The ICTY’s Ongoing Attack on the Right of Self-Representation
As everyone in the world probably knows by now, Dr. Karadzic’s trial is set to begin on October 26th. The current trial date is the culmination of two interrelated decisions by the Tribunal: the Trial Chamber’s unsurprising decision not to require the Prosecution to trim its monstrous and completely unworkable indictment (choosing instead to impose insignificant time-limits on the prosecution’s case-in-chief); and the Appeals Chamber’s rejection of Dr. Karadzic’s request for more time to prepare for trial.
Dr. Karadzic’s defense team (of which, as a reminder, I am part) believes that the trial date is completely unfair. But we are certainly not surprised that the Appeals Chamber rejected Dr. Kardzic’s request for more time: the unfair trial date is simply the latest salvo in the Tribunal’s never-ending attack on Dr. Karadzic’s right of self-representation. From the beginning of the case, the Tribunal has tried to force Dr. Karadzic to waive that right by depriving him of the time and resources he needs to adequately prepare for trial.
Consider, for example, one of the Prosecution’s arguments against Dr. Karadzic’s request, as summarized by the Appeals Chamber in its decision setting the trial date:
13. Тhе Prosecution maintains that Karadzic’s own choices have made his preparation for trial more difficult. It contends that Karadzic’ s decision tо represent himself, seek large volumes of disclosure material of only limited relevance, have his legal volunteers work оп issues other than trial preparation and request large volumes of materials аt а late stage from third parties are self-inflicted hindrances tо adequate trial preparation.
Every assertion in that paragraph is misguided. It’s bad enough that the Prosecution openly admits that it believes Dr. Karadzic is not entitled to adequate time to prepare for trial because he has chosen to represent himself. But it’s simply appalling that it would take the position that Dr. Karadzic is not entitled to adequate time because he availed himself of his right under Rule 72 of the ICTY Statute to “(i) challenge jurisdiction” and “(ii) allege defects in the form of the indictment.” According to the Prosecution, a defendant — especially a self-representing one — should have to choose between filing legal motions and preparing for trial. Such a position makes a mockery of the right to a fair trial.
The Prosecution’s arguments concerning disclosure of material of “limited relevance” and materials from third parties are equally offensive. Those materials concern the existence of the Karadzic-Holbrooke agreement, which the Appeals Chamber has held that Dr. Karadzic has the “right to present at trial… as such allegations could be considered for the purpose of sentencing, if appropriate.” The Prosecution is arguing, in other words, that Dr. Karadzic is not entitled to adequate time to prepare for trial because he spent valuable pre-trial time preparing for trial.
That’s the Prosecution. Now consider one of the Appeals Chamber’s arguments in rejecting Dr. Karadzic’s request for more time:
24. … While Karadzic’s defence team maу have taken some time to recruit and mау not bе аblе to work оп еvеrу trial issue he would wish them to, these advisors are а source of significant support, and their limitations are linked to Karadzic’s choice to bе self-represented. The Appeals Chamber has explained that while “а Trial Chamber must bе particularly attentive to its duty of ensuring that the trial bе fair” to self-represented defendants, “[а] defendant who decides to represent himself relinquishes many of the benefits associated with representation bу counsel.”
Get that? One of the costs of self-representing is the right to have adequate time to prepare for trial. A more direct attack on a defendant’s right under Article 21(4)(d) of the ICTY Statute “to defend himself in person” is difficult to imagine.
I recognize that the Completion Strategy puts enormous pressure on the Tribunal to expedite trials. The solution, however, is not to punish defendants for exercising their rights under the ICTY Statute. As Judge Hunt famously — and bravely — pointed out:
This Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials. The Majority Appeals Decision and others in which the Completion Strategy has been given priority over the rights of the the accused will leave a spreading stain on this Tribunal’s reputation.
Judge Hunt made that comment in 2003, during the Milosevic trial. Unfortunately, the Tribunal seems to have learned nothing since then.