Recent historical scholarship has demonstrated that the practice of self-representation at common law was developed and promoted not to secure a valued right to the accused but rather to compromise the defendant’s ability to present an effective defense - by denying him an effective right to be represented by counsel. The Supreme Court in Faretta v. California stood this history on its head in order to read into the Sixth Amendment an implied right to self-representation equal to the now preeminent right to counsel. The Faretta doctrine was carelessly adopted yet has been resolutely defended by the Supreme Court, to the almost universal chagrin of those most directly affected by its commands. The recent Supreme Court case of Indiana v. Edwards is only a modest retreat from the pointless imposition on the lower courts of a structurally and normatively incompatible right within the context of the contemporary counsel-driven system of criminal justice.
A putative right to self-representation silently entered international law via a back door at Nuremberg as a result of that tribunal’s near-wholesale adoption of the apparent rights and protocols of the common law adversarial system. It was subsequently adopted in the International Covenant on Civil and Political Rights as one of the standard “rights of the accused” but never actually put into effect in international law until the creation of the various war crimes tribunals of the last two decades. The right to self-representation has almost immediately replicated its experience in American law by creating a shameful series of disreputable prosecutions. It has become another example of a feature of the adversarial system, like that of the lay jury, which does not travel well - or at all - to the international arena. The structural and normative groundings of the international system make the right even more inapposite there than it now is in the common law system. This article calls on the International Criminal Court, the new standard-bearer of international criminal justice, to take advantage of the upcoming seven-year review of its rules and procedures to strike from its Articles a practice that has been reduced to little more than a perverse right of spectacle.
40 Geo. J. Int'l L. 919 (2008-2009)