15 Dec Why I Am Advising Radovan Karadzic (Updated)
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.