03 Nov Don’t Forget the Black-and-White Jumpsuit with the Words “Convict” on It
03.11.09
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64 Comments
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.
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?
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?
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.
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… Read more »
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… Read more »
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.
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.
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.?
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.
Response…You didn’t ask a question, you made an assertion.
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.
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… Read more »
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.
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?
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.
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?
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.
@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)… Read more »
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… Read more »
Censorship has started… better now then never
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… Read more »
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… Read more »
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?
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.
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?
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.
It seems that censoring comments is also fair.
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.
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.… Read more »
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.
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?
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?
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.
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… Read more »
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.
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.
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?
A,
It’s the Statute itself. Article 24: “The penalty imposed by the Trial Chamber shall be limited to imprisonment.”
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,… Read more »
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… Read more »
“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?
…
*bangs head against wall*
…
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.
the kinds of comments that could put you into a lengthy sleep!
NIGHT ALL!!! *snoooze*
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?
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.
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.
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.
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.
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.