Don’t Forget the Black-and-White Jumpsuit with the Words “Convict” on It

by Kevin Jon Heller

My favorite line of today’s hearing in the Karadzic trial, courtesy of one of the prosecutors:

“If necessary, force can be used to secure his presence in the courtroom,” Uertz-Retzlaff said.

Because nothing says “fair trial” quite like a defendant in restraints.

http://opiniojuris.org/2009/11/03/and-a-black-and-white-jumpsuit-with-the-words-convict-on-it/

64 Responses

  1. If a defendant wishes not to be tried in abstensia, he should show up. If he refuses to show up, I see nothing wrong with forcing him to be present at the trial. After all, why should we allow defendants to effectively halt a trial?

  2. I’m not sure what’s supposed to be remarkable about using force to bring a defendant to court.  This is entirely standard in domestic criminal prosecutions.  If someone isn’t on bail, he’ll be arriving at court in a locked van with a security guard or three, even in New Zealand.  And whether or not the accused is bailed, she’ll be brought up from the cells to court by a security guard, who will stand beside her throughout, and take her back down afterwards.  Are you asserting that this show of coercion impinges on fair trials in a domestic context?

  3. David,

    You are confusing force and security.  What are they going to do if Dr. Karadzic refuses to stay in the courtroom?  Lock the door?  Handcuff him to his seat?  That is a fundamental violation of due process — and I imagine in most domestic courts.

  4. So, pity the poor war criminal because he is actually FORCED to attend his own trial via measures that are routine in most nations, if not soft? DA HORROR!

    Bluntly, I believe the ICC is far too LENIENT on these matters. Don’t believe me? Take a look at the godawful circus that Milosevic turned his “trial” into, using the defendant’s box as  a soapbox to screw his victims over once again. That he actually died of relatively natural causes after what he did is an insult to justice itself and a damning indictment of “International Law”, or at least the bodies that are supposed to enforce it.

    Now it looks like the ICC has actually learned something, and it appears that Karadzic will not get to play the “The Slobodan Milosevic Show” like his ally/boss did. Good riddance.

    To be blunt, he should be given a fair trial and then shot. Provided it is judged to be a suitable use for a useful bullet.

    And I’m sorry, but I’ve always believed that when you reach a certain level of verifiable crimes, it becomes a far higher priority for justice to actually evaluate and punish you  than it is for you to get all the plush defendant privileges that are necessary under most circumstances for a just trial. Because like it or not, there is a large gap between Karadzic, Stalin, or Hitler and Joe Mugger.

    Is it always nice or sweet? Of course not. Can it unjustly skew results? Of course. But there comes a time when the need of justice to be served for the victims outweights whether Jean AxeKillerille ordered his men to rape and murder all living things in a specific village, or just to rape them.

    If this turns out to be another Milosevic case, I would only feel sympathy if one of the victims were to go in and try his or her hand and vigilante “justice.” Wrong? Yes, but if the courts do not follow their primary obligation to both objectivity and to the victims, than the worth of them as legal institutions of any merit is quite questionable.

  5. And to make my position clear before anybody butts in:

    My main issue is not that Karadzic is trying to undermine the Tribunal, the ICC showed it was entirely capable of doing that well enough itself after the Milosevic fiasco. My point is that bluntly, that there is something far more precious at stake than the credibility of the ICC, and that bluntly is the need to

    I am sorry, but while much has been made about Karadzic’s cooperation with the tribunal, I am not as convinced as I would like given the court transcripts we have access to now. Yes, we don’t see anything as overt as Milosevic, and some of his actions could be somewhat justified by the need even at this high level to ensure that this isn’t a complete Kangaroo Court (make no mistake, that is largely what it is, and not without good reason, but let’s make it at least a relatively honest, open, and consistent one), some of his actions (like leaking the alleged Albright “bargain” and many of his statements to the press, particularly the Rusisan and Serbian nationalist ones) must raise the question of how sincere that “cooperation” is.

    Thirdly, and I am certain this will get plenty of well deserved criticisms, but in a case such as this, the rights of the defendant have to take a backseat to the need to actually get him into court and try him. This is nothing as radical or as Jacobin as some may think (after all, what are Bail Remands but an extremely mild form of this?), and unless you get them into some kind of court, than you open the door for complaints about being held without trial (which would be true but justified, given the need to prevent someone of Karadzic’s caliber from going back into the wind), and it opens up the possibility of another Milosevic trial.

    And finally, I am not saying that Karadzic should be read the charges, told he is guilty, and than shot all within 10 minutes. That would be just as injurious to international law and justice as letting him walk (albeit, IMHO, not exactly as injurious). He should be given an honest and relatively dedicated legal team (not the Nicolae-and-Elena “defense” that supported the death sentence), the ability to confront his accusers, and the ability to ask for the legal measures that defendants are allowed to request.
    And when it is all over, he should be given the ability to decide whether he desires a blindfold and/or a smoke.

    But let us not pretend that this is exactly the same as the trial of Joe Mugger or even of, say, Scott Peterson. The  sakes and importance are vastly higher, the individual is undoubtably guilty of crimes of far greater magnitude (to say nothing of those that are disputable), and as such, we can neither expect nor demand that the ICC will treat the defendant with kid gloves. They more-or-less did that before, and we had the abortion of justice that was the Milosevic trial. And I can hardly blame them for wanting to prevent that from happening again.

    I naturally will never say that he has been treated with all the privileges that he should have been given, or that we should do things differently in a perfect world, but the bottom line is that we have to make do with the materials we have in this one. And bluntly, the Court should primarily be responsible to the dictates of international law and to the victims, not to Karadzic (yes, they are responsible to him, and rightfully so, but under no circumstances should we fool ourselves by believing that in a case of this magnitude that the responsibility is or should be equal). And simply put, I see absolutely no problem with forcing him to be subjected to the same measures that most moderately dangerous suspects are subjected to around the world. It may not be ideal, but it is a reasonable compromise.

    The bottom line is that the primary function of this court should be to force Karadzic to account for any actions he may have committed and to ascertain his guilt on the charges (be it guilty, guilty with extenuating circumstances, or even not guilty). All else is secondary.

    Could this argument be used to justify turning the ICC into some Stalinist show trial? Of course it could. And that is why we must walk a very thin rope between forcing them to account and depriving them of the rights even they should be allowed to, and thus stripping them of the trials themselves of legitimacy and justice.

    But as Milosevic showed previously, if anything, the ICC is in greater danger of going to the other extreme, and there should be measures to force this issue.

    That is all I can say.

  6. Eric, that’s “ICTY” you are referring to, not the “ICC”.

    Other than that, I second those people who do not see problem with forcing the defendant to be present in the trial. Like David noticed, that’s probably common to ALL domestic criminal prosecutions around the globe.

    Next thing you know, Karadzic will claim that his pre-trial detention violates his presumption of innocence. You must put limits to this clown parade somewhere.

  7. I only want to second the position of the rest of the people. In Spain for example, that you cannot try in absentia, force to be at the trial is not a violation of fair trial.

  8. It would be great if someone out there would answer the question I asked — do you think it’s okay to use force not only to bring Dr. Karadzic into the courtroom, but also to make him sit in the dock and listen to the evidence, whether through handcuffs, a gag, etc.?

  9. do you think it’s okay to use force not only to bring Dr. Karadzic into the courtroom, but also to make him sit in the dock and listen to the evidence, whether through handcuffs, a gag, etc.?


    I would prefer to try him in absentia (or at least through counsel) if he doesn’t want to come. As long as he doesn’t have counsel, he should be made to come, although I imagine gagging him would make it hard for him to represent himself. Which brings us, again, to the conclusion that the Tribunal should have appointed (stand-by) counsel ages ago.

  10. Response…You didn’t ask a question, you made an assertion.

  11. As it is ok to use force to ensure the accused’s appearance in the trial, it is ok to make sure the accused sits through the proceedings. Domestic courts have special cage-like docks for people who cannot act in a civilized manner and prefer to jump and shout like monkeys during the trial. Nothing too extraordinary about it.

  12. So…up until now I have held back from replying.

    Eric:  No matter how heinous the crime, International Law stipulates that everyone has the right to a FAIR trial.
    “And bluntly, the Court should primarily be responsible to the dictates of international law and to the victims, not to Karadzic (yes, they are responsible to him, and rightfully so, but under no circumstances should we fool ourselves by believing that in a case of this magnitude that the responsibility is or should be equal).”
    No actually the court owes no duty directly to the prosecutor OR Karadzic, it actually owes duty to making sure the trial is FAIR to ALL parties.  No matter how heinous the crime.  That’s the exact problem with the ICTY, that the Prosecution and the Judges are far too closely related, as they are administered under the same umbrella.
    “The bottom line is that the primary function of this court should be to force Karadzic to account for any actions he may have committed and to ascertain his guilt on the charges (be it guilty, guilty with extenuating circumstances, or even not guilty). All else is secondary.”
    Just wondering when International Law changed from being fair to being Stalinist?
    So basically what you’re saying is that he SHOULD be forced, bound and gagged until he “admits” to all the charges listed?
    Whatever happened to innocent until proven guilty?
    Lastly, maybe you need to go check the Civil Covenant?
    11(I)  Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has all the guarantees necessary for his defense.
    Maybe have a look at Article 14 of the Covenant as well, you might find some interesting pieces of information there too.

    KJH:  Sorry for going off topic there(and quoting things you know off by heart anyways!)…
    To answer your question;
    Simply, no it’s not okay.
    Only problem is that I can’t find anything to stop it from happening.  So technically it is “okay” according to the law, but if it is “fair” is a whole other thing.
    Although the trial could and can go forward in absentia, as long as K is capable of listening to his trial from the cell?
    But not worth it as he does not get to put his case forward at all in that instance.
    Technically it’s NOT okay, as the case is allowed to go ahead in absentia, but even in that situation he still won’t get a fair trial.

  13. Martin said what I said…
    Except I don’t agree with appointing counsel, as that should only be used when the defendant is obstructing court, and so far Karadzic hasn’t obstructed as far as I can see.

  14. What are they going to do if Dr. Karadzic refuses to stay in the courtroom?  Lock the door?  Handcuff him to his seat?

    Make him sit in the “naughty” corner?

  15. Except I don’t agree with appointing counsel, as that should only be used when the defendant is obstructing court, and so far Karadzic hasn’t obstructed as far as I can see.

    You don’t thing refusing to appear is obstructionist? (Which isn’t to say it isn’t legitimate, but still.)

    Under the case law of the ICTY, the accused has the right to defend himself. That doesn’t mean, though, that the Tribunal cannot appoint a backup counsel, who is asked to be ready to take over whenever the accused is found to have abused his right to self-representation. At the moment, Karadzic holds an important ace card stemming from the fact that appointing counsel would delay the trial for months.

  16. Bring him to the courtroom. If he cannot behave in a civilized manner, kick him out.

    Next day, do the same.

    Third day, trial in absentia with assigned counsel.

    Throughout this process, make a video link from his cell to the courtroom so that he can follow.

    An accused cannot be allowed to halt his own trial. Kevin, what happens in the US when an accused fails to show up for his trial? If he is brought in by force, what happens if he misbehaves?

  17. One more thing, Karadzic wants more time to prove who started the war and that people already convicted of crimes by the ICTY are actually innocent. Why should the TC give him time to prepare for these completely irrelevant issues? He clearly want to fight a political battle and not take this trial for what it is, the examination of his responsibility for Europe’s mort horrendous crimes since the Second World War.

