At Least Spell My Name Right…

by Kevin Jon Heller

Oy vey iz mir.  The blogosphere is positively abuzz (see here and here) with the news that the ICTY Trial Chamber has used my post about meeting Dr. Karadzic to supports its recent decision that he speaks English for purposes of the Statute and Rules of the Tribunal, a decision that relieves the Prosecution of the obligation to translate its legal materials into Serbian.  It’s every lawyer’s nightmare — inadvertantly becoming a witness in his own case.  Here are the relevant paragraphs:

6. As a final contention in favour of the relief sought in the Motion, the Prosecution argues that the Accused has conversed with his legal associates, and participated in proceedings held before this Chamber and the Appeals Chamber, all in the English language. In support, the Prosecution refers to a web-log entry authored by the Accused’s pro bono legal adviser, Kevin John Heller, in which the latter described a meeting with the Accused on 8 January 2009, during which he conversed in English. Since 10 October 2008, the Accused has made submissions in English and has drafted correspondence in English. In addition, the Accused requested a verification of the English translation of one of his own submissions on the very day that he received that translation. The Prosecution further notes that the Accused gave evidence before the Appeals Chamber in the Krajisnik case partly in English.

19. The Chamber notes the Accused’s argument that these clips merely show that he conversed in English “from time to time 14 to 17 years ago” and that there is no evidence that he has a sufficient understanding of English at present. While the Chamber has no direct knowledge of the Accused’s ability to use English at the time he was at Columbia University, his capacity for English, as demonstrated in these clips, is consistent with what the Chamber would expect of someone studying at an English language university. It is clear on the evidence presented to the Chamber that, in the intervening 14 years, that capability for English has not disappeared or been diminished. For example, the Accused’s own pro bono legal adviser, Kevin John HelIer, made assertions to that effect when he recounted a meeting with the Accused during which they talked about world politics as well as “more substantive matters” relating to the case, all in the English language. In addition, during his testimony in the Krajisnik Appeal hearing, the Accused was capable of reading out a number of excerpts in English, and even chose to comment on one of them in that language, exhibiting immediate and perfect understanding of what those excerpts meant. Having listened to the audio recording of the Accused’s testimony in that case, the Chamber is satisfied that he can read and comprehend English well.

I won’t try to defend myself, because that part of my post was obviously ill-advised.  What distresses me is the decision itself, which punishes Dr. Karadzic for exercising his right of self-representation.  We never claimed that Dr. Karadzic was not able to have a conversation in English; our argument is that, as a non-lawyer, he cannot be expected to understand the Prosecution’s complicated legal arguments in a language that isn’t his own.  I don’t think that’s a particularly radical idea — I imagine most people who can interact easily with others in Spanish would want to read legal documents in English if they ever ended up in a Mexican prison charged with a serious crime.  Yet the Trial Chamber dismissed Dr. Karadzic’s need to understand the very law that, according to the Prosecution, requires his conviction:

22. The Chamber is cognisant of the Accused’s argument that he is unfamiliar with English legal terms, whereas he has a far better understanding of those terms in Serbian. This may simply be one example of the difficulties that go with self-representation, which the Tribunal’s Scheme for providing assistance, including legal support and language assistance, to self-represented accused can solve. This solution does not lie in the translation of every part of every document falling under Rule 66(A) where it is clear that the Accused understands English for the purposes of the Rule.

You don’t understand the law?  Hard cheese — you shouldn’t have chosen to represent yourself, even though you are guaranteed that right by Article 21(4)(d) of the Statute.  You’ll just have to hope that your legal advisors adequately explain everything to you.

It is difficult to overstate the irony of that argument.  From the very beginning of the case, the Registry and the Prosecution have done everything in their power to limit Dr. Karadzic’s access to quality legal assistance, from insisting that his primary legal advisor, Peter Robinson, be paid the same rate as a secretary to arguing that, as a pro bono legal associate, I should not have access to confidential information.  Their rationale is always the same: by choosing to self-represent, Dr. Karadzic is asserting that he is capable of acting as his own lawyer.  And yet the Trial Chamber invokes our participation in the case to justify not providing Dr. Karadzic with the translations he needs to defend himself.  Remarkable.

16 Responses

  1. Ugh… yeah, I’d say that was a less than ideal outcome.

    Kind of has a chilling effect on blogging, too, I’d think, if indirectly.

  2. Professor,
    I do not think you should blame yourself from a few stray comments on your blog.  The trial chamber clearly is doing its best to destroy any credibility that the ICTY has had as a fair and impartial institution.
    The optics of this are just terrible.  A court that is supposed to contribute to long-term peace in the Balkans has not concluded that the prosecutor need not bother translating its legal materials into one of the languages of the region.  Is this part of the completion strategy?

  3. Well, for a “national hero” he has many hidden talents. I just watched yesterday a short documentary about his life as D. Dabic. Apparently he had/has a power to resurrect dead spermatozoids (one of people interviewed witnessed “dynamic moving” of spermatozoids in petri dish after Dabic had moved his hand over it). They also interviewed several happy couples, some of them from Vienna (!) who he successfully fertilized. So besides being a sex guru, he is also a poet, psychiatrist and the politician. I would say he is more than capable of defend himself without your (un)helpful assistance.

  4. How come he didn’t ask Holbrooke to translate the Dayton Accords? Why didn’t he translate the numerous peace negotiations that he was involved in? What about the interviews? Why isn’t B/C/S enough and you have to additionally request a cyrillic as if though you can’t comprehend latin characters?

