A fundamental aspect of United States criminal law is the presumption of innocence until proven guilty. A corollary right gives every American a Constitutional right to counsel or the right to represent herself in person if she so chooses. In international criminal law, similar fundamental rights are theoretically offered to accused persons under the statutes of the courts and under general international human rights law. However, unlike the U.S. criminal justice system, international criminal tribunals have generally failed to honor the lofty promises contained in their constitutive instruments. But it is not the principled lack of adherence to ensuring the due process rights of accused persons that has caused problems in concrete cases. Rather, their Achilles Heel has been their abject failure to create independent defense offices that would fearlessly safeguard the rights of those accused of the worst crime known to law. In this Article, I analyze the absence of organs tasked with guaranteeing the rights of the defense in international criminal law and explain why that is bad for any credible system of justice. I then explain how the organizational charts of the United Nations courts for the former Yugoslavia, Rwanda and Sierra Leone omitted the defense and essentially treated them as second class citizens before the eyes of the law. This sets the stage for me to show why the creation of the first full-fledged defense organ in international criminal law by the UN Special Tribunal for Lebanon is a welcome advance to the maturing of international penal tribunals from primitive to more civilized institutions. I argue that, if the legal provision contained in the Lebanon Tribunal statute is matched with the independence and resources needed to help realize defendant rights, it will likely become one of its biggest legacies to international law.
Charles Chernor Jalloh,
The Special Tribunal for Lebanon: A Defense Perspective
, 47 Vand. J. Transnat'l L. 765
Available at: https://ecollections.law.fiu.edu/faculty_publications/256