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1. MICHAEL BOHLANDER*
‘A FOOL FOR A CLIENT’ – REMARKS ON THE FREEDOM
OF CHOICE AND ASSIGNMENT OF COUNSEL AT THE
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE
FORMER YUGOSLAVIA
Since 1993 there has been a proliferation of international or
‘internationalised’ criminal courts, as evidenced by the creation of the
International Criminal Tribunal for the former Yugoslavia (ICTY),
the International Criminal Tribunal for Rwanda, the International
Criminal Court, the Special Court for Sierra Leone, the Special
Chambers in Cambodia and East Timor, the mixed panels in Kosovo
and the new war crimes court in Bosnia-Herzegovina. This brief paper
deals with the position of the defence in one of those courts, the ICTY,
and more specifically with the issue of how the freedom of choice of
counsel can be reconciled with the requirements of the interests of
justice in such complex proceedings. The developments in the cases of
Milošević and Šešelj will likely have an impact in the other tribunals1
;
however, for reasons of space, these are not treated here.2
The basic elements and the procedural structure of the law of the
ICTY are regulated by the Statute and the Rules of Procedure and
Evidence (RPE). The structure is mostly adversarial. Admission to
practice before the ICTY is dealt with under Rule 44 et seq. of the
* Professor of Law, University of Durham (UK); Dr. iur.; Richter am Landgericht
a.D. – This paper is based on a lecture given at a symposium on defence issues in
Europe at the University of the Saarland, on 30 January 2004. It was updated to
state the laws as of March 2005
1
The Milosˇevic´ jurisprudence has been applied, for example, by the Special Court
for Sierra Leone in Prosecutor v. Norman et al. (Case No. SCSL-04-14-PT), Decision
on the Application of Sam Hinga Norman for Self-Representation Under Article
17(4)(d) of the Statute of the Special Court, 8 June 2004.
2
See, for more detailed information on the hybrid courts, Michael Bohlander &
Renate Winter, ‘Internationalisierte Strafgerichte auf nationaler Ebene – Kosovo,
Kambodscha, Sierra Leone und Timor-Leste’, in INTERNATIONALE STRAFGERICHTE
(Stefan Kirsch, ed., forthcoming 2005), and DEFENSE IN INTERNATIONAL CRIMINAL
PROCEEDINGS (Michael Bohlander, Roman Boed & Richard J. Wilson, eds., forth-
coming 2005).
Criminal Law Forum (2005) 16:159–173 Ó Springer 2005
DOI 10.1007/s10609-005-0566-6

2. Rules of Procedure and Evidence.3
The ‘constitutional’ foundations
of the defence before the ICTY are to be found in Articles 20 and 21
of the Statute, and the sections relevant for our topic are:
Article 20
Commencement and conduct of trial proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious and that
proceedings are conducted in accordance with the rules of procedure and evidence,
with full respect for the rights of the accused and due regard for the protection of
victims and witnesses.
. . .
Article 21 Rights of the accused
. . .
4. In the determination of any charge against the accused pursuant to the present
Statute, the accused shall be entitled to the following minimum guarantees, in full
equality:
(a) . . .
(b) to have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his or her own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself or herself in person or through
legal assistance of his or her own choosing; to be informed, if he does not have legal
assistance, of this right; and to have legal assistance assigned to him, in any case
where the interests of justice so require, and without payment by him in any such
case if he does not have sufficient means to pay for it;
. . .
Article 21(4)(d) raises the problem of which procedural model is at the
heart of the position of the defence: Is it a protective model of man-
datory representation in certain cases, or is it a pure legal aid model
without compulsory assignment of counsel? The wording would sug-
gest the latter, but the proceedings against Milošević and Šešelj have
shown that obstructive behaviour or bad health of the accused may
create insurmountable problems in the case of an accused defending
himself, that may even lead to a complete standstill of the trial. What
followsis a critical reviewofthejurisprudenceoftheICTY onthisissue.
I. MILOŠEVIĆ – DECISION OF 4 APRIL 2003
Trial Chamber III, at the time consisting of Judges May, Robinson
and O-Gon Kwon, a majority of them common lawyers, had to face
the problem that Milošević did not want to be represented by counsel,
was in very poor health owing to high blood pressure and kept making
3
See <www.un.org/icty> in the folder ‘‘Basic Documents’’ for the latest version
of the Statute and the RPE.
