC-SCSL. 206   CDF (Ruling on the Issue of the Non-Appearance of the First Accused Samuel Hinga Norman, the Second Accused Moinina Fofana, and the Third Accused, Allieu Kondewa at the Trial Proceedings) SCSL-04-14, Trial Chamber (1 October 2004), 7–8. RUF (Decision on Application by Counsel for the Third Accused to Withdraw from the Case) SCSL-04-15, Trial Chamber (5 April 2006). 207   CDF (Consequential Order on the Withdrawal of Mr Quincy Whitaker as Court Appointed Counsel for the First Accused) SCSL-04-14, Trial Chamber (19 November 2004); RUF (Decision on Application by Counsel for the Third Accused to Withdraw from the Case) SCSL-04-15, Trial Chamber (5 April 2006), 3. 208   CDF (Consequential Order on the Withdrawal of Mr Quincy Whitaker as Court Appointed Counsel for the First Accused) SCSL-04-14, Trial Chamber (19 November 2004); RUF (Decision on Application by Counsel for the Third Accused to Withdraw from the Case) SCSL-04-14, Trial Chamber (5 April 2006), 4. 209   Art 14(B) CoC-SCSL. 210   CDF (Decision on Fofana Motion for Adjustment of Status of Counsel) SCSL-04-14, Trial Chamber (9 December 2005).

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Position vis-à-vis Counsel the final trial brief as filed late, Chambers first went on without counsel present, but then ordered the Office of the Principal Defender to take over the defence as duty counsel in the interim.211 As to the external relationship, a defendant represented by counsel generally retains few participation rights. She may make the opening statement under Rule 84 herself instead of having counsel make this statement, and she may sometimes address the court given explicit leave to do so,212 but in all other regards she acts through her counsel. However, hybrid representation seems to be possible where standby counsel has been appointed to a defendant wishing to represent himself. In the CDF case, the Chamber originally asked Sam Hinga Norman to choose whether he or his counsel would conduct the cross-examination of prosecution witnesses, but later also allowed cross-examination conducted by both defendant and counsel.213

4.  The Special Tribunal for Lebanon Article 16(4)(d) StSTL, in wording very similar to most of the provisions dealt with above, grants the defendant the right ‘to defend himself or herself in person or through legal assistance of his or her own choosing’. However, in setting up the RPE, the judges followed a rather restrictive course ‘in light of recent unfortunate experiences at the ICTY’ and set up a rule allowing the assignment of counsel against the wishes of the defendant ‘where this is deemed necessary in the interests of justice and to ensure a fair and expeditious trial’.214 It is thus open to serious doubt whether defendants will be granted a right to self-representation before the STL. The right to choice of counsel is granted without any restrictions in case of privately retained counsel.215 As to indigent defendants, given that the STL comprises a specialised Defence Office, the question arose whether indigent defendants might perhaps not be granted a choice of independent counsel at all, but might rather be defended by personnel from the Office. This option seems to have been contemplated during the drafting of the statute, as indicated by Article 13(2) StSTL according to which the Office ‘may . . . include one or more public defenders’. However, the RPE and the Directive on Assignment of Counsel clearly do not foresee members of the Office defending in court, but rather protecting the rights of the defence in a more general sense and providing legal advice and other assistance to defence teams.216 Indigent defendants will thus be represented by outside 211   Prosecutor v Taylor (Transcript of 8 February 2011) SCSL-03-01, Trial Chamber, 49145, 49187; (Transcript of 9 February 2011). 212   On opening statements and the few other cases in which defendants were exceptionally allowed to make statements in court, see below 146–48. 213   CDF (Transcript of 15 June 2004) SCSL-04-14, Trial Chamber, 55 et seq; (Transcript of 16 June 2004), 23 et seq; (Transcript of 17 June 2004), 16 et seq, as well as the following trial days. 214   r 59(F) RPE-STL; Memorandum RPE STL, para 32–33. 215   Art 6(3) STL Directive. 216   r 57(D)–(F) RPE-STL; Art 30, 31 STL Directive. See also the President’s Practice Direction on the Role of the Head of the Defence Office in Proceedings Before the Tribunal, 30 March 2011.

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The Position of the Defendant in the Trial counsel and may freely choose from the list of counsel; their right to choice of counsel is restricted only inasmuch as the makeup of the defence team must ‘ensure the combined language abilities required for fair and expeditious proceedings’217 – whether this in fact leads to a restriction that goes beyond the general language requirements for counsel remains to be seen. Counsel must fulfil similar requirements concerning bar membership, lack of disciplinary record and conflict of interest, etc and, in the case of counsel assigned to indigent defendants, experience, as at the other international courts considered above.218 Counsel must be fluent in English or French,219 which might provide a barrier to appointment for some counsel from the region despite the fact that French and English are the two most widely used foreign languages in the Lebanon. Assigned counsel may be required to undergo continuing professional training and their conduct of the case is subject to quite extensive quality control measures by the Defence Office, which may withhold fees, institute disciplinary measures or even request the removal of counsel where defence conduct is deemed substandard.220 Where the defendant against whom proceedings are conducted in her presence or in absentia does not exercise her right to choice of counsel, that choice is exercised by the pre-trial judge.221 In the first case before the Tribunal, duty counsel were chosen by the head of the Defence Office to represent the interests of the defendants for the proceedings concerning whether the trial should be conducted in absentia.222 As to the internal relationship between defendant and counsel, the Code of Professional Conduct only notes generally that counsel ‘shall pursue resolutely, diligently, expeditiously, and to the best of his or her abilities the interests of the represented party, within the boundaries of the applicable law [etc]’, but does not specifically lay down to what extent counsel is bound by the client’s instructions as to trial strategy and tactics.223 One would thus assume that a roughly similar rule to that in effect at the other courts and tribunals – counsel is bound by her client’s instructions as to the objectives of representation, but more or less free in determining the means to achieve those objectives – is also in place at the STL. As to the external relationship, the judges have, in drafting the Rules of Procecure and Evidence, elected to grant the defendant a role more comparable to that of defendants in continental law proceedings.224 Thus the defendant is allowed to ‘make statements to the Trial Chamber at any stage of the proceedings, provided   r 59(D) RPE-STL.   rr 58(A), 59(B) RPE-STL; Art 18 STL Directive. 219   rr 58(A)(ii), 59(B)(i) RPE-STL. 220   r 57(F), (G), 58(C) RPE-STL; Art 27 STL Directive. 221   Arts 24, 25 STL Directive. 222   Prosecutor v Ayyash et al (Nomination des Conseils de Permanence en Vertu de l’Article 57(D)(ii) et (iii) du Règlement de Procédure et de Preuve) STL-11-01, Head of the Defence Office, 25 October 2011. 223   STL, Code of Professional Conduct for Counsel Appearing Before the Tribunal, No 2. 224   Memorandum RPE STL, para 31. 217 218

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Position vis-à-vis Counsel such statements are relevant to the case at issue’ (emphasis added).225 In light of the explanatory memorandum referring to the defendant’s role in inquisitorial proceedings, this rule may be read as going quite far beyond the right to make an unsworn statement and as rather granting a right to address the court on all questions concerning the case at hand. Whether defendants may also be allowed to participate in the questioning of witnesses will remain to be seen – the legal texts refer only to questioning by ‘the parties’ and ‘the Defence’,226 leaving open whether this may be done only by counsel or also by the defendant or both of them.

IV. Conclusions Those defendants who, like most defendants in criminal proceedings, do not wish to take a particularly active role in their defence will not find international criminal procedure much different from national procedure. They will have a certain amount of influence on who represents them before the court – an influence, in fact, which all things considered goes beyond that granted to legal aid defendants in a number of national jurisdictions. They will be able to discuss with their counsel how to conduct the defence and to lay down the general strategy, leaving the translation of this strategy into the everyday business of motions, examination of witnesses, etc to counsel. The situation is different, however, for those defendants who wish to take a more active role in their own defence. These defendants will find that their right to self-representation is subject to quite a number of restrictions, which will in most cases exclude them from taking the most active role possible in their defence.227 In this aspect, international criminal procedure is rather closer to the civil law model of ‘mandatory defence’228 – and this despite the fact that all international criminal procedure generally follows the adversarial system in dividing the trial into a prosecution case and a defence case to be presented first of all by the parties. This means that the influence of the defence on the conduct of the trial as such, and thus the importance of the defendant’s influence on the conduct of the defence, increases significantly.229   r 144(A) RPE-STL.   r 145 RPE-STL; Art 20(2) StSTL. 227   Jørgensen (2006), 75. For a criticism of this inversion of rule and exception, see Damaška (2005), 5–6. 228   For contrast, see the case of Zacarias Moussaoui, who was on trial in relation to the 11 September 2001 attacks and charged, inter alia, with conspiracy to commit acts of terrorism transcending national boundaries, conspiracy to use weapons of mass destruction and conspiracy to murder US employees. Despite the seriousness of those charges, which rendered his case ‘death-eligible’, indications of mental instability and instances of what might be termed disruptive behaviour, Moussaoui defended himself throughout his trial, with the aid of attorneys only for certain technical issues. See, eg Dahlia Lithwick, ‘Terrorism on Trial – Who Are You Calling Crazy?’ Slate, 14 June 2002; ‘Terrorism on Trial – Moussaoui Flies Nolo’, Slate, 25 June 2002; ‘Terrorism on Trial – Zacarias Moussaoui’s Homer Simpson Defence’, Slate, 18 July 2002. 229   Damaška (2005), 5. 225 226

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The Position of the Defendant in the Trial On the other hand, defendants will also find that they will not be able to play much of an active role besides their counsel either. This is most clearly shown by the decision in Prlic´ et al, where even a request of the defendant to sit next to his counsel – that is not to actually take part in conducting the defence, but simply to be able to discuss certain decisions with the person conducting the defence during the proceedings – was denied. In this aspect, then, international criminal procedure does not follow the civil law model which allows some division of labour between defendant and counsel, but rather the common law rule of ‘no hybrid representation’. For such defendants, then, the claim sometimes leveled against international criminal procedure that it combines ‘the worst of both worlds’ seems to be true as they will neither be allowed to take over their defence as they would under the common law nor are they enabled to take an active part beside their assigned counsel as they would in continental law systems. (The exception to the rule is the STL, which to a great extent follows the civil law by prohibiting selfrepresentation, but allowing the defendant to play a more active role beside her counsel). Stated in this way, however, the claim may be attacked as being somewhat simplistic. After all, some defendants were in fact able to conduct large parts of the trials on their own, and those who did not represent themselves were sometimes allowed a more active role in their trial as well. The latter point can be dismissed rather quickly – any active participation was always granted under the discretion of the Chamber, to be withdrawn again, if need be, for reasons such as saving time.230 However, the point concerning the right to self-representation cannot be dismissed as easily – it is true, after all, that particularly ‘problem defendants’ such as Miloševic´ and Šešelj were able to take the lead in their defence. These cases are considered in more detail in chapter 6.

B.  Position vis-à-vis the Court Two main questions arise as to the position of the defendant vis-à-vis the Court. The first question is to what extent defendants are under a duty to cooperate with these organs. This is very much a question of degree as criminal trials are almost always conducted in a way that is at the same time fundamentally antagonistic when it comes to the larger picture – after all, the defendant is at danger of losing her liberty and being branded a criminal and is therefore granted certain rights to refuse cooperation – and cooperative and respectful when it comes to the details – one discloses one’s evidence to the other side as required, states one’s case in terms mandated by the rules of criminal procedure, and refers to the other participants as ‘learned friends’ and ‘Your Honours’.   See the Prli´c case discussed above 82.

230

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Position vis-à-vis the Court Stated in more legal terms, none of the legal systems under consideration contains a general duty of cooperation, which would be contrary to the privilege against self-incrimination and the right to put up a defence. However, neither does any of them contain an absolute defence privilege which would allow or pardon any act of the defendant as long as it is carried out in conducting the defence in a criminal trial. Rather, all systems grant the defendant certain rights and privileges, but also place certain restrictions on what she may do in conducting her defence. Given this basic dichotomy, a line between allowed and prohibited types of uncooperative behaviour must be drawn with respect to every aspect of court proceedings from disclosure obligations to courtroom behaviour and tone. Defence behaviour, where it does not in exceptional cases consist in full cooperation with the court and prosecution (‘throwing oneself at the mercy of the court’), inhabits a wide continuum. Defendants may force a witness to give false evidence by threatening her loved ones, defendants may respectfully put forward legal arguments and ask the court for a certain decision, and defendants may do a lot that fits somewhere between these extremes. What is interesting is where legal systems draw the line between behaviour that is merely uncooperative (which is, after all, the point of putting up a defence at all) and behaviour that violates some kind of duty to the court or legal system. As the question of cooperation versus conflict concerns all aspects of the proceedings, it is important to carefully delimit the topic for the purposes of this book. Focusing on the position of the defendant in the trial, I will not deal with all questions of required cooperation, but instead limit this part of the chapter to two aspects closely related to the position of the defendant as such. Namely this is to what extent what could be called ‘particularly uncooperative behaviour’ of the defendant at trial may either be sanctioned as such or considered an aggravating factor in sentencing. I will not deal with the role of defence counsel. Counsel speak on behalf of the defendants in the vast majority of international trials and rules limiting their ability to bring forward a case will thus have repercussions on the position of the defendant,231 however, the focus here is on the role of the defendant and a detailed consideration of the position of counsel as to cooperation would go well beyond the scope of this book.232 231   Some of the rules applying to counsel have also been applied to defendants representing themselves: Prosecutor v Šešelj (Decision on Motion for Disqualification) IT-03-67, Bureau (10 June 2003), para 5. 232   On a basic level, the role of defence counsel is roughly similar in all jurisdictions considered here. Counsel are first and foremost bound to represent the interests of their client, but also have a duty to the court and/or the legal system as ‘officers of the court’ or ‘independent organs of criminal justice’. Given this basic similarity, a comparison aiming to add anything worthwhile would have to dig deep into the details of the respective legal system, dealing with substantive criminal law including crimes such as being an accessory after the fact or money laundering, with rules on criminal and civil contempt of court, with provisions on disciplinary proceedings before the court or before the bar, with procedural sanctions such as refusal to hear certain arguments, etc. Such considerations are dealt with comprehensively in Temminck Tuinstra (2009).

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The Position of the Defendant in the Trial I will also not deal with a number of restrictions on the behaviour of the defence more generally. This concerns, first of all, aspects relating to the law of evidence, such as limits on the ability to put questions to witnesses, etc. While such provisions do limit the ability of the defendant to introduce into the courtroom certain topics, they do not concern her position stricto sensu. Moreover, a detailed consideration of the laws of evidence in the various jurisdictions is, again, beyond the scope of this book.233 Second, I will not deal with non-disclosure obligations,234 which mostly concern the question of publicity of proceedings and the position of the witness, rather than that of the defendant, in the trial. Neither will I consider rules requiring disclosure of documents or elements of the trial strategy to the Chamber or the prosecution. Such rules do limit the way in which the defence may behave, but they are of a rather technical nature and do not concern the content of the defence. The same is true of general temporal limitations to the defence case, such as have been applied in some of the later trials at the ad hoc Tribunals in the context of the completion strategies. Third, I will not deal with cooperation of suspects or indictees before the beginning of the trial – the fact that such cooperation usually takes place in secrecy means that it does not in itself impact the role of the defendant in the trial itself; moreover such secrecy renders detailed research into this question almost impossible.235 Finally, I will not deal with the policing of courtroom tone, a topic which yields a number of interesting anecdotes,236 but which seems to concern the personalities of those involved rather than the applicable legal rules. Having dealt with the extent to which defendants are required to cooperate, the second main question I will deal with is the extent to which they are rewarded for cooperative behaviour that is not required of them. Since, as shown above, the law only allows forcing the defendant to cooperate up to a certain point, courts and prosecutors may wish to offer certain rewards in exchange for more active cooperation. 233   The evidence regime in international criminal procedure is, in fact, the subject of a dissertation written by Mark Klamberg at Stockholm University. 234   eg r 53 RPE-ICTY. 235   The proceedings in the RUF case before the SCSL allow a rare insight into this question: in order to be able to decide on the admissibility of such statements, the Chamber ordered voir dire proceedings in the course of which several investigators gave evidence. A report by international trial monitors shows investigators using a variety of questionable methods to induce suspects to make statements (see van Tuyl (2008)). 236   Two examples: some SCSL judges placed rather great importance on being addressed as ‘Your Honour(s)’ (CDF (Transcript of 27 January 2006) SCSL-04-14,  Trial Chamber, 4–5). At the ICTY, Milošević raised some commentators’ ire by addressing the Presiding Judge simply as ‘Mr May’ – see, eg Marlise Simmons, ‘Judge’s Illness a New Setback to Milošević’s War Crimes Trial’, New York Times, 22 February 2004. Others note that  the judge in turn referred to the defendant, after all the former President of Yugoslavia, as ‘Mr Milošević’ while at the same time explaining at length why a witness who was a former Ambassador of his country should still be addressed as ‘Mr Ambassador’ (see Mandel (2004), 170).

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Position vis-à-vis the Court The cooperation asked of the defendant usually consists in not exercising her defence rights to their full extent. She may agree to certain stipulated facts, she may forego the cross-examination of a witness, or she may decide not to pursue legal remedies against court decisions. The most extreme form of cooperation is exhibited where the defendant effectively gives up the bulk of her defence rights by pleading guilty, confessing or admitting her guilt, respectively. Finally, the defendant may also cooperate in ways not related directly to her trial, most notably by agreeing to testify against other defendants. Rewards for cooperation may also be quite manifold. In exchange for a guilty plea, con­fession, or admission of guilt, the prosecution and/or the court may agree to drop certain charges or to ask for or impose a lenient sentence (plea bargaining). Where the cooperation concerns other cases, they may even agree not to prosecute or punish the defendant at all or to grant her additional benefits (crown witnesses). Beyond these instruments, the courts may also reward all forms of cooperation by taking them into account in decisions on pre-trial release, by considering them as a mitigating factor in sentencing, by making allowances concerning where or under which conditions the defendant is to serve her sentence, by granting protection to third persons such as the defendant’s family, etc.237

I.  National Criminal Procedures 1. Germany (a)  Sanctions for Non-Cooperation The defendant’s conduct at trial may only be met with non-penal sanctions of limited scope. First, as noted above, the defendant may be removed from the courtroom for disruptive behaviour. She may also be kept in detention for the duration of the hearing, but only up to a maximum of 24 hours.238 Second, the defendant – just like other persons present in the courtroom – may be fined or sentenced to up to one week’s detention as an administrative sanction for ‘improper conduct’.239 Such conduct may include verbal statements containing a significant affront; merely harsh statements, particularly where uttered in a state of heightened emotion, do not constitute improper conduct.240 A variety of other conduct may also be considered improper where it is found to be ‘intended as a provocation’ – sanctions have been imposed (mostly on witnesses, although 237   For reasons already noted above, I will not deal with possible rewards for cooperation before the indictment, ie the question whether suspects may be granted full immunity from prosecution in exchange for testifying against other defendants. I will, however, deal with the question whether an indictment which has been brought may be withdrawn in exchange for extensive cooperation. 238   § 177 GVG. 239   § 178 GVG. 240   See BVerfG, NJW 2007, 2839, 2840; KG Berlin, StraFo 2008, 33, 34; OLG Düsseldorf, NJW 1986, 2516; OLG Hamm, NStZ-RR 2001, 116, 117.

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The Position of the Defendant in the Trial the same rules could also apply to the defendant) for appearing in court drunk,241 refusing to stand up when the judges enter the courtroom,242 slamming the door upon leaving the courtroom,243 refusing to take off a hat or cap244 or sarcastically applauding the judgment.245 Before a sanction is imposed, the defendant must be given a chance to explain her behaviour.246 There is no criminal liability if the defendant lies to the court as the rules on false testimony only apply to witnesses and expert witnesses and not to the defendant.247 Attempts to evade the criminal justice process may not be penalised either as neither flight from arrest nor flight from detention are a crime under German criminal law.248 The defendant’s behaviour at trial may only be taken into account negatively in sentencing where it has some connection to the crime of which she is accused249 and where it oversteps the boundaries of permissible defence behaviour. Thus behaviour that may not be considered in aggravation includes refusing to admit guilt, even after conviction,250 not showing remorse251 or subjecting witnesses to interrogation, even if such interrogation is psychologically distressing.252 Neither does the defendant have a general duty to be truthful in her defence. Thus no negative consequences may follow from protesting her innocence by adapting her explanations to the changing evidence against her,253 from (falsely) implicating others254 or even for attempting to introduce manipulated evidence to show her innocence.255 The defendant may protest that witnesses are lying even when she knows that they are telling the truth and even where this results in the witness appearing in a bad light.256 Attempts at eliminating evidence may also generally not be taken into account negatively257 and neither, finally, may ‘rebellious behaviour’ in detention.258   OLG Schleswig, SchlHA 2007, 280, 281.   OLG Koblenz, NStZ 1984, 234, 235.   OLG Stuttgart, Justiz 1962, 185; OLG Zweibrücken, NJW 2005, 611–12. 244   OLG Stuttgart, Justiz 2007, 281, 282. 245   KG Berlin, Prozessrecht aktiv 2008, 200. 246   OLG Hamm, NStZ-RR 2001, 116, 117. 247   See, eg Fischer (2012), § 153, mn 9. 248   Resisting arrest is only prohibited where force is used (§ 113 StGB), and as to escape from detention, aiding such escape is a crime, but the escape itself is not (see § 120 StGB). 249   BGH, NJW 1954, 1416; BGH, NJW 1971, 1758; BGH, NStZ 1981, 257; BGH, NStZ 1985, 545. 250   BGH, NStZ 1987, 171. 251   ibid. 252   BGH, NJW 1966, 894; BGHSt 1, 342. 253   BGH, NStZ 1996, 80. 254   BGH, NStZ-RR 1999, 328–29. 255   BGH, StV 1991, 255. 256   BGH, StV 1994, 305; BGH, StV 1994, 424; BGH, NStZ 2004, 616, 617. 257   BGH, NJW 1971, 1758; BGH, NStZ 1985, 21; BGH, StV 1989, 12; BGH, StV 1990, 259. An exception was only made where the defendant also attempted to secure the proceeds of the crime (BGH, NJW 1989, 176) or where the attempts to eliminate the evidence were particularly heinous, eg where a defendant left the victim’s body on the train tracks to be run over by a train (BGH, NStZ-RR 1997, 99, 100). 258   OLG Köln, StV 1984, 75. 241 242 243

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Position vis-à-vis the Court Behaviour at trial may only be considered in aggravation where it shows the defendants to be ‘particularly hostile to the law’ and/or particularly dangerous.259 This is the case, for example, where the defendant openly enjoys the degrading examination of a witness or shows joy at hearing that a victim has attempted suicide,260 or where attacks on witnesses go beyond calling into doubt their testimony and impinge upon their personal honour.261

(b)  Rewards for Cooperation Until 2009, the text of the StPO did not foresee negotiated justice. However, such proceedings had gradually established themselves, first in the form of ‘deals’ brokered behind the scenes by presiding judges, often without involvement of the other judges and without acknowledgement in open court. After a pseudonymous article on the practice published in 1982,262 a wider debate began and more open forms of negotiated justice were gradually established. The Constitutional Court found the practice generally constitutional – without absolving courts of their duty to strive for the material truth263 – and the Federal Court of Justice laid down specific procedural requirements and material limits.264 In 2009, the StPO was reformed and the possibility of negotiated justice formally introduced, particularly in new Section 257c StPO. While there are some differences in the details between the codification and the old judge-made regime,265 the features that are of interest for this book have been retained with very few changes. Contrary to, for example, the common law systems, negotiated justice under the StPO is not an entirely different type of procedure. Rather, Section 257c StPO simply allows the courts to make certain promises to the defendant in exchange for an admission of her guilt and/or other promises regarding her behaviour at trial. The main promise that courts may make concerns the length of the sentence. In particular, the court may set a minimum and maximum length of sentence.266 This usually entails a material sentence reduction; however the resulting sentence must still be ‘appropriate to the guilt of the defendant’, that is courts may not reduce sentences at will. Under the old, judge-made procedure, it was estimated that an early admission of guilt would usually result in a sentence

  BGH, NStZ 1983, 453; BGH, NStZ 1987, 171; BGHSt 32, 165, 183.   BGH, NJW 2004, 239, 240. 261   BGH, NStZ 1995, 78. 262   Deal (1982). 263   BVerfG, NJW 1987, 2662, 2663. 264   BGHSt 43, 195, 206–07; BGHSt 50, 40, 51. 265   Among others, whereas negotiations under the old regime were between the court and the defendant, the prosecution now has an equal say – see, in particular, § 257c(3) (cl 4) StPO. 266   § 257c(3) (cl 2) StPO. 259 260

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The Position of the Defendant in the Trial reduction of about 20–30 per cent;267 similar numbers are likely under the new regime.268 The legal qualification of the charges may not be the subject of negotiation; in other words, charge bargaining is generally not allowed.269 It is, however, an open secret that this provision is occasionally breached in practice. Another aspect that may not be subject to negotiation is whether or not corrective measures such as involuntary committal to a psychiatric institution or preventive detention for mentally unstable defendants are imposed. The court may, however, promise suspension of the sentence where the length of the sentence allows this.270 In exchange for such incentives, the court will usually require the defendant to admit to the crimes she is charged with.271 The court is, however, still bound to ascertain the material truth, thus a mere ‘formal admission of guilt’ does not suffice for conviction.272 In practice, however, this rule is often honoured in the breach – particularly but not only where there is additional evidence in the case file, many courts do not require more than a formal statement that the facts charged in the indictment are true. Besides the admission, the court may also ask of the defendant other actions such as discontinuing motions on evidence; it may not, however, ask for conduct that has no sufficient connection to the crimes charged.273 No undue pressure may be put on the defendant to induce her to agree to an understanding, for example, by threatening a particularly high sentence if she does not admit her guilt.274 The court is generally bound by its promise concerning the sentence, but may depart where unforeseen issues arise during trial; where it plans to depart upward, it must warn the defendant of that possibility and the defendant’s admission of guilt becomes void.275 Negotiated justice may also take place in de novo proceedings on appeal. Typically the defendant will agree to limit her appeal to the question of the sentence in exchange for a promise that the original sentence will be reduced.276   Meyer-Goßner (2007), Introduction to § 213, mn 16.   Meyer-Goßner (2011), § 257c, mn 19, who also states (with further references) that a reduction of more than 25%, compared to the sentence the court would impose in case of a finding of guilt after a full trial, may violate the right to a fair trial as it puts undue pressure on the defendant to make an admission of guilt. 269   § 257c(2) (cl 3) StPO. 270   Meyer-Goßner (2011), § 257c, mn 12. 271   See § 257c(2) (cl 2) StPO, according to which an admission ‘should’ be part of every instance of negotiated justice – the word ‘soll’ (should) implies that negotiated justice without an admission of guilt is allowed only exceptionally where mandated by the circumstances of the individual case. 272   Meyer-Goßner (2011), § 257c, mn 16–17b. 273   Such as the payment of damages resulting from an earlier crime not subject of the present proceedings, or consent to the court conducting proceedings in a way that is contrary to binding provisions in the StPO. In general, the boundary between acceptable and unacceptable promises is far from clear – Meyer-Goßner (2011), § 257c, mn 14–15a. 274   See above n 268. 275   § 257c(4) StPO. 276   See, eg KG Berlin, NStZ-RR 2004, 175; OLG München, NJW 2006, 1985; Meyer-Goßner (2011), § 257c, mn 17b. 267 268

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Position vis-à-vis the Court Finally, negotiations may also take place between prosecution and defence already during the investigation. The prosecution may promise not to bring an indictment for certain charges in exchange for an admission concerning other crimes or in exchange for an agreement not to pursue appeals against other convictions. This form of negotiated justice comes closest to charge bargaining stricto sensu. It is however rather limited, especially in the context dealt with here: the StPO only allows dropping misdemeanour charges where the (potential) guilt of the defendant is relatively low277 or where the potential sentence is insignificant compared to that for other crimes the defendant is charged with.278 In other words, the prosecution may not agree to drop a serious charge unless the defendant remains charged with at least one charge that is at least as serious. These provisions are mostly used for ‘streamlining’ proceedings concerning a large number of charges, for example in drug cases, but they may also be used in the context of negotiated justice. Negotiated justice is most widespread in trials concerning white collar crime and drug distribution, but could generally speaking take place in proceedings concerning any crimes. However, it will seldom take place in trials for crimes, such as murder or genocide, which carry a mandatory life sentence, for the simple reason that the court has little to offer the defendant in exchange for an admission of guilt.279 Any statement made in the context of an understanding may also be used against a co-defendant. However, the court must be particularly careful in weighing the probative value of such statements. It must also give reasons why it believes the admission to be true, including an explanation of the underlying understanding.280 German law does not allow complete immunity from prosecution in exchange for testimony implicating other defendants. However, a provision introduced in 2009 allows significant sentence reductions. This provision is based on an earlier Kronzeugenregelung (crown witness rule), which existed until 1999, for members of terrorist (as well as certain criminal) organisations.281 In exchange for certain useful information on past or future crimes of the organisation, the prosecution could drop the case entirely or the court could, in case of conviction, lower the sentence or even not impose a sentence at all.282 This provision, which had been 277   § 153 StPO concerns charges where the (potential) guilt of the defendant is ‘low’, whereas § 153a StPO concerns charges where her (potential) guilt is ‘not high’ and the interest in prosecution may be discharged by imposing conditions such as, eg the payment of compensation. Both provisions only deal with misdemeanour charges and thus would not cover any of the crimes under the Code of Crimes against International Law (VStGB). 278   §§ 154, 154a StPO. 279   The court could, however, offer not to find that the ‘particular gravity of guilt’ precludes the possibility of early release after 15 years (see § 57a(1) (No 2) StGB) – Meyer-Goßner (2011), § 257c, mn 6. 280   BGH, NJW 2008, 1749, 1750; BGHSt 48, 161. 281   Arts 4 and 5 Kronzeugengesetz. 282   Art 4, § 2 Kronzeugengesetz. This did not apply to defendants charged with genocide; for murder or manslaughter, the sentence could not be reduced below three years’ imprisonment – Art 4, § 3.

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The Position of the Defendant in the Trial controversial since its introduction in 1986,283 lapsed in 1999. More limited versions, however, still applied to drug crimes and money laundering.284 The provision introduced in 2009 applies to all defendants charged with midlevel to severe crimes. It allows the court to reduce the sentence or, if the sentence that would have been passed without such cooperation would be three years or less, to not sentence the defendant at all.285 To earn these concessions, the defendant must, before the main proceedings against her are started, disclose her knowledge of a past or future crime of some weight286 and thus significantly contribute to that crime being resolved or prevented, respectively.287 There is no requirement that the crime the defendant helps resolve has any connection to the crime she is charged with. However, if the crimes are identical, the defendant must help resolve the crime not only as concerns her own involvement, but also as regards other perpetrators.288 Any doubt as to whether the crime has been resolved or whether the resolution was significantly aided by the defendant may lead to no sentence reduction being granted.289 That a defendant not only admits her own guilt, but also provides information concerning other crimes may also generally be taken into account positively in sentencing.290 Finally, as to sentencing rewards for cooperative behaviour, the restriction noted above that behaviour at trial may only be taken into account if it has a connection to the crime charged also applies to circumstances favourable to the defendant. As applied to admissions of guilt, this means that they should only lead to a reduction in the sentence where they show that the defendant acknowledges the wrongfulness of her deeds and/or feels remorse.291 It is, however, accepted that most admissions of guilt indeed show such facts;292 even admissions coming late in the trial and/or in the face of much negative evidence of guilt will usually lead to an – albeit more limited – sentence reduction.293 Admissions carry particular weight where they spare witnesses the potentially painful process of testifying.294 Courts may also take into account other cooperative behaviour which evidences remorse, such as voluntary surrender to the authorities295 or measures   See Lenckner and Sternberg-Lieben in Schönke and Schröder (2006), § 129a, mn 1a.   § 31 Betäubungsmittelgesetz; § 261(10) StGB. 285   § 46b(1) StGB. 286   § 46b(1) (cl 1) StGB refers to the catalogue of crimes contained in § 100a StPO, which covers crimes ranging from core crimes to less serious crimes such as, eg certain cases of fraud. 287   § 46b(1) StGB. 288   § 46b(1) (cl 3) StGB. 289   Fischer (2012), § 46b, mn 14 et seq. 290   See, eg BGH, StV 1999, 424, 427. 291   BGHSt 1, 105. 292   BGH, NStZ-RR 1998, 50; BGH, NStZ 2006, 568. 293   BGH, NStZ 2000, 366; BGH, NStZ-RR 1998, 103. The court may only decline to take into account an admission where it does not show any remorse because it is entirely ‘tactical’ (BGH, NStE § 46 StGB, No 70) or made in the face of overwhelming evidence of guilt (BGH, DAR 1999, 195, 196). 294   BGH, GA 1962, 339. 295   Fischer (2012), § 46, mn 50. 283 284

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Position vis-à-vis the Court taken by the defendant to reduce the risk of recidivism.296 Finally, the court may, and in some circumstances must, take into account attempts by the defendant to make good the damage caused.297 Cooperative behaviour, inasmuch as it shows that the defendant has acknowledged her wrongdoing, may also be taken into account when deciding whether or not a sentence of imprisonment should be suspended.298 Where early release is concerned, the law considers not so much behaviour at trial, but behaviour while serving the sentence.299 Cooperative behaviour, particularly an admission of guilt, may also lead to release from pre-trial detention being granted under the theory that it leads to the expectation of a lesser sentence and thus to a diminished risk of flight. Most defence attorneys, however, complain that this is in fact not so much a reward for cooperation as a threat of continued detention to elicit confessions – the winged word in this regard is ‘U-Haft schafft Rechtskraft ’ (pre-trial detention brings about final judgments).300

2. France (a)  Sanctions for Non-Cooperation Under French law, statements made during trial are covered by the provisions on ‘violation of the respect due to justice’. ‘[A]buse’ of judges, jurors or prosecutors ‘liable to undermine [their] dignity or the respect to [their] office’ may be punished by two years’ imprisonment and a fine if committed at a hearing.301 According to the Cour de Cassation, this provision covers ‘any injurious or defamatory statement’.302 Outside the courtroom, ‘The attempt to publicly discredit a court’s act or decision . . . in circumstances liable to undermine the authority of justice or its independence’ may be punished by up to six months’ imprisonment and a fine.303 In addition, as noted above, the defendant may be removed from the courtroom and excluded from the remainder of the trial if she ‘disturbs order in whatever manner’.304 Provisions relating to refusal to testify or to false testimony305 do not apply to the defendant as she may not be a witness in proceedings against herself. She may, 296   BGHSt 19, 206 (medical castration of defendant charged with crime of sexual violence); KG Berlin, StV 1997, 250 (drug abstinence program). 297   §§ 46(2), 46a StGB. 298   See § 56(1) StGB. 299   § 57(1), (2) (No 2), 57a (1) StGB. 300   See, eg Eidam (2008), 243 with further references. 301   Art 434-24 CP. See, eg Cass crim, 8 January 2003. 302   Cass crim, 19 April 2000, Bull crim No 154. 303   Art 434-25. For an example, see Cass crim, 11 March 1997, Bull crim No 96. 304   Arts 321(1), 322 CPP. See above 40–41. 305   Arts 434-12, 435-15-1, 434-13–434-14 CP.

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The Position of the Defendant in the Trial however, be punished for attempting to evade criminal justice – the act of escape from detention as such is punished by up to three years’ imprisonment, to be served consecutively to the sentence imposed for the material crime.306 The law is silent on the extent to which behaviour at trial may be taken into account in sentencing, for the simple reason that sentencing is hardly regulated at all. The Penal Code only states in very general terms that penalties should be imposed ‘according to the circumstances and the personality of the offender’.307 Under the CPP, the sentence is determined by a majority vote of the professional and lay judges carried out by means of a secret ballot308 and the court is not under an obligation to give any reasons for the sentence chosen.309 Accordingly, individual judges or jurors may well take into account behaviour at trial during sentencing, without being bound by any rules as to what behaviour may figure negatively and what may not. (b)  Rewards for Cooperation The CPP, after reforms in the 1990s and 2000s, now contains two specific forms of negotiated justice, the composition pénale and the comparution avec reconnaissance préalable de culpabilité. Both are only applicable to misdemeanors, excluding political and certain other Delicts.310 In both cases, the prosecutor may, upon an admission of guilt by the defendant prior to the formal indictment process, propose an agreement on the outcome of the case. In the case of composition, the prosecution is provisionally suspended and certain orders are made to the defendant, such as payment of a fine, community work, or completion of a training or ‘citizenship course’. Once the defendant has fulfilled these orders, the prosecution is extinguished.311 In the case of comparution avec reconnaissance préalable de culpabilité, the prosecutor may propose a criminal sanction which, in case of imprisonment, is limited to one-half of the maximum sentence for the crime, but in any case may not exceed one year’s imprisonment.312 In both instances, there is no real negotiation,313 but a proposal by the prosecutor which the defendant can only accept or refuse.314 If she accepts, the case is brought before the court, which again may only accept or refuse to accept the agreement, but may not change it.315 If either the defendant or the court refuses   Arts 434-27, 434-31 CP.   Art 132-24(1) CP. 308   Art 362 CPP. 309   Accordingly, there is no review of the sentence on appeal: Cass crim, 19 Dec 1996, Bull crim No 482. 310   Arts 41-2, 495-16 CPP. 311   Art 41-2 CPP. 312   Art 495-8 CPP. 313   French commentators accordingly speak of ‘justice acceptée’ or ‘accepted justice’ – see Jung and Nitschmann (2004), 792. 314   Arts 41-2, 495-8, 495-9 CPP. 315   Arts 41-2, 495-9, 194-11 CPP. 306 307

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Position vis-à-vis the Court the proposal, the procedure continues under the normal provisions for misdemeanor trials and statements made during the earlier procedure may not be used.316 There also exists the procedure of disqualification, the unofficial reclassification of an offence as a less serious offence so as to enable it to be tried before a lower court. Of interest here is correctionnalisation, the decision to prosecute conduct that would ordinarily be classified as a felony as a misdemeanor before the correctional courts. As the legal qualification of an offence is not subject to discretion, this process only works where all parties involved agree not to challenge this qualification.317 Correctionnalisation could thus conceivably be used as a form of charge bargaining – rewarding the defendant for an admission of guilt by charging her with a lesser offence. However, it seems that it is seldom used that way and that there is at most a ‘tacit bargain’ involved.318 Rather, the practice seems to be used mostly for reasons of judicial economy and as a corrective where, based on the facts, the offence is deemed less severe than its legal qualification seems to attest.319 Finally, the defendant may certainly confess to having committed crimes in the hopes that this will encourage the court to be more lenient in sentencing, and courts may certainly encourage defendants to ‘come clean’. However, there is no institutionalised practice of negotiated justice similar to that which has evolved in the German system. As to sentencing, members of the court may well take cooperative conduct, including admissions of guilt, into account in arriving at a sentence. However, as noted above, sentencing is the result of a vote and no reasons are given in the judgment. Therefore the defendant may only hope that her behaviour might influence enough judges or jurors to vote for a shorter sentence. French law does not contain any general provision on crown witness-like situations. Concerning terrorist offences, there is a provision that is somewhat akin to the original German crown witness rule. A defendant may be exempted from punishment for an attempted offence if she has enabled the authorities to prevent the completion of the offence and identify any other offenders.320 Where the offence has been carried out but the defendant has helped authorities to stop further offences or resolve the consequences and to identify any other offenders, her sentence may be halved, with life imprisonment reduced to 20 years’ imprisonment.321 With regard to drug offences, French law again contains a provision similar to the ‘small crown witness rule’ in German law.322

  Arts 495-12, 495-14 CPP.   See, eg Dervieux et al (2002), 285–86.   Frase (1990), 631. 319   Pradel (2006), para 120. 320   Art 422-1 CP. 321   Art 422-2 CP. 322   Art 627-5 Code de la Santé Publique. 316 317 318

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The Position of the Defendant in the Trial

3.  The United States (a)  Sanctions for Non-Cooperation US criminal law contains a large number of provisions specifically sanctioning behaviour of the defendant concerning her criminal trial. Specifically referring to conduct during the proceedings, the provisions on contempt of court are of particular interest. The court may punish ‘misbehaviour . . . in its presence’ or ‘Disobedience or resistance’ to its orders as a crime and sentence the perpetrator to a sentence of imprisonment.323 Behaviour found to constitute contempt includes not only physical acts,324 but also statements made in court. While mere insults as such do not suffice to constitute contempt, ‘there is a point at which mere words are so offensive and so unnecessary that their very utterance’ constitutes contempt.325 Defendants were thus found to have committed contempt by using abusive language or a ‘sarcastic’ tone of voice,326 interrupting the court and shouting327 or by referring to the witness as a ‘damn liar’328 or to the court as a ‘kangaroo court’ which had wrongfully imprisoned the defendant for political reasons.329 The penalty for contempt is generally left to the discretion of the courts: up to five years’ imprisonment have been upheld on appeal for contempt generally.330 In the type of cases discussed here, defendants were mostly imprisoned for the remainder of their trial331 or for periods of two or three months.332 In addition to being charged with contempt, where the defendant engages in disruptive behaviour, she may be found to have waived her right to presence and excluded from the remainder of the trial.333 In extreme cases she may be bound and gagged to prevent further disruptive behaviour.334 A number of provisions penalise attempts to abscond from the criminal justice process – if a defendant released from pre-trial detention fails to appear for trial as required, she incurs a penalty of up to 10 years’ imprisonment for that fact   18 USC § 401(1), (3).   US v Hall, 176 F 2d 163 (2nd Cir 1949) (advancing towards the bench in threatening manner); US v Perry, 116 F 3d 952 (1st Cir 1997) (urinating on the courtroom floor). 325   Gordon v US, 592 F 2d 1215 (1st Cir 1979). 326   Re Cohen, 370 F Supp 1166 (SD NY 1973); US v Green, 176 F 2d 169 (2nd Cir 1949). 327   US v Bollenbach, 125 F 2d 458 (2nd Cir 1942). 328   Gridley v US, 44 F 2d 716 (6th Cir 1930). 329   Gordon v US, 592 F 2d 1215 (1st Cir 1979). 330   US v Gabay, 923 F 2d 1538 (11th Cir 1991); US v Berardelli, 565 F 2d 24 (2nd Cir 1977); US v Brummitt, 665 F 2d 521 (5th Cir 1981). Sentences far exceeding five years have been imposed by district courts, but reduced significantly on appeal: see, eg US v Gracia, 755 F 2d 984 (2nd Cir 1985) (nine years reduced to four years); US v Leyva, 513 F 2d 774 (5th Cir 1975) (35 years reduced to two years). 331   US v Green, 176 F 2d 169 (2nd Cir 1949). 332   Gordon v US, 592 F 2d 1215 (1st Cir 1979); US v Bollenbach, 125 F 2d 458 (2nd Cir 1942). 333   r 43(c)(1)(C) FRCP. 334   Illinois v Allen, 397 US 337, 344. 323 324

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Position vis-à-vis the Court alone.335 If she commits a crime while on release, the penalty for that crime is increased by up to 10 years336 and if she violates a condition of her release, she may incur up to five years’ imprisonment for contempt of court.337 Finally, intentionally false testimony of the defendant constitutes perjury and may be punished by up to five years’ imprisonment.338 As to whether courtroom behaviour may be taken into account in sentencing, the trial court generally has wide discretion in imposing a sentence and may consider a wide variety of facts, including the conduct of the defendant before the court.339 It may not, however, penalise the defendant for exercising her constitutional rights. Thus the imposition of a ‘trial penalty’, that is the increase of the sentence because the defendant refused to plead guilty, is impermissible,340 even where the evidence of guilt is overwhelming.341 Courts may, however, reward those who do decide to plead guilty.342 Under Section 3C1.1 FSG, the court must increase the offence level by two levels – equivalent to a sentence increase of about 23–24 per cent for serious crimes – if it finds that the defendant has obstructed or impeded the administration of justice or has attempted to do so. This provision covers a wide range of behaviour, such as influencing witnesses, tampering with evidence, escaping from custody or failing to appear, and making false statements.343 Here, too, behaviour which only consists in the exercise of a constitutional right may not be so penalised.344 There is, however, no general defence privilege which would allow the defendant to, for example, lie on the stand.345 Finally, the court may take into account a wide variety of conduct at trial, including statements and even protestations of innocence,346 as showing lack of remorse and refusal to accept responsibility in finding a sentence within the guideline range347 and even as a reason for upward departure from the sentencing range.348 (b)  Rewards for Cooperation US sentencing law allows reduction of otherwise rather harsh sentences in a number of circumstances, mainly following two sometimes overlapping concepts.   18 USC § 3146(b)(1)(A).   18 USC § 3147(1).   18 USC § 3148(c), § 401. 338   18 USC § 1621. 339   US v Tucker, 404 US 443, 446–47 (1972) with further references. Under the FSG, see § 1B1.4. 340   US v Capriola, 537 F 2d 319 (9th Cir 1976); US v Derrick, 519 F 2d 1 (6th Cir 1975); Poteet v Fauver, 517 F 2d 393 (3rd Cir 1975); US v Marzette, 485 F 2d 207 (8th Cir 1973). 341   US v Derrick, 519 F 2d 1 (6th Cir 1975). 342   US v Thompson, 476 F 2d 1196 (7th Cir 1973). 343   See USSC, Commentary to § 3C1.1 FSG, Application Note 4. 344   USSC, Commentary to § 3C1.1 FSG, Application Note 2. 345   US v Dunnigan, 507 US 87, 96 (1993) with further references. 346   US v Li, 115 F 4d 125 (2nd Cir 1997). 347   US v Blackman, 66 F 3d 1572 (11th Cir 1995). 348   US v Sutton, 205 Fed Appx 19 (3rd Cir 2006). 335 336 337

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The Position of the Defendant in the Trial Behaviour which shows the defendant’s remorse for her crime may lead to some reduction. More significantly, saving judicial resources and aiding in the prosecution and conviction of other defendants may lead to rather massive reductions. The US criminal justice system relies heavily on plea bargaining,349 with more than 90 per cent of cases, according to most estimates, being resolved by some form of plea bargaining. Given the wide prosecutorial discretion enjoyed by prosecutors, plea bargaining may entail an agreement by the prosecution, in exchange for a plea of guilty, to charge the defendant with a less serious crime (charge bargaining). The prosecution may also agree to propose a relatively lenient sentence (sentence bargaining), but such proposal is not binding on the court.350 The death penalty, however, may only be imposed upon a prosecution motion,351 thus a promise in a plea agreement not to ask for the death penalty effectively precludes that sentence. Where a defendant pleads guilty, the court does not need to assert the veracity of that plea, but may instead proceed directly to sentencing. A defendant may even plead nolo contendere, which means that she does not formally acknowledge her guilt, but nonetheless does not defend herself against the charges and thus submits to sentencing.352 As stated above, sentence bargains are not binding upon the court. Courts may, however, positively take into account a plea of guilty in imposing the sentence.353 Under the FSG, this is mostly dealt with under Section 3E1.1, which deals with sentence reductions for ‘acceptance of responsibility’. The offence level is decreased by two levels if the defendant ‘clearly demonstrates acceptance of responsibility’ and, for more serious crimes, by another level upon a prosecution motion if the defendant has early in the trial signaled her intention to plead guilty and thus helped save judicial resources. The Guidelines Commentary lists a number of acts which may be taken into account for such downward departure, such as voluntary surrender or restitution or rehabilitation efforts.354 Courts may weigh all relevant circumstances in deciding on a reduction355 and have quite broad discretion in deciding whether or not the requirements are met.356 A plea of guilty will usually be an important factor, but it is neither a necessary357 nor a sufficient358 condition for reduction. A   The legality of this practice has been confirmed in Santobello v New York, 404 US 257 (1971).   US v Hernandez-Salazar, 471 F 2d 1209 (9th Cir 1972). 351   See 18 USC § 3593. 352   Differences to a plea of guilty may arise, inter alia, in later civil proceedings brought by the victim. 353   US v Wiley, 184 FSupp 679 (ND Ill 1960). 354   USSC, Commentary to § 3E1.1 FSG, Application Note 1. 355   US v Kirkland, 28 F 3d 49 (7th Cir 1994). 356   US v Myers, 66 F 3d 1364 (4th Cir 1995); US v Dempsey, 768 F Supp 1277 (ND Ill 1991); US v Gassaway, 81 F 3d 920 (10th Cir 1996). 357   USSC, Commentary to § 3E1.1 FSG, Application Note 2; US v Water, 413 F 3d 812 (8th Cir 2005); US v McKinney, 15 F 3d 849 (9th Cir 1994). 358   USSC, Commentary to § 3E1.1 FSG, Application Note 3; US v Skorniak, 59 F 3d 750 (8th Cir 1995); US v Jackson, 25 F 3d 327 (6th Cir 1994); US v Byrd, 76 F 3d 194 (8th Cir 1996); US v Panadero, 7 F 3d 691 (7th Cir 1993). 349 350

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Position vis-à-vis the Court sentence reduction may be refused where the plea came late in the trial359 or resulted from charge bargaining360 or where, despite pleading guilty, the defendant refuses to accept that her actions had been wrong.361 Cooperation with regard to co-defendants or co-perpetrators is not a requirement for reduction,362 but failure to cooperate in that regard may be taken as one indicator that the defendant has refused to accept responsibility.363 As to the further one level reduction, this is a reward for conserving government and court resources and thus only applicable where such resources are in fact saved.364 It requires a motion by the prosecution,365 which has some degree of discretion whether or not to file such a motion.366 Finally, the court may also, at its discretion, go beyond a two level reduction where it finds that the defendant has displayed ‘extraordinary acceptance of responsibility’,367 particularly where she has made extraordinary efforts at restitution or rehabilitation.368 A reduction under Section 3E1.1 will, for more serious offences, lead to a sentence discount of roughly 27–28 per cent upon motion by the prosecution and of 19–20 per cent otherwise.369 Besides this reduction, cooperation may also allow courts to go below the statutory minimum penalties for first-time non-violent drug offenders.370 There are, however, also cases in which guilty pleas and/or other cooperative conduct will not lead to a reduction in sentence. Where particularly serious crimes are at issue, the offence level under the FSG may be so high that a two or even three level reduction will not bring the resulting sentence below the guideline sentence of life imprisonment.371 Also, the Guidelines do not usually touch statutory minimum sentences;372 accordingly, the court may never impose a sentence lower than life imprisonment for certain offences such as first-degree

359   US v Kiel, 454 F 3d 819 (8th Cir 2006); US v Banks-Giombetti, 245 F 3d 949 (7th Cir 2001); US v Field, 110 F 3d 587 (8th Cir 1997). 360   US v Rosales, 917 F 2d 1220 (9th Cir 1990). 361   US v Cook, 922 F 2d 1026 (2nd Cir 1991); US v Campbell, 888 F 2d 76 (11th Cir 1989). 362   US v Nunez-Rodriguez, 92 F 3d 14 (1st Cir 1996). 363   Re Sealed Case, 350 F 3d 113 (DC Cir 2003); US v Ransbottom, 914 F 2d 743 (6th Cir 1990); US v Davis, 878 F 2d 1299 (11th Cir 1989); US v Eberspacher, 936 F 2d 387 (8th Cir 1991). 364   US v Francis, 39 F 3d 803 (7th Cir 1994); US v Vue, 38 F 3d 973 (8th Cir 1994). 365   US v Sloley, 464 F 3d 355 (2nd Cir 2006). 366   US v Wattree, 431 F 3d 618 (8th Cir 2005). 367   US v Brown, 985 F 2d 478 (9th Cir 1993). 368   US v Garlich, 951 F 2d 161, 163 (8th Cir 1991); US v Ingram, 816 F Supp. 26 (D DC 1993); US v Gerard, 782 F Supp 913 (SD NY 1992). Not all such attempts will, however, be considered ‘extraordinary’: see US v Sklar, 920 F 2d 107, 116 (1st Cir 1990); US v Carey, 895 F 2d 318, 323 (7th Cir 1990). 369   I have calculated this discount by comparing the average sentence for offenders with no criminal history and offence levels 39–43 with the average sentence for offence levels two and three levels below, respectively, substituting 450 months for the life sentence foreseen for level 43. 370   18 USC § 3553(f). 371   One example: the base offence level for first degree murder is 43 (FSG § 2A1.1). If the offence is directed against a victim because of, eg their race, there is a three level increase for hate crimes (FSG § 3A1.1(a)). In such a case, even the maximum three level reduction for extensive cooperation under § 3E1.1 will only bring the offence level down to 43, which foresees life imprisonment. 372   FSG § 5G1.1(b).

