Document Type
Article
Publication Date
Fall 7-1-2003
Abstract
This article serves two purposes. The first is to explore, and if possible, determine, what "international standards" exist regarding minimum levels of defense representation in international and war crimes tribunals. Military commissions are included in this latter category. The second purpose is to determine whether, in the current United States military commission scheme, defense counsel are expected to provide "adequate representation" within the requirements of both domestic and international law. Part I of this article explores the evolution of legal rights accorded to enemy combatants under both treaty and customary international law. Part II of this article addresses the meaning of "effective representation" as defined under international law. The ICTY and ICTR are compared and particular attention is paid to the ICTY case of Prosecutor v. Dusko Tadic, and the ICTR case of Prosecutor v. Jean Paul Akayesu. Finally, Part II analyzes codes of defense counsel ethics and privileges between attorney and accused in each ad hoc tribunal. Part III of this article examines the Constitutional and common law right to effective assistance of counsel. While both the United States Constitution and common law principles bear significant impact on international understanding, this paper conducts a separate analysis is to ascertain whether the application of United States law as a guideline meets international minimum standards. In this arena, this article considers the uniqueness of military representation is covered in regard to the meaning of effective representation of counsel. Part IV reviews the existing codes of ethics for military defense counsel as a guideline for ensuring effective and zealous representation. Finally, the article concludes with an assessment that, in terms of military defense counsel representation, the current military commission scheme meets or surpasses both international understandings and domestic legal standards.
Publication Title
Indiana International and Comparative Law Review
Volume
14
Issue
1
First Page
175
Recommended Citation
Joshua E. Kastenberg,
The Right to Assistance of Counsel in Military and War Crimes Tribunals: An International and Domestic Law Analysis,
14
Indiana International and Comparative Law Review
175
(2003).
Available at:
https://digitalrepository.unm.edu/law_facultyscholarship/425
