Dr. Karadzic’s Letter to the ICTY

by Kevin Jon Heller

As has been widely reported, Dr. Karadzic intends to boycott the start of his trial to protest the Tribunal’s refusal to give him the time he needs to adequately prepare for trial.  I don’t know when the letter he submitted to the Tribunal will appear on the ICTY website, so I have made it available here:

karadzic-submission-of-21-oct-20091

Dr. Karadzic’s decision is deeply regrettable — but it’s also not difficult to understand, given the Tribunal’s constant efforts to undermine his ability to defend himself. I will be curious to see how the media covers the boycott.  My guess is that, with the exception of the always-excellent Institute for War & Peace Reporting and the New York Times, the dominant narrative will be that Dr. Karadzic has proven himself to be another Milosevic — a narrative that will conveniently ignore the fact that he has been nothing but cooperative with the Tribunal to date.

P.S. In case there are still readers out there who are unaware of it, I am one of Dr. Karadzic’s legal advisers.  So, as always, take what I say about the case with the requisite grain of salt.

http://opiniojuris.org/2009/10/22/dr-karadzics-letter-to-the-icty/

9 Responses

  1. Not sure how the NY Times fits into the “always-excellent” category but I’m more curious to see how the Tribunal responds.

    Any idea of possible scenarios?

  2. It is beyond any doubt that Karadzić deserves fair proceedings. However, his public statements need always to be read with a pinch of salt. He is a master of public manipulation and anyone who ever lived in the former Yugoslavia can easily confirm this.

  3. In my view, this could have been avoided if the Judges had been wise enough to grant Karadzic not the 10 months he had requested, but 3-4 – this would have made it much more difficult for Karadzic to plead to the world that his treatment was unfair. On the contrary, the Judges dismissed on formalistic grounds his rather good and reasonable arguments for more time.
    At this point, the most realistic options in my view are the following: (i) The Chamber goes on anyway and requires Karadzic’s attendance by force (this would be the worst possible scenario for public perception, especially in the region; would his trial be considered effectively in absentia in this case? In any event, the right to self-representation would be effectively nullified in such a situation); (ii) the Chamber imposes Counsel on Karadzic (but any decent counsel would require at least 6 months to study the papers); (iii) the Chamber requires Peter Robinson, who is already providing legal support, to act as counsel from now onwards (can they do that over Robinson’s and Karadzic’s objection? The Milosevic precedent is not so clear about this, the situation was a bit different due to the role of the amici curiae before they were imposed as counsel) (and in any event, Robinson would have to be granted at least need 2-3 months to study the facts of the case and get proper instructions in a case of this magnitude); (iv) the Chamber finds an excuse and grants him (some of) the time Karadzic claims is necessary – it could be two months for opening statements and then a promise that no witness will be actually heard until early February…(Maybe under explicit threat that if he does not comply, counsel will be imposed).
    Personally, I think option (iv) is the best in the long run for the Tribunal and its image in the region. It would also not be the one entailing more delays. Option (i) might be attractive because the ICTY would not be seen as weak, but it would be disastrous in the long run: in an adversarial system, it is virtually impossible for the Judges to get to the truth without both parties playing along, at least to a certain extent. Any time gained now would be lost in legal battles and hurdles along the way.
    The real problem is that the ICTY has put itself in a corner with the infamous Seselj decisions on self-representation, by saying that it cannot impose counsel unless a clear warning is given to the accused, and the accused persists in obstructing the proceedings. The better way would have been to always impose counsel (just like courts would do in Serbia and Bosnia, btw, which would have jurisdiction if the ICTY was not there) but at the same time allow the accused to speak and ask questions during trial (in order to ensure that his right to participate is not frustrated). Despite what Kevin wrote in a post below, I do not read the ICTY Statute as mandating a right to self-representation, and the ICTY has never really established that this exists under customary law. The ICTY is in a trap, a trap it should have learned to avoid after Milosevic and Seselj (and minor lessons learned in Tolimir and other cases, where the right amount of pressure and negotiation avoided potential deadlocks).

  4. Re: I do not read the ICTY Statute as mandating a right to self-representation, and the ICTY has never really established that this exists under customary law.

    There’s a nice entry on “self-representation” in the Oxford Companion to International Criminal Justice (2009). There we learn that this right is enshrined, for example, in Art. 14 of the ICCPR, as well as the European Convention on Human Rights, and that the “founding instruments of all international criminal tribunals contain similar language….” And these tribunals have usually relied on the common-law conceptions of same, with the ICTY AC referencing US case law “to elaborate on the scope of self-representation.”

