Why I Am Advising Radovan Karadzic (Updated)

by Kevin Jon Heller

A number of readers have e-mailed to ask why, given my interest in all things ICTY, I have not said anything about the Karadzic case.  The answer is relatively simple: I have been serving for the past two months as one of Dr. Karadzic’s primary legal advisers, which raises a number of complicated issues vis-a-vis blogging.  On the one hand, the case raises a number of legal issues that I think would interest the readers of this blog.  On the other hand, I owe Dr. Karadzic a duty of confidentiality.  And on the still other hand, I do not want to be perceived as using this blog as a platform for my consulting work.  That’s a lot of hands, and they are obviously difficult to keep straight.

That said, I at least want to offer a few thoughts about why I have chosen to advise Dr. Karadzic.  That decision has met with considerable resistance.  Two examples: a scholar I deeply respect and have long considered a friend has essentially cut off all contact with me, and my involvement in the case was met during my few days at the Austrian Human Rights Film Festival with either stony silence or (more commonly) open hostility.  It hasn’t been a pleasant response — so why do I do it?

There are many answers.  The first is the one that defense attorneys always use, which is no less true for that fact: every defendant, even one accused of committing horrific international crimes, needs a good defense.  Indeed, the more horrific the accusations, the greater that need.  Everyone involved in the criminal justice system knows that the presumption of innocence is an illusion — defendants always begin a trial with the jurors and/or judge suspecting, if not actually believing, that they are guilty.  And that is particularly true of defendants accused of serious international crimes like genocide.  I can’t tell you how many of my friends, lawyers and otherwise, educated and cosmopolitan all, assume that an international tribunal would never prosecute a genuinely innocent person.  Indeed, most assume that defendants who are acquitted by an international tribunal are still guilty. It is thus imperative that a defendant accused of serious international crimes have at least one person (if not more) who is willing to advocate on his behalf.

The second answer is that every defendant, even one accused of committing horrific international crimes, deserves a good defense.  The right to a fair trial is a basic human right, one enshrined in every important human-rights document of the modern era, from the Magna Carta to the ICCPR.  That right means nothing, however, if we are willing to overlook it simply because we are horrified at the crimes a particular defendant allegedly committed. Indeed, the hypocrisy exhibited by some people that I have met is nothing short of staggering: they criticize me for wanting to ensure that Dr. Karadzic receives a fair trial, then in the same breath criticize the Bush administration for denying fair trials to the detainees at Guantanamo Bay.  Which is it?  Do alleged criminals deserve a fair trial or not?  Or just those alleged criminals for whom we feel a degree of sympathy?

The third answer is pragmatic: the ICTY needs Dr. Karadzic to receive a fair trial.  The ICTY has been a qualified success, at best: it has produced some good jurisprudence and some bad; it has held some successful trials and some spectacular failures.  Personally, as someone who is committed to the development of international criminal justice, I want the ICTY’s legacy to be a positive one.  And I believe very strongly that, in light of the Milosevic fiasco and the ongoing Seselj fiasco, the ICTY’s legacy will largely be determined by how future generations view Dr. Karadzic’s trial. Indeed, from the standpoint of history, it does not particularly matter whether his trial ends in a conviction, a partial acquittal, or a complete acquittal.  What matters is that, whatever the outcome, future generations can be confident that the verdict resulted from a process that was open, transparent, and above all fair.

These, in any case, are the reasons why I will devote much of my professional life in the coming years to helping defend a man most people believe is responsible for some of the worst crimes since World War II.  I am honored to be involved in such an important case.  Indeed, given the stakes, I think “how could you defend Radovan Karadzic?” is the wrong question.  The better question, I believe, is how could I not?

