Description
What role does the defence counsel play in international criminal justice? This paper explores how the role of the defence counsel is understood in international criminal justice, interrogating what competing and various conceptualisations reveal about the character of international criminal law as both a legal practice and a normative project. Despite the centrality of legal representation to fair trial guarantees enshrined in international legal instruments—from the ICCPR to the statutes of international tribunals—defence lawyers as practitioners and participants within the practice of international criminal justice remain underexamined. This scholarly lacuna reflects the ambiguous and often uncomfortable position defence practitioners occupy within the field: essential to its legitimacy, yet institutionally and symbolically marginalised. Drawing on literature, tribunal statutes, and preliminary empirical research, the paper develops a conceptual framework to analyse how defence counsel navigate their complex position through five ideal-type archetypes: the (1) Criminal Lawyer, committed to protecting defendants’ rights; the (2) Officer of the Court, a coequal participant in truth-seeking; the (3) Provocateur, challenging the premises of international justice; the (4) Human Rights Advocate, pursuing normative reform through defence work; and the (5) Legitimator, stabilising the system’s procedural credibility. Ultimately, these archetypes illuminate how defence counsel function simultaneously as an insider and outsider to the practice of international criminal justice. The paper thus argues for an understanding of the defence not merely as a procedural safeguard but as a constitutive site where the meaning and legitimacy of international criminal justice is constructed, contested, and reproduced—bringing to light the kind of justice international criminal justice can, or cannot, deliver.
