Appeals Chamber Treats Dr. K Like Josef K
What a shock: the Appeals Chamber has upheld Richard Harvey’s appointment as stand-by counsel. I would engage in a detailed account of its reasoning, but the short decision — 16 pages, only five of which are analysis — provides none. Here, for example, is the AC’s response to the heart of Dr. Karadzic’s challenge, the irrationality of the procedures the Registrar used to select Harvey (para. 34):
Karadzic fails to establish that the Trial Chamber inappropriately applied the Kvokca test. In selecting Harvey as standby counsel, the Registrar considered a number of factors, including (i) conflicts of interest; (ii) availability for appointment as standby counsel; (iii) counsel having no reservations about being imposed; (iv) previous experience before the Tribunal; and (v) geographic proximity. None of the specific examples of allegedly unfair or arbitrary reasoning Karadzic raises demonstrate that the Trial Chamber abused its discretion in finding that the Registrar appropriately exercised his discretion. More specifically, the Appeals Chamber is satisfied that the Trial Chamber acted within its discretion in concluding that the Registrar’s application of pre-screening neither contravened any legal requirement nor was unfair or nonsensical.
That’s it. That’s the “analysis.” No attempt to respond to any of Dr. Karadzic’s arguments, just brute force claims that everything is fine. We’re the Appeals Chamber, we can do what we want. Deal with it.
That’s appalling, but I guess it’s also unsurprising. After all, it’s not like the Appeals Chamber could have defended the procedures. Indeed, I pity the poor judge who tried to actually explain how the Registrar’s conflict of interest requirement was neither “unfair or nonsensical,” even though the Registrar used it to exclude numerous barristers who did not have actual conflicts (because the requirement did not require actual adversity) and include one, Colleen Rohan, who did. Were I the judge, I would have said “screw it, let’s just claim it all makes sense,” too.
The Appeals Chamber should be embarrassed by its latest “decision.” And anyone who cares about the legacy of the ICTY, no matter how they feel about Dr. Karadzic, should be ashamed that this is what now passes for “analysis” in the Tribunal’s final and most important case. The stain that Judge Hunt decried years ago spreads ever wider with each passing day.