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The Position of the Defendant in the Trial murder.373 In capital cases, even a guilty plea and showing of remorse need not necessarily save the defendant from the death penalty.374 Where the defendant’s cooperation goes beyond her own case, this may merit even greater sentence reductions. First, given the broad prosecutorial discretion in charging, the prosecutor may agree not to bring charges against the defendant at all in exchange for her testimony in other cases. She may also make such testimony a requirement in a plea agreement for, for example, dropping certain charges against the defendant. Second, the court may also take into account such cooperation in sentencing. Under the FSG, cooperation may lead to a reduction of sentence level for acceptance of responsibility under Section 3E1.1.375 Most importantly, however, it also allows the court to depart downward from the Guidelines under Section 5K1.1. This departure, which is independent of that under Section 3E1.1,376 is not a reward for remorse,377 but rather pragmatically rewards the defendant for the value of the information she has provided and indemnifies her for injuries she may have suffered as a consequence thereof. Sentence reduction under Section 5K1.1 is only possible upon a motion by the prosecution,378 which has rather wide discretion on whether or not to file such a motion.379 Where a motion is filed, the court still enjoys discretion as to whether380 and to what extent381 to grant a reduction. District Courts have reduced sentences up to 11 levels,382 equivalent to a 70 per cent reduction in sentence, and have in some cases even imposed only probation for defendants who would otherwise have faced quite significant prison sentences.383 Courts may also, at their discretion, go below the mandatory minimum sentence.384 On the other hand, courts   See US v Gonzalez, 922 F 2d 1044 (2nd Cir 1991).   See, eg US v Sampson, 300 F Supp 2d 275 (D Mass 2004), 486 F 3d 13 (1st Cir 2007). 375   US v Howard, 923 F 2d 1500 (11th Cir 1991); US v De La Rosa, 922 F 2d 675 (11th Cir 1991). 376   USSC, Commentary to § 5K1.1 FSG, Application Note 2. 377   Thus a desire of the defendant to aid the prosecution which is not taken up by the prosecution does not warrant departure under § 5K1: US v Sklar, 920 F 2d 107 (1st Cir 1990). 378   US v Spears, 965 F 2d 262 (7th Cir 1992); US v Horn, 946 F 2d 738 (10th Cir 1991); US v Doe, 934 F 2d 353 (DC Cir 1991); US v Harrison, 918 F 2d 30 (5th Cir 1990). Absent such a motion, the court is also barred from taking cooperation into account as an argument for departure under other provisions: US v Cruz-Mercado, 360 F 3d 30 (1st Cir 2004); US v Maldonado-Acosta, 210 F 3d 1182 (10th Cir 2000); US v Alamin, 895 F 2d 1335 (11th Cir 1990). 379   Wade v US, 504 US 181 (1992); US v Khan, 920 F 2d 1100 (2nd Cir 1990); US v Hoffenberg, 908 F Supp 1265 (SD NY 1995) 380   US v Damer, 910 F 2d 1239 (5th Cir 1990); US v Easterling, 921 F 2d 1073 (10th Cir 1990); US v Damer, 910 F 2d 1239 (5th Cir 1990). 381   US v Wills, 35 F 3d 1192 (7th Cir 1994); US v Doe, 996 F 2d 606 (2nd Cir 1993). 382   US v Smith, 359 F Supp 2d 771 (ED Wis 2005) (10 level reduction); US v Willis, 327 F Supp 2d 954 (ED Wis 2004) (11 level reduction). 383   In US v Livesay, the Court of Appeals found an 18 level reduction resulting in probation instead of a sentence of 78–97 months to be excessive (184 F 3d 1324 (11th Cir 2007)). The judgment was vacated by the Supreme Court as overstepping the Court of Appeals’ review powers (128 S Ct 872 (2008)). On remand, the Court of Appeals found sentencing to be procedurally deficient and again remanded the case to the District Court for resentencing (525 F 3d 1081 (11th Cir 2008)). 384   18 USC § 3553(e); see US v Wills, 35 F 3d 1192 (7th Cir 1994); US v Cheng Ah-Kai, 951 F 2d 490 (2nd Cir 1991); US v Keene, 933 F 2d 711 (9th Cir 1991). 373 374

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Position vis-à-vis the Court may also decide to reward substantial cooperation by a sentence reduction of only one month.385 Finally, a sentence may also be reduced, even below the statutory minimum, post-conviction for significant assistance concerning other defendants.386 This rule, which may engage defendants in long-term investigations into crimes committed in prison, may lead to a (further) sentence reduction of 50 per cent or more.387

II.  Requirements Deriving from Human Rights Law 1.  The European Convention (a)  Sanctions for Non-Cooperation The ECtHR considers questions of cooperation mostly from the angle of the defendant’s right(s) which may abrogated as a sanction for behaviour perceived as uncooperative. There are only a handful of cases concerning what might properly be called sanctions for refusal to cooperate. In Zana, a defendant had been excluded from the proceedings for challenging the jurisdiction of the national court and refusing to address it in its official language. The ECtHR, without giving any weight to what might be seen as disruptive behaviour, found a violation of the rights to represent oneself and to be present at one’s trial.388 In a case arising under Article 8 ECHR, prison authorities had refused to forward to a prisoner a letter from his lawyer because the letter had urged him to remain silent. The ECtHR found that the recommendation of lawful defence behaviour could not be a justification for not forwarding the letter.389 The ECtHR is thus rather skeptical of negative consequences flowing from the exercise of defence rights as such. It does, however, also acknowledge a right of national authorities to limit the content of defence statements. Thus Article 6(3) ‘does not provide for an unlimited right to use any defence arguments’ and the possible use of such statements in later proceedings for, for example, defamation only violates Article 6 where provisions are ‘unduly severe’ and ‘the risk of subsequent prosecution is such that the defendant is genuinely inhibited from freely exercising’ her defence rights.390 In this context, the statement in an Article 10 case that ‘The courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence’ is also relevant.391   US v Torres, 251 F 3d 138 (3rd Cir 2001).   18 USC § 3582(c)(1)(B); r 35(b) FRCP.   See, eg US v Emanuel, 734 F Supp 877 (SD Iowa 1990). 388   Zana v Turkey ECtHR 1997-VII 2533, paras 70–71. 389   ECtHR, Schönenberger and Durmaz v Switzerland (1988) Series A no 137, paras 27–30. 390   ECtHR, Brandstetter v Austria (1991) Series A no 211, paras 52–53. 391   De Haes and Gijsels v Belgium ECtHR 1997-I 198, para 37. 385 386 387

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The Position of the Defendant in the Trial There does not seem to be any jurisprudence on the extent to which uncooperative behaviour may be taken into account in sentencing. (b)  Rewards for Cooperation There is very little jurisprudence on questions of negotiated justice. As a starting point, the ECHR neither prohibits nor mandates the possibility of negotiated justice.392 The jurisprudence contains some fragmentary rules on fairness in the context of negotiated justice. Most importantly, the state may not place undue pressure on the defendant in order to force her to accept a negotiated outcome,393 inter alia, by threatening a much higher sentence if she does not accept and is found guilty.394 As regards procedural questions, states have rather wide discretion: agreements or promises as to charges or sentence need not be binding on the judges,395 and defendants who have made an ‘unequivocal and voluntary’ guilty plea may be barred from later changing the plea.396 Most of the jurisprudence on negotiated justice concerns the question whether defendants’ statements received in exchange for certain promises may be used against other defendants. Both the former Commission and the ECtHR have noted fair trial implications,397 but have generally allowed the use of such statements,398 even where the defendant was unable to examine the witnesses at trial.399 The ECtHR has, however, stated that financial benefits may not be offered for testimony against others.400 There does not seem to be any jurisprudence on the extent to which the ECHR requires or allows cooperative behaviour to be considered in sentencing or in granting other kinds of rewards to the defendant.

392   See, eg ECtHR, Deweer v Belgium (1980) Series A no 35, para 51; see also Nielsen v Denmark App no 19028/91 (ECmHR, 9 September 1992) (on the wording of Art 2 of Protocol 7, which was chosen so as to accommodate national rules on guilty plea proceedings). 393   ECtHR, Deweer v Belgium (1980) Series A no 35, paras 52–53. 394   Ahmad et al v United Kingdom App no 24027/07 et al (ECtHR, 6 July 2010), para 168. 395   See ECtHR, Colak v Germany (1988) Series A no 147, para 31. 396   RO v United Kingdom, App no 23094/93 (ECmHR, 11 May 1994). 397   X v United Kingdom, App no 7306/75 (ECmHR, 6 October 1976), 7 DR 115, 118; Erdem v Germany, App no 38321/97 (ECtHR, 9 December 1999), para 3f; Lorsé v Netherlands, App no 44484/98 (ECtHR, 27 January 2004). See also Contrada v Italy, App no 27143/95 (ECmHR, 14 January 1997), 88 DR 94, 112–13. 398   X v United Kingdom, App no 7306/75 (ECmHR, 6 October 1976), 7 DR 115, 118; Flanders v Netherlands, App no 25982/94 (ECmHR, 15 January 1996); Contrada v Italy, App no 27143/95 (ECmHR, 14 January 1997), 88 DR 94, 113. 399   Mambro and Fioravanti v Italy, App no 33995/96 (ECmHR, 9 September 1998), para  1 (by majority); Lorsé v Netherlands, App no 44484/98 (ECtHR, 27 January 2004) (by majority). 400   Erdem v Germany, App no 38321/97 (ECtHR, 9 December 1999), para 3f.

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2.  The International Covenant and the Inter-American and African Systems The jurisprudence of the HRC and the treaty bodies of the African and InterAmerican systems does not add anything relevant to that of the ECtHR. There does not seem to be any relevant jurisprudence on the extent to which non-cooperation may lead to sanctions. Negotiated justice is neither prohibited nor mandated. There is some limited HRC jurisprudence on questions of procedural fairness under the ICCPR.401 Finally, none of the treaty bodies seems to have issued any jurisprudence on the influence that (un)cooperative behaviour may or should have on sentencing.

III.  International Criminal Procedure 1. The Ad hoc Tribunals (a)  Sanctions for Non-Cooperation At the ad hoc Tribunals, there are several rules explicitly foreseeing sanctions for certain particularly uncooperative behaviour of the defendant. Rule 80(B) RPEICTY/RPE-ICTR allows the removal of the defendant for disruptive conduct. As noted above, this rule sets a rather high standard and has seldom been applied. In the cases of Vojislav Šešelj and Ratko Mladic´, removal was based on the fact of continued interruptions, not so much the content or wording of their statements,402 whereas in the case of Radovan Stankovic´, the reason for his removal was offensive language and a refusal to stop talking.403 Rule 77 RPE-ICTY foresees a penalty of up to seven years’ imprisonment for contempt of the Tribunal.404 The provision contains a list of contemptuous conduct, such as disclosing confidential information and interference with witnesses or judges.405 However, this list is not exhaustive and other methods of ‘knowingly and willfully interfer[ing] with [the Tribunal’s] administration of justice’ may also be punished. However, the Appeals Chamber has warned against interpreting Rule 77 too broadly, noting that: 401   See HRC, Richards v Jamaica, Comm 535/1993, para 7.2. After the defendant had pleaded guilty to manslaughter, the prosecution had discontinued proceedings and instituted new ones for murder to circumvent the consequences of the guilty plea. The HRC, by majority, found the trial to have been unfair. 402   See above 49. It should also be noted that both had earlier stated – whether sincerely or rhetorically may be in the eye of the beholder – that they wished to be removed from the courtroom. 403   Prosecutor v Jankovi´c and Stankovi´c (Transcript of 4 March 2005) IT-96-23/2, Trial Chamber, 235–36. 404   r 77(G) RPE-ICTY. 405   r 77(A)(ii), (iv) and (v) RPE-ICTY.

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The Position of the Defendant in the Trial The law of contempt is not designed to buttress the dignity of the judges or to punish mere affronts or insults to a court or tribunal; rather, it is justice itself which is flouted by a contempt of court, not the individual court or judge who is attempting to administer justice.406

The Rule has never been applied to statements in court due to their content. Chambers have, however, warned counsel that contempt proceedings might be initiated if counsel remained absent from hearings without valid excuse407 and have initiated proceedings for revealing identifying information concerning a protected witness.408 Finally, both a defendant409 and a former OTP spokesperson410 were convicted of contempt for statements in books published by them, but in both cases this was based on the fact that those books had contained confidential information. Other contempt proceedings concerned interference with witnesses411 and refusal by witnesses to testify.412 Rule 77 RPE-ICTR is substantially identical to the ICTY rule. This rule, too, was not applied to uncooperative behaviour of defendants at trial. The closest case was a Chamber threatening or actually instituting contempt proceedings against counsel for leaving the courtroom413 or for refusing to conduct the defence.414 406   Prosecutor v Aleksovski (Judgment on Appeal by Anto Nobilo Against Finding of Contempt) IT-95-14/1, Appeals Chamber (30 May 2001), para 36. 407   ICTY, Prosecutor v Gagovi´c (Order for Appearance of Counsel) IT-96-23, Trial Chamber (10 March 1998). 408   Counsel was later acquitted because it appeared that this was merely negligent – Prosecutor v Aleksovski (Judgment on Appeal by Anto Nobilo Against Finding of Contempt) IT-95-14/1, Appeals Chamber (30 May 2001). 409   Prosecutor v Slobodan Miloševi´c – Hartmann (Contempt) (Judgment on Allegations of Contempt) IT-02-54-R77.5, Trial Chamber (14 September 2009) (fined €7,000 for revealing content of confidentional decision). For criticism of this judgment from a freedom of expression angle, see Barbara Bukovska, ‘ICTY: Hartmann Case Troubling’, 10 October 2011, www.article19.org/resources.php/ resource/2770/en/icty:-hartmann-case-troubling. 410   Prosecutor v Šešelj (First Contempt Case) (Judgment) IT-03-67-R77.2, Trial Chamber (24 July 2009); (Second Contempt Case) (Judgment) IT-03-67-R77.3, Trial Chamber (31 October 2011) (sentenced to 15 and 18 months’ imprisonment, respectively, for revealing details of testimony and identity of protected witnesses). A third contempt case has been initiated against Šešelj for similar behaviour – see Prosecutor v Šešelj (Third Contempt Case) (Decision on Failure to Remove Confidential Information from Public Website and Order in Lieu of Indictment) IT-03-67-R77.4, Trial Chamber (9 May 2011). 411   This included defendants and counsel – see Prosecutor Tadi´c – Milan Vujin (Contempt) (Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin) IT-94-1-A-R77, Appeals Chamber (31 January 2000; Prosecutor v Blagoje Simi´c et al – Avramovi´c and Simi´c (Contempt), (Judgement in the Matter of Contempt Allegations Against an Accused and his Counsel) IT-95-9-R77, Trial Chamber (30 June 2000). 412   Including one convicted defendant who refused to testify in another trial – ICTY, Prosecutor Popovi´c et al – Dragan Joki´c (Contempt), (Judgment on Allegations of Contempt), IT-05-88-R77.1, Trial Chamber (27 March 2009). 413   Prosecutor v Karemera et al (Minutes of 27 June 2007 and 28 June 2007) ICTR-98-44, Trial Chamber. Counsel had left the courtroom in protest after the Chamber had decided to continue proceedings in the absence of the defendant. 414   Prosecutor v Karemera et al (Decision Initiating Contempt Proceedings Against Peter Robinson) ICTR-98-44, Trial Chamber (8 June 2010). Proceedings were later discontinued (Minutes of 30 June 2010). Counsel had asked for an adjournment and refused to examine witnesses in the meantime after the arrest of another defence counsel in Rwanda had shown that there was a danger of being prosecuted for ICTR courtroom conduct under Rwandan ‘genocidal ideology’ laws.

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Position vis-à-vis the Court Another Chamber threatened counsel with contempt proceedings because of the tone of submissions and ‘unruly behaviour’, but this was probably in fact meant as reference to Rule 46 on misconduct of counsel.415 A request by the prosecution to hold counsel in contempt on the basis mostly of an overlong closing statement was not followed by the Chamber.416 Contempt proceedings were instated for violations of protective measures417 and alleged interference with witnesses.418 Rule 91 RPE-ICTY/RPE-ICTR allows a similarly hefty punishment419 for false testimony under solemn declaration. The rule would seem to apply also to defendant testimony, given that such testimony is made under solemn declaration.420 However, no proceedings have ever been instituted against defendants who had testified, even where the final judgment in their case seemed to clearly contradict their testimony. Attempts at evading the reach of the Tribunals are not penalised as such, but may be considered in aggravation in sentencing.421 As to whether courtroom conduct may be considered as an aggravating factor in sentencing, some early judgments indicated that even normal uncooperative behaviour, such as a lack of cooperation with the prosecution or denial of guilt, could be so considered.422 By now, however, it is settled jurisprudence that exercising defence rights may not be considered in aggravation. This is accordingly true of non-cooperation with the prosecution,423 refusal to give oral evidence,424 denial of guilt425 and of having witnesses subjected to ‘ “extensive, detailed, lengthy and searching” cross-examination’ by defence counsel.426   Military II (Minutes of 1 June 2007) ICTR-00-56, Trial Chamber, para 1a.   Prosecutor v Rukundo (Minutes of 20 February 2008) ICTR-01-70, Trial Chamber. 417   Prosecutor v Nshogoza (Judgment) ICTR-2007-91, Trial Chamber (7 July 2009) (sentenced to 10 months’ imprisonment). 418   Prosecutor v Ngirabatware (Decision on Allegations of Contempt) ICTR-99-54, Trial Chamber (12 March 2010). 419   Up to seven years’ imprisonment and a fine of up to US $100,000 at the ICTY (r 91(G) RPEICTY); up to five years’ imprisonment and a fine of up to US $10,000 at the ICTR (r 91(G) RPE-ICTR). 420   Applying Rule 91 to such testimony would not be a violation of the privilege against self-incrimination as defendants choosing to testify may still refuse to answer any specific questions – Art 21(4) (g) StICTY; Art 20(4)(g) StICTR. See also Prosecutor v Muci´c et al (Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged Between Zejnil Delalić and Zdravko Mucić) IT-96-21, President (11 November 1996), para 35. 421   Prosecutor v Popovi´c et al (Judgment) IT-05-88, Trial Chamber (10 June 2010), para 2199. 422   eg Prosecutor v Duško Tadi´c (Sentencing Judgment) IT-94-1, Trial Chamber (14 July 1997), para 58; Prosecutor v Kayishema and Ruzindana (Sentence) ICTR-95-1, Trial Chamber (21 May 1999), para 16. 423   Prosecutor v Bisengimana (Judgment and Sentence) ICTR-00-60, Trial Chamber (13 April 2006), para  127; Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), paras 63–64. 424   See Prosecutor v Muci´c et al (Judgment) IT-96-21, Trial Chamber (16 November 1998), para 1251; (Judgment), Appeals Chamber (20 February 2001), para 783; (Sentencing Judgment), Trial Chamber (9 October 2001), para 27; Prosecutor v Blaški´c, (Judgment) IT-95-14, Appeals Chamber (29 July 2004), para  687; Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), para 64. 425   See Prosecutor v Kunarac et al (Judgment) IT-96-23&23/1, Trial Chamber (22 February 2001), para 853, on raising an alibi defence. 426   According to Prosecutor v Milan Simi´c (Judgment) IT-95-9/2, Trial Chamber (17 October 2002), para 93, this factor may not even be considered to ‘counter’ statements of remorse. 415 416

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The Position of the Defendant in the Trial Some Chambers have, however, taken into account uncooperative behaviour going beyond the exercise of defence rights. In Delalic´ et al, the Chamber considered conduct showing a ‘defiant attitude and a lack of respect for the judicial process’.427 In Kayishema et al, the Chamber referred to the prosecution’s argument that the defendant’s ‘smil[ing] or laugh[ing] as survivors testified during trial’ should be considered in aggravation, but did not really state whether or not it agreed.428 Later judgments, finally, state that conduct may only be considered in aggravation if it is directly related to the offence in question.429 Disrespectful courtroom behaviour and similar acts may thus only be taken into account as negating possible mitigating factors, such as remorse.430 (b)  Rewards for Cooperation – Plea Bargaining The Tribunals’ Statutes mention that the defendant shall be instructed to enter a plea at the beginning of the trial,431 but do not expressly deal with the consequences of a plea of guilty. According to the relevant provisions in the RPE, if a defendant wishes to plead guilty, the Chamber must satisfy itself that the plea is made freely and voluntarily, is informed and unequivocal and is shown to be ‘based on sufficient facts for the crime and the accused’s participation in it’.432 If so satisfied, the Chamber may enter a finding of guilt and proceed directly to the sentencing phase.433 While some defendants already pleaded guilty in the first trials before both Tribunals,434 there was at that time no formal procedure in place for plea agree427   Prosecutor v Muci´c et al (Judgment) IT-96-21, Trial Chamber (16 November 1998), paras 1217, 1244. See also para 1251; (Judgment), Appeals Chamber (20 February 2001), paras 786–88. 428   Prosecutor v Kayishema and Ruzindana (Sentence) ICTR-95-1, Trial Chamber (21 May 1999), para 17. 429   Prosecutor v Kunarac et al (Judgment) IT-96-23&23/1, Trial Chamber (22 February 2001), para 850; Prosecutor v Hadžihasanovi´c and Kubura (Judgment) IT-01-47, Trial Chamber (15 March 2006), para 2069. 430   Prosecutor v Kunarac et al (Judgment) IT-96-23&23/1, Trial Chamber (22 February 2001), para 854. 431   Arts 20(3) StICTY; 19(3) StICTR. 432   r 62bis RPE-ICTR; r 62(B) RPE-ICTR. 433   r 100 RPE-ICTY; r 100 RPE-ICTR. The word ‘may’ show that  the Chamber has a discretion to reject a guilty plea even if it fulfils all these criteria – see Prosecutor v Momir Nikoli´c (Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), para 54; Prosecutor v Obrenovi´c (Sentencing Judgment) IT-02-60/2), Trial Chamber (10 December 2003), para  19. Chambers have not yet used their discretion to reject a plea that fulfills all criteria, but they have sometimes rejected pleas which they consider to be insufficiently clear – see, eg Prosecutor v Zelenovi´c (Sentencing Judgment) IT-9623/2, Trial Chamber (4 April 2007), para 11. 434   At the ICTY, Dražen Erdemović pleaded guilty to a crime against humanity and, after the Appeals Chamber had found his plea uninformed, to a war crime ((Sentencing Judgment) IT-9622, Trial Chamber (29 November 1996), para  10; (Sentencing Judgment) Trial Chamber (5 March 1998), para 11); Goran Jelisić pleaded guilty to 31 counts of war crimes and crimes against humanity, but not guilty to genocide ((Judgment) IT-95-10, Trial Chamber (14 December 1999), paras 8, 11); at  the ICTR, former Prime Minister Jean Kambanda pleaded guilty to several genocide charges as well as charges of crimes against humanity ((Judgment and Sentence) ICTR-97-23, Trial Chamber (4 September 1998), para 3).

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Position vis-à-vis the Court ments. In fact, judges first professed a certain reluctance towards such agreements,435 and the first defendant to plead guilty before the ICTR, Jean Kambanda, was sentenced to the maximum sentence of life imprisonment despite an early guilty plea and substantial cooperation.436 However subsequently, after the case load of the Tribunals had increased, and the OTP had already entered into several plea agreements with defendants,437 the Tribunals’ RPE were amended to lay down some ground rules for such agreements.438 They now allow both charge bargaining – the condition that the OTP apply to amend the indictment to drop charges – and sentence bargaining – the condition that the OTP propose a certain sentence or sentencing range to the Chamber or not oppose such a sentence or sentencing range as proposed by the defence. Plea agreements are not binding on the Chamber.439 Following these amendments, there have been quite a number of plea agreements before the Tribunals and both sentence bargaining and charge bargaining have occurred. At the ICTY, the first two cases of guilty pleas only led to limited reduction of the charges.440 This changed with the case of Stefan Todorovic´, who pleaded guilty to one count of persecution as a crime against humanity in exchange for the withdrawal of 26 counts of crimes against humanity and war crimes.441 Later cases would follow sometimes one, sometimes the other of these early examples: some Chambers have cautioned that the amended indictment should continue to reflect the ‘totality of . . . criminal conduct’,442 and indeed there have been a number of cases where no charges were dropped at all443 or where the defendant pleaded 435   See, eg ICTY, Statement by the President Made at  a Briefing to Members of Diplomatic Missions, IT/29, 11 February 1994. This statement is, however, mostly concerned with immunity from prosecution for witnesses who are also suspects, not with rewards for guilty pleas of already indicted persons. 436   Prosecutor v Kambanda (Judgment and Sentence) ICTR-97-23, Trial Chamber (4 September 1998), paras 60–62. 437   See Tieger and Shin (2005), 667. 438   r 62ter RPE-ICTY (added in December 2001) and r 62bis RPE-ICTR (added in May 2003). 439   r 62ter (B) RPE-ICTY; r 62bis(B) RPE-ICTR. 440   In Erdemovi´c, there was only the question whether the crime of murder would be prosecuted only as a war crime or also as a crime against humanity ((Judgment, Joint Separate Opinion of Judge McDonald and Judge Vohrah) IT-96-22, Appeals Chamber (7 October 1997), paras 17–27). In Jelisi´c, the genocide charge was not withdrawn, but an acquittal entered under r 98bis as the Trial Chamber found that  prosecution had not made its case ((Judgment) IT-95-10, Trial Chamber (14 December 1999), paras  99–108). The Appeals Chamber, while finding the Trial Chamber to be in error in that regard, nonetheless did not order a retrial, but this seems to have been based on fair trial considerations and judicial economy rather than the guilty plea ((Judgment), Appeals Chamber (5 July 2001), paras 73–77). 441   Prosecutor v Todorovi´c (Sentencing Judgment) IT-95-9/1, Trial Chamber (31 July 2001), paras  5, 8. 442   Prosecutor v Momir Nikoli´c (Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), paras 50, 65. 443   See, eg Prosecutor v Bralo (Sentencing Judgment) IT-95-17, Trial Chamber (7 December 2005), para  3; Prosecutor v Ceši´c (Sentencing Judgment) IT-95-10/1, Trial Chamber (11 March 2004), para 4; Prosecutor v Dragan Nikoli´c (Sentencing Judgment) IT-94-2, Trial Chamber (18 March 2003), paras 35–36.

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The Position of the Defendant in the Trial guilty to a substantial part of the charges.444 On the other hand, there have also been cases in which serious charges were dropped in exchange for a plea of guilty on a single count of persecution.445 In at least one other case, the dropping of charges may also have been a reward for cooperation in other respects. One important element of the plea agreement in Todorovic´ was that he agreed to discontinue proceedings concerning the lawfulness of his arrest.446 As concerns sentencing, the ICTY generally considers a plea of guilty as a factor in mitigation of sentence, arguing that guilty pleas not only help save judicial time and resources and relieve witnesses from having to give evidence before the Tribunal,447 but also help establish the truth,448 both in and of themselves and by encouraging others who have committed crimes to step forward.449 They also ‘contribute to the process of national reconciliation’450 and ‘help . . . protect against any kind of revisionism’.451 As guilty pleas are generally452 a mitigating factor, it is to be expected that sentences imposed after guilty pleas will, generally, be lower than average. Additionally, many plea agreements have included an agreement between the parties to propose a sentence or sentencing range to the Chamber, and while Chambers are not bound by these proposals,453 they have often pronounced 444   See, eg Prosecutor v Mrd-a (Sentencing Judgment) IT -02-59, Trial Chamber (31 March 2004), paras 4–5; Prosecutor v Raji´c (Sentencing Judgment) IT-95-12, Trial Chamber (8 May 2006), paras 8–9, 12; Prosecutor v Milan Simi´c (Sentencing Judgment) IT-95-9/2, Trial Chamber (17 October 2002), paras  10, 21–22; Prosecutor v Zelenovi´c (Sentencing Judgment) IT-96-23/2, Trial Chamber (4 April 2007), paras 10, 13. 445   See, eg Prosecutor v Babi´c (Sentencing Judgment) IT-03-72, Trial Chamber (29 June 2004), paras  5–12; Prosecutor v Predrag Banovi´c (Sentencing Judgment) IT-02-65/1, Trial Chamber (28 October 2003), paras 8–14; Prosecutor v Sikirica et al (Sentencing Judgment) IT-95-8, Trial Chamber (13 November 2001), paras 18, 26, 32, 39. 446   See Prosecutor v Todorovi´c (Sentencing Judgment) IT-95-9/1, Trial Chamber (31 July 2001), paras 4–5. 447   Prosecutor v Erdemovi´c (Sentencing Judgment) IT-96-22, Trial Chamber (5 March 1998), para 450. Guilty pleas are accorded more weight if they happen early, preferably before the start of the actual trial, but defendants pleading immediately before the beginning of the defence case or even after the defence case still receive some credit for their plea: Prosecutor v Sikirica et al (Sentencing Judgment) IT-95-8, Trial Chamber (13 November 2001), paras 148–51, 193, 228. 448   Prosecutor v Dragan Nikoli´c (Sentencing Judgment) IT-94-2, Trial Chamber (18 December 2003), para 248; Prosecutor v Predrag Banovi´c (Sentencing Judgment) IT-02-65/1, Trial Chamber (28 October 2003), para 68. 449   Prosecutor v Erdemovi´c (Sentencing Judgment) IT-96-22, Trial Chamber (5 March 1998), para 16. 450   Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), para 70. 451   Prosecutor v Deronji´c (Sentencing Judgment) IT-02-61, Trial Chamber (30 March 2004), para 3. The Chamber, however, also warned (at para 135) that the incentives provided by a plea agreement may lead to a distorted view of the historical facts. Similarly Prosecutor v Momir Nikoli´c (Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), paras 57, 65–66, 69–73. 452   There are, however, exceptions: in Jelisi´c, the Trial Chamber declined to reduce the sentence significantly as the defendant did not show any remorse ((Judgment) IT-95-10, Trial Chamber (14 December 1999), para 127). 453   They are, however, obliged to take these recommendations into account: Prosecutor v Babi´c (Judgment on Sentencing Appeal) IT-03-72, Appeals Chamber (18 November 2006), para  31;

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Position vis-à-vis the Court sentences within that range. In some plea agreements, parties have agreed that they would not appeal a sentence that fell within the agreed sentencing range, thus providing an incentive for the Chamber to pronounce a sentence within that range.454 Some commentators have argued that guilty pleas result in particularly low sentences, especially at the ICTY,455 and in Erdemovic´, the prosecutor reportedly stated that a guilty plea could result in a 50–75 per cent sentence reduction.456 Whether it can be said that guilty pleas generally result in particularly low sentences, or what precise effect they do have on the length of sentences, is quite hard to measure as Chambers hardly ever put any numerical value on mitigating factors and as comparison between cases before criminal tribunals is an inexact science at best.457 A general trend may, however, be drawn from a comparison of all final sentences imposed on defendants convicted after a guilty plea and on defendants convicted after a full trial. As of December 2011, a total of 20 defendants at the ICTY have been convicted upon a guilty plea. Of the 15 cases where the parties had in some form agreed to propose a sentence to the Chamber, 12 sentences fell within the range proposed, two sentences were longer458 and one shorter459 than the proposal. As the following tables show, when comparing sentences that have become final, the sentencing ranges for those who had and those who had not pleaded guilty are rather similar and the average sentence after guilty pleas is only about one-sixth below that in other cases. This difference, moreover, is not due to guilty pleas leading to particularly low sentences – in fact, the percentage of particularly low sentences of less than 10 years is less for those who pleaded guilty than for Prosecutor v Dragan Nikoli´c (Judgment on Sentencing Appeal) IT-94-2, Appeals Chamber (4 February 2005), para 89. 454   See, eg Prosecutor v Todorovi´c (Sentencing Judgment) IT-95-9/1, Trial Chamber (31 July 2001), para 11. 455   See Harmon and Gaynor (2007), 686, fnn 9; 703, 705, fn 101. 456   IWPR, Tribunal Update 244, 17 November 2001, ‘Analysis: Confessions Rewarded’. 457   The Appeals Chamber has often noted that comparison of cases before both Tribunals is of very limited value in general, see, eg Prosecutor v Kvocˇka et al (Judgment) IT-98-30/1, Appeals Chamber (28 February 2005), para  681; Prosecutor v Kamuhanda (Judgment) ICTR-99-54, Appeals Chamber (19 September 2005), paras 361–62; Prosecutor v Musema (Judgment) ICTR-96-13, Appeals Chamber (16 November 2001), paras 387–90; Prosecutor v Serushago (Reasons for Judgment) ICTR-98-39, Appeals Chamber (6 April 2000), para 27. However, comparisons on a more limited basis, especially between co-defendants, have sometimes been accepted: Prosecutor v Zelenovi´c (Sentencing Judgment) IT-9623/2, Trial Chamber 4 April 2007, paras 65–68; Prosecutor v Kayishmema and Ruzindana (Sentence) ICTR-95-1, Trial Chamber (21 May 1999), para 26. 458   Prosecutor v Babi´c (Judgment) IT-03-72, Trial Chamber (29 June 2004), paras 6, 102 (13 years, no more than 11 years had been proposed); Prosecutor v Dragan Nikoli´c (Judgment) IT-94-2, Trial Chamber (18 December 2003), para 275 and Disposition (23 years, 15 years had been proposed; the sentence was revised to 20 years on appeal – (Judgment on Sentencing Appeal) IT-94-2, Appeals Chamber (4 February 2005), Disposition). In the Momir Nikoli´c case, the sentence was above the range ((Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), paras  172, 183 – 27 years, proposal had been 15 to 20 years), but was reduced on appeal ((Judgment on Sentencing Appeal) IT-02-60/1, Appeals Chamber (8 March 2006), para 135 – 20 years). 459   Prosecutor v Erdemovi´c (Sentencing Judgment) IT-96-22, Trial Chamber (5 March 1998), paras 18, 23 (five years, proposal had been seven years).

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The Position of the Defendant in the Trial Sentence460 Below 10 years 10–19 years 20 years and above Average461 Median Range

Guilty Plea (20) 30% (6) 50% (10) 20% (4) 13.6 years 12.5 years 3–40 years

Full Trial (44) 32% (14) 34% (15) 34% (15) 16.3 years 15 years 2 years to life

All (64) 31% (20) 39% (25) 30% (19) 15.4 years 15 years 2 years to life

Figure 1: Comparison of final sentences imposed on those who had pleaded guilty to those of other defendants (sentences final as of December 2011). Guilty Plea (20)

Full Trial (62)

Below 10 years

Sentence

30% (6)

26% (16)

27% (22)

10–19 years

50% (10)

32% (20)

37% (30)

20 years and above

All (82)

20% (4)

42% (26)

37% (30)

Average

13.6 years

18.6 years

17.3 years

Median

12.5 years

18 years

15 years

Range

3–40 years

2 years to life

2 years to life

Figure 2: Comparison of all sentences, including those which have not become final.

those who did not, and the lowest sentence passed by the Tribunal concerns a defendant who had not pleaded guilty.462 However, defendants who pleaded guilty only rarely received a particularly high sentence of 20 years or more. This comparison is, of course, based on the presupposition that on average, the crimes committed by both groups of defendants are of similar magnitude. If this is not the case, any difference in sentences may simply be due to the difference in crimes. However, given that both those pleading guilty and those convicted after a full trial include defendants ranging from camp guards to high-ranking military commanders involved in the fall of Srebrenica, I believe that the crimes committed by the two groups are generally comparable, at least enough so that one can 460   Where the Chambers pronounced individual sentences for each count, but ordered that these were to be served concurrently, I have taken into account the ‘effective’ sentence. 461   In order to be able to compute the average sentence length, a life sentence had to be stated as an equivalent fixed-term sentence. Trial Chambers have imposed sentences of 45 and 46 years (Prosecutor v Blaški´c (Judgment) IT-95-14, Trial Chamber (3 March 2000), Disposition; Prosecutor v Krsti´c (Judgment) IT-98-33, Trial Chamber (2 August 2001), para 727), but the highest fixed-term sentences to become final have been sentences of 40 years (Prosecutor v Jelisi´c (Judgment) IT-95-10, Trial Chamber (14 December 1999), para 139; Prosecutor v Staki´c (Judgment) IT-97-24, Appeals Chamber (22 March 2006), Disposition). In Staki´c, this sentence was explained as resulting from a rather limited reduction of the original life sentence (ibid, para 428). I therefore assigned the life sentence a value of 45 years, five years more than the highest fixed-term sentence. I have not differentiated between life sentences and sentences for the remainder of the defendant’s life as there are reasons to believe that there is not, in effect, a practical difference between these two types of sentence – see Mujuzi (2010), 855. 462   Prosecutor v Hadžihasanovi´c and Kubura (Judgment) IT-01-47, Appeals Chamber (22 April 2008), Disposition.

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Position vis-à-vis the Court draw some general conclusions. It should also be noted that a more robust statistical evaluation of ICTY sentences up to the year 2009 led to the conclusion that guilty pleas, when compared to other mitigating circumstances, did not lead to any statistically higher reduction in sentences.463 When also taking into account sentences that are not final, the difference is a bit more pronounced, with average sentences after guilty pleas about 27 per cent lower than sentences after full trial. This is likely due to the fact that the roster of those currently appealing their convictions and sentences differs in makeup from that of those whose sentences are final, consisting as it does almost entirely of senior military personnel of the Bosnian Serb, Bosnian Croat and Serbian armed forces convicted in Gotovina et al, Popovic´ et al and Milutinovic´ et al, Đord-evic´ and Perišic´, respectively. Out of the nine cases resolved by guilty pleas before the ICTR, seven involved some form of charge bargaining. In four cases, this resulted in several charges, including genocide charges, being dropped, leaving only one or two counts of murder and/or extermination.464 This, however, was not necessarily a reward for cooperation – it seems that there was no evidence for conviction on the dropped charges anyway, as the OTP openly acknowledged in two cases.465 Three other cases saw less pronounced charge bargaining.466 There was no charge bargaining in the case of Jean Kambanda, former Prime Minister and the first defendant to admit that the genocide had occurred.467 As concerns sentencing, the ICTR deals with guilty pleas very similarly to the ICTY, generally considering them as a mitigating factor as they save judicial time and resources and relieve witnesses from having to give evidence.468 They also help to establish the truth and may contribute to national reconciliation.469   Holá et al (2009), 94.   Prosecutor v Nzabirinda (Sentencing Judgment) ICTR-01-77, Trial Chamber (23 February 2007), paras 3–4; Prosecutor v Rutaganira (Judgment and Sentence) ICTR-95-1C, Trial Chamber (14 March 2005), paras 9, 15–16; Prosecutor v Bisengimana (Judgment and Sentence) ICTR-00-06, Trial Chamber (13 April 2006), paras  1, 7; Prosecutor v Rugambarara (Sentencing Judgment) ICTR-00-59, Trial Chamber (16 November 2007), paras 2–5. 465   Prosecutor v Nzabirinda (Sentencing Judgment) ICTR-01-77, Trial Chamber (23 February 2007), para  44; Prosecutor v Rutaganira (Judgment and Sentence) ICTR-95-1C, Trial Chamber (14 March 2005), paras 16, 103–04. In the other two cases, the defendants were convicted of aiding and abetting (by failing to act) murder and extermination ((Prosecutor v Bisengimana (Judgment and Sentence) ICTR-00-60, Trial Chamber (13 April 2006), paras 81, 94–95) and of extermination under command responsibility for failure to punish subordinates (Prosecutor v Rugambarara (Sentencing Judgment) ICTR-00-59, Trial Chamber (16 November 2007), para  9) – gaining a conviction on the genocide charges would not seem to have been easy in these cases. 466   Prosecutor v Serushago (Sentence) ICTR-98-39, Trial Chamber (5 February 1999), para 4; Prosecutor v Serugendo (Judgment and Sentence) ICTR-2005-84, Trial Chamber (12 June 2006), paras 3–5; Prosecutor v Bagaragaza (Sentencing Judgment) ICTR-05-86, Trial Chamber (17 November 2009), para 11. 467   Prosecutor v Kambanda (Judgment and Sentence) ICTR-97-23, Trial Chamber (4 September 1998), paras 5, 39. 468   Prosecutor v Kambanda (Judgment and Sentence) ICTR-97-23, Trial Chamber (4 September 1998), para  54; Prosecutor v Ruggiu (Judgment and Sentence) ICTR-97-32, Trial Chamber (1 June 2000), para 53; Prosecutor v Serugendo (Judgment and Sentence) ICTR-2005-84, Trial Chamber (12 June 2006), para 82. 469   Prosecutor v Rutaganira (Judgment and Sentence) ICTY-95-1C, Trial Chamber (14 March 2005), 463 464

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The Position of the Defendant in the Trial Comparing the resulting sentences for the ICTR leads to a somewhat different picture than at the ICTY: of the nine defendants sentenced after a guilty plea, four were sentenced to between six and eight years,470 four to between 11 and 15 years471 and one to life imprisonment.472 In the six cases where there was some form of common sentencing proposal of the parties, the Chambers followed that recommendation in five cases473 and slightly exceeded it in one.474 By contrast, many of those found guilty after a full trial were given particularly long sentences, including in many cases life imprisonment. Sentence Up to 15 years 20–45 years Life Average

Guilty Plea (9)

Full Trial (32)

89% (8)

13% (4)

All Convicted (41) 29% (12)

N/A

50% (16)

39% (16)

11% (1)

38% (12)

32% (13)

14.4 years

35.2 years

30.7 years

Median

11 years

35 years

27 years

Range

6 years to life

10 years to life

6 years to life

475

Figure 3: Comparison of sentences which are final as of December 2011.

para  146, 150; Prosecutor v Bisengimana (Judgment and Sentence) ICTR-00-21, Trial Chamber (13 April 2006), para 139; Prosecutor v Serugendo (Judgment and Sentence) ICTR-2005-84, Trial Chamber (12 June 2006), paras 53, 55. 470   Prosecutor v Serugendo (Judgment and Sentence) ICTR-2005-84, Trial Chamber (12 June 2006); Prosecutor v Nzabirinda (Sentencing Judgment) ICTR-01-77, Trial Chamber (23 February 2007); Prosecutor v Rutaganira (Judgment and Sentence) ICTR-95-1C, Trial Chamber (14 March 2005); Prosecutor v Bagaragaza (Sentencing Judgment) ICTR-05-86, Trial Chamber (17 November 2009). 471   Prosecutor v Serushago (Sentence) ICTR-98-39, Trial Chamber (5 February 1999); Prosecutor v Ruggiu (Judgment and Sentence) ICTR-97-32, Trial Chamber (1 June 2000); Prosecutor v Bisengimana (Judgment and Sentence) ICTR-00-60, Trial Chamber (13 April 2006); Prosecutor v Rugambarara (Sentencing Judgment) ICTR-00-59, Trial Chamber (16 November 2007). 472   Prosecutor v Kambanda (Judgment and Sentence) ICTR-97-23, Trial Chamber (4 September 1998). 473   Prosecutor v Serugendo (Judgment and Sentence) ICTR-2005-84, Trial Chamber (12 June 2006), para 8, Disposition; Prosecutor v Nzabirinda (Sentencing Judgment) ICTR-01-77, Trial Chamber (23 February 2007), paras 97, 116; Prosecutor v Rutaganira (Judgment and Sentence) ICTR-95-1C, Trial Chamber (14 March 2005), para 167, Disposition; Prosecutor v Rugambarara (Judgment and Sentence) ICTR-00-59, Trial Chamber (16 November 2007), paras 48, 61; Prosecutor v Bagaragaza (Sentencing Judgment) ICTR-05-86, Trial Chamber (17 November 2009), paras 41, 44. 474   Prosecutor v Bisengimana (Judgment and Sentence) ICTR-00-60, Trial Chamber (13 April 2006), paras 184, 203. 475   I attached a numerical value of 50 years to life sentences given the ICTR’s harsher sentencing regime. I based this number, inter alia, on Kajelijeli, where the reduction of a sentence of life imprisonment due to serious human rights violations during arrest and detention led to a fixed term sentence of 45 years (Prosecutor v Kajelijeli (Judgment) ICTR-98-44A, Appeals Chamber (23 May 2005), paras  324–25). I again did not differentiate between life imprisonment and imprisonment for the remainder of the defendant’s life, see above n 461.

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Position vis-à-vis the Court Sentence Up to 15 years

Guilty Plea (9)

Full Trial (49)

All Convicted (58)

89% (8)

12% (6)

24% (14)

N/A

51% (25)

43% (25)

11% (1)

37% (18)

33% (19)

Average

14.4 years

34.8 years

31.6 years

Median

11 years

32 years

30 years

Range

6 years to life

10 years to life

6 years to life

20–45 years Life

Figure 4: Comparison of all sentences, including those which have not become final.

This, of course, shows a very significant reduction in sentence for pleading guilty. However, contrary to cases at the ICTY, the two groups cannot actually be compared when it comes to severity of crimes and other non-plea related sentencing factors. Of those who had pleaded guilty, four were convicted only of crimes against humanity, and in rather passive roles at that.476 Also, two of the guilty plea cases show additional aspects which arguably render them incomparable to other cases in any event. In Nzabirinda, the prosecution had agreed to propose a sentence of between five and eight years in exchange for a guilty plea at a time when the defendant had been detained for almost five years with no indication that the trial was about to start. Thus even if he had been tried and acquitted, he would likely have spent more time in detention than if he agreed to plead guilty. These are circumstances in which pleading guilty was simply the rational course to follow, independent of any consideration of guilt or innocence. The case of Joseph Serugendo must also be exempted from any comparison as he was, at the time of sentencing, unfit to stand trial and as any prison sentence would have led to him dying in custody anyway.477 There thus remain only four guilty plea cases suitable for comparison, namely those of Michel Bagaragaza, sentenced to eight years for complicity in genocice, George Ruggiu, sentenced to 12 years for incitement to genocide, Omar Serushago, sentenced to 15 years for genocide and crimes against humanity and Jean Kambanda, sentenced to life imprisonment for genocide and crimes against humanity. By contrast, as noted in Rukundo, the default penalty for (incitement to) genocide, absent a guilty plea or other particularly mitigating circumstances, is either life imprisonment or a sentence of at least 25 years.478 476   Rutaganira was convicted of aiding and abetting ‘as an accomplice by omission’ while under duress ((Judgment and Sentence) ICTR-95-1C, Trial Chamber (14 March 2005), para 162), Nzabirinda of ‘aiding and abetting . . . as an accomplice by omission in the preparation of the commission of the crime’ ((Sentencing Judgment) ICTR-01-77, Trial Chamber (23 February 2007), para  4); on Bisengimana and Rugambarara see above n 465. 477   See above 33. 478   Prosecutor v Rukundo (Judgment and Sentence) ICTR-01-70, Trial Chamber (27 February 2009), para 605, referring to Prosecutor v Gacumbitsi (Judgment) ICTR-01-64, Appeals Chamber (7 July 2006), para 204.

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The Position of the Defendant in the Trial When compared against this group, the sentences in Bagaragaza, Serushago and Ruggiu show a rather significant sentence reduction. Of course, it should also be noted that Serushago and Bagaragaza did more than just plead guilty: Serushago had, inter alia, voluntarily surrendered before being indicted, had cooperated extensively and had exhibited significant potential for rehabilitation – in short, he ‘benefited from virtually every mitigating factor considered by the Tribunal’.479 Bagaragaza had also cooperated with the prosecution ‘to an unusually high degree’.480 On the other hand, the case of Jean Kambanda shows that for high-level offenders, even an early guilty plea and substantial cooperation does not guarantee that the defendant be spared the maximum sentence of life imprisonment. However, it should also be noted that this case was decided at the very beginning of the Tribunal’s work. At both tribunals, plea agreements may also include rewards other than dropped charges or the promise of a reduced sentence: thus one major motivation for the guilty plea of Jean Kambanda was that he was afraid of reprisals against his family in Rwanda and the prosecution had offered to adopt protection measures in exchange for the plea.481 Similar measures were adopted with regard to the family of Joseph Serugendo.482 In Plavšic´, the defendant, who had earlier been granted provisional release, was allowed to enter her plea of guilty via video-link while on release and, given the ‘exceptional circumstances’ of the proceedings, to remain on provisional release until the sentencing hearing and after the sentencing hearing until the passing of the sentencing judgment.483 While the plea agreement did not mention questions of provisional release,484 the fact that the applications for release were not opposed by the prosecution485 would seem to indicate that there was at least a tacit agreement that such release was one of the considerations granted in exchange for the guilty plea. Some plea agreements at the ICTR contained a promise by the prosecution that it would propose, or not oppose a defence proposal, that the defendant be allowed to serve the sentence in a specific country.486 Such proposals are, however, not   Sloane (2007), 730–31.   Prosecutor v Bagaragaza (Sentencing Judgment) ICTR-05-86, Trial Chamber (17 November 2009), paras 36–40. 481   Prosecutor v Kambanda (Judgment and Sentence) ICTR-97-23, Trial Chamber (4 September 1998), para 49. 482   Statement at Conference ICTR, ‘Model or Counter Model for International Criminal Justice? The Perspectives of the Stakeholders’, Session 5: Debates with Prosecutors, 11 July 2009, pp 8–9, available at: www.unictr.org/Portals/0/English%5CNews%5Cevents%5Cjuly2009%5CSESSION5.pdf. 483   See Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), para 4. 484   Prosecutor v Plavši´c (Plea Agreement) IT-00-39&40/1, Defence/Prosecution (30 August 2002). 485   Prosecutor v Plavši´c (Transcript of 2 October 2002) IT-00-39&49/1, Trial Chamber, 343; (Order for Continuation of Provisional Release), Trial Chamber, 18 December 2002. 486   Prosecutor v Nzabirinda (Sentencing Judgment) ICTR-01-77, Trial Chamber (23 February 2007), para  97; Prosecutor v Bisengimana (Judgment and Sentence) ICTR-00-60, Trial Chamber (13 April 2006), paras 187, 190. 479 480

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Position vis-à-vis the Court binding on the President in the determination of the state in which a sentence is to be served,487 and none of these defendants have been transferred to any state yet. Only two defendants were transferred to European states and both had pleaded guilty. In the case of Georges Ruggiu, who was transferred to Italy,488 this was likely based chiefly on the fact that Ruggiu is an Italian citizen. In the case of Michel Bagaragaza, who was transferred to Sweden, this was likely in partial fulfilment of a prosecution promise ‘not to detain or prosecute him on African soil’ in exchange for extensive cooperation.489 Plea agreements may also refer to other acts of cooperation by the defendant besides pleading guilty, such as agreeing not to pursue certain legal avenues. An example is the agreement not to continue the proceedings challenging the legality of the arrest in Todorovic´. While the Chamber did not explicitly take into account this factor in sentencing,490 it may well have been rewarded in the context both of charge bargaining and of the sentencing recommendation of the prosecution. Finally, one should note a result of guilty pleas before the ICTY which is not strictly speaking a reward for the guilty plea, but which may well have been a consideration for the defendants in deciding to plead guilty: pleading guilty ensures that cases are not transferred to national jurisdictions. This effect can be seen in the cases of Rajic´ and Zelenovic´, Bosnian Serbs whose cases could have been transferred to Bosnia and Herzegovina. Rajic´ had been in Tribunal custody for over two years and had pleaded not guilty when the prosecution moved for transfer under Rule 11bis. Soon thereafter, Rajic´ changed his plea to guilty and the prosecution withdrew the referral motion after the sentencing hearing.491 Dragan Zelenovic´ had also initially pleaded not guilty and had changed his plea to guilty after the Rule 11bis hearing on referral of his case had concluded, but before the Chamber had arrived at a decision on referral.492 The prosecution withdrew the motion for referral after Zelenovic´’s conviction and sentence had become final. There was no acknowledgment of any connection between the guilty plea and the possibility of a referral to Bosnia in Zelenovic´, and in Rajic´, both defence and prosecution formally stated that there was no such link.493 However, the veracity of that statement is open to serious doubts given the timing of events.

487   As noted in Prosecutor v Nzabirinda (Sentencing Judgment) ICTR-01-77, Trial Chamber (23 February 2007), para  119; Prosecutor v Bisengimana (Judgment and Sentence) ICTR-00-60, Trial Chamber (13 April 2006), para 206. 488   Prosecutor v Ruggiu (Decision on the Enforcement of Sentence) ICTR-97-32, Trial Chamber (13 February 2008). 489   See below 122–22. 490   Prosecutor v Todorovi´c (Sentencing Judgment) IT-95-9/1, Trial Chamber (31 July 2001), paras 74 et seq. 491   Prosecutor v Raji´c (Sentencing Judgment) IT-95-12, Trial Chamber (8 May 2006), paras 4–8. 492   Prosecutor v Zelenovi´c (Sentencing Judgment) IT-96-23/2, Trial Chamber (4 April 2007), paras 3, 6–7, 9–10. 493   Prosecutor v Raji´c (Sentencing Judgment) IT-95-12, Trial Chamber (8 May 2006), para 144.

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The Position of the Defendant in the Trial

(c) Other Rewards for Cooperation The legal texts do not deal directly494 with other rewards for cooperation against other defendants. Procedurally, however, even full withdrawal of the indictment would be feasible with the leave of the Chamber.495 So far, at neither Tribunal has the prosecution ever sought this remedy in exchange for testimony.496 However, the case of Juvénal Uwilingiyimana seems to show that the ICTR prosecution would at least consider this option. Uwilingiyimana had offered to cooperate with the OTP as an inside witness and provide information concerning top officials. Although he was indicted and there was a warrant of arrest for him, the OTP did not seek his arrest, but rather met with him to take his statements several times while he was still at large. It did not at that stage withdraw the indictment against Uwilingiyimana, but agreed that his statement could only be used upon the conclusion of ‘an agreement . . . between him and the Prosecutor regarding his case at the ICTR’. What precise content such an agreement could have had would never become public as Uwilingiyimana was found dead, apparently murdered, before he could finish his statements to the OTP.497 It should also be noted that whether this case was one of rewards being offered for cooperation or rather of threats being used to elicit cooperation is subject to dispute.498 One reward that was promised, as something of a counterpart to the nonreferral of cases in Zelenovic´ and Rajic´, was a referral away from the ICTR. Michel Bagaragaza, a former member of the Rwandan President’s ‘inner circle’, agreed to be extensively interviewed before surrender to the ICTR in exchange for ‘direct payments prior to his arrest [and] the payment of costs incurred in relocating and

494   r 90(E) RPE-ICTY/RPE-ICTR does, however, deal with the opposite case of witness testimony which might incriminate the witness. 495   r 51 RPE-ICTY/RPE-ICTR. 496   At the ICTR, two indictments were withdrawn because of insufficient evidence (Prosecutor v Rusatira (Decision on the Prosecutor’s ex parte Application for Leave to Withdraw the Indictment), ICTR-02-80, Trial Chamber (14 August 2002)) or in light of national proceedings for the same crimes (Prosecutor v Ntuyahaga (Decision on the Prosecutor’s Motion to Withdraw the Indictment), ICTR98-40, Trial Chamber (18 March 1999)). At the ICTY, indictments were withdrawn to be dealt with by national courts (see ICTY Press Release of 9 May 1998, ‘Statement by the Prosecutor following the Withdrawal of the Charges against 14 Accused’; Press Release of 4 October 2002, ‘Indictment Against Zoran Marinić Withdrawn’), because of insufficient evidence (see Press Release of 19 December 1997, ‘Prosecutor Has Filed Motions to Withdraw Four Indictments’; Press Release of 11 April 2002, ‘Nenad Banović Released from ICTY Custody following an Order by Trial Chamber III Withdrawing his Indictment’; Press Release of 29 July 2002, ‘Indictment Against Milan Zec Withdrawn’) or because the arrested person was apparently not the person named in the indictment (Prosecutor v Limaj et al (Transcript of 28 February 2003) IT-03-66, Trial Chamber). 497   ICTR, Press Release of 23 December 2005, ‘Prosecutor’s Statement Regarding the Death of ICTR Indictee Juvénal Uwilingiyimana’. For more on the controversy surrounding his death, see a letter sent to the ICTR President on 5 December 2005 by all ICTR detainees, available at  www.internationalcrimesblog.com/ICTR_PC_letter.pdf. 498   See the presentation by his daughter and counsel who defended one of those against whom Uwilingiyimana was supposed to testify (Abingeneye and Philpot (2010)).

