30 Mar At Least Spell My Name Right…
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.