  18. @scriptum: This is the US (Federal) rule. Rule 43:

    Defendant’s Presence
    (a) When Required. Unless this rule, Rule 5 or Rule 10 provides otherwise, the defendant must be present at:
    (1) the initial appearance, the initial arraignment, and the plea;
    (2) every trial stage, including jury impanelment and the return of the verdict; and
    (3) sentencing.
    (b) When Not Required. A defendant need not be present under any of the following circumstances:
    (1) Organizational Defendant. The defendant is an organization represented by counsel who is present.
    (2) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendant’s absence.
    (3) Conference or Hearing on a Legal Question. The proceeding involves only a conference or hearing on a question of law.
    (4) Sentence Correction. The proceeding involves the correction or reduction of sentence under Rule 35 or 18 USC 3582(c).
    (c) Waiving Continued Presence.
    (1) In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:
    (A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;
    (B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or
    (C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.
    (2) Waiver’s Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the verdict’s return and sentencing, during the defendant’s absence.

  19. So, here we go….

    Kevin: Obviously, you have not read my massive wall of text fully through, because I addressed that point recently, and the answer is CERTAINLY. If it does not impede his ability to interact meaningfully in the court, it can be used to bring him to it.

    “Eric:  No matter how heinous the crime, International Law stipulates that everyone has the right to a FAIR trial.”

    Of course. But you are failing to notice that the optimum word here is FAIR, and that Fairness does not always mean what you think it odes. As I stated before, for a crime of this magnitude and relatively undeniablity, it would be fair “Fairer” for a vigilante to break into Karadzic’s cell and execute him than it would be for him to be allowed to walk or for him to die before the verdict is rendered. It would not be perfectly FAIR, naturally, and it would in reality be a gross miscarraige of justice, but it would be far less of one than having this become a Milosevic trial.

    “No actually the court owes no duty directly to the prosecutor OR Karadzic, it actually owes duty to making sure the trial is FAIR to ALL parties.”

    1. Does that statement not contradict itself? If it owes a duty to making the trial fair for all parties, does it not owe duty to each individual side?

    2. If you REALLY want a fair trial as defined by a defense lawyer or even under most modern criminal codes, let’s be blunt here: YOU AREN’T GETTING IT ANYWAY. At this level, no defense lawyer in the world would truly expect to do much more than overturn a handful of charges, and you are not getting an unbiased jury or judge even if they were selected from a relatively disconnected pool simply because the press coverage in most of the world would poison the jury pool to a level that would give a regular trial lawyer a stroke. Since a perfectly fair trial is impossible even far more so than is normal, let’s stick with the far more realistic goal of keeping the process clean, thorough, and transparent.

    3. Here we get theoretical onto the basis for the legal system and its reason for being. My personal theory is that it exists to first and foremost address wrongdoings (usually crimes) and arbitrate punishment accurately. Impartiality was a necessary development onto that in order to actually try and make those punishments more accurate and (like you say it) FAIR, but it was hardly instituted in any organized fashion. It does not always exist to make sure that everybody has an equal chance to get what they want, but merely to make sure that the finding is an accurate one. And naturally, in the case of Karadzic, perfect impartiality must take a backseat.

    ” No matter how heinous the crime.  That’s the exact problem with the ICTY, that the Prosecution and the Judges are far too closely related, as they are administered under the same umbrella.”

    But in many ways that is counterbalanced by the fact that the ICTY has allowed its defendants to get away with things that I cannot think of a county judge allowing Joe Accused to get away with.

    “Stalinist?”

    Obviously, you never looked through my entire comment, and I explicitly noted that my argument could be taken in such a fashion, but that if anything, the ICTY was in danger of going to far in the OPPOSITE direction, and that we have an obligation to actually conduct a trial and get a verdict in before the defendant croaks from an age-related health concern, because I have NEVER seen anyone argue that Milosevic’s dying in a prison cell unsentenced WASN’T a miscarraige of justice.
    “So basically what you’re saying is that he SHOULD be forced, bound and gagged”

    Into the court? Absolutely. Than you take off the gag and you have him conduct his defense without undue pressure. But he SHOULD be forced to show up, because if Joe Accused has to, I can see absolutely no reason why Radovan Karadzic shouldn’t.

    ‘”until he “admits” to all the charges listed?”

    Reading Comprehension? Of COURSE not. He should be allowed reasonable time and resources to try and contest those charges he should desire to contest, and if he can to overturn some of them. The issue is that I actually think he should actually be forced to attend his own trial just like virtually every other defendant.
    “Whatever happened to innocent until proven guilty?”

    In all due practice, it doesn’t exist. For the individual charges should, and we must take care to make sure that Karadzic has plenty of opportunity to overturn them, but on the personal level it doesn’t exist when you have climbed this far up. Like it or not, that is the truth, and I don’t see any possibility of changing that without going into Sci-Fi territory.

    The bottom line is that at this point in time, the main obligation is to ensure that the trial is conducted to its conclusion fairly and transparently. Unfortunately for the accused, that does not go in their favor.

  20. Censorship has started… better now then never

  21. I believe Professor Heller has a valid point.

    It is fascinating and saddening to see how quickly most people are willing to curtail an accused´s right to a fair trial just on the basis that the accused seems guilty.

    If we sacrifice an accused´s basic right to express his or her view of events in court (audiatur et altera pars – lmay the other side be heard, too), we put ourselves back into a old, barbaric self thought to have overcome a long time ago.

    In all respect, what is wrong with giving a man a couple of months to prepare himself and let him demonstrate who, in his view, is responsible for the terrible events that happened in former Yugoslavia? What is wrong with a little more time compared to the disproportionally bigger effects and ramifications the outcome of the trial will have on history, and especially for the people of former Yugoslavia? What will make the people come together are not convictions. It is truth, truth found as a result of a fair trial.

    Can we, as civilized nations, really afford to sacrifice justice to expediency? Can one reasonably do that? and at the same time even purport to do it “in the interest of justice?

    If truth is the objective, then both sides should be listened to (audiatur et altera pars). In this respect, one should not lightly dismiss the accused´s story as a mere excuse, or, even more harsh, a lie, as the ICTY did with Milosevic. One should not lightly threaten the accused with an imposed counsel, as the ICTY did with Milosevic and now does with Karadzic.

    We should not treat the accused as morally guilty until legally proven to be guilty.

    Anything else cannot be in “the interest of justice”.

  22. The way I see it, the ICTY is part of a bigger picture: ensuring that rather than giving in to vigilante emotions, the aftermath of terrible violence that has been perpetrated is dealt with in a civilised way. That is, having a court try and convict, or acquit, those accused of war crimes, instead of the victors going around and shooting those they believe perpetrated the crimes. The purpose is justice for the victims, not satiating feelings of revenge.

    For the results of these types of courts or tribunals to be accepted by the international community, they need to be conducted in the fairest way possible, including respecting the right to be “innocent until proven guilty”. The societies who were at war will still have to live with each other later on and the last thing the court should want is to give either side ammunition in the form of accusations that those convicted were subjected to unfair proceedings. UN administered courts should be setting the example, they should be the pinnacle when it comes to fairness.

    The international community is attempting to make criminal prosecution for war crimes the accepted norm. For this to be seen as legitimate by all and to ensure that states become party to the Rome Statute or agree with ad hoc tribunals, these proceedings need to be run in the fairest way possible. We should not think that having a fair tribunal or a good defence team makes it too easy for the accused and could mean that they “get away” with their crimes. A finding of guilt comes down to evidence, proving beyond reasonable doubt that the accused is guilty. If the evidence is there, they will be convicted. Treating the accused in a fair way will not change this.

    Personally, as far as I am aware from newspaper reports etc (and please correct me if I am mistaken), until now Karadzic has been co-operative with the tribunal.
    1 million+ pages of evidence in the last 5 months is an extraordinary amount of information to work with and it seems legitimate to be asking for more time. I feel that one of the more pressing reasons why the Court has refused his requests is because of the completion strategy of the ICTY. If they were to grant Karadzic more time, it would mess with their schedule. I would hope that it is not such an influential factor, but feel that it probably does play an important role. I agree with Justinian here that we should not sacrifice justice for expediency.

    Like most, I would like to see those who are guilty of war crimes are punished. However, I believe that a finding of guilt should come down to the decision of a fair court or tribunal that the evidence proves guilt beyond reasonable doubt and not because the accused is unable to respond to the charges properly because of inadequate time.

  23. Martin: you said it yourself, it’s quite legitimate.  Do we need to link back to KJH’s previous post with Karadzic’s letter to the court?
    That all being said, I would agree that he should have turned up to the first day of the trail, outlining these reasons as to why he should not be expected in court in the days proceeding.

    Justinian:  Very well Put, nice to have another voice of reason, rather than the lynch mob that seems to be encasing these blogs at the moment.
    It’s kind of bizarre I have been thinking about this this morning, and have realised that the more unfair they are to Karadzic, ultimately the more unfair they are to the victims of said crimes.
    Ultimately once this trial is over and he appeals (which you would expect), the more likely he is to be able to prove that he was unfairly treated, and the case be dismissed?
    It would be more expeditious to the court to give him a fair trial now, give him the time he needs to prepare.  As it would give the prosecution the chance to win without bias, and you would think that would be a real victory wouldn’t you? 

  24. I can’t think of any civilised country that would indulge Karadzic’s antics. I would welcome an example of a country that would.

    We all want a fair trial, sure. But a rule which enables criminal defendants to abuse the scarce resources of (any) justice system in order to dictate the terms of their own trials hardly seems to be ‘fair’ when considered in context. What is that line about justice delayed, after all (and isn’t that particularly apposite to Karadzic’s?)?

    In reality, if you want a fair trial, you appoint counsel – that is perhaps unfortunate, but it is also true. It is also why Karadzic does have counsel. His refusal to allow those counsel to represent him is why he should not be allowed to further delay his trial.

  25. I’m still trying to work out how requesting more time to review the documents and evidence, to be given the chance to properly defend himself, is dictating the terms of ones trial?

  26. To hear Kevin tell it, there is simply nothing more important than according procedural concessions to Karadzic. The rights of his victims, society at large, the body of international law, or whoever else, are totally unimportant. No, the key thing is to allow him to fritter away time on fictional immunity defenses, instead of trying to address the many serious and substantial charges.

    Furthermore, to characterize a defendant who went on the lam for 11 years, and evidently never intended to voluntarily surrender to the Tribunal, and who has continued to make statements that reject the legitimacy of the Tribunal, as “extraordinarily cooperative” is as mind-boggling as it is incorrect. In any ordinary criminal proceeding such a defendant would be treated with utmost suspicion by the court, and rightly so.

  27. It seems that censoring comments is also fair.

  28. Nemanja,

    By all means, show me where I said or implied that “[t]he rights of his victims, society at large, the body of international law, or whoever else, are totally unimportant.”  It is, however, quite revealing that you seem to believe that providing Dr. Karadzic with a fair trial is inconsistent with those interests.  As “A” points out, a conviction after an unfair trial serves the interests of no one.

  29. OK, Round three *dingdingding*:

    Justinian:
    “I believe Professor Heller has a valid point.”

    He did, but it was blown out off the water LONG ago. Bluntly, such measures are common even in the most Liberal and defendant-friendly nations on the planet for those who are deemed either dangerous or who are attempting to unlawfully slow the legal system by refusing to be present (like Karadzic happens to be). If it can be used on Joe Accused, who is on trial for petty theft, why should it not be used on someone like Karadzic?

    “It is fascinating and saddening to see how quickly most people are willing to curtail an accused´s right to a fair trial just on the basis that the accused seems guilty.”
     
