Correcting a Statement I Made on the BBC

by Kevin Jon Heller

I just finished giving an interview about the Karadzic case to the BBC’s World Today program.  It was, to say the least, a shocking experience.  I assumed that they wanted to ask about Dr. Karadzic’s decision to boycott the beginning of the trial — why he made it, what it means for the trial, etc.  My bad!  Instead, the first question was — literally — “why doesn’t Dr. Karadzic have the courage to attend the trial?”  And the last question was — also literally — “what evidence does Dr. Karadzic have that he is not guilty”? So instead of explaining why Dr. Karadzic feels he is not prepared to begin trial, over which reasonable people can certainly disagree, I had to spend my entire time on the air explaining the presumption of innocence, the importance of which should certainly be beyond dispute at this point.  It was a very disappointing interview — I really, if naively, expected better of the BBC.  I will think long and hard before I speak to them again.

That said, I wanted to correct a misstatement I made during the interview.  I claimed, in my shock at the questions, that the indictment does not allege that Dr. Karadzic is responsible for failing to prevent and punish the crimes of his subordinates.  He is, of course, charged with command responsibility under Art. 7(3) of the ICTY Statute.  I regret the error, and I apologize to my listeners for making it.

P.S. It is worth noting, regarding a debate I’ve been having with one of our readers about whether I should be referring to Dr. Karadzic as “Dr.,” that the BBC referred to him as Dr. Karadzic throughout their report.

http://opiniojuris.org/2009/10/26/correcting-a-statement-i-made-on-the-bbc/

15 Responses

  1. The only good thing out of all of this is that the Court might impose counsel, and kick out all these attention whores that try to make circus out of international tribunal

  2. Well, there’s nothing *wrong* with presenting evidence of one’s innocence, if one has any handy.

  3. Anderson is right of course that there is nothing wrong in presenting evidence of actual innocence although query whether a BBC interview would be the proper venue for presenting such evidence.

    I think the larger point is that in high profile international criminal trials of this kind, the presumption of innocence exists only in theory.    Consequently, every action of a defendant is seen as some effort to thwart or delay justice.  It couldn’t possibly be that Karadzic genuinely needs more time to defend himself, no, it is that he is a coward who is trying to de-legitimize the ICTY. 

    I have no love for Karadzic, but if the Prosecution is going to charge him with virtually every crime committed in Bosnia, it hardly seems unreasonable for him to insist on more than a few months to prepare for trial. 

    The self-representation issue is another example.  The ICTY statute is unequivocal that Karadzic has a right to represent himself.  Nevertheless, how has Karadzic’s decision to represent himself been portrayed by the media as well as most commentators on this site? As nothing more than a tactic to disrupt the trial.

    It is understandable that many want Karadzic found guilty as quickly and efficiently as possible.   But Karadzic is entitled to a fair trial and has no obligation to play along.

  4. I’m sympathetic to your position, KJH, but my short summary of this post would be: KJH, meet the rest of the world.

    What on earth did you think the rest of the world, ostensibly progressive civil servant broadcasters included, would think of Karadzic?

  5. With regards to the substantive issue of why Karadzic decided to boycott the start of his trial, I think it is worth looking at what happened with Charles Taylor’s trial.  Taylor started off by asking to defend himself, claimed illness a bunch of times, and engaged in other strategies likely aimed at delaying the start of the trial.  Now, though, Taylor respects the Special Court for Sierra Leone and appears to be working within the system to prove his innocence.   He rarely misses a day of his trial.

    I think it is likely Karadzic will have a change of heart when he realizes he has the world’s ear; the opportunity to tell his side of the story to a captive audience.

    -Shelby Grossman

  6. Thought question:  what purpose is served by a (non-attorney) defendant’s having the right to represent himself?  In the modern legal system, is this right meaningful any more?  Does it ever serve any purpose *other* than disruption and delay?

  7. I never claimed that no one refers to Karadzic as “Dr.”, merely that the media in his own country does not, and that I believe his conduct over the past couple of decades precludes right-minded people from conferring on him that title. You and the BBC can call him Prince Radovan for all I care.

    Of course, the presumption of innocence applies even to a man who shoots and kills another person in the middle of a street in broad daylight with dozens of witnesses and security cameras trained on him. To say there is no culpability until confirmed by a court of law is a narrow view, to say the least.

    It’s not like the world is expecting Karadzic to be convicted randomly or out of thin air – his crimes are well documented and the evidence is wide ranging. We can even surmise that he himself expects the court will find him guilty – why else would he go on the lam for 11 years?

  8. We can even surmise that he himself expects the court will find him guilty – why else would he go on the lam for 11 years?

    That argument works, but it doesn’t strictly require the court to *rightly* find him guilty.  A fugitive can always claim that he can’t receive a fair trial.  That’s always been my gripe with the presumption that flight = guilt.

  9. Anderson, I agree with you, I was merely trying to make a point. Presumption of innocence is something that exists in a criminal trial and doesn’t particularly apply to the rest of the world. Kevin’s idea, evidently, is that any conversation about Karadzic must proceed as though he’s just some guy randomly arrested on the street then charged with a rap sheet as long as War and Peace.

    Obviously, Karadzic’s fugitive status could equally well mean that he doesn’t think he can receive a fair trial in the Hague, or that he thinks he’s guilty and can’t beat the charges. Still, Courts have wide latitude over how they treat defendants and I don’t see any reason why someone who is hostile to the court should be treated with the same care and consideration as someone who is co-operating in good faith.

  10. Truely a miserable week for the victims of crimes in Bosnia. Karadzic is obstructing his trial (tens of lawyers before him stated that they were not ready for the trial and went on with it, the matter was also litigatged before the appeals chamber and he is clearly disrespectful of the legal process and is imposing his own ways and playing politics, next trick: hunger strike) and Plavsic, his former right hand and a convicted war criminal, being walked around Belgrade by Dodik, the current leader of Karadzic’s creation, the Bosnian Serb Republic. How can any victim return to the ethnically cleansed parts of Bosnia when Dodik sends a message like that? Let’s hope that the Court imposes counsel on Karadzic so that the ICTY slogan, “Bringing war criminals to justice, and justice to victims” is given at least some resonance…   

  11. Tip: There’s an excellent blog post by Marko Milanovic on EJIL: Talk! about this case, just posted yesterday.

  12. The BBC article quoting you seems pretty objective!

    http://news.bbc.co.uk/2/hi/europe/8325096.stm

  13. Nemanja, I completely concur.

  14. Are you sure that Karadzic is charged for Genocide persuant to 7(3) of the statute and not 7(1)?
    The indictment Alleges that “he committed in concert with others, planned, instigated,orderedand/ or aided and abetted genocide against  the Bosnian muslims……….He participated in a joint criminal enterprise……”

  15. Ahmed,

    He is charged with both.  I correctly pointed out in the interview that he was charged under 7(1); my mistake was to say that he was not (also) charged under 7(3).

    K.

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