This month I have collaborated with Caitlyn Delaney, a former student I have mentored and then member of the Bahtijari defence team at the Kosovo Specialist Chambers (where we defended a vulnerable client, Ismet Bahtijari). Caitlyn and I have written on the importance of defence counsel for vulnerable defendants accused of international crimes. Of course, not all those accused of horrendous crimes are vulnerable, but it is worth considering that defendants accused on a joint enterprise/common purpose basis, or of witness intimidation, can be (even military commanders – see, e.g. Ongwen). The nexus of international crimes with conflict makes this a live issue, which should be considered as a procedural requirement.
International courts and tribunals were created in the name of justice for the most egregious crimes, but defending vulnerable defendants within them can feel like working against the gravitational pull of the system, where sympathy for an accused person is inevitably publicly lacking. Any circumstances equating to vulnerability will be unique to the individual, even if they are accused of terrible crimes, and may include non-exhaustive factors as physical and cognitive abilities, addiction, environment, financial status, religion, the geosocial and political issues and exposure to environmental stressors that come from armed conflict and from being on trial – often stretched over years. While there are broad international principles regarding equity before the law, defence counsel hold the task of both advocating on behalf of Defendants and acting as guardians of their fundamental right to a fair trial.
Recent scholarship from Cusack and Dehanghani on the consideration of individual vulnerability has been critical of the European Court of Human Rights (ECtHR) in Hasáliková v Slovakia (App no 39654/15, ECtHR, 22 November 2021 (‘Hasáliková)) which narrows the interpretation of vulnerability and places reliance upon defence counsel to identify vulnerable defendants. In Hasáliková, the ECtHR acknowledged that vulnerability matters when assessing whether a trial is fair, but then effectively defined the applicant out of that category. Despite expert evidence that she had a slight intellectual disability, was emotionally immature, naïve and easily influenced, the Court held that she was not “particularly vulnerable” because she was an adult, literate, not mentally ill, and appeared to understand the charges when assisted by a lawyer.
That reasoning, as Cusack and Dehanghani observe, narrows vulnerability to something close to obvious incapacity and ignores decades of psychological research on suggestibility, acquiescence and the heightened risk of false confession and misunderstanding among people with intellectual and psychosocial disabilities. For defence lawyers, the message is unsettling: even when vulnerability is evidenced, documented and argued, it may be absorbed into a legal category so tight that many of the clients who most need protection will be left outside with a knock on effect that public understanding of vulnerability is also reduced.
Hasáliková reveals an almost mythical protective power of a defence lawyer. The majority placed heavy weight on the fact that the applicant had legal assistance from her first questioning, signed that she understood her rights and did not expressly complain about her lawyer or the process. That formal picture was treated as sufficient to neutralise concerns about her ability to navigate the system.
For those who defend vulnerable suspects, this is a familiar myth. A lawyer’s presence does not automatically cure deficits in comprehension, memory or communication, even where counsel is rained in disability or trauma, there will be constraints from tight procedural frameworks following Hasáliková. In many international courts, legal aid regimes are fragile, caseloads are heavy, and the space to insist on adaptations or to slow proceedings for a client’s needs is politically and institutionally limited. Access to a lawyer will mean nothing if there is structural inequality arising from rights‑restrictive practices where public interest or perceived security needs are strong. This ethos will continue to arise if detention and risk assessments lean heavily on generic narratives (terrorism, witness intimidation, instability) and only lightly on the individual’s health, cognition and history and where governing statutes and rules limit what the defence can argue about vulnerability to a late‑stage sentencing point, rather than a lens for the whole trial. Sadly, the decision in Hasáliková plays into a narrative that to consider vulnerability more broadly at every stage will create a sense that international courts are soft.
These are politically sensitive environments and tailoring the process to accept vulnerability from a range of factors that may be beyond specific medical diagnosis is a tall order, especially when those defendants are associated with conflict‑related crimes.
