Legitimizing International Criminal Justice: The Importance of Process Control

The last two decades have witnessed an astounding transformation of the international legal landscape as the international community has created a series of courts and tribunals to prosecute those accused of genocide, war crimes, and crimes against humanity. As a consequence of this international institution building, prosecutions are currently underway for crimes committed across the globe: in the former Yugoslavia, Bosnia, Sierra Leone, the Democratic Republic of the Congo, and Cambodia, among other places. These international criminal tribunals and particularly the first modern tribunal- the International Criminal Tribunal for the former Yugoslavia (ICTY)-have undergone two significant evolutions. One of these is widely known; the other, little known. The widely known evolution concerns the procedural and evidentiary rules governing tribunal proceedings. Whereas the ICTY’s initial rules of procedure and evidence were almost exclusively adversarial in character, the tribunal later added a number of nonadversarial elements. Subsequent tribunals have incorporated nonadversarial features from their outsets, so that international criminal procedure-to the extent such a body of law can be said to exist across tribunals-is now considered to be something of a blended procedural system. The lesser-known evolution concerns the rules governing the initiation and termination of defense representation. At the ICTY’s inception, little regulation of those matters existed. Early ICTY defendants were given broad discretion to select the defense counsel of their choice, to fire the defense counsel they had previously selected, and to refuse the assistance of defense counsel entirely. Current defendants retain much discretion, but in recent years the ICTY and the later tribunals have adopted rules restricting defendants’ choices in several important respects.