The Trial Chamber’s Flawed Decision Upholding Stand-By Counsel

The Trial Chamber has — completely unsurprisingly — rejected Dr. Karadzic’s motion challenging Richard Harvey’s appointment as stand-by counsel.  As I explained in a previous post, that challenge was based on three grounds: (1) Harvey’s appointment violates 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”; (2) Harvey’s appointment violated two provisions of the Registry’s own “Directive on Assignment of Counsel,” one pertaining to assignment of the defendant’s chosen counsel, the other governing conflicts of interest; and (3) Harvey’s appointment violated the Appeals Chamber’s statement in Seselj that “the Rule 44 list of counsel should be provided… and [the defendant] should be permitted to select standby counsel from that list.”

In this post, I want to focus on the TC’s rejection of the second and third argument.  Before turning to the merits of the TC’s decision, though, I want to point out once again the troubling pettiness that the TC continues to exhibit toward both Dr. Karadzic and the Appeals Chamber regarding the expression “Rule 44 list of counsel.”  As the quote above indicates, the AC coined that expression in Seselj; that’s why Dr. Karadzic has used the expression in his motions.  Everyone knows what the AC meant — it was referring to the list of counsel who satisfy the substantive requirements of Rule 44.  Yet the TC feels that it is necessary to remind the AC and Dr. Karadzic that, taken ridiculously literally, the expression “Rule 44 list” is inaccurate:

[N]othing in Rules 44 or 45 of the Rules leads the Chamber to the conclusion that there is such a thing as a “Rule 44 list.”  Instead, these Rules clearly provide that a list of counsel is to be kept in accordance with Rule 45(B).  This view is also held by the Registrar.

The TC then proceeds to insert a “[sic]” when either Dr. Karadzic or the Appeals Chamber uses the expression “Rule 44 list.”  (See para. 35 for the latter, where the TC inserts a “[sic]” twice!)

This may seem like a small matter, but it is indicative of the TC’s dismissive approach to the AC’s jurisprudence on self-representation.  The TC may disagree with that jurisprudence, but it remains bound by it.  And it is worth remembering that it was precisely the same kind of dismissiveness by the TC toward the AC that led to Seselj becoming such a procedural nightmare.  The TC is free to mock Dr. Karadzic all it wants, however unseemly such mocking may be.  But the TC needs to take the AC seriously, even if doing so requires it to reach conclusions it doesn’t like.

Now let’s look at the substance of the TC’s decision.  Dr. Karadzic argued that Harvey’s appointment violated Article 11(D) of the Registry’s own “Directive on the Assignment of Defence Counsel,” which provides:

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 from that list after hearing the suspect or accused.

The TC dismisses this argument by concluding that Article 11(D) does not apply to a self-representing defendant who is being appointed stand-by counsel; it only applies to a defendant who is asking counsel to be appointed for him (para. 29).

There is, of course, a superficial attraction to the TC’s position.  Article 11(D)(i) does indeed seem oriented toward a situation in which a defendant is seeking appointed counsel.  But the same is not true of Article 11(D)(ii), which quite plainly contemplates a situation in which there is conflict between the defendant and the Registry, either because the defendant refuses to choose counsel from the Rule 44 list or the Registry refuses to honor a defendant’s request for a particular counsel.  In such a situation, Article 11(D)(i) empowers the Registry to make its own selection — but only after the defendant is given an opportunity to be heard.

Dr. Karadzic’s situation is analogous to the one contemplated by Article 11(D)(ii).  He refused to choose one of the Registry’s five hand-picked stand-by counsel and the Registry justified its refusal to give him more choices by claiming that there was an impediment to any of the 150+ others serving in that capacity.  Article 11(D)(ii) thus suggests that the Registry should have given Dr. Karadzic an opportunity to explain why he preferred a different stand-by counsel and why that there was not, in fact, an impediment to that counsel’s appointment.  Instead, the Registry — armed only with a brief and unsolicited letter from Dr. Karadzic — simply appointed Harvey against Dr. Karadzic’s wishes.

That’s bad enough.  Even worse, the TC has the gall to distinguish the AC’s procedure for appointing stand-by counsel in Seselj by arguing that whereas Seselj “had a troubled history with the assigned/stand-by counsel and had expressed animosity towards him and his appointment in both capacities throughout the proceedings… [t]his is not the case here.  Other than referring to the fact that he never represented Serbs but had supposedly criticized them… the Accused appears to have been impressed by Richard Harvey and his ‘ethical standards’.”  It obviously never occurred to the TC that Dr. Karadzic might have expressed more animosity toward Harvey’s appointment if he had been given a formal opportunity to be heard on it.  Instead, it cherry-picks one sentence from Dr. Karadzic’s unsolicited letter to suggest — wrongly but unrebuttably — that Dr. Karadzic is basically fine with the appointment.