Within that architecture, defending a vulnerable suspect becomes an exercise in building a record on health, trauma and disability; confirming a client understands their own needs and how that might play out at each stage of the proceedings and in turn persuading a court steeped in security discourse that these factors go to fairness, not convenience. All this occurs under a client’s privacy concerns, funding constraints and external pressures that inevitably favour the prosecution. The more international the court, the more layers of distance there often are between the defendant’s lived reality and the legal approaches applied to them.
Hasáliková offers a cautionary tale for international courts and tribunals in at least three respects. First, it shows the danger of equating vulnerability with only the most extreme or visible forms of impairment, thereby ignoring cumulative and contextual factors such as poverty, stigma, trauma and limited education. Second, it exposes the gap between recognising vulnerability as an abstract factor and actually adjusting procedures, evidential rules and judicial reasoning to account for it, before one even gets to whether the specific vulnerabilities may be relevant to the alleged crime. Third, it highlights how reliance on defence counsel as the primary safeguard can mask systemic shortcomings, especially in complex, under‑resourced international proceedings.
For defence practitioners, the need emerges to frame vulnerability, not as a plea for sympathy, but as a structural fair‑trial issue that affects capacity to instruct, participate and plead. This requires grounding arguments in both clinical evidence and evolving international standards on disability and vulnerability, while anticipating resistance to anything seen as “outside” that court or tribunal’s core law. Somewhere in the midst of all this, defence teams must build records that make it harder to rely on formalities such as age, literacy and the presence of a lawyer to dismiss the lived reality of the client as an awkward detail to be explained away in the footnotes.
A defendant’s circumstances bear directly on trial rights: fitness to plead, capacity to instruct, stamina for hearings, ability to follow evidence and the realism of plea discussions. These are not mere background facts; they go to equality of arms and to whether trial proceedings are substantively fair for this defendant, not an abstract “average” accused. Vulnerability is understood clinically multi‑factorial and cumulative, not reducible to formal “mental disorder” labels. Ignoring such cumulative factors risks not only harsh treatment and wrongful outcomes (including guilty pleas entered under pressure) but also fails to enable pubic understanding of a defendant’s real situation, however horrific the allegation.
Using tools like the UNHCR Vulnerability Screening Tool, developed for asylum and migration systems, may assist the defence to categorise vulnerability and ensure it is both acknowledged and operationalised at every stage, not merely waiting to calculate a sentence length. Judicial faith in defence counsel is not a one‑size‑fits‑all safeguard. In Hasáliková, a woman with a slight intellectual disability was held not to be “vulnerable” in the sense that would require procedural adjustments, partly because she had a lawyer and appeared literate and oriented. The majority’s reasoning has been criticised for collapsing the gap between capacity for criminal responsibility and capacity to navigate complex proceedings, and for over‑estimating what ordinary legal advice can achieve for cognitively impaired defendants. The strictness of this approach falls back on the idea that only an expert diagnosis with a label is applicable leaving more complex individuals reliant on individual judicial discretion rather than on enforceable rights.
We suggest, a move towards a trial‑centred concept of vulnerability with broader recognition in Law so that vulnerability is expressly presumed as relevant to all trial stages, with an obligation on International courts to act proactively, alongside operational safeguards to ensure that vulnerable defendants can follow and participate in their trial, on the request of the defence, without formality: If the lawyer is the safeguard then the lawyer is also the source of what the client needs. This would bring the trial process closer to linking vulnerability at trial to real equality of arms. Fair trial rights are not satisfied by a formally correct process applied to an abstract, invulnerable defendant. They demand that the law sees the accused as a person, aligning courts with psychological understanding to safeguard the right to a fair trial.
About the Co-Author
Caitlyn Delaney is an early-career lawyer interested in equal rights for defendants, due process, and reducing barriers to justice. She currently works for Dye & Durham while considering opportunities for further study. In 2024, she was part of the Bahtijari Defence team in the Kosovo Specialist Chambers. In her spare time, she enjoys researching war crimes, planning trips to visit all six Disneylands, and making it her mission to visit as many Formula One tracks as possible during race weekends.