MICHAEL BOHLANDER
160

3. political speeches.4
The prosecution feared that there might be deficits
in the truth-finding process, ineffective defence, delays and possibly an
end to the trial based on a lack of fitness to stand trial on the part of
the accused. They made an application to the Trial Chamber for the
assignment of counsel to counter these problems. The background for
Milošević’s insistence on defending himself was to a large part based
on the practice of the ICTY Trial Chambers: An accused who is
represented by counsel only participates in the proceedings by making
an unsworn statement or giving evidence under oath. He has no right
himself to ask questions, i.e., to examine witnesses in chief or cross-
examine them, which is based on common law practice.
The Trial Chamber refused to assign counsel.5
Noting article
21(4)(d) of the Statute, it argued that a plain reading of this provision
indicated that there was a right to defend oneself in person. The Trial
Chamber was unable to accept that it would allow for the assignment
of defence counsel against the wishes of the accused in the present
circumstances. It noted further that the proceedings of the ICTY were
essentially adversarial and against that background the discussion had
to follow.6
Adversarial proceedings were said to be a feature of the
common law and to find little echo in the civil law. The imposition of a
defence counsel upon an accused who does not want one was seen to be
a feature of inquisitorial systems, but not of adversarial systems. The
reasons for the common law rule were traced to a United States Su-
preme Court case, Faretta v. California, which concerned the question
of whether a defendant has a right under the United States Constitu-
tion to proceed without counsel when he or she voluntarily and intel-
ligently elects to do so. The court there noted that ‘[t]his Court’s past
recognition of the right of self-representation, the federal-court
authority holding the right to be of constitutional dimension, and the
state constitutions pointing to the right’s fundamental nature form a
consensus not easily ignored. [. . .] We confront here a nearly universal
conviction, on the part of our people as well as our courts, that forcing
4
Prior to that, the Trial Chamber had already assigned three attorneys as
amici curiae, ostensibly in order to assist the court, not to take the role of defence
counsel. See Michael Bohlander, ‘The Defence’, in INTERNATIONAL CRIMINAL LAW
DEVELOPMENTS IN THE CASE LAW of the ICTY 35, 40 (Gideon Boas & William
Schabas, eds., 2003).
5
Prosecutor v. Milosˇevic´ (Case No. IT-02-54-T), Reasons for Decision on the
Prosecution Motion Concerning Assignment of Counsel, 4 April 2003, paras. 10 et
seq. (references omitted). The references to the cases and literature cited by the
Tribunal can be found in the Trial Chamber’s decision.
6
Ibid., paras. 20 et seq.
A FOOL FOR A CLIENT 161

4. a lawyer upon an unwilling defendant is contrary to his basic right to
defend himself or herself if he truly wants to do so.’ It found that ‘[t]he
language and spirit of the Sixth Amendment contemplate that counsel,
like the other defence tools guaranteed by the Amendment, shall be an
aid to a willing defendant – not an organ of the State interposed be-
tween an unwilling defendant and his right to defend himself or herself
personally. To thrust counsel upon the accused, against his considered
wish, thus violates the logic of the Amendment. In such a case, counsel
is not an assistant, but a master, and the right to make a defence is
stripped of the personal character upon which the Amendment insists.’
It further pointed to the odium of the 16th century Court of Star
Chamber,7
which in English legal history was the only one that had
adopted the practice of forcing counsel upon an unwilling defendant in
criminal proceedings. It referred to Lord Stephen in the History of the
Criminal Law of England: ‘There is something specially repugnant to
justice in using rules of practice in such a manner as to debar a prisoner
from defending himself, especially when the professed object of the
rules so used is to provide for his defence.’ There was, in the opinion of
the Trial Chamber, a further reason for the right to self-representation
in common law.8
While, it said, it may be the case that in civil law
systems it was appropriate to appoint defence counsel for an accused
who wished to represent himself or herself, in such systems the court
was fulfilling a more investigative role in an attempt to establish the
truth. In the adversarial systems, it was the responsibility of the parties
to put forward the case and not for the court, whose function it was to
judge. Therefore, the Trial Chamber argued, in an adversarial system
the imposition of defence counsel would effectively deprive the accused
of the possibility of putting forward a defence. Article 21(4)(d) of the
Statute could thus be said to be reflective of the common law position.
The obligation of ‘putting a case’, that is putting forward the defence
version of events was reflected in Rule 90(H) of the Rules of Procedure
and Evidence. Such an obligation could not be fulfilled by counsel who
was not instructed by an accused as to the defence to be put forward.
The Trial Chamber then turned to international and regional hu-
man rights conventions and the case law under them.9
In particular,
the Prosecution had argued that Croissant v. Germany, a case before
7
Ibid., para. 22.