Interestingly, the TC seems to be aware that Article 11(D)(ii) complicates its casual dismissal of Dr. Karadzic’s Article 11 argument. In footnote 61, it says that “once it is established that [defendants] are not willing to co-operate, the Registrar retains discretion to essentially choose a counsel for them.”  Note the use of the word “essentially” — the reason that the TC does not simply say that the “the Registrar retains discretion to choose a counsel” is, of course, that its discretion is conditioned on giving the defendant an opportunity to be heard.  Not mentioning that inconvenient requirement makes it easier for the TC to justify the Registry’s failure to give Dr. Karadzic that opportunity.

The TC then turns to Dr. Karadzic’s most important argument — that the Registry’s procedure for selecting stand-by counsel violated the AC’s decision in Seselj.  Again, the relevant paragraph is para. 28:

[T]he Trial Chamber is instructed not to appoint stand-by counsel unless Seselj exhibits obstructionist behavior fully satisfying the Trial Chamber that, in order to ensure a fair and expeditious trial, Seselj requires the assistance of stand-by counsel. Should a time come when the Trial Chamber feels justified to make such a decision, the Rule 44 list of counsel should be provided to Seselj and he should be permitted to select stand-by counsel from that list. Alternatively, should the full restoration of Seselj’s right to self-representation fail to curb his obstructionist behaviour, the Trial Chamber would be permitted to assign counsel to Seselj.  Again, such decision may only be taken once Seselj has been given a real chance to effectively exercise the right to self-representation and if the Trial Chamber feels justified to make such a decision, the Rule 44 list of Counsel should be provided to Seselj, and he should be permitted to select counsel from that list.  Should Seselj refuse to cooperate in selecting counsel from the list, the Registry may choose counsel at its discretion.

The TC begins by dismissing this strong statement as “clearly obiter” (para. 36). I don’t want to get into an elaborate theoretical discussion of the difference between a ratio and a dicta, but I think the TC’s categorization is questionable.  Broken into its component parts, the paragraph does four things:

1. Reverses the TC’s imposition of stand-by counsel on Seselj.

2. Articulates the correct standard for imposing stand-by counsel on Seselj in the future.

3. Articulates the correct procedure for selecting stand-by counsel if one is imposed.

4. Articulates the correct procedure for appointing actual counsel if one is imposed.

The TC apparently believes that Seselj‘s ratio extends only to [1] and [2].  Viewed incredibly narrowly, perhaps that’s true. But it’s far more persuasive to view Seselj as articulating a comprehensive regime for the appointment of stand-by counsel and actual counsel, one that covers both the preconditions for appointing such counsel and the procedures that should be followed if those preconditions are satisfied.  The procedures may not have been at the center of the dispute in Seselj; nevertheless, to dismiss the AC’s specific directions concerning the procedures that should be followed as unimportant and easily disregarded dicta demonstrates very little respect for the AC.

Perhaps recognizing this, the TC then attempts to distinguish the AC’s decision from Dr. Karadzic’s situation on the ground that “the very specific facts of the Seselj case… differ considerably from those of the present case” (para. 36).  It points to two ostensible “differences”: (1) both stand-by and actual counsel were appointed in Seselj, and (2) Seselj “had a troubled history with the assigned/stand-by counsel and had expressed animosity towards him and his appointment in both capacities throughout the proceedings.”  It is difficult to see why either fact means that the legal principles articulated regarding the appointment of stand-by counsel in Seselj do not apply to the appointment of stand-by counsel here.  Is the TC seriously suggesting that a self-representing defendant is entitled to select his own stand-by counsel only if he has shown sufficient animosity toward the Registry’s selection?  Doesn’t that directly contradict the TC’s repeated insistence that a defendant cannot be rewarded for obstructing a trial?  And why does it matter that the TC appointed both stand-by and actual counsel in Seselj, given that the AC insisted in para. 28 that the defendant must be permitted to select counsel from the full Rule 44 list in either situation?

Next, the TC cites the AC’s earlier decision in Milosevic in defense of its reading of Seselj.  It points out (para. 38) that the AC upheld the TC’s decision to convert two amici into actual counsel without requiring the Registrar to provide Milosevic with the Rule 44 list. There are two equally-obvious problems with this argument.  First, the AC is always free to change its mind about a particular issue — as it obviously did concerning the procedures for appointing counsel between Milosevic and Seselj.  Indeed, the TC is obviously hoping that the AC will change its mind again and abandon Seselj now.