    Nonetheless, “having been litigated extensively, self-representation has never been explicitly defined by international criminal tribunals.” And of course as we discussed on this blog earlier, the right is not absolute. But the lack of definition is not tantamount to the absence of the right and the right is clearly recognized in the requisite instruments of international criminal law, as the entry makes plain.

  5. the right is clearly recognized in the requisite instruments of international criminal law

    I know that entry very well – for what it’s worth, it does state that the right exists, but this is very different from stating that the tribunals have interpreted it right. Almost no civil law system (the Netherlands being one of the few examples to the contrary) knows of the right to be in a courtroom without legal assistance – the ECHR has never struck down a domestic statute imposing legal assistance, as long as the accused was allowed to participate in his own trial (see, for instance, Croissant v. Germany). What that entry argues is that the best way to ensure the right to participate in international proceedings and, at the same time, to safeguard the integrity of these proceedings, is to apply a flexible concept of self-representation that does not rule out direct participation of an accused even when counsel is active in court. This runs counter to the concept of some domestic systems that counsel is representing an accused and is closer to those systems (German, Italian, French, Serbian…) where counsel assists an accused.
    In this sense, it is strange to hold that a right to self-representation, as interpreted by the ICTY, has evolved when most (see below) domestic systems do not recognize it, at least in the terms framed by the ICTY.
    It is much more plausible that the expression ‘self-representation’ is actually misleading (because rooted in those systems that see counsel as representing an accused only) and that therefore no such right exists. What exists is the right of an accused to ‘defend [not represent] himself in person or through legal assistance’ – this clearly allows systems to impose counsel even with no particular reason (as opposed to the various reasons developed jurisprudentially by US courts), as long as the accused can speak and participate actively (= defend himself). Without going into many details, I believe that this is the only plausible explanation of why so many states have signed up to the ICCPR but have not felt the need to modify their domestic provisions requiring counsel to be assisting accused persons in court in all serious criminal trials.

    [I say that most legal systems require assistance of counsel without having made a personal count, but on the basis of the fact that French-derived systems in Europe, South-East Asia and Africa, as well as all Arab countries, South-American States, China, Japan, and Russia all follow this model. Thus, even if they might not be the majority from a mathematical point of view, they would clearly bar usus and opinio juris sufficient to create international custom].

  6. @Guy2: I’m not sure what you’ve heard about Dutch law, but here representation by counsel is required whenever pre-trial detention has been authorised, and at trial if the prosecutor is demanding a prison sentence. Given that under Dutch law people cannot be detained for DUI or other small matters, this amounts to mandatory representation by counsel for all serious felonies. If dr. Karadzic were prosecuted in a Dutch court, he would need to be represented by a lawyer.

    P.S. As for the “dr.” thing, Patrick pointed out in the previous thread that mr. Karadzic is a psychiatrist, and therefore presumably an MD. (I’d forgotten about that.) I don’t know if I’d normally call and MD doctor outside the context of a medical situation, but OK.

  7. “Nothing but cooperative with the Tribunal” if we forget that he went on the lam for 11 years and evidently never intended to submit to the authority of said Tribunal, until his handlers in the Serbian security establishment decided that keeping him safe was more trouble than handing him over.

    Like Jernej above said, Karadzic has always been a masterful manipulator, and there’s no reason to expect him to start acting any differently now. The intended audience for his grandstanding isn’t the ICTY at all, but rather the public back home in Republika Srpska and, to a somewhat lesser extent, Serbia. The goal is to discredit the Tribunal,  make it appear unduly biased against Serbs, and turn the entire proceeding into a circus. This path was already trod with some success by Seselj and Milosevic, and Karadzic’s intent is, evidently, to attempt more of the same. If the Tribunal is finally getting wise to this game, and refusing to put up with it, good for them.

    And finally the Dr. thing, I honestly don’t know why the hyper-insistence on it. Karadzic was a psychiatrist before he became a politician, but at this point he hasn’t practiced for over two decades, and in the intervening period he wasn’t exactly observing the letter or the spirit of the Hypocratic oath, if you catch my drift. I can’t say I’ve ever heard anyone say Dr. Bill Frist or Dr. Howard Dean, so to apply the honorific to an accused genocidaire and war criminal is….beyond the pale.

  8. Thanks, Martin, for your clarification. Matters are similar in several former Yugoslavia countries, where counsel (assisting an accused) is required for crimes entailing a possible penalty of 10 or less years of imprisonment.

  9. Nemanja’s first paragraph certainly gives context and substance to KJH’s disclaimer…

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.