Where Is Rule 82 bis?

by Kevin Jon Heller

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.

http://opiniojuris.org/2009/10/27/where-is-rule-82-bis/

16 Responses

  1. How does this make an end run around the statute? It is Karadzic’s right to appear and be tried in his presence. It’s well within his power to waive said right. The statute does not compel the court to be at Karadzic’s beck & call.

    The application of a procedural rule retroactively to authorize the conduct of one such trial when the accused has waived his right to appear and be tried in person does not appear to be a problem.  Even without the enactment of such a rule, the statute gives the court a mandate to proceed promptly. There is no loss of due process when preparation for trial has extended as long as it has in this instance, the accused was aware of the warrant for his arrest and avoided being taken into custody, and has been informed of the start of trial after having filed almost numerous motions, to say the least, and has decided to refuse to appear.

  2. The most convincing response to your argument is Rule 82 bis itself.  If it is so self-evident that the court can proceed in Dr. Karadzic’s absence despite the existence of the right to be present in the statute and the fact that nothing in the statute (or rules) says they can proceed without him, why did the ICTR feel the need to formally amend its rules?

  3. …why did the ICTR feel the need to formally amend its rules?

    Because the ICTR is even less prone to following legal reasoning than the ICTY?

    I think the issue is that an adversarial system cannot really work without either the accused or counsel for the accused present. It will be ridiculous if the trial goes on without a defence whatsoever – so the Chamber will have to impose counsel, and give counsel the months Karadzic had already requested (counsel accepting to start such a trial immediately without familiarizing himself with the case should be ipso facto held liable of serious misconduct….). This leads us back to square one.

  4. Reaching, Prof. Heller.

    1. Rule 82 bis as you’ve quoted it expressly limits itself to cases where “an accused refuses to appear,” which as AJ Rosen correctly notes is not a deprivation of any right to appear.
    2. Why would the statute have to expressly say that the court can proceed without a defendant’s presence?  If the statute is silent on the subject, other than guaranteeing the right to be present, then presumably the court is free to craft its own rule covering the gap that occurs when a defendant chooses not to appear.
    I know you represent the guy, so you’ve gotta work with what you’ve got; but so far it’s not very persuasive.

  5. Kevin,

    To back up your larger point about the ends-driven nature of the ICTY, it is probably worth noting that the ICTY’s Rules of evidence and procedure have been revised 43 times at last check.  

    Nevertheless, Rule 45 ter (adopted conveniently in November 2008) arguably allows Kwon to appoint counsel in this circumstance:
    “The Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused.”  It seems to me where the defendant is boycotting his trial, the “interests of justice” would seem to dictate that the trial chamber assign counsel, even though there is no specific provision like Rule 82bis. 

    One who is conspiracy minded would be tempted to believe that the ICTY trial chamber purposely gave Karadzic less time to prepare than he would need, knowing he would likely boycott the proceedings, allowing the Trial Chamber to appoint counsel and thereby do a neat end-around the pesky problem of Karadzic choosing to represent himself. 

  6. I’m still waiting for someone to explain why, if their casual willingness to override a statutory right is so obvious, the ICTR judges felt the need to amend the Rules.  Or is that fact just too inconvenient?

  7. @prof. Heller: When procedural matters are concerned, a general principle of law can be made specific through a kind of common law rulemaking, as the ICTY has done, or through the making of written rules, as the ICTR has done here. Since this kind of rulemaking is uncommon in most countries (Are there any other places where the courts set rules in the manner of the US Federal rules of Civil procedure, criminal procedure, etc.?), courts have traditionally connected the general principles to specific cases through trial and error, using precedent and appellate review.

    I’m not sure which I prefer, though I probably prefer non-court lawmaking (through the statutes of the tribunal here, or through a normal statute in municipal law) to both. Regardless, they are both equally valid alternatives.

    P.S. What right of your client is being overriden here, and in what sense is that “casual”?

