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

by Kevin Jon Heller

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.

http://opiniojuris.org/2009/11/05/extra-time-for-dr-karadzic-and-stand-by-counsel/

10 Responses

  1. From the decision:

    “23. The Chamber notes in this context that the Accused also, once again, gave some indication that he intends, in the course of his defense to correct what has been adjudicated by this tribunal in prior cases concerning other accused persons, which is something he has stated during status conferences held druing the pre-trial stage, and show who was responsible for “the outbreak of the war”. The Trial Chamber reiterates that the Accused´s task is only to address the allegations in the indictment against him, and to challenge the evidence brought by the prosecution in support of those allegations, and that he should be focusing his preparation accordingly. He cannot reasonably claim to require many more months to prepare for trial when his preparation includes matters that are not, and will not be, the subject of the trial.”

    - So this war probably one of the main reasons the Trial Chamber was sceptical of Dr. Karadzic´s demand for more time. He was allegedly preparing evidence which would not be allowed anyway.
    - However, given the fact that the Accused is charged with genocide, who startet the war is very well be subject of this trial. It is directly linked with mens rea.
    - Even if the outbreak of the war were irrelevant, the trial also has a “truth-seeking function” as the Trial Chamber puts it in para. 20. It seems to me that the trial has a “truth-seeking function” for one side only.

    I am looking forward what other observers think.

  2. I found the decision well balanced and the only sensible thing that the TC could do in the circumstances of Karadzic’s obstructive behavior. K gets a last chance to show the world that he is serious about his defence, the TC maintains control of the proceedings and has a way to proceed if K continues his obstructive behavior. Only losers are the victims of the crimes K is charged with, as they will have to wait for at least another 4 months for the wheels of justice to actualy start turning, despite the rulings by both the TC and the Appeals Chamber that this case was trial ready, and the fact that K was on the run for 10+ years. K managed to frustrate the course of justice yet again, and let’s hope that this will be the last time.

    Kevin, good point about whether you can have a trial even when an absent accused is unrepresented by counsel. The TC should have indeed either given some references in law for this conclusion, or avoided to pronounce on the matter.
    Justinian, who started the war is in my view entirely irrelevant. I do not see how even if K proved that the Bosniaks started the war that would affect the allegation that he committed genocide. You could have a country A attack country B, and country B in its self-defence takes the opportunity to commit genocide against nationals of country A. K wants to use the trial to offer his views on the conflict. Perhaps interesting, but no place for that in the trial. The facts alone will speak for themselves and the facts alone will contribute to the truth seeking function. If you have an idea about what facts were established beyond a reasonable doubt in ICTY cases dealing with Bosnia, you will get a good idea of what facts will very likely be established in this case. Your interpretation of para. 20 seems to be based on the ignorance of the ICTY case law and ignorance of the historic accounts of what happened in Bosnia in 1992-1995.  

    Speak to you all in 4 months.

  3. Indeed, it looks like a smart decision.

    @Justinian: I agree with Scriptum. You can’t commit genocide in self-defense. Who started the war is irrelevant, not to mention a wonderful topic for someone looking to slow down the progress of the trial.

    @KJH: I have to say I am a little troubled by your pre-emptive strikes against the appointed counsel. This seems well beyond the bounds of fair play among jurists, not to mention entirely uncalled for. Whoever the Tribunal will appoint is not the bad guy, in fact, he/she will be one of your guys, and does not deserve this kind of abuse.

    Four months is far from ideal, but it is enough for counsel to function well enough to safeguard the accused’s right to a fair trial. How well counsel ultimately ends up functioning depends to a large extent on your client’s cooperation. Regardless, there’s absolutely no excuse for calling this person a hack just for taking on the job.

  4. No counsel can be ready for this trial in four months.  And I have absolutely no respect for any barrister who agrees to represent someone against their will.  Amicus is one thing; I have no problem with serving in that role.  But that is very different than pretending to represent someone who doesn’t want you to represent them.  No self respecting barrister should be willing to do that — and particularly under circumstances in which adequate preparation is not possible.  So I stand behind my comments.

  5. Nice analysis.  I think a lot of people assume that anyone working on Karadzic’s defense must be doing it for publicity.  I am certainly not one of those people, but for that very reason I also wouldn’t be so quick to judge the motives of the prospective standby counsel.  Whether four months is enough is a different matter.

  6. Sasha and Martin,

    I think your comments deserve a more thought-out response.  I will blog about the ethics of being appointed counsel later tonight.

    K.

  7. @scriptum and @martin: You two seem to contradict each other.

    While scriptum argues that you can take the opportunity of self-defense to commit genicide, Martin argues that you cannot commit suicide in self-defence. I too think, that you cannot commit genocide in self-defense.

    I believe it is important to know who wanted to expel whom (thus who started the war). You cannot say it is “entirely irrelevant”. If that were the case, you ignore the setting the killings took place: In a civil war.

  8. @Justinian: I assumed scriptum made a typo.

    I’m not sure why the war setting is relevant, except at the penalty stage, or for the other charges. (He is also charged with crimes against humanity and violations of the laws or customs of war.) Both under the Genocide Convention and under the Rome statute, genocide is unequivocally unlawful in all circumstances, war or peace. I’m not sure that I can think of any ordinary defense that would be applicable to a charge of genocide. (Maybe the insanity defense, but what else?)

  9. Doubtless Karadzic would love to turn this into a “who started the war?” debate, but there is no reason why the Trial Chamber should permit it. Even taking the most charitable view on the subject – that the war was started when the unarmed Bosnian Serb population was placed in grave danger and took to arms to defend itself, Karadzic would still have to answer for the conduct of troops under his command.

    But again, if we simply shift the frame, and look at Karadzic not as someone who is sincerely aiming to convince the Court of his innocence (or, at least, of lesser culpability), but as someone whose actions and pronouncements are aimed squarely at his former subjects, whose attention he is once again enjoying, then things start to make a lot more sense.  Who started the war might be a totally irrelevant legal question, but it’s perfect for stoking the nationalist feelings back home.

  10. Oh well, such is life.

    I hope that your client uses his time wisely and fully, and that it does some good when he does come before the ICTY.

    But again, I must ask a point I brought up elsewhere: if when the time granted by the ICTY elapses your client still demands more time and chooses to boycott his trial again, what action do you believe would be just for the ICTY to do if not forcing him to trial? Begging for him to attend? Letting him rot in prison without a trial?

    Inquiring minds wish to know.

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