8
Ibid., paras. 24 et seq.
9
Ibid., paras. 27 et seq.
MICHAEL BOHLANDER
162

5. the European Court of Human Rights (ECtHR), could be adduced for
the proposition that defence counsel could be imposed on an accused.
Croissant had appointed two lawyers, but the court had appointed a
third one. In holding that there had been no violation of Article 6(3)(c)
of the European Convention on Human Rights, the ECtHR had held
that the right to be defended by counsel of one’s own choosing could
not be considered to be absolute. It was for the courts to decide
whether the interests of justice required that the accused be defended
by counsel appointed by them. When appointing defence counsel the
national courts had to have regard to the defendant’s wishes, but
could override them if there were relevant and sufficient grounds for
holding that it was necessary in the interests of justice.
The Trial Chamber noted that Croissant v. Germany was not
concerned with the case of an accused representing himself. It was thus
distinguishable from the case of Milošević. However, it emphasised a
passage where the ECtHR declared that the requirement that a
defendant be assisted by counsel at all stages of the proceedings could
not be deemed incompatible with the Convention. The Trial Chamber
went on to note that the Human Rights Committee found in Michael
and Brian Hill v. Spain that the accused had a right to defend himself
or herself pursuant to Article 14(3)(d) of the International Covenant
on Civil and Political Rights. The Spanish courts had denied one of
the appellants the right to defend himself. The Committee noted that
Spanish legislation did not allow an accused to defend himself or
herself, and held that this right had not been respected.
The Trial Chamber concluded that international and regional
conventions articulated a right to defend oneself in person. It was
possible that they allowed for certain exceptions to that principle, but
the Chamber noted that the only case on the issue decided under
these conventions which the Trial Chamber had been able to find, did
not allow for such an exception, namely Michael and Brian Hill
v. Spain. Despite the fact that the Human Rights Committee did not
discuss its findings in any detail, the case was, in the eyes of the Trial
Chamber, highly relevant to the interpretation of article 21(4)(d) of
the ICTY Statute. In the Trial Chamber’s view, it was appropriate to
be guided by the International Covenant on Civil and Political Rights
and the Human Rights Committee’s interpretation of it, which con-
firmed the right to self-defence and rejected the imposition of defence
counsel on an unwilling accused.
There were, in the opinion of the Trial Chamber, additional
practical reasons for not appointing defence counsel to Milošević. If
counsel were appointed, the Trial Chamber would have to take one of
A FOOL FOR A CLIENT 163

6. two courses: Should the Accused refuse to instruct counsel, the Trial
Chamber could either not allow Milošević to make submissions and
question witnesses, thereby preventing him from putting forward any
defence, or it could allow him to make submissions and question
witnesses, in which case defence counsel could do no more than the
amici curiae.
The Trial Chamber was, at the end of the day, satisfied that
Milošević was competent to defend himself or herself in person.10
He
had been advised that it would be in his best interests to accept the
assistance of defence counsel, but, nonetheless, he was entitled to
defend himself in person, under the proviso that certain scenarios,
such as Rule 80(B) of the Rules of Procedure and Evidence, which
provides that a Trial Chamber may order the removal of an accused
from the courtroom and continue the proceedings in the absence of
the accused if the accused has persisted in disruptive conduct fol-
lowing a warning that such conduct may warrant the removal of the
accused from the courtroom, could result in the Chamber taking the
view that the accused had relinquished his right to defend himself or
herself in person.11
The Trial Chamber thus argued that the procedure before the
ICTY was essentially adversarial – one of the rare unambiguous
statements of the Tribunal on this issue, that mandatory represen-
tation was an emanation of inquisitorial procedure, and that there-
fore the assignment against the will of the accused had no place in the
practice before the ICTY. When examining the sixth amendment to
the United States Constitution and Faretta v. California12
the Trial
Chamber, however, overlooked the fact that under that decision, and
according to the more recent jurisprudence of the United States
Supreme Court, the assignment of standby counsel against the will of
the defendant was permissible, as was shown in McKaskle v.
Wiggins,13
and that the Supreme Court in Martinez v. Court of
Appeal of California14
refused to acknowledge a right to self-repre-
sentation at the appellate stage. The Trial Chamber also conveniently
omits to mention that three of the justices, among them the then
Chief Justice Burger and the present Chief Justice Rehnquist, au-
10
Ibid., para. 39.