Second, and more important, the Milosevic decision involved the appointment of actual counsel, not stand-by counsel, making the decision at worst irrelevant and at best the kind of dicta that the TC says it is free to disregard.  Indeed, the TC seems to be aware of this problem, which is why it misleadingly argues that because the AC only upheld the TC’s appointment of actual counsel in Milosevic with significant restrictions — Milosevic remained free to give a closing argument and cross-examine witnesses, for example — the AC “essentially converted the assigned counsel into stand-by counsel.”  That is a ridiculous argument, given that the ratio of the decision was to “affirm[] the Trial Chamber’s imposition of defense counsel,” that the AC continually referred to “Assigned Counsel” (see, e.g., para. 20), and that the AC made clear that its restrictions were designed to assist the TC in crafting “a working regime that minimizes the practical impact of the formal assignment of counsel” (para. 19).

Finally, the TC argues that even if Seselj did apply to Dr. Karadzic’s situation, “the Registrar has complied with its direction to the extent required by the circumstances of this case” (para. 40).  The final clause is important, because the TC cannot plausibly maintain that the Registry complied with the direction in full by providing Dr. Karadzic with the complete Rule 44 list.  Instead, the Registry came up with an ad hoc list of criteria for “acceptable” counsel that went far beyond the requirements of Rule 44 — criteria that, in the TC’s view, “are perfectly reasonable in the circumstances of this case and reflect the careful scrutiny with with the Registrar undertook his task” (para. 40).

Let’s take a look at those “perfectly reasonable” additional criteria, set forth in para. 46 of the Registry’s submission to the TC in defense of its procedures:

• No conflict of interest with a previous representation of a client before the Tribunal.
• Previous experience before the Tribunal.
• Interest and availability.
• Proficiency in either English or French.
• “[G]eographic location… in close proximity to the Seat of the Tribunal.”

According to the Registry, application of those criteria resulted in a grand total of three barristers (out of more than 150) available to serve as stand-by counsel.  The Registry thus added two additional candidates who “met the qualification requirements under Rule 44 of the Rules,” but who were not “on the Rule 45 list at the time of the appointment decision.”  The disqualifications were as follows (para. 48):

• 31 “had a conflict of interest due to their previous or current representation… in related cases.”
• 38 had no experience or insufficient experience.
• 23 had scheduling conflicts.
• 4 did not speak English or French.
• 6 “resided on a different continent.”
• 6 were unavailable “for a variety of other reasons such as health problems and conduct issues.”

The first thing to note is the complete absence of transparency regarding the disqualifications.  The Registry provided absolutely no evidence in defence of its decisions, asking us to simply trust its assessment of conflicts, experience, “other reasons,” etc.  It is thus difficult to see how the TC could be so certain that the Registrar gave “careful scrutiny” to the more than 150 barristers on the Rule 44 list — especially as the TC itself notes (para. 41) that “the Registrar does not name each individual counsel and explain how he or she was disqualified.”

That issue notwithstanding, there are significant problems with the Registry’s ad hoc list of additional criteria.

Location

Why should residing on a different continent be per se disqualifying?  The Registry insists that the requirement is necessary because “counsel would not be living in The Hague during the period before resumption of trial on 1 March 2010, but would need to travel in and out of the Hague on short notice to obtain documents and reconstruct the case file.”  There are two problems with that.  First, and most obviously, counsel from the US or Canada could have easily relocated to The Hague for the 3.5 month period.  Did the Registry ask all of the American and Canadian barristers whether they would be willing to do so?  Second, it’s not clear why such relocation would be necessary.  How long does it take to get to The Hague from the US or Canada?  8-12 hours?  That’s too long to “obtain documents” and “reconstruct the case file,” whatever that entails?  Has the Registry not heard of the internet and courier services?

Language Proficiency

Rule 44 already requires proficiency in English or French, so all of the barristers on the list already ostensibly possess the necessary language proficiency.  Is the Registrar demanding greater proficiency?  That would be ironic, given that it took the position that Dr. Karadzic’s limited fluency justified not providing him with Serbian translations of key documents.  Were the four disqualified counsel erroneously included on the Rule 44 list?  That could be the case — but of course the Registry’s decision-making is completely opaque concerning the disqualifications.

