Dr. Karadzic Challenges the Registry’s Procedure for Appointing Stand-By Counsel

by Kevin Jon Heller

B. Don Taylor, a former legal officer at the ICTY and a good friend, has argued in the comments to a recent post that although Dr. Karadzic’s criticisms of the procedure the Registry used to appoint Harvey may well have merit, Dr. Karadzic’s request for certification to appeal the Rule 44 issue did not adequately raise the issue.  I disagree with Don, but I think reasonable minds can disagree; it probably would have been better if the motion — written, of course, during the period in which the defence team was not receiving funding from the Registry — had specifically explained why the Trial Chamber’s failure satisfied the interlocutory-appeal requirements of Rule 73(B).

As Don speculated in his comment, the request for certification was written and filed before the Registry appointed Harvey from its hand-selected list of five barristers.  Dr. Karadzic has now filed a motion in the Trial Chamber challenging the procedure the Registry used to select Harvey. That procedure was deficient in at least three ways.  First, and most obviously, it violated Article 21(4) of the ICTY Statute, which provides that a defendant has the right “to communicate with counsel of his own choosing” and “to defend himself in person or through legal assistance of his own choosing.”

Second, as I have noted before, the Registry’s selection of Harvey violated the Appeals Chamber’s decision in Seselj, which provides in relevant part (para. 28):

Should a time come when the Trial Chamber feels justified to make such a decision [imposing standby counsel], the Rule 44 list of counsel should be provided to Seselj and he should be permitted to select standby counsel from that list…. Should Seselj refuse to cooperate in selecting counsel from the list, the Registry may choose counsel at its discretion.

The Rule 44 list contains more than 150 names; the Registry required Dr. Karadzic to choose from five.

(As an aside, note that, when it denied certification to appeal, the Trial Chamber inserted a “[sic]” into Dr. Karadzic’s argument about its failure to properly direct the Registry.  Here is the Trial Chamber’s quote: “He then refers to a number of ‘errors’ in the Decision… [including] the failure to direct the Registrar to provide [the Accused] with the Rule 44 [sic] list from which he can select the standby counsel.”  The “[sic]” is apparently based in the fact that the list is actually kept pursuant to Rule 45, not to Rule 44.  One can see from the above quote, however, why, Dr. Karadzic referred to Rule 44 instead of Rule 45: because that is what the Appeals Chamber did.  Could the Trial Chamber be any more petty?)

Third, the Registry’s selection of Harvey violated two provisions of the Registry’s own “Directive on Assignment of Counsel.” Article II(D) of the Directive provides as follows (emphasis added):

Where the Registrar decides to assign counsel in accordance with this Article, the Registrar shall (i) assign the counsel selected by the suspect or accused from the list drawn up in accordance with Rule 45(B), provided that there is no impediment to the assignment of that counsel; or (ii) if the suspect or accused fails to select a counsel from the list drawn up in accordance with Rule 45(B) or if the Registrar determines that there is an impediment to the assignment of the counsel selected, assign other counsel.

Even more problematic for the Registry is Article 16(G) of the Directive, which provides (emphasis added):

No counsel shall be assigned to more than one suspect or accused at a time, unless: (i) each accused has received independent legal advice from the Registrar and both have consented in writing and (ii) the Registrar is satisfied that there is no potential or actual conflict of interest or a scheduling conflict, and that the assignment would not otherwise prejudice the defence of either accused, or the integrity of theproceedings.

The Registry’s decision dutifully notes that Harvey currently represents Lahi Brahimaj in the Hardinaj case, and that Brahimaj has consented to Harvey also representing Dr. Karadzic.  But that is not enough: Article 16(G) requires both defendants to consent to the dual representation — and Dr. Karadzic has not, and will not, consent to it.

To be sure, the two Directive-based arguments are based on provisions of the Directive that apply to assigned counsel, not to stand-by counsel.  One could thus argue — as Martin Holtermann has in the comments to previous posts — that those arguments will only become “ripe” if Dr. Karadzic boycotts the trial in March and Harvey is appointed actual counsel.  Nevertheless, the two provisions — particularly Article 16(G) — make clear that Harvey is not eligible to serve as Dr. Karadzic’s appointed counsel.  So it makes no sense to wait until the Trial Chamber wants to appoint Harvey to deal with Dr. Karadzic’s challenge; all that would do is delay the trial further, while new stand-by counsel is given time to prepare.

