Foolish Like a Fox
He who represents himself has a fool for a client, goes the adage. But it’s also a truism that the courtroom can serve as a stage for a defendant—especially when that defendant is a deposed national leader intent on inflaming political unrest among his followers.
That is just the kind of spectacle Slobodan Milosevic created by representing himself before the International Criminal Tribunal for the Former Yugoslavia, according to some observers. And, they say, the same thing could happen if Saddam Hussein, the toppled leader of Iraq, asks to represent himself before a war crimes tribunal formed by that country’s provisional government.
The tribunal granted Milosevic’s request to represent himself when his trial opened in 2002 on war crimes charges stemming from his leadership of Yugoslavia during its violent breakup during the 1990s.
In September, the court reversed that decision and imposed defense counsel on Milosevic on grounds that his failing health would prevent him fromrepresenting himself as the case enters the defense stage. But on Oct. 26, the two lawyers appointed to represent Milosevic asked to be relieved and argued to the court that he should be allowed to represent himself.
Until now, Milosevic used the proceedings to his advantage, at least back home, says Michael P. Scharf, a law professor and director of the International Law Center at Case Western Reserve University in Cleveland.
“Milosevic started out as a villain,” says Scharf. “Now he’s the fourth most popular person [in Serbia] behind two sports stars and a rock star, and he got elected to parliament in a landslide last December. He campaigned during his cross-examination. He uses cross-examination as his presidential debate.”
The consequences of giving Saddam free rein in representing himself could be even greater, says Scharf.
“I think if Saddam Hussein were to do the same things as Milosevic, you would fuel the insurgency and anti-U.S. sentiment throughout the Middle East, and it would lead to civil war,” says Scharf.
The rules governing self-representation adopted by the ICTY and the Iraqi tribunal are derived from the International Covenant on Civil and Political Rights, says Scharf. The negotiation record for the covenant allows self-representation but does not deem it a right, he says. The right to self-representation has limited acceptance worldwide. In the United States, the Supreme Court first recognized a right to self-representation just 30 years ago, in Faretta v. California.
In the case of Milosevic, the decision by British Judge Richard May to allow Milosevic to proceed with his pro se defense may have been based on a misreading of the ICTY statute, maintains Scharf, who is publishing an article about the issue in the Ohio State Journal of Dispute Resolution.
But in Saddam’s case, a decision on whether to allow him to conduct a pro se defense might depend partly on whether any lawyers are even available to represent him, says Douglas Stringer, an attorney in Portland, Ore., who served as a prosecutor with the ICTY in 1997-2002.
“My understanding is that you have a defense team in Jordan that has been threatened with death should any of them come to Iraq,” says Stringer. “Very strict measures have to be created to even have them come on the ground in Iraq. He may be forced to defend himself because his lawyers can’t be present.”
The judges also would play an important role in the conduct of the trial, says Stringer. “Saddam’s ability to make speeches will depend on how closely the judge will hold him to matters of legal defense as opposed to political speech-making.”
Ultimately, the appearance of fairness might be the most important consideration in a trial with significant implications in the arena of international politics, suggests Stringer. “Perhaps, legally, a judge can impose defense counsel on someone and take the microphone away and give it to the defense counsel who has been imposed,” he says. “But in the eyes of many, the perception of fairness goes away.”