Note also that Rule 44(B) specifically empowers the Registrar to waive the normal language requirement, allowing a defendant to be represented by counsel who speaks his native language.  Assuming that any of the four disqualified counsel speak Serbian (again, the Registry doesn’t tell us), their disqualification meant that the Registry refused to waive the requirement and then used its refusal to justify disqualifying them.

Interest and Availability

These are legitimate requirements, but they are also implicit in Rule 44.  Moreover, the (admittedly scanty) evidence indicates that the Registrar manipulated the availability requirement to select its preferred counsel.  The Serbian barrister Aleksander Aleksic was disqualified because he serves as co-counsel in the ongoing Pankovic appeal, but the German barrister Jens Diekmann was included on the list even though he serves as co-counsel in the ongoing Sredoe Lukic appeal.  And that is true despite the fact that the appeals are at exactly the same place — awaiting the filing of the defendant’s reply brief.

Previous Experience

This is a fair requirement, but the Registrar should have made clear how much experience is required.  Such transparency was particularly important given that there is a direct correlation between experience and the likelihood of a conflict of interest — the more experienced the counsel, the more likely it is that he or she worked on a related case.

Conflict of Interest

This is the key issue, which is why I have left it for last.  There is no questions that the Registry should have disqualified any barrister who had a genuine conflict of interest.  The problem is that the Registry and the TC adopted a completely incoherent definition of “genuine conflict.”

As the Registry notes (para. 46), the relevant provision is Article 14(D) of the “Code of Professional Conduct for Defence Counsel.”  Article 14(D) provides, in relevant part:

Counsel or his firm shall not represent a client with respect to a matter if:
(i) such representation will be, or may reasonably be expected to be, adversely affected by representation of another client;
(ii) representation of another client will be, or may reasonably be expected to be, adversely affected by such representation;
(iii) the matter is the same or substantially related to another matter in which counsel or his firm had formerly represented another client (“former client”), and the interests of the client are materially adverse to the interests of the former client.

Note the bolded text — Article 14(D) makes clear that a counsel should be disqualified only if two separate criteria are satisfied:

1. Counsel represented another client in a matter that “is the same or substantially related” to the current one; and

2. The interests of the two clients are “materially adverse” or would be “adversely affected” by the dual representation.

The second requirement — the essence of the inquiry — is critical, because the Registry’s submission indicates that it disqualified any counsel who satisfied [1] regardless of whether the dual representation could be seen as adverse.  Here is footnote 26, in which the Registry explains why it disqualified numerous Serbian lawyers: “[i]n this respect it is noted that all the Serbian counsel who otherwise fulfill the criteria outlined in paragraph 44 are, or have been, assigned to substantially related cases and/or accused who were allegedly members of the same joint criminal enterprise as the Accused, or have a scheduling conflict.”  Notice what is absent here — any requirement of conflict between the two accused.

This is a fundamental error, because it is impossible to seriously contend that the interests of two clients in “substantially related cases” or who were members of the same JCE are inherently adverse.  Consider a situation — admittedly distasteful — in which two defendants are each accused of being involved in the Srebrenica massacre.  If both defendants argue that the massacre did not take place, are their interests adverse?  If both defendants admit involvement but argue superior orders, duress, or mistake, are their interests adverse if neither is the relevant superior?  If both defendants argue that their involvement cannot be proven beyond a reasonable doubt, are their interests adverse?

To be clear, this is not to argue that the interests of two defendants in “substantially related cases” or who were members of the same JCE cannot be adverse.  They clearly can.  The most obvious situation in which there is an actual conflict is where one defendant testifies against the other defendant in order to minimize his own culpability.  In such a situation, a barrister could not zealously defend the first client without harming the second.  That barrister should thus obviously be disqualified from representing both clients.

Unfortunately, this is not a hypothetical situation.  One of the barristers whom the Registry selected for its list, Colleen Rohan, was faced with precisely that kind of conflict. Rohan represented Milorad Trbic for approximately one year, from 23 June 2005 to 1 June 2006, in a case involving the Srebrenica massacre.  His defense?  That his co-defendants were far more responsible for the crimes than him.  Here is a snippet from an article on the Srebrenica Genocide Blog, discussing the ICTY prosecutor’s support for transferring Trbic to Bosnia (his case was ultimately transferred):

Prosecutors have asked for the case against Milorad Trbic, a former Bosnian Serb soldier currently awaiting trial in The Hague on genocide charges relating to Srebrenica, to be transferred to the Bosnian court system.

Trbic had been expected to stand trial before the tribunal in August or September this year, along with seven others accused of involvement in the executions of thousands of Bosniak men and boys after Srebrenica fell to the Bosnian Serb army in July 1995.

