Defending the Defenders: The Role of Defence Counsel in International Criminal Trials

Abstract

Even though for 40 years it has been a fair trial requirement that persons have the right to the assistance of counsel in criminal proceedings, a clarification of what defence counsel’s role is, or should be, still seems to be required. This article therefore seeks to explain the proper role of defence counsel in criminal proceedings and in international criminal proceedings, in particular. It is contended that a clarification of this role is all the more important in the context of international criminal trials. Where lawyers (defence counsel, prosecution counsel and judges) from all over the world work together in one legal system, they will inevitably bring in a variety of assumptions on the parameters of the role of defence counsel. Clarification will prevent confusion and hopefully result in mutual respect for each participant’s role and their importance in the upholding of the rule of law in international criminal proceedings. Yet clarification of this role will not be enough to guarantee an effective defence. For an effective discharge of counsel’s functions, international criminal courts should also guarantee the availability of certain basic facilities to the defence.