11
Ibid., para. 40
12
422 US 806 (1975).
13
465 US 168 (1984).
14
120 SCt 684 (2000).
MICHAEL BOHLANDER
164

7. thored a joint dissenting opinion, which contains serious arguments
against the majority opinion.15
The historical aside on the inquisitorial model, by likening it to the
practices before the Court of Star Chamber, is misconceived, because
the procedure used there is the exact opposite of the practice in most
civil law systems, where the accused can always participate, make
motions, etc. That the adversarial system of ‘putting a case’ by the
parties – something counsel cannot do without the trust of and
instructions by the client – is used as an acceptable solution to the
problem based on the insinuation that to do otherwise would mean to
deny the accused a proper defence, loses sight of the real issue, which
is that this conclusion is based solely on the narrow common law view
that a client may not participate in the proceedings himself anymore
once he is represented by counsel. The Trial Chamber’s arguments
relating to the Star Chamber are therefore led ad absurdum, because
the practice of the ICTY had precisely the effect of silencing the
accused as was the case in that infamous tribunal.
When discussing the human rights conventions, the Trial Chamber
did recognise the effect of Croissant, but distinguished the case on the
facts. For no apparent reason, in paragraph 36, the case is cursorily
dismissed as a possible exception, but Hill v. Spain, a case without any
written legal reasoning, is accepted as the only case decided under the
conventions, something that defies comprehension given the previous
treatment of Croissant. The additional practical problem of what
course the court should take is based on the same narrow under-
standing of the role of the accused in the common law as discussed
above. Moreover, the fact that the Trial Chamber had previously ap-
pointed three amici curiae and the remit of their mandate show that the
Chamber had appointed de facto standby counsel.16
II. ŠEŠELJ – DECISION OF 9 MAY 2003
Almost exactly one month later another Trial Chamber presided over
by the German judge Schomburg and judges Mumba and Agius, again
15
The consequences of such a wide-ranging view are illustrated by the almost
surrealist facts of People v. Reason, 37 NY2d 351, at footnote 4: ‘An example of
defendant’s irrelevant rambling follows: ‘‘The issue of the dead belong to God. It’s in
the bible. Each of the dead belong to God. God seeks the past. Life gives birth to
time, time is passed, just passed, time passed, just passed. Anticipate time. Time is
past. Hour has already been. I wrote right here, I would like to repeat that and I
would, I would like to repeat that.’’’
16
See Michael Bohlander, supra note 4.
A FOOL FOR A CLIENT 165

8. a common lawyer majority, had to decide the same issue on an
application by the prosecution in the case against Šešelj. The Chamber
examined the Milošević decision discussed above and found as follows:
Article 21 of the Statute, and the jurisprudence of this Tribunal and the Rwanda
Tribunal, leave open the possibility of assigning counsel to an accused on a case by
case basis in the interests of justice. The existence of Rule 45 Quarter of the Rwanda
Tribunal’s Rules of Procedure and Evidence confirms that the assignment of counsel
in the interests of justice to represent the interests of an accused is considered by the
Rwanda Tribunal to be in conformity with Article 20 of its Statute which has the
same wording as Article 21 of this Tribunal’s Statute. In reaching its decision in this
case, the Trial Chamber takes the right to self-representation articulated in the
Statute as a starting point, but notes that according to international and national
jurisprudence, this right is not absolute.
The phrase ‘in the interests of justice’ potentially has a broad scope. It includes the
right to a fair trial, which is not only a fundamental right of the Accused, but also a
fundamental interest of the Tribunal related to its own legitimacy. In the context of the
right to a fair trial, the length of the case, its size and complexity need to be taken into
account. The complex legal, evidential and procedural issues that arise in a case of this
magnitude may fall outside the competence even of a legally qualified accused, espe-
cially where that accused is in detention without access to all the facilities he may need.
Moreover, the Tribunal has a legitimate interest in ensuring that the trial proceeds in a
timely manner without interruptions, adjournments or disruptions. . . . The attitude
and actions of the Accused . . . are indicative of obstructionism on his part.
. . .[T]he Trial Chamber is of the view that at this stage of the proceedings, the best
way to preserve the rights of the Accused while at the same time satisfying the
interests of justice is to assign a ‘standby counsel’ fulfilling the requirements of Rule
44(A).17
The Trial Chamber went on to emphasise that the right to defend
oneself was left ‘absolutely untouched’18
and that standby counsel
was not an amicus curiae but operating in the sphere of the accused
only, serving to ensure a fair and expeditious trial. The counsel-client
privilege would apply, and standby counsel would be bound in the
same way as any other counsel by the obligations protecting the
interests of an accused. The right to self-representation and the
appointment of standby counsel furthermore did not exclude the
right of the accused to obtain legal advice from counsel of his or her
own choosing, and it ‘would be a misunderstanding of the word ‘‘or’’
in the phrase ‘‘to defend himself or herself in person or through legal
assistance of his or her own choosing’’ to conclude that self-repre-
17
Prosecutor v. Sˇesˇelj (Case No. IT-03-67-PT), Decision on Prosecution’s Motion
for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence, 9 May
2003, paras. 20 et seq. (references omitted).