    Bluntly, it is outright horrifying for me to see how many people on here are willing to justify an action such as this on the basis of “Defendant’s rights” (nevermind the fact that this is hardly in violation of any Defendant’s rights that I can think of, save for some extremely generous extensions that were overruled by the court, as is ALLOWED) while it arrests the very justice that they claim to be working towards.
     
    Firstly, where have Karadzic’s rights been infringed? He has been provided a counsel that actually does what it is supposed to do, he has been given ample access to the public and to the resources used against him in order to make his defense, and he has even been given extensive leeway in “preparing his case” by going off onto matters that are actually not covered under the purpose of his trial. The only major complaint I could find much value in is the “Impartial jury of one’s peers” part, but that can be excused by the fact that at this level, it would virtually be impossible to get an impartial jury, and that most of said peers are both unable to appear (usually because they are either dead or subject to cases of their own), and even if such a case were possible it is unlikely to be in the interests of justice to have them judge him (anybody here think that Mladic and Zombie Milosevic would give a ruling that could in any way be called “justified?”). By all accounts, he has it quite good, far better than the defendants of Nuremberg and Tokyo had (and note that those rulings are still largely viewed as just if imperfect in spite of happening under FAR less objective circumstances), and I would even wager far better than most defendants in his relative position, with plenty of people who are willing to hear him out. The reason for this boycott was bluntly because the ICTY objected to the fact that his “preparation for his case” had increasingly little to do with his case, and that they were unsurprisingly unhappy about the possibility of Karadzic trying to turn his trial into another “Milosevic Live” (which, to be perfectly fair, he hasn’t yet, but some of his charges do come close), which if anything would be far more injurious to justice than if a lynch mob (as I have so often seen the comparison) took him out and hung him from the closest vertical object of sufficient hight, if for absolutely NO other reason than because it is a far greater punishment than being handed a soapbox and the ability to delay one’s trial indefinitely.
    2. “If we sacrifice an accused´s basic right to express his or her view of events in court (audiatur et altera pars – lmay the other side be heard, too)”
    Sorry, but where has Karadzic been denied this right? He has been given every opportunity to tell us all about this, and even more (like who is REALLY responsible for the Yugoslav Wars and the validity of other decisions from the Hague). He was just not given an INDEFINITE period of time in which to go off on matters that did not always even tie in to the matter at hand. He has the right to be heard, but not the right to use that right to stall the trial indefinitely and crowd out the other voices that must be heard in any trial worth its salt.
    “we put ourselves back into a old, barbaric self thought to have overcome a long time ago.”
    I would like to ask you what measure do you truly think humanity has become so enlightened as to be able to not have to make compromises, sometimes extremely ugly ones, in order to serve the greater good, like the discussion on whether to reduce two cities to the ground in order to spare the rest of the nation a bloody invasion, or the decision to measure between the right of a defendant- any defendant- to be heard and the necessity of the courts of law to do their duty. Because I would DEEPLY love to think so. But I cannot, because the real world, real law, real trials, are not conducted in pristine and sterile environments by angels and demons, but on this Earth, by humans whose capacity for both moral depravity and moral enlightenment is truly mind-boggling in circumstances that are neither perfect nor always even preferable. And the bottom line is that while we may well be kinder, more enlightened than our ancestors, we are hardly perfect, nor have we evolved beyond the need to make such ugly judgement calls for the greater good.
    The ultimate question in this case is how far does any defendant, and particularly a man like Karadzic, have to stretch their ability to represent out even at the expense of the other side, or even of justice itself. And I must find Karadzic’s argument lacking in that case.
     
    “In all respect, what is wrong with giving a man a couple of months to prepare himself and let him demonstrate who, in his view, is responsible for the terrible events that happened in former Yugoslavia?”
    That depends: has he already been given several months to do so? Has he been venturing off into comparatively unrelated matters such as trying to question the legitimacy such agreements as the Geneva Conventions and other matters (which, I must remind you, Yugoslavia was party to and Serbia agreed to uphold during the war)? Has he not- both publicly and before the tribunal- given very long explanations on this front (most of which were punched with holes before the day was out)? How much is the preparation a legitimate attempt to prepare and how much was it a stalling tactic? All of these factor in, and bluntly, even so, courts around the world often cut time for “preparation” short for both defense and prosecution (though nobody has raised a stink about it, has anybody noticed that the end of this period of preparation also applied to the prosecution?). Even if it is slightly unjust to whichever side, the bottom line is that every court must make such painful decisions, and the bottom line is that the Defendant is legally obliged to accept that decision. Karadzic refused, and so he- like any other member of the accused- must be forced to stand trial.
    “What is wrong with a little more time compared to the disproportionally bigger effects and ramifications the outcome of the trial will have on history, and especially for the people of former Yugoslavia?”
    Because a little more time here and a little more time there and suddenly you have a miscarriage of justice like what happened in the Milosevic case, where a War Criminal was allowed to run amok by using the defendant’s box as a soapbox to not merely bash his accusers and his victims (which, granted, must be allowed to a certain extent) while delaying his trial until he dropped dead without having to stand trial for the rest of his crimes. What about the effect THAT has had and continues to have, not merely on the people of the former Yugoslavia, but also on history and legality itself and anybody else facing such charges?
    Does the court’s obligation to conduct a fair and transparent trial at some point trump the accused’s right to advocate for themselves? Legal canon says, on the whole, “Yes.”
    “What will make the people come together are not convictions. It is truth, truth found as a result of a fair trial.”
    Firstly, the purpose of this court is not to bring people together or to make the Former Yugoslavian Republics all shake hands and sing Kumbayaya. It is to take the accused, judge them objectively and fairly based on pre-existing statutes, and judge them accordingly. Anything else is merely a bonus. This court is not ruling on how friendly the Yugoslav states shall become, but on the actions and fate of one Radovan Karadzic, and that must be the priority.
    2. You speak about truth and the need for reconcilliation, but are not such trials as this necessary before this sorry era can be truly relegated to the history books? And given Karadzic’s admitted responsibilities, will obtaining such truth not necessarily result in a conviction on some matter (whatever it or they may be), given the truth of what Karadzic did at the very least, and what he admitted to doing?

    “Can we, as civilized nations, really afford to sacrifice justice to expediency?”
    No. But can we, as relatively civilized peoples and nations really afford to sacrifice both justice and expediency on the altar of the accused’s right to defend themselves, like what happened with the Milosevic trial? And if forced to chose, which one harms justice the less? That is the dilemma, and it is not one for us to find a concrete answer to, but at some point, we have to make a values call, and bluntly the necessity for a fair trial taken to its conclusion trumps Karadzic’s ability to prepare for his case indefinitely.
    “Can one reasonably do that?”
    In whole? Abosolutely not. But with some slivers, the answer sadly becomes less absolute, and soon you will find it necessary to make some compromises. It is not pleasant, but any complaints that such practices degrade the legal system must be answered by saying that such judgements have ALWAYS been wearing at the legal system, just as oxygen degrades most compounds on Earth. Such degradation is usually so small that you don’t notice it until you are looking directly at it, but it is sadly inevitable, and can only be counteracted by making judgements that are broadly “just”, to use a better term.
    And while the decision to cut Karadzic’s preparation may be slightly unjust, can it reasonably said to be more unjust than having a convicted war criminal escape judgement by prolonging his trial until his death, all but laughing to the bank?
    “and at the same time even purport to do it “in the interest of justice?”
    Yes, and some measures are even often necessary. See Nuremberg. It was not perfect by any means- even far less so than the ICYR- but it was far less so than what happened after WWI, where men like Hindenburg, Von Moltke, Fokker, Haber, and more Young Turks than you can shake a stick at escaped justice when no tribunal was convened to address the absolutely appalling atrocities they had committed (is it really a coincidence that the war criminals twenty years later- who had often served in the same army, often under such individuals- were far bolder and more ruthless given this response?).

    Compromises are ugly, but they are as natural as breathing, and cannot be avoided by even the fairest people.

    “If truth is the objective”
    Which it is.
    ” then both sides should be listened to (audiatur et altera pars).”
    Which is precisely what has been happening. Right up until Karadzic refused to do so and tried to take his ball and go back to the jail cell when his request was legally denied.
    “In this respect, one should not lightly dismiss the accused´s story as a mere excuse, or, even more harsh, a lie, as the ICTY did with Milosevic.”
    True, and that was the one time I truly could say that I felt the ICTY has been unjustly harsh on Milosevic (which, given the general behavior of the ICTY towards Milosevic, says quite a lot). The ICTY should have stuck to the facts as they could be divined, and left discussion over the legitimacy of the defendant’s defenses/integrity for sentencing, to see if there were any extenuating circumstances. But we should also not lightly dismiss the need to actually hold a trial rather than the pan-Yugoslav war leader convention with occasional litigation thrown in. And simply put, at some point in time you have to say that everyone has had enough time to prep, that any further research/preparation shall be done during the trial, and that it is time for everyone to come to court and have  the case get underway. And while it was fully within Karadzic’s right to protest the court’s decision, the bottom line is that it is infinitely less so to actually go in contempt of that court ruling. Which is what he did.
    “One should not lightly threaten the accused with an imposed counsel, as the ICTY did with Milosevic and now does with Karadzic.”
    Like virtually every defendant in the US who hears the “You have the right to an attorney, If you cannot provide one, you shall be provided one?” (yes, it’s been a while since I’ve gone through the Miranda rights, but I believe that is the gist of it).  The bottom line is that if you desire to represent yourself, you have to actually follow the rules, and if you either cannot or do not want to do so, than it is only just that you be provided with someone who will while representing you so that the legal system may actually function.
    “Anything else cannot be in “the interest of justice”.”
    Maybe, maybe not. The bottom line is that the history of law is the history of various compromises, ad-hoc decisions, and new rulings building and accumulating and occasionally being disowned. It is not pretty, but the bottom line is that such compromises and case-by-case decisions are necessary for any legal system to function with any flexibility. And Karadzic has hardly been unjustly treated thus far.
    “The way I see it, the ICTY is part of a bigger picture: ensuring that rather than giving in to vigilante emotions, the aftermath of terrible violence that has been perpetrated is dealt with in a civilised way. That is, having a court try and convict, or acquit, those accused of war crimes, instead of the victors going around and shooting those they believe perpetrated the crimes. The purpose is justice for the victims, not satiating feelings of revenge.”
    Correct. However, you cannot deny that revenge, channeled through legal and just channels, is necessary for such healing to work (we saw how forgive-and-forget for individual war criminals worked in WWI, and I see no reason why we should seek to repeat that).

    “For the results of these types of courts or tribunals to be accepted by the international community, they need to be conducted in the fairest way possible, including respecting the right to be “innocent until proven guilty”.”
    True and false. They must be treated in the fairest way possible, including innocent until proven guilty on individual charges, but in practice we cannot pretend that Karadzic is the same as any legal defendant on the docket for pick-pocketing in London or Dallas. He has- by his own admission- violated international law in one of the most heinous ways possible, and as such, for lack of a better term, we must make an example of him. Harsh? Yes. Unscholarly? Perhaps. But the bottom line is that you cannot allow such a violation to go unpunished, and you also have to prioritize, and say that at some point the defendant’s right to prepare must be overtaken by the obligation of the court to bring them to justice.
    “The societies who were at war will still have to live with each other later on and the last thing the court should want is to give either side ammunition in the form of accusations that those convicted were subjected to unfair proceedings.”
    Perhaps, but in practice, the loons shall gather any ammunition they wish due to the impossibility of holding a perfect trial, particularly on this level, and the societies will coexist until the next war (if ever) more-or-less regardless of the situation in many cases (see Nuremberg and Tokyo, which would NEVER have been judged even remotely adequate by modern standards).
    “UN administered courts should be setting the example, they should be the pinnacle when it comes to fairness.”
    Yes. However, for some people, “fairness” would be a bullet to the back of the head after a trial. It is the necessity for a public hearing and for justice that we conduct a fair and transparent trial, but do not believe for one second that fairness necessarily means mildness. It doesn’t, though often that is the case.