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Position vis-à-vis the Court supporting his family’499 and a prosecution promise ‘not to detain or prosecute him on African soil’.500 The prosecution would, however, keep only part of its promise. A prosecution motion for referral under Rule 11bis RPE-ICTR to Norway was denied,501 and a motion for referral to the Netherlands was first granted, but later revoked when it became clear that Dutch courts did not have jurisdiction over the Rwandan genocide.502 Bagaragaza was initially detained at the UNDU in The Hague while referral proceedings were ongoing, but was transferred to the UNDF in Arusha after his return from the Netherlands.503 He pleaded guilty before the ICTR pursuant to a plea agreement, and the parties jointly recommended a sentence between six and 10 years.504 The Chamber sentenced Bagaragaza to eight years’ imprisonment in light of his guilty plea, statement of remorse and the fact that he had cooperated with the prosecution ‘to an unusually high degree’.505 He was transferred to Sweden to serve his sentence,506 becoming the only convicted person besides Georges Ruggiu to serve his sentence in Europe. He was also granted early release having served a little over three-quarters of his sentence, becoming the first and so far only convicted person to be granted early release by the ICTR.507 As to sentencing, while the RPE only expressly mention ‘substantial cooperation’ with the prosecution as a mitigating factor,508 both Tribunals have also considered a number of other factors. Thus, statements confessing to crimes were 499   Prosecutor v Bagaragaza (Agreement between the Prosecutor the ICTR [sic] and Bagaragaza) ICTR-05-86, Prosecution/Defence (18 December 2004), as cited in Prosecutor v Zigiranyirazo (Judgment) ICTR-01-7, Trial Chamber (18 December 2008), para 139. 500   Prosecutor v Bagaragaza (Decision on Defence Application for Modification of Detention Conditions of the Accused) ICTR-05-86, President (29 August 2007), paras  9, 11. The agreement apparently contained a clause on continued negotiations should the transfer fail ((Decision on Rule 11bis Appeal), Appeals Chamber (30 August 2006), para 3, fn 8). 501   Prosecutor v Bagaragaza (Decision on the Prosecution Motion for Referral to the Kingdom of Norway), ICTR-05-86, Referral Bench (19 May 2006), paras 16–17; (Decision on Rule 11bis Appeal), Appeals Chamber (30 August 2006), paras 17–19. 502   Prosecutor v Bagaragaza (Decision on the Prosecution Motion for Referral of the Indictment to  the Kingdom of the Netherlands, Rule 11bis of the Rules of Procedure and Evidence) ICTR-0586, Referral Bench (13 April 2007), para 5; (Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands Pursuant to Rule 11bis(F) and (G)), Referral Bench (17 August 2007). Interestingly, the defence had already earlier argued against the jurisdiction of the Netherlands as far as genocide was concerned (Decision on the Prosecution Motion for Referral of the Indictment to the Kingdom of the Netherlands, Rule 11bis of the Rules of Procedure and Evidence), Referral Bench (13 April 2007), paras 18, 20–21). Given that the defence had also agreed to an amendment of the indictment in which one count of a war crime had been added in the alternative to the genocide count, it seems likely they had hoped for a trial in the Netherlands only for war crimes. 503   Prosecutor v Bagaragaza (Decision on Defence Application for Modification of Detention Conditions of the Accused, Rules 19 and 64 of the Rules of Procedure and Evidence) ICTR-05-86, President (29 August 2007). 504   Prosecutor v Bagaragaza (Sentencing Judgment) ICTR-05-86, Trial Chamber (17 November 2009), paras 8–11, 15–16, 41. 505   ibid, paras 34 et seq. 506   Prosecutor v Bagaragaza (Decision on the Enforcement of Sentence) ICTR-05-86, President (28 June 2010). 507   Prosecutor v Bagaragaza (Decision on the Early Release of Michel Bagaragaza) ICTR-05-86, President (24 October 2011), paras 13–17. 508   r 101 RPE-ICTY/RPE-ICTR.

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The Position of the Defendant in the Trial also considered as a mitigating factor where defendants had pleaded not guilty,509 as were statements of remorse.510 Statements of ‘empathy’ with victims or statements ‘acknowledg[ing] the work’ of the Tribunal were also considered in mitigation, even where they did not entail an admission of personal guilt.511 In a few cases, however, the Chambers declined to take into account such statements as they did not feel that the remorse expressed was real and sincere.512 Another mitigating factor that may also apply to defendants who had pleaded not guilty513 is cooperation with the OTP.514 The amount of mitigation depends on the quantity and quality of information provided,515 and cooperation is valued more highly if provided in a ‘selfless’ manner.516 Some Chambers have also rewarded defendants who chose to testify in their own case,517 especially where they did so early in the trial.518 Chambers have also sometimes accepted as mitigating factors voluntary surrender of the defendant,519 compliance with terms of provisional release,520 or good conduct during detention,521 but have generally not attached significant 509   Prosecutor v Muci´c et al (Judgment) IT-96-21, Trial Chamber (16 November 1998), para 1279 (although the Chamber did not accept this as a mitigating factor in this case). 510   Prosecutor v Todorovi´c (Sentencing Judgment) IT-95-9/1, Trial Chamber (31 July 2001), paras 90–92; Prosecutor v Predrag Banovi´c (Sentencing Judgment) IT-95-10, Trial Chamber 28 October 2003, para 72. 511   Prosecutor v Vasiljevi´c (Judgment) IT-98-32, Appeals Chamber (25 February 2004), para  177; Prosecutor v Brd-anin (Judgment) IT-99-36, Trial Chamber (1 September 2004), para 1139; Prosecutor v Strugar (Judgment) IT-01-42, Trial Chamber (31 January 2005), paras  470–71; Prosecutor v Ori´c (Judgment) IT-03-68, Trial Chamber (30 June 2006), para  752 (remorse stated through counsel); Prosecutor v Popovi´c et al (Judgment) IT-05-88, Trial Chamber (10 June 2010), para 2178; Military II (Judgment) ICTR-00-56, Trial Chamber (30 September 2011), para 2006. 512   Prosecutor v Jelisi´c (Judgment) IT-95-10, Trial Chamber (14 December 1999), para  127; similarly Prosecutor v Blaški´c (Judgment) IT-95-14, Trial Chamber (3 March 2000), para  775 (but see (Judgment), Appeals Chamber (29 July 2004), para 705). 513   See, eg Prosecutor v Blagojevi´c and Joki´c (Judgment) IT-02-60, Trial Chamber (17 January 2005), para 857. See also Prosecutor v Ruggiu (Judgment and Sentence) ICTR-97-32, Trial Chamber (1 June 2000), para 57. 514   See Tieger and Shin (2005), 677 with references. 515   Prosecutor v Blaški´c (Judgment) IT-95-14, Trial Chamber (3 March 2000), para 774; Prosecutor v Nzabirinda, (Sentencing Judgment) ICTR-01-77, Trial Chamber (23 February 2007), para 73. 516   Prosecutor v Blaški´c (Judgment) IT-95-14, Trial Chamber (3 March 2000), para  774. Similarly Prosecutor v Babi´c (Sentencing Judgment) IT-03-72, Trial Chamber (29 June 2004), paras 70, 74–75. 517   Prosecutor v Blagoje Simi´c et al (Judgment) IT-95-9, Trial Chamber (17 October 2003), para 1101; Prosecutor v Kvocˇka et al (Judgment) IT-98-30/1, Trial Chamber (2 November 2001), paras 716, 743. 518   Prosecutor v Blagoje Simi´c et al (Judgment) IT-95-9, Trial Chamber (17 October 2003), para 1090. 519   Prosecutor v Strugar (Judgment) IT-01-42, Trial Chamber (31 January 2005), para 472; Prosecutor v Babi´c (Sentencing Judgment) IT-03-72, Trial Chamber (29 June 2004), para 86; Prosecutor v Deronji´c (Sentencing Judgment) IT-02-61, Trial Chamber (30 March 2004), para  266; Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), para  107; Prosecutor v Serushago (Sentence) ICTR-98-39, Trial Chamber (5 February 1999), para 34; Prosecutor v Rutaganira (Judgment and Sentence) ICTR-95-1C, Trial Chamber (14 March 2005), para 145. 520   Prosecutor v Miodrag Joki´c (Judgment on Sentencing Appeal) IT-01-42/1, Appeals Chamber (30 August 2005), para 82; Prosecutor v Hadžihasanovi´c and Kubura (Judgment) IT-01-47, Trial Chamber (15 March 2006), paras 2078, 2088; similarly Prosecutor v Miodrag Joki´c (Sentencing Judgment) IT-0142/1, Trial Chamber (18 March 2004), paras 101–02. 521   eg Prosecutor v Krnojelac (Judgment) IT-97-25, Trial Chamber (15 March 2002), para  519; Prosecutor v Bralo (Sentencing Judgment) IT-95-17, Trial Chamber (7 December 2005), para  82;

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Position vis-à-vis the Court weight to these factors. Good conduct during trial generally was seldom considered mitigating on its own,522 but the Chambers have noted specific instances of cooperation.523 Cooperative behaviour of defence counsel was also noted.524 The Chambers have not always considered such conduct, however: in Haradinaj, all the defendants had agreed to a number of stipulated facts and had significantly shortened the trial by resting their case at the end of the prosecution case, calling no defence witnesses and not moving for acquittal under Rule 98bis. None of this was considered in mitigation for Lahij Brahimaj, the only defendant found guilty.525 Additionally, even where the Chambers accepted one or more of the mitigating factors named, it is hard to say whether this in fact led to significant sentence reductions as the Chambers rarely give precise statements on the weight to be accorded such factors. Some Chambers also decided not to give mitigating factors much weight in view of the gravity of the crime526 and held that even life imprisonment may still be imposed despite the existence of mitigating factors.527 As to the influence of mitigating circumstances on the final sentence, this cannot be stated with regard to individual defendants, but a statistical evaluation of ICTY sentences up to the year 2009 concluded that, on average, each finding of a mitigating circumstance led to a sentence reduction of roughly seven months.528 Cooperative behaviour may also be considered in deciding on requests for early release. In such cases, the Tribunal’s President is to consider, inter alia, ‘the prisoner’s demonstration of rehabilitation’ and ‘any substantial cooperation . . . with the Prosecutor’.529 At the ICTY, a number of defendants were indeed granted early Prosecutor v Nzabirinda (Sentencing Judgment) ICTR-01-77, Trial Chamber (23 February 2007), para  92; Prosecutor v Bisengimana (Judgment and Sentence) ICTR-00-60, Trial Chamber (13 April 2006), para  164. For the contrary view, see, eg Prosecutor v Brd-anin (Judgment) IT-99-36, Trial Chamber (1 September 2004), para 1135; Prosecutor v Ori´c (Judgment) IT-03-68, Trial Chamber (30 June 2006), para 762. 522   Prosecutor v Blaški´c (Judgment) IT-95-14, Trial Chamber (3 March 2000), para 780; Prosecutor v Blaški´c, (Judgment) IT-95-14, Appeals Chamber (29 July 2004), para  728; Prosecutor v Gali´c (Judgment) IT-98-29, Trial Chamber (5 December 2003), para  766; Prosecutor v Boškoski and Tarcˇulovski (Judgment) IT-04-82, Trial Chamber (10 July 2008), para 600. But see Prosecutor v Ori´c (Judgment) IT-03-68, Trial Chamber (20 June 2006), para 766. 523   Prosecutor v Blagoje Simi´c et al (Judgment) IT-95-9, Trial Chamber (17 October 2003), paras 1090, 1101, 1114; Prosecutor v Staki´c (Judgment) IT-97-24, Trial Chamber (31 July 2003), para 921 (agreeing to replacement of a judge under Rule 15bis); ibid, para 922; Prosecutor v Brd-anin (Judgment) IT-99-36, Trial Chamber (1 September 2004), para 1137 (respectful treatment of vulnerable or shaken witnesses, including forgoing cross-examination); Prosecutor v Ori´c (Judgment) IT-03-68, Trial Chamber (30 June 2006), paras 748, 750 (stipulating agreed facts). 524   Prosecutor v Krnojelac (Judgment) IT-97-25, Trial Chamber (15 March 2002), para 520; Prosecutor v Vasiljevi´c (Judgment) IT-98-32, Trial Chamber (29 November 2002), para 297. 525   Prosecutor v Haradinaj et al (Judgment) IT-04-84, Trial Chamber (3 April 2008), paras 495–96. 526   eg Prosecutor v Babi´c (Judgment) IT-03-72, Appeals Chamber (18 July 2005), paras  60–61; Prosecutor v Staki´c (Judgment) IT-97-24, Trial Chamber (22 March 2006), para 924. 527   Prosecutor v Staki´c (Judgment) IT-97-24, Appeals Chamber (22 March 2006), para 407; Prosecutor v Jelisi´c (Judgment) IT-95-10, Appeals Chamber (5 July 2001), para  100; Prosecutor v Niyitigeka (Judgment) ICTR-96-14, Appeals Chamber (9 July 2004), para 267; Prosecutor v Musema (Judgment) ICTR-96-13, Appeals Chamber (16 November 2001), para 396. 528   Holá et al (2009), 94. 529   r 125 RPE-ICTY; see also ICTY Practice Direction.

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The Position of the Defendant in the Trial release based not only on post-conviction factors such as behaviour in prison and statements of remorse,530 but also on cooperative behaviour already considered in sentencing such as voluntary surrender and cooperation at trial.531 At the ICTR, the provisions on early release are similar,532 but only one defendant has been granted early release. In denying applications for early release, the President did not consider cooperative behaviour before conviction, as this had already been taken into account in sentencing.533 The President was generally very unwilling to even consider early release, as seen most clearly in Rutaganira where the defendant had moved for reconsideration of an earlier denial after having served about five years of a six year sentence. The President only decided on the motion almost a year later, three weeks before Rutaganira would have served his full sentence anyway.534 The only defendant to be granted early release was Michel Bagaragaza, who was released after serving more than three-quarters of his sentence. In her decision to grant release, the President referred to Bagaragaza’s cooperation with the tribunal before and after his arrest and was careful to ‘note that this decision is not intended to create a precedent’.535 The uniformly strict regime led to a unilateral decision by Italian authorities to release Georges Ruggiu about two months before his calculated release date, in violation of the ICTR Statute.536 Finally, cooperative behaviour may also be taken into account in other contexts. In Strugar, the defendant had agreed to withdraw the appeal against his judgment in exchange for a recommendation that he be allowed to serve his sentence in Montenegro, close to his ailing wife. When the President later found himself legally precluded from allowing the sentence to be served in Montenegro, the Appeals Chamber allowed Strugar to reinstate his appeal.537 The Chambers 530   See, eg Prosecutor v Furundžija (Order of the President on the Application for the Early Release of Anto Furundžija) IT-95-17/1, President (29 July 2004); Prosecutor v Muci´c (Order of the President in Response to the Zdravko Mucić’s Request for Early Release) IT- 96-21, President (9 July 2003). 531   See, eg Prosecutor v Milan Simi´c (Order of the President on the Application for the Early Release of Milan Simić) IT-95-9/2, President (27 October 2003) (guilty plea); Prosecutor v Zari´c (Order of the President on the Application for the Early Release of Simo Zarić) IT-95-9, President (21 January 2004) (expressions of remorse). See also Prosecutor v Miroslav Tadi´c (Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadić) IT-95-9, President (3 November 2004), para 8. 532   r 126 RPE-ICTR. 533   Prosecutor v Serushago (Decision of the President on the Application for Early Release of Omar Serushago) ICTR-98-39, President (12 May 2005); Prosecutor v Ruggiu (Decision of the President on the Application for Early Release of Georges Ruggiu) ICTR-97-32, President (12 May 2005); Prosecutor v Imanishimwe (Decision on Samuel Imanishimwe’s Application for Early Release) ICTR-97-36, President (30 August 2007); Prosecutor v Rutaganira (Decision on Request for Early Release) ICTR-95-1C, President (2 June 2006). On the other hand, the President did take into account the crimes of which the defendants had been convicted, a factor which of course had also already been considered in sentencing. 534   Prosecutor v Rutaganira (Decision on the Motion for Reconsideration of the Denial of Early Release) ICTR-95-1C, President (13 February 2008). 535   Prosecutor v Bagaragaza (Decision on the Early Release of Michel Bagaragaza) ICTR-05-86, President (24 October 2011). 536   See ‘Convicted Journalist Released Early in Violation of ICTR Statute’, The Hague Justice Portal, 29 May 2009, available at haguejusticeportal.net/eCache/DEF/10/688.html. 537   Prosecutor v Strugar (Decision on Pavle Strugar’s Request to Reopen Appeals Proceedings) IT-01-42, Appeals Chamber (7 June 2007), paras 20–31.

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Position vis-à-vis the Court have also taken cooperative behaviour, particularly voluntary surrender and agreeing to be interviewed by the prosecution, into account in decisions on provisional release.538

2.  The International Criminal Court (a)  Sanctions for Non-Cooperation The provisions on particularly uncooperative behaviour at the ICC are somewhat similar to those at the ad hoc Tribunals. Article 63(2) allows the removal of the defendant for disruptive behaviour. As noted above,539 this Article sets a rather high threshold; it has not been applied so far. Second, Article 70 RSt allows punishing by up to five years’ imprisonment and/ or a fine certain offences against the administration of justice. As applicable to defendants, the Article covers a detailed list of offences protecting court officials, witnesses and evidence generally.540 Contrary to the rules applicable at the ad hoc Tribunals, however, the list of offences contained in Article 70 is exhaustive. Article 70 RSt thus cannot be applied to (other) particularly uncooperative and/or disrespectful conduct at trial. There have not been any proceedings under this Article so far.541 Third, Article 71 allows certain administrative sanctions for misconduct before the Court, that is, disruption of proceedings and deliberate refusal to comply with court directions.542 However, this provision is arguably not applicable to defendants at all. As far as ‘disruption of proceedings’ is concerned, the sanction foreseen under the RPE is removal from the courtroom, concerning which Article 63(2) RSt is lex specialis for defendants.543 As far as refusal to comply with directions is concerned, Rule 171 does allow the imposition of a fine; this might allow the application of this part of Article 71 to defendants. However, in such cases a fine is foreseen only for ‘misconduct . . . of a more serious nature’, the standard sanction for refusal to comply with 538   Prosecutor v Micˇo Staniši´c (Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release) IT-04-79, Appeals Chamber (17 October 2005), para 14; Prosecutor v Haradinaj et al (Decision on Motion on Behalf of Ramush Haradinaj for Provisional Release) IT-04-84, Trial Chamber (20 July 2007), para 22; Gaynor (2009), 188–89, 191–92 with references. 539   See, above 57. 540   Art 70(1) (b)–(e) RSt. Note that, contrary to the rule at the ad hoc Tribunals, non-compliance with the court’s orders, eg concerning protective measures for witnesses, is not covered. 541   The only instance of Art 70 proceedings being contemplated was a request by Trial Chamber I to the parties in Lubanga to submit observations after allegations that a victim had threatened defence witnesses – see Situation in DR Congo, Prosecutor v Lubanga (Prosecution’s Observations on Art 70 of the Rome Statute) ICC-01/04-01/06, Prosecution (1 April 2011), para 1. 542   Art 71 is formulated in an open manner by giving examples of misconduct, such that other types of misconduct might be contemplated in addition. However, rr 170, 171 RPE, which seem to deal exhaustively with misconduct under Art 71, refer only to the two types of misconduct named in the Article. 543   r 170(a) RPE-ICC; Triffterer in Triffterer (2008), Art 71, mn 17. This must a fortiori be true for the penalty for repeated misconduct, which is interdiction from the proceedings under r 170(b).

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The Position of the Defendant in the Trial directions is temporary interdiction from proceedings. Here again, Article 71 RSt must yield to the lex specialis contained in Article 63(2). In conclusion, it seems likely that Article 71 is in its entirety inapplicable to defendants.544 Finally, false testimony before the court may be punished with up to five years’ imprisonment.545 Given that defendants are allowed to testify as witnesses in their own case,546 this provision will presumably also apply to them where they elect to do so. There are no provisions allowing punishment for attempts to abscond from the criminal justice process. As regards the influence of the defendants’ conduct on sentencing, one would start from the assumption that the exercise of defence rights itself cannot be considered in aggravation. More generally though, it seems questionable whether conduct at trial may be so considered at all. The list of aggravating circumstances in Rule 145(2)(b) refers only to prior convictions and circumstances relating to the crime itself. While this list is not conclusive, other circumstances may only be considered if they are ‘by virtue of their nature similar’ to those listed. One might therefore perhaps consider, as similar to prior convictions, conduct which has been penalised under Article 70, that is contempt of court and false testimony. Other behaviour at trial, however, generally has no connection to the crime itself or prior convictions and thus likely may not be considered in aggravation. (b)  Rewards for Cooperation Contrary to the legal texts at the ad hoc Tribunals, the Rome Statute does not explicitly call for the defendant to enter a plea of guilty or not guilty. Instead she shall be ‘afford[ed] the opportunity to make an admission of guilt . . . or to plead not guilty’ (emphasis added).547 This is to happen not during the pre-trial procedure or at the confirmation hearing, but at the beginning of the trial. Article 65 lays down the requirements for the validity of admissions of guilt. These are similar to those at the ad hoc Tribunals,548 but the Statute particularly emphasises that the plea must be ‘supported by the facts of the case’.549 Also, even if the Chamber finds the plea to be validly made, it may still request the prosecution to present additional evidence including witness statements, or even proceed to regular trial, where it finds that ‘a more complete presentation of the facts of the case is required in the interests of justice’.550 The Rome Statute thus lays greater emphasis on the ‘material truth’ aspect of criminal proceedings.551 544   Contra Triffterer in Triffterer (2008), Art 71, mn 17, according to whom the provision is applicable to forms of misconduct other than trial disruptions. 545   Art 70(1)(a) RSt. 546   See below 146. 547   Art 64(8) RSt. 548   Art 65(1)(a) and (b); on these requirements see Guariglia in Triffterer (2008), Art 65, mn 14 et seq. 549   Art 65(1)(c), (3) RSt. 550   Art 65(4) RSt. 551   See, eg Bohlander (2001), 157; Guariglia in Triffterer (2008), Art 65, mn 37.

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Position vis-à-vis the Court The legal texts do not mention what perquisites a defendant may be granted in exchange for a guilty plea. Article 65 only notes that any concessions contained in a plea agreement (it hints at charge and sentence bargaining) are not binding upon the Chamber.552 As the prosecution may, however, withdraw charges even without leave of the Chamber prior to the confirmation hearing, charge bargaining directly between the parties could in theory take place at this early stage.553 As to sentencing, admissions of guilt are not expressly mentioned in the list of mitigating circumstances. However, they could be considered to fall under the heading of the defendant’s ‘conduct after the act, including . . . cooperation with the Court’, and in any event, the list of mitigating circumstances is not exhaustive.554 Accordingly, admissions of guilt, particularly where accompanied by expressions of remorse and/or by cooperation with the prosecution, will likely be considered as mitigating factors just as guilty pleas at the ad hoc Tribunals. It should be noted, however, that the provisions limiting the imposition of life imprisonment555 do not deal with mitigating factors, that is that an admission of guilt is not guaranteed to spare the defendant a life sentence. Short of admitting guilt tout court, defendants may also agree not to challenge certain aspects of the allegations against them. A very wide-ranging agreement of this type was reached in the Banda and Jerbo case: the defendants, who were charged with an attack on African Union peacekeepers, agreed not to challenge the fact that the attack had happened as charged and that they were responsible for it, only challenging facts relating to the legality of the attack. This was accepted by the Pre-Trial and the Trial Chamber.556 In the event the defendants are found guilty, it is likely that this agreement will be considered in mitigation of the sentence similarly to an admission of guilt. The legal texts do not deal directly557 with crown witness-type situations. While prosecutorial discretion at the ICC is somewhat more limited than at other tribunals, full withdrawal of charges in exchange for cooperation against others would still be possible.558 Whether the prosecution will strike such deals with potential defendants remains to be seen: on the one hand, its current strategy of instituting proceedings only against very few individuals in high leadership positions might   Art 65(5) RSt. On this provision, see Guariglia in Triffterer (2008), Art 65, mn 40–43.   See Art 61(4) RSt, Bohlander (2001), 158. 554   As can be seen from the wording of Rule 145(2) RPE-ICC, ‘Mitigating circumstances such as . . .’. 555   Art 77(1)(a) RSt; Rule 145(3) RPE-ICC. 556   Situation in Sudan, Prosecutor v Banda and Jerbo (Decision on the Confirmation of the Charges) ICC-02/05-03/09, Pre-Trial Chamber (7 March 2011), para 43 et seq; (Decision on the Joint Submission Regarding the Contested Issues and the Agreed Facts) ICC-02/05-03/09, Trial Chamber (28 September 2011). 557   r 74(3)(c) on self-incrimination by witnesses is quite similar to r 90(E) RPE at  the ad hoc Tribunals: a Chamber may require that a witness answer a question even if she might incriminate herself if it assures the witness that the information will not be shared with the public or any state and will not be used ‘directly or indirectly’ against her in ICC proceedings for Statute crimes. 558   Under Art 61(4) RSt before confirmation of the charges, under Art 61(9) RSt with leave of the Trial Chamber after the beginning of the trial. In the time between confirmation of charges and beginning of the trial, the prosecution may with leave of the PTC ‘amend’ the charges under Art 61(9) RSt; it is not entirely clear whether this provision also allows full-scale withdrawal. 552 553

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The Position of the Defendant in the Trial render such agreements unlikely. On the other hand, the situations in Uganda and the DR Congo seem to show that the prosecution is willing to cooperate with (potential) suspects if such cooperation may further the proceedings against other defendants.559 Cooperation with regard to other defendants figures prominently among the reasons for granting a convicted person’s request for reduction of the sentence. The reasons for granting such requests include ‘The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions’560 and ‘The voluntary assistance of the person in enabling the enforcement of the judgments and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims’.561 The legal texts also do not deal in detail with the extent to which cooperation besides admissions of guilt should be considered a mitigating factor. Article 78(1) requires that ‘the individual circumstances of the convicted person’ be taken into account in sentencing; the RPE add to this ‘[m]itigating circumstances such as . . . any cooperation with the Court’.562 As stated above, this list is not exhaustive so that the ICC can be expected to take into account mitigating factors similar to those accepted by the ad hoc Tribunals. Whether pre-conviction cooperative behaviour will be considered in the context of early release is doubtful given the wording of the relevant provisions.563 According to Article 110(4)(c) RSt, the Court shall only consider ‘factors establishing a clear and significant change of circumstances’ since sentencing, and in fact most of the factors listed in Rule 223 concern the defendant’s behaviour or situation after conviction564 or effects of her release.565 However, given the reference in Article 110(4)(a) RSt to ‘early and continuing willingness to cooperate with the Court’, one could argue that cooperation which begins before conviction and continues afterwards ought to be considered in its entirety.

3.  The Special Court for Sierra Leone (a)  Sanctions for Non-Cooperation Three rules applicable to defendants allow sanctions for particularly uncooperative behaviour before the SCSL. First, Rule 80(B) RPE-SCSL allows the removal of 559   See the criticisms of the OTP strategy focusing on ‘rebels’ and not considering allegations of crimes committed by the respective governments, above 61. 560   Art 110(4)(a) RSt. The fact that ‘investigations and prosecutions’ are in the plural show that this provision refers prominently to cooperation regarding other defendants. According to Kreß and Sluiter (2002), 1793, fn 218, Art 110(4)(a) refers solely to cooperation which has not been taken into account in sentencing. 561   Art 110(4)(b) RSt. 562   r 145(1)(a)(ii) RPE-ICC. 563   See also Kreß and Sluiter (2002), 1793, fn 218. 564   r 223(a), (d) and (e) RPE-ICC. 565   r 223(b), (c), (d) in fine RPE-ICC.

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Position vis-à-vis the Court the defendant for disruptive conduct. As noted above, this rule has only been applied once when Issa Sesay in the RUF case continued a statement after the Chamber told him to stop because he was dealing with a topic which the Chamber considered concluded.566 Rule 77 allows up to seven years’ imprisonment for contempt of the Special Court. The rule contains a list of acts constituting contempt, including the usual offences concerning court officials, witnesses and other evidence, violations of non-disclosure orders and non-compliance with an order to appear. The list is non-exhaustive, but Rule 77 has never been applied to uncooperative and/or disrespectful statements or behaviour in the courtroom. Charles Taylor’s first counsel was repeatedly warned that he was ‘verging on contempt’ for attempting to leave the courtroom after the defendant had withdrawn his instructions, but no proceedings were later instituted when he in fact left.567 Proceedings were later initiated against Taylor’s new counsel for also leaving the courtroom in protest of a decision concerning the defence trial briefs, but these proceedings were discontinued after counsel apologised to the Chamber.568 All other contempt proceedings initiated concerned allegations of interference with witnesses.569 Rule 91 allows punishing by up to two years’ imprisonment false testimony under solemn declaration. This rule may also be applied, based on similar reasoning as at the ad hoc Tribunals, to defendants testifying in their own case. So far it has not been so applied. There is no punishment for defendants’ attempts to abscond from criminal justice. However, persons who ‘knowingly assist . . . an accused person to evade the jurisdiction of the Special Court’ may be punished for contempt.570 As to sentencing, Trial Chamber I held in the CDF and RUF cases that ‘Only circumstances directly related to the commission of the offence charged’ may be considered in aggravation571 and that conduct at trial may not be so considered at   See above 56.   Prosecutor v Taylor (Transcript of 4 June 2007) SCSL-03-01, Trial Chamber, 22–26. 568   Prosecutor v Taylor (Transcript of 11 March 2011) SCSL-03-01, Trial Chamber, 49621–22; (Order Re: Defence Motion Seeking Termination of the Disciplinary Hearing for Failure to Properly Constitute the Trial Chamber and/or Leave to Appeal the Remaining Judges’ Decision to Adjourn the Disciplinary Hearing), Trial Chamber, 18 March 2011. Griffiths had previously temporarily been denied right of audience under Rule 46 for disparaging remarks to opposing counsel, but that right was reinstated after he apologised ((Transcript of 12 August 2010) SCSL-03-01, Trial Chamber, 46093– 103). Finally, a hearing was conducted under the Code of Conduct, but this concerned threatening and abusive behaviour vis-à-vis a court staff member in the time between hearings – see Prosecutor v Yada Williams and Ibrahim Yillah (Code of Conduct Hearing) SCSL-05-04, Disciplinary Panel (10 November 2005). 569   See Prosecutor v Samura (Judgment in Contempt Proceedings) SCSL-05-01, Trial Chamber, 25 October 2005; Prosecutor v Brima et al and Prosecutor v Kamara (Sentencing Judgment in Contempt Proceedings) SCSL-05-02 and SCSL-05-03, Trial Chamber, 21 September 2005; AFRC (Decision on the Report of the Independent Counsel) SCSL-04-16, Trial Chamber (24 May 2011); Prosecutor v Taylor (Decision on the Report of the Independent Counsel) SCSL-03-01, Trial Chamber (24 May 2011). 570   r 77(A)(vi) RPE-SCSL. 571   CDF (Judgment on the Sentencing of Moinina Fofana and Allieu Kondewa) SCSL-04-14, Trial Chamber (9 October 2007), para 36. 566 567

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The Position of the Defendant in the Trial all.572 Trial Chamber II in the AFRC case has not explicitly stated the same rule, but also has not considered in aggravation conduct at trial.573 (b)  Rewards for Cooperation Rule 62 RPE-SCSL deals with the procedure in case of a guilty plea. Similarly to the relevant rule of the ad hoc Tribunals, this provision calls upon the Chamber to satisfy itself that the plea is made freely and voluntarily, is informed and unequivocal and that there are ‘sufficient facts for the crime and the accused’s participation in it’. If so satisfied, the Chamber may enter a finding of guilt and proceed to sentencing. The legal texts do not state which rewards a defendant may expect in exchange for such cooperation; and the question has never arisen in proceedings concerning core crimes as there have not been any guilty pleas in such cases. There have been guilty pleas in contempt cases, which, together with apologies for the actions charged as contempt, have been considered as mitigating circumstances and led to the rather lenient sentence of a conditional discharge.574 The situation with regard to potential crown witnesses is similar to those at the ad hoc Tribunals and the ICC. The RPE only address the question of selfincrimination by witnesses in Rule 90(E), which is virtually identical to those at the ICTY and ICTR. An agreement of the prosecutor to withdraw the charges against a potential crown witness would procedurally have been feasible in ways similarly to those at the ad hoc Tribunals,575 but the OTP has apparently never sought such withdrawal. The prosecution has, however, arrested at least one person as a suspect and later agreed not to indict him in exchange for testimony against the RUF indictees.576 As to sentencing, similarly to the ad hoc Tribunals, the only mitigating factor expressly mentioned in the SCSL legal texts is ‘substantial cooperation with the Prosecutor’.577 Nonetheless, the SCSL Chambers have referred to ICTY jurisprudence concerning other mitigating factors578 and have accepted such factors, 572   RUF (Sentencing Judgment) SCSL-04-15, Trial Chamber (8 April 2009), para 25; paras 275–76. An OTP submission that the defendant’s ‘defiant attitude’ during trial should be considered in aggravation was additionally dismissed on the grounds that such an attitude had not been established – ibid, para 249. 573   AFRC (Sentencing Judgment) SCSL-04-16, Trial Chamber (19 July 2007). 574   Prosecutor v Brima et al and Prosecutor v Kamara (Sentencing Judgment in Contempt Proceedings) SCSL-05-02 and SCSL-05-03, Trial Chamber, 21 September 2005. In another contempt case, one defendant pleaded guilty, but has not been sentenced as of this writing – see SCSL, Press Release of 15 July 2011, ‘One Conviction, Four Plead Not Guilty to Contempt Charges’. 575   r 51(A)–(C) RPE-SCSL. 576   Namely Gibril Massaquoi, former RUF spokesman – see UC Berkeley War Crimes Studies Center, Special Court Monitoring Program, Update # 100, Trial Chamber I – RUF Trial, Week Ending June 15, 2007, 20; Update # 101, Trial Chamber I – RUF Trial, Week Ending June 22, 2007, 3, 14. 577   r 101(B) RPE-SCSL. 578   AFRC (Sentencing Judgment) SCSL-04-16, Trial Chamber (19 July 2007), para 25; CDF (Judgment on the Sentencing of Moinina Fofana and Allieu Kondewa) SCSL-04-14, Trial Chamber (9 October 2007), para 40; RUF (Sentencing Judgment) SCSL-04-15, Trial Chamber (8 April 2009), para 29.

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Position vis-à-vis the Court including factors concerning conduct at and during trial. In particular, the Chambers have considered in mitigation statements of remorse579 (but only where they were felt to be sincere)580 as well as statements of regret or ‘empathy with the victims’581 even in the absence of a recognition of personal guilt. Good conduct in the detention facility was also sometimes considered.582 Contrary to the ad hoc Tribunals and the ICC, the legal texts of the SCSL do not expressly deal with the impact of cooperative behaviour on early release – the legal texts mirror those of the ad hoc Tribunals by foreseeing determination by the President,583 but they do not refer to the factors to be taken into account at all.

4.  The Special Tribunal for Lebanon (a)  Sanctions for Non-Cooperation As concerns the general policing of courtroom proceedings, Article 22 StSTL may become relevant. It calls upon the STL judges to ‘confine the trial . . . proceedings strictly to an expeditious hearing of the issues raised by the charges’ and to ‘take strict measures to prevent any action that may cause unreasonable delay’. The Tribunal’s judges might refer to this provision to keep a rather tight rein on the proceedings, including on the behaviour of defendants and counsel. Besides Article 22 StSTL, there are several rules in the RPE which deal with particularly uncooperative behaviour. Exclusion of a defendant is allowed – just like at the other courts and tribunals – where she ‘has persisted in disruptive conduct following a warning that such conduct may result’ in removal.584 Rule 60bis on ‘contempt and obstruction of justice’ covers the usual types of conduct such as false testimony, influencing witnesses, disclosure violations, etc. When it comes to conduct towards judges and officers of the tribunal, the Rule is broader than similar provisions at other tribunals in that it covers not only threats and bribes, but also ‘engag[ing] in serious public defamation of, by statements that are untrue and the publication of which is inconsistent with freedom of expression as laid down in international human rights standards, . . . a Judge or any other officer of the Tribunal’. However, the rule also states that proceedings   RUF (Sentencing Judgment) SCSL-04-15, Trial Chamber (8 April 2009), paras 255–56.   See AFRC (Sentencing Judgment) SCSL-04-16, Trial Chamber (19 July 2007), paras 67, 91, 139; RUF (Sentencing Judgment) SCSL-04-15, Trial Chamber (8 April 2009), para 231. 581   See CDF (Judgment on the Sentencing of Moinina Fofana and Allieu Kondewa) SCSL-04-14, Trial Chamber (9 October 2007), paras  63–65, upheld on appeal ((Appeals Judgment) SCSL-04-14, Appeals Chamber (28 May 2008), para 490); RUF (Sentencing Judgment) SCSL-04-15, Trial Chamber (8 April 2009), para 232. 582   CDF (Judgment on the Sentencing of Moinina Fofana and Allieu Kondewa) SCSL-04-14, Trial Chamber (9 October 2007), para 67. 583   Art 23 StSCSL and r 1124 RPE-SCSL. 584   r 138(B) RPE-STL. Where the defendant was self-representing until then, this leads to imposition of counsel – r 138(C). 579 580

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The Position of the Defendant in the Trial should be initiated only where ‘there is prima facie evidence that the alleged contempt has led to a material interference with the administration of justice’.585 The penalty for contempt is similar to that at other tribunals – up to seven years’ imprisonment and/or a fine of up to €100,000.586 Similarly to the other tribunals, witnesses who give false testimony may be punished by up to seven years’ imprisonment and/or a fine of up to €100,000. Where the defendant elects to act as a witness in her own defence,587 this rule would seem to also apply to her testimony. There are no specific provisions sanctioning conduct such as flight. The rules on sentencing588 do not deal with the question as to what extent the defendants’ behaviour at trial may be taken into account negatively in sentencing. In particular, contrary to the ICC, there is no specific limitation as to what may be considered an aggravating circumstance.589 (b)  Rewards for Cooperation Despite the continental law background of the Tribunal, the Statute does provide that the defendant shall enter a plea at the beginning of the proceedings,590 and the RPE foresee the possibility of guilty pleas and plea agreements. Rule 100(A), governing the basic procedure after a plea of guilty, is virtually identical to Rule 62bis RPE-ICTY. Similarly, Rule 99 on the possible content of plea agreements and their non-binding nature vis-à-vis the Trial Chamber is identical in all relevant aspects to Rule 63ter RPE-ICTY. Rule 100(B) adds a further formal requirement in that, in cases of guilty pleas based on plea agreements, the Trial Chamber must satisfy itself that the defendant has knowingly and voluntarily entered into that agreement. As Rule 171 RPE-STL foresees a separate sentencing phase after a finding of guilty anyway, there is no need for specific provisions on sentencing procedure after a guilty plea. As far as possible ‘crown witness’ treatment is concerned, Rule 72 RPE-STL does fore­ see the possibility of withdrawing an indictment. As at the other Tribunals, it remains to be seen whether this option will ever be used to gain the cooperation of an ‘insider’. As to rewards in sentencing, the situation is again similar to that at the ad hoc Tribunals: Rule 172 only explicitly mentions one mitigating factor, namely ‘substantial cooperation with the Prosecutor . . . before or after conviction’. However, the Rule clearly allows other mitigating circumstances to be considered. Judges of the STL may thus choose to accept as mitigating all those aspects of cooperation   r 60bis(A)(vii), (C) RPE-STL.   r 60(I) RPE-STL.   See r 144(D) RPE-STL – on the various ways in which the defendant may make statements and/ or give evidence, see below 149. 588   r 171et seq RPE-STL. 589   See r 172(B)(i) RPE-STL. 590   Art 20(1) StSTL. 585 586 587

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Position vis-à-vis the Court also accepted by the ad hoc Tribunals, such as voluntary surrender, statements of remorse, etc. Article 30 StSTL on pardon or commutation of sentences mirrors similar provisions at the ad hoc Tribunals, and so does Rule 196 on aspects to be taken into account by the President in her decision, including ‘substantial cooperation . . . with the Prosecutor’.

IV. Conclusion When it comes to negative conduct during the trial, international criminal procedure is rather lenient when compared to national procedures. There are no administrative sanctions for courtroom conduct besides removal from the courtroom, which is seldom used. Absconding from justice may not be punished separately at all. Finally, while international criminal procedure follows the common law model of making false testimony by the defendant punishable, no defendant has yet even been charged with this crime. As to considering courtroom behaviour negatively in sentencing, international criminal procedure has, after some initial tendencies towards broad consideration, now turned towards a rather narrow rule most akin to that in German procedure. As to cooperative conduct, plea bargaining does not have a big effect on the sentence in most cases. In standard cases at the ICTY, defendants received a noticeable but not significant sentence reduction in exchange for pleas of guilty. At the ICTR, where there was no particular need for admissions of crimes, plea bargains were mostly used for docket-clearing purposes, with few cases showing a significant sentence reduction. The scope and effect of plea bargaining at the ICC and STL is hard to predict: on the one hand, the small number of defendants to be expected obviates the need for plea bargaining as a docket-clearing device. On the other hand, the small number of cases, as well as problems concerning their budgets and, for the STL, the length of its mandate, may also make a detailed admission of crimes by a leading defendant very attractive and lead to corresponding sentence discounts. Cooperative conduct short of guilty pleas/admissions of guilt is taken into account in mitigation of sentence, but is not given particular weight – in this regard international procedure does not seem to differ much from national procedures. Finally, as concerns cooperation beyond one’s own case, it is hard to make a definitive statement. Concerning those already indicted, such cooperation seems to be of rather limited weight, particularly when compared with, for example, US law allowing vast sentencing discounts. On the other hand, without knowing exactly how many suspects were granted a deal similar to that of Gibril Massaquoi, or what rewards were offered to Uwilingiyimana, a full picture is hard to make out.

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The Position of the Defendant in the Trial

C.  Ability to Make Statements One important way for the defendant to take part in her trial is by way of making statements. Two types of statement can generally be differentiated, although the exact boundary may not always be clear: first, the defendant may take the stand and make a statement as a witness or in a witness-like capacity. Such statements may be usable as evidence in a way similar to other witness statements, and the defendant may be subject to provisions applying to other witnesses, such as crossexamination by the prosecution and the threat of prosecution for perjury. Second, the defendant may be able to make statements in her capacity as a participant in the trial, commenting on the trial rather than responding to questions or factual allegations.

I.  National Criminal Procedures 1. Germany In Germany, the defendant may not testify as a witness strictly speaking as the role of witness is considered incompatible with the role of defendant.591 She may, however, make an Einlassung (a statement dealing with the facts of the case against her),592 considered ‘evidence largo sensu’.593 The defendant must be made aware of this option after the indictment has been read out594 and must generally595 be allowed to make an Einlassung before the court begins hearing the evidence.596 If the defendant first decides to remain silent, but later changes her mind, she must generally be allowed to make an Einlassung later.597 This applies especially, but not exclusively, to those who wish to admit their guilt in light of the evidence adduced.598 The statement must generally be made orally599 and the defendant must be allowed to make a continuous statement, after which the court may ask questions.600 The court may, however, interrupt the statement where necessary in the interests of clarity.601   BGHSt 10, 8, 10.   § 243(4) StPO. 593   BGHSt 2, 269, 270; Fischer in KK-StPO (2008), § 244, mn 1. 594   § 243(4) StPO. See also Meyer-Goßner (2011), § 243, mn 21; OLG Stuttgart, NJW 1975, 703. 595   The court may, however, deviate from the principle if there are good reasons for doing so (eg BGH, NStZ 1985, 561), particularly if the defendant agrees (Meyer-Goßner (2011), § 243, mn 26). 596   Meyer-Goßner (2011), § 243, mn 26; BayObLG, MDR 1953, 755. 597   Meyer-Goßner (2011), § 243, mn 26; BGH, NStZ 1986, 370; BGH, StV 1991, 148. 598   See BGH, NJW 1996, 533; BGH, NStZ 2000, 217. 599   BGH, NStZ 2000, 439. 600   BGHSt 13, 358, 360; BGH, NStZ 2000, 549. 601   BGH, NStZ 2000, 549. 591 592

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Ability to Make Statements As to the contents and length of the statement, there are few limits. Defendants may make lengthy statements of a general, including a political character, provided that there is some connection to the case at hand. The courts may only interrupt the defendant if she veers into ‘peripatetic statements of no concern’ to the case.602 The defendant is not put under oath and there are no penalties for lying.603 She may refuse to answer any question without giving reasons for doing so. However, such ‘partial silence’ may be used against her when considering the credibility of her statements.604 Additionally, the defendant may make statements605 at several points throughout the proceedings: first of all, she may make a statement during the trial after every piece of evidence.606 Such statements may not anticipate closing arguments607 and may generally only concern themselves with the evidence just heard; where they go beyond these limits, the court may, after a warning, stop them.608 The defendant may also, even if she is represented by counsel, pose questions to witnesses, though not to co-defendants.609 She may make short statements to the witness, for example, to clarify why a question is asked or to make the witness aware of possible contradictions in the statements of the witness; she may not, however, make general statements.610 The presiding judge may reject questions unrelated to the case at hand.611 Probably most important in this context is the right of the defendant to make a concluding statement and have the ‘last word’. The defendant must be allowed to make her concluding statement at the very end of the trial, regardless of whether or not she is represented by counsel612 and whether or not counsel has already made a statement.613 Additionally, even if the last person to have spoken in conclusion was the defendant’s counsel, the defendant must under all circumstances be granted the last word.614 As to the form of those statements, much the same applies as to the Einlassung : they are generally made orally, although notes may be used and pictures or models may serve to clarify the statement.615 There are few limits concerning the content of such statements. The defendant may also make general, including ‘political’   BGH, NStZ 2000, 549.   BGHSt 3, 149, 152.   Meyer-Goßner (2011), § 261, mn 17. 605   Generally on ‘the art of making statements’ in proceedings before German courts, see Heyde (1984). 606   § 257(1) StPO. 607   § 257(3) StPO. 608   Meyer-Goßner (2011), § 257, mn 8. 609   § 240(2) StPO. 610   Meyer-Goßner (2011), § 240, mn 5. 611   § 241(2) StPO. 612   § 258(1) StPO. 613   Schoreit in KK-StPO (2008), § 258, mn 14; BGHSt 18, 84, 86. 614   § 258(2), (3) StPO. This also applies to appeal proceedings: §§ 326, 351(2) StPO. 615   BGHSt 3, 368; OLG Hamm, VRS 35, 370. 602 603 604

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The Position of the Defendant in the Trial statements, as long as there is a connection to the case at hand.616 Where the defendant veers into unconnected statements or where she impinges upon the honour of other participants, the presiding judge may interrupt her and bring her back on track, only after several warnings may further right of audience be denied.617 The court may generally not limit the time available for closing statements and the last word.618

2. France As in the German system, the defendant may not function as a witness in her own case as the role of witness is deemed incompatible with that of defendant. However, again similarly to the German system, the trial usually begins with the interrogatoire, in which the defendant is interrogated by the presiding judge and asked to make a statement.619 However, there is no right to an interrogatoire, which is rather conducted at the discretion of the court.620 The way in which the procedure takes place is also left to the discretion of the presiding judge; usually it will take the form of the defendant answering questions posed by the judge(s).621 She may be allowed to make an introductory statement, but this may also be refused.622 As to timing, the interrogatoire may occur at any time during the trial and may be conducted in several parts.623 The defendant is not specifically granted the right to make statements during the proceedings. She has certain participation rights, such as posing questions to witnesses ‘through the intermediary of the president’624 and making motions to the court,625 but no specific right to comment on the proceedings as do defendants in Germany. She may, however, make a closing statement, even in addition to her counsel,626 and either the defendant herself or her counsel627 must always have the last word.628 The defence closing statements may not generally be limited as to their length, but the court may interrupt them if need be to ensure that their contents are kept within the ‘limits of the rights of the defence’629 – as with the interrogatoire, this will allow the courts to limit the content of statements rather easily. 616   In fact, where such statements fulfill these requirements, the defendant may not be punished for their content even if the statement would otherwise constitute a crime – see BGHSt 31, 16. 617   Schoreit in KK-StPO (2008), § 258, mn 10, 21. 618   BGH, MDR 1953, 598. 619   Art 328 CPP. 620   Cass crim, 10 May 1961, Bull crim No 248; 17 February 1982. 621   Cass crim, 8 August 1882, Bull crim No 218; 8 December 1993, Bull crim No 378. 622   Cass crim, 22 January 1997, Bull crim No 25. 623   Cass crim, 23 April 1863, Bull crim No 126; 23 October 1962, Bull crim No 284; 11 April 1967, Bull crim No 114; 25 February 1987, Bull crim No 100. 624   Art 312 CPP. 625   Art 315 CPP. 626   Art 346(2) CPP. 627   Cass crim, 3 June 1930, Bull crim No 167. 628   Art 346(3) CPP; Cass crim, 21 March 1896, Bull crim No 112; 30 September 1992, Bull crim No 296; Angevin (1978), Arts 323–46, fasc 20, para 180 with references. 629   See Angevin (1978), Arts 323–46, fasc 20, paras 171–72 with references.

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3.  United States In contrast to the traditional common law view that parties could not testify in their own case,630 modern US law grants the defendant a constitutional right to testify.631 The Supreme Court has been rather hesitant to accept limitations to this right.632 The defendant does not, however, have a right to testify falsely.633 If she decides to testify, the usual rules applicable to witnesses apply, that is she testifies under oath and may thus be punished for perjury if she willfully gives false testimony,634 and she may be cross-examined by the prosecution. The latter also entails that the prosecution may introduce evidence, including the criminal record of the defendant, to attack her credibility.635 In practice, this often leads to defendants with prior convictions not testifying in order to keep these convictions from the jury. There is no general rule allowing the defendant to make statements throughout the proceedings, but rather rules allowing statements at specific points during the proceedings. As concerns the phase prior to the beginning of the trial, this is largely limited to entering the plea at the arraignment.636 Most rights to make general statements during the trial are granted to the defence as a party, not the defendant in person, and are thus generally exercised by counsel. This is true of the right to make an opening statement, limited to an overview of the evidence to be presented,637 and of the closing statement,638 which is less limited, but which may still be regulated by the trial court as concerns its contents and scope.639 There is no right of the defendant to a ‘last word’. The defendant must however, if convicted, be provided the opportunity to speak in person during the sentencing hearing. However, this is for the purpose of ‘mitigat[ing] the sentence’ only,640 arguments of a more general nature will usually not be allowed.641

  See references in Ferguson v Georgia, 365 US 570, 573–82 (1961).   Rock v Arkansas, 483 US 44, 50–53 (1987). As regards federal trials, this right is codified in 18 USC § 3481; see also r 601 et seq FRE. 632   See Washington v Texas, 388 US 14, 22–23 (1967) (testimony of co-defendant); Rock v Arkansas, 483 US 44, 55–56 (1987) (generally); 56–62 (hypnotically refreshed testimony). 633   Nix v Whiteside, 475 US 157, 173 (1986); US v Havens, 446 US 620, 626 (1980). 634   18 USC § 1621. 635   r 609(a) FRE. 636   r 11(A) FRCP. 637   See US v Burns, 298 F 3d 523 (6th Cir 2002). 638   r 29.1 FRCP. See also US v Dellinger, 472 F 2d 340 (7th Cir 1972). 639   See US v Figurski, 545 F 2d 389 (4th Cir 1976); US v Conrad, 320 F 3d 851 (8th Cir 2003). 640   r (i)(4)(A)(ii) FRCP. 641   US v Mitchell, 392 F 2d 214 (2nd Cir 1968). 630 631

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II.  Requirements Deriving from Human Rights Law 1.  The European Convention There are three distinct rights which might be taken to grant the defendant a right to make a statement in person. First is the ‘right to be heard’ as part of the fair trial guarantee, according to which each party to a trial must be ‘afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent’.642 However, this aspect of fair trial is more concerned with the parties’ ability to make their case and the adversariality of proceedings in general – parties must be informed of developments so that they can react to them643 and their presentation must be acknowledged and taken into account.644 It does not deal with the ability of the defendant to be heard in person.645 Second is the right, under Article 6(3)(d), to ‘obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’. The ECtHR has stated that the word ‘witness’ must be interpreted autonomously, that is that it does not only refer to those referred to as witnesses by national laws. However, it has never drawn the conclusion that the defendant herself has a right to appear as witness.646 In fact, the Commission has in earlier cases explicitly denied this.647 Third, a right to make statements in person might be derived from the right to be present and to effectively participate in one’s trial under Article 6(3)(c) ECHR. However, these rights have not been interpreted as containing a right to be heard in person, either.648

642   See, eg (concerning a civil case) ECtHR, Dombo Beheer BV v Netherlands (1993) Series A no 274, paras  33 et seq. For criminal cases see Bulut v Austria ECtHR 1996-II 346, para  47. Similarly Ruiz-Mateos v Spain (1993) Series A no 262, para 63; McMichael v United Kingdom (1995) Series A no 307-B, para 80. 643   Meftah et al v France ECtHR 2002-VII 265, para 51; Brandstetter v Austria (1991) Series A no 211, paras 66–69. 644   ECtHR, Van de Hurk v Netherlands (1994) Series A no 288, para 59; Goktepe v Belgium, App no 50372/99 (ECtHR, 2 June 2005), para 25. 645   In the civil case Dombo Beheer BV v Netherlands (1993) Series A no 274, paras  33 et seq, the ECtHR found that  barring a representative of one party from testifying was a violation of Art 6. However, it also explicitly stated that it was ‘not called upon to rule in general whether it is permissible to exclude the evidence of a person in civil proceedings to which he is a party’ (para 31). 646   Co-defendants are witnesses in the sense of Art 6(3)(d) at least if they testify against the defendant: ECtHR, Isgro v Italy (1991) Series A no 194-A, para 33; Ferrantelli and Santangelo v Italy ECtHR 1996-III 937, para 52; Luca v Italy, ECtHR 2001-II 167, para 41. It is not clear whether this also implies a right of the defendant under Art 6(3)(d) to call a co-defendant in her favour. 647   See Frowein and Peukert (1996), Art 6, mn 113, with references. 648   Where the Court dealt with the right to effectively participate, it was concerned mostly with the ability to follow the proceedings – see, eg SC v United Kingdom, Judgment ECHR 2004-IV 281, paras 28 et seq.

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2.  The International Covenant and the Inter-American and African Systems Concerning Article 14 ICCPR, the HRC has stated, in General Comments and obiter dicta, that defendants, even if represented by counsel, have the right to testify649 or ‘state their opinions on the facts of the case’,650 but has not pronounced more precisely on the scope and limits of such rights. In the two other regional systems, the provisions from which a right to be heard in person might derive are similar to those in the ECHR,651 but there is no indication in the jurisprudence that these provisions are to be interpreted more broadly than those of the ECHR, such as to contain a right of the defendant to be heard in person.

