Background Briefing

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Imposing a Lawyer Against the Will of a Defendant

What if the court disallows the defendant’s chosen lawyer and the defendant rejects any other lawyer appointed by the court? International fair trial guarantees allow a lawyer to be appointed to a defendant “where the interests of justice so require.”13 Courts have sometimes imposed a lawyer against the will of a defendant, as a last resort, in order to assist the court and ensure that the defendant’s interests are properly represented.

International criminal tribunals have decided that, in some cases, “the interests of justice” dictate that the defendant must be represented by an experienced lawyer in order to make sure the defendant receives a fair trial.14 A competent and experienced lawyer assists not only the defendant, but also the court, by ensuring all possible defenses and legal issues are fully argued, and that the trial is efficient.

Nevertheless, imposing a lawyer against the will of a defendant also carries very serious risks. The presence of a defense lawyer in the court room may help a trial look fair, but if the defendant refuses to instruct the lawyer and does not trust him or her, then the trial may still be unfair because an effective defense is impossible. Also, the lawyer appointed by the court must have sufficient expertise and experience to provide an effective defense for the kinds of crimes charged, and must be independent enough to vigorously defend a client who rejects his or her assistance.

So, when the court takes the step of appointing a lawyer against the defendant’s will, it becomes the guardian of the defendant’s fair trial right to effective legal assistance.15 In other words, the court takes on the burden of ensuring that the defense lawyer mounts an effective and competent defense. A court has to keep in mind that the lawyer might be acting without cooperation from his or her client.16 This might mean that the court has to be proactive to make sure the defense lawyer thoroughly responds to the charges against the defendant.

A court also has to ensure that the defense lawyer appointed in the middle of a trial has sufficient expertise and has had adequate time to prepare the case, even if this means additional delays. This is a particular challenge for the trials at the Iraqi High Tribunal.

While the Iraqi High Tribunal is an Iraqi court, it is hearing international criminal law charges against the defendants. These are complex and lengthy cases, which are a challenge to any legal system. As one international criminal law expert points out, “the gamut of legal skills used in ordinary domestic criminal cases is insufficient for the trial of an accused war criminal. Defense counsel must be fluent in substantive and procedural legal aspects of international humanitarian law, comparative law, and trial and written advocacy skills … [M]ounting a defense to an international crimes charge has proven quite daunting …”17

The Iraqi legal profession’s thirty-year isolation from developments in international criminal law means that even senior Iraqi criminal lawyers have no experience in such cases and almost no knowledge of substantive international criminal law.

An Iraqi defendant is fully entitled to choose an Iraqi lawyer who does not have expertise in international criminal law: this is the exercise of his or her right to legal assistance of his or her own choice. But if the court imposes a lawyer on a defendant against his or her will, it assumes a degree of responsibility for the competence of the lawyer.

Lawyers working for the Tribunal’s Defense Office (“Defense Office”) stated to Human Rights Watch in October 2005 that they had received one or two training sessions in international criminal law and procedure. As of October 2005, the Defense Office was not fully functional and only a handful of lawyers had been appointed and given this limited training. It is questionable whether the new lawyers recruited by the Defense Office between October 2005 and the present have been adequately trained.

From its observation of trial proceedings between October and December 2005, Human Rights Watch has real concerns about the capacity of Defense Office lawyers to effectively defend their clients, given the lack of training. Although two defendants in the al-Dujail trial were represented by Defense Office lawyers since the beginning of the trial, these defense lawyers were completely passive in court and did not ask a single question of witnesses, at any session between October 19, 2005 and January 29, 2005. One of these lawyers stated to Human Rights Watch in October 2005 that he had not met with his client, even though he had been appointed a month earlier.

It is also doubtful that the defense lawyers appointed for the defendants on January 29, 2006, have had adequate time to prepare their clients’ defense. The Defense Office received copies of the trial dossier at the same time as the defendant’s chosen lawyers. However, being in receipt of documents, and being actively engaged in the preparation of a defendant’s case – in consultation with the defendant – are quite different things. Simply following the proceedings on video and reading the case file do not amount to adequate preparation for the defense of a lengthy trial for crimes against humanity.



[13] ICCPR, art. 14(3)(d).

[14] Prosecutor v Barayagwiza, Decision on Defense Counsel Motion to Withdraw, 2 November 2000 (ICTR); Milosevic v Prosecutor, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, November 1, 2004 (confirming power of court to impose counsel but overruling decision to do so) (ICTY); Prosecutor v Norman, Fofana and Kondewa, SCSL-2004-14-T, Decision on the Application of Samuel Hinga Norman for Self-Representation under Article 17(4)(d) of the Statute of the Special Court, June 8, 2004 (Special Court for Sierra Leone); Prosecutor v. Sesay, Kallon and Gbao, July 6, 2004, Decision on Application to Withdraw Counsel; affirmed on appeal, Gbao – Decision on Appeal Against Decision on Withdrawal of Counsel, November 23, 2004 (Special Court for Sierra Leone); Croissant v Germany, 13611/88, September 25, 1992, para.29 (European Court of Human Rights).

[15] Daniel Pinto v. Trinidad & Tobago, Communication 232/1987, July 18, 1989, para. 12.5; Wright and Harvey v. Jamaica, Communication 459/1991, October 27, 1995, para. 10.5; Kelly v Jamaica, Communication 250/1987, para. 11.4 (United Nations Human Rights Committee).

[16] Gbao – Decision on Appeal Against Decision on Withdrawal of Counsel, November 23, 2004 (Special Court for Sierra Leone), para. 52.

[17] Michael Scharf, Self-Representation versus Assignment of Defense Counsel before International Criminal Tribunals, Case Research Paper Series in Legal Studies, October 2005, p.10.


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