UPDATE: I just want to thank everyone for the support I’ve received on the blog and in private correspondance.  (And a special shout-out to Mark Leon Goldberg, for his post here.)  It’s been very gratifying to learn that so many people — of so many political persuasions — understand the importance of giving every defendant, even the most reviled, a fair trial.  I also find it very encouraging that so many law students are committed to international criminal defense; I will be spending a good deal of time in January in The Hague, working with the team of interns we selected from more than 100 applications to work on Dr. Karadzic’s case.  They are a remarkable group, from many different legal systems and from some of the best law schools in the world.

http://opiniojuris.org/2008/12/15/why-i-am-advising-radovan-karadzic/

15 Responses

  1. Well, I applaud you doing it, although your troubles might just be beginning, especially should your client prevail in court.

    Why people draw a moral distinction between those who prosecute alleged genocide and those who serve as the defendant’s council is beyond me.

  2. The bastard will at least have (more than) competent legal advice. There’s certainly nothing ethically of professionally objectionable in you advising him, so best of luck, Kevin. (Well, no, not really, because I sure as hell hope Karadzic never spends a day of his life as a free man. And he won’t.) I’m sure it’ll be extremely interesting. Just don’t accept his “medical” advice and let him voodoo you or something.

  3. I second Marko’s sentiment.

    Alas, were it the case that in this country we implemented the constitutional right to competent/effective counsel: Cf. this post from the Legal Ethics Forum on “The Growing Public Defender Crisis.” Combined with unfettered prosecutorial discretion (see Angela Davis’s Arbitrary Justice: The Power of the American Prosecutor, 2007), due process of law in the U.S., at least for that class of dedendants who cannot afford representation, is a rather elusive ideal.

  4. It is the presence of competent counsel that helps to give meaning to the process.  I would prefer that you say nothing more about this representation in this space as obviously the man is fighting for his life.  Good luck arguing whatever is the justice in your client’s case.  I doubt there is much, but it is your task to find it.
    Best,
    Ben

  5. Marko,

    I am old-fashioned: I believe that, if a defendant is guilty, he will be convicted after a fair trial no less than after an unfair one!

    Kevin

  6. Kevin,

    I agree entirely — but you are of course equally aware that I personally hate the man’s guts. Again, I’m sure it’ll be great fun, just don’t let him jinx you.

  7. Were I a lawyer at this point in my life, I would advise Karadzic for most of the reasons you listed, and for one more: I do believe he is innocent and needs all the help he can get.

  8. The two Bosnian Serbs I feel sorry for are Krstic and Plavsic who were convicted based largely on the ICTY’s ridiculously broad view of JCE.  I would have rather Professor Heller been involved in their defense.  Karadzic is loathsome and a coward to boot.  Seselj is loathsome too but at least he had the courage of his convictions to face the ICTY. 

    The equality of arms principle has been a crual joke at the ad hoc tribunals.  When i was in the Hague, the lawyers for Charles Taylor were working out of a cafeteria for a time.  Hopefully Professor Heller’s involvement will ensure that Karadzic gets a fair trial.  If it exposes some of the behind the scenes machinations of one Richard Holbrooke (currently angling for a post with the Obama administration) so much the better. 

  9. The way I see it, a good defense counsel has to make sure that his defendant goes down for what he/she actually did – nothing more, nothing less. Prosecutors in international tribunals see themselves as Soldiers of God or something like that, they will put anything in the indictment and will do anything to hamper defense’s effort to receive fair trial. No wonder ICC has this disclosure problem going on.

  10. Professor Heller,

    I think this is interesting from the perspective of the role of the international lawyer/academic.  So I have to ask, isn’t this comment:

    “Personally, as someone who is committed to the development of international criminal justice, I want the ICTY’s legacy to be a positive one.”

    somewhat inconsistent with representing a defendant … If you were in a U.S. court, and you defended someone because you wanted to develop criminal law, that might raise some eyebrows!  It seems like Karadzic’s interests are to NOT develop international criminal justice.

  11.  
     
    Dear Kevin, I support all of your reasons and I personally thank you for keeping our legal profession strictly objective. I’ll just add my reasons for my support by uncovering a true event of my early childhood which largely contributed to my choice of legal profession and afterwards the choice of human rights.
     
