21 Nov More on the Selection of Stand-By Counsel
It is becoming increasingly clear that the Registry made no attempt to comply with the Appeals Chamber’s decision in Seselj. I have now learned that the Registry arranged for Dr. Karadzic to meet with five defence barristers, including Mr. Harvey. Dr. Karadzic was then given a deadline to choose one. Instead, citing Seselj, Dr. Karadzic asked for a copy of the Rule 44 list so that he could have a wider selection. In particular, he wanted the opportunity to choose a barrister who was from Bosnia or Serbia — someone whom he could trust and who would more familiar with the events at issue in the trial. The Registry refused and appointed Mr. Harvey.
I don’t think it would be appropriate for me to identify the four other defence barristers, even if they did agree to serve as stand-by counsel. I note, though, that three of the four have — like Mr. Harvey — defended members of the KLA; one of the four used to be a prosecutor at the ICTY; and one of the four has defended a Bosnian Muslim. Indeed, only two of the four have ever defended a Serb and only one of the four has exclusively defended Serbs. (Why the Registry chose Mr. Harvey over the barrister on the list who has never defended a member of the KLA and who has exclusively defended Serbs is beyond me. Both are non-Serbian, and their credentials are not substantially different.)
Let me be very clear: the fact that four of the five barristers have previously defended members of the KLA does not mean that they would be biased against Dr. Karadzic. On the contrary, all four of the barristers have unimpeachable credentials. And again, there is absolutely nothing wrong with a defence barrister representing individuals from different sides of a conflict. In fact, I think that the willingness to do so is a mark of a barrister’s professionalism. All that is irrelevant, however, to whether a barrister appointed as stand-by counsel will be able to build trust with his client. From a pragmatic standpoint, it doesn’t matter why a defendant doesn’t trust stand-by counsel; all that matters is that, rightly or wrongly, he doesn’t.
The best solution, then, would have been the one endorsed by the Appeals Chamber in Seselj: allowing Dr. Karadzic to choose his own stand-by counsel. The Registry obviously did not give him that opportunity. Even worse, the Registry clearly did not even attempt to put together a list of defence barristers whom Dr. Karadzic might be inclined to trust. Doing so would not have been difficult, given that the Rule 44 list includes more than 150 barristers, many of whom are Serbian or have represented only Serbian defendants. Indeed, it is more than a little suspicious that four of the five barristers on the Registry’s hand-selected list have defended members of the KLA — after all, only eight of the 161 defendants at the ICTY, less than 5%, are Kosovar.
Coincidence? You be the judge.