    If Karadzic can defend himself well enough to get a few charges dismissed, all well and good. But when you actually charge him, charge him fairly, even if it means execution.

    “The international community is attempting to make criminal prosecution for war crimes the accepted norm. For this to be seen as legitimate by all and to ensure that states become party to the Rome Statute or agree with ad hoc tribunals, these proceedings need to be run in the fairest way possible.”
    Again, we must consider precisely what fairness means by a case by case basis, and the fact that the partisans who go around looking for ammunition may well be enraged by a judgement that is nevertheless 100% justified.
    “We should not think that having a fair tribunal or a good defence team makes it too easy for the accused and could mean that they “get away” with their crimes.”
    Good. Because that is effectively what Milosevic did by drawing his trial out until he could escape into the ground form accounting for his actions, and can we really afford another such case?
    ” A finding of guilt comes down to evidence, proving beyond reasonable doubt that the accused is guilty. If the evidence is there, they will be convicted. Treating the accused in a fair way will not change this.”
    Yes, but we also have to make it snappy, because if not, we may find ourselves unnecessarily drawing the process out until we are informed just before sentencing that we are holding a stiff, which if anything is a more flagrant violation of the victims and an insult to justice than this case is.
     
    “Personally, as far as I am aware from newspaper reports etc (and please correct me if I am mistaken), until now Karadzic has been co-operative with the tribunal.”
    Not particularly. He has been far more cooperative than Milosevic, but then again that is hardly a very high standard. He has been going through the usual phases of delay and prepare peppered with some inflammatory rhetoric for the audience back home in Belgrade, but there have been worse.
    “1 million+ pages of evidence in the last 5 months is an extraordinary amount of information to work with and it seems legitimate to be asking for more time.”
    Certainly, it is reasonable to ASK for more time. But in doing so, you must recognize the legitimacy of the court’s ruling on the matter, and they said “Nay. You can do it between examinations.” Which triggered this in the first place.
    ” I feel that one of the more pressing reasons why the Court has refused his requests is because of the completion strategy of the ICTY. If they were to grant Karadzic more time, it would mess with their schedule. I would hope that it is not such an influential factor, but feel that it probably does play an important role. I agree with Justinian here that we should not sacrifice justice for expediency.”
    Perhaps, but again, can ANYONE reasonably blame them for being concern about this? They have, after all, seen the Milosevic case utterly blow up because Milosevic escaped via the Grim Reaper, and Karadzic is getting on in age as well. Simply put, there is a very good reason why they want the case through as quickly as possible. We cannot, after all, sacrifice justice for overwhelming interpretations of defendant’s rights, particularly in a case like this.
     
    “Like most, I would like to see those who are guilty of war crimes are punished. However, I believe that a finding of guilt should come down to the decision of a fair court or tribunal that the evidence proves guilt beyond reasonable doubt and not because the accused is unable to respond to the charges properly because of inadequate time.”
    True, but the key word here is Reasonable. And the bottom line is that it is the obligation of a court in a time like this to actually get the trial done fairly, transparently, and efficiently. And that means that neither side can delay the trial with overhwhelming out-of-court preparation until the defendant is playing at the annual Pan-Balkan War Criminal Poker Tournament in Tartarus without even sentencing being carried out. PARTICULARLY after Milosevic.
    A:

    “Martin: you said it yourself, it’s quite legitimate.  Do we need to link back to KJH’s previous post with Karadzic’s letter to the court?”
    I’ll do it if I can find the time.
    “That all being said, I would agree that he should have turned up to the first day of the trail, outlining these reasons as to why he should not be expected in court in the days proceeding.”
    Which naturally would raise all sorts of questions about trials in absentia and probably feed more fuel to the charming radicals. Sorry, but I see no real reason why we should allow a war criminal and nationalist-martyr-to-be to get even more ammunition to undermine the legitimacy of the court. A normal defendant I might be willing to accept, but Karadzic is anything but a normal defendant, and should be held accountable directly.
    “Justinian:  Very well Put, nice to have another voice of reason, rather than the lynch mob that seems to be encasing these blogs at the moment.It’s kind of bizarre I have been thinking about this this morning, and have realised that the more unfair they are to Karadzic, ultimately the more unfair they are to the victims of said crimes.”
    Sorry, but regardless of whatever your intentions, I intend to take that as an inexcusable offense, and I will respond in kind.
    The bottom line is that cases such as this- and this tribunal in particular- are no strangers to defendants abusing extensive interpretations of their rights to undermine the court and generally to gum the wheels of justice to a halt. Milosevic was the textbook example of this case, and it is not to be surprised that the court is quite edgy about his ally and subordinate pulling some variation of it later, to escape justice the only way a man in his position can: to force the trial to outlast him, and thus leave his victims without the closure of a full and proper trial and conviction. To not recognize this as a gross injustice to the victims- FAR greater than even if these people never lasted to come to trial at all- forces us to ask precisely how you judge trials as “fair” or unfair, because we are obviously using different criteria.
    The bottom line is that roaches are most vulnerable to sunlight, and one of the main features of any trial- and particularly cases such as this- is to bring that truth to the surface and to judge it accordingly. And the idea that Karadzic or any other war criminal should be allowed to deny this process by the Fabian strategy of killing time until time kills them runs antithetical to the very nature of justice. It gives them a pardon they do not deserve, and robs not only the victims but also the historical record of the data they so justly deserve.
    Bluntly put, the court has an obligation to conduct the trial fairly and transparently, but since fairness to the victims demand that the defendant not die on the stand, use the stand as a soapbox, or both, it is the obligation of the court to work as quickly as can be afforded.
    Simply put, is it impossible that the so-called “Lynch mob” you so condescend actually are motivated not out of simple bloodlust but also out of the knowledge that the dead cannot speak and cannot be convicted in a court of law, and thus it is better to get it over with than to allow the case to drag on when the matter is of such high priority.
    “Ultimately once this trial is over and he appeals (which you would expect), the more likely he is to be able to prove that he was unfairly treated, and the case be dismissed?”
    Good bloody luck with that. At most, he would be able to get convictions on certain cases thrown out, but I would love to see him get the entire thing to be tossed in the trash. But he is welcome to try, and unlike this he is welcome to take all the time he can doing so, if for no other reason than because at least the record shall be set, and only needs to be ironed out.
    “It would be more expeditious to the court to give him a fair trial now, give him the time he needs to prepare.”
    Which he HAS been given. It is just that the court legally vetoed his request for more time, and so he has tried to take his ball and go home. The fact remains is that it is the court, not the defendant or even the prosecution, that determines how much time one can take prepping out of court, and Karadzic was doubtless informed of this.
    “As it would give the prosecution the chance to win without bias”
    Gah, good bloody luck with that. The only possibility I can think of for a remotely “fair” trial would be to have the jury and judge selected from a hermetically sealed people who have been cut off from the modern world for at least about a century. And even then don’t expect them to give either side (Karadzic OR the Prosecution) all the time or privileges either requests.
    “and you would think that would be a real victory wouldn’t you?”
    So, by your definition, it is impossible for the prosecution to achieve a “real victory”, because of the sheer impossibility of getting anything like an impartial jury together, the superhuman and rather unworkable restrictions they must adhere to, while Karadzic is allowed to drag his feet all he desires, and the limited time they have to work with.
    Sorry, but maybe in a perfect world. But in this one, you take the victories you can get so long as they are obtained within reasonable bounds. And to be blunt, Karadzic has been treated rather softly when it all is added up.
    “I’m still trying to work out how requesting more time to review the documents and evidence, to be given the chance to properly defend himself, is dictating the terms of ones trial?”
    By itself it is not, but by going against the court’s ruling, he is either doing that or something very close to it. And when you consider the practical time limitations, that is something I can understand there being little sympathy for, particularly after Milosevic used very similar tactics to turn his trial into a day show with guards.
    The bottom line for me remains the same: give Karadzic a fair trial (because it is necessary and just to do so) and then shoot him (because if even a quarter of what he admitted to is accurate, I cannot imagine any case where he is allowed to live at taxpayer expense for the rest of his life justice of any sort for his victims and for international law). And I have yet to see any major point that has rebutted that or the contentions supporting that, and I have yet to see how the rather minor punishments being inflicted upon Karadzic now are somehow unfair given their routine nature and the fact that Karadzic is refusing to accept the fact that his request (and I must emphasize that it was a REQUEST up to the discretion of the court whose ruling either way was supposed to be accepted by both parties).
    I am too sick of watching people like Milosevic and Karadzic make a mockery of justice by using loopholes and than openly refusing to accept motions the court makes against them. It is a mockery both of their victims, and of genuine defendant rights, that some of their more radical actions are being falsely defended as such.
    Karadzic has the right to request, but not the right to disregard the rules.
     
     
     
     

     
     

     

     

  30. KJH:

    “It is, however, quite revealing that you seem to believe that providing Dr. Karadzic with a fair trial is inconsistent with those interests.”

    And it is quite revealing that you believe that the use of restraints to force a defendant in violation of a court judgement (by refusing to accept the veto) is somehow denying him a fair trial.

    If so, than everyone from Mumia Abu Jamal various members of the KKK have been denied a “fair trial.”

    What is the court and the Prosecution supposed to do? Offer him leftover Halloween candy in the hope he comes back out? Cave in and try him in absentia and further weaken the bodies of International Law?

    Sorry, but Karadzic is in violation of a court ruling, and so it is not his place to decide whether or not he gets to show up. If he desires to not be present for his own defense, he can merely say so. But he can’t selectively ignore the mandates of the court.

  31. Kevin, I understand that as Karadzic’s legal adviser you are naturally predisposed to take his point of view. You, on the other hand, are continually shocked when your insistence on minute procedural points as the cornerstone of “fairness” in this trial is roundly rejected by both the media and other legal experts. Will this trial be any less fair if Karadzic is physically forced to attend it? I don’t think it will. Anyway, what is your proposed alternative? To let him continue to ignore it for as long as he wants? To have the Court come to Karadzic as a supplicant, begging him to work out a deal that will allow the trial to go forward without him making a burlesque of it all?

  32. nemanja:  How are basic legal rights “minute points”?
    How is the “cornerstone of “fairness” in this trial roundly rejected by both the media and other legal experts”?

    “Will this trial be any less fair if Karadzic is physically forced to attend it?”
    Yes, as he should not be forced to attend if he does not wish.

    “Anyway, what is your proposed alternative? To let him continue to ignore it for as long as he wants?”
    Any evidence to back this claim up?

  33. My favorite part of Eric’s diatribe: “And while the decision to cut Karadzic’s preparation may be slightly unjust, can it reasonably said to be more unjust than having a convicted war criminal escape judgement by prolonging his trial until his death, all but laughing to the bank?” Translation: an unfair trial is fine as long as we get a conviction with a breathing defendant.

    Good to know. And at least Eric is honest about it.