18
Ibid., para. 28.
MICHAEL BOHLANDER
166

9. sentation exclude[d] the appointment of counsel to assist the Accused
or vice versa.’19
Against this background, the position and duties of standby counsel
were strictly defined. He or she was: to assist the accused in the prep-
aration of his or her case during the pre-trial phase whenever so
requested by the accused; to assist the accused in the preparation and
presentation of his or her case at trial whenever so requested by the
accused; to receive copies of all court documents, filings and disclosed
materials that are received by or sent to the accused; to be present in the
courtroom during the proceedings; to be engaged actively in the sub-
stantive preparation of the case and to participate in the proceedings,
in order always to be prepared to take over from the accused at trial
(see below); to address the Court whenever so requested by the accused
or the Chamber; to offer advice or make suggestions to the accused as
counsel sees fit, in particular on evidential and procedural issues; as a
protective measure in the event of abusive conduct by the accused, to
put questions to witnesses, in particular sensitive or protected wit-
nesses, on behalf of the accused if so ordered by the Trial Chamber,
without depriving the accused of his or her right to control the content
of the examination; in exceptional circumstances to take over the de-
fence from the accused at trial should the Trial Chamber find, fol-
lowing a warning, that the accused was engaging in disruptive conduct
or conduct requiring removal from the courtroom under Rule 80(B).20
The Trial Chamber analysed the Milosˇevic´ decision and recognised
that Trial Chamber III’s argument already fell short of the mark
under common law jurisprudence. Apart from Faretta, it discussed
McKaskle v. Wiggins and Martinez v. Court of Appeal of California
on the subject of standby counsel. The Chamber made it clear that
Hill v. Spain does not deal explicitly with the issue of mandatory
representation and therefore does not provide any support or cogent
arguments for the debate.
III MILOŠEVIĆ– DECISIONS ON THE ASSIGNMENT OF
COUNSEL OF 2 AND 22 SEPTEMBER 2004, AND ON
THE MODALITIES OF COUNSEL’S ACTIVITY OF 3
SEPTEMBER 2004
On 2 September 2004, Trial Chamber III ordered the assignment of
counsel to Milošević because of the repeated delays caused by the
19
Ibid., para. 29.
20
Ibid., para. 30.
A FOOL FOR A CLIENT 167

10. deteriorating state of health of the accused; the Chamber gave its
written opinion on 22 September 2004.21
On 3 September 2004, the
conditions and modalities of service of counsel were set down by
Trial Chamber III.22
The Chamber justified its volte-face with regard
to its previous jurisprudence, by stating that it now read article 21(4)
‘as setting out a bundle of rights’23
within the principle that the ac-
cused has a right to a fair trial under article 21(2) of the Statute. The
concept of fairness not only included these rights but had a much
wider ambit, and all aspects of the conduct of the trial had to be fair
to the accused. Hence, they were described as ‘minimum guarantees.’
Fairness was the paramount requirement in criminal proceedings.24
It is in that context that the accused’s right to defend himself or
herself in person, or through legal assistance of his or her own
choosing, as set out in Article 21(4)(d), must be read. Regardless of
the issue of self-representation or legal assistance, the purpose of the
provision was held to be to secure the right to a defence as a pre-
requisite for a fair trial. If self-representation gave rise to a risk of
unfairness to the accused, steps had to be taken to secure a fair trial.
A fundamental need was ensuring that the accused had the oppor-
tunity and facility to present his defence fully and effectively. Yet that
did not oblige the court to grant the request of an accused to conduct
his own defence where his capacity to do so was so impaired that
there would be a ‘material risk’ that he or she would not receive a fair
trial. If there was a real prospect that the trial would be disrupted
with the risk that it would not be conducted fairly, the court had the
duty to establish a regime to avoid that consequence.25
It was
recognised in domestic legal systems that an accused who represents
himself and disrupts the trial by misconduct could be removed from
court and counsel appointed to conduct his defence for him.
