Where Is Rule 82 bis?
As trial-watchers know, Judge Kwon implied today that he will impose counsel on Dr. Karadzic next week if he continues to boycott the trial. It’s worth noting, therefore, that nothing in the ICTY Statute or the ICTY Rules of Procedure permit the Trial Chamber to hold the trial in Dr. Karadzic’s absence, even if he is represented by counsel. The ICTR, by contrast, adopted a rule to deal with boycotting defendants in 2003, during Jean-Bosco Barayagwiza’s trial:
Rule 82 bis: Trial in the Absence of Accused
If an accused refuses to appear before the Trial Chamber for trial, the Chamber may order that the trial proceed in the absence of the accused for so long as his refusal persists, provided that the Trial Chamber is satisfied that:
(i) the accused has made his initial appearance under Rule 62;
(ii) the Registrar has duly notified the accused that he is required to be present for trial;
(iii) the interests of the accused are represented by counsel.
The ICTR invoked Rule 82 bis (which is also part of the SCSL’s Rules) to justify holding the trial in Barayagwiza’s absence — and indeed, he never appeared at his multi-year trial. The ICTR’s decision to apply the rule retroactively was itself problematic, but at least the Tribunal formally adopted a rule permitting trial in absentia. The ICTY has not adopted a similar rule; instead, the judges have simply bestowed upon themselves the same authority that Rule 82 bis gives their ICTR colleagues.
Is that a defensible move? Perhaps. But it’s still troubling that the ICTY has no trouble limiting a right specifically guaranteed by its Statute, the right to be present during trial, without even bothering to adopt a rule that justifies doing so.
That said, we should not be surprised. As Darryl Robinson has documented in a magisterial recent article, such blatant ends-driven reasoning — ignoring the text of the ICTY Statute and Rules when the judges believe that effective prosecution requires it (see, e.g., JCE) — has been the hallmark of ICTY jurisprudence from the beginning.