Appeals Chamber Treats Dr. K Like Josef K

by Kevin Jon Heller

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.

http://opiniojuris.org/2010/02/16/appeals-chamber-treats-dr-k-like-josef-k/

7 Responses

  1. Still baffled at the thought processes of those who are meant to be;
    a) Upholding the fairness of the trail.
    and
    b)  Those who you would hope would have a cvested interest in the ICTY at being “successful”.

    Then again maybe “successful” is a matter of perspective?

    back to the drawing board then?  Lets hope this doesn’t just send another man to his grave without a conviction, as it does not look like he’s going to get a fair trial.

  2. It is also conceivable that the ICTY AC decided that ‘playtime’ is over and that, having had 15 years to prepare his case since his indictment was issued, Mr. Karadzic deserves nothing more. Not that this would be fair in procedural terms, but I think it might be a more likely rationale for this decision than any preoccupation with the Completion Strategy.

    Of course, in Seselj they should have said that the self-representation decision was only based on humanitarian grounds and not on legal provisions of the Statute and the RPE – and they are still paying for that mistake – but we can all assume that it was like this. So, no reliance on Seselj as a precedent on anything (except in matters of hunger strikes…).

  3. Guy 2: I completely disagree.
    Fine, he was indicted before he was arrested, but to adequately prepare for a trial where he has been charged with upwards of 100(or there abouts) crimes… One would need the adequate time to prepare, with access to all information.
    You all seem to forget, Dr Karadzic may be a scholar, but he is no where near being a legal professional.  One of the many reasons he has such an amazing legal team behind him.
    The completion strategy seems to be the only reason the court makes their decisions. 
    What Karadzic deserves in regards to past crimes(I know people who were directly affected by his actions, who believe that he deserves a fair trail!), has nothing to do with it.  How is it all of you seem to forget the right to a fair trial?
    How is a trial, fair and legitimate when the Appeals chamber upholds a decision which has no legal merit what-so-ever?  Even worse is that they can’t even prove that it was fair to said defendant?  They’ve basically just allowed the Registrar, to break the rules with their permission.  Hardly fair as far as I am concerned….

    “Of course, in Seselj they should have said that the self-representation decision was only based on humanitarian grounds and not on legal provisions of the Statute“  Why exatly?  That makes no sense?

  4. Well, I am just throwing around another interpretation of the facts. No need to be so aggressive. The choice not to surrender himself in time and not to retain counsel was Karadzic’s – it is a fair assumption that the ICTY Judges see it like this, at least, and draw conclusions from this. If the only preoccupation was the completion strategy, then the Prlic trial would have been closed years ago…
    I do not forget fair trial at all, I just take into account that its scope is interpreted differently in different places and jurisdictions. Was Tadic’s (or Eichmann’s, for that matter) trial much fairer than Karadzic’s? I do not know – and one might wonder why so much fuss about this specific individual.

  5. I tend to agree with Kevin and A that the legal reasoning is not convincing, in particular with regard to the Seselj Decision. This is certainly very regrettable by itself. However, I feel like the broader discussion on the issue is largely ignoring the fact that Harvey was “only” appointed as stand-by counsel, and not (yet) imposed on Karadzic as counsel (I’m not refering to the discussion that took place in this forum earlier whether or not the appeal against the appointment was “premature”). I cannot see how Karadzic’s right to a fair trial has been infringed as of now. It should be kept in mind that Harvey will only step in once the Trial Chamber considers that Karadzic has lost the right to represent himself by obstructing the trial. Without speculating about whether or not this will happen, and assuming (maybe with some naivity) that the Trial Chamber would only render this decision on a sound legal basis, it appears that it’s at this point entirely in Karadzic’s hands whether or not the flawed appointment decision(s) will result in an unfair trial. If he continues to cooperate, there is no reason to believe that these decisions will result in any real prejudice. On the other hand, should he decide to bring about this event, would it really be the Trial/Appeals Chamber that is to blame?

  6. Guy2: Sorry, that was a bit harsh.
    Wouldn’t you think(hope?) that the Judges would judge the facts of the case on the facts, as opposed to what could only be concluded at the moment as hearsay(considering the case has not even properly started yet?).

    Observer:  I know he is only “stand-by counsel”, but if the chamber had have allowed the extra time needed by Dr K to prepare for the case, maybe there would not have been a need for stand-by counsel at all?
    Regrettably I’m not sure the need for stand-by counsel would have had to been considered, had Dr. K turned up to the 1 day of the Trial.
    Technically he had not obstructed, and had also explained to the Chamber why he would be unable to make it to the first day, but they seemed to ignore both requests for adequate time to prepare…

  7. I wonder if this isn’t a matter of style. I’m not sure where the judges of the appeals chamber come from, but I can see how certain jurisdictions would not consider such an interlocutory appeal the place or the time for any kind of US-style explanatory ruling.

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