Extra Time for Dr. Karadzic — and Stand-By Counsel

As most readers probably know by now, the Trial Chamber has decided to adjourn Dr. Karadzic’s trial until 1 March 2010 and appoint stand-by counsel who will step in if, at that time, Dr. Karadzic continues to boycott the trial.  Here are the relevant paragraphs from the decision:

19. On the issue of continuing the trial in the absence of the Accused, and without any counselnto represent him, the Prosecution has stated that it does not exclude the possibility of proceeding in such a manner but that its position is that it is in the interests of justice to assign counsel to the Accused so that he is represented in the courtroom should he continue to absent himself from the trial. The right of an accused to be present during his trial is, indeed, a right that can be voluntarily waived by that accused and there may indeed be circumstances in which a Trial Chamber could decide to proceed in his absence, even if an accused were not represented by counsel. However, there are problems associated with that course which, in the present case, lead the Chamber to conclude that it would not be in the interests of justice to proceed with the presentation of evidence by the Prosecution in the absence of the Accused or counsel to represent him.

20. In the first place, the truth-seeking function of the trial process would be deprived of defence evidence which may go to challenge the evidence adduced by the Prosecution. Secondly, an important function of the trial process, as originally envisaged by the Security Council of the United Nations in the very creation of the Tribunal, was to seek to further peace and reconciliation amongst and between the various factions involved in the conflict in the former Yugoslavia. To allow the Trial Chamber to hear and assess only half of the evidence, albeit from the party charged with the burden of proving its case beyond reasonable doubt, would be to deny the opportunity the trial process may have to engender such peace and reconciliation as may be gleaned from a full hearing of the evidence brought by both the Prosecution and the Accused.

[snip]

24. The Chamber recognises that if counsel is to be appointed to the Accused, such counsel will require some time to become familiar with the case before he or she can act in the interests of the Accused at trial. It is certainly true that this case is a voluminous one and that counsel will have many thousands of pages of documents to read so that he or she can properly cross-examine the witnesses brought by the Prosecution. No counsel, not even the most experienced and efficient, could reasonably be expected to be in a position to assist the Accused and, by extension, the trial process, without sufficient, albeit defined, preparation time. Thus, there will need to be a delay of some months before the trial can resume, if it does so with a form of appointed counsel.

25. In the present circumstances, considering the fundamental nature of the right to self representation, which cannot be diminished lightly, and in accordance with the principle of proportionality, the Trial Chamber finds it necessary to instruct the Registrar to appoint counsel, who will begin immediately to prepare him or herself to represent the interests of the Accused when the trial resumes, if that should be required. Notwithstanding the appointment of counsel for this specific purpose, the Accused will continue to represent himself, including by dealing with the day-to-day matters that arise, such as the filing of motions and responses to motions filed by the Prosecution, and further preparing himself for the trial.

26. The Trial Chamber encourages the Accused to discuss his defence and co-operate fully with the appointed counsel, so that he or she can make most effective use of the time available for preparation. In light of the fact that the appointed counsel will be focused solely on preparation for trial, the Chamber considers that an appropriate preparation period is three and a half months, and will order that the trial resume on 1 March 2010, with the Accused’s opening statement, should he still wish to make it at this time rather than elect to make it after the conclusion of the Prosecution’s case.

27. The Trial Chamber states unequivocally that, should the Accused continue to absent himself from the resumed trial proceedings in March, or should he engage in any other conduct that obstructs the proper and expeditious conduct of the trial, he will forfeit his right to self-representation, no longer be entitled to assistance from his assigned defence team, and the appointed counsel will take over as an assigned counsel to represent him. Should he not engage in such conduct, the trial will proceed with the Accused continuing to represent himself and the appointed counsel will attend the proceedings and remain available to step in at any time the Chamber determines it to be necessary.

I need some time to digest the decision, but here are a few initial thoughts.  First, there is no question that this is a victory for Dr. Karadzic.  Everyone I know (myself included) was expecting the Trial Chamber to strip Dr. Karadzic of his right of self-representation now, adjourning the trial only to allow appointed counsel to prepare.  Instead, the Trial Chamber provided Dr. Karadzic with a powerful incentive to show up for trial in March.  If he does, standby counsel will have nothing to do except take advantage of the ICTY’s fantastic automatic coffee machines.

Second, the Trial Chamber deserves credit for doing — in part; see below — the right thing.  It was obviously under a significant amount of pressure from the prosecution to either simply continue the trial in Dr. Karadzic’s absence or adjourn the trial only after stripping him of his right of self-representation and appointing actual, not stand-by, counsel.  The Trial Chamber rightly rejected those options, both of which would have been devastating to the long-term legitimacy of the trial.  It’s sad that the prosecution didn’t see that — or, worse, didn’t care.

Third, from a tactical perspective, the Trial Chamber’s decision to adjourn the trial until March 1 is quite canny.  Four months is obviously much less than the 10 months that Dr. Karadzic asked for, but it is also not nothing.  I have not spoken to Dr. Karadzic or any of my colleagues on the defense team, so I cannot speak in any kind of official capacity.  Personally, though, I hope that Dr. Karadzic considers this an acceptable, if not ideal, compromise and makes sure that stand-by counsel never sets foot inside the courtroom.

Fourth, it is important to reiterate that no competent barrister will accept appointment as stand-by counsel under these circumstances.  Four months is simply not enough to become even minimally conversant with the legal complexity of the monstrous indictment and the million-plus pages of evidence.  It is also exceptionally unlikely that Dr. Karadzic will have anything to do with stand-by counsel.  Any barrister who takes the appointment, therefore, will be interested in one thing and one thing only: the free publicity that comes with it.

Fifth, and finally, it is important to note that one aspect of the Trial Chamber’s decision is completely legally indefensible:

The right of an accused to be present during his trial is, indeed, a right that can be voluntarily waived by that accused and there may indeed be circumstances in which a Trial Chamber could decide to proceed in his absence, even if an accused were not represented by counsel.

To say this is a radical position is an understatement.  There is absolutely no legal justification for holding a trial in absentia without appointed counsel.  The ICTY Statute does not give the Trial Chamber that power.  Counsel was appointed in Milosevic, and the Appeals Chamber specifically held that “the Trial Chamber failed to recognize that any restrictions on Milosevic’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial.”  The Appeals Chamber took the same approach in Seselj.  And, of course, the ICTR’s Rule 82 bis — the rule that the ICTR’s judges at least bothered to formally adopt — only permits a trial to proceed in the defendant’s absence if counsel is appointed for him. Even Martin Bormann, Hitler’s secretary, had counsel appointed for him!

The Trial Chamber’s comment is, fortunately, nothing other than dicta.  But it is shocking nevertheless.