  34. A,

    It’s kind of pointless to have this debate, though I certainly appreciate the support.  As you will recall, I never claimed that the Tribunal doesn’t have the authority to appoint counsel if Dr. Karadzic chooses to remain in his cell; I simply questioned the ICTY not bothering to adopt a rule allowing them to do so!  One can’t help but conclude that the commenters to this post would actually much prefer Dr. Karadzic to be shackled in the courtroom — perhaps even with his eyes propped open with mechanical devices, a la “Clockwork Orange.”  They don’t care about whether he receives a fair trial.  They certainly don’t care about the legitimacy of the trial and its impact on the legacy of the ICTY.  They just want their conviction for, as Eric put it, Dr. Karadzic’s “verifiable” crimes.  (How one verifies crimes prior to a trial escapes me, but I obviously lack Eric’s powers of perception.) Unfortunately, Eric’s basic idea is all too common: because we are not simply shooting Dr. Karadzic in the back of the head, he should be thankful for any legal process we give him, no matter how unfair. What a sad approach to international criminal justice.

  35. A,

    It is also remarkably revealing that, in the same breath, Eric can criticize me for somehow “weakening” international law and advocate executing Dr. Karadzic.  Perhaps someone should remind him not only that the ICC and the ICTY are not the same thing, but also that no international tribunal since Nuremberg has imposed the death penalty.

  36. Kevin, I agree with your comments.

    I am also very surprised that Eric believes that revenge helps with healing. If anything, advocating revenge is counterproductive to lasting peace.

  37. K,

    I was just about to reply about that!
    it’s actually part of the ICTY rulings isn’t it, that it doesn’t invoke the Death Penalty?

  38. A,

    It’s the Statute itself.  Article 24: “The penalty imposed by the Trial Chamber shall be limited to imprisonment.”

  39. A:

    “nemanja:  How are basic legal rights “minute points”?”
    Never. But that is clearly not what the poster was reffering to, as you would know if you did more than a cursory look over the post.
    “How is the “cornerstone of “fairness” in this trial roundly rejected by both the media and other legal experts”?”
    It isn’t. Mr. Heller’s attempts to define it by legal minutae (such as the use of restraints to bring a defendant to court when they have failed to appear) HAS been.
    Kevin Jon Heller:
    In ye olde days, that would be a dueling offense, and in this one, I would have a fairly good stance for a libel suit. Keep that in mind.
    Firstly, who gave you your law degree, because I suggest it be rescinded if you cannot bother to follow a cardinal rule of the profession by C A R E F U L L Y   R E A D I N G everything and NOT misrepresenting what the person says.
    Now go back and read it.
     
     
     
     
    Done yet?
     
    Ok, let’s see how much tripe you posted here.
     
    Firstly, let me break this down for you, because apparently you are too SPECIAL to read through the posts of plebs such as us.
     
    “You are confusing force and security.  What are they going to do if Dr. Karadzic refuses to stay in the courtroom?  Lock the door?  Handcuff him to his seat?  That is a fundamental violation of due process in the US. — and I imagine in most domestic courts.”
    Wrong. If they had suddenly hauled Karadzic down and forced him to stay just because, that WOULD be a violation of due process.
    But that is not the case.
    The bottom line is that YOUR DEFENDANT FAILED TO FOLLOW A COURT ORDER. This is tantamount to failing to appear before a court when legally ordered to, and as such it is entirely LEGAL in any state of the Union, in virtually every nation in the West, and most nations on this planet to force a defendant to appear before the court if they do not come of their own free will. THAT, my friend, is basic law, and it shreds your accusation to pieces. It is akin o saying that Milosevic had the right to walk out of the Tribunal the first time they rejected one of his petitions, which would make him liable for flight in addition to the laundry list of other charges.

    I would assume somebody important enough to represent a defendant at a War Crimes Tribunal to be at least somewhat competent in that manner. Because if you cannot get THAT simple principle right and I was your client and I had the luxury of seeing you make such an elementary mistake, I would be shopping for a new attorney within the hour. It is bad enough that you are going to face a tribunal armed with your prior admissions and documentary evidence for a charge that you are not going to get out of, but having to do so with a lawyer who forgets basic law would be far worse.
    Now, have you brushed up on the basic legal facts of appearing in court? Good.
    “Translation: an unfair trial is fine as long as we get a conviction with a breathing defendant.”
    No, you simpering fool, the CORRECT translation is that: “Since it is impossible even in relatively minor cases to get an unpoisoned court and/or jury or to allow everyone to have all the time they request to do whatever they want to prepare for the court, it is impossible to avoid compromises between the rights and duties of the Defendant and the Plaintiff and the need to actually TRY the damn case before everybody dies of old age after spending years fighting out the initial trial at taxpayer expense.” And since you chose to bring up the legal system to effect, does every defendant not have the right to a speedy trial? Of course,a speedy trial would not exactly go to your client’s advantage and it is largely not recognized by the tribunal in the first place, but even the Founders recognized the need to eventually have the wheels of justice GET A MOVE ON.
    And in case you did not notice, if you advised him to not appear at court, you may well be legally accountable for contempt of court and more-likely-than-not a conspiracy charge of some color in regards to your client’s failure to appear. So I hope for your sake that is not the case. And if it is, well, than I suppose the result shall be… interesting.
    So, have you brushed up on Legalese and basic law? Good. Here we go.
    “One can’t help but conclude that the commenters to this post would actually much prefer Dr. Karadzic to be shackled in the courtroom — perhaps even with his eyes propped open with mechanical devices, a la “Clockwork Orange.””
    If given the choice between that and having him hold the judicial system hostage by being able to do as much research out of  court as he pleases, I myself would say to get the Milk injections ready, because it is a disservice to not only the taxpayers but also to any legal system whatsoever for a defendant to indefinitely postpone his trial. A prosecutor can’t do it as a way to punish the defendant outside of the law, and why should the defendant be able to do so to punish the court and the prosecutor?
    And again, what alternatives do you propose in any event? That is something you have failed to specify when challenged, and since I assume that you are going to refuse any motion to have your client tried in absentia, than the simple fact of the matter is that sooner our later your client is going to have to get into court to hear his case out. Because if he didn’t, you would raise a stink about him being tried in absentia without his consent. And since- REGARDLESS of whether you or your client like it or not- the court turned down your petition, the only alternative is to drag you into court while you can do your research as it goes on.
    Welcome to the same legal situation a good majority of those accused enjoy! Aren’t you so oppressed?
    “They don’t care about whether he receives a fair trial.”
    Google the definition for “fair.” I don’t think it means what you think it does.
    “They certainly don’t care about the legitimacy of the trial and its impact on the legacy of the ICTY.”
    Au contraire, we care VERY much about that. Which is why we are not willing to put up with your petulant and groundless attempts to play games when contradicted by the law while eroding the ICTY. In case you did not notice, the failure of the ICTY to actually finish the Milosevic case damaged that court and international FAR more than if your client had been the subject of a vigilante slaying, if for no other reason than because the court invested a great deal of prestige and importance to persecuting that case and lost it when Milosevic escaped sentencing by death, thus forcing the issue to be thrown out.
    The idea that your client should be able to do the same speaks more about either your loyalty to your position or to your contempt for international law than anything I could write.
    “They just want their conviction for, as Eric put it, Dr. Karadzic’s “verifiable” crimes.  (How one verifies crimes prior to a trial escapes me, but I obviously lack Eric’s powers of perception.)”
    Perhaps because I can actually READ and SEE, and I happen to have read and seen the materials from your client’s tenure as the leader of the Krajinan Serbs where he more or less confirmed several of the charges laid against him. You do realize they actually did something as the President of the RSK, Ja? And you DO realize that unless the prosecution has even less common sense than you do, those tapes will be presented at court?
    Good luck arguing against your client’s prior statements, because you are going to need a not-so-minor act of God to reverse that.
    “Unfortunately, Eric’s basic idea is all too common: because we are not simply shooting Dr. Karadzic in the back of the head, he should be thankful for any legal process we give him, no matter how unfair.”
    Given the fact that your client’s subordinates did not see fit to do so to their victims, and your client was at least mum about it, I am inclined to agree.
    And you also fail to recognize that a “fair” trial does not mean “My client has a chance of walking out of here.” It means “My client will be given a rather honest trial conducted as objectively as possible, where my client will be able to talk at length in his defense with my assistance and may even be able to disprove a few of the charges before reality catches up and the court points out that legalese does not change what happened in Bosnia 16 years ago and does not magically exonerate your client before proclaiming him guilty of one or more of the charges they can definitively pin on him and sending him for a very long stay.”
    Unfortunately for the both of you, your client will be judged on his past actions rather than on the basis of a “fifty-fifty chance” of exoneration. Because real legal systems do not work that way.
    ‘”What a sad approach to international criminal justice.”
    Perhaps, but it is far less sad than your pathetic attempts to weasel your way out while demonstrating considerable ignorance. And bluntly, Nuremberg and Tokyo both accomplished far more in establishing the integrity of international law than anything the ICTY has ever done, so I wouldn’t say it is so sad.

    What is is your petty attempts to argue. How in the heavens did your client chose to pick YOU when even going off of objective legal matters, I can punch large holes in your “arguments?”

    And guess what I am?

    I recognize you are bound to objectively do your utmost to defend your client, and I cannot but commend you on it, but that does not give you the right to mutilate international law or to commit slander. Particularly when you fail to even get basic legal concepts correct. If you can horrifically bungle that, what ELSE can you bungle?

  40. Sorry, I forgot to refresh.

    Anyway…

    “It is also remarkably revealing that, in the same breath, Eric can criticize me for somehow “weakening” international law and advocate executing Dr. Karadzic.”

    Yes, truly remarkable that I think international laws actually deserve to be ENFORCED.

    I don’t want to be the first to tell you, guvn’er, but your client himself has left explicit documentary proof (as in “his face on the TV screen stating it”) confirming many of the allegations, albeit not by those names. Hate to be the first to tell you that, but if your client did not see fit to do so, I might as well.

    “Perhaps someone should remind him not only that the ICC and the ICTY are not the same thing”

    Well, FORGIVE me for getting acronyms  that are at least halfway identical! But while that is a valid, if cheap point, at least I only forget acronyms. You, on the other hand, forget basic laws dealing with appearance in court. And you ostensibly make your living as a lawyer. Which is the more embarrassing?

    “but also that no international tribunal since Nuremberg has imposed the death penalty.”

    Oh, I knew that. I never pretended to claim that the “fair trial and shoot him” was the result your client would GET, just the one he deserves. Slight difference, but since it is a fairly minor mistake for you, I shall let it slide.

    So, when are you going to discuss what alternatives you have proposed to having your client dragged into court? It was only a few hours ago that it was raised! And when are you going to get to my other points?

    J: “I am also very surprised that Eric believes that revenge helps with healing. If anything, advocating revenge is counterproductive to lasting peace.”

    Um, I am sorry if you missed it, but that is not always so. Simply put, some measure of revenge must be exacted simply for the sake of justice and to make a clean slate (or am I supposed to believe we should have let our dear friends Goering, Goethe, and our other dear waffle stompers go in the name of reconciliation?), and it is no coincidence that the most leasing peace achieved thus far (1945) was largely the product of reform being introduced at the point of a bayonet, in which the occupied countries were forced to admit their guilt and change.

  41. “I should point out that, however much I disagree with you, I appreciate your taking the time to write such lengthy comments.  And I genuinely mean that.”
    Fair enough, but if so, can we PLEASE stop slinging invective around here?

  42. *bangs head against wall*

  43. A:

    Sorry, that does not compute as a valid argument or counterargument. If it were, I could have saved myself a WHOLE lot of typing.

  44. the kinds of comments that could put you into a lengthy sleep!
    NIGHT ALL!!! *snoooze*

  45. I find the statement “But a rule which enables criminal defendants to abuse the scarce resources of (any) justice system in order to dictate the terms of their own trials hardly seems to be ‘fair’ when considered in context.” very intriguing.