The Trial Chamber held that there was ‘no difference in principle
between deliberate misconduct which disrupts the proceedings and
any other circumstance which so disrupts the proceedings as to
threaten the integrity of the trial. These [were] simply examples of
circumstances in which the right to represent oneself must yield to the
21
Prosecutor v. Milosˇevic´ (Case No. IT-02-54-T), Reasons for Decision on
Assignment of Defence Counsel, 22 September 2004.
22
Prosecutor v. Milosˇevic´ (Case No. IT-02-54-T), Order on the Modalities to be
Followed by Court Assigned Counsel, 3 September 2004.
23
Prosecutor v. Milosˇevic´, supra note 21, para. 29.
24
Ibid., para. 31 et seq.
25
Ibid., para. 33.
MICHAEL BOHLANDER
168

11. overarching right to a fair trial.’26
The court went on to state that ‘the
ordinary meaning of Article 21(4)(d) of the Statute, when read in light
of the object and purpose of securing for an accused his right to a
defence and to a fair trial, is that an accused has a right to represent
himself, but that right may be lost if the effect of its exercise is to
obstruct the achievement of that object and purpose. The Trial
Chamber is, therefore, entirely satisfied that, on the proper inter-
pretation of Articles 20 and 21, it is competent, in appropriate cir-
cumstances, to insist upon an accused being represented by counsel in
spite of his wish to represent himself.’27
Interestingly the decision in the Sˇesˇelj case and Croissant v.
Germany were then adduced as the basis for the new look of things,
but without any discussion as to the discrepancy between these and
the Trial Chamber’s own previous opinion:
In Prosecutor v. Sˇesˇelj, the Trial Chamber recognised that the wording of Article 21
of the Statute ‘leave[s] open the possibility of assigning counsel to an accused on a
case by case basis in the interests of justice’. Although the accused in that case made
it clear that he intended to represent himself, the Trial Chamber considered the right
to self-representation as articulated in the Statute as a starting point, but noted that
according to international and national jurisprudence ‘this right is not absolute’, and
decided that ‘standby counsel’ should be appointed with various responsibilities,
including the possibility of taking over the conduct of the defence case against the
will of the accused. . . .
Generally, a provision similar to Article 21(4)(d) of the Statute is found in the con-
stitutive instruments of international criminal tribunals, as well as international and
regional conventions on human rights. While international and regional human rights
conventions plainly articulate a right to defend oneself in person, many States parties
to those conventions have systems in which self-representation, as recognised in those
instruments, is not unqualified; thus several States parties originating from the civil
law tradition provide for mandatory defence counsel in domestic criminal procedures.
And the fact that the law of some States precludes a defendant in a criminal case from
representing himself, requiring that a lawyer assist him with his defence, is not
incompatible with the ECHR. Thus, in the case of Croissant v. Germany, the Euro-
pean Court of Human Rights held that there had been no violation of Article 6(3)(c)
of the Convention, which article contains the minimum right of an accused ‘to defend
himself or herself in person or through legal assistance of his or her own choosing’,
where the accused had appointed two counsel of his or her own choosing, but the
Regional Court insisted upon the appointment of a third in spite of the accused’s
strong objection to that appointment. The Court said that ‘it is for the courts to decide
whether the interests of justice require that the accused be defended by counsel ap-
pointed by them. When appointing defence counsel the national courts must certainly
have regard to the defendant’s wishes. . . However, they can override those wishes
26
Ibid., para. 33.
27
Ibid., para. 34.
A FOOL FOR A CLIENT 169

12. when there are relevant and sufficient grounds for holding that this is necessary in the
interests of justice’. The Court specifically noted that ‘avoiding interruptions or
adjournments corresponds to an interest of justice which is relevant in the present case
and may well justify an appointment against the accused’s wishes’.28
The fact that Hill v. Spain was of no help in deciding the issue at hand
was now recognised expressis verbis, however, again without a trace
of self-criticism in light of the Chamber’s prior views, which had
expressly preferred Hill v. Spain to Croissant as the appropriate basis
for the decision.29
The exaggerated previous reliance on Faretta was
also reduced to that decision’s real impact on the problem.30
The
Trial Chamber also dedicated more consideration to comparisons
28
Ibid., para. 41 et seq.
29
Ibid., para. 44: ‘Conversely, the United Nations Human Rights Committee
found in Michael & Brian Hill v. Spain that the accused’s right to defend himself had
not been respected, contrary to Article 14 paragraph 3(d) of the ICCPR. In that case
the Spanish courts had denied the accused the right to defend himself, over his
insistence that he wanted to do so. However, as this Trial Chamber observed in its
Decision of 4 April 2003, the Committee gave no reason for its determination. The
Committee were not faced with circumstances which can be compared to those now
being addressed.’