III.  International Criminal Procedure 1. The Ad hoc Tribunals According to Rule 85(C) RPE-ICTY, ‘If the accused so desires, the accused may appear as a witness in his or her own defence’. Several defendants have taken up the opportunity to do so,652 and their testimony has sometimes been very extensive.653 As the Rules do not foresee any special status for a defendant who testifies, the regime applicable to witnesses generally also applies to the defendant. Inter alia, this means that she testifies under oath654 and is thus subject to punishment under Rule 91 RPE-ICTY if she provides false testimony.655 She also may be cross-examined by   HRC, General Comment No 32, 2007, para 37.   HRC, Correia de Matos v Portugal, Comm 1123/2002, para 7.3. 651   Art 8(2)(d) and (f) ACHR; as to the African system, see para 2(e)(iii) of the 1992 Resolution. 652   Besides those mentioned in the following footnotes, some of the defendants who chose to testify before the ICTY are Slavko Dokmanović ((Transcripts of 27 May 1998–28 May 1998) IT-95-13a, Trial Chamber), Dragoljub Kunarac (Prosecutor v Kvocˇka et al (Transcripts of 4 July 2000–11 July 2000) IT-98-30/1, Trial Chamber); Mirjan, Zoran and Vlatko Kupreškić (Prosecutor v Kupreški´c et al (Transcripts of 14 July 1999–23 July 1999) IT-95-16, Trial Chamber) and Fatmir Limaj (Prosecutor v Limaj et al (Transcripts of 17 May 2005–25 May 2005) IT-03-66, Trial Chamber). A request to be examined by means of polygraph was rejected as this method of questioning was deemed unreliable – Prosecutor v Naletili´c and Martinovi´c (Decision on the Request of the Accused to be Given the Opportunity to be Interrogated Under Application of a Polygraph) IT-98-34, Trial Chamber (27 November 2000). 653   In Blaški´c, direct testimony alone took 23 court days over a period of almost two months ((Transcripts of 17 February 1999–12 April 1999) IT-95-14, Trial Chamber), cross-examination took 22 days (Transcripts of 12 April 1999–27 May 1999) and two days were taken up by re-direct and the Chamber’s questions (Transcripts of 28 May 1999 and 8 June 1999). The testimony of Momčilo Krajišnik also took 40 trial days overall ((Transcripts of 25 April 2006–22 June 2006) IT-00-39, Trial Chamber). 654   eg Prosecutor v Blaški´c (Transcript of 17 February 1999) IT-.95-14, Trial Chamber, 17823 et seq. 655   However, no such proceedings have so far been instituted. 649 650

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The Position of the Defendant in the Trial the prosecution656 and by counsel for the co-defendants.657 Some Chambers have also found that she may not be in contact with counsel while her testimony is ongoing,658 however, the opposing view held by other Trial Chambers659 was the one upheld on appeal.660 The Appeals Chamber has found that a Trial Chamber may, under Rule 90(F) RPE-ICTY, determine when a defendant wishing to testify may do so, but has warned that such power should be ‘exercised with caution’.661 In practice, most defendants have testified at the beginning of the defence case, but earlier testimony, that is during the prosecution case, and later testimony, that is towards the end of the defence case, has been allowed.662 At least one defendant did not testify due to disagreements over timing.663 The RPE-ICTR allows defendants to take the stand under virtually the same conditions.664 At this Tribunal too, quite a few defendants have used this opportunity, and their testimony has sometimes taken up a large part of the defence case.665 As to unsworn statements, the RPE-ICTY at first did not foresee such a possibility and in Delalic´, the Trial Chamber held that such statements were in fact not 656   See, eg Prosecutor v Blaški´c (Transcript of 17 February 1999) IT-95-14, Trial Chamber, 17823 et seq.; (Transcript of 12 April 1999), 20198 et seq. 657   This is particularly important in cases where the testimony of one defendant implicates other defendants. In Muci´c et al, Esad Landžo testified that he had committed certain of the crimes charged, but that he had acted under orders by other defendants ((Transcript of 27 July 1998) IT-96-21, Trial Chamber, 14980 et seq). He was subject to intense cross-examination by those defendant’s counsels ((Transcript of 28 July 1998), 15119 et seq, (Transcript of 29 July 1998), 15233 et seq). 658   eg Prosecutor v Krajišnik (Transcript of 25 April 2006) IT-00-39, Trial Chamber, 22942. 659   Prosecutor v Krsti´c (Transcript of 16 October 2000) IT-98-33, Trial Chamber, 5956; Prosecutor v Kupreški´c et al (Transcript of 14 July 1999) IT-95-16, Trial Chamber, 11165; Prosecutor v Prli´c et al (Order on the Mode of Examining an Accused Pursuant to Rule 85(C)) IT-04-74, Trial Chamber (1 July 2008), 8. 660   Prosecutor v Prli´c et al (Decision on Prosecution’s Appeal Against Trial Chamber’s Order on Contact Between the Accused and Counsel During an Accused’s Testimony Pursuant to Rule 85(C)) IT-04-74, Appeals Chamber (5 September 2008), paras 11 et seq. 661   Prosecutor v Gali´c (Judgment) IT-98-29, Appeals Chamber (30 November 2006), paras 17–20; similarly Prosecutor v Seromba (Judgment) ICTR-2001-66, Appeals Chamber (12 March 2008), paras 19–20. 662   In Kvocˇka et al, two defendants gave direct testimony at the beginning of the prosecution case, but were cross-examined only after the prosecution case had ended ((Transcript of 29 February 2000) IT-98-30/1, Trial Chamber, 675 et seq; (Transcript of 6 March 2000), 1019 et seq; (Transcript of 6 March 2000), 1014 et seq; (Transcript of 28 November 2000), 6705 et seq). Duško Tadić testified towards the end of his defence case ((Transcripts of 25 October 1996–20 October 1996) IT-94-1, Trial Chamber). Momčilo Krajišnik was also the last witness in his case ((Transcripts of 25 April 2006–22 June 2006) IT-00-39, Trial Chamber). 663   See Prosecutor v Gali´c (Judgment) IT-98-29, Trial Chamber (5 December 2003), para 791. 664   r 85(C) RPE-ICTR. 665   A few examples: in Ntagerura et al (ICTR-99-46) each defendant testified at  the end of his defence case ((Minutes of 17 July 2002–2 October 2002), Trial Chamber (Ntagerura); (Minutes of 20 January 2003–24 January 2003) (Imanishimwe); (Minutes of 26 March 2003–3 April 2003) (Bagambiki)). Simon Bikindi also took the stand towards the end of his trial ((Minutes of 31 October 2007–6 November 2007) ICTR-01-72, Trial Chamber) as did Juvenal Kajelijeli ((Minutes of 14 April 2003–23 April 2003), ICTR-98-44A, Trial Chamber). In the Media case (ICTR-99-52), Ferdinand Nahimana testified at the beginning of his defence case ((Minutes of 18 September 2002 – 18 October 2002), Trial Chamber) Hassan Ngeze towards the end of his defence case (Minutes of 24 March 2003–8 April 2003).

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Ability to Make Statements allowed.666 In July 1999, the judges adopted a new Rule 84bis, which allows unsworn statements at least to a limited degree: a defendant may make a statement at the beginning of the trial, after opening statements.667 The statement is unsworn and not subject to cross-examination, the determination of its ‘probative value, if any’ is up to the Chamber.668 Rule 84bis grants the Trial Chamber discretion whether to allow a statement,669 and while this discretion has not yet been used to deny a statement, some Chambers have indicated that they do not consider the granting of the right to be automatic.670 On the other hand, there is also a tendency on the part of some Chambers to interpret the rule broadly, allowing statements at the beginning of the defence case instead of the beginning of the trial671 or as last words at the end of trial672 or appeal proceedings.673 Some Chambers have even granted the defendant the right to make statements throughout the proceedings.674 Rule 84bis statements are made ‘under the control of the Chamber’, which may thus restrict them quite strictly as to their length.675 They may also delimit the scope of statements – defendants are usually required to keep within the scope of the indictment.676 However, particularly in later stages of the Tribunal’s work, defendants have often been granted quite some time for their statements and granted leeway when detailing their personal and family history and that of their home region.677   The decision is summarised by Turone (2004), 456.   r 84bis(A). The Appeals Chamber in Prli´c et al confirmed that unsworn statements must generally be made at the beginning of the trial, although it did grant Trial Chambers wide discretion in this regard – see Prosecutor v Prli´c et al (Decision on Jadranko Prlić’s Interlocutory Appeal Against the Decision Regarding Supplement to the Accused Jadranko Prlić’s Rule 84bis statement) IT-04-74, Appeals Chamber (20 April 2009), paras 15–16. 668   In practice, such statements are generally given some probative value, although less than that assigned to testimony under oath – see, eg Prosecutor v Limaj et al (Judgment) IT-03-66, Appeals Chamber (27 September 2007), paras 75 et seq. 669   See the wording of the rule – ‘if . . . the Trial Chamber so decides’. 670   Prosecutor v Milutinovi´c (Transcript of 7 July 2006) IT-05-87, Trial Chamber, 347–48. 671   Prosecutor v Limaj (Transcript of 7 June 2005) IT-03-66,  Trial Chamber, 6892, 6904–15; Prosecutor v Kvocˇka et al (Transcript of 26 March 2001) IT-98-30/1, Trial Chamber, at 9448–49, 9453– 74. In both cases, the defence had opted to postpone the defence (counsel) opening statement until after the prosecution case. 672   Prosecutor v Krajišnik (Transcript of 31 August 2006) IT-00-39, Trial Chamber, 27500 et seq. 673   eg Prosecutor v Krsti´c (Transcript of 27 November 2003) IT-98-33, Appeals Chamber, 447–49; Prosecutor v Kordi´c and Cˇerkez (Transcript of 19 May 2004) IT-95-14/2, Appeals Chamber, 650, 651– 57; Prosecutor v Marti´c (Transcript of 12 January 2007) IT-95-11, Appeals Chamber, 11441–42. 674   Prosecutor v Staki´c (Order for Filing of Motions and Related Matters) IT-97-24, Trial Chamber (7 March 2002), para 8; (Transcript of 10 April 2002), 1558–65; Prosecutor v Mrkši´c (Order for Filing of Motions and Related Matters) IT-95-13/1, Trial Chamber (28 November 2003), para 7. 675   eg Prosecutor v Kvocˇka et al (Transcript of 26 March 2001) IT-98-30/1, Trial Chamber, 9449, 9451; (Transcript of 26 March 2004) Appeals Chamber, 538 et seq, 547–48. 676   Prosecutor v Kvocˇka et al (Transcript of 26 March 2001) IT-98-30/1, Trial Chamber, 9451–52 ; similarly Prosecutor v Milutonovi´c et al (Transcript of 7 July 2006), IT-05-87, Trial Chamber, 345–48. In Marti´c, three lines of the statement were redacted as the Court found them ‘inappropriate’ ((Transcript of 12 January 2007) IT-95-11, Trial Chamber, 11441–42). 677   eg Prosecutor v Limaj et al (Transcript of 7 June 2005) IT-03-66, Trial Chamber, 6904–15; Prosecutor v Periši´c (Transcript of 3 October 2008) IT-04-81, Trial Chamber, 426–32; Prosecutor v Popovi´c et al (Transcript of 23 August 2006) IT-05-88, Trial Chamber, 610–17; Prosecutor v Prli´c et al (Transcripts of 5 May 2008 – 6 May 2008) IT-04-74, Trial Chamber. 666 667

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The Position of the Defendant in the Trial Finally, those defendants who represented themselves of course had the opportunity to make statements beyond those parameters, such as the opening statements normally left to counsel. Thus Slobodan Miloševic´, inter alia, made a two-day opening statement at the beginning of his defence case.678 Miloševic´ was warned once to ‘discipline himself ’ and limit himself to material relevant to the case, but was generally allowed to make what the Chamber characterised as ‘a broad historical sweep’.679 Similarly, Vojislav Šešelj made a long statement after the prosecution opening statement, with interruptions by the judges only for technical reasons.680 These defendants, of course, also had various opportunities to make statements in the course of normal trial proceedings. Many defendants who had pleaded guilty, especially in the context of plea agreements, were also allowed to make short statements during the sentencing hearing, usually expressing remorse over their acts.681 At the ICTR, the RPE still do not contain a rule allowing unsworn statements. However, some Trial Chambers have allowed short concluding statements by defendants,682 as has the Appeals Chamber.683 Also, similar to the ICTY, ICTR defendants who had pleaded guilty were allowed to make a short statement of remorse at the sentencing hearing.684 The case law is not entirely clear on whether there exist further options besides, on the one hand, sworn statements subject to the usual rules applicable to witnesses, and on the other hand, unsworn statements which are not treated as evidence at all. In Blagojevic´, the defendant wished to make a statement, and in order for this statement to have the highest possible probative value, he wished to do so as a witness, that is under oath and subject to cross-examination by the prosecution. However, he wished to give his testimony in chief not by being asked questions by his counsel, but in the form of a continuous statement.685 The Trial Chamber denied this request and informed Blagojevic´ that, besides remaining silent, he only had two options: he could testify as a witness under Rule 85(C) – in that case direct testimony would have to be in the form of ‘question and answer’. Or he 678   Prosecutor v Slobodan Miloševi´c (Transcripts of 31 August 2004 – 1 September 2004) IT-02-54, Trial Chamber. 679   Prosecutor v Slobodan Miloševi´c (Transcript of 31 August 2004) IT-02-54, Trial Chamber, 32202. 680   Prosecutor v Šešelj (Transcript of 8 November 2007), IT-03-67, Trial Chamber. 681   See, eg Prosecutor v Milan Simi´c (Transcript of 22 July 2002) IT-95-9/2, Trial Chamber, 4–5 and 34–35; Prosecutor v Bralo (Transcript of 20 October 2005) IT-95-17, Trial Chamber, 88. These statements are collected in a special section of the ICTY website available at  157.150.195.168/sections/ Outreach/StatementsofGuilt. 682   See Prosecutor v Rukundo (Minutes of 20 February 2008) ICTR-01-70, Trial Chamber. 683   eg Prosecutor v Kamuhanda (Transcript of 19 May 2005) ICTR-99-54, Appeals Chamber, 96. 684   eg Prosecutor v Bisengimana (Transcript of 19 January 2006) ICTR-00-60,  Trial Chamber, 45–46; Prosecutor v Nzabirinda (Transcript of 14 December 2006) ICTR-01-77, Trial Chamber, 8 (further appearance), (Transcript of 17 January 2007),  60 (sentencing hearing); Prosecutor v Serugendo (Transcript of 1 June 2006) ICTR-2005-84, Trial Chamber, 23. 685   Prosecutor v Blagojevi´c and Joki´c (Transcript of 4 June 2004) IT-02-60, Trial Chamber. 10356–58. There had been a breakdown in communication with the counsel and Blagojević felt that counsel was ‘working against him’.

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Ability to Make Statements could make a continuous statement – in that case the statement would be under Rule 84bis, that is not as a witness and thus not subject to cross-examination. Faced with these choices, Blagojevic´ chose to remain silent.686 The Appeals Chamber upheld that finding,687 Judge Shahabuddeen dissenting as he felt that Blagojevic´ had been ‘unlawfully prevented from telling his story’.688 The Trial Chamber would exceptionally have allowed Blagojevic´ to make a solemn declaration as to the truth of his Rule 84bis statement.689 This precedent was followed in the case of Prlic´ et al, where defendant Slobodan Praljak was allowed to make a statement under Rule 84bis, that is not subject to cross-examination, but under oath.690 In contrast, in some earlier cases the Chambers had stated that Rule 84bis statements under oath could either not be made at all or only if also subject to cross-examination.691 Finally, some defendants testifying under Rule 85(C) were allowed, after answering their counsel’s questions, to make a short statement at the end of their testimony.692

2.  The International Criminal Court Article 67(1)(h) RSt grants the defendant the right to ‘make an unsworn oral or written statement in his or her defence’.693 This right has been used by some defendants both in confirmation hearings and at trial. While the timing of such statements is not addressed in the legal texts,694 the Chambers seemed to be open to allowing defendants to choose the time at which they decided to speak.695 So far, defendants have opted either to make an openings statement in addition to that of their counsel in the confirmation hearing696 or to address the Trial 686   Prosecutor v Blagojevi´c and Joki´c (Transcript of 9 September 2004) IT-02-60, Trial Chamber, 12280–81. 687   Prosecutor v Blagojevi´c and Joki´c (Judgment) IT-02-60, Appeals Chamber (9 May 2007), paras 26–30. 688   ibid, Partially Dissenting Opinion of Judge Shahabuddeen, paras 1, 6. 689   Prosecutor v Blagojevi´c and Joki´c (Decision on Vidoje Blagojević’s Oral Request) IT-02-60, Trial Chamber (30 September 2004), particularly at 10. 690   Prosecutor Prli´c et al (Decision on Praljak Defence Notice Concerning Opening Statements Under rr 84 and 84bis) IT-04-74, Trial Chamber (27 April 2009), 7 et seq. 691   See ibid, references in fnn 24 and 27. 692   eg Prosecutor v Dokmanovi´c (Transcript of 28 May 1998) IT-95-13a, Trial Chamber, 3486–87. 693   This is a right, not a duty; in other words, neither the defendant nor the defence as a whole can be compelled to make an opening statement: Situation in DR Congo, Prosecutor v Lubanga (Decision on Opening and Closing Statements) ICC-01/04-01/06, Trial Chamber (22 May 2008), paras 16 et seq. 694   r 141 RPE-ICC on closing statements provides that the defence will have the ‘last word’, but it speaks of the defence, not the defendant and thus does not refer to Art 67(1)(h) statements. 695   Situation in Kenya, Kenya I (Transcript of 1 September 2011) ICC-01/09-01/11, Pre-Trial Chamber, 85; Situation in Kenya, Kenya II (Transcript of 21 September 2011) ICC-01/09-02/11, PreTrial Chamber, 21–22. 696   Situation in Sudan, Prosecutor v Abu Garda (Transcript of 19 October 2010) ICC-02/05-02/09, Pre-Trial Chamber, 42 et seq; Situation in Kenya, Kenya I (Transcript of 1 September 2011) ICC-01/0901/11, Pre-Trial Chamber, 95 et seq (Ruto); 112 et seq (Sang); Situation in Kenya, Kenya II (Transcript of 21 September 2011) ICC-01/09-02/11, Pre-Trial Chamber, 69 et seq (Muthaura).

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The Position of the Defendant in the Trial Chamber at the end of their trial.697 The Chambers have generally let defendants determine the material scope of their statements, but have, in confirmation hearings, imposed time limits. Unsworn statements have so far not been considered to be evidence.698 The legal texts do not state explicitly whether a defendant may also appear as a witness in her own case, and at first commentators were split on this question.699 In practice, both the Pre-Trial and Trial Chambers have allowed defendants to testify in their defence, both during the confirmation hearing700 and during the trial, with testimony during trial taking up a number of days.701 The Chambers have not yet decided on the probative value of such testimony. As to timing, the Chambers have so far proven rather flexible and basically allowed defendants to choose a time during the defence case. In Katanga and Ngudjolo, both defendants chose to testify at the end of the defence case.702 In Kenya II, defendant Uhuru Kenyatta testified at the beginning of the defence phase of the confirmation hearing.703 As to conditions of testimony, Trial Chamber II held in Katanga and Ngudjolo that, during the time that they were on the stand, defendants were not allowed to discuss the content of their testimony with anybody, including their counsel, codefendants and other co-detainees.704

3.  The Special Court for Sierra Leone Rule 85(C) RPE-SCSL, similarly to the same rule before the ICTY and ICTR, allows the defendant to appear as witness. Such evidence is made under the usual regime applicable to witnesses in general, that is given ‘under oath or affirmation’ 697   Situation in DR Congo, Prosecutor v Lubanga (Transcript of 26 August 2011) ICC-01/04-01/06, Trial Chamber, 48–49. 698   Situation in Sudan, Prosecutor v Abu Garda (Decision on the Confirmation of Charges) ICC02/05-02/09, Pre-Trial Chamber (8 February 2010), paras 53–55. See, however, Situation in Kenya, Kenya II (Transcript of 21 September 2011) ICC-01/09-02/11, Pre-Trial Chamber, 21, where the Chamber states that it will decide on the probative value of such statements later on. 699   See, eg Orie (2002), 1482 (for such a right), Zappalà (2003),79 (against such a right). 700   Situation in Kenya, Kenya II (Transcript of 28 September 2011) ICC-01/09-02/11, Pre-Trial Chamber, 97 et seq; (Transcripts of 29 September 2011), 3 et seq. 701   Situation in DR Congo, Prosecutor v Katanga and Ngudjolo (Transcripts of 27 September 2011–20 October 2011) ICC-01/04-01/07, Trial Chamber (testimony of Katanga); (Transcripts of 27 October 2011 and the following days) (testimony of Ngudjolo). 702   Situation in DR Congo, Prosecutor v Katanga and Ngudjolo (Transcript of 9 March 2011) ICC01/04-01/07, Trial Chamber, 26–27, (Transcript of 10 March 2011), 24 et seq. 703   Situation in Kenya, Kenya II (Transcript 29 September 2011) ICC-01/09-02/11, Pre-trial Chamber. 704   Situation in DR Congo, Prosecutor v Katanga and Ngudjolo (Décision relative à la ‘Requête urgente de l’Accusation aux fins de prohibition des contacts entre les accusés Mathieu Ngudjolo et Germain Katanga et avec leur équipe de Défense pendant la durée de leur témoignage sous serment’) ICC-01/0401/07, Trial Chamber (23 September 2011). The chamber did not generally prohibit contact between defendant and counsel, but both defence teams decided on their own initiative to forego such contact, presumably to ensure that the testimony be given the highest possible probative value ((Transcript of 20 October 2011) 3–4).

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Ability to Make Statements and subject to cross-examination.705 A defendant who wishes to testify must do so at the beginning of the defence case.706 Defendants testifying are generally treated like other witnesses. In the CDF case, the Chamber held that for the duration of their testimony, there was to be no contact between the defendant and defence counsel.707 The Trial Chamber in Taylor, by contrast, only forbade the defendant from discussing his testimony with any other person, but allowed contact with his counsel.708 In each of the three group trials before the Special Court, one of the defendants opted to testify as a defence witness, and their testimonies lasted for several trial days and made up a substantial part of the defence case.709 Charles Taylor testified in his own defence over a period of several months.710 The RPE-SCSL do not contain an explicit rule on the possibility of unsworn statements by defendants. Defendants may, however, address the Court under Rule 84 by way of an opening statement. Trial Chamber II allowed defence opening statements only at the beginning of the defence case.711 All such statements in the AFRC and the Taylor cases were made by counsel.712 Trial Chamber I gave the defence a choice whether such statement would be made by counsel or by the defendant. Two defendants chose to make the statement themselves – Norman, who was at the time representing himself but had been assigned standby counsel, in the CDF case713 and Gbao in the RUF case.714 As to timing, the Chamber went beyond the wording of Rule 84 and found that the 705   r 85(C) RPE-SCSL expressly states that the testimony is given ‘under oath or affirmation’. That it is subject to cross-examination derives from the general r 85(A). 706   This derives from the wording according to which the defendant shall ‘thereafter’, ie after testifying in person, ‘call his witnesses’. 707   CDF (Transcript of 24 January 2006) SCSL-04-14, Trial Chamber, 41, 42. 708   Prosecutor v Taylor (Decision on Prosecution Motion for an Order Restricting Contact Between the Accused and Defence Counsel During Cross-examination) SCSL-03-01, Trial Chamber (20 November 2009), with further references. 709   CDF (Transcripts of 24 January 2007–7 February 2007) SCSL-04-14, Trial Chamber (testimony of Sam Hinga Norman); RUF (Transcripts of 3 May 2007–26 June 2007) SCSL-04-15, Trial Chmaber (testimony of Issa Hassan Sesay); AFRC (Transcripts of 6 June 2006–28 June 2006) SCSL-04-16, Trial Chamber (testimony of Alex Tamba Brima). 710   Prosecutor v Taylor (Transcripts of 13 July 2009 – 18 February 2010) SCSL-03-01, Trial Chamber. For an overview of the examination in chief, see ‘Charles Taylor on the Stand: An Overview of His Examination-In-Chief ’ (by UC Berkeley monitors), The Trial of Charles Taylor Blog, 4 January 2010, available at: www.charlestaylortrial.org/2010/01/04/charles-taylor-on-the-stand-an-overview-of-hisexamination-in-chief-by-u-c-berkeley-monitors/. 711   See Prosecutor v Taylor (Decision on Urgent and Public Defence Motion Requesting Leave for Charles Ghankay Taylor to Give an Un-sworn Statement from the Dock) SCSL-03-01, Trial Chamber (29 May 2007). 712   AFRC (Transcript of 5 June 2006) SCSL-04-16, Trial Chamber; Prosecutor v Taylor (Transcript of 13 July 2009) SCSL-03-01, Trial Chamber. 713   CDF (Transcript of 15 June 2004) SCSL-04-14, Trial Chamber, 3 et seq. 714   A defence proposal to split the statement between counsel and defendant was not well received by the court (RUF (Transcript of 5 July 2004) SCSL-04-15, Trial Chamber, 79 et seq); in the end, the defence decided that the statement would be made by the defendant ((Transcript of 6 July 2004), 6 et seq). Sesay first also intended to make his statement personally, but after he was immediately interrupted by the judges due to the content of his statement ((Transcript of 5 July 2004), 69 et seq), he and his defence team decided not to make a statement at all at that point (Transcript of 6 July 2004).

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The Position of the Defendant in the Trial statement could be made either at the beginning of the prosecution case or at the beginning of the defence case.715 In fact, in RUF, the Chamber later allowed an additional opening statement at the beginning of the defence case, with the Gbao defence exceptionally being allowed to make its statement at the beginning of its own defence case rather than of the defence phase.716 In CDF, on the other hand, the Chamber only allowed one statement altogether – Norman, who had made his statement at the beginning of the prosecution case, was not allowed to make a statement at the beginning of the defence case.717 The Chamber emphasised that the statement had to be restricted to the scope of the indictment and in fact cut off Gbao’s first opening statement immediately when he began referring to political questions.718 Closing statements under Rule 86 were in all cases made by defence counsel. Defendants did have one more opportunity to address the Court, though, as both Trial Chambers allowed them to make a short statement during the sentencing hearing.719 Other than these statements made at specific instances during the proceedings, defendants were usually not allowed to make any statements. Trial Chamber I once, referring to its general power to control trial proceedings,720 allowed Issa Sesay to make a short statement to the judges.721 However, when the defendant veered into questions of the Court’s jurisdiction, the Chamber interrupted him and in fact ordered him to be escorted from the courtroom when he did not stop talking.722 Finally, reference should be made to a request by the Charles Taylor defence to allow Taylor to make an unsworn statement following the prosecution’s opening statement. The Chamber qualified this request (wrongly, in the defence’s view)723 as a request for an opening statement under Rule 84 and thus dismissed it as premature.724   RUF (Transcript of 5 July 2004) SCSL-04-15, Trial Chamber, 16 et seq; (Transcript of 6 July 2004).   RUF (Written Reasons for the Decision on Request for the Gbao Opening Statement to Be Given at the Beginning of the Presentation of Evidence for the Third Accused) SCSL-04-15, Trial Chamber, (3 July 2007). 717   CDF (Transcript of 19 January 2006) SCSL-04-14, Trial Chamber. 718   RUF (Transcript of 6 July 2004) SCSL-04-15, Trial Chamber, 7 et seq. 719   CDF (Transcript of 19 September 2007) SCSL-04-14, Trial Chamber,  64 (defendant making a statement through his counsel) and 91 (defendant making a statement in person); AFRC (Sentencing Judgment) SCSL-04-16, Trial Chamber, 19 July 2007, para 2. 720   r 54 RPE-SCSL. 721   RUF (Transcript of 11 January 2005) SCSL-04-15, Trial Chamber, 7 et seq. The prosecution strenuously objected, and the Chamber stated that the permission was rather exceptional. 722   RUF (Transcript of 11 January 2005) SCSL-04-15, Trial Chamber, 12. Sesay was later allowed back into the courtroom, and he and one of his co-defendants were allowed to file short statements in the form of letters to the court. Towards the end of the RUF trial, Sesay was apparently again ‘admonished against making [certain] utterances’ ((Decision on Sesay Request for the Withdrawal or Clarification of Trial Chamber’s 22 May 2008 Warning to Issa Sesay) SCSL-04-15, Trial Chamber (9 June 2008)). 723   See Prosecutor v Taylor (Decision on Defence Application for Leave to Appeal the 29 May 2007 ‘Decision on Urgent and Public Defence Motion Requesting Leave for Charles Ghankay Taylor to Give an Un-sworn Statement from the Dock’) SCSL-03-01, Trial Chamber (16 July 2007). 724   Prosecutor v Taylor (Decision on Urgent and Public Defence Motion Requesting Leave for Charles Ghankay Taylor to Give an Un-sworn Statement from the Dock) SCSL-03-01, Trial Chamber (29 May 2007). 715 716

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Ability to Make Statements

4.  The Special Tribunal for Lebanon The legal texts of the Special Tribunal for Lebanon provide the defendant with a number of opportunities to be heard during the trial: First, Article 16(5) StSTL grants the defendant a rather broad power to make unsworn statements ‘in court in any stage of the proceedings’, provided they are ‘relevant to the case at issue’ – the RPE seem to limit this option to proceedings before the Trial Chamber, however.725 The defendant may also choose to answer questions posed to her by the Chamber, proprio motu or upon motion by a party or a victim representative.726 She is free to decide whether or not to make a solemn declaration before availing herself of either of these options. The determination of the ‘probative value, if any’,727 of such statements or answers is up to the Chamber – according to the President’s Explanatory Memorandum, ‘It may be assumed that the accused’s answers have the same evidentiary value as the evidence of other witnesses’.728 Second, the RPE, insofar following the common law approach, also grant the defendant the option of appearing as a witness in her own defence,729 presumably under similar conditions as apply before other tribunals, in particular under threat of punishment for false testimony.730 Finally, after closing statements, the defendant may also ‘make a final statement on matters relevant to the trial’.731

IV. Conclusion The provisions of international criminal procedure on statements by the defendant are difficult to summarise as the approach to this question differs significantly between courts and sometimes also within the same court. Painting with a broad brush, one might say that the difference between the civil law and common law traditions is largely reproduced in international criminal procedure: the ICTR and SCSL basically follow the common law model of allowing the defendant to testify as witness in her favour, but otherwise granting her only limited opportunities to speak. The ICTY follows a similar line, but some Chambers also allow the defendant to make a number of statements throughout the trial in addition to common law style testimony. The ICC and STL seem to combine both options known to national proceedings by foreseeing an unsworn statement or statements by the defendant, but also allowing her to testify.   r 144(A) RPE-STL.   r 144(B) RPE-STL.   Art 16(5) StSTL, r 144(3) RPE-STL. 728   Memorandum RPE STL, para 28. 729   r 144(D) RPE-STL. 730   r 152 RPE-STL. 731   r 147(c) RPE-STL. 725 726 727

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The Position of the Defendant in the Trial Thus in all courts do defendants have a chance to address the court. The limits of what defendants are allowed to say in that regard, however, are strikingly different between courts and probably also between Chambers of the same court. Thus at the ICTY, many defendants were allowed to speak for quite some time and granted some latitude in dealing with the historical and political situation surrounding their case. At the SCSL, on the other hand, time allotted was limited very strictly and statements were immediately interrupted once they touched upon questions unrelated to the facts of the case strictly speaking.

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3 The Position of the Defendant in Developments Alongside the Trial The final question to be asked is what role the defendant is able to play in events unfolding alongside her trial, or whether this option is unavailable to her due to the trial. May the defendant talk to the media or write and publish a book? May she participate in political life in her home country? A further question in this context is whether the defendant will be able to gain provisional release or whether she will remain in detention throughout the proceedings. This question plays a role by determining which legal provisions, and thus which restrictions, apply to the defendant. Of course, the question of detention need not necessarily be the decisive one in this regard – a detainee granted extensive communication rights in detention may be able to be much more active than a defendant who has been granted provisional release under very strict conditions.

I.  National Criminal Proceedings 1. Germany (a)  The Question of Detention or Liberty As concerns the possibility of gaining release, the StPO proceeds from an assumption of liberty of defendants, with provisions laying down specifically the requirements for provisional detention. Generally, detention requires the suspicion that the defendant has committed a crime – a higher degree of suspicion is required for detention than for the initiation of main proceedings1 – and a reason why (further) detention is necessary (Haftgrund). Haftgründe are risk of flight,2 risk of manipulation or obfuscation of evidence and, for certain crimes, risk of reoffending.3 Where certain serious crimes involving death of persons are at issue, the text of the provision does not require any Haftgrund; the Constitutional Court   See Meyer-Goßner (2011), § 112, mn 6.   The provision also explicitly names the Haftgrund of actual flight – § 112(2) (No 1) StPO. 3   § 112(2), 112a(1) StPO. 1 2

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Developments Alongside the Trial has held that even in such cases one is required, but that the evidentiary requirements are lowered.4 Detention may only last more than six months where this is explicitly found necessary due to the particular difficulty or unusual scope of the investigation or for some other ‘important reason’.5 This sets quite a high standard, especially in light of a number of decisions of the Constitutional Court in 2005 and 2006 laying down stringent requirements for expeditious proceedings.6 Provisional detention is also subject to a proportionality review as to its length. There is, however, no hard limit for the permissible length of detention (except for detention solely based on the danger of re-offending, which may only last up to one year)7 and there have been cases in which defendants have spent six to eight years in detention prior to and during trial.8 Some protection against overlong detention is intended by the requirement of automatic review of detention after three9 and six months and every three months thereafter,10 with all reviews after six months being conducted by the Appeals Court (or, in case of trials held before the Appeals Court, by the Federal Court of Justice). Detention is also at all times subject to proportionality review in general; where further detention would be disproportionate, the court must suspend the execution of the arrest warrant and release the defendant under conditions11 or quash the arrest warrant and release the defendant outright. Temporary interruption of detention is generally not possible, but some courts have allowed short suspension to allow the defendant to conduct important personal business.12 Detention during the main hearing generally follows the same rules as pre-trial detention. Additionally, the court may have a defendant arrested for failing to appear for the hearing and keep her in detention until the end of the main hearing.13

  BVerfG, NJW 1966, 772; BVerfGE 19, 342, 350.   § 121(1) StPO. 6   See Jahn (2006); Pieroth and Hartmann (2008). 7   § 122a StPO. 8   The applicant in the Erdem case at the ECtHR had spent almost six years in detention when he was convicted and sentenced to six years’ imprisonment (ECtHR, Erdem v Germany, Judgment of 5 July 2001, 2001-VII Rep 15, paras  9–10). Both the Federal Court of Justice and the Constitutional Court had upheld this period of detention (see ibid, paras 25–27; both decisions are unreported). In another case, the Constitutional Court ordered the release of a defendant who had been in provisional detention for over eight years after a first judgment of conviction had been quashed on appeal due to violations of procedural law (BVerfG, NJW 2006, 672). 9   § 117(5) StPO. There is no automatic review if the defendant is represented by an attorney at that time, since it is assumed that the attorney will initiate review proceedings anyway. 10   § 122(1), (4) StPO. 11   § 116 StPO. 12   LG Cologne, StV 1984, 342 (applying for placement on drug therapy program); AG Krefeld, NStZ 2002, 559 (sitting an important exam); LG Verden, StV 1996, 387 (visiting close relative who has fallen ill). Others find such measures generally impermissible and would only allow short-term release accompanied by a guard – OLG Schleswig, SchlHA 1971, 69; OLG Stuttgart, MDR 1980, 423. 13   § 230(2) StPO. There is no hard limit to the length of detention in such cases, but detention is subject to a proportionality review: BVerfGE 32, 87, 94. 4 5

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National Criminal Proceedings (b)  Applicable Regimes The conditions of detention are subject to regulation under two headings: on the one hand, Section 119 StPO allows the courts to order restrictions – including restrictions on communication with the outside world – only as required by the Haftgründe.14 On the other hand, the Länder codes on detention matters15 generally allow defendants to communicate with the outside world by letter, through visits and possibly via telephone, but also foresee restrictions. Most of these provisions are based on provisions of the Ordnung über den Vollzug der Untersuchungshaft, regulations which used to regulate conditions of detention until the passing of the Länder codes, although in some instances the Länder codes can be described as more liberal. Given that jurisprudence on the new Länder provisions is rather sparse so far, the following will be based on jurisprudence under the UVollzO. Visits are generally allowed, up to a certain number of hours per month, and may only be prohibited where this is necessary for upholding security and good order in the detention unit.16 On this matter, courts were divided on whether defendants could receive visits for the purpose of conducting TV interviews.17 There was, however, agreement that visits by newspaper journalists were generally to be allowed,18 if need be under the condition that a recording of the visit be made by detention facility staff.19 Telephone calls are generally allowed under similar conditions as visits.20 As to written communications, these are generally allowed unless the correspondent poses a danger to the security and good order in the detention unit; they may be read by detention personnel in order to safeguard security and order and may be stopped where required by the Haftgründe or by security and order in the detention unit, but also where they contain ‘grossly untrue or distorted depictions’ of the detention facility or ‘gross insults’.21 Courts have found that written 14   Including Haftgründe on which the arrest warrant was not originally based: Meyer-Goßner (2011), § 119, mn 5 with further references. 15   See above 20. 16   See in the codes of the various Länder (for the precise titles of codes, see above 20): Brandenburg, § 33(5); Berlin, § 33(5); Bremen, § 33(5); Baden-Württemberg, § 13; Hessen, § 25(2); Hamburg, § 21(5); Sachsen-Anhalt, § 33(5); Mecklenburg-Vorpommern, § 33(5); Niedersachsen, § 143(2); NordrheinWestfalen, § 18(3); Rheinland-Pfalz, § 33(5); Sachsen, § 33(5); Saarland, § 33(5); Thüringen, § 33(5). For the UVollzO, see § 24 et seq. 17   Contra BGH, NStZ 1998, 205; OLG Hamm, NStZ 1991, 559; pro OLG Celle, StV 1998, 494; OLG Frankfurt, NStZ 2008, 304. OLG Karlsruhe, NJW 1973, 1291 argues for a case-by-case determination. 18   BVerfG, NJW 1996, 983; BGH, StV 1993, 32; OLG Düsseldorf, NStZ 1996, 354. 19   BGH, StV 1993, 32. 20   See in the codes of the various Länder: Brandenburg, § 40; Berlin, § 40; Bremen, § 40; BadenWürttemberg, § 20; Hessen, § 28; Hamburg, § 27; Sachsen-Anhalt, § 40; Mecklenburg-Vorpommern, § 40; Niedersachsen, § 148; Nordrhein-Westfalen, § 21; Rheinland-Pfalz, § 40; Sachsen, § 40; Saarland, § 40; Thüringen, § 40. 21   See in the codes of the various Länder: Brandenburg, §§ 36(2), 39(1); Berlin, §§ 36(2), 39(1); Bremen, §§ 36(2), 39(1); Baden-Württemberg, §§ 16(2), 19(1); Hessen, § 27(1), (2); Hamburg, §§ 24(2), 26(1); Sachsen-Anhalt, §§ 36(2), 39(1); Mecklenburg-Vorpommern, §§ 36(2), 39(1); Niedersachsen, §§ 147(1), 32(1); Rheinland-Pfalz, §§ 36(2), 39(1); Sachsen, §§ 36(2), 39(1); Saarland, §§ 36(2), 39(1);

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Developments Alongside the Trial communications could not be stopped simply because they were addressed to the press.22 Accordingly, detainees could generally communicate with the press and have in fact often done so.23 Finally, defendants are generally able to write books, or to conduct political business as far as possible under the restrictions mentioned above, while in detention on remand. Defendants are, however, generally not allowed to use any kind of computer in the detention facility.24 Where a detainee is suspected of terrorist crimes and a third person’s life or health is endangered by a terrorist group, the detainee may temporarily be placed under incommunicado detention prohibiting even contact with her counsel.25 As to defendants not in detention, where the arrest warrant has been suspended because the Haftgrund could be dispelled by other measures or because detention would be disproportionate, Section 116 StPO contains a list of conditions which may be imposed on her. This list, which is not exhaustive, includes the posting of bail as well as restrictions on travel and on personal associations. Conditions may generally only aim to dispel an existing Haftgrund.26 Specifically as concerns restrictions on personal associations, this generally means that they should only cover present or potential co-defendants or witnesses.27 Given these requirements, restrictions on media contacts or political activity will seldom be justified. Where there is no arrest warrant from the outset or where the warrant is quashed, the defendant remains at liberty without specific restrictions. All defendants must, according to Section 353d StGB, refrain from publically quoting documents in the case file until these have been dealt with in open court or the trial has ended. However, this provision only covers verbatim (or nearverbatim) quotes, other means of relaying the content of such documents are not generally prohibited.28 As far as counsel are concerned, they are subject to rules requiring a certain professionalism in the exercise of their profession29 and to Section 353d StGB, but Thüringen, §§ 36(2), 39(1). Some codes foresee that communications containing ‘distorted depictions’ may instead be passed on accompanied by a letter from the detention unit dispelling such distortions. One code contains no specific rule, thus allowing the stopping of communications only where sending them on would endanger order and security (Nordrhein-Westfalen, § 20, 1 (3)). For the UVollzO, see its § 34. 22   BVerfG, NJW 1994, 244 (in a case under the old § 31(1) StVollzG, the wording of which was similar to that of No 34 UVollzO). 23   See, eg BGH, StV 1993, 32. 24   OLG Düsseldorf, NJW 1989, 2637; NStZ 1999, 271–72; OLG Hamm, StV 1997, 197; StV 1997, 199. Some courts have, however, allowed the use of computers without external media: OLG Hamm, NStZ 1997, 566–67. An exception is sometimes made where the use of a computer by the defendant is required for an effective defence: OLG Stuttgart, NStZ-RR 2003, 347; OLG Koblenz, StV 1995, 86. 25   Einführungsgesetz zum Gerichtsverfassungsgesetz, §§ 31 et seq. 26   See, eg OLG Celle, StV 1988, 207; OLG Frankfurt/M., StV 1992, 583; LG München II, StV 1998, 554; LG Dortmund, StV 1999, 607; OLG Hamm, StV 2002, 315. 27   See Meyer-Goßner (2011), § 116, mn 15. 28   See Fischer (2012), § 353d, mn 6. 29   In particular, § 43a(3) of the Bundesrechtsanwaltsordnung requires them to act professionally in performing their duties.

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National Criminal Proceedings there are no rules which would generally prohibit them from contacting the media or from raising certain topics in their contacts with the media.

2. France (a)  The Question of Detention or Liberty Article 137 CPP lays down the general rule that ‘The person under judicial examination, presumed innocent, remains at liberty’, and expressly notes that the defendant may only be remanded in custody ‘in exceptional cases’ and where judicial supervision is not sufficient. Preconditions for detention are suspicion of having committed a felony or misdemeanor punishable by at least three years’ imprisonment30 and a reason for continued detention. The list of such reasons is rather broad: besides the usual risks of flight, danger to evidence or witnesses and risk of re-offending, it includes the protection of the defendant herself and ‘put[ting] an end to an exceptional and persistent disruption of public order caused’ by the offence.31 The length of detention is regulated in two ways: first, detention generally ‘may not exceed a reasonable length of time in respect of the seriousness of the charges brought against the person under judicial examination and of the complexity of the investigations necessary for the discovery of the truth’.32 Second, the CPP contains a finely graduated list of maximum allowable detention for various cases, ranging from four months where the crime in question is a misdemeanor punishable by not more than five years’ imprisonment and the defendant is a first-time offender,33 to a maximum of four years and eight months where the case concerns certain serious felonies and the proceedings are particularly complex and earlier release would ‘create a particularly serious risk to persons and property’.34 The requirements for the reasoning in a decision on detention increase once the length of detention reaches one year.35 In all cases, the court may ‘exceptionally grant an authorization for an escorted leave’.36 Where the investigating judge finds that the facts make out only a misdemeanor, detention usually ends with the end of the investigation; the judge may, however, exceptionally prolong detention until the beginning of the trial, for a maximum of two months, given one of the usual reasons for detention.37 Where the judge finds that the facts make out a felony, the person continues to be detained until trial, for a maximum period of one year and exceptionally for up to 30   Art 143-1 CPP. Detention may also be ordered in other cases where the defendant has evaded judicial supervision – Art 141-2 CPP. 31   Art 144 CPP. 32   Art 144-1 CPP. 33   Art 145-1 CPP. 34   Art 145-2 CPP. 35   Art 145-3 CPP. 36   Art 148-5 CPP. 37   Art 179 CPP.

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Developments Alongside the Trial two years.38 Detention also ends where the Chambre d’instruction finds that the facts only make out a misdemeanor or petty offence.39 Detention may also be ordered during the procedure before the investigation division40 or during the trial before the Cour d’assises, but in the latter case only to prevent flight or pressuring of witnesses.41 (b) Applicable Regimes The provisions on provisional detention grant detainees rather broad rights of communication with the outside world. First, they may receive visits with the permission of the court. Family members or counsel will generally receive such permission; other persons will have to demonstrate a legitimate interest for a visit.42 While the court has discretion in deciding on applications for visits, particularly family visits will have to be allowed at the latest after one month of detention.43 As to written communications, defendants may generally write to and receive communications from any other person,44 but limits may be imposed by the court.45 Letters are controlled by detention personnel and may be held back where they contain a concrete danger to the safety of a person or of the detention facility.46 Detainees are not allowed to make telephone calls.47 These conditions will mostly limit defendant contact with the press to written correspondence. Upon first detaining a defendant, the investigating judge may impose an initial communications ban for up to 20 days, which covers all visits and communications except those by and with counsel. After that period, no general bans may be imposed.48 Detainees may be placed in isolation detention, but they retain communication rights concerning the outside world.49 Compliance with limits to communication is secured by Article 434-35 CP, which allows punishing those who have non-permitted communications with a detainee by up to one year’s imprisonment. Defendants not detained may, if the crime of which they are suspected of is a misdemeanor or felony, be placed under judicial supervision and thus subjected to a number of restrictions and failure to uphold these may lead to them being arrested and detained.50 Article 138 CPP contains an exhaustive list of possible   Art 181 CPP.   Art 213 CPP. 40   Art 201(2) CPP. 41   Art 272-I(2) CPP. 42   Art D412 CPP. 43   Art 145(4) CPP. 44   Art D417 CPP specifically notes that ‘defendants may write every day and without limitations’ (emphasis added). 45   Art D65 CPP. 46   Art D415(2) CPP. 47   See Art D419-1 and D419-2 CPP e contrario. 48   Art 145(4) CPP. 49   Arts D56-1, D-283-1-2 CPP. 50   Art 138, 141-2 CPP. 38 39

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National Criminal Proceedings restrictions. Of these, Article 138 No 9 – prohibition of contact with certain persons – could be used to keep defendants from speaking to the media. However, such a restriction would seem unlikely – from a general perusal of the list, it seems that any restrictions are mainly intended to eliminate the dangers of flight, intimidation of witnesses or re-offending – risks which contact with the press will generally not incur. As to engagement in politics, etc Article 138 No 12 allows prohibiting the defendant from engaging in ‘certain professional or social activities’. However, this only applies where the alleged crimes were committed in the performance of such activities, and ‘electoral mandates or union responsibilities’ are excluded from the list of activities which may be prohibited. There are no specific rules prohibiting counsel from contacting the press.

3.  United States (a)  The Question of Detention or Liberty The US law on bail was codified in 1966 and reformed in 1984. The current statute51 allows for defendants to be released without conditions (release on personal recognizance) or on the posting of personal bail, released on conditions, or further detained. The provision strongly favours release over detention and release without conditions over release on conditions;52 detention or conditions of release may only be ordered where necessary to dispel a reason for further detention. Such reasons include risk of flight or danger to the ‘safety of any other person or the community’, including a risk of obstruction of justice.53 The burden of proof is on the government; the standard of proof is preponderance of the evidence for risk of flight54 and clear and convincing evidence for other grounds.55 Where certain serious crimes are at issue,56 there is a rebuttable presumption that only continued detention will dispel the reason for detention. Crimes listed under this section include serious drug offences, terrorist offences and sexual offences against minors; other serious crimes, for example murder or genocide, are not listed.57   18 USC § 3142.   See US v Leyba, 104 F Supp 2d 1182 (SD Iowa 2000); US v Cox, 635 F Supp 1047 (D Kan1986). As to the Bail Reform Act of 1966, see US v Honeyman, 470 F 2d 473 (9th Cir 1972); Wood v US, 391 F 2d 981 (DC Cir 1968). 53   US v Acevedo-Ramos, 600 F Supp 501 (D Puerto Rico 1984), 755 F 2d 203 (1st Cir 1985); US v Gotti, 634 F Supp 877 (ED NY 1986), 794 F 2d 773 (2nd Cir 1986); US v Himler, 797 F 2d 156 (3d Cir 1986). 54   18 USC § 3142(f)(2); US v Xulam, 84 F 3d 441 (DC Cir 1996); US v Gebro, 948 F 2d 1118 (9th Cir 1991). 55   US v Gebro, 948 F 2d 1118 (9th Cir 1991); US v Carter, 916 F Supp 193 (ND NY 1996); US v Dodge, 842 F Supp 643 (D Conn 1994). 56   Or where the person has in earlier proceedings been convicted of a ‘violent’ or other serious crime –18 USC § 3142(f)(1). 57   Thus even defendants charged with capital offenses are entitled, under the conditions set forth here, to release prior to trial: White v US, 412 F 2d 145 (DC Cir 1968). 51 52

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Developments Alongside the Trial Where the court finds that a reason for detention exists, it must consider whether conditions for release may dispel it. Section 3142 non-exhaustively lists possible conditions;58 the court is under an obligation to consider all possible conditions or combinations of conditions59 short of ‘heroic measures’.60 Section 3142 will thus in the majority of cases lead to release without conditions, that is only on the posting of personal bail. However, this alone may also lead to prolonged detention where the person is unable to post the amount of bail required. While the Eighth Amendment prohibits ‘excessive bail’ and Section 3142 lays down that courts ‘may not impose a financial condition that results in the pretrial detention’ of the defendant,61 courts are generally allowed to set very high amounts of bail, even if these amounts exceed the ability of the defendant to raise bail.62 Inability to raise bail will thus in many cases lead to continued detention of defendants. Some protection against prolonged pre-trial detention is provided by requirements that investigation and trials be conducted speedily.63 As concerns investigations, this will often render pre-trial detention excessive already after four to 12 months, even where serious crimes are at issue.64 In particularly complicated cases, however, courts have also allowed pre-trial detention for up to three years.65 Detention during trial follows the same regime as pre-trial detention;66 after conviction, release pending sentencing or appeal will only be granted exceptionally.67 (b)  Applicable Regimes Detainees retain their constitutional rights and may not be subjected to treatment amounting to punishment.68 However, their rights may be restricted not only to   18 USC § 3142(e).   US v Wright, 483 F 2d 1068 (4th Cir 1973). 60   US v Tortora, 922 F 2d 880 (1st Cir 1990). 61   18 USC § 3142(c)(2). 62   See US v McConnell, 842 F 2d 105 (5th Cir 1988); US v Jessup, 757 F 2d 378 (1st Cir 1985). The court must explain why such high bail is required – US v Mantecon-Zayas, 949 F 2d 548 (1st Cir 1991).     Many state courts have schedules under which the sum of bail is fixed solely based on what crime the defendant is charged with. Most states and the federal system allow the defendant to use private bail agents which post bail for the defendant; however many defendant are unable able to pay the bail agent’s non-refundable fee, which usually amounts to 10% of the amount of bail and must be paid before the bail agent takes the case – for an example concerning a fictional typical case, see Feeney and Herrmann (2005),14–15. 63   This right derives from the 6th Amendment and is codified in 18 USC § 3161 (time limits for certain stages of proceedings) and § 3162 (sanctions of violations, including dismissal). Rule 50 FRCP contains the further rule that criminal trials must be given scheduling preference, but this is not an embodiment of the subjective speedy trial right – see US v Rodriguez, 497 F 2d 172 (5th Cir 1974). 64   US v Frisone, 795 F 2d 1 (2nd Cir 1986); US v Gallo, 653 F Supp 320 (ED NY 1986); US v Vastola, 652 F Supp 1446 (D NJ 1987). 65   US v El-Hage, 213 F 3d 74 (2nd Cir 2000). 66   r 46(b) FRCP. 67   There is no constitutional right to bail after conviction – see, eg US v Erickson, 506 F Supp 83 (WD Okla 1980); US v Sine, 461 F Supp 565 (D SC 1978). Statute law foresees post-conviction release only if certain restrictive conditions are fulfilled: 18 USC § 3143; r 46(c) FRCP. 68   eg Matzker v Herr, 748 F 2d 1142 (7th Cir 1984); Lock v Jenkins, 641 F 2d 488 (7th Cir 1981). 58 59

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National Criminal Proceedings secure their presence at trial, but also for the sake of ‘institutional security’ and ‘internal order and discipline’.69 Thus defendants must, for example, be allowed to use the telephone70 or to receive visitors,71 but all such rights are subject to restrictions and regulations by the prison administration.72 It is against this background that the Department of Justice has issued regulatory provisions laying down the detailed regime of detention.73 As concerns media contacts, detainees may address written communications to the media; in fact such communications are designated as ‘special mail’ and thus subject to less severe controls than other correspondence.74 Detainees may place telephone calls to media representatives in the same way as to other nonprivileged correspondence partners.75 As to visits, personal interviews will be allowed, under a number of conditions, if none of a number of exhaustively listed grounds for refusal is fulfilled.76 Most notably as concerns pre-trial detainees, such interviews have to be cleared by the court having jurisdiction.77 Courts have generally been rather generous in allowing restrictions on such interviews;78 restrictions have only been found unlawful where based on discriminatory grounds or solely on the (potential) content of the interview.79 Where ‘reasonably necessary to protect persons against the risk of death or serious bodily injury’, certain high-ranking officials of the Department of Justice may order that a detainee be denied all contact with the outside world.80 For defendants released on conditions, Section 3142 gives a non-exhaustive list of conditions which may be imposed. None of these conditions explicitly refer to contact with the media or involvement in politics, although ‘specified restrictions on personal associations . . . or travel’81 could be used to prohibit contact with the   Bell v Wolfish, 441 US 520 (1979).   O’Bryan v Saginaw County, Mich, 437 F Supp 582 (ED Mich 1977); Nicholson v Choctaw County, Ala, 498 F Supp 295 (SD Ala 1980). 71   ibid; Jones v Diamond, 636 F 2d 1364 (5th Cir 1981). 72   See, besides the decisions in the preceding footnotes, Duran v Elrod, 542 F 2d 998 (7th Cir 1976); Smith v Shimp, 562 F 2d 423 (7th Cir 1977); Feeley v Sampson, 570 F 2d 364 (1st Cir 1978); Smith v Boyd, 945 F 2d 1041 (8th Cir 1991); Valentine v Englehardt, 492 F Supp 1039 (D NJ 1980). 73   See 28 CFR Pt 540; BOP, Program Statements 5265.11 of 9 July 1999 (correspondence), 5264.08 of 24 January 2008 (telephone use), 5267.08 of 11 May 2006 (visitations) and 1480.05 of 21 September 2000 (visitations by the media). 74   28 CFR §§ 540.2(c), 540.20. 75   28 CFR § 540.101; BOP, Program Statement 5264.08, No 8 (b) and Implementing Information. 76   18 CFR §§ 540.62, 540.63. 77   18 CFR § 540.63(g)(6). 78   See Pell v Procunier, 417 US 817 (1974); Saxbe v Washington Post Co, 417 US 843 (1974); Oklahoma Hosp Ass’n v Oklahoma Publishing Co, 748 F 2d 1421, 1425 (10th Cir 1984); Jersawitz v Hanberry, 610 F Supp 535 (ND Ga 1985); Sidebottom v Schiriro, 927 F Supp 1221 (ED Mo 1996); see also Department of Justice, Office of Legal Counsel, Regulation of an Inmate’s Access to the Media, Memorandum Opinion for the Counselor to the Attorney-General April 13, 2001, and cases cited therein. 79   Main Road v Aytch, 522 F 2d 1080 (3d Cir 1975); Kimberlin v Quinlan, 199 F 3d 496 (DC Cir 1999); The Chicago Reader v Sheahan, 141 F Supp 2d 1142 (ND Ill 2001) (all concerning convicted prisoners). 80   18 CFR § 501.3(a). In extreme cases, contact with counsel may be monitored: § 501.3(d). 81   18 USC § 3142(c)(1)(B)(iv). 69 70

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Developments Alongside the Trial media or political meetings. However, as conditions may only be imposed to avoid flight risk and danger to other persons and the community,82 conditions restricting media access or political activities seem unlikely.83 There may, however, be cases in which particularly restrictive conditions are imposed84 which effectively preclude any contact with the media or political activity. Finally, there are no specific rules prohibiting counsel from contacting the media in the context of their defence work.

