29 Oct An (Unbiased) Perspective on Giving Dr. Karadzic More Time
Having been pilloried from all sides about my insistence that Dr. Karadzic should be given more time to prepare for trial, it’s important to note that I am not the only one who thinks that. Bogdan Ivanisevic, who works for the International Center for Transitional Justice — a group that can hardly be accused of being soft on Dr. Karadzic — also believes that the Tribunal should give him more time:
If the trial chamber now decides Karadzic’s claims have some weight, they will feel justified in giving Karadzic more time to extend time for Karadzic’s preparation and will not assign a counsel.
They would be wise meanwhile to simultaneously name a “stand-by counsel” who can take over from the accused if his right to self-representation is terminated eventually.
This scenario would require some creativity on the part of the judges in terms of explaining why they had ignored Karadzic’s claims a few weeks earlier.
Any time extension should be modest, so as to satisfy the requirement that the trial should be expeditious. A limited time frame would also make it a less of all all-out propaganda victory for Karadzic, assuming this was one of his goals.
At the same time, the allocated time frame should be generous enough to assure reasonable observers that the accused was given sufficient time to prepare.
If Karadzic does not appear in the courtroom after this additional time, the court should change the status of the stand-by counsel into that of a court assigned counsel and let him represent the defence.
What if Karadzic and his witnesses then boycott the trial in protest against the assigned counsel? Milosevic and Seselj did that, in similar situations during their trials.
This is where the perception of the fairness comes in again. Following an extension to the time limit for Karadzic’s preparation, few observers would take his claims of unfair treatment seriously.
Importantly, the example of self-representation in the Milosevic and Seselj trials may now turn against the accused. Most observers feel the tribunal was too magnanimous in handling those cases – to its own detriment and that of the victims.
Few would sympathise with Karadzic if he took the same path as Milosevic and Seselj, and if he decided after being given more time for preparation, to boycott the trial altogether.
I don’t agree that the Tribunal should appoint stand-by counsel, given that Dr. Karadzic was nothing but professional and cooperative with the Tribunal until the Appeals Chamber set a trial date that was determined by the Completion Strategy, not by the requirements of a fair trial. But I agree that giving Dr. Karadzic the opportunity to prove that he is genuinely concerned about being adequately prepared, not simply grandstanding, would do wonders for the trial’s ultimate legitimacy.
Unfortunately, the Trial Chamber seems completely unwilling to even sit down with Dr. Karadzic to see if a compromise can be reached. That doesn’t make sense, given that any decent appointed counsel will ask for at least six months to prepare for trial. The only explanation I can see is that the Trial Chamber thinks it can find a barrister who — motivated by the desire for publicity, not concern for Dr. Karadzic’s rights — will be willing to begin the trial without being adequately prepared for it. So the upshot will be a trial with an uncooperative defendant and an unprepared attorney. That is an unseemly possibility, to say the least.
“thinks it can find a barrister who — motivated by the desire for publicity, not concern for Dr. Karadzic’s rights — will be willing to begin the trial without being adequately prepared for it” – how meta, isn’t it?
Btw, whose idea was to quote Handyside in his Le Monde reaction? Laugh-Out-Loud moment of the year 😀
Karadzic in his role as counsel disrespected the court order to start the trial. He failed to appear in court twice. In any jurisdiction this would lead to disciplinary sanctions against the counsel, perhaps even contempt. That is why there is a substantial risk that Karadzic will again not comply with a court order and be obstructionist. Also remember the Seselj scenario. Considering the rights of the victims of the crimes he is charged with, the Tribunal must have a mechanism in place to gurantee that Karadzic will stand his trial. That mechanism cannot be controlled by the actions of Karadzic such as his decision not to show up in court. Karadzic is holding this trial hostage. The arrangement proposed by this group seems reasonable and should be considered as a viable option. However, I personally more agree with Milan Markovic’s view on this matter. http://www.ejiltalk.org/the-aborted-start-of-the-karadzic-trial/comment-page-1/#comment-508
What would it take to convince the Appeals Chamber to grant Dr. .. the time he needs? What consequences, of course aside from publicity stunts.
What do you expect of an international lynch mob, playing at court and trying a man according to rules they imposed after the crimes?
I wonder if there is any jurisdiction in the world in which a court would sit down with an accused to see if they can find a compromise in a situation where an accused is opposing his own opinion to a court order. One can agree or disagree with the Trial and Appeals Chamber’s decisions, but it should be immediately obvious to any lawyer that a court decision must be followed. We would not need courts if the parties could impose their own view. Maybe this decision does render the trial unfair, maybe not. In any case, allegations of a trial being unfair do not usually render the court’s decision less binding.
In this sense I think the discussion on the merits of the decision is worthwile, while trying to justify and legitimize Karadzic’s obstruction with an alleged error of law is not.
Student,
Well, at least you’re honest — you would rather have an unfair trial that is a fiasco for all parties than undermine a binding decision by the Tribunal. I just hope others aren’t so short-sighted.
Kevin,
maybe I was unclear about one point. I think we agree that reasonable people can disagree on question of law and fact. However, because in trials, criminal or otherwise, decisions are needed, the court is given the power to take this decision, i.e. the court has the obligation to ensure the accused has a fair trial. So the fact that the Court did not consider the commencement of trial to infringe Karadzic’s rights is an exercise of its duty to make such decisions. Again, one can agree or disagree with the decision, but in the end the opinion that counts for the purpose of the trial is that of the Court. How could it be otherwise? If the parties can impose their vision the Court would be nothing more than a mediator, hoping to acheive some form of agreement between the parties.
Student,
You were perfectly clear — and as a legal matter, I completely agree with you. My point is that, as a practical matter, the Tribunal has a choice: follow the letter of the AC’s decision, appoint counsel against Dr. Karadzic’s will, and let the trial devolve into absurdity, or negotiate with Dr. Karadzic. Does it have to negotiate with him? Of course not. But if the Tribunal thinks it can have a fair trial that contributes to its historical legacy without him, I think they are sorely misguided.
I agree that negotiation would be a viable option if you believe that Karadzic’s concerns are indeed simply to get a fair trial. Given the recent experience of the ICTY with defendants running the show, it is not entirely unreasonable for the court to assume that Karadzic may have some other motivations, such as protecting his legacy by making the ICTY seem unfair and biased. My sense is that they should appoint counsel but delay trial, effectively giving Karadzic some more time but not on his terms.