    Can we ever speak of a “waste” of resources when we speak about truth and justice?

  46. Kevin: I don’t see the distinction.  If a domestic criminal wants to leave, force will be used to restrain him.  If a criminal throws something out of the dock, at the jury or public gallery, force will be used to stop her.  If a criminal fails to appear when bailed, an arrest warrant will be issued, force will be used to capture him and bring him to trial.  If a criminal tries to stay in the grotty remand cells under the court instead of coming up to the court room, force will be used.   If the accused is too disruptive, the trial ends up being in abstentia, etc.

    I haven’t followed the trial in any real depth, so I’m not commenting on whether it is unjust that he has not been given preparation time, etc, but I simply can’t see how your example of procedural unfairness holds true here.  Your comparisons to A Clockwork Orange are hyperbolic staw men.

  47. Perhaps because I can actually READ and SEE, and I happen to have read and seen the materials from your client’s tenure as the leader of the Krajinan Serbs where he more or less confirmed several of the charges laid against him. You do realize they actually did something as the President of the RSK, Ja?

    Wow.  There really is no point in debating with someone who lectures us on our ignorance, yet doesn’t know the difference between the Republika Srpska in Bosnia, of which Dr. Karadzic was President, and the Republic of Serbian Krajina (RSK) in Croatia, of which Babic, Hadzic, and Martic were President.

    That does, however, explain a great deal.

  48. Eric van de Hey, you seem to know exactly what happened in Bosnia 16 Years ago. I have a couple  (of course rhetorical) questions for you:

    - Do you know how many of the people who died in the war were Muslims, Corats and how many Serbs?

    - Was Radovan Karadzic alone responsible for all of the dead and missing people (as the prosecution alleged)?

    - Tell me, who expelled the Serbs from the Krajina? Radovan Karadzic (according to the prosecution yes, which is, of course, absurd)? Or did they ethnically cleanse themselves?

    - Do you know who started the war in Bosnia? Who did the first ethnic cleansing or (in old-fashioned, less dramatic language) who started fighting for territory?

    Dr. Karadzic prepares his defense to adress all those questions. A Defense which many people simply do not want to hear, because they assume knowledge they do not and cannot have.

    I fully agree with Professor Hellers last statement.

  49. So what are you asking of us Justinian, to ignore the past 20 years and expect Karadzic to tell us what really happened?

    That would be like expecting Holocaust survivors to relax until Eichmann is arrested to find out what happened.

    Of course, unlike Eichmann, Karadzic won’t admit that he was just following orders since this would mean that Serbia was involved.

    There’s massive evidence all across the board to answer your naive questions.

    Don’t forget that Republika Srpska and Krajina were both self-proclaimed. One was taken back by the Croatian Army and the other one legitimized by the West. The difference between Republika Srpska and Krajina is geographical but ideologically they are exactly the same, which is at the crux of conflict in former Yugoslavia. This is knowledge anyone can have.

  50. ameL. I think we should listen to both, the prosecution and the defendant without purporting to know who did what. If Dr. Karadzic needs 10 months, give them to him. Then we can evaluate the evidence and decide for ouselves.

    If we shut the accused’s mouth, we will hear the “truth” from one side only, NATO’s side which was a party in the war. An approach which is worthy of a totalitarian regime but not of our civilized societies.

    Audiatur et altera pars.

    I hope you agree with me. I am looking forward to what the ICTY’s decision will be.

  51.  Court imposes lawyer on Karadzic
    The UN’s Yugoslav war crimes court has appointed a lawyer to represent ex-Bosnian Serb leader Radovan Karadzic whenever he fails to appear in court.
    It also adjourned his trial to 1 March to give his counsel time to prepare.
    Mr Karadzic – who has been representing himself – appeared in court for the first time on Tuesday after boycotting the start of the trial last week.
    He insists he is innocent of all 11 war crimes charges from the 1992-95 Bosnian war, but has refused to enter pleas.

    Mr Karadzic, 64, faces a maximum sentence of life in prison if convicted.
    Army commander
    “The accused’s conduct has effectively brought the trial to a halt, which is evidently his purpose,” a court statement said, AFP news agency reported.
     

    ANALYSIS
    Peter Biles, BBC News Mr Karadzic will feel he has been partially successful in his demand for more time in which to prepare for his trial. But the judges have done what they threatened to do after hearing submissions from him and the prosecution team. They have imposed a counsel to assist him. They have also made it clear that if Mr Karadzic continues to obstruct the trial’s progress, he will forfeit his right to self-representation, and the appointed counsel will take over. It was almost inevitable that the appointment of a defence lawyer would result in a further postponement. The tribunal has made a concession by, in effect, giving Mr Karadzic nearly four more months, but the judges will also be keen to avoid a repeat of the postponements that occurred during Slobodan Milosevic’s trial from 2002.

    It ordered the court registry to appoint counsel to represent Mr Karadzic’s interests when the trial resumes, “if that should be required”, stating that he would still “continue to represent himself including by dealing with the day-to-day matters.”
    Mr Karadzic has seven days to apply for permission to appeal.
    At Tuesday’s hearing, he argued that he had insufficient time to prepare his defence and sought a 10-month adjournment.
    But presiding Judge O-Gon Kwon dismissed the claim, saying the court had already determined the defendant had had ample time to prepare.
    Mr Karadzic was arrested in Belgrade in 2008, after nearly 13 years on the run.
    During his time in power, Mr Karadzic was president of the self-styled Bosnian Serb republic, and commander of its army during the 1992-1995 Bosnian conflict, which left more than 100,000 people dead.
    He was indicted in 1995, and faces two charges of genocide, nine of war crimes and crimes against humanity.

    THE CHARGES

    Eleven counts of genocide, war crimes, crimes against humanity and other atrocities
    Charged over shelling Sarajevo during the city’s siege, in which some 12,000 civilians died
    Allegedly organised the massacre of up to 8,000 Bosniak men and youths in Srebrenica
    Targeted Bosniak and Croat political leaders, intellectuals and professionals
    Unlawfully deported and transferred civilians because of national or religious identity
    Destroyed homes, businesses and sacred sites

    He was taken to the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague last year.
    Prosecutors say Mr Karadzic led an ethnic cleansing campaign in the conflict, calling him the “undisputed leader” of Serbs responsible for carrying out atrocities.
    Prosecutors have said he was responsible for the Srebrenica massacre, in which up to 8,000 Bosniak men and boys were killed.
    The Bosniak people – most of them Muslims – are descended from Bosnian Slavs who adopted Islam under Ottoman Turkish rule in the Middle Ages.

    Story from BBC NEWS:
    http://news.bbc.co.uk/go/pr/fr/-2/hi/europe/8344851.stm

    Published: 2009/11/05 16:31:04 GMT

    © BBC MMIX

  52. I can’t believe people are still discussing this in terms of “let’s see what happened and then we can decide.” I can’t help but wonder if any of you know what it is that went on in Bosnia.

    Allow me to disabuse you of at least one notion – Karadzic is responsible for myriad unimaginable crimes that occurred. He is not innocent. The question is exactly how many crimes he committed, and to what degree. But to bring this notion of presumption of innocence into discussion – yes of course, that is the cornerstone of criminal procedure, and the trial will and ought to proceed using it – but any normal observer would say that Karadzic’s guilt is evident. This trial is very important in the sense that it has to establish the extent of his wrongdoing, and to bestow judicial legitimacy on the common sense conclusion that everyone has already reached.

    I feel bad that Eric confused RS with RSK, because it’s a forgivable mistake, and the rest of his points are largely well made.

    I suppose I understand why so much is being made of Karadzic’s procedural rights – after all, during the war he was known for his scrupulous insistence on ensuring that all of the people he mass-murdered exhausted all of their legal appeals before being shot execution-style in the back of the head.

  53. Anyway, what is your proposed alternative?

    That is a good question.  What does KJH think the tribunal *should* do?

  54. The ICTY has spoken I suppose…

    Stand-in counsel, let the fun begin….

  55. Nemanja,

    Confusing the ICC and ICTY is a forgivable mistake.  Believing that Dr. Karadzic was the leader of the Croatian Serbs is not — and it fatally undermines Eric’s credibility.

  56. Nemanja, determination of his innocence or guilt was not what this post was about in the first place.  That is what the trial is for, it’s for the court to decide and the prosecution to prove.

    I suppose I understand why so much is being made of Karadzic’s procedural rights – after all, during the war he was known for his scrupulous insistence on ensuring that all of the people he mass-murdered exhausted all of their legal appeals before being shot execution-style in the back of the head.
    Because he is being tried by the ICTY, therefore as I’ve said before he has rights, and they need to be upheald.

    I think both you and eric might need to go and read “Crimes Against Humanity”, or numerous other books written on the topic.  As unfortunate as it is, and as passionate as you want to be, the law must be adheared to, even if he did not adhere to it himself.

  57. Justinian:

    Yes we can, because sooner or later the trial actually has to be held, and the defendant must oblige that. I cannot say it should be done lightly, and both sides must naturally be allowed to continue preparation while the trial is ongoing and to obtain documentary evidence when requisted and to interview witnesses, and to conduct other actions necessary for a proper and fair (or even remotely fair) trial.

    But sooner or later you have to actually say that prep-time is over and any further preparations are to be done while the court is in session.

    “Eric van de Hey, you seem to know exactly what happened in Bosnia 16 Years ago. I have a couple  (of course rhetorical) questions for you:”

    Thank you for the compliment.
    “Do you know how many of the people who died in the war were Muslims, Corats and how many Serbs? ”

    Firstly, I must ask if you are talking about the Bosnian War or the Yugoslav wars in general.

    Secondly, I must point out that we cannot fully gauge the deaths of Muslims in the conflcit, so I will be substituting that for Bosniaks (who are usually identified identically in spite of the former being a religion and the latter an ethnicity and/or allegiance).
    To start, as a disclaimer, this is naturally an estimate, and cannot count the undiscovered, the vanished, or those whose affiliation were uncertain when found.

    My soruces: I have found the Tibeau-Bijak estimate to be, on the whole, the best for estimating this, but one should note that it is probably a lower estimate.

    For the purposes of this estimate, Montinegrin deaths shall be included in the Serbian total, as any foreign volunteers counted as members of the armed forces dat the time. In addition, I typically group casualties by allegiance rather than by religion/ethnicity (which is a muddy business in and of itself), and that may not be the case in the sources I have atttempted to use.

    Here we go…

    Bosnian War:

    Serbian: 31,000 + (14,000+ Military, 17,000+ Civilians)

    Bosniak:  61,000 + (28,000 + Military, 33,000 + Civilian)

    Croat: 8,000 + (6,000 + Military, 2,000 + Civilians)

    Yugoslav Wars Total: (Note this by no means includes all the casualties of the war, just Serbs, Croats, and Bosniaks):

    Serbs: 40,000 + (19,000 + Military, 20,000 + Civilians)

    Bosniaks: 64,000 + (the Bosniaks only really fought in two theaters, and Croatia only at the end, and their casualties would have been relatively little).

    Croats: 28,000 + (12,000 military, 16,000 + Civilian).

    Note that the casualties for both estimates are probably on the low side.

    Secondly, I must point out that these death tolls in many ways miss the point: since these totals include those killed while armed and serving in an armed force of some kind, they are not a truly accurate source for evidence at a war crimes tribunal, and even the civilian dead include those that happen even in the most-carefulyl waged war (misidentification, accidental discharge, collateral damage, etc).
    The main issue should be the crimes Karadzic oversaw against unarmed civilians or possibly disarmed POWs, nothng more, nothing less.
    “Was Radovan Karadzic alone responsible for all of the dead and missing people (as the prosecution alleged)?”