II.  Requirements Deriving from Human Rights Law 1.  The European Convention The rights of persons detained in the context of criminal proceedings, which derive from Article 5(3) ECHR, have featured prominently in Strasbourg jurisprudence since its beginning. Article 5(3) foresees that every arrested or detained person is entitled to ‘trial within a reasonable time or to release pending trial’. This wording seems to imply that there is no right to pre-trial release as long as the trial is held within a reasonable time; however the Strasbourg organs have interpreted the Article as containing a general right to pre-trial release unless certain conditions for further detention are met.85 The ECtHR has generally stated that ‘pre-trial detention must be the exception, not the norm’. However, as this statement concerns national jurisdictions, concerned with everything from petty criminality to very serious crimes, it is not clear whether the same rule would also apply to international systems, which deal almost exclusively with cases concerning very serious crimes. The ECtHR has, however, also laid down some more detailed requirements for pre-trial detention under Article 5(3). First of all, even for serious crimes, ‘a system of mandatory detention on remand is per se incompatible with Art. 5’,86 in other words, defendants must have at least a theoretical chance of being granted release. Second, a reasonable suspicion of the defendant having committed a crime and the existence of grounds for further detention87 must be convincingly demonstrated, the burden of proof generally being on the state.88   18 USC § 3142(c)(1)(B)(xiv); see also US v Spilotro, 786 F 2d 808 (8th Cir 1986).   A perusal of commentaries to § 3241 (18 USCA § 3241, effective 6 October 2006; CJS Bail, para 17, updated June 2008) shows no case specifically restricting contact with the media or political activities, with the possible exception of one case in which defendants accused of crimes committed as members of a labour union were prohibited from contact with other members of the union in question – US v Traitz, 646 F Supp 1086 (ED Pa 1986), 807 F 2d 322 (3rd Cir 1986). 84   Such as allowing contact only with ‘immediate family, attorneys and friends having no relation to the allegations in this case’ – ibid. 85   See, eg Neumeister v Austria (1968) Series A no 8, para 4; Jablonski v Poland App no 33492/96 (ECtHR, 21 December 2000), para 83. 86   Ilijkov v Bulgaria App no 33977/96 (ECtHR, 26 July 2001), para 84 with further references. 87   eg Letellier v France (1991) Series A no 207, para 35. 88   Ilijkov v Bulgaria App no 33977/96 (ECtHR, 26 July 2001), paras  84–85. ‘Stereotyped’ reasoning or reasoning based simply on, eg the length of the sentence in case of conviction is not sufficient: Letellier v France (1991) Series A no 207, para 43; Muller v France, ECHR 1997-II 374, para 43. 82 83

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Requirements Deriving From Human Rights Law The ECtHR has allowed a number of ‘relevant’ and ‘sufficient’ grounds for continued detention, including the rather broad and somewhat vague ‘protection of public order’.89 The severity of the suspected crime per se is not sufficient, at least not for longer-lasting detention.90 While the ECtHR has allowed for reasonable suspicion of a serious crime to create a presumption for the existence of a ground for further detention, it has nonetheless required the state to ‘convincingly demonstrate’ such reasons,91 thus in effect nullifying the effect of the presumption.92 The proportionality principle requires that the court consider whether measures other than detention, for example, the posting of bail, may suffice to dispel any ground for further detention.93 Finally and in any event, the length of pre-trial detention itself must be proportionate. This does not, however, translate into any fixed time period;94 under certain circumstances rather long periods of detention may still be reasonable – in one case concerning terrorism charges, the ECtHR exceptionally found no violation where detention prior to and during the trial had lasted almost five and a half years.95 As far as the communication rights of detainees are concerned, the Strasbourg jurisprudence mostly concerns communication with family96 and the interception of detainees’ mail under Article 8 ECHR.97 Both Court and Commission have, however, also considered certain restrictions on outside communications under Article 10 ECHR. In these cases, they have accepted the special situation of prisoners as a reason for restrictions98 and have generally granted state authorities some discretion in this regard.99 While the ECtHR would not allow detainees to be stripped of their right to vote,100 there is no jurisprudence on their ability to participate as candidates in an election. There do not seem to be pronouncements on the extent to which communication rights of non-detainee defendants may be restricted. 89   Letellier v France (1991) Series A no 207, para 51; Kemmache v France (Nos 1 and 2) (1991) Series A no 218, para 52; Tomasi v France (1992) Series A no 241-A, para 91. 90   Kemmache v France (Nos 1 and 2) (1991) Series A no 218, para 50; Tomasi v France (1992) Series A no 241-A, para 89; van der Tang v Spain (1995) Series A no 321, para 63. 91   Contrada v Italy ECHR 1998-V 2166, para 58; Ilijkov v Bulgaria App no 33977/96 (ECtHR, 26 July 2001), para 84. 92   See also Ilijkov v Bulgaria App no 33977/96 (ECtHR, 26 July 2001), para 85 on the burden of proof. 93   GK v Poland App no 38816/97 (ECtHR, 20 January 2004), para 85; Jablonski v Poland App no 33492/96 (ECtHR, 21 December 2000), para 84. See also Art 5(3) in fine. 94   ECtHR, W v Switzerland (1993) Series A no 254-A, para 30. 95   Chraidi v Germany ECHR 2006-XII, para 33 et seq. 96   Guzzardi v Italy (1980) Series A no 39, paras 34–35, 109. 97   See generally Silver et al v United Kingdom (1983) Series A no 61, especially para 98; Pfeifer and Plankl v Austria (1983) Series A no 227, para 47. 98   This applies both to convicted prisoners serving their sentence (X v Germany (ECmHR, 15 December 1965), 1965 YbECHR 205, 216) and to pre-trial detainees (Huber v Austria (ECmHR, 10 December 1970), 1971-II YbECHR 548, 566–68). See also Yankov v Bulgaria App no 39084/97 (ECtHR, 11 December 2003), para 129 et seq. 99   See generally van Rijn (2006), 805–06. 100   In Hirst v United Kingdom (No 2) App no 74025/01 (ECtHR, 6 October 2005), para 84, the Grand Chamber of the ECtHR found by majority that national laws disenfranchising all convicted prisoners was a disproportionate restriction of the right to vote under Art 3 of the First Additional Protocol. This must a fortiori mean that unconvicted detainees should generally retain the right to vote.

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Developments Alongside the Trial As concerns defence counsel, they may of course generally contact the press, but their special status as ‘officers of the court’ allows the regulation of the way they conduct themselves in public101 and an expectation that they ‘contribut[e] . . . to maintaining public confidence in the judicial authorities’.102 Sanctions may thus be imposed for public criticism of criminal justice organs which ‘overstep[s] certain bounds’.103 However, restrictions applying to criticisms of court decisions and/or to public conduct of counsel are, of course, subject to the proportionality principle.104

2.  The International System In the global sphere, the rights of detainees are covered by Article 9, specifically Article 9(3), of the ICCPR. The first clause of this provision is virtually identical to Article 5(3) ECHR; the second contains an explicit statement that ‘It shall not be the general rule that persons awaiting trial shall be detained in custody’. The HRC has stated in a General Comment that pre-trial detention ‘should be an exception and as short as possible’.105 Pre-trial detention thus is only allowed where the state has shown that a reason for further detention exists.106 Similarly to the ECtHR, the HRC requires that that reason be shown in a convincing manner – thus, for example, the mere fact that the defendant is a foreign national is not sufficient to establish a danger of flight.107 The final clause of Article 9(3) requires that detainees be released if danger of flight can be dispelled by other measures, such as the posting of bail.108 Finally, the length of detention as such must also be proportionate.109 As regards communication rights, there does not seem to be any jurisprudence on the extent to which detainees’ communication rights (Article 19 ICCPR) may be restricted. Neither does Article 10 ICCPR on humane treatment of prisoners provide any guidance on this question. The HRC has concerned itself, under Article 10 in conjunction with the right to family life (Article 17 ICCPR), with the interdiction of communications and visits with friends and family of prisoners and detainees.110 It has not, however, dealt with the contact of detainees with the press or the outside world in general.   Casado Coca v Spain (1994) Series A no 285-A, paras 46, 54.   Schöpfer v Switzerland ECHR 1998-III 1042, para 31. 103   ibid, para 33. 104   Worm v Austria ECHR 1997-V 1534, para 56; Casado Coca v Spain (1994) Series A no 285-A, paras 55–56. See also Schöpfer v Switzerland ECHR 1998-III 1042, dissenting opinions of De Meyer and Jambrek JJ; Ezelin v France (1991) Series A no 202, paras 51–53. 105   HRC, General Comment No 8, 1982, para 3. 106   See, eg HRC, WBE v Netherlands, Comm 432/1990, para 6.3; van Alphen v Netherlands, Comm 305/1988, para 5.8. 107   HRC, Hill and Hill v Spain, Comm 526/1993, para 12.3. 108   ibid. 109   HRC, Fillastre and Bizouarn v Bolivia, Comm 336/1988, para  6.5; Koné v Senegal, Comm 386/1989, para  8.7; Teesdale v Trinidad and Tobago, Comm 677/1996, para  9.3; Brown v Jamaica, Comm 775/1997, para 16; Shalto v Trinidad and Tobago, Comm 447/1991, para 7.2. 110   HRC, Angel Estrella v Uruguay, Comm 74/1980, para 9.2; Kulomin v Hungary, Comm 521/1992, para 11.4. See also Polay Campos v Peru, Comm 577/1994, para 8.6. 101 102

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Requirements Deriving From Human Rights Law While not legally binding, the UN Body of Principles may provide additional guidance: Principle 19 calls for the opportunity to ‘be visited by and to correspond with, in particular, members of [the detainee’s] family’ and for ‘adequate opportunity to communicate with the outside world’. Such opportunities are, however ‘subject to reasonable conditions and restrictions as specified by law or lawful regulations’. Principle 15 adds that a person shall not be held incommunicado ‘for more than a matter of days’. Read together, these principles allow substantial restrictions of detainees’ access to the media. The ICCPR does not seem to provide guidance on restrictions to communication rights of non-detainee defendants or of defence counsel.

3.  The Inter-American and African Systems The ACHR guarantees rights of detainees in Article 7(5), a provision substantially similar to Article 6(3) ECHR and Article 9(3) ICCPR. Both Court and Commission have stated that there is a presumption of liberty.111 The state must thus show, besides a reasonable suspicion that the defendant has committed a crime,112 ‘relevant and sufficient’ reasons for further detention.113 Besides the usual reasons such as risk of flight or danger to witnesses, the Commission allows, ‘under highly exceptional circumstances’, detention for the purpose of preservation of public order.114 Reasons for further detention must be established by concrete evidence and may not be based on abstract considerations, such as the seriousness of the alleged offence or the expected sentence in case of conviction.115 Where a danger of flight can be alleviated by measures other than detention, such measures must be taken.116 Finally, the length of the detention as such must have been proportionate with respect to the circumstances of the case.117 Article 6 of the African Convention is a very bare-bone provision on the right of liberty and security. Paragraph 2c of the 1992 Resolution contains a provision on rights of detainees which is, again, substantially very similar to the guarantees in Article 5(3) ECHR. This is complemented by the 2003 Principles, which allow detention only where ‘sufficient evidence . . . deems it necessary to prevent [the defendant] from fleeing, interfering with witnesses or posing a clear and 111   See, eg IACmHR, Gimenez v Argentina, Case 11.245, para 75; IACtHR, Tibi v Ecuador, Judgment of 7 September 2004, Ser C No 114, para 106: ‘Preventive imprisonment is the most severe measure that may be applied to the person accused of a crime, for which reason its application must be exceptional, since it is limited by the principles of lawfulness, presumption of innocence, necessity, and proportionality, indispensable in a democratic society’. 112   IACmHR, Bronstein et al v Argentina, Case 11.205 et al, para 27. 113   IACmHR, Gimenez v Argentina, Case 11.245, para 84. 114   IACmHR, Bronstein et al v Argentina, Case 11.205 et al, para 36. 115   ibid, para 28; see also para 34. 116   ibid, para 31.  117   IACmHR, Gimenez v Argentina, Case 11.245, para  99. As this cannot be determined in the abstract, there is no specific time limit for detention: Bronstein et al v Argentina, Case 11.205 et al, para 18. 

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Developments Alongside the Trial serious risk to others’.118 There is no relevant jurisprudence of the Commission so far.119 There is no specific provision on communication rights of detainees or nondetained defendants in any of the two systems; neither does the jurisprudence of the treaty bodies on the rights to expression and/or private life contain much that is helpful.120

III.  International Criminal Proceedings 1. The Ad hoc Tribunals (a)  The Question of Detention or Liberty At the ICTY, defendants will initially be placed in detention after being brought before the court, but may apply for provisional release under Rule 65 of the RPE. The wording of this norm as well as its interpretation have evolved a lot since 1994, leading scholars to refer to the ICTY provisional release regime as a ‘work in progress’.121 The evolution of this regime can roughly be divided into three stages. During the first stage, which lasted until mid-1999, provisional release was an exceptional occurrence.122 When drafting Rule 65, some judges had reportedly felt no need to include a provision on pre-trial release at all, given the gravity of the crimes in question and their expectation that they would be able to conduct trials speedily.123 Therefore, under the original Rule 65(B), provisional release was only to be granted in ‘exceptional circumstances’, even where there was no risk of flight or endangerment of witnesses. This was interpreted as constituting a presumption against provisional release.124   2003 Principles, para M.1.e.   The Commission has made obiter dicta on the requirements of Art 6, referring to the jurisprudence of other human rights treaty bodies (see Article 19 v Eritrea, Comm 275/03, para 93 et seq). It has not, however, considered these in any detail as all cases concerned entirely arbitrary detention (ibid, paras 100 et seq; see also, among others, Achutan and Another (on behalf of Banda) v Malawi, Comm 64/92, 68/92, and 78/92, para 8; Constitutional Rights Project and Civil Liberties Organisation v Nigeria, Comm 143/95 and 150/96, para 28; International PEN and Others v Nigeria, Comm 137/94, 139/94, 154/96 and 161/97, para 83; Constitutional Rights Project v Nigeria, Comm 153/96, paras 12 et seq). 120   The African Commission has held that  the right to family life is violated where a prisoner is not allowed to communicate with her family at  all (Constitutional Rights Project and Civil Liberties Organisation v Nigeria, Comm 143/95 and 150/96, para 29), but has not considered correspondence with the media and others. The 2003 Principles deal only with visits by ‘family and friends’ (para M.2.g). 121   Wald and Martinez (2001). See also Gaynor (2009). 122   See generally Müller (2008), 596–99. 123   Wald and Martinez (2001), 232. 124   In justifying this conclusion against the opposite presumption as set up by human rights law, Chambers referred to both the gravity of the crimes in question and the lack of enforcement mechanisms available to the Tribunal: see, eg Prosecutor v Blaški´c (Order Denying a Motion for Provisional Release) IT-95-14, Trial Chamber (20 December 1996); Procetor v Muci´c et al (Decision on Motion for Provisional Release Filed by the Accused Zejnil Delalić) IT-96-21, Trial Chamber (25 September 1996), paras 19–20. 118 119

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International Criminal Proceedings The requirement of ‘exceptional circumstances’ was interpreted rather narrowly – only severe health problems were accepted as fulfilling this requirement.125 Accordingly, provisional release was at this stage only granted to two detainees, both of whom were suffering from health problems incompatible with detention at the UNDU.126 Tihomir Blaškic´, one of the first defendants to have voluntarily surrendered to the Tribunal, was granted a modification in the conditions of detention and was detained, under strict conditions, at a ‘safe house’ in the Netherlands.127 The second stage of the provisional release regime began with a reform of Rule 65(B). After an Expert Group established by the General Assembly to review the operation of the Tribunals had called upon them to grant provisional release more liberally at least to defendants who had surrendered voluntarily,128 the ICTY judges decided to eliminate the requirement of ‘exceptional circumstances’ in November 1999. At first, however, there seemed to be little change in reality. In the first decision on provisional release under the new Rule 65(B), Trial Chamber I held that ‘the effect of the amendment is not to establish release as the norm and detention as the exception’ and accordingly interpreted the provision rather narrowly and denied release.129 Other Chambers were more lenient and granted provisional release in a number of cases.130 This contrast in approaches between Trial Chambers continued for a time, with Trial Chamber III still considering detention to be the rule and provisional release the exception,131 Trial Camber II proceeding from the opposite assumption132 and Trial Chamber I, maybe in an attempt at compromise, calling for a ‘focus . . . on the particular circumstances of each individual case’.133 The effect of this disagreement was that some defendants 125   Prosecutor v Milan Kovacˇevi´c (Decision on Defence Motion for Provisional Release) IT-97-24, Trial Chamber (20 January 1998), paras 13–14. Unusually long periods of detention were principally accepted as a possible exceptional circumstance, but the length of detention was not found to be unusually long in any case. See references in Wald and Martinez (2001), 239–40. 126   See Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc A/54/634, 22 November 1999 (hereinafter: Expert Group Report), para 51. 127   Prosecutor v Blaški´c (Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence) IT-95-14, Trial Chamber (3 April 1996). 128   Expert Group Report, para 54. It should be noted, however, that the Expert Group only mentioned this option in the context of a proposal that if the defendant did not return from provisional release, the trial could and should continue in her absence. 129   Prosecutor v Kvocˇka et al (Decision on Motion for Provisional Release of Miroslav Kvočka) IT-9830/1, Trial Chamber (2 February 2000). 130   Prosecutor v Blagoje Simi´c et al (Decision on Miroslav Tadić’s Application for Provisional Release) IT-95-9, Trial Chamber (4 April 2000); (Decision on Simo Zarić’s Application for Provisional Release), Trial Chamber (4 April 2000). 131   Prosecutor v Krajišnik and Plavši´c (Decision on Momčilo Krajišnik’s Notice of Motion for Provisional Release) IT-00-39&40, (8 October 2001), para 12 (see also the dissenting opinion of Judge Robinson). 132   Prosecutor v Hadžihasanovi´c and Kubura (Decision Granting Provisional Release to Enver Hadžihasanović) IT-01-47, Trial Chamber (19 December 2001), para 7. 133   Prosecutor v Ademi (Order on Motion for Provisional Release) IT-01-46, Trial Chamber (20 February 2002), para 18.

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Developments Alongside the Trial were granted provisional release, while others in similar cases did not profit from the rule change.134 In later years, the difference between the various Trial Chambers has become less marked as the more liberal approach has become rather dominant. Chambers now frequently grant provisional release unless there are specific reasons for denying it,135 but also hold that they still have discretion not to grant release even if there is no risk of flight or obstruction of justice.136 Rule 65 also applies after the beginning of the trial. Defendants are usually ordered to report back to the detention unit for trial and remain in detention while the trial is ongoing.137 The Chambers will, however, sometimes grant temporary provisional release during breaks in the trial.138 The requirements for release become stricter as the case nears a final judgment. Where a motion for acquittal under Rule 98bis after the prosecution case has been denied139 or has not been made at all,140 release will be a rather exceptional occurrence and the Chamber may require the showing of ‘serious and sufficiently compelling humanitarian grounds’. Similar considerations apply between the end of trial proceedings and the passing of the judgment.141 A recent decision by the Appeals Chamber according to which the requirement of ‘sufficiently compelling humanitarian ground’ is discretionary, as well as recent reform of the RPE according to which 134   See Wald and Martinez (2001), 242–43; Safferling (2002), 245. For details of the interpretation of the various prerequisites for provisional release, see Müller (2008) 601–12. 135   eg in Haradinaj, where the Chamber, against strong protest of the prosecution that provisional release would be detrimental to witnesses, did grant the motion of the accused (Prosecutor v Haradinaj et al (Decision on Ramush Haradinaj’s Motion for Provisional Release) IT-04-84, Trial Chamber (6 June 2005), paras  44 et seq). However, a later request for provisional release during a break in the trial was denied as it might increase the feeling of intimidation that many witnesses felt, even though the accused seemed guiltless in this regard ((Decision on Motion on Behalf of Ramush Haradinaj for Provisional Release), Trial Chamber (20 July 2007), paras 24–30). On the details, see Gaynor (2009), 187 et seq. 136   See, eg Prosecutor v Brd-anin and Tali´c (Decision on Motion by Radoslav Brđanin for Provisional Release) IT-99-36, Trial Chamber (25 July 2000), para 22. 137   See, eg Prosecutor v Haradinaj et al (Order Recalling Ramush Haradinaj from Provisional Release) IT-04-84, Trial Chamber (1 February 2007). In fact, a request by an accused who had been granted provisional release to be allowed to stay in a ‘safe house’ during the trial was denied by the President (Prosecutor v Halilovi´c (Order of the President on the Renewed Defence Motion concerning Conditions of Detention during Trial) IT-01-48, President (24 January 2005)). 138   eg Prosecutor v Popovi´c et al (Decision on Motion for Provisional Release from 21 July 2007 until the Resumption of Trial) IT-05-88, Trial Chamber (13 July 2007). 139   eg Prosecutor v Prli´c et al (Decision on Prosecution’s Consolidated Appeal Against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and Ćorić) IT-04-74, Appeals Chamber (11 March 2008), para  20; Prosecutor v Popovi´c et al (Decision on Consolidated Appeal Against Decision on Borovčanin’s Motion for a Custodial Visit and Decisions on Gvero’s and Miletić’s Motions for Provisional Release During the Break in the Proceedings) IT-05-88, Appeals Chamber (15 May 2008), para 24. 140   Prosecutor v Perišić (Decision on Mr Perišić’s Motion for Provisional Release) IT-04-81, Trial Chamber (31 March 2010). 141   Prosecutor v Milutinovi´c et al (Decision on Lazarević Motion for Temporary Provisional Release), IT-05-87, Trial Chamber, 26 September 2008; (Decision on ‘Prosecution’s Appeal from Decision on Lazarević Motion for Temporary Provisional Release Dated 26 September 2008’), Appeals Chamber, 23 October 2008, paras 13–14 (see also separate opinion of Judge Schomburg).

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International Criminal Proceedings the existence of such grounds ‘may be considered’ in granting release, might lead to a somewhat more liberal regime in this regard.142 As to pre-appeal release, Rule 65(I) requires ‘special circumstances’. Accordingly, defendants who have been convicted by the Trial Chamber will usually not be granted release prior to the determination of their appeal.143 Pre-appeal release was, however, granted to two defendants who would, absent an appeal, have been eligible for early release,144 as well as for very short periods for humanitarian reasons such as allowing a visit with a terminally ill relative145 or to undergo surgery.146 Convicted persons who are awaiting their transfer to a state to serve their sentence are principally eligible for release on similar grounds as those awaiting an appeal. However, given the finality of their conviction, there is an increased risk of flight and in the end, no convicted person has been granted release of this kind yet.147 Where a defendant has been acquitted at first instance, but an appeal is pending, Rule 99(B) RPE-ICTY/RPE-ICTR allows for renewed detention. In all stages, some defendants who were denied provisional release were granted temporary provisional release (usually under very close police surveillance) for humanitarian reasons so that they could, for example, visit ailing family members or attend the funerals of family members.148 By contrast, the ICTR regime is uniformly strict.149 Contrary to the reform at the ICTY, the requirement of ‘exceptional circumstances’ was not deleted from Rule 65(B) RPE-ICTR in 1999.150 Additionally, this requirement was interpreted 142   Prosecutor v Prli´c et al (Decision on Prosecution Appeal of Decision on Provisional Release of Jadranko Prlić) IT-04-74, Appeals Chamber (15 December 2011), paras 10–12, referencing r 65(B) RPE-ICTY as amended on 21 October 2011. 143   eg Prosecutor v Dragomir Miloševi´c (Decision on Application for Provisional Release Pursuant to Rule 65(I)) IT-98-29/1, Appeals Chamber, 29 April 2008. 144   Prosecutor v Kvocˇka et al (Decision on the Request for Provisional Release of Miroslav Kvočka) IT-98-30/1, Appeals Chamber (17 December 2003); Prosecutor v Hadžihasanovi´c and Kubura (Decision on Motion on Behalf of Enver Hadžihasanović for Provisional Release) IT-01-47, Appeals Chamber (20 June 2007), para 13. 145   eg Prosecutor v Krnojelac (Decision on Application for Provisional Release) IT-97-25, Appeals Chamber (12 December 2002). 146   Prosecutor v Šainovi´c et al (Public Redacted Version of the ‘Decision on Vladimir Lazarević’s Second Motion for Temporary Provisional Release on the Grounds of Compassion’’ issued on 21 May 2009), IT-05-87, Appeals Chamber, 22 May 2009. 147   Prosecutor v Zelenovi´c (Decision on Motion for Provisional Release) IT-96-23/2, Appeals Chamber (21 February 2008). An earlier motion for post-appeal release to the President had been denied as the President did not have the authority to order it – Prosecutor v Kvocˇka et al (Decision on Request for Provisional Release) IT-98-30/1, President (13 July 2005). 148   See, eg Prosecutor v Kupreški´c et al (Decision on the Motion of Defence Counsel for Drago Josipović (Request for Permission to Attend Funeral)) IT-98-33, Trial Chamber (6 May 1999); Prosecutor v Milutinovi´c et al (Decision on Ojdanić Motion for Temporary Provisional Release) IT-0587, Trial Chamber, 4 July 2007. 149   See generally Müller (2008), 614–16. 150   This was challenged by defence counsel as being contrary to human rights law, but the rule was upheld without much consideration by Chambers (Butare (Decision on the Defence Motion for the Provisional Release of the Accused) ICTR-98-42, Trial Chamber (21 February 2001), paras 4–5; (Decision on the Defence Motion for the Provisional Release of the Accused), Trial Chamber (21 October 2002), paras 19–20; Media (Decision on the Defence’s Motion for the Release or Alternatively Provisional Release of Ferdinand Nahimana) ICTR-99-52, (5 September 2002), paras 9–11).

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Developments Alongside the Trial very narrowly, such that even detention for over seven years with no end in sight was not considered an exceptional circumstance.151 The requirement was finally deleted from the Rule in May 2003,152 but this has not lead to a more liberal regime. By mid-2008, no ICTR defendant has ever been able to gain provisional release153 or even temporary provisional release for humanitarian reasons.154 Given the sometimes slow pace of ICTR proceedings, this has led to very long periods of detention: in Military I, Bagosora and Nsengiyumva had been detained under the authority of the Tribunal for over 12 and a half years155 when the Trial Chamber judgment was pronounced; in Butare, the judgment was passed almost exactly 16 years after the initial arrest of Kanyabashi and Ndayambaja in Belgium and 10 years after the beginning of the trial.156 A motion by one of the Butare defendants for stay of proceedings and immediate release due to inexcusable delays was denied by the Trial Chamber.157 In Bizimungu et al, where the period between arrest and judgment was more than 12 years, Judge Short, in a dissenting opinion, held that this fact should have entitled those defendants found guilty to a five year reduction in their sentence.158 The only case in which provisional release had at least been considered is that of Léonidas Nshogoza, a defence investigator charged with contempt. On 17 November 2008, nine months after the voluntary surrender of the defendant and seven months after his first request for provisional release, the Trial Chamber decided to invite submissions from the states the defendant had named as possible hosts of provisional release.159 It did, however, later deny the release motion.160 Neither in that case nor in other cases was the question of the length of detention, particularly as compared to a potential sentence, seriously considered. In Nshogoza, the defendant was sentenced to 10 months’ imprisonment; by the time 151   Butare (Decision on the Defence Motion for the Provisional Release of the Accused) ICTR-9442, Trial Chamber (21 October 2002), para 23. 152   RPE-ICTR, Amendments Adopted at the Thirteenth Plenary (26–27 May 2003). 153   Prosecutor v Nsengimana (Decision on Nsengimana’s Motion for the Setting of a Date for a PreTrial Conference, a Date for the Commencement of Trial, and for Provisional Release) ICTR-01-69, Trial Chamber (11 July 2005), paras 17–19. In fact, it seems that defence teams pretty much gave up on requesting provisional release or instead opted to move for either release or speedy commencement of the trial (Prosecutor v Simba (Decision on Motion for Commencement of Trial or Release) ICTR-0176, Trial Chamber (26 January 2004)). 154   Military II (Decision on Augustin Ndindiliyimana’s Emergency Motion for Temporary Provisional Release) ICTR-00-56, Trial Chamber (11 November 2003). 155   Prosecutor v Bagosora (Decision: Order of Provisional Detention and of Transfer) ICTR-96-7, Trial Chamber (17 May 1996); Prosecutor v Nsengiyumva (Decision: Order of Provisional Detention and of Transfer) ICTR-96-12, Trial Chamber (17 May 1996). 156   Butare (Judgment and Sentence) ICTR-98-42, Trial Chamber (24 June 2011), paras 6276, 6285, 6341. 157   Butare (Decision on Ntahobali’s Motion for a Stay of Proceedings for Undue Delay) ICTR-98-42, Trial Chamber (26 November 2008). 158   Prosecutor v Bizimungu et al (Judgment and Sentence, Partially Dissenting Opinion of Judge Emile Francis Short) ICTR-99-50, Trial Chamber (30 September 2011), para 7. 159   Prosecutor v Nshogoza (Decision on Defence Motion for Review of Provisional Measures, or Alternatively, for Provisional Release) ICTR-2007-91, Trial Chamber (17 November 2008). 160   Prosecutor v Nshogoza (Decision on Defence Motion for Provisional Release) ICTR-2007-91, Trial Chamber (17 December 2008).

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International Criminal Proceedings of the judgment, he had already spent over 17 months in detention.161 In Military II, Auguste Ndindiliyimana had been detained for over 11 years when the Trial Chamber rendered its judgment, finding that his role in the crimes was rather limited and there was a significant number of mitigating circumstances. The Trial Chamber simply sentenced him to ‘time served’.162 (b)  Applicable Regimes As far as communication rights for ICTY defendants detained at the UN Detention Unit are concerned, the Rules of Detention contain a rather restrictive regime, especially as concerns contacts with the media. While visits generally may only be restricted to protect ‘the administration of justice or the security and good order of the host prison and the Detention Unit’,163 the Registrar must refuse164 any visit ‘if he has reason to believe that the purpose of the visit is to obtain information which may be subsequently reported in the media’.165 Concerning communications, the Rules state that defendants may only contact the media, directly or indirectly, after approval of the Registrar, who may under Rule 64bis of the Rules of Detention, inter alia, deny the request if it ‘could interfere with the administration of justice or otherwise undermine the Tribunal’s mandate’. Before the insertion of this rule in 2005, the Rules of Detention did not specifically refer to communications to the media, but communications with the media were still prohibited, as seen in the cases of Miloševic´ and Šešelj, who were both candidates in the Serbian parliamentary elections of 28 December 2003. Upon learning that both defendants had made statements from the UNDU which later appeared in the media, the Deputy Registrar prohibited most communications and visits and ordered that telephone calls be monitored.166 After Šešelj still managed to contact the media again, the Deputy Registrar even prohibited, for a certain period of time, telephone calls to family members.167 In the case of Šešelj, these prohibitions stayed in place for a period of about seven months, covering both the parliamentary election – in which both Šešelj and Miloševic´ were in fact elected to parliament – and the subsequent presidential election.168 In the case of Miloševic´, who complied with the initial decisions and whose trial was ongoing, restrictions were somewhat less wide-ranging and only continued for another 60 161   Prosecutor v Nshogoza (Judgment and Sentence) ICTR-2007-91, Trial Chamber (7 July 2009), paras 232–34. 162   Military II (Judgment and Sentence) ICTR-00-56, Trial Chamber (17 May 2011), paras 2183 et seq, para 2266. 163   r 61(A) ICTY Rules of Detention. 164   The wording was changed from ‘may refuse’ to ‘shall refuse’ in July 1999. 165   r 61(B) ICTY Rules of Detention. 166   Prosecutor v Šešelj (Decision by the Deputy Registrar pursuant to Rules 60 and 63 of the Rules of Detention) IT-03-67, Deputy Registrar (11 December 2003); Prosecutor v Slobodan Miloševi´c (Decision) IT-02-54, Deputy Registrar (11 December 2003). 167   Prosecutor v Šešelj (Decision) IT.03-67, Deputy Registrar (29 December 2003). 168   They were continued every month, see Prosecutor v Šešelj (Decision) IT-03-67, Deputy Registrar (8 January 2004) up to (Decision), Deputy Registrar (9 June 2004).

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Developments Alongside the Trial days.169 The Deputy Registrar based his orders on a principle derived from Rule 63(B) and the danger that ‘the fact that a detainee at the Detention Unit can communicate with the aid of facilities provided by the Detention Unit to participate in an ongoing Serbian parliamentary elections campaign is . . . likely to frustrate the Tribunal’s mandate’ of ‘contribut[ing] to the restoration of peace’.170 Other detainees were also warned that ‘direct or indirect contact with the media’ from the UNDU was ‘strictly prohibited’.171 Until 2009, a de facto blanket ban on communications with the media remained in place.172 Lately, however, the Tribunal has arrived at a slightly more liberal interpretation of Rule 64bis. In Karadžic´, the Registry’s denial of an interview with a journalist based on security reasons and ‘the possibility of sensationalist reporting’ was overturned by the Vice-President. He held that since the defendant did not wish to ‘influence or comment upon the political situation in the former Yugoslavia’ and since any risk of witness intimidation could be negated by monitoring of the correspondence coupled with a warning to the journalist as to the possibility of contempt proceedings, the contact was to be allowed.173 He did, however, allow the Registry to limit the defendant to written contact.174 The Registry subsequently censored one written statement which in its opinion ‘denigrated UNPROFOR’ and the UN; this was upheld on review as the statement concerned an issue related to the charges, to be discussed only in the courtroom and not in a ‘parallel forum’.175 However, the censoring of a statement which, according to the Registry, ‘unfairly and incorrectly misrepresent[ed] the work’ of the prosecution was reversed as the statement did not concern the charges but the defendant’s opinion of OTP conduct in general.176 The ICTR Rules of Detention, while also dealing with ‘contact with the outside world’, do not explicitly refer to contact with the media. However, the rule dealing with visits to detainees177 only refers to ‘visits from their family and friends’, in contrast to the corresponding ICTY Rule referring to ‘friends, family and others’.178 This, along with the fact that the ICTR has generally been strict in 169   Prosecutor v Slobodan Miloševi´c (Decision) IT-02-54, Deputy Registrar (8 January 2004); (Decision) Deputy Registrar (6 February 2004). 170   Prosecutor v Šešelj (Decision by the Deputy Registrar pursuant to Rules 60 and 63 of the Rules of Detention) IT-03-67, Deputy Registrar (11 December 2003); Prosecutor v Slobodan Miloševi´c (Decision) IT-02-54, Deputy Registrar (11 December 2003). 171   See, eg Prosecutor v Haradinaj et al (Decision on Ramush Haradinaj’s Motion for Provisional Release) IT-04-84, Trial Chamber (6 June 2005), para 7 and fn 11. 172   See Prosecutor v Karadži´c (Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist) IT-95-5/18, Vice-President (12 February 2009), para 18 with references. 173   ibid, paras 20–22. 174   Prosecutor v Karadži´c (Decision on Request for Reversal of Denial of Contact with Journalist) IT-95-5/18, Vice-President (21 April 2009); similarly (Decision on Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist: Russia Today), Judge Güney (6 November 2009). 175   Prosecutor v Karadži´c (Decision on Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist: Le Monde) IT-95-5/18, Judge Güney (21 April 2009), paras 4, 17. 176   Prosecutor v Karadži´c (Decision on Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist: Profil Magazine) IT-95-5/18, President (11 October 2010), paras 3, 22 et seq. 177   r 61(i) ICTR Rules of Detention. 178   r 61 ICTY Rules of Detention.

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International Criminal Proceedings interpreting Rule 61,179 indicates that detainees will not be allowed to receive visits from media representatives at all. As regards communications, Rule 58 only refers to communications of detainees with ‘their families and other persons with whom it is in their legitimate interest to correspond’. This wording, which is identical to that in the ICTY Rules at the time of the restrictions in Šešelj and Miloševic´ detailed above, must be taken to indicate that detainees will generally not be allowed to communicate with the press. There are, however, no restrictions on the ability of defendants to write books, and have them published, while in detention. In fact, several defendants both at the ICTY180 and the ICTR181 have published books over the years or have met with authors who have written books about them. As far as those granted provisional release are concerned, the main conditions applicable to them are contained in the relevant decision granting such release. Among the conditions regularly established are that the defendants are not to discuss their case with anyone other than their counsel and, in some cases, their immediate family.182 Later Chambers have explicitly stated that defendants may not to talk to the media about their case.183 Chambers have usually not laid down in detail whether defendants were allowed to talk to the public about aspects not relating to their case or to take part in public functions. However, the other restrictions imposed on defendants, such 179   eg Prosecutor v Ndindiliyimana (The President’s Decision on a Defence Motion to Reverse the Prosecutor’s Request for Prohibition of Contact Pursuant to Rule 64) ICTR-00-56, President (25 November 2002); Prosecutor v Casimir Bizimungu (Decision on the Defence Motion to Protect the Applicant’s Right to Full Answer and Defence) ICTR-99-50, Trial Chamber (15 November 2002). 180   Simo Zarić wrote The Hague Crucifix while at the UNDU (IWPR Tribunal Update No 375, 1 October 2004, ‘Bosnia: Convict May Govern Town He Ethnically Cleansed’). Rasim Delić’s book on The Creation and Development of the Bosnian Army was published during his detention ((Decision on Defence Request for Provisional Release) IT-04-83, Trial Chamber, 6 May 2005). Vojislav Šešelj published a number of books while in detention (see Zahar (2008), 255–56, 259). Biljana Plavšić, on the other hand, delayed writing My Testimony until after her stay at the UNDU – the book was published while she was serving her sentence in Sweden (IWPR, Tribunal Update No 390, 21 January 2005, ‘Plavšić Dishes the Dirt’). 181   Rwanda: les Virages Ratés by Ferdinand Nahimana was published in 2007 while its author was detained at  the UNDF awaiting the Appeals Chamber judgment – see www.amazon.fr/Rwandavirages-rat%C3%A9s-Ferdinand-Nahimana/dp/2952171246. Augustin Ndindiliyimana met several times with a European activist writing The General’s Book on Rwanda, the first chapter of which is available at cirqueminime.blogcollective.com/blog/_archives/2005/5/21/877913.html. 182   See, eg Prosecutor v Blagoje Simi´c et al (Decision on Miroslav Tadić’s Application for Provisional Release) IT-95-9, Trial Chamber (4 April 2000); (Decision on Simo Zarić’s Application for Provisional Release) (4 April 2000). 183   See, eg Prosecutor v Cˇermak and Markacˇ (Decision on Interlocutory Appeal Against Trial Chamber’s Decision Denying Provisional Release) IT-03-73, Appeals Chamber (2 December 2004), para  44; Prosecutor v Staniši´c and Simatovi´c (Decision on Provisional Release (Franko Simatović)) IT-03-69, Trial Chamber (28 July 2004), para 34; (Decision on Provisional Release (Jovica Stanišić)) (28 July 2004), para 43; Prosecutor v Periši´c (Decision on Momčilo Perišić’s Motion for Provisional Release) IT-04-81, Trial Chamber (9 June 2005); Prosecutor v Mi´co Staniši´c (Decision on Mićo Stanišić’s Motion for Provisional Release) IT-04-79, Trial Chamber (19 July 2005), para 20.

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Developments Alongside the Trial as staying and residing at a specific location,184 not holding public offices,185 not ‘in [any way] interfer[ing] with witnesses’186 or ‘with the proceedings or the administration of justice’187 shows that defendants are not meant to talk to the press or general public at all.188 Violation of conditions may lead to revocation of the release, but this is not automatic. Thus when Mladen Markacˇ violated the conditions of release by going on a hunting trip with a Croatian minister, photos of which later appeared in the press, his release was revoked and he was returned to the Tribunal’s detention unit.189 In contrast, when Rasim Delic´ discussed his case in a meeting with a member of the Bosnian presidency, the duty judge considered revoking Delic´’s release, but for reasons of proportionality only ordered him placed under house arrest.190 Similarly, when Ivan Cˇ ermak violated the conditions of his detention by attending two social gatherings and a sporting event, albeit in a private capacity, his release was initially suspended, but the Chamber later ‘exceptionally exercise[d] its discretion’ to reinstate the release under strict conditions.191 Finally, in the case of Baton Haxhiu, charged with contempt of the Tribunal, the prosecution asked for revocation of release after the defendant had given a television interview. The Chamber found no need to consider the question ‘in light of the nature of this case and the impending start of the trial’ and the fact that the breach was not serious.192 184   Prosecutor v Staniši´c and Simatovi´c (Decision on Provisional Release (Franko Simatović)) IT-0369, Trial Chamber (28 July 2004), para 34; (Decision on Provisional Release (Jovica Stanišić)) (28 July 2004), para  43; Prosecutor v Cˇermak and Markacˇ (Decision on Interlocutory Appeal Against Trial Chamber’s Decision Denying Provisional Release) IT-03-73, Appeals Chamber (2 December 2004), para 44. 185   ibid. 186   ibid; Prosecutor v Blagoje Simi´c et al (Decision on Miroslav Tadić’s Application for Provisional Release) IT-95-9, Trial Chamber (4 April 2000); (Decision on Simo Zarić’s Application for Provisional Release) (4 April 2000); Prosecutor v Staniši´c and Simatovi´c (Decision on Provisional Release (Franko Simatović)) IT-03-69, Trial Chamber (28 July 2004), para 34; (Decision on Provisional Release (Jovica Stanišić)) (28 July 2004), para 43. 187   Prosecutor v Periši´c (Decision on Momčilo Perišić’s Motion for Provisional Release) IT-04-81, Trial Chamber (9 June 2005). 188   See also, the decision on a request by Rasim Delić to be allowed to promote his recently published book while on provisional release. The Chamber granted provisional release, but did not allow that request (Prosecutor v Rasim Deli´c (Decision on Defence Request for Provisional Release) IT-04-83, Trial Chamber (6 May 2005)). Similarly, Slobodan Praljak’s request to attend a public ceremony on the anniversary of a military action in which he had participated was also denied: Prosecutor v Prli´c et al (Decision on Slobodan Praljak’s Urgent Application for Variation of Conditions of Provisional Release) IT-04-74, Trial Chamber (3 August 2005). 189   Prosecutor v Gotovina et al (Order for the Arrest and Transfer of the Accused Mladen Markač from Provisional Release) IT-06-90, Trial Chamber (28 December 2007). In Croatia, the hunting trip led to the resignation of the minister – see IWPR, Tribunal Update No 532, 5 Jan 2008, ‘Croatian Minister Quits after Hunt Controversy’. 190   Prosecutor v Rasim Deli´c (Decision on Prosecution Motion to Arrest the Accused Rasim Delić) IT-04-83, Trial Chamber (19 December 2007). 191   Prosecutor v Gotovina et al (Order Suspending Provisional Release) IT-06-90, Trial Chamber, 26 January 2007; (Decision to Reinstate the Provisional Release of Ivan Čermak) (15 February 2007). 192   Prosecutor v Haxhiu (Decision on the Prosecution Motion on Baton Haxhiu’s Compliance with Provisional Release and Decision Modifying Conditions of Provisional Release) IT-04-84-R77.5, Trial Chamber (19 June 2008).

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International Criminal Proceedings The exception to the rule that defendants on provisional release are not allowed to participate in public life is former Kosovo Prime Minister Ramush Haradinaj. When granted provisional release, he was, for an initial 90 days, allowed to ‘take up administrative or organizational activities in his capacity of President of [his political party]’, but not to engage in politics publicly.193 After the initial period had passed, the Chamber allowed Haradinaj to undertake public activities ‘to the extent which UNMIK finds would be important for a positive development of the political and security situation in Kosovo’. The Chamber delegated to UNMIK the power to decide on applications for public activities, only requiring it to submit bi-weekly reports.194 On appeal by the prosecution, the Appeals Chamber slightly varied these conditions – it upheld the permission to engage in political activities as well as the delegation to UNMIK of control over such activities,195 but ordered that the prosecution be granted an opportunity to comment and that such comment be taken into account when UNMIK decided on any request.196 Judges Shahabuddeen and Schomburg dissented from the decision as they were concerned over the delegation of powers to UNMIK and the restriction to the defendant’s right to freedom of speech. After the Appeals Chamber decision, Haradinaj in fact made several requests to UNMIK for permission to publicly engage in politics, many of which were granted.197 The Chamber was twice requested to intervene. In October 2006, shortly before the referendum on the future status of Kosovo, UNMIK allowed Haradinaj to participate in a live television interview. Upon application by the prosecution, the Trial Chamber first banned the interview, but later lifted the ban again.198 In February 2007, the prosecution again asked the Chamber to intervene after Haradinaj had applied for a meeting and a joint press conference with the head of UNMIK. The Chamber left the decision in UNMIK’s hands despite the fact that it was de facto party, stating that the mission had always been careful in considering earlier requests for public appearances.199 Haradinaj returned to the detention unit in February 2007 for the beginning of his trial, his request for provisional release during the 2007 summer recess was denied as there was in Kosovo an 193   Prosecutor v Haradinaj et al (Decision on Ramush Haradinaj’s Motion for Provisional Release) IT-04-84, Trial Chamber (6 June 2005), para 65 No 5 and 6(i). 194   Prosecutor v Haradinaj et al (Decision on Defence Motion on Behalf of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005) IT-04-84, Trial Chamber (12 October 2005), Disposition. The decision was stayed until the Appeals Chamber had decided on the Prosecution appeal against it (Decision on Ramush Haradinaj’s Modified Provisional Release), Appeals Chamber (10 March 2006), para 4. 195   ibid, paras 26–94. 196   ibid, paras 98–104. 197   Up to mid-October 2006, UNMIK had allowed 29 out of 40 requests: Badar and Karsten (2007), 180. 198   Prosecutor v Haradinaj et al (Order Lifting Suspension on UNMIK Decision) IT-04-84, Trial Chamber (27 October 2006). 199   Prosecutor v Haradinaj et al (Decision on Prosecution’s Urgent Motion to Revoke UNMIK’s Delegated Authority to Monitor Ramush Haradinaj’s Political Activities) IT-04-84, Trial Chamber (7 March 2007).

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Developments Alongside the Trial atmosphere in which potential witnesses felt intimidated.200 The same decision was made when he requested provisional release prior to the beginning of the partial re-trial ordered by the Appeals Chamber.201 In cases where pre-appeal release was granted, conditions were largely modelled upon those applicable to pre-trial release.202 Conditions for short-term provisional release for humanitarian reasons were at least as stringent as for long-term release,203 and in some cases even more stringent, for example prohibiting the accused from having ‘any contact in any manner whatsoever with persons other than his relatives and close friends’.204 As to defendants acquitted in first instance but facing an appeal, Rule 99(B) RPE-ICTY/RPE-ICTR allows for continued detention under the same conditions as applicable to pre-trial detainees, and thus arguably also for the imposition of conditions of release as a less severe alternative. In practice, however, ICTY defendants acquitted by the Trial Chamber have been released without any conditions.205 At the ICTR, defendants were either required to adhere to conditions to prevent the risk of flight206 or released without any conditions207 and no conditions were set regarding contact with the media etc. Similarly, defendants who had already served the full sentence passed by the Trial Chamber, but were facing an appeal which could result in an increased sentence also remained at liberty, without any conditions, while awaiting the Appeals Chamber judgment.208 The 200   Prosecutor v Haradinaj et al (Decision on Motion on Behalf of Ramush Haradinaj for Provisional Release) IT-04-84, Trial Chamber (20 July 2007). 201   Prosecutor v Haradinaj et al (Decision on Ramush Haradinaj’s Motion for Provisional Release) IT-04-84, Trial Chamber (10 September 2010). 202   See above. 203   eg Prosecutor v Milutinovi´c et al (Decision on Ojdanić Motion for Temporary Provisional Release) IT-05-87, Trial Chamber, 4 July 2007. 204   Prosecutor v Krnojelac (Decision on Application for Provisional Release) IT-97-25, Trial Chamber (12 December 2002). 205   See, eg Prosecutor v Limaj et al (Transcript of 30 November 2005) IT-03-66, Trial Chamber, 7547, 7548; Prosecutor v Halilovi´c (Transcript of 16 November 2005) IT-01-48, Trial Chamber, 18; Prosecutor v Gotovina et al (Transcript of 15 April 2011) IT-06-90, Trial Chamber, 29475. In the case of Zejnil Delali´c, the OTP asked for continued detention, but the Chamber was satisfied by Delalić’s promise that  he would appear for appeal proceedings (Prosecutor v Muci´c et al (Transcript of 16 November 1998) IT-96-21, Trial Chamber, 16408, 16415–17). Idriz Balaj was not released immediately, but was transferred back to Kosovo where he had been serving a sentence for murder prior to his transfer to the Tribunal – see Prosecutor v Haradinaj et al (Judgment) IT-04-84, Trial Chamber (3 April 2008), para 503. 206   Prosecutor v Bagilishema (Decision on the Prosecutor’s Request Pursuant to Rule 99(B)) ICTR95-1A, Trial Chamber (8 June 2001),  6; Prosecutor v Ntagerura et al (Decison on the Prosecutor’s Request pursuant to Rule 99(B)) IT-96-10, Trial Chamber, 26 February 2004. Similarly, Military I (Decision on Prosecution Motion to Impose Conditions on Kabiligi’s Liberty) ICTR-98-41, Trial Chamber (31 December 2008). 207   Prosecutor v Mpambara (Transcript of 12 September 2006) ICTR-01-65, Trial Chamber, 10; Prosecutor v Rwamakuba (Transcript of 20 September 2006) ICTR-98-44C, Trial Chamber, 10. One should note, however, that several acquitted at the ICTR were unable to entirely regain their freedom until months after their acquittal as no country was willing to receive them – see Heller (2008). 208   Prosecutor v Ori´c (Transcript of 30 June 2006) IT-03-68,  Trial Chamber, 16662; Prosecutor v Aleksovski (Transcript of 7 May 1999) IT-95-14/1,  Trial Chamber, 4361, 4362. Once the Appeals Chamber had determined that it would in fact increase Aleksovski’s sentence, it ordered his renewed detention ((Order for Detention on Remand), Appeals Chamber, 9 February 2000); from that point

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International Criminal Proceedings same is, finally, true for defendants granted early release in the time between the Trial Chamber and Appeals Chamber judgments.209 The ability of counsel to communicate with the media is generally unrestricted. The Codes of Conduct do not specifically refer to contact with the press, although the provisions prohibiting conduct that is ‘prejudicial to the proper administration of justice before the Tribunal’210 could conceivably be taken as limiting the content of what counsel may say to the media. Aside from this provision, though, counsel are free to talk to the media, and there do not seem to have been cases of counsel being reprimanded or sanctioned for media statements. This can also be shown with regard to the case of Michael Wladimiroff, one of the amici curiae in the Miloševic´ case: he was reprimanded and his amicus status revoked after he was quoted in the media as indicating his belief that Miloševic´ was guilty and/or would be convicted. Both prosecution and Chamber noted that Wladimiroff could have avoided these problems by not giving the interview at all,211 but the reason for revoking his amicus status was solely that the content of his interview was prejudicial to the rights of the defendant.212

2.  The International Criminal Court (a)  The Question of Detention or Liberty Contrary to the ad hoc Tribunals where every defendant is at least initially arrested and brought before the Court, which may then grant them provisional release, the legal regime of the ICC foresees that some defendants may never be arrested in the first case. The Pre-Trial Chamber may only issue a warrant of arrest for a defendant if it is satisfied that there is reasonable suspicion against her and that her arrest appears necessary to safeguard against one of the usual Haftgründe (risk of flight, of obstruction of justice or of committing (further) core crimes).213 Such defendants will then be arrested, brought before the court and detained, but may apply for provisional release. On the other hand, where the Pre-Trial Chamber finds that arrest is not necessary, but that ‘a summons is sufficient to ensure the person’s appearance’, it must instead issue a summons to appear, which may be subject to ‘conditions on, it treated his case as usual under Rule 65 ((Order Denying Provisional Release), Appeals Chamber, 18 February 2000). See also Military II (Judgment and Sentence) ICTR-00-56, Trial Chamber (17 May 2011), para 2271; Prosecutor v Nshogoza (Judgment and Sentence) ICTR-2007-91, Trial Chamber (7 July 2009), para 234. 209   Prosecutor v Hadžihasanovi´c and Kubura (Judgment) IT-01-47, Appeals Chamber, 22 April 2008, para 377. 210   Art 35(iv) ICTY Code of Conduct; Art 20(d) ICTR Code of Conduct. 211   Prosecutor v Slobodan Miloševi´c (Transcript of 11 September 2002) IT-02-54, Trial Chamber, 10178. 212   Prosecutor v Slobodan Miloševi´c (Decision Concerning an Amicus Curiae) IT-02-54, Trial Chamber (10 October 2002). 213   Generally on these, see Schabas (2010), 708–10.

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Developments Alongside the Trial restricting liberty (other than detention)’. Where the defendant does not appear on the date set or does not comply with the conditions imposed, she may be arrested.214 According to Pre-Trial Chambers, a decision to issue only a summons is the exception; where doubts remain as to the existence of Haftgründe, an arrest warrant is to be issued.215 Nonetheless the court has issued sommonses on three defendants in the Darfur situation and all six defendants in the Kenya situations, usually after there had been communications establishing the defendant’s willingness to appear,216 and so far all those summoned have indeed appeared.217 Those arrested will in principle be detained, but may apply for provisional release under Article 60(2) RSt. If the Chamber is satisfied that both sufficient suspicion and one of the three Haftgründe continue to apply,218 the defendant shall continue to be detained; otherwise she is to be provisionally released with or without conditions. Pre-trial detention is ‘not the general norm, but it is the exception, and shall only be resorted to when the Pre-Trial Chamber is satisfied that’ both prerequisites apply.219 The burden of proof lies with the prosecution.220 The wording ‘shall continue to be detained’ and ‘shall release’ in Article 60(2) RSt shows that the Chamber does not have any discretion.221 214   Situation in Sudan, Prosecutor v Abu Garda (Decision on the Prosecutor’s Application under Article 58) ICC-02/05-02/09, Pre-Trial Chamber (7 May 2009), para 32; Situation in Sudan, Prosecutor v Banda and Jerbo (Second Decision on the Prosecutor’s Application under Article 58) ICC-02/0503/09, Pre-Trial Chamber (27 August 2009), para 34; Situation in Kenya, Kenya I (Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang) ICC-01/09-01/11, Pre-Trial Chamber (8 March 2011), para 56; Situation in Kenya, Kenya II (Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali) ICC-01/09-02/11, Pre-Trial Chamber (8 March 2011), para 56. 215   See Schabas (2010), 712–13 with references. 216   See in particular Situation in Sudan, Prosecutor v Abu Garda (Decision on the Prosecutor’s Application Under Article 58) ICC-02/05-02/09, Pre-Trial Chamber (7 May 2009), para 31 and fn 58. 217   In the Banda and Jerbo case, the date on which the defendants were to appear was changed several times for undisclosed reasons, leading to a somewhat exasperated Chamber stating, after the second instanceof delay, that ‘the date set for the first appearance of the Suspects will not be changed unless exceptional and unexpected circumstances are shown’. Situation in Sudan, Prosecutor v Banda and Jerbo (Decision Setting the Date for the Hearing of First Appearance) ICC-02/05-03/09, Pre-Trial Chamber (15 March 2010), 4. 218   Art 60(2) RSt refers back to Art 58(1), which lays down the conditions for the issuance of a warrant of arrest, namely ‘reasonable grounds to believe that the person has committed a crime within the Court’s jurisdiction’ and risk of flight, of danger to others, or of continued commission of crimes. 219   Situation in DR Congo, Prosecutor v Katanga and Ngudjolo (Decision on the Powers of the Pre-Trial Chamber to Review Proprio Motu the Pre-Trial detention of Germain Katanga) ICC01/04-01/07, Pre-Trial Chamber (18 March 2008), 6–7; (Decision on the Conditions of the Pre-Trial Detention of Germain Katanga) ICC-01/04-01/07, Pre-Trial Chamber (21 April 2008), 6; (Decision on the Application for Interim Release of Mathieu Ngudjolo Chui) ICC-01/04-01/07, Pre-Trial Chamber (27 March 2008), 6. 220   Situation in DR Congo, Prosecutor v Katanga and Ngudjolo (Decision on the Powers of the PreTrial Chamber to Review Proprio Motu the Pre-Trial Detention of Germain Katanga) ICC-01/0401/07, Pre-Trial Chamber (18 March 2008), 6 and 7. 221   Situation in DR Congo, Prosecutor v Lubanga (Judgment on the appeal of Mr Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled ‘Decision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo’) ICC-01/04-01/06, Appeals Chamber (13 February 2007), para 134.

