Stand-By Counsel Appointed in the Karadzic Case (Updated)

by Kevin Jon Heller

The ICTY has appointed Richard Harvey, a barrister with Garden Court Chambers in London, to serve as Dr. Karadzic’s stand-by counsel.  There is no question that Mr. Harvey is more than qualified for the position: in addition to defending a number of individuals accused of terrorism-related offences in the UK, Mr. Harvey has served as the lead counsel in one ICTY case (Lahi Brahimaj), as co-counsel in one ICTY case (Haradin Bala), and as co-counsel in one ICTR case (Juvenal Kajelijeli).

That said, there are numerous problems with the appointment.  First, there is now little more than thirteen weeks before the trial is due to resume.  That is simply not enough time for Mr. Harvey to prepare for trial, particularly without Dr. Karadzic’s assistance — which he has already indicated he will not provide.  I can only hope that Mr. Harvey’s first act as stand-by counsel will be to demand more time to prepare, although I imagine that the Tribunal conditioned his appointment on him not doing so.  I sincerely hope I’m wrong about that, because demanding more time would send a strong signal to the Trial Chamber and the prosecution that Mr. Harvey intends to protect Dr. Karadzic’s right to a fair trial, not promote the Tribunal’s interest in convicting Dr. Karadzic as quickly and cheaply as possible.

Second, although Mr. Harvey’s desire to begin preparing for trial as soon as possible is understandable, I think it was a serious mistake for him to accept appointment while Dr. Karadzic’s request for certification to appeal the Trial Chamber’s decision to appoint stand-by counsel is still pending.  As Dr. Karadzic points out in that motion, the Appeals Chamber has specifically held that the defendant, not the Trial Chamber, is entitled to select stand-by counsel.  Here is the relevant paragraph (para. 28) from the Appeals Chamber’s 8 Dec. 2006 decision in Seselj:

[T]he Trial Chamber is instructed not to appoint stand-by counsel unless Seselj exhibits obstructionist behavior fully satisfying the Trial Chamber that, in order to ensure a fair and expeditious trial, Seselj requires the assistance of stand-by counsel. Should a time come when the Trial Chamber feels justified to make such a decision, the Rule 44 list of counsel should be provided to Seselj and he should be permitted to select stand-by counsel from that list.

That obviously did not take place here.  Instead, the Trial Chamber simply arrogated to itself the right to choose who would serve as stand-by counsel for Dr. Karadzic.  That was a bad move, one that not only directly contradicts Appeals Chamber precedent, but also — and perhaps equally importantly — fatally undermines Mr. Harvey’s independence. Why should Dr. Karadzic have any faith in stand-by counsel that the Trial Chamber has selected for him?

Third, and finally, I would be remiss if I didn’t question the wisdom of appointing stand-by counsel who has previously defended two high-ranking members of the Kosovo Liberation Army (Brahimaj and Bala).  As a defence barrister myself, I have no problem with that — representing a defendant in no way requires a barrister to adopt or endorse his client’s politics.  But I cannot imagine a Serbian defendant ever being comfortable with a defence barrister who represented KLA soldiers, just as I cannot imagine a Kosovar defendant ever being comfortable with a defence barrister who represented Serbian soldiers or politicians.

UPDATE: Simon Jennings, one of the most reliable reporters who covers the ICTY, reports that Mr. Harvey met with Dr. Karadzic before his appointment and told Dr. Karadzic that he did not have enough time to prepare for trial.  It will be interesting to see if Mr. Harvey tells the Tribunal the same thing now that he has been appointed against Dr. Karadzic’s will.

UPDATE 2: The Registry’s decision appointing Mr. Harvey is available here.  Seemingly aware of the Seselj problem, the decision says the following:

CONSIDERING that representatives from the Registry met with the Accused in order to inform him of the practical consequences of the 5 November 2009 Decision and to solicit his preference from a number of counsel established by the Registry to be both eligible for appointment before the Tribunal and available;

CONSIDERING that during that meeting, the Accused requested the Registry’s representatives to facilitate meetings between him and counsel on the list provided to him to indicate his preference;

CONSIDERING that although the Registry facilitated meetings between the Accused and counsel on the list, the Accused has not indicated a preference.

If this is true, it may well increase the likelihood that the Appeals Chamber will approve Mr. Harvey’s appointment.  The Registry’s explanation, however, clearly fails to satisfy the requirements of Seselj, which says that a defendant gets to choose from the Rule 44 list, not from “a number of counsel” hand-selected by the Registry.  And, of course, in this case the Registry chose for Dr. Karadzic, ostensibly because he didn’t approve of any of the counsel on its hand-selected list.  I can only hope that the Appeals Chamber sees through the Registry’s transparent attempt to undermine the spirit, if not the letter, of its decision in Seselj.

http://opiniojuris.org/2009/11/19/stand-by-counsel-appointed-in-the-karadzic-case/

3 Responses

  1. Of course, the Seselj case can hardly be invoked as a good precedent for anything at all, so I would not bet on the Appeals Chamber sticking by its statement – which was given in very specific circumstances…

  2. Guy2,

    You may be right about the decision in Seselj.  But the precedent still binds the Trial Chamber, which should have followed the decision and let the prosecution appeal the issue. 

    You may also be right that the Appeals Chamber may overrule its previous decision.  Nevertheless, given that the rule is a sound one — because it encourages the defendant to cooperate with stand-by counsel — doing so would simply highlight the fact that Karadzic jurisprudence is being determined by expediency, not legal considerations.

  3. So now that we know who the appointed counsel is, do you still think that

    “no ethical defence barrister will accept being appointed stand-by counsel for Dr. Karadzic.  Not only is there not enough time to adequately prepare for trial, “representing” a defendant who does not want to be represented is antithetical to the mission of a defence barrister.  It is safe to say, therefore, that any barrister who is willing to serve as stand-by counsel in the Karadzic case is far more concerned about getting his name in the papers than about protecting Dr. Karadzic.”

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