Welcome back. In this video, we will continue to discuss how suspects and accused are defended before international courts and tribunals. How are the interests of the defense represented? Given the complexity of international criminal proceedings, nearly all defendants are represented by counsel that are typically appointed and funded by the tribunal. The defendant has a right to counsel and the right to legal assistance. This right is important since the early stages of proceedings. The ICC has established assistance to protect defense interests even before the identification of individual suspects or the arrest and surrender to the court. The court typically appoints counsel to represent the general interest of the defense. It may also provide a duty counsel to assist persons who are questioned by the prosecutor. Suspects and accused have a right to defend themselves in person or through a legal representative. Several prominent defendants such as or have decided to represent themselves. This has become a battlefield in court. Court officials have switched off Milosevic's microphone when he accused the Yugoslavia tribunal of trying to justify NATO war crimes committed in Yugoslavia. Tribunals have made it clear that the right to self representation is not absolute, but qualified. It must be balanced against certain interest of justice such as the integrity of the legal process and the need to ensure fair and expeditious proceedings. They have appointed amicus curiae meaning friends of the court or standby counsel in cases where defendants disrupted proceedings or suffered from health problems. The option to appoint counsel in the interest of justice is provided in the regulations of the ICC. Defense counsel are required to act in the best interest of the client, but must not obstruct justice. One of the most controversial questions is to what extent a trial can be held in the absence of the defendant? The answer differs among courts and among domestic legal traditions. The accused must generally be present during the trial. This is part of a fair trial. Some courts and tribunals have allowed exceptions. By tribunal., and the special tribunal for Lebanon, have held trials in absentia against accused, since they were unable to secure the appearance of the accused. But if foreseen, such trials are only allowed under strict conditions. Under human rights law, an accused who was convicted in absentia has the right to be retried unless he was defended at trial by a counsel of his own choosing. The Yugoslavia tribunal, and the Rwanda tribunal as well as the ICC, follow a stricter regime. They do not allow the start of trial proceedings against accused persons who cannot be apprehended. In absentia trials can only be held if an accused disrupts the trial, or if the accused is temporarily excused from presence at trial. Typically, the accused cannot simply refuse to attend a trial without a valid reason. But following pressure by the African Union concerning the trial of Kenyan President Kenyatta and Vice President Ruto, the ICC has allowed absence from trial on a case-by-case basis for accused who appear voluntarily namely based on a summons to appear. It created a special rule for persons who fulfill extraordinary public duties at the highest level. This makes heads of states a little bit less equal than other accused. How does a defense strategy succeed? A defense strategy may succeed in many different ways. Sometimes a defense motion may lead to a stay in proceedings. This is what happened in Lubyanka. Judges suspended proceedings twice due to fair trial concerns. In other cases, flaws in the prosecution case may be so egregious that the case is not admitted to trial. For instance, the ICC pretrial chamber declined to confirm charges against several defendants due to a lack of sufficient evidence in cases relating to the DRC, Darfur, and Kenya. In, again, other cases, defense challenges may force the prosecution to withdraw the charges. This occurred in the case against Kenyan President Kenyatta. In this case, the trial chamber terminated the proceedings. But this was only a partial victory for the defense. The chamber did not enter a not guilty verdict which would bar further prosecution under the ne bis in idem principle. It allowed the prosecution to bring new charges at the later date based on the same or similar factual circumstances. Finally, some trials lead to a full acquittal. There are numerous examples, the Rwanda tribunal acquitted 14 defendants. At the Yugoslavia tribunal, 19 out of 151 accused were acquitted. Famous examples are the Kupreskic brothers, Lalic or the controversial acquittal of Seselj. The ICC acquitted its first defendant in 2012 Mathieu Ngudjolo Chui, who was co-charged with Germain Katanga . If upheld on appeal, an acquittal typically clears a defendant of future charges for the same conduct. In exceptional circumstances, defendants have a right to compensation for wrongful arrest or conviction, but the threshold is high. Compensation is only awarded in cases of a miscarriage of justice. The mere fact that a defendant was detained and then acquitted does not suffice. An arrest is only unlawful if it is not based on a reasonable suspicion. An acquittal or termination of proceedings triggers compensation only in the case of grave and manifest miscarriage of justice. What do we learn from this? We've seen that defending suspects and accused is a highly complex task. First, the defense often faces biases, the world community expects convictions. It is key to recognize that a fair and effective defense serves not only the defendant, but the interest of the criminal justice system as a whole. Second, the defense benefits from the presumption of innocence, the right to remain silent, and the burden of the prosecution to prove guilt beyond reasonable doubt. But most defendants require the help of professional counsel and assistance to organize an effective defense. Mounting a defense strategy requires a vast set of skills. Defense counsel must be investigators and litigators at the same time. Third, the defense draws a number of fair trail rights that are key to the preparation of an effective defense. These include the right to an independent and impartial tribunal, the right to be informed in detail of the charges, the right to adequate time and facilities, the right to counsel, or to defend oneself in person, and the right to examine witnesses. These rights enable the defense to attack the charges and the evidence against it, and to build its own case. But the defense is never at full powers of prosecution. It needs confront the prosecution case, and in certain circumstances, submissions by victims. Judges must give a central role to the rights of the defense at all stages of the proceedings in order to balance this disparity. In the next video, my colleague, Saga Varsilief, will discuss the role of victims in proceedings. Please join us on this journey.