Finally, I want to make clear that Dr. Karadzic’s challenge should not be seen as a personal attack on Harvey or on the other barristers on the Registry’s hand-selected list.  Dr. Karadzic specifically told the Registrar when he asked for the complete Rule 44 list that “all of them made an excellent impression on me, including their extraordinary high ethical standards in relation to the possibility [of being] sufficiently prepared for the case by 1 March 2010.”  The fact remains, however, that selecting stand-by counsel is Dr. Karadzic’s right, not the Registry’s.

http://opiniojuris.org/2009/12/04/dr-karadzic-challenges-the-registrys-procedure-for-appointing-stand-by-counsel/

11 Responses

  1. Wait … are you saying the motion was unclear because you didn’t get paid?

  2. Herscht: You might like to read KJH’s response to that question here, and a few other places through out his blogs here on OJ.

  3. A,

    Save your breath — it’s wasted on someone who can’t even spell his own name!

    K.

  4. Good to see that he could dig himself out of a 49 year old grave to comment though! :D

    Reading Dr Karadzic’s Motion to Vacate Appointment of Richard Harvey on the 4 December.
    Not much to say on that.
    Will be interesting to hear the Chamber’s response though.  What happens if they say that those 5 NATO reps were/are the only ones available?
    They seem to be twisting the law to suit the ICTY’s completion strategy.  Certainly beginning with the end in mind, but whose end? (yes, that was a rhetorical question)

    I often wonder what would happen if Mladic was found just before the ICTY was to close?  Would he go to the ICC?

    What did catch my eye while going through the court records was the letter from Dr Karadzic in regards to what he saw as a mis-communication during a session.
    The Trial Chamber seems to insist that anything that Dr Karadzic says is an obstruction, when in that instance alone it was a sincere mis-communication.
    It’s a worry that those who are meant to keep a level playing field in this case, can’t even see beyond a mere lingual mis-communication.
    The lack of patience and understanding seems to put not only more pressure on the accused, but leads to inaccuracies in the way things are perceived on both sides of the table.  Which inevitably leads to more frustration and mis-understanding, and so goes the merry-go-round…

  5. I often wonder what would happen if Mladic was found just before the ICTY was to close?  Would he go to the ICC?

    Would the ICC even have jurisdiction? AFAIK, Mladic’s crimes predate the entry into force of the Rome statute. That means that if the ICTY can’t or won’t try him, he’ll have to be tried in Bosnian court. (Or Serbian, or possibly Croatian.)

  6. Sorry about the spelling everyone, you know I don’t get paid to blog :-)

    I don’t know why everyone is getting so upset.  If the lack of money is impacting representation then people should say so.

  7. Martin: Thanks, I suppose that makes sense.  Would make for an interesting case.  Whats the likely-hood it could turn out like Hussain (not in the fact that justice was not served, but it was not altogether a fair trial) etc?

    Hersch:  Start here, then read this.

  8. @A: That depends on who catches him. If the Croats catch him, they could claim jurisdiction Lotus-style on the grounds that some of the victims were Croatian nationals. (I’m assuming this is true.) However, given that Croatia is a party to the ECHR and an aspiring EU member state, a Croatian Mladic trial may well end up more fair than any ICTY trial.

    If the Serbs or the Bosnian Serbs try him, the trial might turn out to be unfair in the sense of being a sham, depending on the particular state of Serbian politics at the time. (i.e. which party’s in office, etc.)

    If the Bosnian muslims & Croats catch him, the state of the resulting trial is anybody’s guess. In that case, though, one would hope that the High Representative for Bosnia and his people (EUFOR and EUPM) would make sure things wouldn’t get out of hand.

    If he is caught anywhere else, he would presumably be extradited to Bosnia somehow. In that case, the main ethnic groups in the country would presumably negotiate some special deal to arrange the manner of his trial.

  9. Bizarrely I have more sympathy for Karadzic than I do Mladic (Damn you Kevin, in the nicest possible way!).

    It’s a good reminder that even though, closer to the end of the war and the srebrenica massacre, that Maldic and Karadzic had closed rhetoric.  Karadzic would have had the power to lessen what had happened.  At least, that’s how I feel.

  10. – If the Serbs or the Bosnian Serbs try him, the trial might turn out to be unfair in the sense of being a sham’ - strange concept: Serbia and BiH are also under the ECHR, so what is the difference with Croatia? Why would a trial there be more of a sham than the ones in Croatia? It is not like Croatia’s trials for war crimes have been a model of fair proceedings so far…

  11. @Guy2: Firstly, because my sense is that Croatia, certainly in the post-Tudjman era, is a more stable democracy than Serbia, with a more genuine commitment to human rights, etc.

    Secondly, because Croatia is more effectively under the thumb of the EU, last Monday’s EU concessions to Serbia notwithstanding. The consensus view is that Croatia and Iceland will be the next countries to join the EU, possibly as early as 2012, and the Croatians won’t want to do anything to jeopardise that.

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