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International Criminal Proceedings The proportionality principle is, inter alia, codified in Article 60(4). If a person has been detained ‘for an unreasonable period’ – domestic detention is not to be taken into account unless it is attributable to the Court222 – ‘due to inexcusable delay by the Prosecutor, the Court shall consider releasing the person’, even if she does not qualify for release under Article 60(2). As the wording ‘shall consider ’ shows, the Chamber has a certain amount of discretion in this regard.223 Finally, Rule 119 contains a list of possible conditions for release, which shows that the proportionality principle also applies insofar as a detainee must be released if reasons for further detention exist, but may be removed by imposing conditions on the defendant. After an initial request for release has been made, the Chamber must,224 and in the absence of such request it may,225 review the decision on detention every 120 days. These rules at first glance seem quite liberal when compared to those applicable at the ad hoc Tribunals, and one might be led to predict that provisional release will not be an exceptional occurrence at the ICC. A closer look at the decisions concerning current defendants, however, may lead to the opposite conclusion.226 First of all, a number of decisions are characterised by formulaic reference to conditions which will apply in nearly every case before the ICC. As concerns the risk of flight, the Chamber in Lubanga referred, inter alia, to the gravity of crimes with which the defendant was charged.227 Given that the charges against Lubanga – effectively one charge of a war crime which does not legally require proof of death or even bodily injury – are arguably among the comparatively least serious charges imaginable for an ICC arrest warrant, this argument may of course be used against release in all ICC cases. The same is true for the argument that the defendants had held high positions in their home countries and had established numerous contacts which could enable them to flee.228 Given the prosecutorial strategy of prosecuting only those bearing the greatest responsibility, most if not all defendants will have been in that position. This shows that general remarks on detention being the exception do not carry much weight in practice. 222   ibid, para 121; (Decision on the Powers of the Pre-Trial Chamber to Review Proprio Motu the Pre-Trial Detention of Germain Katanga) ICC-01/04-01/07, Pre-Trial Chamber (18 March 2008), 11. 223   See Khan in Triffterer (2008), Art 60, mn 16. 224   r 118(2) RPE-ICC. 225   Situation in DR Congo, Prosecutor v Katanga and Ngudjolo (Decision on the Powers of the PreTrial Chamber to Review Proprio Motu the Pre-Trial Detention of Germain Katanga) ICC-01/0401/07, Pre-Trial Chamber (18 March 2008), 7–10. 226   For a critique of ICC practice in this regard from the perspective of the ECHR, see Golubok (2010), 304 et seq. 227   Situation in DR Congo, Prosecutor v Lubanga (Decision on the Application for the Interim Release of Thomas Lubanga Dyilo) ICC-01/04-01/06, Pre-Trial Chamber (18 October 2006), 5–6; affirmed by (Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against the Decision of Pre-Trial Chamber I Entitled ‘Decision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo’) ICC-01/0401/06, Appeals Chamber (13 February 2007), para 136. 228   Situation in DR Congo, Prosecutor v Lubanga (Decision on the Application for the Interim Release of Thomas Lubanga Dyilo) ICC-01/04-01/06, Pre-Trial Chamber (18 October 2006), 5–6.

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Developments Alongside the Trial One can also detect in Lubanga a general unwillingness to consider questions of release in the necessary detail: on defence appeal against the decision denying provisional release, the Appeals Chamber had criticised as ‘scarce’ the arguments on which the finding of a risk of obstruction had been based and had only upheld the PTC decision on the basis of risk of flight. Nonetheless, the PTC did not deem it necessary to expand on its reasoning in this regard in its later decisions.229 The decisions of the Trial Chamber are even more formulaic and sparsely argued than those of the PTC.230 Finally, none of the decisions so much as mentioned the possibility of setting conditions for release. Lubanga also stayed in detention when proceedings were stayed prior to trial due to violations of disclosure obligations by the prosecution. The Trial Chamber ordered his release, but also ordered that the decision be suspended upon prosecution appeal.231 The decision was in fact appealed and later reversed by the Appeals Chamber.232 Soon thereafter the Chamber lifted the stay on proceedings.233 Notwithstanding that there had been a substantial delay attributable to the prosecution and that Lubanga had already spent 28 months in detention prior to trial, 22 months of which were after the confirmation hearing, the Chamber still decided not to grant provisional release.234 In later cases, a trend towards a somewhat less reluctant treatment may be detected. Thus in Katanga and Ngudjolo, the Pre-Trial Chamber denied provisional release, did not consider the possibility of conditions for release and still relied, in Ngudjolo, to some extent on formulaic statements.235 It did, however, augment such statements with concrete reports that Ngudjolo had earlier escaped from prison in the DR Congo and that witnesses had been interfered with by 229   Situation in DR Congo, Prosecutor v Lubanga (Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against the Decision of Pre-Trial Chamber I Entitled ‘Decision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo’) ICC-01/04-01/06, Appeals Chamber (13 February 2007), para  139; (Review of the ‘Decision on the Application for the Interim Release of Thomas Lubanga Dyilo’) ICC-01/04-01/06, Pre-Trial Chamber (14 February 2007), 5–6; (Second Review of the ‘Decision on the Application for the Interim Release of Thomas Lubanga Dyilo’) ICC-01/04/01-06, Pre-Trial Chamber (11 June 2007), 6. 230   Situation in DR Congo, Prosecutor v Lubanga (Decision Reviewing the ‘Decision on the Application for the Interim Release of Thomas Lubanga Dyilo’) ICC-01/04-01/06, Pre-Trial Chamber (9 October 2007), para  10; (Decision Reviewing the Trial Chamber’s Ruling on the Detention of Thomas Lubanga Dyilo Under Rule 118(2)) ICC-01/04-01/06, Pre-Trial Chamber (1 February 2008), para 10; (Decision Reviewing the Trial Chamber’s Ruling on the Detention of Thomas Lubanga Dyilo in Accordance with Rule 118(2)) ICC-01/04-01/06, Pre-Trial Chamber (29 May 2008). 231   Situation in DR Congo, Prosecutor v Lubanga (Decision on the Release of Thomas Lubanga Dyilo) ICC-01/04-01/06, Pre-Trial Chamber (2 July 2008), paras 34–36. 232   Situation in DR Congo, Prosecutor v Lubanga (Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber I Entitled ‘Decision on the Release of Thomas Lubanga Dyilo’) ICC01/04-01/06, Appeals Chamber (21 October 2008). 233   Situation in DR Congo, Prosecutor v Lubanga (Transcript of 18 November 2008) ICC-01/0401/06, Trial Chamber, 2–4. 234   ibid, 38–44. 235   Situation in DR Congo, Prosecutor v Katanga and Ngudjolo (Decision on the Application for Interim Release of Mathieu Ngudjolo Chui) ICC-01/04-01/07, Pre-Trial Chamber (27 March 2008), 7–8.

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International Criminal Proceedings supporters of Ngudjolo and Katanga.236 One may thus detect something of a trend towards the Chambers considering questions of release in a more detailed manner.237 Similarly, in Bemba a first request for provisional release was denied based on the defendant’s ‘past and present political position, international contacts, financial and professional background and availability of the necessary network and financial resources’ and the possibility of a lengthy prison sentence.238 Possible conditions for release were not discussed. This decision was upheld in the review under Article 60(3) based on similar reasoning; the imposition of conditions such as surrender of travel papers was considered as an alternative to detention, but found insufficient to alleviate the risk of flight.239 A separate defence motion for release under Article 60(4) was denied as the period of detention of five months and 12 days was not deemed unreasonable.240 The Pre-Trial Chamber later leaned towards release at some points and even granted one request for provisional release,241 but this decision was overturned on appeal.242 However, even if the trend towards more detailed consideration of provisional release continues and leads to findings that the prerequisites under Article 60(2) are fulfilled, defendants may still fail to gain release simply because they find no state willing to accept them on its territory. While the Netherlands are obliged under the Host State Agreement to facilitate the transfer of a released detainee to another state, they are neither obliged nor do they seem willing to accept the person on their territory.243 Other European states have also proven unwilling to 236   ibid, at 8–9; (Decision on the Conditions of the Pre-Trial Detention of Germain Katanga) ICC01/04-01/07, Pre-Trial Chamber (21 April 2008), 7. 237   See also Situation in the Democratic Republic of the Congo, Prosecutor v Katanga and Ngudjolo (Review of the ‘Decision on the Application for Interim Release of Mathieu Ngudjolo Chui’) ICC01/04-01/07, Pre-Trial Chamber (23 July 2008); (Review of the ‘Decision on the Conditions of the Pre-Trial Detention of Germain Katanga’) ICC-01-04-01-07, Pre-Trial Chamber (18 August 2008). 238   Situation in the Central African Republic, Prosecutor v Bemba (Decision on Application for Interim Release) ICC-01/05-01/08, Pre-Trial Chamber (20 August 2008) paras 55 and 56. 239   Situation in the Central African Republic, Prosecutor v Bemba (Decision on Application for Interim Release) ICC-01/05-01/08-80, Pre-Trial Chamber (16 December 2008), para 37. 240   ibid, para 47. 241   Situation in the Central African Republic, Prosecutor v Bemba (Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa) ICC-01/05-01/08 (14 August 2009), Pre-Trial Chamber. The implementation of this decision was deferred pending a decision on the host state and on the conditions to be imposed on Bemba. 242   Situation in the Central African Republic, Prosecutor v Bemba (Judgment on the Appeal of the Prosecutor Against Pre-Trial Chamber II’s ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa’) ICC-01/05-01/08 (2 December 2009), Appeals Chamber. 243   Headquarter Agreement between the International Criminal Court and the Host State, 7 June 2007, Art 47(1); see Situation in the Democratic Republic of the Congo, Prosecutor v Katanga and Ngudjolo (Report of the Registrar on the Execution of the Decision Inviting Observations on the Defence’s Application for Interim Release of Germain Katanga) ICC-01/04-01/07, Pre-Trial Chamber (7 March 2008), Annex 1.

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Developments Alongside the Trial allow those accused of core crimes to reside on their territory.244 At the same time, it is unlikely that the Court will grant release to defendants’ home countries given that these countries are usually politically unstable and geographically far removed from the Hague and that the defendants will have supporters there. Unless defendants manage to find a third state willing to accept them on its territory, then, this alone may doom any application for provisional release.245 Jean-Pierre Bemba was, however, granted very short-term provisional release under particularly stringent conditions in order to attend the funeral of his father.246 Article 60 applies not only to the pre-trial phase, but also to trial and appeal proceedings.247 One can expect that while the trial is in session, defendants will in all cases be detained, again for the simple fact that the Netherlands will not allow them to be at liberty on their territory.248 Defendants acquitted at first instance, as well as those whose time in custody exceeds their sentence, will generally be released according to Article 81 RSt. However, similarly to the case under Rule 99(B) RPE-ICTY, the prosecutor may request the Chamber, ‘under exceptional circumstances’, to maintain detention pending appeal.249 Defendants who have been summoned to the Court will not be placed in detention and will usually travel to the court by way of civilian transportation.250 On the other hand, the ‘conditions restricting liberty (other than detention)’ imposed by the Chamber may amount to a regime akin to house arrest. In the Sudan situation, defendants summoned to appear have been assigned to a safe house at an undisclosed location in the Hague and prohibited from ‘leav[ing], without specific permission of the Chamber and for the whole period of his stay in the Netherlands, the premises of the Court’ including that safe house.251 No such 244   Situation in the Democratic Republic of the Congo, Prosecutor v Katanga and Ngudjolo (Report of the Registrar on the Execution of the Decision Inviting Observations on the Defence’s Application for Interim Release) ICC-01/04-01/07, Pre-Trial Chamber (28 February 2008), Annex 1 (United Kingdom), Annex 2 (France), Annex 4 (Belgium). 245   Bemba seems to have found a state willing to accept him on its territory – the identity of that state was not disclosed as his request for release was denied for other reasons ((Decision on the Accused’s Application for Provisional Release in Light of the Appeals Chamber’s Judgment of 19 August 2011) Trial Chamber (26 September 2011)). 246   Situation in the Central African Republic, Prosecutor v Bemba (Decision on the Defence’s Urgent Request Conceming Mr Jean-Pierre Bemba’s Attendance of his Father’s Funeral) ICC-01/05-01/08, Pre-Trial Chamber, 3 July 2009. 247   Situation in the Central African Republic, Prosecutor v Bemba (Public Redacted Version of the ‘Decision on Applications for Provisional Release’ of 27 June 2011) ICC-01/05-01/08, Trial Chamber, 16 August 2011, paras 44 et seq; according to Art 83(1) RSt, this would seem to also apply to appeals proceedings. 248   See above n 137. 249   Art 81(3)(c) RSt. 250   See Situation in Sudan, Prosecutor v Abu Garda (Decision on Issues Relating to the Publicity of Proceedings in the Case) ICC-02/05-02/09, Pre-Trial Chamber (15 May 2009); Schabas (2010), 713. 251   Situation in Sudan, Prosecutor v Abu Garda (Decision on the Prosecutor’s Application under Art 58) ICC-02/05-02/09, Pre-Trial Chamber (7 May 2009), 18; Prosecutor v Banda and Jerbo (Summons to Appear for Saleh Mohammed Jerbo Jamus) ICC-02/05-03/09, Pre-Trial Chamber (27 August 2009). See also Schabas (2010), 713–14.

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International Criminal Proceedings condition was imposed on the six Kenyan defendants, who were only orderd to ‘attend all required hearings’ at the ICC.252 (b)  Applicable Regimes As far as the regime applicable to detainees is concerned, the Regulations of the Registry contain restrictions similar to those contained in the ICTY Rules of Detention: permission to visit a detainee shall not be granted if there are reasonable grounds to believe that ‘The purpose of the visit is to obtain information which may subsequently be reported in the media’.253 There is no specific regulation governing written or telephone communications with the media. However, all outgoing mail will be reviewed and may be stopped for a variety of reasons, including where it is in breach of ‘any other regulations relating to detention matters’ or ‘an order of a Chamber’, where they give grounds to believe that the defendant may be attempting to ‘interfere with the administration of justice’ or where the mail ‘jeopardises public safety’.254 Similarly, telephone calls will be monitored and may be terminated, inter alia, where there are grounds to believe that the detainee may be attempting to ‘interfere with the administration of justice’ or ‘jeopardize the interests of public safety’.255 These provisions will easily lend themselves to an interpretation that allows prohibiting defendants from communicating with the media. So far, there have not been any decisions on these questions.256 As to political offices, there are no specific rules prohibiting defendants from holding or running for such offices. However, they may face significant practical problems, as can be shown with respect to Jean-Pierre Bemba’s failed attempt to run for President of the DR Congo. Under Congolose election laws, he was required to personally register his candidacy in the Congo. His requests to be granted provisional release for 17 hours to do so were denied as he was still considered a flight risk and registration for an election was not an ‘exceptional humanitarian circumstance’ allowing release in spite of this finding.257 While 252   Situation in Kenya, Kenya I (Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang) ICC-01/09-01/11, PreTrial Chamber (8 March 2011), 23; Prosecutor v Kenya II (Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali) ICC-01/09-02/11, Pre- Trial Chamber (8 March 2011), 24. 253   reg 180(1)(a) Regulations of the Registry. 254   reg 169(3)(a)(iii) and (iv), (b)(iii) and (c) Regulations of the Registry. 255   reg 175(1)(c) and (e) Regulations of the Registry. 256   The only decisions concerned restrictions on communication between two detainees (Situation in the Democratic Republic of the Congo, Prosecutor v Katanga and Ngudjolo (Decision on the Prosecution’s Urgent Application Pursuant to Regulations 90, 99(2) and 101(2) of the Regulations of the Court) ICC01-04/01-07, Pre-Trial Chamber (7 February 2008); (Decision Revoking the Prohibition of Contact Between Germain Katanga and Mathieu Ngudjolo Chui) (13 March 2008)) and an OTP request to monitor one detainee’s telephone calls because of possible intimidation of witnesses ((Decision on the Application for Interim Release of Mathieu Ngudjolo Chui) (27 March 2008), 10). 257   Situation in the Central African Republic, Prosecutor v Bemba (Decision on Applications for Provisional Release) ICC-02/05-02/09, Pre-Trial Chamber (27 June 2011), paras 55 et seq, 68 et seq;

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Developments Alongside the Trial being unable to run himself, Bemba – as well as fellow defendant Lubanga – were still able to influence the elections in a role as kingmakers, fielding visits from a number of other presidential hopefuls seeking the defendants’ support in their candidacies against incumbent Joseph Kabila.258 Conditions imposed on defendants not arrested, but only summoned to appear, may also restrict their ability to communicate with the outside world. While Article 58(7) RSt refers to ‘conditions . . . if provided by national law’, in practice the Chambers have simply imposed those conditions that they have held necessary, which generally have not been overly stringent. In the Abu Garda and Banda and Jerbo cases, the Pre-Trial Chamber ordered them ‘to refrain from discussing issues related to either the charges which form the basis of the present summons or the evidence and information presented by the Prosecutor and considered by the Chamber’ and ‘to refrain from making any political statements while within the premises of the Court’. On the other hand, the Chamber apparently laid down no further restrictions for conduct while not on the premises of the Court, thus allowing the defendants to continue to hold leaderhip positions in Sudanese rebel groups.259 Similarly, in the Kenya cases, the Chamber basically referred back to the Haftgründe, restricting contact to victims and (potential) witnesses and ordering the defendants to appear for all required hearings and not to commit statute crimes.260 Defendants were also warned that ‘dangerous speeches’ ‘re-triggering the violence in the country’ could be considered as committing statute crimes and lead to arrest.261 A request by the prosecutor for further restrictions, including a prohibition of ‘making any public statements or comments (Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo Against the Decision of Trial Chamber III of 27 June 2011 entitled ‘Decision on Applications for Provisional Release’) Appeals Chamber (19 August 2011), paras 82–86. This finding was upheld after additional presentations by Congolese politicians ((Decision on the ‘Demande de mise en liberté provisoire de M. Jean-Pierre Bemba Gombo afin d’accomplir ses devoirs civiques en République Démocratique du Congo’), Pre-Trial Chamber (15 September 2011), paras 11 et seq; (Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo Against the Decision of Trial Chamber III of 2 September 2011 entitled ‘Decision on the “Demande de mise en liberté de M Jean-Pierre Bemba Gombo afin d’accomplir ses devoirs civiques en République Démocratique du Congo” ’) Appeals Chamber (9 September 2011), paras 30 et seq. 258   See Olivia Bueno, ‘Gone But Not Forgotten: Bemba and Congo’s 2011 Presidential Elections, Trial of Jean-Pierre Bemba Gombo’ Blog, 29 August 2011, available at: www.bembatrial.org/2011/08/ gone-but-not-forgotten-bemba-and-congo%e2%80%99s-2011-presidential-elections/; Olivia Bueno, ‘Lubanga in The Hague: A Role to Play in DRC’s Elections?’, 20 October 2011, available at: www. lubangatrial.org/2011/10/20/lubanga-in-the-hague-a-role-to-play-in-drc%e2%80%99s-elections/. 259   Situation in Sudan, Prosecutor v Abu Garda (Decision on the Prosecutor’s Application Under Article 58) ICC-02/05-02/09, Pre-Trial Chamber (7 May 2009),  18; Prosecutor v Banda and Jerbo (Summons to Appear for Saleh Mohammed Jerbo Jamus) ICC-02/05-03/09, Pre-Trial Chamber (27 August 2009). 260   Situation in Kenya, Kenya I (Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang) ICC-01/09-01/11, Pre-Trial Chamber (8 March 2011), 23; Kenya II (Decision on the Prosecutor’s Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali) ICC01/09-02/11, Pre-Trial Chamber (8 March 2011), 24. 261   Situation in Kenya, Kenya I (Transcript of 7 April 2011) ICC-01/09-01/11, Pre-Trial Chamber, 8; Kenya II (Transcript of 8 April 2011) ICC-01/09-02/11, Pre-Trial Chamber, 6.

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International Criminal Proceedings about the case, the charges, the investigation, or the evidence’ was denied.262 These defendants were thus, inter alia, able to continue to hold their political posts, although one of them apparently heeded a request, issued through the press by the prosecutor, to step down.263 Whether any of them will be able to run for political offices in the 2012 presidential and parliamentary elections remains to be seen at the time of this writing. No specific rules on restrictions of communications exist regarding defendants granted provisional release. Rule 119(1) RPE-ICC, which contains a non-exhaustive list of possible conditions for provisional release, does not deal with such communications either. What conditions the Pre-Trial Chambers set in cases where they do grant provisional release remains to be seen – these conditions can probably be expected to be at least as stringent as those imposed in the context of summonses to appear. In Bemba, the decisions on short-term provisional release imposed conditions including that he should not ‘be in contact with the public or speak to the press’, only communicate with ‘relatives, persons necessary to his father’s memorial services and the persons assigned to his protection’ and that he should not discuss his case with anyone except his defence team.264 Similarly, whether and/or to what extent the Chambers will use their powers under Article 81(3)(c) RSt to impose conditions on defendants acquitted at first instance, or having served their sentence before the determination of an appeal, remains to be seen. As to counsel’s contact with the media, Article 71 on misconduct before the Court does not apply to media statements,265 and neither does the Code of Conduct specifically deal with this issue. Trial Chamber I has stated more generally that, generally speaking ‘It is not the role of the Chamber to comment on the arrangements that are, or should be, in place as regards the relationship between [inter alia] counsel appearing in its cases . . . and the media’.266 However, Chambers have, in a number of decisions concerning statements to the press by OTP personnel, laid down some general rules on statements which also apply to defence 262   Situation in Kenya, Kenya I (Decision on the ‘Prosecution’s Request for Conditions of Enforcement’) ICC-01/09-01/11, Pre-Trial Chamber (20 April 2011); Kenya II (Decision on the ‘Prosecution’s Request for Conditions of Enforcement’) ICC-01/09-02/11, Pre-Trial Chamber (20 April 2011). 263   See Thomas Obel Hansen, ‘If Not a “Mini-trial”, What Then? Some Reflections on the Nature and Impact of the Confirmation of Charges Hearings’, ICC Kenya Monitor Blog, 13 September 2011, available at: www.icckenya.org/2011/09/if-not-a-%E2%80%9Cmini-trial%E2%80%9D-what-then-somereflections-on-the-nature-and-impact-of-the-confirmation-of-charges-hearings/; Situation in Kenya, Kenya II (Decision on the Defence ‘Application for Order to the Prosecutor Regarding Extrajudicial Comments to the Press’) ICC-01/09-02/11, Pre-Trial Chamber (5 May 2011). 264   Situation in the Central African Republic, Prosecutor v Bemba (Decision on the Defence’s Urgent Request Conceming Mr Jean-Pierre Bemba’s Attendance of his Father’s Funeral) ICC-01/05-01/08, Pre-Trial Chamber, 3 July 2009, 5–6. 265   Situation in Sudan, Prosecutor v Al Bashir (Decision on the ‘OPCD Request for Authorization to Submit Observations Concerning Guardian Article Dates 15 July 2010’) ICC-02/05-01/09, Pre-Trial Chamber (13 September 2010), paras 8–9. 266   Situation in the Democratic Republic of the Congo, Prosecutor v Lubanga (Decision on the Press Interview with Ms Le Fraper du Hellen) ICC-01/04-01/06, Trial Chamber (12 May 2010), para 36.

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Developments Alongside the Trial counsel.267 Accordingly given ‘the need for responsible and balanced comments and reporting of the case’, their statements must be clear on ‘whether issues that are reported have been decided or are still unresolved’ and they may not ‘misrepresent the evidence, . . . misdescribe the functions of the parties or the Chamber, or . . . suggest or imply without proper foundation that anyone in the case . . . has misbehaved’.268 More generally speaking, they must ‘refrain from making public statements or engage in any other activity which could have an impact on the evidence or the merits of the case or could be perceived as showing a predetermination of the cause pending before the Court’.269 These restrictions did not lead to censure where the statements in question did not concern the case before the Court.270 To what extent these restrictions will be applied to general statements by defence teams remains to be seen.

3.  The Special Court for Sierra Leone (a)  The Question of Detention or Liberty Rule 65 RPE-SCSL states that defendants are to be granted provisional release271 if the Chamber is ‘satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person’. This provision applies not only to the pre-trial phase, but also to ongoing trials.272 Rule 65(C) allows a defendant only one application for bail, with an exception for a ‘material change in circumstances’. Whether the rule also applies between a conviction and determination of the appeal is unclear; from the public records it seems that, based on the restrictive jurisprudence of the Special Court, none of the defendants has even applied for pre-appeal bail. Rule 65(B), as amended early on in 2003, contains no reference to ‘exceptional circumstances’, so one might expect continued detention to be considered the exception rather than the rule. However, this is absolutely not the case. The Court has held that in light of the gravity of crimes charged and the location of the court 267   Situation in the Democratic Republic of the Congo, Prosecutor v Lubanga (Decision on the Press Interview with Ms Le Fraper du Hellen) ICC-01/04-01/06, Trial Chamber (12 May 2010), para 38; Situation in Kenya, Kenya II (Decision on the Defence Application for Order to the Prosecutor Regarding Extra-Judicial Comments to the Press) ICC-01/09-02/11, Pre-Trial Chamber (5 May 2011), para 6. 268   Situation in the Democratic Republic of the Congo, Prosecutor v Lubanga (Decision on the Press Interview with Ms Le Fraper du Hellen) ICC-01/04-01/06, Trial Chamber (12 May 2010), paras 38, 39. 269   Situation in Kenya, Kenya II (Decision on the Defence Application for Order to the Prosecutor Regarding Extra-Judicial Comments to the Press) ICC-01/09-02/11, Pre-Trial Chamber (5 May 2011), para 6. 270   ibid, paras 10–11. 271   See generally Nicol-Wilson (2007), 512–21; Müller (2008), 616–19. 272   RUF (Sesay – Decision on Appeal Against Refusal of Bail) SCSL-04-15, Appeals Chamber (14 December 2004), para 34.

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International Criminal Proceedings in the country of conflict, there was ‘no presumption in favour of release’.273 It also placed the burden of proof on the defendant.274 The Chambers also did not limit themselves to determining whether there was a risk of flight or of danger to others, but instead referred to ‘public interest requirements relating to the appearance of the Accused at trial and the safety of victims and witnesses’.275 At first glance, this may only sound like a somewhat broad wording for the reasons for detention named in Rule 65(B). However, the Court actually went beyond that Rule by considering the possible impact on public order/public opinion as a factor in denying release.276 As a result, all 10 defendants tried before the Special Court277 so far have remained in detention from their arrest until their death or the end of proceedings against them.278 Even motions for short-term ‘humanitarian release’, such as a motion by Santigie Kanu to be allowed to visit the grave of his recently deceased mother, were denied.279 Similarly to the RPE of the ad hoc Tribunals, the RPE-SCSL also contain a Rule 99(B) allowing the prosecution to request further detention of acquitted persons 273   Prosecutor v Norman (President’s Decision on Motion for Modification of the Conditions of Detention) SCSL-04-8, President (26  November 2003), para  8; similar Prosecutor v Sesay (Decision on Application of Issa Sesay for Provisional Release) SCSL-04-5, Trial Chamber (31  March 2004), para 40. Reference was also made to the example of the ICTR – see Prosecutor v Fofana (Decision on the Urgent Defence Application for Release from Provisional Detention) SCSL-03-11, Trial Chamber (21 November 2003), para 44. Statements that release should be the rule and detention the exception (CDF (Fofana – Decision on Application for Bail Pursuant to Rule 65) IT-04-14, Trial Chamber, 5 August 2004, paras 87 et seq) did not lead to any different results. The Appeals Chamber acknowledged that under its interpretation, applications for bail would rarely be successful, but maintained that ‘there may well be circumstances where [a defendant] can be granted bail’ (RUF (Sesay – Decision on Appeal Against Refusal of Bail) SCSL-04-15, Appeals Chamber, 14 December 2004, para 37). 274   See, eg CDF (Fofana – Appeal Against Decision Refusing Bail) SCSL-04-14, 11 March 2005, para  33. Several decisions stated that  once the defendant had ‘fulfilled the conditions laid down in Rule 65(B)’, ‘the prosecution has an equally formidable burden of negating the facts advanced by the defence’ (eg CDF (Fofana – Decision on Application for Bail Pursuant to Rule 65) SCSL-04-14, Trial Chamber, 5 August 2004, para 95). This does not change the fact, however, that the burden of proving the preconditions for release remains at all times with the defence as the Chamber will decide against release if there is no conclusive proof either way – see also Thienel (2007), 554–55. 275   Prosecutor v Sesay (Decision on Application of Issa Sesay for Provisional Release) SCSL-04-15, Trial Chamber (31 March 2004), para 45. 276   CDF (Fofana – Decision on Application for Bail Pursuant to Rule 65) SCSL-04-14, Trial Chamber (5 August 2004), paras 83–84. 277   This does not apply to those facing charges of contempt – see SCSL, Press Release of 15 July 2011, ‘One Conviction, Four Plead Not Guilty to Contempt Charges’, according to which three contempt defendants were, after their initial appearances granted bail under certain conditions. 278   It should be noted in the interest of completeness that  Sam Hinga Norman had first applied for ‘house arrest’ under r 64 RPE-SCSL allowing the Court to modify the conditions of detention of a detainee. The SCSL President, however, did not rule on the motion as he held that it was in fact one for conditional bail – Prosecutor v Norman (Decision on Motion for Modification of the Conditions of Detention) SCSL-04-8, President (26 November 2003). On this decision, see de Jonge (2006), 771– 72. 279   AFRC (Decision on the Defence Motion for the Temporary Provisional Release to Allow the Accused Santigie Borbor Kanu to Visit his Mother’s Grave) SCSL-04-16, Trial Chamber (18 October 2005), para 12. The Chamber held that the Registrar was the appropriate addressee for the motion. The Registrar had earlier denied, or simply not reacted to, three requests by the defendant to be allowed to visit his ailing mother and, later, to visit her funeral (ibid, para 1).

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Developments Alongside the Trial in case of an appeal against the acquittal. However this case, or the similar case of a convicted person whose time in detention exceeds the sentence, has not arisen. (b)  Applicable Regimes As far as the regime applicable to detainees is concerned, the SCSL Rules of Detention are only slightly more lenient than those at the ad hoc Tribunals when it comes to communications with the media. Visits or communications are subject to prior approval by the Registrar, who may prohibit visits that could ‘prejudice or otherwise undermine the outcome of . . . proceedings’ or ‘frustrate the mandate of the Special Court’.280 Under the same conditions, the Registrar may also prohibit or restrict communications with and visits by other persons.281 The specific reference to visits and communications ‘frustrat[ing] the mandate of the Special Court’ was added after events in the Norman case. In January 2004,282 after receiving ‘reports that the Detainee has recently made statements inciting his supporters to public unrest . . . with the intention of having these statements subsequently being reported in the media’ the Registrar prohibited, for a period of 14 days, all communications with and visits to Norman (excepting defence counsel).283 The decision was upheld by the Acting President. She found that the relevant rule of detention, which as it then stood allowed for restrictions to visits and communications which ‘could prejudice or otherwise affect the outcome of the proceedings against the Detainee or any other investigations’, also applied to visits and communications which could ‘lead to a detainee’s statements appearing in the media with the effect of undermining the mandate of the Special Court’.284 Norman was also the subject of two later restrictions on visits and communications. In the first case, he had, without the permission of the Registrar, provided several newspapers with copies of letters he had sent to court personnel. In reaction, the Registrar prohibited all visits, except those by counsel, for a period of four weeks.285 In June 2005, after Norman had again passed out ‘unauthorized communications’, the Acting Registrar rendered a similar decision, this time based on Rule 47(A)(v) allowing restrictions to communications that ‘could disturb the maintenance of the security and good order in the Detention facility’. The decision was again upheld by the President.286   r 42(A) and (B)(ii) and (iv) SCSL Rules of Detention.   r 47(A)(iv) SCSL Rules of Detention. 282   As Boister (2004), 1115 notes, this happened shortly after Norman’s request for a public interview before the Truth and Reconciliation Commission (see below 187–89) was denied. 283   CDF (Decision Prohibiting Communications and Visits) SCSL-04-14, Registrar (20 January 2004). 284   CDF (Decision on Motion to Reverse the Order of the Registrar under Rule 48(C) of the Rules of Detention) SCSL-04-14, President, 18 May 2004, para 8. It was not made explicit why or how such statements could undermine the Court’s mandate, particularly given that Norman could have communicated with the media via his counsel – see de Jonge (2006), 770–71. 285   CDF (Decision Prohibiting Visits) SCSL-04-14, Registrar (8 November 2004). 286   CDF (Decision) SCSL-04-14, Registrar (6 June 2005); (Decision on Request to Reverse the Order of the Acting Registrar under Rule 47(A) of the Rules of Detention of 6 June 2005), President (29 June 2005). 280 281

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International Criminal Proceedings Finally, Charles Taylor was also subject to restrictions of communications rights, although such restrictions were imposed to still fears of witness intimidation.287 There is apparently no rule prohibiting detainees to write books, etc – in fact, in his decision on appearances before the TRC, President Robertson explicitly mentioned that detainees would be allowed to write such accounts and send them to the TRC.288 SCSL defendants were also unable to testify before the Truth and Reconciliation Commission for Sierra Leone. As the mandate of the TRC covered the period from the beginning of the conflict in 1991 to the Lomé Accord of July 1999, there was significant overlap with the court’s temporal jurisdiction beginning in November 1996.289 The question how this overlap should be dealt with arose when several SCSL detainees wished to make statements before the TRC.290 Faced with a request by the TRC to be given access to Sam Hinga Norman for an interview, the Special Court Registrar, after consultations with several of the judges, issued a Practice Direction on the procedure to be followed in such cases. The Direction specified that the TRC would have to provide a list of the questions it would ask, that interviews would be supervised by an officer of the Court who had the power to stop certain questions or even the entire interview if it digressed from that list, and that a transcript would be provided to the prosecutor.291 In response to a TRC protest,292 the Registrar slightly revised the Practice Direction – testimony could now only be made available to the prosecution upon an order by the Presiding Judge; most other provisions remained substantially the same.293 The reviewing judge had the power to reject a request for an interview if she was ‘satisfied that a refusal is necessary in the interests of justice or to maintain the integrity of the proceedings of the Special Court’.294 The TRC was still not satisfied, especially with the provisions on confidentiality.295 However, as Norman had asked for a public hearing and as the TRC was facing the end of its mandate, it nonetheless made an urgent application to the Trial 287   Prosecutor v Taylor (Decision of the President on the Defence Application Pursuant to Rule 47(G) Requesting the President to Reverse the Registrar’s ‘Decision on the Prosecution Request for Restrictions or Conditions on Visits and Communications Received by the Accused, Charles Ghankay Taylor’) SCSL-03-01, President (20 June 2007). 288   Prosecutor v Norman (Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone (‘TRC’ or ‘the Commission’) and Chief Sam Hinga Norman JP against the Decision of His Lordship, Mr Justice Bankole Thompson Delivered on 30 October 2003 to Deny the TRC’s Request to Hold a Public Hearing with Chief Sam Hinga Norman JP) SCSL-04-8, President (28 November 2003), paras 24–25. 289   s 6(1) TRC Act; Art 1(1) StSCSL; see also SL TRC Report, vol 3B, ch 6, paras 27–39. On earlier developments concerning relationship between the two bodies, see ibid, paras 40–71. 290   The TRC had earlier approached several SCSL indictees, who had however initially refused to testify before the Commission – see ibid, ch 6, paras 74–76. 291   SCSL Practice Direction, in the version adopted on 9 September 2003, paras 2(g), 6 and 8(c). 292   Reproduced in SL TRC Report, vol 3B, ch 6, para 87. 293   SCSL Practice Direction, para 4(c). 294   ibid, para 5. 295   See SL TRC Report, vol 3B, ch 6, paras 99–103.

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Developments Alongside the Trial Chamber, asking for a hearing to take place at the SCSL building, consisting of a statement by the defendant followed by questioning conducted by the members of the Commission. It was to be broadcast live on radio and highlights presented on TV in the evening news. Despite Norman’s expressed willingness to appear before the TRC, Judge Thompson held that the request jeopardised the defendant’s fair trial rights and denied the request.296 Judge Thompson made a similar decision in the case of Augustine Gbao.297 Gbao had also agreed to a public hearing before the TRC, but had laid down certain conditions for his interview, including a right to refuse to answer questions. Judge Thompson took this as a further indication that the interview would clash with Gbao’s fair trial rights.298 The Norman decision was appealed jointly by Norman and the TRC. The SCSL President declined to follow the reasoning of Judge Thompson and held that SCSL detainees were in principle allowed to testify before the TRC. However, such testimony could be given in writing or in a private session, but not in a televised public session, which might ‘influence witnesses . . . or affect the integrity of court proceedings or unreasonably affect co-defendants or other indictees’.299 Gbao had also entered an appeal against Thompson J’s decision, but withdrew it after the President’s decision.300 The court was less hesitant to approach cooperation (largo sensu) with the TRC from the opposite direction, allowing part of its report into evidence in the Taylor case.301 The Practice Direction was also applied when the Liberian Truth and Reconciliation Commission requested an interview with former Liberian President Charles Taylor while Taylor was on trial before the Special Court. An initial request by the TRC was rejected by the Special Court’s Registry, which informed the Commission that any requests would have to comply with the 296   Prosecutor v Norman (Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Sam Hinga Norman) SCSL-04-8, Judge Thompson (29 October 2003), paras 10–16. 297   Issa Sesay, Gbao’s co-accused in the RUF case, had also initially wished to testify before the TRC, but did not pursue this wish any further after the Practice Direction had been passed. 298   Prosecutor v Gbao (Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Augustine Gbao) SCSL-04-9, Judge Thompson (3 November 2003), paras 11–18. 299   Prosecutor v Norman (Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone (‘TRC’ or ‘the Commission’) and Chief Sam Hinga Norman JP against the Decision of His Lordship, Mr Justice Bankole Thompson Delivered on 30 October 2003 to Deny the TRC’s Request to Hold a Public Hearing with Chief Sam Hinga Norman JP) SCSL-04-8, President (28 November 2003), paras 30, 41. 300   Prosecutor v Gbao (Decision on Appeal by the Truth and Reconciliation Commission (‘TRC’) and Accused against the Decision of Judge Bankole Thompson Delivered on 3 November 2003 to Deny the TRC’s Request to Hold a Public Hearing with Augustine Gbao) SCSL-04-9, President (7 May 2004), 2. 301   Prosecutor v Taylor (Decision on Prosecution Motion for Admission of Extracts of the Report of the Truth and Reconciliation Commission of Sierra Leone) SCSL-03-01, Trial Chamber (19 February 2009).

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International Criminal Proceedings Practice Direction.302 Taylor did not testify before the TRC; the final TRC report states that he ‘declined’ to do so.303 As concerns defendants not detained, Rule 65(D) allows imposing on defendants granted provisional release ‘such conditions as are necessary to ensure the presence of the accused at trial and the protection of others’. As no SCSL defendant has ever been granted provisional release, the question whether or to what extent such defendant may be able to communicate with the media or other actors did not arise. It should only be noted parenthetically that in Norman’s unsuccessful application for a modification of the conditions of arrest, he had offered as a condition that he would not speak to the media at all.304 The Code of Professional Conduct explicitly deals with contact of counsel with the media. Article 13 lays down certain restrictions for the content of statements – counsel may not publish false information or disclose confidential information and may not comment on a matter which is sub judice in her case. It is this latter restriction which, if interpreted widely so as to cover the case in its entirety, could be used for rather wide-ranging restrictions. In fact, before the entry into force of the Code, Trial Chamber II had issued a warning under Rule 46 RPE-SCSL to a counsel for ‘offensive’ statements to the press, without specifying why it found the statements offensive. This decision seems to have been based on a widely interpreted sub judice exception.305 Similarly, a pre-trial decision in the CDF case had contained a strong warning against statements by counsel to the press.306 However, Article 13 seemingly has not been interpreted so broadly in other instances, as counsel have indeed had frequent contact with the press.307

4.  The Special Tribunal for Lebanon (a)  The Question of Detention or Liberty The applicable rules at the STL seem to foresee a more liberal regime as far as pre-trial detention and release are concerned.308 As at the ICC, two groups of 302   SCSL, Press Release of 5 September 2008, ‘Statement by Registrar Herman von Hebel Regarding the Request by the Liberian Truth and Reconciliation Commission for an Audience with Charles Taylor’. 303   TRC of Liberia, Final Report, 19 December 2008, vol II – Consolidated Final Report, p 190. 304   Prosecutor v Norman (Decision on Motion for Modification of the Conditions of Detention) SCSL-04-8, Trial Chamber (26 November 2003), para 9. 305   See AFRC (Transcript of 28 April 2005) SCSL-04-16, Trial Chamber, 14 et seq. 306   CDF (Decision on inter partes Motion by Prosecution to Freeze the Account of the Accused Sam Hinga Norman at Union Trust Bank (SL) Limited or at any Other Bank in Sierra Leone) SCSL-04-14, Trial Chamber (9 April 2004). 307   See, eg the 11 December 2003 press statement of Sam Hinga Norman’s defence team, issued ‘for and on behalf of ’ the defendant, reprinted in the SL TRC Report, vol 3B, ch 6, para 174. See also two decisions on media contact by the prosecution: RUF (Decision on Complaint Pursuant to Article 32 of the Code of Professional Conduct for Counsel with the Right of Audience Before the Special Court for Sierra Leone) SCSL-04-15, President (20 February 2006); Prosecutor v Taylor (Decision on Motion for Disclosure of Evidence Underlying Prejudicial Statements Made by the Chief Prosecutor, Mr Stephen Rapp, to the Media) SCSL-03-01, Trial Chamber (6 February 2009). 308   See also Memorandum RPE STL, paras 25–27.

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Developments Alongside the Trial defendants must be distinguished at the STL, the first group comprises those defendants who have been arrested and brought before the court under an arrest warrant, which may be issued only if one of the usual Haftgründe (risk of flight, of obstruction of proceedings or of further crimes) applies.309 These defendants may apply for release, which must be granted unless the court is satisfied that the Haftgründe still apply.310 The court may impose conditions for release,311 which implies that where such conditions are sufficient to negate the Haftgründe, release under conditions must be granted. After conviction by the Trial Chamber, release may still be granted, but there is an additional requirement that it be ‘in the interests of justice’.312 Where the person remains in detention, the court is to review its decision at least every six months.313 As at the ICC, the RPE also state that no person may be detained for an unreasonable period ‘due to inexcusable delay by the Prosecutor’ and that such delay may be considered as a reason for release.314 By contrast, where the Pre-Trial Judge finds that no Haftgründe apply to a defendant, she may, instead of an arrest warrant, issue a summons to appear.315 Defendants who answer a summons may, with the consent of the Netherlands as host state, be allowed to attend proceedings while not in custody, or may be detained in a safe-house instead of the detention unit.316 The Pre-Trial Judge may also issue a safe-conduct, which shall ‘afford temporary immunity from arrest’,317 thus allowing the defendant to absent herself again after her initial appearance. In practice, the prosecutor has so far applied for, and the Pre-Trial Judge has issued, warrants of arrest for four defendants,318 all of whom are still at large at the time of this writing. The four suspects who had been detained by Lebanase authorities were ordered to be released shortly after the Tribunal had taken over the case as there was not sufficient evidence against them.319 After a judgment of acquittal by the Trial Chamber, the defendant shall generally be released, but may, under Rule 180 RPE-STL, be further detained upon order of the chamber where the prosecution announces that it will appeal. The order may be appealed and such appeal must be ruled on within 15 days or the defendant released.   r 79(A) RPE-STL.   r 102(A) RPE-STL.   r 102(B) RPE-STL. 312   r 102(F) RPE-STL. 313   r 101(D) RPE-STL. 314   r 101(E) RPE-STL. 315   r 78 RPE-STL. 316   r 103 RPE-STL. The rule does not state clearly what happens when the Netherlands do not grant their consent, ie whether such defendants would then be detained for that reason alone. 317   r 81 RPE-STL. 318   STL, Prosecutor v Ayyash et al (Warrant to Arrest Mr Assad Hassan Sabra Including Transfer and Detention Order) STL-11-01, Pre-Trial Judge (28 June 2011), and the other three arrest warrants issued on the same day. 319   (Order Regarding the Detention of Persons Detained in Lebanon in Connection with the Case of the Attack Against Prime Minister Rafiq Hariri and Others), Pre-Trial Judge, 29 April 2009. 309 310 311

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International Criminal Proceedings (b)  Applicable Regimes As far as the regime applicable to detained persons is concerned, they may generally communicate with, and receive visits from, ‘their families and others’.320 There are special provisions concerning visits from and communication with the media. These must specifically be requested and may be denied for a number of reasons, including that they could ‘prejudice, interfere with or otherwise undermine’ proceedings against the detainee or others or that they could ‘interfere with the administration of justice or frustrate the mandate of the Special Tribunal’.321 Whether this restriction will be used to effectively prohibit defendants from contacting the media remains to be seen. One reason to expect a rather strict approach is another rule which states that a visit (by any person) may be denied when it can reasonably be believed that its purpose is ‘to obtain information, which may be subsequently reported in the media’.322 The provision on other restrictions to detainee communications rights, for example to prevent flight, is quite similar to those applicable at other courts.323 As to defendants who are not detained, the relevant rule on conditions of release allows the Chamber to impose ‘such conditions . . . as it may deem appropriate, including the execution of a bail bond or . . . the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others’.324 As is the case at other courts and tribunals, this list is nonexhaustive. However, the fact that conditions other than bail may only be imposed if they are ‘necessary to ensure the presence of the accused for trial and the protection of others’ may pose some limits on the ability of Chambers to, for example, prohibit defendants from talking to the media. Similarly, defendants who are absent after a decision to conduct proceedings in a quasi-in absentia manner would not seem to be subject to specific restrictions concerning access to the media, although communications to the media which engage one of the Haftgründe may lead to an arrest warrant being issued. As to defendants acquitted but detained in light of a prosecution appeal, the Rules do not foresee any difference in the applicable regime as compared to other detainees.325 As far as counsel are concerned, the Code of Conduct makes clear that they may communicate with the press as long as they do not ‘engage in personal attacks on the judiciary or unfairly criticise judicial decisions’326 or make statements that are false or that ‘misrepresent . . . the situation or the position of another Counsel, party to the proceedings, organ of the Special Tribunal, or any other   r 57(A), r 59(A) STL Rules of Detention. This includes phone calls – see r 68.   r 63 STL Rules of Detention.   r 60(B)(iii) STL Rules of Detention. 323   r 70 STL Rules of Detention. 324   r 102(B) RPE-STL. 325   r 170(B), (C) RPE-STL. 326   STL Code of Conduct, No 38. 320 321 322

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Developments Alongside the Trial person affiliated with it’.327 Statements violating these restrictions, as well as conduct which is ‘offensive, abusive or obstructs the proper conduct of the proceedings’, may also be subject to sanctions for misconduct, which may include a rescission of the right to represent defendants.328

IV. Conclusion This chapter shows international criminal procedure to be quite strict when compared to national laws: first, the ICTR and the SCSL have never granted even short-term release of defendants, and the ICC has granted short-term release but never true provisional release, with the result that defendants have spent very long stretches of time in detention. It seems safe to say that detention for one and a half decades prior to even a first instance judgment, as in some of the multi-defendant cases at the ICTR, would be impossible in any of the domestic systems reviewed here and would be found in violation of human rights if presented to any of the treaty bodies. It should be noted, however, that the ICC and STL have developed ‘alternatives to detention’ which allow a trial to take place without the defendant ever having been in detention – provisions which seem to be mostly used (or, in the case of the STL, intended) to enhance the chance that the defendant will appear before the court in the first place, as defendants may be more likely to do so if they know that they will be able to leave again after doing so. Second, international courts severely restrict the possibility of defendants to comment on their case outside the courtroom. National criminal procedure generally limits defendant contact with the media only where necessary to protect order in the detention facility or where the content of any communications poses specific problems. In contrast, both the applicable provisions and the decisions by international courts seem to perceive already the mere fact that a defendant communicates her views to the outside world unmediated by the court as a threat to the court’s mandate. The SCSL decisions on interviews with the Truth and Reconciliation Commission boil down to a similar view. Thus defendants will usually not be able to present their views to the wider public in an unmediated and direct manner. They will, however, in most cases be able to communicate their views as filtered by their defence counsel, or by publishing books.

  STL Code of Conduct, No 45 (a) and (b).   r 60 RPE-STL.

327 328

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4 Summary In determining how international criminal procedure differs from the standard set by national procedures and human rights law, three aspects may be differentiated. There are differences with respect to all aspects, albeit to differing degrees. Also, with regard to all three aspects the extent of such differences may vary between courts, but also within each court over time or between cases.

I. The Courts’ Access to the Case – Fitness, Absence, Detention First of all, international criminal courts are eager to gain and retain access to the case as such, and thus to the defendant. While provisions on in absentia proceedings are not generally broader than in domestic law, it is striking that the scope of such provisions and of their application depends on the ability of the courts to achieve the arrest of the defendants and/or to wait until arrest where this may take a long time.1 Once they have gained hold of the case, international courts are more than reluctant to relinquish this hold again for reasons such as long-term mental illness or fatal or recurring physical illness of the defendant. Basically, proceedings will only be terminated once the defendant has died.2 Particularly the ad hoc Tribunals will institute sentencing proceedings against defendants who have weeks to live,3 and they may yet decide to continue large parts of a trial in the absence of a defendant who is too ill to appear in court.4 Finally, even where a defendant has died, international courts go beyond national laws in ensuring that the results of the trial so far stand, as shown in Rasim Delic´. Finally, most international courts will not relinquish immediate control over defendants by granting them provisional release, even if this means that defendants will be detained for periods of time which neither national laws nor human rights treaty bodies would come close to allowing.5 Some courts do have more   See above 59–61.   See above 36. Where the defendant has died outside the custody of the courts, proceedings will continue until the defendant’s death has been proven to the satisfaction of the court – see above 38. 3   See the Serugendo case detailed above 33. 4   Under the theory of ‘substantial trial disruptions’ – see above 49–50. 5   See above 192. 1 2

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Summary liberal regimes, which seem to be used mostly to enhance the chance that the court will gain access to the case in the first place.

II.  The Courts’ Privileged Access to the Case – Conditions of Detention or Release International courts are also more stringent than national systems in ensuring that the debate on the facts of the case happens only in their courtroom, that is that the defendant does not conduct this debate in other fora. This relates to the question of provisional release, but particularly to conditions of detention or release. International criminal procedure seems to perceive any contact of the defendant with the outside world not mediated by the courts as a threat to their mandates.6 This applies not only to the press, but even to sister organisations of transitional justice such as Truth and Reconciliation Commissions.7 Against this background, the handling of the Haradinaj case by the ICTY8 is particularly striking: Haradinaj was not only granted provisional release – despite fears that this might lead to intimidation of witnesses – and allowed to make a number of public appearances, but the ICTY even relinquished control over such appearances to UNMIK, an organisation with apparent sympathies toward the defendant.

III.  The Struggle in the Courtroom As to their role in the actual trial, three types of defendants can be distinguished.

1.  The Standard Case The vast majority of defendants will likely not experience international trials much differently than they would experience trials before national courts for similar crimes. They will spend a significant time in detention, but will generally be treated well and able to receive visits by their loved ones.9 In the trial, they will be represented by an attorney, who will in most cases be reasonably competent and whom they will be able to choose within certain limits. They will instruct their counsel on the broad lines of trial strategy but leave the everyday conduct of the trial to her. They will have a chance to personally have a say in the proceedings,   See above 192.   See above 187–89.   See above 173–74. 9   On the rather high standards of the UNDU in The Hague, see, eg Julian Davis Mortenson, ‘Inside the United Nations Detention Unit’ Slate, 9 January 2006 and 10 January 2006. In developing countries such as Sierra Leone, such high standards of detention even lead to ‘reverse smuggling’ incidents of visitors smuggling medication, cigarettes and soap out of the Detention Facility – Akin (2005), 20–21. 6 7 8

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The Struggle in the Courtroom presumably after a discussion with their counsel whether or not to do so would be wise tactically. Working together with their counsel, they will challenge the legal case against them and will actually stand a chance of acquittal.10 Where convicted, they may face a significant prison sentence, but they may generally hope that the court will take into account factors speaking for leniency. Cooperative behaviour will usually speak in their favour.

2.  Particularly Cooperative Defendants Similarly, most defendants who wish to cooperate with the court and the prosecution, be it out of remorse, out of hope for a lenient sentence, or for other reasons, will not find that their case differs much from a national case. In order to receive more than a minimal discount in their sentence, they will have to plead guilty/ admit their responsibility. If they do so and, depending on the outcome of negotiations, if they provide a statement on the facts of their case and maybe agree to testify against others, they may expect a sentence that is somewhat reduced, but may still be substantial. The exact extent of such discount depends on a variety of factors, which may include the strength of the prosecution case, their counsel’s abilities in negotiation, and whether the defendant has something to offer besides her plea/admission, such as testimony against other defendants. Finally, some defendants or suspects may be lucky enough that the worth of their testimony as an ‘insider witness’ is deemed to justify even further benefits. However, the extent to which they will in fact profit from such agreements may vary quite a lot, as can be seen by comparing the case of Gibril Massaquoi, who was not prosecuted at all, with the case of Michel Bagaragaza, in which the ICTR prosecution at least partly reneged on its promise to ‘not to detain or prosecute him on African soil’.11

3.  Particularly Active Defendants Finally, the situation is somewhat different for those defendants who wish to take a more active role in their defence, and particularly for ‘problem defendants’ who wish to directly attack the court. Most active defendants will find that the combination of restrictions to the right of self-representation and restrictions of the role of defendants represented by counsel forces them into a role that is rather passive compared to both common law and continental law proceedings.12 Particularly as far as ‘problem defendants’ are concerned, there is still a noticeable difference, but 10   The ad hoc Tribunals have acquittal rates rivaling those of national systems – see Iontcheva Turner (2008), 585–86. 11   See above 122–23, 132. Insider witnesses also run the risk of being murdered, as seen in the Uwilingiyimana case. 12   See above 89–90.