    Absolutely not by ANY estimate, and that is perhaps the one common ground Keller and I could find (just wait until he mysteriously homes in on THIS paragraph while ignoring all other points I try to make unless I GFTAUM (Get The Frigging Acronyms Messed Up). While we can debate to what extent Mr. Heller’s client caused the war and thus the deaths in the first place (and I could make the argument that a good portion of that blame CAN be attributed to him), even the most bloodthirsy tyrant cannot be held responsible for each and every death that occurs on his watch (for all we know, a few hundred of the victims each simply perished of a nontreatable natural cause, like heart failure, in the middle of the battle).

    That being said, while he should only be held responsible for the crimes he can be directly tied to, the fact remains that A: We cannot find the truth out about every single “X-on-X” incident of violence that happened in Yugoslavia, and B: Even if he did not pull the trigger or sign the pen on each case his associates were tied to, he was nominally their superior, and his failure to even try to restrain him cannot be judged lightly.

    “Tell me, who expelled the Serbs from the Krajina?”

    Let’s see here: the Bosnian Army in the extreme South during Storm, and the Croats everywhere else, with some Public-service-announcement “help” from the Serbian and Serb Krajinan governments telling everybody to get out of dodge. 

    “Radovan Karadzic (according to the prosecution yes, which is, of course, absurd)?”

    Of course not, and that is one charge I hope gets tossed out.

    ” Or did they ethnically cleanse themselves?”

    Yes and no. Simply put, for days during Storm and its aftermath, pretty much every Serbian body in Yugoslavia was urging the Serbs in Krajina to get the eff out of the area before the Croats arrived, and many of them took their advice. Indeed, it might even be the majority. That being said, in many sectors the cleansing was anything BUT voluntary (24 hours- if that- to get your belongings and get out or else hardly counts as voluntary), and by this point in time I must say that the Krajinan Serbs had good reason to fear atrocities.
    “Do you know who started the war in Bosnia? ”

    Define “start.”
    “Who did the first ethnic cleansing or (in old-fashioned, less dramatic language)”
    Even that is difficult to ascertain, but if I had to guess, I would have to say the Sprska government during the attempt to “Serbify” Eastern Bosnia (of which the Foca massacre is perhaps the most visible and infamous incident).  Though granted, that is only the first coordinated example i can think of, and doubtless you had armed gangs from every stripe doing (to use a British understatement) “rather unpleasant” things to anybody who was in their way and happened to not conform to whatever twisted ideology they espoused.
    “who started fighting for territory?”
    If anything, even harder, though I would probably guess that would be ramshackle Bosniak groups charging fortified JANL and police posts manned by the Serbs in the mad scramble for arms like that which occurred in Serbia and Slovenia.
    “Dr. Karadzic prepares his defense to adress all those questions. A Defense which many people simply do not want to hear, because they assume knowledge they do not and cannot have.”

    To claim that it is knowledge they “do not and cannot have” is frankly not only insulting, with the release of some of the documentary evidence from the war, it is flat out wrong. The fact remains that regardless of whether the Republika Sprska is shortened to RS or RSK, Karadzic’s own words to the press and the new information we have from the archives can give us a fairly accurate picture of what happened in Bosnia, if one looks for it. And naturally Karadzic has the right to prepare for a defense as per his rights of due process, but the court also has the necessity to compel all the sides to actually start the trial as is required for due process, and Karadzic’s refusal to do so after his petition was denied is failure to appear, which is punishable by being forced to appear in virtually any jurisdiction worthy of its name.

    “I fully agree with Professor Hellers last statement.”

    So, my mistaking of yet another acronym for another in the dead of night without actually charging him with responsibility for anything that happened in Krajina save indirectly by accidentally accusing him of leading the movement in Krajina rather than in Srpska, even though I previously accurately pointed out that it occurred in Bosnia (rather than in Croatia, because I am not a fool) and Karadzic’s government had indeed used the acronym identified with the actual RSK in Croatia (granted, most likely out of a bureaucratic error, but still) magically shows that I do not know what happened in Bosnia.

    RIIIIggghhhtttt… Then what does Professor Heller’s fundamental mistake regarding appearance in court in the US (or most other regions), where indeed the court can indeed forcefully bring a defendant who has refused summons to court? Particularly since he is Karadzic’s lawyer, but I am no Slavic linguistic expert or expert on Balkan geography (which, I admit, are bad flaws, and led to an embarrassing mistake, but at least I can’t be said to have made a crucial mistake about what I supposedly do for a living!).

    “ameL. I think we should listen to both, the prosecution and the defendant without purporting to know who did what.”

    In practice, that is a nice idea, but in actuality, it is impossible in some cases (particularly those where Karadzic made the bad mistake of leaving visual verbal proof, in the form of the news recordings that the RS made). In the others, it will be difficult but necessary.

    ” If Dr. Karadzic needs 10 months, give them to him.”

    Agreed. But here we get onto the point of at what point does legal necessity end and stalling begin? The fact of the matter is that sooner or later the case has to be kicked into court, and like it or not it is a fairly common occurrence to have one team or both having to mop up their investigations and preparations while the trial is ongoing. This has hardly been shown to be a violation of due process, and indeed it is necessary to ensure a speedy and relatively impartial trial if for no other reason than because we don’t want any of the parties involved (Karadzic, witnesses, judges, prosecutors, etc) keeling over or developing a very nasty condition that would impair their ability to preform during a trial.

    “Then we can evaluate the evidence and decide for ouselves.”

    Agreed. But again, the fact remains that on some parts, we can already begin doing so.

    “If we shut the accused’s mouth, we will hear the “truth” from one side only, NATO’s side which was a party in the war. An approach which is worthy of a totalitarian regime but not of our civilized societies.”

    True, but the fact remains that sooner or later you have to drop preparing to “hear the truth” from both sides and actually get around to doing so in the court of law. And this is before I get on to the case of Milosevic, whose mouth actually needed to flap a little bit less when he went off onto matters not relating to the actual trial (for instance, I believe at one point in time he actually talked about the role of the Serbo-Bulgarian war of 1885. Relevance? Good bloody question, because unlike even, say, talking about even 1877 or 1911 or WWI or WWII, the foreign “enemy” was not involved in the Yugoslav wars and the “Austrian predator” actually came to Belgrade’s aid in its hour of need). There is a very reason you cannot Filibuster/John Galt your trial indefinitely (sure, you can do it do an extent during your testimony, but you have to keep it relevant), and that is because it gives short shift to the other people to whom the court is obligated to.

    “Audiatur et altera pars.”
    I agree. But when are we actually going to Audiatur “et altera pars” as opposed to Audiatur et the process to prepare for audiatur et altera pars?
    “I hope you agree with me. I am looking forward to what the ICTY’s decision will be.”

    I do, but again, let’s make sure that he actually is preparing for his case and not merely killing time, alright?

    Mr Heller: Well, so much for that “respect” of yours…

    Firstly, yes, I did mistake your client’s area of responsibility (Sprska, in Bosnia, rather than Krajina, in Croatia). And that was one you correctly pointed out. My excuse? I was tired and made a stupid mistake after looking through those videos. Does that erase my error? NOT AT ALL.

    But you are incorrect when I say that the RSK ONLY refers to the Republic of Serbian Krajina, when indeed if you look at some of your client’s prior videos, he can indeed be seen along with soldiers and troops bearing the initials RSK. Perhaps they were from Krajina as liaisons, and perhaps some of the captured equipment was pushed into service in Bosnia after Storm, but even in some of the less-official documents, the use of RSK (for Republika Srpska)- or more commonly their Cyrillic cousins, ( PCK)- (indeed, I found one document- if memory serves, a ’93 issue detailing proper military uniform-  that actually explicitly authorized that use, which is coincidentally where I first saw that acronymn used with the Serbs in Sprska).

    Why this was used in a few cases as opposed to the normal designation I have no idea (particularly since the Serbian Dialect of Serbo-Croatatian, and indeed most languages on this planet, do not usually create acronyms in that fashion, but the bottom line is that they DID use it), but that does not change the documenary evidence obtained from Bosnia and Serbia that points out that some soldiers in Srpska were apparently using it.
    But for whatever my sins, you again outdo them, FAILING to answer a single point I raised (laws governing appearance in court? The necessity to actually cut preparation short? WHERE HAVE YOU ADDRESSED THOSE?), instead latching onto minor points of confusion (the later of which ironically was somewhat justified by the documentary evidence itself).

    Newsflash: If you think that will win you a debate or a case, you shall find that courts- both legal and of public opinion- have little patience for such dishonest attempts to sidetrack a case.

    And indeed, it is patently irrelevant, because you fail to mention that the videos DO explicitly show your client discussing matters that certainly happened under his tenure in Srpska, whatever acronym it may be called by (unless a major point in your defense that you are attempting to to argue that your client is actually in Krajina- even after Krajina fell- talking to members of THE RSK about issues, and that places such as Srebrenica and Keraterm are- contrary to all geographic knowledge prior- actually in Krajina. Which still leaves the issue of what your client is doing there advising the Krajinan leadership in the manner he is recorded speaking as anyway, and the fact that rarely if ever do the Krajinan leadership actually appear)/ This point, the main reason for that paragraph, is conveniently glided over. I wonder why?
    “Believing that Dr. Karadzic was the leader of the Croatian Serbs is not”

    Ah, but I never SAID “I believe Karadzic was the leader of the CROATIAN Serbs”, did I? I erroneously said that he was the leader of the “Krajinan Serbs”, which I erroneously believed was the region of Bosnia. Yes, it is an appalling error, but it is hardly an identical one, and indeed, even earlier, I correctly identified Karadzic as the leader of the BOSNIAN (rather than Croatian) Serbs.

    Want proof? Here’s the proof. Look at the time I posted it.

    “… and may even be able to disprove a few of the charges before reality catches up and the court points out that legalese does not change what happened in BOSNIA 16 years ago….”

    So, in other words, I did not say Karadzic was leader of the Croatian Serbs (save indirectly and erroneously), but rather I said he was the leader of the Bosnian Serbs and than proceeded to identify the Serbian-populated region in Croatia rather than the correct one in Bosnia.

    Yes, it is a gaffe, and an embarrassing one, but compared to some of yours, it is positively inoffensive. And even moreso because unlike you, I am actually ACKNOWLEDGING and OWNING it while at the same time CORRECTING it.

    “— and it fatally undermines Eric’s credibility.”

    This would be from the same person who openly stated that hauling a prisoner who refuses a summons to court into said court while restrained- a VERY common method that has been legally upheld more times than I care to count- as a “clear violation” of due process?

    If my error “fatally undermines” my credibility, than what does that do to yours? Particularly when you figure in that unlike you, I have actually addressed my errors and publicly corrected them? And PARTICULARLY when I go to great pains to dissect the posts here and fairly respond to them, as opposed to merely ignoring all my opposition’s points while picking out every single exhaustion-induced error in identification that could come done the tubes (notice I did not make a pathetic, smart-arse remark about Justinian inquiring about the number of “Corat” deaths in Bosnia, ja?).

    If anything, the fact that the only thing you seem to be able to land on me are the fact that I get acronyms confused sometimes and I once misidentified/switched the Serb-populated provinces of Bosnia and Croatia should be a sparkling endorsement of my credibility, since I have been responsible for almost one half of the text in this feedback forum and that is all you can land on me, whereas your ratio of “errors-to-text” is considerably higher.

