Emerging Voices: The Role of Standby Counsel to a Self-Represented Accused–Lessons Learned from the Karadzic Case

[Žygimantas Juška is a member of the defense team of Radovan Karadžić]

One of the most high-profile cases before the International Criminal Tribunal for the Former Yugoslavia (ICTY)—Prosecutor v. Radovan Karadžić—provides an opportunity to propose changes for the standby counsel model. Nevertheless, the ICTY has struggled to balance the effectiveness of standby counsel and its huge financial burden on the Tribunal.

The ICTY previously permitted self-representation in the two high-profile cases—Prosecutor v. Milošević and Prosecutor v. Šešelj—and in each, the Tribunal permitted self-representation but soon encountered disruptive behavior from the accused. When Milošević’s medical condition began causing his health to deteriorate, the Court decided that the counsel needed to be imposed. In Šešelj, the Trial Chamber revoked the accused’s right to self-represent and imposed standby counsel after Šešelj’s challenges against the legality of the ICTY, alleged intimidation of witnesses, and disruptive behavior. Similarly, the Trial Chamber ordered a standby counsel for Karadžić after he refused to attend proceedings (see here). The Trial Chamber permitted Karadžić to continue self-representing so long as he did not disrupt the trial process.

During the personal discussion with Peter Robinson, I have been introduced with key aspects of the current model of standby counsel. The current mechanism allows accused persons to represent themselves freely, yet it provides the Court with an insurance policy in the event they disrupt the trial. At the same time, this model works as an incentive for the accused to play under the rules.  

Nevertheless, the international community has taken notice of the inefficiencies surrounding standby counsel. Under the current model, standby counsel prepares as if it were at trial, yet it essentially acts as an observer to the actual proceedings as Karadžić continues to self-represent (see, p. 14). Nevertheless, the standby counsel and Karadžić’s defense team often complete the same tasks, resulting in duplication and unnecessarily higher costs.

The current model could be improved by encouraging a more active role for standby counsel. It seems clear that a partnership between actual and standby counsel would likely increase the efficiency of the trial. A partnership would be feasible, provided that the accused is willing to include the standby team in his preparation and also the Court is going to supervise this cooperation in a strict manner. As the self-represented accused often lack of adequate facilities and resources, the standby counsel would assist in solving the issues related with a lack of native speakers of Bosnian-Serbian-Croatian language and preparation of legal documents. As such, a partnership would be particularly valuable where the Defense lacks of resources, including (i) witness proofing (ii) witness summaries, and (iii) document collection.

Another solution to increase effectiveness of the current model could involve a standby counsel team that has been designated to have a general familiarity with the case. Unlike the current model, the standby counsel, here, would not constantly prepare as if it were at trial. Instead, the standby counsel would have only a general familiarity with the case. Then, if the accused lost his right to self-representation, the standby counsel would be given time to prepare and take over the case.

Many lawyers and the court itself would undoubtedly say that proposals mentioned above are inconsistent with the rules of the Tribunal, because they offer a form of double protection for the accused. In fact, the current mechanism of self-representation at the ICTY could also be criticized for jeopardizing the major principles of international justice. Having worked at the Karadžić’s defense team, I have realized many issues surrounding the time and resources provided to the Defense. It is obvious that the principles of equal treatment (article 21(1) of the ICTY Statute) and the right to a fair trial (article 21(4) of the ICTY Statute) are not inclined to favor the accused (see also opinion of Judge Vorah, paras. 4, 7). It seems clear that a more cooperative role of standby counsel would increase the efficiency of the trial. Unlike the current model, the money, here, would not be wasted on duplication of work. Instead, the standby counsel would be an active member of the trial, who is protecting a variety of interests, including: (i) the Accused (ii) the Court (iii) International Justice. Under this mechanism, the standby counsel would be a friend not only the Court, but also the accused.

To continue, the Karadžić case presents a unique situation from previous cases where the Tribunal has allowed self-representation.

First, the Karadžić case is unique because Karadžić rarely obstructs Trial processes or policy. In the two prior cases, the obstructive behavior of Šešelj and Milošević caused many delays in the trial. Here, Karadžić is professional respectful, and prepared for trial. In light of Dr. Karadžić‘s behavior so far, I would be surprised to hear of a trial disruption such that standby counsel would need to take over the case.

Second, Dr. Karadžić has been quite proficient in representing himself. He demonstrates respect for the Tribunal and seems to sincerely believe in international justice. Over the past few years at trial, Karadzic has proven to be a quick learner and an intelligent person. As Mr. Robinson points out, Karadzic generally cross-examines witnesses better than Milošević, Šešelj, and even many practicing lawyers.

Finally, Karadžić and the standby counsel maintain a professional relationship, despite the fact that the Court forced Mr. Karadžić to accept the court-selected appointment (see here). However, Dr. Karadžić is unlikely to cooperate with standby counsel. The issue isn’t that Dr. Karadžić doesn’t like the standby counsel; he simply believes in his defence team.

Future courts and tribunals have to avoid creating tension between the accused and standby counsel, because it just puts a “black shade” on the court. Where an accused is engaging in disruptive behaviour, the standby counsel might face the problem when the accused does not provide any guidance. In the absence of cooperation, the counsel can only protect the rights of the accused by choosing the best strategy and the most logical defence. If we assume that Dr. Karadžić under the supervision of his defence team can provide the best defence for his case, can this be offered by standby counsel? At best, the standby counsel can suggest a sufficient defence, yet in a majority of cases this would not be achieved.

The history of self-representation at the ICTY has proved that every trial depends on case-by-case approach; there are no possibilities to finalize rules for the standby counsel and the right to self-representation itself. The solution for future cases is to stimulate a more active role for standby counsel as well as to increase cooperation between the accused and standby counsel. Otherwise, the future trials will likely continue to struggle with those same issues that we have seen in the ICTY. The basic legal issues and recommendations debated in this post should be of particular relevance to the International Criminal Court (ICC). Being a permanent international court, the ICC has to continue the work of the ICTY by further developing a framework for the right to self-representation.