by Björn Elberling. Portland: Hart Publishing, 2012. 249pp. Hardcover $126.65. ISBN: 978-1-84946-266-2.

Reviewed by Kathie Barrett, Department of Political Science and Planning, University of West Georgia, Email: kathiebarrett [at]


International courts, including international tribunals that focus on particular situations and the International Criminal Court, are the focus for the development of international criminal law since World War II. These courts adjudicate the modern definitions of crimes against humanity and genocide. Although they operate at the international level, national experiences and international human rights standards shaped their rules and procedures. Only the Special Tribunal for Lebanon adjudicates terroristic acts. However, the rule of law developed through these courts shapes international criminal trials in the post 9/11 world. An important yet unpopular aspect of both rule of law and human rights is the right of the defendant to a fair trial.

In THE DEFENDANT IN INTERNATIONAL CRIMINAL PROCEEDINGS Elberling explores two questions. What protections and limits do defendants have in international criminal proceedings? Are international criminal proceedings an effort by the international legal community to document history? Through qualitative and comparative analysis, Eberling provides rich insight into international and national criminal proceedings.

The book has two parts. The first part focuses on the defendant in criminal proceedings. Through an examination of statutes, rules of procedure, and cases, it explains the rights and limitations afforded defendants through the initial and appeals trial process. Eberling begins by explaining his methodology. Since this is a comparative study, he carefully explains his choice of cases. His international courts are the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR). He also includes two hybrid tribunals; the Special Court for Sierra Leone (SCSL) and the Special Tribunal for Lebanon (STL). Close association with the national legal system excluded other hybrid tribunal from this project. Because criminal procedures evolved at the national level, Eberling uses these as a standard to assess international procedures. The national cases are Germany, France, and the United States. These cases reflect the variety of legal systems from which international criminal law developed. The methodological discussion finishes with defendants’ rights in international human rights law. This section considers protections in the International Covenant on Civil and Political Rights and regional human rights regimes including European Union, Organization of American States, and African Union. [*563]

In the three chapters that follow, Eberling explores particular aspects of the defendant’s participation in criminal proceedings. Although each chapter concentrates on a particular aspect of the defendant in the proceedings, Eberling does a thorough job evaluating all variations. He starts by asking the basic question then identifies several related questions. In the first of these chapters, the basic question is whether proceedings must occur in the defendant’s presence. Eberling further considers the presence of the defendant at proceedings, and the inability of the defendant to be present at proceeding whether due to illness or death. Eberling reviews each situation in detail in the law and judicial decisions of Germany, France, and the United States, the statutes and proceedings of the international courts, and the human rights regimes. His review of the inability of defendants to attend proceedings is particularly thorough covering existing mental and physical health issues, potential danger to the health of the defendant, and behavioral issues related to the defendant. These discussions also include the ability to force the defendant to receive medical care. Through this discussion, Eberling illustrates the tension between the right to a fair trial, the ability of the justice system to function effectively and efficiently, the right to health, and the right to human dignity. The death of the defendant further illustrates the tension between judicial process and human dignity.

The next chapter explores the defendant during the trial process. Here Eberling explores the relationship between the defendant and counsel, the defendant and other trial officials, and the ability of the defendant to make statements during trial. The underlying question is the ability of the defendant to have a voice during the trial. Eberling’s examination of the relationship between defendant and counsel includes the ability of the defendant to choose a counsel, communicate with counsel, and participate in the defense. Far more insightful is the discussion about the relationship between the defendant and other trial officials. Eberling questions whether defendants have an obligation to cooperate with the court and if they benefit from that cooperation. Records from the ICTY and ICTR suggest that cooperating with the court provided some benefit to the defendant. Although Eberling attempts to demonstrate the effect quantitatively, the small sample size and variance in situations limited the ability to draw clear conclusions. The effort is notable because it lays the groundwork for future research opportunities.

Finally, Eberling explores the role of the defendant in activities external to the client. In particular, he examines the ability for defendants to be released prior to and during their trials as well as their ability to comment to the media about the case. Not surprisingly given the difference in circumstances, he concludes that national standards for pre-trial and trial release are much tougher than international procedures. Similarly, international courts view defendants’ unsupervised interactions with the media less favorably than national judicial systems. However, a defendant’s counsel, who is accountable to the courts, has fewer restrictions when speaking with the media.

The filtering of media interactions is an [*564] effective lead-in to the second half of the book, which tests the thesis that international court procedures serve a histographic function. Eberling begins by explaining that he defines histography as the participation by international criminal courts in “the writing of history’. He goes on to explain that he considers only adding to the historical record, not the motivation of the international criminal courts. The remainder of this chapter discusses existing work on whether courts write history and the impact on the quality of both the trial and the history.

In the final chapter, Eberling presents evidence from the selected international criminal courts to support his thesis. The evidence presented relates back to the procedures discussed in the first half of the book. Once again, Eberling uses quantitative data to assess the impact of cooperation with the court. Using data from the ICTY he demonstrates that cooperation by defendants who can significantly contribute to the historical record results in a significant sentence decrease. All other evidence presented by Eberling is qualitative in nature. He uses statutes and decisions of the international criminal courts to demonstrate the importance of their role in documenting history. His strongest evidence is the words of those participating in or familiar with the courts, most notably an ICTY prosecutor and judge.

Eberling provides a rich description of the defendant’s role criminal trials at both the international and selected national levels. By including information from statutes, court procedures, and actual practice, he presents a thorough assessment of the rules governing the defendant’s role. His thorough treatment of all aspects of the defendant’s trial experience, including illness and death, address the unique problems faced by the international criminal courts. The national comparisons illustrate that international criminal courts have unique procedures not necessarily reflective of rights afforded at the national level. Comparisons also clearly illustrate lack of clearly defined defendant rights in the regional human rights regimes as well as weaknesses at the international level.

Although Eberling explains his selection of international criminal courts, the circumstances surrounding the Special Tribunal for Lebanon weakened its contribution. He included the STL because of its unique mandate to handle political and terrorism related crimes. It also has a specific provision for in absentia trials. However, despite indictments it has yet to prosecute a defendant. Consequently, the statutes and procedures are in theory only.

Eberling’s evidence of the histographic role of the international criminal courts interprets actions towards defendants. International criminal courts are motivated to write a historical record of the conflict. They relate to the defendant in a way that best ensures achieving this goal. This helps explain why international criminal courts do not provide a model for defendants’ rights. The apparent sacrifice of rights in the name of history is also Eberling’s concern. He offers no recommendations to solve the conundrum. Instead, he presents the problem in a way that challenges the reader to consider the defendant’s position without prejudice. He succeeds in removing emotion, [*565] including sympathy for the victim, from the debate on defendants’ rights.

Copyright 2013 by the author, Kathie Barrett.