But in her latest submission published on May 4, Chief Prosecutor Carla Del Ponte argues that transferring his case to Sarajevo would ease the strain on the court’s resources, which have been “expanded to the maximum” to handle the planned joint trial. To date, the largest trials in The Hague have involved no more than six defendants.

Del Ponte also notes that sending Trbic to Bosnia would make room for higher-ranking officers to be added to the joint Srebrenica trial in The Hague. The indictment against Trbic and his co-accused includes a ninth suspect, Bosnian Serb general Zdravko Tolimir, who remains on the run. Prosecutors have also said former army chief Ratko Mladic could be added to the joint trial if and when he is taken into custody.

[snip]

While Del Ponte acknowledges that the crimes committed at Srebrenica were “of the greatest magnitude”, she argues that Trbic held a low rank at the time and had “minimal authority”.

[snip]

Prosecutors have previously said that Trbic has implicated several of his co-accused in the Srebrenica crimes – both in testimony he gave in separate proceedings in The Hague against two other officers, Vidoje Blagojevic and Dragan Jokic, and in statements that he has provided to the prosecution.

This is an actual conflict, given that Dr. Karadzic is also accused (Indictment, paras. 41-47) of being a member of the Srebrenica JCE.  And yet the Registry did not disqualify Rohan from being included on its list.

Indeed, the conflict might even be worse.  According to the International Criminal Law Bureau’s website, Rohan was serving as a legal consultant to Momcilo Perisic as recently as October 2009.  Perisic, the most senior officer in the Yugoslav Army, is accused of being involved in both the attack on Sarajevo (Indictment, paras. 40-46)  and the massacre at Srebrenica (Indictment, paras. 55-62) — two of the crimes with which Dr. Karadzic is charged.  Indeed, the indictment alleges (para. 45, 61) that Ratko Mladic, who until recently was Dr. Karadzic’s co-defendant, was Perisic’s subordinate.  I have no idea whether Perisic and Dr. Karadzic’s defenses would be materially adverse, and I imagine that the Registry would argue that serving as a legal consultant instead of as defence counsel does not qualify as “representation” under Article 14(D).  Nevertheless, Rohan’s service on Perisic’s case is further evidence that the Registry’s conflict analysis was anything but “careful.”

The TC does not address the Perisic issue, but it casually dismisses (para. 41) the actual conflict between Rohan’s representation of Trbic and her potential representation of Dr. Karadzic.  Its “explanation” of why that conflict did not disqualify her from the Registry’s hand-picked list was not erroneous is two-fold.  Here is its first argument:

The Chamber notes that in selecting counsel for appointment in the present case, the Registrar has a certain discretion.  In reviewing the Registrar’s Decision, the Chamber is concerned with the procedural propriety with which he made his decision, and it cannot enter into an analysis of every aspect of the Decision.  As discussed above, the Chamber is satisfied that the Registrar established and followed a process that was both reasonable and fair in the circumstances of the case.

Get that?  The Registrar has a “certain discretion” — which means that it does not even have to apply its own stated conflict test consistently.  And the TC “cannot enter into an analysis of every aspect of the Decision” — which means that it can overlook the Registry’s failure to apply its own stated conflict test consistently, because the test itself is fair (which is incorrect, as noted above).  The absurdity of that argument speaks for itself.

Here is the TC’s second argument:

Furthermore, on the basis of the submissions made in the Reply, the Chamber is not persuaded that the decision to include Colleen Rohan was unreasonable or improper.  In this regard, it should be pointed out that Colleen Rohan was involved in the Trbic case only briefly, as Milorad Trbic was transferred to Bosnia and Herzegovina pursuant to Rule 11 bis of the Rules and was, thus, not tried before the Tribunal.

The TC’s decision does not footnote the Registry’s submission, and for good reason — it does not mention, much less discuss, Rohan’s conflict.  The TC’s substantive argument is also unconvincing.  Representing a client for a year is hardly “brief,” and Article 14(D) nowhere limits the conflict analysis to representation at trial.  Indeed, such a limitation makes no sense — why would it be okay for a barrister to represent two clients whose defenses were materially adverse simply because the conflict only occurred at the pre-trial stage?

All in all, the TC’s attempts to distinguish Seselj or, in the alternative, show how the Registry faithfully complied with it’s requirements are woefully inadequate.  The conflict issue alone should lead to reversal.  We can only hope that the AC has the courage to do the right thing and vacate Harvey’s appointment.  Given the contempt the TC has shown for it, such courage should not be particularly difficult to muster.