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Jens Dieckmann and Christina Kerll

Abstract

This article seeks to assess the impact of the system of ad hoc counsel on the fairness of proceedings before the International Criminal Court. The authors begin by outlining the legal framework governing the appointment of ad hoc counsel, and then consider in greater detail the various investigative and pre-trial stages in which ad hoc counsel have been appointed. The authors further seek to identify the various issues which have arisen as a result of individual ad hoc counsel's conduct before the Court. Finally, they consider what impact the system of ad hoc counsel can have upon the fairness of subsequent trial proceedings, and what future developments in the system could promote the fairness of the overall proceedings before the Court.

Jens Dieckmann and Christina Kerll

Abstract

The ICTY and ICTR have been put under an enormous time pressure to comply with the deadlines scheduled by the so-called Completion Strategy, which was announced by the United Nations Security Council in its Resolutions 1503 and 1534. This strategy called upon the two ad hoc Tribunals to focus on the trials of the most senior leaders and transfer intermediary- and lower-level accused to competent national jurisdictions in order to complete all trial activities at first instance by 2008 and all of its work by 2010. Rules 11bis of the ICTY and ICTR Rules of Procedure and Evidence were consequently amended to provide for the referral of indictments to national courts. While the ICTY to date has issued ten Referral Bench decisions and seven appellate decisions in Rule 11bis cases, the ICTR has only just initiated its referral practice. It is therefore time to examine the ICTY's jurisprudence on referrals as they will have a large impact on referral cases presented before the ICTR. This article critically analyses the development of the Tribunals' case law on referral cases from the point of view of the Defence. It provides an exhaustive overview of the jurisprudence in Rule 11bis proceedings, and examines the extent to which this jurisprudence has developed reasonable responses to the strict guidelines of the UN Security Council.