  8. The court’s decision to adopt a procedural rule that states it is authorized to proceed with the trial without your client when he has waived his rights even though this is evident based on the statute is not odd.

    In the context of administrative law matters, it is quite commonplace for an agency granted authority under a statute to promulgate regulations that actually re-state the statutory authority.

    Speaking practically, if the court has adopted a set of procedural rules with the goal of implementing the statute, it seems rather reasonable for the court to adopt 82 bis.

    And I have to agree with Martin Holterman on this…on what basis are you pre-supposing that the adoption of 82 bis is evidence of casual willingness to override a statutory right? The time at which it was adopted?  That such a rule was adopted? Perhaps given the court’s members determined that enough was enough after all the time that had passed since this proceeding began and concluded it best to incorporate this statutory provision into its procedural rules.

    While I do not begrudge you the right to advocate zealously for your client, a measure of reasonableness recognizing the unreasonableness of the manner in which your client is behaving now. Consider perhaps the years that Dr. Karadzic avoided arrest and that perhaps the judges deemed it necessary to formalize this principle in its rules in an effort to avoid a repeat of Slobodan Milosevic?

  9. I never said the adoption of Rule 82 bis casually overrode a statutory right.  I said the ICTY’s failure to adopt the same rule, choosing instead to simply assert that they had the power to override the defendant’s right to be tried in his presence, was “casual.”

    And I’m still waiting for someone to explain to me why, if the ICTY’s approach is a sound one, the ICTR judges felt that they needed to adopt Rule 82 bis before holding a trial in the defendant’s absence.

  10. Consider perhaps the years that Dr. Karadzic avoided arrest and that perhaps the judges deemed it necessary to formalize this principle in its rules in an effort to avoid a repeat of Slobodan Milosevic?

    Seriously, read the post: My whole point was that the ICTY judges never bothered to formalize the principle in its rules; the ICTR judges did.

  11. Maybe this will help, it is not always necessary to create a rule. In my view, ICTR Rule 82bis is embodied in the ICTY jurisprudence, Milosevic case, Seselj case, but perhaps also in the jurisprudence of other international courts/tribunals (Norman case at the STSL for example). Also, rules in national jurisdictions will support this rule. I agree that the judges should have codified the Rule at the ICTY but do not think that there is anything sinister behind that ommission nor, more importantly, that the absence of that rule from the written ICTY Rules violates any of Karadzic’s rights. There is a lot of uncodified daily practice at these courts, and yes it would be much much better if a rule existed for every occasion.  

  12. And I’m still waiting for someone to explain to me why, if the ICTY’s approach is a sound one, the ICTR judges felt that they needed to adopt Rule 82 bis before holding a trial in the defendant’s absence.

    They didn’t need to, but they preferred the (written) rule setting approach used, for example, by US courts, over the procedural-rules-setting through case law that would have been used by European courts in this situation.

  13. Martin, just a side-point. Does any common law country not use US-style procedural rules? I don’t think it is specific to the US.

    But in most common law countries, it would be  impermissible to retroactively amend those rules (not always, but on rules of substance, usually). So maybe your (or more accurately KJH’s) problem is a culturally inappropriate means to an end (ie a common law means to a civil law end which would not actually be possible in a common law court).

  14. Thank you for addressing the point.  As I said in my original post, I think the ICTY’s move was perhaps defensible.  I just find the method questionable.

  15. @[insert here] delenda est: I thought about it some more, and looked around a bit, and I have to say such written rules are much less rare than I initially suspected. Even the ECJ, which is supposed to be my particular area of expertise, has them. (Shame, shame, shame on me for forgetting…)

    The Brits have them, too, for example under the Civil Procedure Act (1997), which creates a rules committee responsible for establishing the Civil Procedure Rules.

    However, this kind of delegation tends to be much more limited than in the US (insofar as I can assess the US situation). Also, it tends to be much rarer in Criminal law.

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