    Back in 1993 when I and my family were in Doboj (under the occupation of the Yugoslav National Army or in the control of Army of Republic of Srpska), in the period when the biggest atrocities were being committed (talking now exclusively about those mentioned in the verdicts of ICTY), my father and I were listening to radio Sarajevo (radio controlled by the “other” side) and he got really pissed whenever the radio-anchor used the term “war criminal” when addressing Karadic or Mladic (but other too).
     
    And I (being a young Muslim/Bosniak kid of 11 and looking at burned down houses every day and seeing my neighbors being killed) remember that I was puzzled. Even back than he (being a father off two, without a possibility to leave the house and barricading every entrance to the house every evening fearing for his family life and dropping over 20 kilos in a month) managed to keep his objective legal reasoning and explained to me the meaning of two concepts – “fair trial” and “innocent until proven guilty”, and “YES - he added - I would be more than willing to be their defense attorney/advisor whenever they end-up in front of ICTY, if that meant to ensure fair trial“. He had all personal reasons to hate him but when it came to profession he gave me an ideal which I recognized in your post, Kevin.
     
    I can only support you Kevin in your quest to empower justice, because this is how legal professionals act, and this will surely contribute to the general public perception of the verdict as plain and simple JUSTICE.
     
    Best and if you come to Sarajevo again, give me a ring.
     
     

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    Response… .Karadzic raises an interesting question in jurisprudence and ethics: how to deal with monsters. I do not use the phrase lightly. The account of a meeting with Karadzic (in Sarajevo Blues by Semezdin Mehmedinovic) ought to be required reading for those engaged in defending him. The combination of crazy poet (of children’s books) with training in psychiatry and ideological zeal problematizes the usual criteria used for moral judgment; an issue, I realize, that is distinct from legal judgment. It is also not clear – assuming, arguendo, that he is found guilty of crimes against humanity – what theory of punishment fits his case. There can be no rational proportional retribution for such acts. Deterrence, as is well known, is beside the point: heads of state determined to commit crimes against humanity or genocide are unlikely to be deterred from doing so by the remote possibility of subsequent trial and punishment; cf. the pace of trials in Rwanda, total inaction in Sudan, etc. That is why, in the end, I find the work of a poet like Mehmedinovic more helpful than the work of social scientists or philosophers of law. I will not spoil the surprise for those who’ve not read the book; except to say that the narrative is at once chilling and humane.

  13. Kevin,

    I can imagine that this must have been one of the most difficult decisions in your professional life. It reflects the general professional dilemmas, embedded in all (modern) criminal justice systems permeated by the basic principles of due process and fair trial.

    On the personal level, I share the negative, angry sentiments about Karadžić, much like I did about Milošević and Saddam Hussein, and much like I do about Charles Taylor and alike (the list is without doubt long). But I likewise felt a lot of personal as well as professional discomfort at the murky mess the trial of Milosevic was turning into and the terrible disillusion and mock performance the Hussein’s trial was, not to mention the fear the Taylor’s trial will go down the same drain.

    As much as we want the most heinous “criminal” convicted, when we personally “believe” in their guilt before trial, translating these emotions and beliefs onto the professional level can lead to nothing positive. As you said, Kevin, if there are competent lawyers on both sides and competent and objective judges on bench, noone should fear that the “bastards” will walk free. But a conviction after an unfair trial will not be anywhere near justice served, it will not be either professionally or personally satisfying (I certainly felt deeply frustrated during and after Hussein’s trial, no matter how much I “believed” he was guilty), and it will sure do a terrible damage to the system and the principles we seem to now share widely (or is it really just paying lip-service to them?).

    So you are very right – “which will it be”? The right to a fair trial is meaningless without its equal application, if it was to be granted to most but denying it to “certain” defendants. Marching in support of these principles on a rhetorical and abstract levels is easy (and who would want to be the black sheep claiming the opposite?). But what seems more difficult is to act upon them in and to make them meaningful by applying them even in the most extreme and difficult situations when one’s given a chance. That’s why, Kevin, you’ve made the right choice – you’ve decided to take that chance. Indeed, how could you not.

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