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Summary it is more in the nuances. These defendants may well be able to achieve a quite active role in their trial for quite some time. But there will generally, at some point in the trial, come a point where the court will have enough and will restrict their ability to participate actively in the trial, even if that may endanger the quality of the defence or restrict defendant rights.13

13   See above 89–90 as well as below 217–26. On the Šešelj case, which shows that a particularly ruthless and manipulative defendant may also be able to manoeuvre the court into a situation where, in order to safeguard its access to the case or its legitimacy, it will (have to) grant the defendant a particularly active role in the trial, see below 226–29.

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5 The Relationship between Criminal Trials and Historiography This chapter will very quickly introduce the debate on the relationship between criminal trials and historiography and note how this work aims to contribute to that debate. At the outset, however, I should note what I mean by historiography in this sense. The reference to historiography could mean several things: there is the claim, often voiced by supporters of the international criminal justice project or by the courts themselves, that their purpose is to establish the actual historical truth as a basis for education and reconciliation.1 There is the claim, levelled against the various courts to varying degrees, that they engage in manipulation of the historical record and/or in propaganda.2 Finally, there is the simple fact that courts will sometimes have to establish certain historical facts as a prerequisite to being able to answer specific legal questions.3 While the last necessity may often arise in international criminal trials, it is not what this book is about, and neither is it strictly about one of the other two claims. Rather, what I refer to as historiography is simply the fact that international criminal courts aim to, and in fact do, participate in the writing of history. Whether this is motivated by the simple goal of finding the historical truth or by ‘political’ or manipula­tive motives – or indeed whether one can always fully differentiate between these two motivations – is not relevant for the purpose of this study.

1   See, eg Wilson (2005), 923 et seq; the statement of the ICTY Prosecutor in the r 61 proceedings against Dragan Nikolić (Prosecutor v Dragan Nikoli´c (Transcript of 9 October 1995) IT-94-2, Trial Chamber, 59); as well as several statements in judgments concerning defendants who had pleaded guilty (Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), paras 80–81; Prosecutor v Momir Nikoli´c (Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), para 145; Prosecutor v Dragan Nikoli´c (Sentencing Judgment) IT-94-2, Trial Chamber (18 December 2003), para 3). 2   See, eg Mandel (2004), 152 et seq on the connection between the indictment of Slobodan Milošević by the ICTY and the NATO bombardment of Yugoslavia. 3   This, of course, applies to all trials, not only criminal trials of the kind dealt with here. On historical science in the context of trial evidence, see, eg Whinston (2002).

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Criminal Trials and Historiography

I.  Do Criminal Courts Write History? In debating the relationship between international criminal trials and historiography, the first question that arises is whether international criminal courts do engage in historiography. While there are some decisions by such courts which deny that historiography is a major goal of international criminal trials,4 it seems clear that international criminal courts do in fact engage in the writing of history. This follows already from the simple fact that the facts established in such trials concern events which are of interest for the history books. It follows also from goals of international courts and tribunals such as helping to achieve ‘national reconciliation’,5 which presupposes establishing what happened in the past so that these acts can be acknowledged and dealt with for the future.6 Accordingly, there are many statements both by international criminal courts and tribunals and by those supportive of their work which specifically and unequivocally note a historiographic function.7 A Trial Chamber of the ICTY noted, in Erdemovic´, that the Tribunal had a ‘duty to contribute to . . . establishing the truth behind the evils perpetrated in the former Yugoslavia’.8 A similar statement can be found in the Tribunal’s fifth annual report, according to which ‘ensuring that history listens is a most important function of the Tribunal’.9 The STL, in its second annual report, approvingly quoted a Chatham House report referring to ‘establishing a lasting peace and ending political violence by creating an impartial historical record based on evidence which has been tested in a court of law’.10 The goal of establishing an historical record has also on occasion been cited by members of the Tribunals in relation to procedural or substantive law questions (other than those considered in Part I of this book): In support of a request to refer the Dragomir Miloševic´ case to Bosnia under Rule 11bis, the OTPICTY argued that the alleged crimes concerned had already been considered in 4   See, eg Prosecutor v Karadži´c (Decision on the Accused’s Holbrooke Agreement Motion) IT-955/18, Trial Chamber (8 July 2009), para 46. 5   For the ICTR, see UN Security Council Resolution 955 (1994); for the Special Court for Sierra Leone, UN Security Council Resolution 1351 (2000). For the ICTY, the goal of reconciliation was not explicitly stated in UN Security Council Resolution 827 (1993), but has been accepted by several decisions of the Tribunal – see eg Prosecutor v Erdemovi´c (Sentencing Judgement) IT-96-22, Trial Chamber (5 March 1998), para 21; Prosecutor v Deronji´c (Sentencing Judgement) IT-02-61, Trial Chamber (30 March 2004), para 3. 6   Rauxloh (2010), 739–40 with references; Safferling (2009), 542; Møse (2010), 93, 99. See also ICTY, ‘Bridging the Gap Between the ICTY and Communities in Bosnia and Herzegovina’ Conference Proceedings, Prijedor, 25 June 2005, 73 (‘By establishing the facts of what happened, the Tribunal hopes to contribute to creating a historical record and bringing peace and reconciliation to the region’); Pocar (2010), 69. 7   Besides the documents in the following footnotes, see also Turković (2008), 29–32 with further references; Sluiter (2009), 231. 8   Prosecutor v Erdemovi´c (Sentencing Judgment) IT-96-22, Trial Chamber (5 March 1998). 9   Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc A/53/219, 1998, para 296. 10   STL, Second Annual Report (2010–11), 35.

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Do Criminal Courts Write History? the Galic´ trial and were thus now sufficiently ‘well documented’.11 Judge Meron, in a separate opinion arguing for a specific interpretation concerning modes of liability, argues that ‘the precision required by this approach will prove valuable to the historical record’.12 Statements focussing on the achievement and the legacy of the first generation of international criminal courts have also noted, among others, their contribution to writing the history of the relevant conflicts.13 Similar statements have also been made by politicians,14 NGOs and other institutions,15 as well as by academics.16 Even those who are sceptical towards an openly historiographic approach to international criminal justice, or cognizant of the limitations to such an approach, still recognise that historiography is by necessity a part of what international criminal courts do. It should be noted, however, that even those members of the Tribunals which argue that historiography should not be a major goal of the trials still acknowledge that establishing historical facts is nonetheless something these tribunals so. One example of such acknowledgment is a statement by Judge Byron of the ICTR, during a conference concerning the achievements of that Tribunal: while ‘the purpose of a criminal trial is to establish individual guilt, not to establish the historical truth about the conflicts’, the Tribunal nonetheless ‘establishes a factual record of the genocide and the atrocities to the extent that they are the framework of findings on individual criminal responsibility. These records deny the playing field to revisionists’.17 Similarly, Francois-Xavier Nsanzuwera of the ICTR Appeals Section notes that the ICTR’s mission ‘does not lie in writing “the history” of the genocide’, but also that ‘justice must allow remembrance of these dark days in humanity’.18 Finally, critics of the courts also note the historiographic impact of their trials. In discussing the ICTR prosecutor’s policy of not investigating reports of core 11   Prosecutor v Dragomir Miloševi´c (Decision on Referral of Case Pursuant to Rule 11bis) IT-9829/1, Referral Bench (8 July 2005), para 11. 12   Prosecutor v Radoslav Brd-anin (Judgment, Separate Opinion of Judge Meron) IT-99-36, Appeals Chamber (3 April 2007), para 7. 13   ICTY, Report of the President on the Conference Assessing the Legacy of the ICTY, 27 April 2010, para 9 (ICTY records as fodder for regional truth commissions, which could help in ‘arriving at a shared historical record of the conflict’), ICTY, ‘Some of the Tribunal’s Achievements’ available at: www.icty.org/sid/324 (‘important elements of a historical record of the conflicts’); ICTY and UNICRI, ICTY Manual on Developed Practices, 2009, para 73 (‘What may be only a footnote in a judgment can be the missing chapter of history for societies struggling to establish the truth’); Winter (2010), 117–18 on the records of the SCSL. 14   See, eg Turković (2008), 29 (Madeleine Albright on the ICTY’s purpose being to ‘establish the historical record before the guilty can reinvent the truth’). 15   See, eg OSCE Office for Democratic Institutions and Human Rights, ‘Supporting the Transition Process: Lessons Learned and Best Practices in Knowledge Transfer’ Final Report, 2009, 95 (‘ensuring that adjudicated facts are available to the Ministry of Education can ensure history textbooks are accurate’). 16   See, eg Joyce (2004), 484; on historiography as a goal of international criminal proceedings, see also Swoboda (2010), 100 with references. 17   ICTR, Conference Proceedings: ‘International Criminal Tribunal for Rwanda: Model or Counter Model for International Criminal Justice? The Perspectives of Stakeholders’ 9 July 2009, 15. See also Byron (2008), 269. 18   Nsanzuwera (2005), 948.

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Criminal Trials and Historiography crimes by the Rwandan Patriotic Forces, Luc Reydams notes a risk ‘that the ICTR would transform a long history of symmetrical barbarism, which stretches back as far as 1959, into a truncated history of asymmetrical conflict’.19

II.  Do Criminal Cases Lead to Bad History? Having established that international criminal trials necessarily involve an element of historiography, the next question is whether this should be a major concern of the courts. Should courts explicitly aim to establish facts for the history books, or should they concern themselves with simply finding on the guilt or innocence of individual defendants (and with historiographic achievements incidental to such findings, as noted by Judge Byron) and leave the history writing to others? This is something which neither the courts themselves nor academic commentators can agree on. As noted above, there are decisions of international tribunals which explicitly state that the trials do not concern themselves with history, but only with guilt or innocence,20 but there are also those which explicitly stress the historiographic impact of their findings.21 The academic debate on this question has been ongoing at least since Hannah Arendt’s reports on the Eichmann trial.22 Proponents refer, inter alia, to the value that the establishment of historical facts has for other goals such as reconciliation23 and to the sheer fact-finding powers of courts given their powers under criminal procedure.24 The main argument advanced by critics concerns the the quality of historiography that can be expected from criminal trials:25 criminal trials are about the establishment of the guilt or innocence of an individual, which leads to a very selective determination of the underlying facts.26 Trials are conducted by opposing parties which will usually have goals far removed from the establishment of historical truths.27 The limited temporal and/or territorial jurisdiction of international tribunals, as well as budgetary constraints mean that they will only be able deal with   Reydams (2005), 980.   See above n 4. 21   See the references above nn 7-10; Prosecutor v Deronji´c (Sentencing Judgement) IT-02-61, Trial Chamber (30 March 2004), paras 3, 241, 256–60. 22   Arendt (1963), 253. For a thorough overview of the debate with many references, see Wilson (2011), ch 1. 23   See above nn 6 et seq. For further references, see Swoboda (2010), 103. 24   See, eg ICTR, Conference on Challenging Impunity, Kigali Novotel 7–8 November 2006, ‘The ICTR Outreach Program: Integrating Justice and Reconciliation’, 1 (Statement by ICTR outreach advisor that ‘the Tribunal also functions as a guardian of history – judicial history – that is based on evaluation of sworn and tested testimony that gives a verified account of what happened. In many ways, the Tribunal’s records provide a truth that is unavailable from the work of historians’); Swoboda (2010), 109. 25   See, eg Turković (2008), 32–40; Wilson (2005), 909–22; Clark, Limits (2009), 474, all with further references. 26   Rauxloh (2010), 743–44; Damaška (2009), 178, 180; Swoboda (2010), 102–03; Ohlin (2009), 95. 27   Damaška (2009), 180; Turković (2008), 34–35. 19 20

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Does History Writing Lead to Bad Trials? parts of the historical events.28 Fair trial considerations may lead to the exclusion of historiographically valuable evidence.29 In addition, some critics also make the normative claim that courts should not engage in historiography because their official function and the finality of their judgments are incompatible with the way academic discourse on historical facts is to be conducted.30 A final question asked by critics is whether the historical facts established in trials are accepted as such by the affected groups – an empirical study of the ICTY’s impact on ‘ordinary people’ in Bosnia found that despite the Tribunal’s contributions to the historical record, it was still ‘extremely difficult to find a version of “truth” upon which everyone in BiH agrees’.31

III.  Another Angle: Does History Writing Lead to Bad Trials? Beside these concerns about the quality of the historiography provided by criminal trials, one may also be concerned that historiographic aspirations may have a negative impact on the quality of the criminal justice provided by international courts.32 The following chapter will consider the question from an angle corresponding to this second type of criticism, asking what impact historiography has on the judicial process, specifically on the defendant’s role in that process. Aspects of criminal procedure concerning the position of the defendant in the the proceedings are among those aspects most likely to be influenced by considerations of historiography – after all, the defendant will often disagree with the view of history as propounded by the prosecution and/or court. Now, at first glance this difference in views of history need not necessarily influence the legal aspect of the trial – after all, disagreement, even fundamental disagreement, between the defendant and the prosecution and/or court as to what happened is not an unusual occurrence in criminal trials. Thus courts could simply have the defendant state her view of the history and consider both it and the view of the prosecution against the evidence, content in the knowledge that its judgment will be the result of a rigorous, adversarial process. However, the final judgment is not the only way in which international criminal justice affects the views on history. Criminal justice is also about the day-to-day struggle in the courtroom, followed intensely by those in the public gallery and by thousands in the region via radio, television and internet live stream, reported on intensively by newspapers in the region and the world.

  Rauxloh (2010), 742–43.   Rauxloh (2010), 744; Turković (2008), 37–38. 30   Damaška (2009), 180; Swoboda (2010), 103 with references; Turković (2008), 39, 42–43 with references. 31   Clark, Limits (2009), 476–79. 32   See Turković (2008), 40–42; Swoboda (2010), 104 et seq. 28 29

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Criminal Trials and Historiography This theatrical aspect33 may have a much more immediate effect on the public’s view of history. Testimony by crime victims and video evidence may be a powerful force leading to public acknowledgement that certain crimes had, in fact, been committed. This effect was felt in the Miloševic´ trial when a video was shown of Serb paramilitaries executing men and boys from Srebrenica. Although not admitted into evidence, it: [H]ad an enormous impact on Serbia: having been shown at the trial it was aired as news on a number of Serbian national television stations and reached a broad audience, sending shockwaves through society. The airing of the video engendered a great deal of national discussion, forcing people to confront the fact of atrocities they had previously denied.34

Of course, the theatrical aspect may also have the opposite effect, as it means that the defendant’s view of history will not only be considered by the judges in reaching a judgment, but received directly by the broader public. The defendant may use this opportunity to mount a direct attack against the court and the view of history it stands for. Koskenniemi describes this strategy and its possible results in the Miloševic´ case thus: Miloševic´ . . . seeks to write the history of the most recent Balkan wars as a continuation of the Great Power policy that had over and over again torn the peninsula into pieces, throwing its peoples against each other as part of a ruthless game of European domination. When the debate is moved at that level, then of course it becomes much harder to receive closure by the trial. The opposing evaluations and assessments about how to think about Balkan history will not cease to exist when the judgement is read. The judgement will not provide the only prism through which the events succeeding the dissolution of the former Yugoslavia will be read. On the contrary [it] will become part of the complexities of Balkan history. If Miloševic´ succeeds in becoming a representative of one, perhaps disputed but still respectable view of that history, then he will have attained two victories. First, [the] judgement will seem to manifest only one among several interpretations of the past and to receive its validity above all from the power of the forces that were behind it. It would be no more than ‘victor’s justice.’ . . . It would seem that he was found guilty, as Göring put it in Nuremberg, ‘because he was on the side that lost the war.’ In the second place, by articulating and giving concrete appearance to the particular historical vision that he claimed was on trial, he will have strengthened that vision, providing it with the aura of an iconoclasm that seemed critical enough to have been subjected to the extraordinary measure of a formal trial.35

Fear of such attempts at manipulative historiography by the defendant may, of course, impact the legal aspect of the trial in that courts may be tempted to reduce 33   On criminal trials as theatre, see Steinitz (2005), as well as (in)famous defence counsel Jacques Vergès, for whom ‘a good trial is like a Shakespeare play, a work of art’ (Der Spiegel, 21 November 2008). 34   HRW, ‘Weighing the Evidence: Lessons from the Slobodan Milošević Trial’ December 2006, 14. 35   Koskenniemi (2002), 31–32.

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Does History Writing Lead to Bad Trials? the opportunities afforded to the defendant to engage in such attempts. It is in this context that Martti Koskenniemi has warned that the historiographic aspect may put international criminal trials in danger of devolving into ‘show trials’.36 The next chapter will attempt to answer whether such fears are well-founded. Of course, if it is relevant how courtroom proceedings are conducted and what role the defendant may play in them, then it is also relevant whether the courtroom proceedings (in the presence of the defendant) will be conducted at all – this explains the relevance of the legal aspects considered in chapter 1. Finally, the battle of the various views on history may be conducted not only in the courtroom, but also contemporaneously in other venues such as the press – therefore the possibility of pre-trial release and the regimes applicable to those detained or released, as discussed in chapter 3, are also of relevance. Finally, it should be noted that this focus on the position of the defendant is not meant to deny that historiographic considerations may influence the conduct and outcome of the trial in other ways37 – or indeed that the mere fact that a criminal trial is held is both influenced by, and an influence on, historiography. As Koskenniemi notes: To accept the terms in which the trial is conducted – what deeds are singled out, who is being accused – is to already accept one interpretation of the context among those between which the political struggle has been waged. This is . . . a situation in which to accept a method or criterion of settlement is already to have accepted the position of one’s adversary.38

It should also be noted in passing that the influence of historiographic considerations on the interpretation of procedural rules is not limited to international criminal courts, but may arise in any (national or international) court proceeding. One example is the debate whether the ICJ, in the Bosnia v Serbia case,39 should have demanded access to unredacted versions of documents of the Supreme Defence Council of the Federal Republic of Yugoslavia which had been disclosed to the ICTY.40 After all, having access to these documents might not only have impacted on the court’s answer to the legal question whether Serbia had perpetrated genocide, but might also have allowed it more fully and more accurately to lay down the history of events leading to the mass killings in Srebrenica.

  ibid, 35. See also Buruma (1994), 142.   Two examples: a claim can be made that substantive law provisions or rules delimiting the courts’ jurisdiction can be traced back to considerations of historiography – see Elberling (2008), 532–35. As to the conduct of trials, it has been argued that the timing of the Milošević indictment coincided with the political agenda of NATO during the bombardment of Serbia – see Mandel (2004), ch 5. 38   Koskenniemi (2002), 17. See also Swoboda (2010), 113–15. 39   ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, paras 205–06. 40   See, eg Milanovic (2007), 677–80; Goldstone and Hamilton (2008), 107–08 with references. 36 37

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6 Tracing the Influence of Historiography on the Law This chapter sets out to determine whether the ways in which international criminal procedure differs from national procedures and human rights law can be traced back to the influence of historiography.

I. Introduction At the outset, it should be stated that proving such an influence, particularly with respect to individual decisions, is a rather difficult task for a number of reasons: first of all, just as almost all decisions1 made in criminal procedure, those concerning the role of the defendant require the weighing of several, often conflicting, trial rights and other legal interests. A decision whose outcome is aligned with reasons of historiography may be motivated, partly or entirely, by other factors. Furthermore, a decision motivated by reasons of historiography may well be explained or justified in terms of efficiency, expeditiousness, fairness or similar goals. In addition, where decisions are motivated by factors other than those made explicit in the official reasoning, such factors too may be multi-faceted. A decision that appears to be motivated by reasons of historiography may in fact be motivated by other, somewhat related reasons. To give an example, the decision to assign counsel to a self-representing defendant who remains absent from the trial, instead of forcing the defendant to attend,2 may well be motivated by reasons of historiography as counsel are less likely to directly attack the historiographic function of the court.3 On the other hand, it may also be motivated by the simple fact that it is less stressful for judges to deal with counsel, who have a similar professional background and who usually are more cooperative and courteous than the defendant. Finally, there are some motivations which by their nature combine considerations of historiography with other considerations. Thus safeguarding a court’s reputation is a historiographic concern insofar as the court’s historiographic 1   The following refers only to (court) decisions interpreting the applicable legal texts, but the reasoning applies equally to those provisions themselves. 2   See below 218–19. 3   See Iontcheva Turner (2008), 574, fn 211; 583, fn 252.

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The Aspects in Which Differences Arise record is less likely to be taken seriously by future generations if its reputation is sullied by, for example, perceptions of bias or unfairness. But safeguarding a court’s reputation is, of course, also about ensuring that its legal decisions are heeded, as well as about the judges’ simply human wish to have their actions looked upon favourably by others. Similarly, terminating proceedings in case of illness of the defendant means that the court would not only miss the chance to lay down the history as it concerns the acts of the defendant, but also the chance simply to pass a judgment on her guilt or innocence. While all this makes proving the extent to which differences in criminal procedures are based on reasons of historiography a difficult endeavour, there are nonetheless are a number of ways in which it can be shown that the differences found in the preceeding chapters are in fact based, to some extent, on reasons of historiography. First, another look at the conclusions in chapter 4 show that international criminal procedure differs most markedly from national procedures and human rights law in situations where the historiographic mission of international courts is directly engaged, either positively or negatively. Second, a close reading of some decisions and provisions may hint at their historiographic background, as may a look at certain changes in the law brought about either by a change in interpretation of existing provisions or by outright reform. This is even truer for certain decisions concerning ‘problem defendants’, that is those defendants who most directly challenge the court and its historiographic function. Finally, many statements, both by court organs and by academic and activist supporters of the courts, justify or call for certain interpretations of the law in terms which, directly or indirectly, reference reasons of historiography.

II.  The Aspects in Which Differences Arise First of all, looking at the ways in which international criminal procedure differs from the benchmark of national procedures and human rights law, it is striking that all these differences align with international criminal courts’ historiographic mission.

1.  The Courts’ Access to the Historiographic Opportunity Presented by the Case – Fitness, Absence, Detention As far as courts’ access to the case is concerned, this is, of course, also a question of their access to the opportunity to participate in the writing of the history of the conflict as far as that defendant is concerned.4 Thus the courts’ general reluctance 4   That courts themselves, as well as their supporters, sometimes describe their specific types of in absentia proceedings in terms of historiography is shown below 230–31.

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Tracing the Influence of Historiography to ‘let go’ of defendants/cases can also be explained in terms of their reluctance to let go of this historiographic opportunity. This is particularly striking in the Rasim Delic´ case at the ICTY: after the defendant had died while the appeal was pending, there was hardly any conceivable reason for the Appeals Chamber to declare the trial judgment as final (rather than just close proceedings) if not for a wish that the facts found in the trial judgment should ‘stand’ for posterity.5

2.  The Courts’ Privileged Role in the Historiographic Debate – Conditions of Detention or Release The same can be said for the stringent conditions imposed in order to ensure that the facts of the case not be discussed by the defendant in other fora: as shown by the fact that defendants’ access to other media is considered not only a danger to sub judice proceedings, but to the courts’ mandate, this aspect, too, shows international courts worried about the ‘theatrical’ aspect of the historiographical debate contained in a trial.6 This is especially true with regard to the relationship between the SCSL and the SL TRC: given that the TRC would, at first glance, appear to be a rather ‘trustworthy’ institution, the reluctance of the SCSL to grant the Commission access to its defendants seems rather surprising. This becomes more understandable, however, when one considers that the TRC was explicitly given a history writing function and that its proceedings were attentively followed by Sierra Leoneans, such that a TRC hearing of the defendants would have endangered the Special Court’s position with regard to both the establishment of historic facts and the ‘theatrical’ aspect of proceedings.7 The theory that conditions of release are also influenced by considerations of historiography may also go some way towards explaining the treatment of Haradinaj – apparently, there was a feeling within the court that such statements as he would make during release would be generally in line with the Tribunal’s view of its mandate.8

3.  The Struggle Over Historiography as Conducted in the Courtroom Finally, the differences found in the conduct of courtroom proceedings are also in line with an expectation that procedure is influenced by considerations of historiography. The ‘standard’ cases, in which there is no significant difference between international and national procedures, are also the cases in which the defendant does not pose a specific challenge to the historiographical function of the court.   See also Bohlander (2010), 508.   On specific statements in the context of provisional release, see below 234. 7   This aspect is considered in more detail below 212–14. 8   See Gaynor (2009), 204–06, who frames the issue in terms of the – arguably closely related – goal of ensuring regional peace and security. 5 6

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A Close Look at Decisions and Provisions As to the case of cooperative defendants, they do aid the courts’ historiographical mandate, which explains that concessions are made to them. On the other hand, the historiographic impact of their statements should not be valued too highly either, especially where charge bargaining occurs and leads to a restriction of the historic facts that are considered and thus established.9 This explains that the concessions made are not all that high when compared to national proceedings. Only a very limited number of defendants may hope for a more substantial degree of leniency in exchange for cooperation – it seems that this basically concerns defendants whose admission of certain crimes is of particular importance for the historiographic mission of the court.10 Finally, particularly active defendants may possibly pose a bigger challenge to the courts’ historiographic mission, accordingly it is no surprise that the differences to national procedures are more striking here. This is especially true with regard to their relationship vis-à-vis counsel, given that the delimitation of tasks between counsel and defendant may have a decisive impact on the extent to which an attack on the historiographic aspect of the case is mounted – a survey of defence counsel before international tribunals shows that the vast majority would either counsel their clients against making ‘political statements’ or would refuse outright to make such arguments.11

III.  A Close Look at Some of the Decisions and Provisions 1.  Negotiated Justice at the ICTY – Historiographically Valuable Guilty Pleas Given Particular Weight Among the decisions which carry their historiographic influence on their sleeve are some of the decisions on negotiated justice. As noted above, the rewards for negotiated justice before the ICTY are, generally speaking, rather limited: significant charge bargaining does not take place often, and as far as sentence bargaining is concerned, the average reduction in sentence is not very substantial. On the other hand, the distribution of that reduction is of interest. The percentage of very short sentences is not higher for those who had pled guilty than for other defendants, again showing that guilty pleas do not necessarily lead to severe sentence reductions. However, the percentage of particularly high sentences of 20 years or more is significantly lower for those who have pleaded guilty. This might indicate that for high-ranking defendants who ordinarily face a very long sentence, but who are also able to offer a statement of particular historiographic value, pleading guilty may be quite worthwhile, while it may not make much of a difference for the ‘small fry’, whose guilty pleas save judicial resources but are not particularly important from a historiography point of view.   See, eg Tieger and Shin (2005), 670–71; Clark, Plea Bargaining (2009), 426–28.   See below 209–12 on the cases of Plavšic´ and others.   Iontcheva Turner (2008), 574, 583.

9 10 11

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Tracing the Influence of Historiography This indication is sustained by a look at the cases of defendants who pleaded guilty and offered the most historiographically valuable statements, namely former Republika Srpska President Biljana Plavšic´ and three high-ranking officers of the Bosnian Serb military involved in the mass killings in and around Srebrenica. Plavšic´ was the first and so far only member of the Republika Srpska Presidency to admit to crimes committed by and on behalf of that body; Dragan Obrenovic´, Momir Nikolic´ and Dragan Nikolic´ were the first high-ranking Bosnian Serb army officers to admit to the mass killings in and around Srebrenica.12 First of all, three of these cases led to very significant charge bargaining – in the Plavšic´, Obrenovic´ and Momir Nikolic´ cases, a number of charges, including genocide charges, were withdrawn in exchange for a plea of guilty on a single count of persecution.13 No charge bargaining occurred in the Dragan Nikolic´ case.14 Second, contrary to most other cases concerning guilty pleas, the Chambers in those cases attached numerical values to sentencing factors, allowing an approximate calculation of sentence reductions achieved in an individual case. Thus in determining the sentence for Biljana Plavšic´, the Chamber noted that she had been found guilty of ‘crimes of the utmost gravity’ which called for a ‘substantial sentence of imprisonment’.15 Taking into account her advanced age of 72 years, guilty plea and very positive general behaviour since the end of the conflict, the court sentenced Plavšic´ to 11 years.16 It noted that the guilty plea and ‘acknowledgement of responsibility, particularly in the light of her former position as President of Republika Srpska, should promote reconciliation in Bosnia and Herzegovina and the region as a whole’ and accordingly gave ‘significant weight to the plea of guilty’.17 For Momir Nikolic´, the Chamber noted that the sentence would ordinarily have been between 20 years and a life sentence based on the severity of the crime alone, and also found two aggravating circumstances. Having taken into account the guilty plea, the Chamber sentenced him to 27 years,18 which was then reduced to 20 years on appeal.19 In determining the sentence, the Trial Chamber explicitly 12   Prosecutor v Momir Nikoli´c (Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), paras 76, 142 et seq; Prosecutor v Obrenovi´c (Sentencing Judgment) IT-02-60/2, Trial Chamber (10 December 2003), paras 107, 111 et seq; Prosecutor v Plavši´c (Sentencing Judgment) IT-00-3940/1, Trial Chamber (27 February 2003), paras 74 et seq. 13   Prosecutor v Momir Nikoli´c (Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), paras  12–13; Prosecutor v Obrenovi´c (Sentencing Judgment) IT-02-60/2, Trial Chamber (10 December 2003), paras  13, 16; Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), para 5. 14   Prosecutor v Dragan Nikoli´c (Sentencing Judgment) IT-94-2, Trial Chamber (18 March 2003), para 36. 15   Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), para 60 (the Chamber did not follow the prosecution, who had stated that without mitigating factors, a life sentence would have been appropriate). 16   Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), para 132. 17   ibid, paras 80–81. 18   Prosecutor v Momir Nikoli´c (Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), paras 124, 139, 183. 19   Prosecutor v Momir Nikoli´c (Judgment on Sentencing Appeal) IT-02-60/1, Appeals Chamber (8 March 2006), disposition.

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A Close Look at Decisions and Provisions stated that ‘The recognition of the crimes committed against the Bosnian Muslim population in 1995 – crimes that continue to have repercussions into the present – by a participant in those crimes contributes to establishing a historical record’.20 In the case of Dragan Obrenovic´, the Chamber indicated a sentencing range of 20 to 40 years based on severity of the crime and also found an aggravating circumstance, but sentenced him to 17 years.21 For Dragan Nikolic´, the Chamber found that the severity of the crime in connection with aggravating circumstances called for life imprisonment. Taking into account his guilty plea, it sentenced him to 23 years,22 this was reduced to 20 years on appeal.23 Attributing numerical values24 to these factors results in the following picture: Convicted Person Plavšic´

Ordinary Sentence

Final Sentence

Reduction

30 years

11 years

63 %

Obrenovic´

31.5 years

17 years

46 %

M Nikolic´

35.5 years

25 years

30 %

45 years

20 years

56 %

35.5 years

18.25 years

49 %

D Nikolic´ Average

Figure 5: Sentence Reduction In Cases of High-Ranking Defendants 20   Prosecutor v Momir Nikoli´c (Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), para 145. 21   Prosecutor v Obrenovi´c (Sentencing Judgment) IT-02-60/2, Trial Chamber (10 December 2003), paras 90, 103, 156. 22   Prosecutor v Dragan Nikoli´c (Sentencing Judgment) IT-94-2, Trial Chamber (18 March 2003), para 214 and disposition. 23   Prosecutor v Dragan Nikoli´c (Judgment on Sentencing Appeal) IT-94-2, Trial Chamber (4 February 2005), disposition. 24   Some explanations on how I arrived at these numbers: as far as the ‘ordinary sentence’ is concerned, the Plavšiic Chamber stated that  her crimes were ‘very serious’, but that  life imprisonment would not be called for – I read this to mean a sentence of about 30 years. In Obrenovi´c and Momir Nikoli´c, the Chambers indicated a sentencing range for the gravity of the crime and did so before considering aggravating circumstances. For Obrenovi´c, the range given was 20 to 40 years, and there was one additional aggravating circumstance. I increased the lower end of the range by three years for the aggravating circumstance, arriving at a range of 23 to 40 years, and chose the middle of this range, arriving at a sentence of 31.5 years. For Momir Nikoli´c, the sentencing range of 20 years to life plus two aggravating circumstances led to a revised range of 26 years to life. Substituting 45 years for the life sentence (see above, ch 2, fn 461) and again choosing the middle of the range resulted in a sentence of 35.5 years.    As far as the final sentences are concerned, in the Momir and Dragan Nikoli´c cases, I had to consider whether to take into account the sentences passed by the Trial Chamber or those after appeal. In Momir Nikoli´c, the appeal was successful based on two errors concerning severity of the crime and aggravating circumstances and one error concerning mitigating circumstances ((Judgment on Sentencing Appeal) IT-02-60/1, Appeals Chamber (8 March 2006), paras  63, 73, 114). One option would have been to take into account the final sentence of 20 years, but I also tried to estimate the ordinary sentence the Trial Chamber would have arrived at had it avoided the errors concerning severity and aggravating circumstances. Instead I opted to take into account the ordinary sentence given by the Trial Chamber, but to estimate what final sentence it would have arrived at had it avoided only the error concerning mitigating circumstances. I estimated this to be much closer to the original 27 years than to the revised sentence of 20 years, ie 25 years. In Dragan Nikoli´c, the reduction of sentence

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Tracing the Influence of Historiography This shows that high-ranking defendants may not hope for a two or three year ‘slap on the wrist’,25 but that they may indeed hope to have their sentence almost cut in half in exchange for pleading guilty.26 As a final comparison, the only other defendant for whom the Chamber has attached numbers to sentencing factors is Miroslav Bralo, who rank-wise belongs to the ‘small fry’. Here the Chamber reduced a sentence of 25 years, called for by the severity of the crime and the aggravating circumstances, to 20 years based on the guilty plea.27 This is a reduction of 20 per cent, close to the average for all defendants. A recognition of the fact that considerations of historiography may influence legal decisions may probably also be detected in the decision in Plavšic´ that, due to the ‘exceptional circumstances’ of the proceedings, that is the special value of her guilty plea which had been discussed between the parties, the defendant was allowed to remain on provisional release after having pleaded and been found guilty.28

2.  The Special Court for Sierra Leone and the Sierre Leone Truth and Reconciliation Commission: Struggles over Who Gets to Write History The decisions of the Special Court for Sierra Leone on its relationship with the TRC also show the influence of historiography quite clearly. Looking at the extensive debates with the TRC on procedural aspects,29 the issue could still be framed as part of an institutional turf war. This reading would also be supported by what transpired after the decisions denying defendants’ request for a public hearing: the Court released a Press Release under the heading ‘Sam Hinga Norman May Testify’.30 The TRC, fearing that this might be misconceived as meaning that the TRC request had been granted, issued a Press Release of its own, which prompted another Press Release by the Court and another TRC reply.31 The TRC also   n appeal was due to an error of the Trial Chamber in sentencing that occurred after the considerao tion of mitigating circumstances (see (Judgment on Sentencing Appeal) IT-94-2, Appeals Chamber (4 February 2005), para 97), so here I decided to simply take into account the revised final sentence of 20 years. 25   Wording borrowed from ICTY, Prosecutor v Gali´c (Judgment) IT-98-39, Appeals Chamber (30 November 2006), dissenting opinion of Judge Meron, para 10. 26   It should be noted that the prosecution had in two cases argued for even shorter sentences: in Dragan Nikoli´c, the prosecution had proposed a sentence of 15 years instead of the 23 imposed by the Trial Chamber ((Sentencing Judgment) IT-94.2, Trial Chamber (18 March 2003), paras 175–284), in Momir Nikoli´c, it had proposed a sentence of 15 to 20 years instead of the 27 imposed by the Trial Chamber ((Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), paras 180, 183). 27   Prosecutor v Bralo (Sentencing Judgment) IT-95-17, Trial Chamber (7 December 2005), para 95. 28   See Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), para 4. 29   See above 187–88. 30   SCSL, Press Release of 28 November 2003, ‘Sam Hinga Norman May Testify’. This Press Release is not available on the website of the Special Court. 31   TRC, Press Release of 1 December 2003, ‘Special Court Denies Hinga Norman’s Right (and That of the Other Detainees) to Appear Publicly Before the TRC’, partly reprinted in: SL TRC Report, vol 3B, ch 6, para 172; SCSL, Press Release of 3 December 2003, ‘The Special Court Responds to TRC Statement’; TRC, Press Release of 3 December 2003, ‘TRC Stands by its Statement on Sam Hinga Norman’, reprinted in SL TRC Report, vol 3B, ch 6, para 173.

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A Close Look at Decisions and Provisions included a very critical description of its relationship to the Special Court in its report, noting that by requesting a public hearing, the defendants had merely ‘assert[ed] their rights to be heard in a manner like that accorded to all other Sierra Leoneans’.32 What is interesting, first of all, is that from a legal point of view, both Judge Thompson’s decision and the President’s decision are less than convincing. Judge Thompson’s central argument was the following: the TRC had stated that it wished to question Norman because he had played a central role in the conflict. According to the Judge, this meant that he was to be questioned ‘as a perpetrator of abuses and violations’. This would be in violation of Norman’s fair trial rights, including the presumption of innocence.33 This argument not only failed to take into account that Norman himself had wished to appear before the TRC but most importantly, it totally misstated the applicable law at the TRC: the Commission could hear not only victims and perpetrators, but also ‘other interested parties’, and other high-ranking politicians who had played a major role in the conflict had in fact been interviewed under this rubric.34 William Schabas, one of the TRC’s international members, accordingly described Judge Thompson’s argument as ‘bizarre’.35 The same is true of the additional argument in Gbao: here, the defendant had laid down conditions for the hearing, including a right to refuse to answer questions. In Judge Thompson’s view, this showed that the hearing endangered Gbao’s fair trial rights.36 In fact, it would seem that the opposite is true: if the defendant is guarded against self-incrimination by, inter alia, a right to refuse to answer questions, this shows that fair trial rights are in fact upheld by the TRC. The President’s decision also showed some legal peculiarities: first of all, the procedure in which he heard the parties was rather peculiar.37 What is more, as noted by the TRC,38 it is peculiar that he suggested, as an alternative to a public hearing, that the defendants could provide confidential testimony to the TRC – after all, this option was in fact precluded by the Court’s own Practice Direction. A likely reason for refusing the audiences concerned the fear that the defendants would use their hearings before the TRC to challenge the prevailing view on the history of the conflict. Gbao had stated that he wished to contribute an alter  ibid, vol 3B, ch 6, para 77.   Prosecutor v Norman (Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Sam Hinga Norman) SCSL-04-8, Judge Thompson (29 October 2003), paras 10–16. 34   s 7 (1) TRC Act; Prosecutor v Norman (Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone (‘TRC’ or ‘the Commission’) and Chief Sam Hinga Norman JP against the Decision of His Lordship, Mr. Justice Bankole Thompson Delivered on 30 October 2003 to Deny the TRC’s Request to Hold a Public Hearing with Chief Sam Hinga Norman JP) SCSL-94-8, President (28 November 2003), para 10. 35   Schabas (2004), 1095–96. For another criticism of the judge’s ‘novel’ interpretation of provisions of the TRC Act, see SL TRC Report, vol 3B, ch 6, para 132. 36   Prosecutor v Gbao (Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Augustine Gbao) SCSL-04-9, Judge Thompson (3 November 2003), paras 11–18. 37   See SL TRC Report, vol 3B, ch 6, paras 144–63. 38   ibid, vol 3B, ch 6, para 169. 32 33

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Tracing the Influence of Historiography native view on the Sierra Leonean conflict – not as a ‘war over diamonds’ as seen by international commentators but rather as based on ‘friction between rural Sierra Leone and urban Freetown’ – and that the real story of the conflict ‘belong[ed] to the people of Sierra Leone’.39 The President quite clearly felt that, as far as the defendants were concerned, the story of the conflict belonged to the Court before all others. In the hearing leading to that decision, he professed to have ‘visions . . . of Goering at the German TRC of 1946 – giving radio and TV performances of his version of the war . . . It makes me feel uncomfortable’.40 In the decision, he envisaged the TRC hearing as follows: A man in custody awaiting trial on very serious charges is to be paraded, in the very court where the trial will shortly be held, before a Bishop rather than a presiding judge and permitted to broadcast live to the nation for a day or so uninterrupted. . . . the first day of uninterrupted testimony may resemble more a very long party political broadcast.41

If any aspect of the TRC-SCSL kerfuffle violated the presumption of innocence, it was arguably the comparison to Goering. These statements show quite clearly that the major motivation for the President’s refusal was to ensure that the history of Norman’s role in the conflict was not to be written by someone else before the court could do so, and particularly not by Norman himself.

3. Trials in absentia at the Special Tribunal for Lebanon: Pre-Judgments of the History Written into the Statute Article 22 StSTL on trials in absentia shows how considerations of historiography can even influence the drafting of a tribunal’s statute. The Secretary-General, in his report to the Security Council, stated that this provision ‘takes account of the relevant case law of the European Court of Human Rights, which determined the regularity of trials in absentia in full respect for the rights of the accused’,42 and some in the literature share this view.43 However, a closer look reveals several aspects which might actually clash with Article 6 ECHR as interpreted by the ECtHR.44   ibid, vol 3B, ch 6, para 124.   ibid, vol 3B, ch 6, para 155. 41   Prosecutor v Norman (Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone (‘TRC’ or ‘the Commission’) and Chief Sam Hinga Norman JP against the Decision of His Lordship, Mr. Justice Bankole Thompson Delivered on 30 October 2003 to Deny the TRC’s Request to Hold a Public Hearing with Chief Sam Hinga Norman JP) SCSL-04-8, President (28 November 2003), para 30. 42   SG Report on STL, para 33. The Secretary-General did not explain why he referred to the ECHR and not the ICCPR, despite dealing with trials concerning a non-European country. This is probably due to the fact that the two rights are substantially very similar and the Strasbourg jurisprudence on Art 6 ECHR is much more detailed than that of the HRC on Art 14 ICCPR. For the same reason, I will also refer to the jurisprudence of the ECHR when dealing with the human right to be present at one’s trial. 43   Gaeta (2007); Aptel (2007). For a more critical view, see Wetzel and Mitri (2008), 107–08. 44   For further aspects of Art 22 StSTL which clash with Art 6 ECHR, see Jordash and Parker (2010). 39 40

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A Close Look at Decisions and Provisions First of all, Article 6 ECHR only allows trials in absentia if the defendant chooses not to attend the trial; if her absence is due to circumstances beyond her control, in absentia proceedings are not permitted.45 This requirement may be violated by Article 22(1)(b) StSTL: while it is likely that a state which does not hand over a defendant to the STL does so with her consent or even at her express wish, cases may also arise where the state prevents a defendant who is willing to appear before the STL from doing so.46 A similar problem may arise concerning notice to the defendant. Article 22(2) (a) allows the Tribunal to discharge this duty, inter alia, by way of communication to the defendant’s state of residence or nationality. While one would ordinarily expect that state to pass on such notice to the defendant, it is not certain that this will always happen. Similarly, publication of the indictment in the media need not necessarily lead to actual knowledge of the defendant.47 Article 6 ECHR, however, requires, first of all, actual knowledge of the defendant that proceedings against her have begun, and secondly it generally requires that such knowledge be the result of direct notification.48 It is highly doubtful whether notification by indirect procedures which are not certain to reach the defendant49 would satisfy the ECtHR. Finally, the provision flatly refusing retrials to defendants who have been represented by counsel of their choice may also clash with the requirements of Article 6. Under the Strasbourg jurisprudence, even defendants who have been represented by counsel must be granted a retrial provided that they show good cause for their absence.50 Of these three aspects in which Article 22 is arguably in violation of Article 6 ECHR, two – the power to conduct in absentia proceedings in all instances where the defendant is not handed over by the state authorities concerned and the fact that a communication to the state suffices to discharge of the duty to notify the defendant of the indictment – seem to be based on a presumption of collusion between defendants and their home state in refusing to cooperate with the Tribunal. Such an assumption, of course, may well be the result of a second, underlying assumption, namely that of state involvement in the crimes dealt with by the Tribunal. This assumption, finally, shows the historiographic nature of the STL trials. At the same time, it also shows a certain pre-judgment of part of the historical record, in that the Statute of the Tribunal contains an implicit acknowledgement of a suspicion of collusion between the nationals of certain states and their respective governments.   ECtHR, FCB v Italy (1991) Series A no 208-B, para 33.   Similarly Gaeta (2007), 1171–72. 47   Of course, given the high profile of the case when compared to an average national case, it seems much more likely that such publication would not escape the notice of the defendant. 48   Sejdovic v Italy App no 56581/00 (ECtHR, 10 November 2004), paras 34–36; ECHR 2006-II 241 (Grand Chamber), paras 98–99. 49   Only in the case of fugitives is this obligation complemented by the requirement in Art 22(1)(c) StSTL that ‘all reasonable steps have been taken to . . . inform . . . her of the charges’. 50   Medenica v Switzerland ECHR 2001-VI 109, paras 57 et seq. 45 46

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Tracing the Influence of Historiography The Court itself has also referenced historiographical considerations: in an order of 18 August 2011 which began the process of consideration of in absentia proceedings in the Ayyash et al case, the President noted that: The acts charged in the indictment and their implications have had a serious impact on Lebanese society and have even been considered a threat to international peace and security by the UN Security Council. A trial – even one conducted in the absence of the accused – is a requisite step towards restoring in the long run the social peace disturbed by these crimes, with their persistent adverse consequences for the whole fabric of Lebanese society.51

4.  Reforms of the Rules in Reponse to Changing Historiographic Needs Certain reforms of the procedural rules can also be shown to be reactions to needs arising out of the historiographic mission. Thus at the ICTY, Rule 45ter RPE allowing imposition of counsel ‘in the interests of justice’ was very likely introduced in preparation for the case of Radovan Karadžic´, who was expected to use self-representation for a direct attack on the legitimacy and historiographic mission of the ICTY.52 At the SCSL, judges introduced Rule 11bis RPE-SCSL, allowing referrals of indictments to national courts. This rule can only be meant to deal with the case of Johnny Paul Koroma, the only remaining indictee not tried or on trial at the Special Court.53 If Koroma is found to be alive after the end of the Special Court’s existence, he will nonetheless be tried. Of course, one may doubt whether the Court would have bothered if Koroma had just been any defendant, particularly given a widespread belief that he is deceased anyway. However, given Koroma’s former position as Chairman of the AFRC and head of state of Sierra Leone,54 it seems particularly important that the history of his involvement in the Sierra Leonean conflict be written. Similarly, Rule 71bis RPE-ICTR, which allows for the preservation of evidence against defendants who have not yet been apprehended, ensures that they may be tried later on either by the ICTR or by another court and thus that a court may contribute to the historiographical record of their involvement in the Rwandan genocide.

51   Prosecutor v Ayyash et al (Order Pursuant to Rule 76(E)) STL-11-01, President (18 August 2011), para 22. 52   See the various statements quoted in IWPR, Tribunal Update No 581, 12 December 2008, ‘Doubts Raised About Rule Letting Judges Impose Counsel’. 53   See Winter (2010), 118; www.sc-sl.org/CASES/JohnnyPaulKoroma/tabid/188/Default.aspx. 54   See SCSL, Prosecutor v Koroma (Indictment) SCSL-03-03, Prosecutor (7 March 2003), para 19.

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‘Problem Defendants’

5.  Changed Interpretation of the Rules Based on Changing Historiographic Needs Finally, some changes in the interpretation of certain provisions may also be explained on the basis of historiographic considerations. One example of a change related not directly to history writing, but generally to the court’s mandate, is the change in interpretation of Rules 89(F) and 92bis RPE-ICTY, concerning witness testimony introduced in writing, by the ICTY Appeals Chamber in light of the Completion Strategy.55 These rules had earlier been interpreted as not allowing for the introduction in writing of testimony which described conduct proximate to the conduct of the defendant as charged in the indictment.56 The Appeals Chamber reversed that interpretation, holding that such testimony, too, may be introduced in written form under certain conditions.57 Judge Hunt criticised the majority for a ruling going against both the wording and the purpose of the rules, as identified in its earlier decisions, and for the fact that it: [R]everses or ignores its previously carefully considered interpretations of the law or of the procedural rules, with a consequential destruction of the rights of the accused enshrined in the Tribunal’s Statute and in customary international law. The only reasonable explanation for these decisions appears to be a desire to assist the prosecution to bring the Completion Strategy to a speedy conclusion.58

Interestingly, Judge Hunt himself sums up his criticism with another – indirect – reference to the ICTY’s historiographic mandate: ‘The Majority Appeals Chamber Decision and others in which the Completion Strategy has been given priority over the rights of the accused will leave a spreading stain on this Tribunal’s reputation’ (emphasis added).59

IV.  A Close Look at Some Decisions Touching Several Aspects – ‘Problem Defendants’ In dealing with the various aspects concerning the position of the defendant in the trial, it has become apparent that a number of decisions concern several of these aspects. This is not particularly surprising; after all, procedural decisions in   See also Boas (2007), 66–69 with further references.   See ICTY Prosecutor v Slobodan Miloševic´ (Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statement) IT-02-54, Appeals Chamber (21 Oct 2003), paras 7–8 with references. 57   Prosecutor v Slobodan Miloševic´, (Decision on Interlocutory Appeal on the Admissibility of Evidence-In-chief in the Form of Written Statements) IT-02-54, Appeals Chamber (30 September 2003), disposition. 58   Prosecutor v Slobodan Miloševic´ (Dissenting Opinion of Judge David Hunt on Admissibility of Evidence in Chief in the Form of Written Statement) IT-02-54, Appeals Chamber (21 October 2003), paras 18, 20. 59   ibid, para 22. 55 56

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Tracing the Influence of Historiography criminal trials often involve a weighing of the various values involved, including rights and interests of the defendant, other participants such as victims and witnesses, and society in general. Besides the fact that they all touch upon several aspects of the role of the defendant, the decisions analysed in this section have in common that they all concern ‘problem defendants’, that is defendants going beyond the usual defendant role in the trial in order to challenge the historiographic project and/or the legitimacy of the court trying them. This section will engage these decisions by asking which aspects of the defendant’s role were engaged, whether the decision of the court was legally compelling and which alternative decisions could have been considered, and by asking whether the result reached can be explained as a result of the influence of considerations of historiography.

1.  Self-Representation and Absence of the Defendant – Barayagwiza, Gbao The ICTR in Barayagwiza had to deal with a defendant who both refused to appear for trial and ordered his counsel not to represent him.60 It found that he was in fact attempting to ‘boycott’ the proceedings by foregoing a defence altogether61 and accordingly ordered that he (continue to) be represented by counsel, even if he refused to give instructions to counsel.62 The SCSL was faced with a similar question in Gbao: the defendant had requested to withdraw his counsel, and had refused to instruct them, as he considered the Court a political body and did not recognise it. Referring to the ICTR Chamber’s statement in Barayagwiza that this amounted to a boycott,63 the Chamber denied this request.64 When Gbao also refused to appear for trial, the Chamber, again quoting the Barayagwiza Chamber finding a ‘boycott’ of the trial, ordered that counsel continue to represent Gbao.65 The Trial Chamber later certified its decision for appeal as Gbao’s request may in fact have been one for selfrepresentation, and on appeal, both parties presented the case as one concerning this right.66 The Appeals Chamber, however, made short shrift of this line of argu60   Prosecutor v Barayagwiza (Decision on Defence Counsel Motion to Withdraw) ICTR-97-19, Trial Chamber (2 November 2000), paras 11–12. In fact, counsel had appeared at trial but had remained passive – see Nsereko (2001), 502. 61   Prosecutor v Barayagwiza (Decision on Defence Counsel Motion to Withdraw) ICTR-97-19, Trial Chamber (2 November 2000), paras 16, 24. 62   ibid, disposition. 63   RUF (Decision on Application to Withdraw Counsel) SCSL-04-15, Trial Chamber (6 July 2004), para 16. 64   ibid, disposition. 65   RUF (Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days) SCSL-04-15, Trial Chamber (12 July 2004), paras 10, 12. 66   RUF (Decision on Application for Leave to Appeal – Gbao – Decision on Application to Withdraw Counsel) SCSL-04-15, Appeals Chamber (4 August 2004), paras 54 et seq; (Decision on Appeal Against Decision on Withdrawal of Counsel), Appeals Chamber (23 November 2004), paras 30–34.