    I never thought I would say this, but if this is how competent you are in debate, I am starting to become very worried that your client will be underrepresented at his trial. And unless either you or your client concocted this plan of loosing and than arguing for an immediate retrial on the basis of inadequate representation, I do not believe either of you will be happy to recognize that.
    So, are you actually going to go back and address the points I made, or are you just going to irrelevantly needle away at minor issues in identification while you loose the actual substance of the debate? Because honestly, Justinian and A have each done ten times the amount of work for you that you have done for  yourself on this thread.
    “A:Nemanja, determination of his innocence or guilt was not what this post was about in the first place.  That is what the trial is for, it’s for the court to decide and the prosecution to prove.”
    Exactly. Which is why we are so concerned about the court and prosecution actually getting a CHANCE “to decide” and “to prove.”

    “Because he is being tried by the ICTY, therefore as I’ve said before he has rights, and they need to be upheald.”
    And again, I must ask where are his rights being violated? He petitioned for an extension, and the court turned him down. That is a basic legal reality even under the fairest of systems: you don’t have an infinite amount of time to get everything you want together before the trial, and what you don’t get to before it starts you have to get together during the trial. Now that Karadzic has been granted an extension, that point is relatively moot, but I must again ask what will you advocate if the time limit the court gave him or even the amount of time Karadzic requested elapse and he STILL wants more time?
    You have to cut it off at some point and say “sorry, but you can deal with it in court.” So, when is that time?
    “I think both you and eric might need to go and read “Crimes Against Humanity”, or numerous other books written on the topic.”
    By Robertson? Already have, and I must say that it was quite an interesting read. I have also read “Stay the Hand of Vengeance” and Solomanson’s “Perspectives on International Law,” amongst other accounts dealing with Nuremberg, Tokyo, and the current activities of both the ICC and ICTY. And the bottom line that most can agree on is that it is a necessity to actually get the trial persecuted and finished fairly and transparently, both without the persecution dictating the response or the Defendant choosing to use his seat as a vehicle to launch his late-in-life attempt at hosting a Talk Show (all Milosevic, all the time).
     
    “As unfortunate as it is, and as passionate as you want to be, the law must be adheared to, even if he did not adhere to it himself.”
    Absolutely. But the fact remains that the law hardly says “both sides are to be given an infinite amount of time to prepare before the trial”- if anything, just the opposite-, and the fact is that while the new dictate has rendered this debate moot for now, the bottom line is that at some point in time- for the interests of due process itself- Karadzic will either have to step into the court or be tossed in there. If he does the former, all the more power to him. But at some point in time we have to decide when he has had enough time to do the former and it has come time to do the latter.

    I supp

  58. “But you are incorrect when I say that the RSK ONLY refers to the Republic of Serbian Krajina”

    I say —> You Say.

    Yes, I think that exhaustion is starting to get to me.

  59. lenghty and detailed answer, Eric, I appreciate it. You seem to have a pretty balanced view of the events (at least judging by the number of victims you presented).

    However, I still see no explanation on who killed 17’000 + Serb Civilians (compared to 33’000 + dead Muslim Civilians).  Could we speak here of genocide? According to the ICTY Appeals Chamber, Naser Oric – the Muslim Leader – is an innocent man. Nobody talks about the Serb Civilians. I wonder where the “truth-seeking function” of the ICTY is to explain these circumstances.

  60. Eric,

    Since you seem to enjoy harping on my alleged “error” regarding forcibly restraining Dr. Karadzic, it is worth remembering that the ICTY does not apply US law.  By all means, show me a precedent in international criminal law for forcibly restraining a defendant in court.  The closest you will find is putting Eichmann in a glass box, but that is an Israeli case, not an international one.

    Let me know.

  61. So, is it safe to proclaim this the #1 comment thread on OJ yet?

    Anyway, next round…. *ding*ding*ding*ding*

    Justinian:
    “lenghty and detailed answer, Eric, I appreciate it. You seem to have a pretty balanced view of the events (at least judging by the number of victims you presented).”
    Thank you for the high praise.

    “However, I still see no explanation on who killed 17′000 + Serb Civilians (compared to 33′000 + dead Muslim Civilians).”

    That was because I don’t believe you asked me for that.

     “Could we speak here of genocide?”

    Absolutely. While some of those deaths (I would guess anywhere from a few hundred to a couple thousand) were doubtless brought about by sources that were (for the conflict) relatively innocent (accidental targeting/friendly fire, inability to get medical aid even with help, any “natural causes” deaths that might have gotten in), by all accounts the majority did not die in such a way (including those who died of comparatively “natural” causes because of deliberately induced shortages or other abuses).

    Most of the dead at “best” were the victims of area attacks (NATO bombing, indiscriminate use of artillery, etc), and were the victims of violent ethnic purges at worst, though the Bosniak leadership were somewhat cleverer in finding a way to avoid the easy identification than the Croat and Serb leadership were in such cases. That, and it only got worse when you consider the fact that identifying where they actually happened was a problem, because the Bosniaks tended to let their “foreign volunteers” run riot in small villages and the like reven before the regular military appeared.
    But there’s more than enough evidence to show that the Bosniak leadership at the very, very, I-am-intentionally-being-ignorant-for-the-sake-of-the-argument LEAST allowed the Jihadists to go further than any even remotely responsible leader would have allowed, and to this day I must question why Izetbegovic and some of his compadres never had to face a firing squad over the issue.

    “According to the ICTY Appeals Chamber, Naser Oric – the Muslim Leader – is an innocent man.”

    I am all-too familiar with the unfortunate case of Mr. Oric, and I still wonder why the ICTY dropped the ball to such a degree. At the very least, he was guilty of not policing his subordinates tightly enough and warrents a rather long visit in the Hague, and at worst he easily  deserves a “brown necktie.”

    If Mr. Heller really wants to argue bias on the part of the ICTY, their general impotence on handling Bosniak war criminals should provide a good supply of ammunition.

    “Nobody talks about the Serb Civilians.”

    Well, very few outside of Serbia or Srpska or the remaining Serb-populated regions of Krajina. And that is sad but true.

    “I wonder where the “truth-seeking function” of the ICTY is to explain these circumstances.”

    To play the devil’s advocate (and that is exactly the case), teh ICTY could point out the relatively lack of a paper trail (because unlike RS, RSK, or Serbia proper, it was not forced to open the archieves- though one must question why a legal order to do so is not forthcoming in such a case), and that the Bosniak criminals were genenerally slightly smarter about doing things like- say- admitting to their crimes on their own (or allied) TV stations (yes Dr. Karadzic, we are looking at you).

    But even so, most of those issues could have been solved by court orders and those that couldn’t probably would have been from court documents and the apparent lack of care by Sarajevo about what their “volunteers” (who were inducted into the Bosniak army) were doing, and I feel safe to say it is a disgrace. As I said before, the lack of aggression by the ICTY in persuing Bosniak war criminals is perhaps the solidest evidence for bias, and I hope it is vigorously persued.

    Not because I like Karadzic or have had a change of heart towards him, but because I don’t want people like him escaping their day in court).

    And all I can say is that if Mr. Heller is going to take any of my advice, he should take that.

    Well, speak of the devil…

    Kevin John Heller:

    “Eric,
    Since you seem to enjoy harping on my alleged “error” regarding forcibly restraining Dr. Karadzic, it is worth remembering that the ICTY does not apply US law.”

    Where do I start?

    Perhaps here: I never claimed that it DID. Only that you made a claim BASED ON that exact ground, and I shot it down.

    Now, for some reason, the original quote seems ot have changed to this:

    “That is a fundamental violation of due process — and I imagine in most domestic courts”

    Does that sentance not seem a bit odd? Here’s the original,  as I quoted in one of my comments above.

    “That is a fundamental violation of due process in the US. — and I imagine in most domestic courts.”

    Emphasis mine.

    Now, I am certain that Mr. Heller will complain about my “alteration” of one of his quotes to make him look bad, will accuse me of lying, and will point to my history of getting acronyms confused to buttress his case, but look at the time I posted that, far before Mr. Heller’s quote and far before this discussion about US law and the ICTY’s use of it started (which was from Mr. Heller’s recent post).

    I do not know how to explain this discrepency, but I do know that it was there when I copy/pasted it back then.

    And I will also point out that the “in most domestic courts” remains and merely proves my point just as well as any other, given rulings to that extent from Australia to France, so even if the “in the US” was magically tacked down while I copy/pasted the comment, Mr. Heller is wrong either way.

    ” By all means, show me a precedent in international criminal law for forcibly restraining a defendant in court. The closest you will find is putting Eichmann in a glass box, but that is an Israeli case, not an international one.  ”

    Firstly, as for physically restraining a defendant during the trial, there is relatively ltitle precedent. However, for actually forcing the defendant to court while restrained (which I was under the impression was the main point regarding this), there is a long and fruitful history, and all one has to do is look at some of the Milosevic tapes.

    And even if you are correct (which I am willing to believe you are) about the lack of restraints during the trial (which I do not believe are so unprecedent, but I will reserve comment until I research teh issue), rest assured that:

    A. If it is as unprecedented as it  change the first time somebody calculates their options on a risk-to-benefit level and decides that it might be a good time to take his (or her) chances with the guards..

    B. That it is not banned under international law, even in court,  and finally

    C. Is fairly routine for prisoners who either have been or are believed to have been boycotting their case at least on the Domestic level (which bluntly is what Karadzic did when he failed to appear after the court vetoed his first request) , and I am fairly certain that at the very least the proto-international trials (Tokyo being the main one I suspect) included such precautions.

    Again, I will withhold my final word about the use of restraints during the trial until I finish going through the research, but even if I cannot, the most you can request is that your client be unlocked when he is in court and than re-restrained on the walk back to his cell.

    ” Let me know.”

    Don’t worry, I will.

    And while you are waiting, how about addressing the other points?

  62. John —> Jon

  63. From the start of this post to the end of this post, anything that should have been refered to in any legal term is International Law, as that is what Karadzic is being tried under.  It is also what KJH has refered to during the whole post!
    Domestic, US, Estonian, Iraqi, Tim-buk-too-ian… None of these matter!
    Karadzic is being tried under INTERNATIONAL LAW at the ICTY, in THE HAGUE!
    I need to also point out that I’m sitting on the fence here.  While I know he deserves to be prosecuted, I’m interested to see what he has to say about the events.  The whole einnocent until proven guilty thing I suppose!

  64. A: Temper temper. And to think only a bit of reading would have saved you a lot of time.

    “From the start of this post to the end of this post, anything that should have been refered to in any legal term is International Law, as that is what Karadzic is being tried under. ”

    Agreed.

    ” It is also what KJH has refered to during the whole post!”

    No, and if you had actually READ my quotation of him, he directly referenced US law and “most domestic courts.” That is CLEARLY NOT a reference to International law, and on those limited grounds, I shot him down. End of story.

    “Domestic, US, Estonian, Iraqi, Tim-buk-too-ian… None of these matter!”

    In this case, I agree, save to provide any precedent the ICTY would like to adopt. But as for now, while discussing the actual case (and if domestic law is not directly entered into the debate, as KJH made the sad mistake of doing), for now it is not.

    “Karadzic is being tried under INTERNATIONAL LAW at the ICTY, in THE HAGUE!”

    I RECOGNIZE THAT. And THAT is why I am looking through prior cases of International Law (Malta, Nuremberg, Tokyo, ICC, ICTY, etc) to see if restraining the defendant DURING the trial (as opposed to forcing him to attend bound and leading him away bound) has any precedent. The main reason I counterattacked was- again- because KJH chose to try and attack from that direction by entering it in apparently without recognizing the precedents that have solidly supported it at least in the domestic courts.

    Understand?

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