30
Ibid., para. 45: ‘Common law jurisdictions, in which proceedings are adversarial,
typically recognise an accused’s right to represent himself at trial. As noted in the Trial
Chamber’s Decision of 4 April 2003, the classical statement of the right to self-
representation was set out by the United States Supreme Court in Faretta v. Cali-
fornia. In recognising the constitutional right of an accused to represent himself at
trial, the Court held that forcing a lawyer upon an accused who is literate, competent,
and understanding, and who voluntarily exercises his informed free will to represent
himself by waiving his right to assistance of counsel, would be a breach of his con-
stitutional right to conduct his own defence. However, there are qualifications to this
general rule. In Faretta itself, the Court recognised that the right to self-representation
by an accused was not without limits: ‘‘the trial judge may terminate self-represen-
tation by a defendant who deliberately engages in serious and obstructionist mis-
conduct,’’ and ‘‘a State may – even over objection by the accused – appoint ‘standby
counsel’ to aid the accused if and when the accused requests help, and to be able to
represent the accused in the event that termination of the defendant’s self-represen-
tation is necessary.’’ Furthermore, the Court noted in Faretta that ‘‘[t]he right of self-
representation is not a license to abuse the dignity of the courtroom. Neither is it a
license not to comply with relevant rules of procedural and substantive law.’’
Moreover, in Martinez v. Court of Appeal of California, the United States Supreme
Court confined its holding in Faretta to a defendant’s self-representation at trial and
held that a defendant did not have a constitutional right to represent himself on
appeal. In so holding, the Court reasoned that, ‘‘[a]s the Faretta opinion recognized,
the right to self-representation is not absolute’’ and that ‘‘[e]ven at the trial level,
therefore, the government’s interest in ensuring the integrity and efficiency of the trial
at times outweighs the defendant’s interest in acting as his own lawyer.’’’
MICHAEL BOHLANDER
170

13. with civil law models.31
It accepted that while common law juris-
dictions recognised a right to self-representation, civil law systems
often made representation by counsel mandatory, especially in seri-
ous criminal cases. This was said to be the case in France, Germany,
Belgium, Austria, Switzerland, and the Republic of Korea. The Code
of Criminal Procedure of the Federal Republic of Yugoslavia of
2001, which remained in force in Serbia, provided for similar
assignments of counsel. The Chamber considered that ‘[t]he rationale
behind the mandatory assignment of counsel in these jurisdictions
appears to be that, in cases where the personal liberty of an accused is
at stake, the right to a fair trial, which includes the right to an ade-
quate and effective defence, actually imposes a duty on the State to
ensure that the accused is represented by professional counsel whose
task is to ensure that the interests of the accused are fully protected
throughout the proceedings.’32
The Trial Chamber then set out the modalities for the service of
assigned counsel:
(1) It is the duty of court assigned counsel to determine how to present the case for
the Accused, and in particular it is their duty to:
(a) represent the Accused by preparing and examining those witnesses court
assigned counsel deem it appropriate to call;
(b) make all submissions on fact and law that they deem it appropriate to make;
(c) seek from the Trial Chamber such orders as they consider necessary to enable
them to present the Accused’s case properly, including the issuance of sub-
poenas;
(d) discuss with the Accused the conduct of the case, endeavour to obtain his
instructions thereon and take account of views expressed by the Accused,
while retaining the right to determine what course to follow; and
(e) act throughout in the best interests of the Accused;
(2) The Accused may, with the leave of the Trial Chamber, continue to participate
actively in the conduct of his case, including, where appropriate, examining
witnesses, following examination by court assigned counsel;
(3) The Accused has the right, at any time, to make a reasonable request to the Trial
Chamber to consider allowing him to appoint counsel; and
(4) Court assigned counsel is authorised to seek from the Trial Chamber such further
orders as they deem necessary to enable them to conduct the case for the Accused.
The Trial Chamber is satisfied that assigned counsel will make determined efforts
to discuss the presentation of the Accused’s defence with him. Should the Accused
fail to cooperate with counsel, the trial will nonetheless proceed. If such failure on the
part of the Accused results in material which is actually relevant to the Accused’s
31
Ibid., para. 49.
32
Ibid.
A FOOL FOR A CLIENT 171

14. case not being presented, then the Accused must bear responsibility for that and
cannot plead injustice.33
However, the case was not over yet, which was mostly to do with
para. (2) of the order, which required Milošević to obtain the ap-
proval of the court if he wanted to participate actively in the pro-
ceedings. Neither he nor his defence counsel were willing to accept
this restriction and they appealed the decisions of 3 and 22 September
2004.