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‘Problem Defendants’ ment – referring to the fact that Gbao did not recognise the Tribunal and had not appeared before it, and again referring to the ‘boycott’ passage in Barayagwiza,67 it dismissed the appeal as ‘merely an academic exercise’.68 In both cases, then, courts were faced with defendants who on the one hand claimed a right of self-representation and on the other hand refused to appear for trial. In all cases, the courts found that the defendants were attempting to ‘boycott’ the proceedings by forgoing a defence altogether. Finding that the defendant could not simply choose not to put up a defence at all, they allowed the defendants to remain absent, but ordered that they continue to be represented by counsel. Now, it is not hard to accept the courts’ first point that a defendant may not choose to forgo a defence altogether. However, this did not necessarily require that the defence be left to counsel, to be exercised in the absence of the defendant. Rather, two alternative solutions would have been available: the courts could have allowed the defendants to represent themselves (if need be with standby counsel) and ordered them to attend the proceedings, having them forcibly brought before the court if necessary. Or the courts could have ordered that the defendants be brought before the court and forced them to make an explicit choice between attendance and self-representation or non-attendance and representation by counsel. None of the decisions give any indication that the courts seriously considered the alternatives mentioned. This is particularly striking given that, by allowing the defendants to neither appear for trial nor instruct their counsel, the courts in fact allowed the defendants to continue to ‘boycott’ the proceedings – at least in the sense that the defendants were visibly absent from the proceedings and could wash their hands of any involvement therein. In addition, the decisions also had their weaknesses when considered from the goal of ensuring a fair trial by ensuring an effective defence – as the Special Court explicitly acknowledged,69 having an absent defendant represented by counsel who is not instructed by the defendant does not bode well for the quality of the defence.70 On the other hand, the decision to allow the defendants to remain absent and to have them represented by counsel was the one most likely to allow the courts to fulfill their historiographic mission without significant opposition. The defence would be conducted by professional counsel who were much less likely than the defendants to raise ‘political’ arguments; and with the defendants absenting themselves, any challenges that they would personally mount would not be the subject of the criminal proceedings.

  ibid, paras 41, 45, 47.   ibid, para 61. 69   RUF (Transcript of 11 January 2005) SCSL-04-15, Trial Chamber, 43. 70   On this aspect, see also Nsereko (2001), particularly 503–05, 507. 67 68

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2.  Self-Representation, Dangers to the Defendant’s Health, and Presence – Slobodan Miloševic´ While the Miloševic´ trial raised many interesting questions concerning the conduct of large-scale international criminal trials,71 this section will focus on the Trial Chamber decision to impose counsel on Miloševic´ at the beginning of the defence case and the Appeals Chamber decision upholding that imposition, but changing its modalities. Both Chambers based their decision first and foremost on the necessity to guard the fair and expeditious conduct of the trial against disruptions resulting from self-representation.72 Self-representation may thus be abridged where it would lead to ‘substantial trial disruption’73 in the sense of significant delay. However, the two decisions show differing rationales on the way in which imposition of counsel might guard against such disruptions. Both rationales have serious factual and/or legal shortcomings. (a)  The Trial Chamber Decision: Safeguarding the Trial by Safeguarding the Defendant’s Health One rationale, which is that expressed by the Trial Chamber, is that it had to: [R]elieve the Accused of the burden of conducting his own case with a view to stabilising his health to ensure, so far as possible, that the trial proceeds with the minimum of interruption in a way that will permit the orderly presentation of the Accused’s case and the completion of the trial within a reasonable time.74

In other words, counsel were imposed to avoid trial disruptions by avoiding or minimising future health problems. This argument is problematic in a number of ways. From the factual angle, one may first of all doubt whether, based on the information known to the Chamber back then,75 the threat to Miloševic´’s health, and thus to the speediness of the trial, was quite as severe as stated by the Trial Chamber. As some commentators have noted, Miloševic´ had just completed what the Appeals Chamber described as a ‘vigorous two-day opening statement’.76   See generally Boas (2007).   Prosecutor v Slobodan Miloševi´c (Reasons for Decision on Assignment of Defence Counsel) IT-02-54, Trial Chamber (22 September 2004), paras 33, 65–66; (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel), Appeals Chamber (1 November 2004), paras 13–15. 73   ibid, para 13. 74   See Prosecutor v Slobodan Miloševi´c (Reasons for Decision on Assignment of Defence Counsel) IT-02-54, Trial Chamber (22 September 2004), para 66. 75   With hindsight, it is of course known that the stress imposed by the trial and self-representation did in fact contribute to the death of Milošević, although the precise extent to which other factors, such as Milošević taking non-prescribed medication, played a role is not entirely clear. 76   Prosecutor v Slobodan Miloševi´c (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel) IT-02-54, Appeals Chamber (1 November 2004), para 18; Sluiter (2005), 14–15. 71 72

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‘Problem Defendants’ Similarly, the danger to the trial may have been somewhat overstated as well: true, the prosecution case alone had taken two and a half years and had been disrupted a number of times for health reasons. But the length of the proceedings was not attributable to the health problems alone. Overall, the court had lost 66 trial days over a period of 30 months due to health reasons, or a little over two days per month, so health problems surely did contribute to the length of the proceedings. However, the length of the proceedings also resulted from the sheer breadth of the case – the Chambers had, after all, decided to merge three only vaguely related indictments (Bosnia, Croatia, Kosovo) concerning events spanning almost a decade, into one single trial.77 That such a mega trial would last longer than most other trials is not remotely surprising, regardless of the health of the defendant. Finally, even if health-related interruptions might increase during the defence case and thus contribute even more to the length of the trial, it was not unusual at all for international criminal trials to take quite a long time. The Blaškic´ case, which compared to Miloševic´ was rather uncomplicated, had just concluded with an Appeals Judgment a few months earlier over eight years after the initial appearance of the defendant;78 and it was foreseeable already in 2004 that some trials at the ICTR would take much longer than that. To conclude, one might well doubt whether the imposition of counsel was, as seen from September 2004, necessary to safeguard either the health of the defendant or the speediness of the trial. Even leaving aside all these doubts, it is hard to see how imposition of counsel could have ameliorated any of the problems stated by the Trial Chamber. The stress involved in conducting the defence in one of the broadest trials before the ICTY surely contributed to Miloševic´’s health problems, but this stress would hardly have diminished significantly with the imposition of counsel. For one, the mere fact of being tried in one of the ‘trials of the century’ probably provided enough stress in and of itself; and in addition, Miloševic´ would doubtless have continued to put significant effort into his defence despite the assignment of counsel. Finally, trying to put oneself in the defendant’s shoes, one would imagine that being represented by counsel whom one does not trust, and constantly feeling the need to correct what one sees as inadequate or even harmful representation by these counsel, might not be good for one’s blood pressure either. Thus even if some measure was necessary to safeguard the defendant’s health, it is hard to see that imposition of counsel was a suitable measure. The Trial Chamber decision may also be attacked from a legal angle. First, may the defendant be forced to relinquish self-representation in order to safeguard his health? Would this not be an even more restrictive step than forcing defendants to, for example, accept medical treatment to safeguard their fitness? Of course forgoing self-representation is not an active, but a passive step and thus might be considered more easily imposed. On the other hand, self-representation is a fair 77   See, eg Damaška (2005), 7; Sluiter (2005), 10; Boas (2007), ch 2, particularly 115–21, 128–30. See also ibid, 92–115, on other defects in the indictments, ch 3 on case management generally. 78   Sluiter (2005), 10.

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Tracing the Influence of Historiography trial right which ‘is not to be taken lightly’. If the defendant may refuse medical treatment even if such refusal results in no trial at all, how can the defendant be forced to accept health-related measures restricting fair trial rights simply based on a danger of a less expeditious trial? Second, if Miloševic´’s health had deteriorated to the point that one had to consider measures for safeguarding it, the Chamber should at least have considered whether Miloševic´ was fit to stand trial at all,79 or whether the dangers to his life and health – which were arguably caused already by his being detained and put on trial, not only by his representing himself – might raise a procedural bar to proceedings. (b)  The Appeals Chamber Decision: Safeguarding the Trial by Having Counsel Present to Step in Once the Defendant’s Health has Deteriorated The precise rationale of the Appeals Chamber is somewhat hard to extract from its decision, given that its reasons for upholding the decision to impose counsel are confined to three short paragraphs. 80 The main concern of the Appeals Chamber, just as that of the Trial Chamber, is whether the court should ‘be forced to choose between setting that defendant free and allowing the case to grind to an effective halt? In the Appeals Chamber’s view, to ask that question is to answer it’.81 However, the statements on the modalities of representation show that, besides safeguarding the defendant’s health, the Appeals Chamber had also considered another option as to how such a situation was to be avoided: [I]n practice, if all goes well, the trial should continue much as it did when Milošević was healthy. To a lay observer, who will see Miloševic´ playing the principal courtroom role at the hearings, the difference may well be imperceptible. If Miloševic´’s health problems resurface with sufficient gravity, however, the presence of Assigned Counsel will enable the trial to continue even if Miloševic´ is temporarily unable to participate. (emphasis added)82

In other words, counsel were to take over the defence, first, where the defendant was, for health reasons, unable to represent himself, and second, where he was, for health reasons, unable to participate in the proceedings. Counsel were not imposed so much to avoid trial disruptions by avoiding health problems, but rather to avoid trial disruptions despite potential health problems. Of course, given that this is a role akin to that of standby counsel, one may ask why the Chamber did not explicitly find that counsel should be assigned as standby counsel – a role which, after all, by then had already been rather well defined. 79   The amici curiae had in fact asked the court to consider this question – see Coalition for International Justice, Amici Ask Court to Decide Milošević’s Fitness to Stand Trial, 23 August 2004. 80   Prosecutor v Slobodan Miloševi´c (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel) IT-02-54, Appeals Chamber (1 November 2004), paras 13–15. 81   ibid, para 14. 82   ibid, para 20.

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‘Problem Defendants’ But leaving aside questions of categorisation, the problem lies in the assumption that the trial may continue in the sort of situation where counsel has to step in. Of course, simply having counsel present for the eventuality that Miloševic´, while still able to appear in court and instruct counsel, might nonetheless wish for counsel to take over the defence, would pose no problems in this regard. But this was hardly the only situation which the Appeals Chamber had in mind. Rather, the words ‘unable to participate’, as well as the reference to ‘substantial trial disruptions’ and Rule 80(B) earlier in the decision,83 show that the Appeals Chamber was thinking of situations where Miloševic´ might be unable to appear for trial, and that it was of the opinion that the trial would continue in his absence in such situations. This, however, would arguably have been in violation of his right to presence. The argument, only hinted at in Miloševic´, that the trial may continue without the defendant in case of health problems has been developed in more detail in later decisions, especially in Zigiranyirazo. The argument starts from a reference to Rule 80(B), which allows removing the defendant from the courtroom and continuing the trial without the defendant in reaction to behaviour which the Chamber describes as ‘substantial trial disruptions’.84 The next step is the statement, explicitly made in Miloševic´ and silently taken for granted in Zigiranyirazo, that ‘it cannot be that the only kind of disruption legitimately cognizable by a Trial Chamber is the intentional variety’.85 Accordingly, the trial may be conducted in the absence of the defendant if declining to do so would lead to trial disruptions not intended by the defendant.86 These arguments, it is submitted, are not only incorrect as an interpretation of Rule 80(B), but also in violation of human rights law. As to the first question, the equation of ‘intentional substantive trial disruption’ and ‘unintentional substantive trial disruption’ obscures the important differences between two types of situations in which proceedings are conducted without the defendant, each of which follows its own distinct logic. Unintentional ‘substantive trial disruption’ concerns situations where the defendant is not able to appear in the courtroom, due to circumstances beyond her control. In this situation, the court is faced with the choice of continuing in her absence or not continuing at all. Honouring her right to presence would mean interrupting proceedings, which could endanger, for example, the speedy trial rights of co-defendants. Thus, ‘substantial trial disruption’ in such cases in fact means the interruption of the trial.   ibid, para 13.   Prosecutor v Zigiranyirazo (Decision on Interlocutory Appeal) ICTR-01-7, Appeals Chamber (30 October 2006), para 14. 85   Prosecutor v Slobodan Miloševi´c (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel) IT-02-54, Appeals Chamber (1 November 2004), para 14. 86   Thus in Zigiranyirazo, the ICTR Appeals Chamber did not question generally whether a Trial Chamber may continue without the defendant, but only whether the Trial Chamber had erred in exercising its discretion in deciding to do so ((Decision on Interlocutory Appeal) ICTR-01-7, Appeals Chamber (30 October 2006), paras 14–15). 83 84

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Tracing the Influence of Historiography This situation differs fundamentally from the type of intentional ‘substantive trial disruption’ covered by Rule 80(B) RPE. In that situation, the defendant is able to be in the courtroom and in fact is at first present, but is later removed. The court is not faced with the choice of continuing in her absence or not at all, but rather with that of continuing in her presence or in her absence. Honouring her right to presence would not mean interrupting the trial,87 but continuing with a trial in her presence, which would endanger, above all, the dignity of courtroom proceedings. In other words, the ‘substantial trial disruption’ covered by Rule 80(B) is not the temporal interruption of the trial, but the affront to the dignity of the proceedings. The latter cases also show that the differentiation between intentional and unintentional disruptions is not the right way to differentiate in such cases – rather, the differentiation should be between disruption and interruption or, viewed from the perspective of the right to presence, between forfeiture of that right and inability to exercise it. These two types of cases, furthermore, differ in the consequences. In cases of forfeiture, the length of the exclusion can be determined by reference to the interest protected – once the defendant has promised to behave adequately from now on, she must be allowed back into the courtroom. In cases of inability, however, the period in which the court continues without the defendant is dependant on the factual question when she is again well enough or otherwise able to appear before the court. Basically, then, the argument of the Appeals Chamber is a sleight of hand. It takes a rule allowing proceedings in the absence of the defendant in one situation, describes the requirements for this situation in other words, and then applies those words to a situation which, if one were to look at the structure of the rule, is not comparable at all. That this is not a particularly convincing interpretation can be seen in the Zigiranyirazo case, where the situation in which the defendant was unable to appear in court was not only out of the defendant’s control, but had in fact been brought about by the Trial Chamber itself when it decided to hold the hearing in the Hague. In fact, this concept could even be applied in cases such as those of Vladimir Kovacˇevic´88 – the fact that the trial may not be conducted while the defendant is mentally unfit to stand trial surely leads to ‘substantial trial disruptions’, so why not conduct the trial in his absence? The only thing that stands between defendants’ right to presence and such interpretations is the proportionality test introduced by the Appeals Chamber – but the issues raised here show that there is something substantially wrong with the whole idea. Finally, the decision to continue in the absence of the defendant is also in violation of human rights law. As shown above, the right to presence at trial does not allow proceedings in absentia where the defendant is unable to appear for trial, unless the defendant has intentionally caused that inability.89 87   The only aspect in which one may speak of interruption in such cases is that the defendant may keep interrupting the judges or witnesses in their statements. 88   See above 28–29. 89   See above 44–45.

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‘Problem Defendants’ (c)  Alternatives and Conclusion Both the Trial Chamber and the Appeals Chamber decisions, then, seem to be based on an interpretation of the facts and/or the law which arguably violated the defendant’s rights in the trial. One might attempt to counter such criticism by stating there was simply no alternative to the path taken by the Chambers unless one would accept that the trial would ‘grind to a halt’ – a result which, in the apparent view of the Appeals Chamber, would self-evidently be wrong.90 It is submitted that such counter-arguments are not particularly effective. The Chambers could have considered a host of other measures to reduce the danger to Miloševic´’s health and to enable the trial to be conducted fairly and expeditiously. It could have relieved the stress of the trial by granting him further out-of-court assistance in the shape of, for example, legal associates. It could have made the defence case more manageable by requiring the prosecution to reduce the scope of the indictment – a decision it arguably should have taken in any event already at the beginning of the trial. If the Chamber was unwilling to trim the trial, it could simply have continued with the trial and taken into account Miloševic´’s health problems, reducing the number of trial days per week or the length of trial days or interrupting the trial as necessary. Finally, if a continued trial under such circumstances had proved too arduous for Miloševic´, the Chamber could have considered – would have been obliged to consider – whether the results of Miloševic´’s health condition or the danger of further aggravating this condition did not lead to his unfitness to stand trial or to a danger to health and life which would have prohibited a continued trial anyway. In other words, in such a situation, letting the trial ‘grind to a halt’ is precisely the result that the law requires. The above is not to say that the Chambers could only have made the right decision by accepting one of the alternatives just mentioned. After all, the Appeals Chamber decision particularly did not in fact lead to the trial being conducted in the absence of the defendant. However, it seems that the Chambers did not seriously consider any of these alternatives. In the words of Ronald Dworkin, who had supported the right of Miloševic´ to represent himself, the Chamber rendered that right meaningless by refusing ‘to give up whatever marginal benefit [it] would receive from overriding these rights when they prove inconvenient’.91 Instead, the Appeals Chamber took a decision that not only curtailed the right to self-representation, but that logically implied a willingness to curtail – according to 90   Prosecutor v Slobodan Miloševi´c (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel) IT-02-54, Appeals Chamber (1 November 2004), para 14 (‘to ask that question is to answer it’). 91   This passage from Dworkin, Taking Rights Seriously was used by the defence in its appeal against the Trial Chamber decision to impose counsel – Prosecutor v Slobodan Miloševi´c (Appeal Against Trial Chamber’s Decision on Assignment of Defence Counsel) IT-02-54, Defence (29 September 2004). During oral arguments, assigned counsel Steven Kay revealed to the Chamber that Dworkin had, in personal communications, approved the citation of his book ((Transcript of 21 October 2004), 23).

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Tracing the Influence of Historiography the interpretation proposed above, to violate – the right to be tried only if fit to stand trial and the right to be tried in one’s presence. What is more, it did so at the beginning of the defence case, that is at the precise point in the trial when Miloševic´ was to be given the floor to present his view of recent Yugoslavian history.

3.  Self-Representation, Rendering Oneself Unfit to Stand Trial, and Presence – Šešelj The case of another Serb ‘problem defendant’, Vojislav Šešelj, seems to point in another direction: despite employing a seriously abusive tone92 and engaging in disruptive behaviour, Šešelj was allowed to represent himself, albeit with the assistance of standby counsel, for a large part of pre-trial proceedings, and decisions by the Trial Chamber to activate standby counsel in reaction to specific instances of disruptive behaviour were twice reversed on appeal. In the second case, this even led to trial proceedings conducted so far being annulled and a new trial being ordered. A more in-depth look at these decisions shows how they, too, can be explained by reference to historiography, albeit in a slightly different way than in most other cases. Any discussion of Šešelj must focus on two decisions by the Trial and Appeals Chambers in December 2006. Nonetheless, some words on earlier proceedings are in order. Šešelj had surrendered to the ICTY in 2003 with the declared aim of ‘bringing the Tribunal to its knees’93 and had from the start claimed the right to self-representation. On 9 May 2003, the Trial Chamber had assigned standby counsel in reaction to disruptive behaviour of the defendant which could in the future lead to his exclusion from proceedings.94 On 21 August 2006, referring to various instances of disrespectful statements and disruptive behaviour, the Trial Chamber had assigned counsel to take over the defence,95 but that decision had been overturned by the Appeals Chamber for lack of a specific warning prior to imposition of counsel.96 92   Two of many examples: Šešelj told the Registry that he had accepted a certain person as his legal advisor and that ‘you, all you members of the Hague Tribunal Registry, can only accept to suck my cock’ (Prosecutor v Šešelj (Decision on Assignment of Counsel) IT-03-67, Trial Chamber (21 August 2006), para 48). Referring to German judge Wolfgang Schomburg, Šešelj remarked that ‘the smell of crematoriums and gas chambers comes into the Hague courtroom with him’ (ibid, para 55). 93   Anecdotally, it has been reported that  Šešelj’s first attempt to surrender to the Tribunal was thwarted as the Netherlands denied his request for a visa to travel to The Hague. Asked whether he would surrender to the ICTY after the indictment had been issued, he reportedly stated: ‘I’ve been given a lifetime opportunity to become famous worldwide, and I won’t run away from that or whine about it like Milan Milutinović’. (‘Sinisa Djuric, Radically Better Doom: Vojislav Šešelj and the Serbian Radical Party’, Sobaka News Wire, 26 August 2004). 94   Prosecutor v Šešelj (Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence) IT-03-67, Trial Chamber (9 May 2003). 95   Prosecutor v Šešelj (Decision on Assignment of Counsel) IT-03-67, Trial Chamber (21 August 2006). 96   Prosecutor v Šešelj (Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel) IT-03-67, Appeals Chamber (20 October 2006).

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‘Problem Defendants’ Following the Appeals Chamber decision, the Trial Chamber had appointed new standby counsel.97 In protest over this decision and other decisions of the Trial Chamber in preparation for the trial, Šešelj on 1 November 2006 loudly insisted that he be escorted out of the courtroom. Following his removal, standby counsel were temporarily asked to take over the defence.98 Šešelj, who understood (or claimed to understand) the Appeals Chamber decision as requiring the removal of standby counsel tout court, began a hunger strike on 10 November 2006 to force the court to accept certain demands, including removal of standby counsel. When he refused to attend a status conference on 22 November 2006, counsel were again temporarily asked to take over the defence; Šešelj was warned according to the terms of the Appeals Chamber decision.99 On 27 November 2006, the trial started without Šešelj who refused to appear, standby counsel being imposed as full counsel from that point on.100 One former standby counsel was appointed as ‘independent counsel’ to consider an appeal against that decision, which he did in fact bring several days later. Meanwhile, Šešelj’s condition had deteriorated to the point where it was feared that he could suffer serious detriment to his health or even die from the consequences of his hunger strike. It is against this background that the Trial Chamber on 6 December 2006 ordered the Dutch authorities to force-feed Šešelj if necessary to save his life and/ or to enable the trial against him to continue.101 As noted above, this order was never carried out – on 8 December 2006, one day after the independent counsel had entered his appeal against the 27 November imposition of counsel, the Appeals Chamber issued its decision granting that appeal and ordering that the trial begin anew.102 The trial did indeed begin on 7 November 2007 with Šešelj representing himself, without even standby counsel, and he was allowed to represent himself throughout the trial, even after being convicted of contempt of court for disclosing identities and statements of protected witnesses.103 As shown by Göran Sluiter,104 both the Trial Chamber order of 6 December 2006 and the Appeals Chamber decision of 8 December 2006 must be seen as reactions to a situation engendered by Šešelj in which the court had to choose one of three alternatives. It could give in to Šešelj’s demands to induce him to end his 97   Prosecutor v Šešelj (Order Concerning Appointment of Standby Counsel and Delayed Commencement of Trial) IT-03-67, Trial Chamber (25 October 2006). 98   Prosecutor v Šešelj (Transcript of 1 November 2006) IT-03-67, Trial Chamber, 635–36. 99   Prosecutor v Šešelj (Invitation to Accused to Make Submissions) IT-03-67, Trial Chamber (22 November 2006). 100   Prosecutor v Šešelj (Transcript of 27 November 2006) IT-03-67, Trial Chamber, 824. 101   Prosecutor v Šešelj (Urgent Order to the Dutch Authorities Regarding Health and Welfare of the Accused) IT-03-67, Trial Chamber (6 December 2006). 102   Prosecutor v Šešelj (Decision on Appeal Against the Trial Chamber’s Decision (No 2) on Assignment of Counsel) IT-03-67, Appeals Chamber (8 December 2006). 103   Prosecutor v Šešelj (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’) IT-03-67-T, Trial Chamber (24 November 2009), para 67. 104   Sluiter (2007). Generally on the conduct of proceedings by the newly constituted Trial Chamber under Judge Antonetti, including on some speculations as to the reasons therefore, see Zahar (2008).

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Tracing the Influence of Historiography hunger strike; it could counter the effects of the hunger strike by ordering that he be force-fed; or it could refuse to do either and accept that this might mean that Šešelj would fast to his death. In this situation, the Trial Chamber chose the second alternative in order to prevent Šešelj from ‘escaping from justice’. However, its reasoning was unconvincing in claiming to be acting out of concern over Šešelj’s health when it was clear that its aim was at least equally to safeguard the future of the proceedings. In addition, the judges shied away from taking full responsibility for their decision by leaving it to the Dutch authorities to decide whether a defendant consciously refusing food could be force-fed without violating human rights or medical ethics.105 The Appeals Chamber chose the first alternative of giving in to Šešelj’s demands. Again, its reasoning is all but convincing. The Chamber was careful to state that it did not ‘reward’ Šešelj’s hunger strike, but both its reasoning and the circumstances surrounding the decision show this assertion to be untrue. As to the legal reasoning, the Trial Chamber had, before imposing counsel on Šešelj, consciously taken all the steps required by the first Appeals Chamber decision. Given that the Appeals Chamber could not find fault with the Trial Chamber decision legally, it resorted to a psychologisation of that decision referring to the imposition of counsel as a ‘provocation’ leading to the further behaviour of the defendant – certainly not particularly convincing reasoning.106 As to the circumstances, the fact that the decision was issued in the record time of one day after the appeal is a dead giveaway that it was about more than just deciding the legal question raised by the appeal. The Appeals Chamber was willing to give in to Šešelj’s demands so that he would end his hunger strike, and it chose whatever legal reasoning allowed it to reach that result.107 In the end, then, Šešelj’s hunger strike ended with the Chamber granting him the active role in the trial he had desired. The trilemma facing both Chambers can easily be explained in terms of historiography. Had the court allowed Šešelj to continue his hunger strike until his death, it would have forgone the chance to write the history of the events surrounding his SRS volunteers. In addition, having another high-ranking Serb defendant die in ICTY custody might well have repercussions on public opinion of the Tribunal, potentially sullying the historical record of the ICTY as such. Having Šešelj force-fed would have safeguarded the trial as such, as well as the interest of the Tribunal not to have Šešelj die in its custody. At the same time, this action too may have reflected badly on the Tribunal – after all, the World Medical Association had just issued a statement that force-feeding conscious defendants was never acceptable; and reports of force-feeding in Guantanamo had met with strong criticism.108 It is against this background that the Appeals Chamber deci  ibid, 531–32.   In fact, the Appeals Chamber also stated that, strictly speaking, it did not find any error in the Trial Chamber being appealed – see Prosecutor v Šešelj (Decision on Appeal against the Trial Chamber’s Decision (No 2) on Assignment of Counsel) IT-03-67, Appeals Chamber (8 December 2006), para 20 and Boas (2007), 233–35. 107   Sluiter (2007), 533–34. 108   See ibid, 533. 105 106

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Explanations by Courts and Their Supporters sion needs to be seen: Šešelj basically gave the Tribunal the choice of either losing access to the historiographic material and/or having its general historiographic record sullied, or of safeguarding both at the cost of granting him more leeway in fighting for his view of history in his trial. The Appeals Chamber ‘succumbed to [his] blackmail’109 and chose the latter of these options.

V.  Explanations by Courts and Their Supporters This section will present some examples drawn from the vast number of statements by courts and their supporters showing, or in fact arguing for, a connection between the legislation or interpretation of criminal procedure and considerations of historiography.

1.  Access to the Historiographic Material As to the importance of the courts’ access to the historiographic opportunity presented by the trial, a number of statements made after the death of Slobodan Miloševic´ show court supporters disappointed that history could not be written on his role in the conflicts in Yugoslavia.110 Thus Human Rights Watch, in a Press Release shortly after Miloševic´’s death, was not concerned over the fact that his trial may have led to his death, but solely over the fact that ‘Miloševic´ Escapes Judgment’. Its Director for International Justice, Richard Dicker, was quoted as saying that: The victims of the Balkan wars deserved the satisfaction of hearing a verdict read against him in court, and they will never get that. But Miloševic´ died under indictment, stripped of his powers, with a long and official enumeration of his crimes on record for posterity. (emphasis added)111

Paul Tavernier explicitly refers to the historiographic mission of the ICTY: [T]he international community expects international criminal justice to establish historical truths as a prerequisite for attempts at reconciliation. However, the sudden and definitive end to the Miloševic´ trial made it impossible to deliver a verdict. While the thousands of documents and pieces of evidence accumulated by the Prosecution and the Defence, as well as the transcripts of the hearings, will be of much use to historians who will examine these questions in the years to come, the international community is deprived of judicial assessment of the truth.112

  ibid, 534 (comparing this about-face to that in the Barayagwiza case).   Besides the references given below, see also Moghalu (2006), 70–71, 74–75 with further references. 111   HRW, Press Release of 11 March 2006, ‘Milošević Escapes Judgment, Not Justice Process’. 112   Tavernier (2006), 35–36. 109 110

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Tracing the Influence of Historiography Finally, Gideon Boas, while not generally a proponent of a historiographic mission for international criminal trials,113 describes the loss of access to the historiographic opportunity presented by a single case in even bleaker terms: With the passing away of Miloševic´, many feared – and some hoped – that international criminal justice was experiencing some sort of death itself. For the victims of the wars in the former Yugoslavia, the people and communities in the region, the family and supporters of the accused, the international community and those dedicated to the process, it was a heavy blow. (emphasis added)114

Statements on the historiographic role of certain in absentia proceedings actually come from within the Tribunals themselves. In the very first Rule 61 hearing at the ICTY, that against Dragan Nikolic´, Chief Prosecutor Richard Goldstone stated that: [T]he evidence will constitute a permanent judicial record for all time of the horrendous war crimes that have been committed in the former Yugoslavia. That public record will assist in attributing guilt to individuals and be an important tool in avoiding the attribution of collective guilt to any nation or ethnic group.115

An ICTY Press Release notes that ‘Rule 61 hearings offer the victims of atrocities in the former Yugoslavia an opportunity to create an historical record against the accused’.116 Judges too were aware of this aspect of Rule 61 proceedings, though seen as an aspect of the Tribunal’s mandate in general.117 Thus Judge Sidhwa remarked in Rajic´ that: Rule 61 is basically an apology for this Tribunal’s helplessness in not being able to effectively carry out its duties. . . . In such circumstances, it is the International Tribunal’s painful and regrettable duty to adopt the next effective procedure to inform the world, through open public hearings, of the terrible crimes with which the accused is charged and the evidence against the accused that would support his conviction at trial. (emphasis added)118

Similar statements are to be found in relation to the first preservation of evidence hearings under Rule 71bis RPE-ICTR. In its request for such proceedings in Kabuga, the prosecution referred not only to the danger of evidence being lost or deteriorating, but also noted that ‘Kabuga is a high-profile fugitive whose appre  Boas (2007), 4.   ibid, 1.   Prosecutor v Dragan Nikoli´c (Transcript of 9 October 1995) IT-94-2, Trial Chamber, 59. A similar statement was made by the Chamber in Prosecutor v Karadži´c and Mladi´c (Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence) IT-95-5&18, Trial Chamber (16 July 1996), para 3. 116   ICTY, Press Release of 15 March 1996, ‘Rule 61 Hearing Scheduled for Three JNA Officers Charged with Vukovar Hospital Massacre’. 117   See Vohrah (2004), 393–94; Kirk McDonald (2004), 560–62, also generally Kerr (2004), 100–02. 118   Prosecutor v Raji´c (Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Separate Opinion Judge Sidhwa) IT-95-12, Trial Chamber (13 September 1996). 113 114 115

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Explanations by Courts and Their Supporters hension and trial would be important to the many victims of his alleged crimes, for the legacy of the Tribunal, and for national reconciliation in Rwanda’.119 Such statements apparently echo convictions already voiced in the drafting of the ICTY Statute. Ralph Zacklin, involved in that process as Deputy UN Legal Counsel, recalls that some had called for allowing in absentia proceedings in order to ‘provide the possibility of a public condemnation of the accused, even if not physically within the jurisdiction of the Tribunal’. In the end, the drafters decided against including in absentia proceedings, but not out of disagreement over that goal: Weighing both legal and political factors, it was decided that in absentia proceedings should not be permitted. The public condemnation of the accused could be achieved by the process of indictment just as well as by in absentia proceedings and without the many negative connotations attaching to them. (emphasis added)120

In preparation for the 2010 Review Conference of the Rome Statute, Roberto Bellelli proposed that the Rome Statute be reformed to allow in absentia proceedings in order to allow the ICC to more effectively achieve its goals, one of which he describes as follows: Beyond the need to define the scope and structure of individual participation in criminal conducts, judicial ascertainment of facts and conducts contributes to healing the wounds of individuals and populations victimized . . . and, thus, to achieving the goal of long-lasting peace and security.

Similar arguments have also been made in the scholarly debate on in absentia proceedings at the STL. According to Niccolò Pons: If it is true that international trials aim inter alia at the establishment of the truth and responsibility for a given crime, proceedings in absentia may be considered compatible with such goals if they are intended as a last resort solution.121

Maggie Gardner notes that ‘even if a conviction in absentia will never be, legally or morally, a final judgment, there is nonetheless a benefit to building the factual record, even if potentially one-sided, for the benefit of future generations’, adding that this idea led to the establishment of Rule 61 proceedings at the ad hoc Tribunals and the Rule 71bis proceedings at the ICTR.122 One can also detect references to the goals of international criminal justice, which may include the goal of establishing an historical record, in decisions 119   Prosecutor v Kabuga (Decision on Prosecutor’s Request for Preservation of Evidence by Special Deposition for a Future Trial (Pursuant to Rule 71bis) ICTR-98-44B, Trial Chamber (15 March 2011), para 13. The Chamber took up the argument concerning the high profile status of the accused, but referred only to the importance of the case to the victims – ibid, para 17. Identical considerations are contained in the similar decision in the Bizimana case – see Prosecutor v Bizimana (Decision on Prosecutor’s Request for Preservation of Evidence by Special Deposition) ICTR-98-44F, Trial Chamber (5 May 2011), paras 12, 15. 120   Zacklin (2004), 364–65. 121   Pons (2010), 1320–21. 122   Gardner (2011), 134.

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Tracing the Influence of Historiography concerning the health and/or the death of defendants. In the decision concerning nightly monitoring of the defendant in Tolimir, Judge Mindua stated in a concurring opinion that: [T]he Chamber has a responsibility to protect the health and wellbeing of an accused so that justice may be done – not only justice for the accused, but also justice for the alleged victims and the international community as a whole. Thus, the right of an accused to consent to medical treatment is not unlimited.123

Michael Bohlander, formerly of the OTP-ICTY, speculates on the reasons for the Appeals Chamber decision in Rasim Delic´, faced with the death of the accused while an appeal was pending, to declare the trial judgment as final rather than simply close proceedings and find that the trial judgment had been rendered moot: [I]t may be that some judges thought that the historical record, which some of them apparently still intend to create through trials based on selective evidence, could not be allowed to suffer such a setback based on the application of mundane and everyday procedural principles.124

2.  Privileged Access to the Historiographic Material Some of the decisions concerning conditions of detention, particularly access to the media, tend to show that courts are loath to allow any kind of public statement not mediated by them as they fear that such communications may distort their historiographic mission or the perception of that mission by the public. This is shown by decisions which view the mere fact that a defendant could communicate with the press – irrespective of the content of such communication125 – as a threat to their mandate. In Šešelj, the Registry restricted communication rights because earlier communications had: [R]esulted in a widespread media attention and coverage of the fact that an indictee for crimes against humanity and war-crimes such as the Accused is in a position to facilitate, with ease, the ongoing Serbian parliamentary elections campaign . . . the fact that a detainee at the Detention Unit can communicate with the aid of facilities provided by the Detention Unit to participate in an ongoing Serbian parliamentary elections campaign is . . . likely to frustrate the Tribunal’s mandate.

In Karadžic´, the Registry denied a request for a visit by a journalist because of the ‘possibility of sensationalist reporting . . . which . . . could interfere with the administration of justice or otherwise undermine the Tribunal’s mandate’.126 123   Prosecutor v Tolimir (Judge Antoine Mindua’s Separate and Concurring Opinion on the Order Regarding the Nightly Monitoring of the Accused) IT-05-88/2, Trial Chamber (27 August 2010), para 3. 124   Bohlander (2010), 508. 125   There are, of course, also decisions relying on other aspects: thus in Norman, one reason for the imposition of communication restrictions had been that his statements were ‘inciting his supporters to public unrest’ – see SCSL, Prosecutor v Norman (Decision Prohibiting Communications and Visits) SCSL-04-9, Deputy Registrar (20 January 2004), 3. 126   Prosecutor v Karadži´c (Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist) IT-95-5/18, Vice-President (12 February 2009), paras 4, 22.

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Explanations by Courts and Their Supporters In Prlic´, the Trial Chamber denied a motion for provisional release, inter alia, because: [T]he provisional release of an accused for an indeterminate period of time during his trial may not only seriously disrupt the proceedings but also affect the very legitimacy of the proceedings and of international justice, especially in the eyes of the victims of the alleged crimes.127

Fergal Gaynor of the OTP at the ICTY, while finding ‘persuasive’ the argument of the Appeals Chamber in Haradinaj that the defendant’s right to make political statements while on provisional release could not be curtailed for reasons other than ensuring his appearance at trial and safeguarding victims and witnesses, nonetheless holds that allowing political statements of ICTY defendants while on provisional release ‘would impede, rather than enhance, the Tribunal’s mandate to assist in maintaining regional peace and security and to encourage interethnic reconciliation’.128

3.  Particularly Cooperative Defendants As concerns cooperation by the defendant, statements on the importance of historiography are contained directly in court decisions. Many judgments based on guilty pleas contain some sort of explanation that guilty pleas may be rewarded by a sentence reduction not only because they show remorse on the part of the defendant, but also because they help discover the truth with regard to the facts in question, the discovery of the truth being ‘a fundamental step on the way to reconciliation’.129 Those judgments which led to particularly high sentence reductions also contained more detailed statements on the historiographic effects of the defendant’s guilty plea and statement. In Plavšic´, the Trial Chamber, after referring to the testimony of an expert witness on the question of post-conflict reconciliation: [A]ccept[ed] that acknowledgement and full disclosure of serious crimes are very important when establishing the truth in relation to such crimes. This, together with acceptance of responsibility for the committed wrongs, will promote reconciliation. In this respect, the Trial Chamber concludes that the guilty plea of Mrs. Plavšic´ and her acknowledgement of responsibility, particularly in the light of her former position as President of Republika Srpska, should promote reconciliation in Bosnia and Herzegovina and the region as a whole. . . . The Trial Chamber will accordingly give significant weight to the plea of guilty.130 127   Prosecutor v Prli´c et al (Decision on the Accused Prlić’s Motion for Provisional Release) IT-04-74, Trial Chamber (9 April 2009), para 44. 128   Gaynor (2009), 206–07. 129   Prosecutor v Erdemovi´c (Sentencing Judgment) IT-96-22, Trial Chamber (5 March 1998), para 21. Similarly Prosecutor v Rugambarara (Sentencing Judgment) ICTR-00-59, Trial Chamber (16 November 2007), para 35; Prosecutor v Serugendo (Sentencing Judgment) ICTR-2005-84, Trial Chamber (12 June 2006), paras 52–53, 57, 59. 130   Prosecutor v Plavši´c (Sentencing Judgment) IT-00-39&40/1, Trial Chamber (27 February 2003), paras 80–81.

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Tracing the Influence of Historiography In the sentencing judgment against Momir Nikolic´, the Chamber found: [T]hat Momir Nikolic´’s guilty plea is significant and can contribute to fulfilling the Tribunal’s mandate of restoring peace and promoting reconciliation. The recognition of the crimes committed against the Bosnian Muslim population in 1995 – crimes that continue to have repercussions into the present – by a participant in those crimes contributes to establishing a historical record. Although the victims of these crimes and family members of those killed were fully aware of the crimes committed before Momir Nikolic´ pleaded guilty, it cannot be doubted that the recognition of the crimes committed against them by a former member of the Army of Republika Srpska provides some form of closure. (first emphasis added)131

Similar pronouncements can also be found in the judgment concerning Dragan Obrenovic´, Dragan Nikolic´ and Miroslav Deronjic´ – in the two latter cases, they are made already in the introduction to the sentencing judgments.132 Similar announcements are contained in material provided by the Tribunal’s outreach programme. 133 Even at the ICTR, which has not seen many guilty pleas, they have been noted as historiographically valuable. In an article presenting an overview of the Tribunal’s development and activities, former ICTR President Erik Møse notes that ‘There is . . . reason to believe that guilty pleas, combined with expressions of remorse, contribute to reconciliation’.134 Finally, scholarly contributions to the question of plea bargaining explicitly note both advantages and disadvantages of plea bargaining for the historical record created by the international courts and make proposals on how plea bargaining should be utilised to maximise the advancement of this record.135

4.  ‘Problem Defendants’ As concerns ‘problem defendants’, commentators have mostly referred to the right to self-representation.136 Thus Michael Scharf criticised the Appeals Chamber decision in Miloševic´ and argued for the more restrictive position of the Trial Chamber. Turning to the upcoming trial of Saddam Hussein before the Iraqi Special Tribunal, he warned against allowing Hussein to represent himself: 131   Prosecutor v Momir Nikoli´c (Sentencing Judgment) IT-02-60/1, Trial Chamber (2 December 2003), para 145. 132   Prosecutor v Obrenovi´c (Sentencing Judgment) IT-02-60/2, Trial Chamber (10 December 2003), paras  111–12, 116; Prosecutor v Dragan Nikoli´c (Sentencing Judgment) IT-94-2, Trial Chamber (18 December 2003), para 3; Prosecutor v Deronji´c (Sentencing Judgment) IT-02-61, Trial Chamber (30 March 2004), para 3. 133   ICTY, ‘Bridging the Gap Between the ICTY and Communities in Bosnia and Herzegovina’, Conference Proceedings, Prijedor, 25 June 2005, 41, 73. 134   Møse (2010), 93. 135   Tieger and Shin (2005), 670 et seq; Clark, Plea Bargaining (2009), 424 et seq; Harmon (2009), 177 et seq; Rauxloh (2010) passim. 136   Besides the references cited below, see also Moghalu (2006), 67–68.

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Explanations by Courts and Their Supporters If Hussein were allowed to follow Miloševic´’s playbook – using the unique opportunity of self-representation to launch daily attacks against the legitimacy of the IST – this would seriously undermine the goal of fostering reconciliation between the Iraqi Kurds, Shi’ites and Sunnis; the historic record developed by such a trial would forever be questioned ; and the trial could transform Hussein and his subordinates into popular martyrs, potentially fuelling violent opposition to the new Iraqi government. (emphasis added)137

Geoffrey Robertson, former President of the SCSL, seems to agree with Scharf and considers criminal procedure more generally, arguing for courts to more closely align criminal procedure with the dictates of historiography: [Miloševic´’s] object was to undermine the court and to exploit its procedures to attack his political enemies and to publicise his own victimhood. This is a common enough phenomenon now in international courts, and the problem is how to adjust procedures to limit such grandstanding whilst retaining an acceptable level of fairness . . . It may be necessary to opt for a more radical solution: to deny the right of adversary trial to an unco-operative defendant, and shift instead to a civil inquisitorial process in which a judge examines the evidence and presents his findings to the Court, at which point the defence may challenge them. (emphasis added)138

It should, however, be noted that there are also statements which acknowledge the influence of historiography, but do not place such questions at the forefront. Thus Judge Bonomy of the ICTY, formerly of the Miloševic´ Trial Chamber, finds that given the number of cases and time constraints, the ICTY does not have the ‘luxury’ of meeting expectations such as ‘compiling a complete historical record of the war’.139 He places importance on the judicial aspect and aims to ‘exclude undue reference to historical background and political context’ generally, not only as made by the defendant.140 In arguing for limiting the right to selfrepresentation, he mentions the danger that ‘the court may be abused as a political platform’, but mostly refers to fair trial problems arising out of the limited ability of the defendant to present a fully convincing case.141 Similarly, Gideon Boas, former Senior Legal Officer of the Miloševic´ Trial Chamber, argues for a presumption against self-representation based, inter alia, but not solely, on the danger of politicised courtroom conduct.142 Finally, while most comments on ‘problem defendants’ concern selfrepresentation, other commentators are willing to go quite a bit further in order to limit the ability of those defendants to challenge the trial’s historiographic function. Thus Human Rights Watch is concerned with the impact of ‘disrespectful behavior’ on the public perception of the trial and shows some creativity in 137   Scharf (2006), 46. See also Richard Dicker, ‘Milošević won’t Escape History’s Judgment’, International Herald Tribune, 13 March 2006. 138   Robertson in Boas (2007), xiv–xv. 139   Bonomy (2007), 353. 140   ibid, 352. 141   ibid, 355–57. 142   Boas (2011), 77–83.

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Tracing the Influence of Historiography proposing remedies. For example, ‘the court could have situated the microphone in such a way that it required the defendant to stand in order to be heard’.143 Michael Scharf, also concerned with the impact that ‘disruptive defendants’ may have on the public perception of the trial and its legacy, calls for sanctions including restricting their right to ask questions of witnesses, expulsion from the courtroom and ‘other sanctions . . . such as relocating him to a smaller cell, decreasing the time he gets for recreation or reducing his access to other prisoners and family’. 144 Similar proposals are to be found in an NGO report by former ICTY Judge Patricia M Wald, entitled ‘Tyrants on Trial – Keeping Order in the Courtroom’ and aimed at providing practical recommendations for international criminal trials. Noting that ‘Leader trials frequently revolve around bigger than life personalities who see themselves as historic figures defending nationalistic causes’,145 Wald proposes a number of ‘remedies’ against defendants ‘politicizing’ trials, including removal of the defendant, ‘physical sanctions’, contempt proceedings, etc.146 She also calls for a restriction of the right to self-representation for similar reasons.147

  HRW, ‘Weighing the Evidence: Lessons from the Slobodan Milošević Trial’, December 2006, 68.   Scharf (2007), 156–57. 145   Wald (2009), 10. 146   Wald (2009), 27 et seq. 147   Wald (2009), 37 et seq. 143 144

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Conclusion In the end, Koskenniemi’s suggestion1 on the effect that the dictates of historiography have on international criminal procedure proves to be largely true: International criminal courts are in the business of writing history, and in order to do this business, they indeed tend to interpret their procedural regimes so as to maximise their access to the historiographic opportunity presented by the trial(s). As to the role of the defendant in the actual trial, this is not usually a very active one, although here the difference to national laws varies between international courts and is rather in the nuances. As concerns defendants wishing to play a particularly active role, particularly to pursue their own historiographic goals, courts may initially be willing to cut them some slack, but when push comes to shove, it is likely that their decisions will again be in line with the dictates of historiography. Of course, whether or not these tendencies are to be welcomed is an entirely different question – those viewing the international criminal justice process through an instrumental lens may indeed welcome and actively encourage such tendencies.2 For those, like myself, who consider criminal trials primarily as one of the most direct ways in which individuals may be confronted by the power of the state – in international trials, the powers of the entire international community – this alignment of the interpretation of criminal procedure with the necessities of historiography is cause for serious concern.

  See above 204–205.   See, eg, the statement by Michael Scharf quoted above 235.

1 2

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Index absconding from criminal justice see evading criminal justice access to the court file 66, 68, 71 admission of guilt 95–9, 100–1, 128–30, 195   see also negotiated justice African Convention on Human Rights 11–2 and passim in chapters 1–3 American Convention on Human Rights 10–2 and passim in chapters 1–3 amici curiae 76, 175 Arendt, Hannah 202 Bagaragaza, Michel 120, 121, 122–3, 126, 195 Barayagwiza, Jean-Bosco 13n, 218–9 Bemba Gombo, Jean-Pierre 179–80, 181–2 Boas, Gideon 230, 235 Bohlander, Michael 232 Bonomy, Lord Iain 235 Bosnia v. Serbia case (at ICJ) 205 Byron, Sir Dennis 201 choice of defence counsel 64–5, 67, 69, 70–1, 72, 73, 74, 79–81, 82–3, 85–6, 87 civil commitment see preventative detention civil law 6–7 common law 6–7 commutation of sentence see early release comparative criminal procedure 5–7 contempt of court 99, 102, 109–11, 127, 131, 133–4 correctionnalisation 101 court-assigned counsel 78, 86, 218–9, 227 crown witness see under witness danger to life or health of defendant 21, 24, 220–6 death of defendant 14–18, 232 Defence Office (at SCSL) 85–6 Defence Office (at STL) 87–8 defence strategy 65–6, 68, 69, 71, 72–3, 73, 81–2, 83, 86, 88, 89, 194 Deli´c, Rasim 16, 18, 172, 193, 208, 232 detention 99, 126–7, 151–92, 193–4    bail 154, 157–8, 161, 162, 184, 191    conditional release 152, 154, 157–8, 159–60, 161, 163, 171–4, 176, 183, 189, 190–1    conditions of detention 153–4, 156, 158–9, 161, 162–3, 169–71, 181–2, 186–7, 191, 232

   detention or release as the norm 151,155, 157, 160, 162, 164–7, 167–8, 176, 184–5, 189–90    length of detention 152, 155–6, 158, 161, 162, 163–4, 168–9, 177, 193    reasons for detention 151–2, 155, 157, 160–1, 162, 163, 164, 166, 175, 184, 190   Haftgründe see reasons for    detention letters see conditions of detention    phone calls see conditions of detention    visits see conditions of detention   see also judicial supervision, media, contact of defendants/detainees with, political activities of defendants/detainees, safeconduct, ‘safe house’, summons to appear disclosure 7n, 92, 178 disruptive behaviour 38, 40–1, 42, 46, 49, 54, 56, 59, 93–4, 99, 102, 107, 109, 127–8, 130–1, 133, 223–4 Dworkin, Ronald 225 early release 99, 107, 123, 125–6, 130, 133, 135 Eichmann, Otto Adolf 202 elections see political activities of defendants/ detainees Erdemovi´c, Dražen 29, 115 European Convention on Human Rights 10–1, 214–6 and passim in chapters 1–3 evading criminal justice 94, 99–100, 102–3, 111, 128, 131, 134, 135 evidence, law of 92 ex parte proceedings 49, 54 false testimony see under witness fitness to stand trial 18–36, 193, 222, 225    standard 19, 22–3, 25, 28, 33, 34–5, 36    examination of defendant 22, 23, 27–9, 30, 33, 34–5 forced treatment 20, 24, 29–31 force-feeding 20, 24, 26, 31, 227–9 French criminal procedure 7, 10–1 and passim in chapters 1–3 Gaynor, Fergal 233 Gbao, Augustine 84, 188–9, 213–4, 218–9 German criminal procedure 7, 10 and passim in chapters 1–3 Guantanamo Bay 24, 26–7, 228 guilty plea 93, 103–4, 112, 132, 134, 195   see also negotiated justice

247

Index Haradinaj, Ramush 173–4, 194, 208, 233 health of defendant see illness of defendant, fitness to stand trial historical record, establishment of 199–201, 211, 230, 231–2    and reconciliation 199, 200, 202, 210, 230, 231, 233–4, 235    and combating revisionism 201 historiography 199–205    as goal of international criminal courts 200–1    quality of historiography by criminal courts 202–3    impact on conduct of trial 203–5, 206–36, 237    and ‘show trials’ 205   see also historical record, establishment of Honecker, Erich 21 house arrest see ‘safe house’ Human Rights Committee see International Covenant on Civil and Political Rights human rights law, influence on criminal procedure 9–12 hunger-strike 20–1, 24, 26–7, 30–1, 38–9, 45, 227–9 Hunt, David 217 Hussein, Saddam 234–5 hybrid representation 66, 68, 70, 82, 83, 87, 89, 90 in absentia proceedings see under proceedings in the absence of the defendant illness of defendant 20, 22, 193, 220–6    terminal illness 21, 32, 34, 35, 36, 193   see also fitness to stand trial improper conduct see disruptive behaviour Inter-American Commission of Human Rights see American Convention on Human Rights Inter-American Court of Human Rights see American Convention on Human Rights interim release see detention International Covenant on Civil and Political Rights 9–11 and passim International Criminal Court 8 and passim in chapters 1–3 International Criminal Tribunal for Rwanda 8, 201–2, 216, 218–9, 231, 234 and passim in chapters 1–3 International Criminal Tribunal for the former Yugoslavia 7–8, 200–1, 204, 209–12, 216, 217, 220–9, 231–6 and passim in chapters 1–3 Iraqi Special Tribunal 234–5 judicial supervision 155–7 Kabuga, Félicien 48, 230–1 Kambanda, Jean 113, 117, 120 Karadži´c, Radovan 51, 60, 77, 78–9, 170, 216

Koroma, Johnny Paul 17, 216 Koskenniemi, Martti 204–5, 37 Kovacˇevi´c, Vladimir 28–9, 224 legal aid 78–9   see also choice of defence counsel Lubanga Dyilo, Thomas 177–8, 181–2 mandatory representation by defence counsel 64, 67, 70, 89 May, Sir Richard George 5n, 92n media, contact of defendants/detainees with 153, 156, 159, 169–71, 173–5, 181–2, 186, 191, 232 Meron, Theodor, 201 Miloševi´c, Slobodan 1, 30, 31–2, 50, 75–6, 78, 79, 92n, 144, 169–70, 175, 204, 220–6, 229–30, 234–5 misconduct see disruptive behaviour mixed systems 5–7 Mladi´c, Ratko 16, 49, 60, 109 negotiated justice 95, 100, 104–6, 108, 109, 112–21, 129    sentence bargaining/sentence reduction 95–96, 100–1, 104, 113, 114–117, 118–20, 129, 195, 209–12, 233    charge bargaining 96, 97, 101, 104, 113–4, 117, 129, 210 nolo contendere 104 non-disclosure obligation 92 Norman, Sam Hinga 17–8, 35, 60, 84, 86, 87, 186, 187–9, 212–4 obstruction of justice 133–4   see also contempt of court offences against the administration of justice 127   see also contempt of court Office of Public Counsel for the Defence (at ICC) 83 oral proceedings 13–4 pardon see early release Plavši´c, Biljana 120, 210–2, 233 plea agreement see negotiated justice plea bargaining see negotiated justice political activities of defendants/detainees 154, 157, 159–60, 161, 169–70, 171–4, 181–3, 194, 233 presence of defendant see proceedings in the absence of the defendant press, contact of detainees/defendants with, see media, contact of detainees/defendants with preventative detention 20, 23, 29 ‘problem defendants’ 79, 90, 195–6, 217–29, 234–6 proceedings in the absence of the defendant 20, 22, 26, 32, 35, 36, 36–62, 193    confirmation hearing 52–4, 60

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Index    inability to attend 39, 41, 42, 44–5, 49–50, 55, 56, 59, 61, 222–4,    participation via video-link 39, 49–50, 54, 58–9    refusal/waiver of right to appear 39, 41, 43, 45, 46, 50–1, 54, 55, 56–7, 59, 61–2, 218–9, 226–9    removal from courtroom 38, 40–1, 42, 44, 46, 49, 54, 56, 59, 61, 93, 99, 102, 107, 127–8, 130–1, 133, 227    Rule 61–proceedings (at ICTY/ICTR) 47–8, 60, 230    Rule 71bis-proceedings (at ICTR) 48, 230–1   “true” in absentia proceedings 37, 40, 41–2, 45, 46, 46–7, 52, 57–8, 59–60, 193, 214–6, 231      re-trial 40, 44, 45, 58, 21 provisional release 31, 32–3, 51, 212   see also under detention reconciliation 52, 114, 117, 210, 230–1   see also under historical record, establishment of reduction of sentence see early release remorse see under sentencing revisionism, combating of 114   see also under historical record, establishment of right to presence see proceedings in the absence of the defendant Robertson, Geoffrey 235 Rule 11bis transfer (at ICTY/ICTR) 29, 121, 122–3, 200–1 Rule 11bis transfer (at SCSL) 17, 216 Rule 61 proceedings see under proceedings in the absence of the defendant

   hearings with SCSL defendants 187–9, 194, 208, 212–4 Sluiter, Göran 227–8 Special Court for Sierra Leone 8, 208, 212–4, 218–9 and passim Special Tribunal for Lebanon 8, 214–6, 231 and passim Srebrenica 204, 205, 210 standby counsel 69, 77, 222, 226–9 statements by defendant 67, 82, 83, 87, 88–9, 137, 138, 139, 141, 142–5, 145–6, 147–8, 149    ‘last word’ 67, 68, 137–8, 138, 139, 149   Einlassung 136–7   interrogatoire 138    as witness see under witness stay of proceedings 35, 168, 178 sub judice matters, statements on 154–5, 162, 175, 183, 189, 191 ‘substantial trial disruption’ 50, 61, 223–4 summons to appear 175–6, 180–3, 190 Taylor, Charles 56, 57, 60, 84–5, 187, 188–9 termination of proceedings 14–8 theatrical aspect of criminal trials 204 ‘time served’ 119, 168–9 Tolimir, Zdravko 30, 77 trial by default see under proceedings in the absence of the defendant trial strategy see defence strategy Truth and Reconciliation Commission of Liberia 188–9

safe-conduct 59, 190 ‘safe house’ 165, 180, 190 Sankoh, Foday 35 Schabas, William 213 Scharf, Michael 234–5, 236 Schomburg, Wolfgang 5n self-representation 64, 67, 68, 70, 72, 73–4, 74–79, 82, 83–5, 87, 89, 218–9, 220–6, 226–9 sentence reduction see under negotiated justice sentencing 100    behaviour at trial as aggravating circumstance 94, 100, 103, 108, 111–2, 128, 131–2, 134    behaviour at trial as mitigating circumstance 96, 101, 104–7, 114, 117, 123–5, 129–30, 132–3, 134–5   see also under negotiated justice Šešelj, Vojislav 30–1, 49, 75, 79, 109, 144, 169–70, 226–9 ‘show trial’ see under historiography Sicherungsverteidiger 66 Sierra Leone Truth and Reconciliation Commission 8

UN Body of Principles for the Protection of all Persons Under Any Form of Detention or Imprisonment 11, 163 US criminal procedure 7, 10 and passim Uwilingiyimana, Juvénal 122 Verfahrenshindernis 13 Verständigung 95–97 Wald, Patricia M. 236 witness 140    defendant as witness 139, 141, 144–5, 146, 146–7, 149    questioning by defendant 82, 137, 138    refusal to testify 99    false testimony 94, 99, 103, 111, 128, 131, 134, 139, 141–2, 146–7, 149    crown witness 97–8, 101, 106, 108, 122–3, 129–30, 132, 134, 195 Wladimiroff, Michael 175 World Medical Association 27 Zacklin, Ralph 231 Zigiranyirazo, Protais 50, 223–4 Zwangsverteidiger see Sicherungsverteidiger

249