    I think this is another ideologically driven stalling technique a la Seselj.

  5. Amel,

    I believe the moon is made of green cheese.  Doesn’t make it so.  And you need to read what is presumably your own language — the decision means Dr. Karadzic will get everything in English, not Serbian in roman script.

  6. Perhaps this move was merely a tactic on your part?  If in the US, you might have set him up for a nice “ineffective assistance of counsel” claim for his habeas petition.

  7. HLS,

    How I’ve missed your baseless and mean-spirited attacks…

  8. always willing to please

  9. “Their rationale is always the same: by choosing to self-represent, Dr. Karadzic is asserting that he is capable of acting as his own lawyer.”

    I’m sorry, but am I the only one who thinks this rationale makes sense?

  10. Guy,

    I’m not necessarily saying it doesn’t.  What I’m saying is that, given the rationale, it makes sense to provide legal materials to Dr. Karadzic in the language he will best understand them.

  11. KJ,

    I understand the decision but my point is that he would’ve had a better chance had he requested that all materials be translated to B/C/S instead of taking it a step further to support his ideology. He requested that all materials be disclosed to him in Serbian and cyrillic script for a good reason. B/C/S (written in Roman/Latin alphabet) is not exclusively Serbian in his view and he needs to prove his serbhood to all those who view him as a national hero. When lumping all three together as B/C/S it contradicts his ideology for waging war in the first place. It’s as important to understand the request as it is to understand the decision.

    I think someone out there is clueing into this charade after been through years of farce with Milosevic and Seselj which is probably why some elements of this decision might not fit all the legal components.

    This will cut the trial time and put Balkan’s Bashir where he belongs.

  12. No one has challenged Professor Heller’s critique in the slightest and for whatever reason, some commentators prefer to simply post cheap shots.   All the asinine comments in the world don’t change the fact the trial chamber purported to determine Mr. Karadzic’s English competence based on an idle remark on a blog and his participation in English negotations and alike 14 years ago.  It then determined that he should not be allowed access to the prosecutions’ materials in the language with which he is most comfortable, even though that language is the language of the target population of the ICTY.  We may all want to see Dr. Karadzic behind bars and I am sure this will expedite things going forward.  But such considerations should not trump the ICTY’s obligation to provide Karadzic with a fair trial. 

  13. Kevin,
    Is it not the case that the Trial Chamber in this case simply treats Karadzic as any counsel practicing before the Tribunal? Any such counsel is required to speak English or French, the official languages of the Tribunal. The Trial Chamber has established that he speaks English, which we all know he does very well. Karadzic appears before the Tribunal in two capacities, as a counsel and as an accused.
    Your comparison with a Mexican prison and a colloquial Spanish speaker is misplaced. At the Tribunal, all of the legal documents i.e. the Statute, the Rules of Procedure and Evidence and I think the Practice Directions, are translated into BCS. Furthermore, every judgment (except the most recent ones perhaps which are in the process of translation) and every decision which have further developed and interpreted the law are available in BCS. All relevant legal material is therefore available in BCS. With the help of his associates and his English skills, Karadzic can surely easily work out any untranslated decisions. Once he has studied that material, like any counsel at the ICTY, Karadzic will be able to understand what the Prosecution is arguing in its motion, if he does not understand that already. Furthermore, unlike your Mexican prison example, all of the Prosecution documentary and video evidence will be given to Karadzic in BCS. Remember, at the ICTY many, in not a majority of counsel, are non-native English speakers and they have been able to do a fine job litigating in English when necessary. Often legal terms from one language cannot be translated into another language because they simply does not exist and one has to learn a concept. Also, Karadzic will have the benefit of translations from English to BCS of any oral submissions made in court. What exactly are the legal terms/concepts he will not understand? Where exactly is the prejudice?
    And finally Amel has a point. Why exactly does Karadzic need all of the documents in the Cyrillic script? As far as I am aware both scripts are official in Serbia, Bosnia and Montenegro, the states that he is a national of. That request is a stalling move “a la Seselj” and “a la Krajisnik” and is a clue to the true aim behind his request.

  14. If I were Bonomy(or any other judge/chamber) I’d say the following: “If you’re so intent on arguing about fairness of the trial and care so much to ensure ALL sides of the story are told, as soon as you facilitate the delivery of all relevant documents, without obstruction, destruction, or evasion by any Serb authorities (RS and FRY), so that the entire story can be told as best possible, THEN I will ensure YOU get all judgements in English. ” 
    It’s so sad that these players waste so much time on such trivialities and waste so much time arguing about fairness issues yet they are the most culpable of obstructing the cause of justice by hiding or destroying evidence. It’s laughable to be honest.

    Furthermore, I find it sad that you, an American lawyer, had no idea that posting ANYTHING about your interaction with Karadzic would somehow not come back to bite you in the arse. In the end this is the exact same tactic any US lawyer would use to defend his client, yet  you find it surprising it happened to you. I do wonder if your advice is the best he could get. (well, anything is better than self-representation I guess)

  15. John,

    I see: Dr. Karadzic’s right to a fair trial should be conditioned on governments over which he has no control providing documents to the Tribunal.  What excellent advice!  Such commitment to fairness!

    Oh, wait, sorry.  I forgot that, in your view, fairness is just a “triviality.”

    Never mind.

  16. Waste time?  We have all the time in the world, Karadzic’s not going anywhere.  Unless you’re concerned he’ll die before the trial concludes.

    In that case, he’ll have spent the rest of his life behind bars, and thus obtained what I believe is the highest penalty he can be assessed, anyway.

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