IV. MILOSˇEVIĆ – APPEALS CHAMBER DECISION OF
1 NOVEMBER 200434
The Appeals Chamber granted the appeal in part, by stating that the
Trial Chamber had the power to appoint counsel against the wishes
of the accused, but that the restriction in para (2) mentioned above
violated the principle of proportionality. The Appeals Chamber
sharply criticised the Trial Chamber’s approach and held:
The Appeals Chamber parts ways with the Trial Chamber, however, in its assessment
of the Order on Modalities. In spelling out the future working relationship between
Milošević and Assigned Counsel, the Order sharply restricts Milošević’s ability to
participate in the conduct of his or her case in any way. . . . In every way, then, the
Order relegates Milošević to a visibly second-tier role in the trial.
These sharp restrictions, unfortunately, were grounded on a fundamental error of
law: the Trial Chamber failed to recognize that any restrictions on Milošević’s right
to represent himself must be limited to the minimum extent necessary to protect the
Tribunal’s interest in assuring a reasonably expeditious trial. When reviewing
restrictions on fundamental rights such as this one, many jurisdictions are guided by
some variant of a basic proportionality principle: any restriction of a fundamental
right must be in service of ‘a sufficiently important objective,’ and must ‘impair the
right. . . no more than is necessary to accomplish the objective.’ . . .
The excessiveness of the Trial Chamber’s restrictions is apparent for at least three
reasons: (1) the medical reports relied on by the Trial Chamber explicitly rejected the
notion that Milošević’s condition is permanent; (2) there was no evidence that Mi-
lošević had suffered from any health problems since late July; and (3) Milošević made
a vigorous two-day opening statement without interruption or apparent difficulty.
Despite these indications of possible improvement in Milošević’s condition, however,
the Trial Chamber failed to impose a carefully calibrated set of restrictions on
Milošević’s trial participation. Given the need for proper respect of a right as fun-
33
Ibid., para. 69 (emphasis added).
34
Prosecutor v. Milosˇevic´ (Case No. IT-02-54-AR73.7), Decision on Interlocutory
Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1
November 2004, para. 11 et seq. (references omitted).
MICHAEL BOHLANDER
172

15. damental as this one, this failure was an improper exercise of the trial court’s dis-
cretion.35
After the case had returned to the Trial Chamber, assigned counsel
made a motion to be released from their duties, as the accused did not
enter into any relationship of trust with them and they considered any
further representation on such grounds as unethical. It showed the
distinct unease the common law barristers faced with the new situa-
tion of having to represent an unwilling client. The Trial Chamber –
in a questionable, confusing and unnecessary assumption of juris-
diction over an issue which fell squarely into the responsibility of the
Registrar – refused the motion by its decision of 7 December 2004,36
but certified the issue for appeal.37
This appeal had not yet been
decided at the time of writing. Counsel’s appeal against the previous
decision of the Registrar to assign them was rejected by the President
of the ICTY on 7 February 2005.38
However, this issue is not central
to the question discussed here and will thus not be elaborated on.
V. CONCLUSION
Whatever one’s views may be with respect to the principle of self-
representation, it would appear that the adage quoted by the minority
in Faretta – ‘One who is his own lawyer has a fool for a client’ –
applies to an even stronger degree in the highly complex legal envi-
ronment of the proceedings based on the often rather nebulous
concepts of international (customary) criminal law. The degree of
certainty of law and foreseeability of result used to form national
systems will take a while to be reached on the international level.
There is no reason to believe that an accused tried by interna-
tional(ised) courts is in any position to mount a proper defence if he
chooses to represent himself. The decision of the Appeals Chamber in
Milošević treads a careful middle path, but it remains to be seen
whether its approach will work in practice.
35
Ibid., paras. 16 et seq.
36
Prosecutor v. Milosˇevic´ (Case No. IT-02-54-T), Decision on Assigned Counsel’s
Motion for Withdrawal, 7 December 2004,
37
Prosecutor v. Milosˇevic´ (Case No. IT-02-54-T), Decision on Assigned Counsel
Request for Certfiication of an Interlocutory Appeal Against the Decision on As-
signed Counsel Motion for Withdrawal, 17 December 2004.
38
Prosecutor v. Milosˇevic´ (Case No. IT-02-54-T), Decision Affirming the Regis-
trar’s Denial of Assigned Counsel’s Application to Withdraw, 7 February 2005.
A FOOL FOR A CLIENT 173