Karadžić trial update: UK lawyer appointed as standby counsel
The ICTY said yesterday that Radovan Karadžić cannot appeal against the court’s decision to appoint to him legal counsel (Full decision here) after he boycotted proceedings. Judges ordered earlier this month that legal counsel be appointed to Karadžić and adjourned his trial until March 2010 to give new defence lawyers time to prepare. On November 20, the ICTY named Richard Harvey QC, a lawyer with experience in The Hague representing war crimes suspects from Kosovo and the Bloody Sunday Inquiry to represent Radovan Karadžić if the former Bosnian Serb leader continues to boycott his trial when it resumes in next year. The ruling on November 5 to appoint counsel allows for Karadžić to continue representing himself, but he will have to work with an appointed lawyer. If he continues to boycott the trial, then Karadžić will forfeit his right to self-representation and the appointed lawyer will take over. The Registrar’s Office has stated that representatives of the Registrar’s Office met with Karadžic “…in order for him ‘to express his preference concerning the list of attorneys made by the Registrar. Although the indictee asked the Registrar to let him have an opportunity to meet the attorneys whose names are included in the list, in order for him to be able to say which of them he prefers, (…) after he had met them, the indictee did not say what his preference would be.’” Karadžić’s trial was adjourned just days after it began last month when the defendant refused to show up in court, saying he needed ten additional months to prepare his defence.
The problem of failure to attend trial and the options open to the ICTY were examined in great depth by NUIG’s Niamh Hayes on the International Criminal Law Bureau a few weeks ago and is well worth reading for a distillation of the law in the area and the options left to the court (For some not-so-reasoned criticism, look here). To summarize (and simplify) the issues, in May of this year the Prosecution belatedly completed their disclosure of over 1 million pages of evidence in the 11-count indictment before the October trial. Karadžić chose not to appear in protest at the Tribunal’s refusal to allow him sufficient time to prepare his defence. In intend in no way to criticize the legal conclusions reached in the post. However, I find myself far more in sympathy with the Trial and Appeal Chambers who refused Dr. Karadžić’s request for the additional ten months to prepare for the trial than Niamh and welcome the appointment of Mr Harvey. Two points of departure for me are (i) whether Karadžić has been an exemplary defendant, which must condition the Court’s approach to his request, and (ii) whether fair trial and excessive indulgence of defendant’s right to self-represent are synonymous.
I believe the Trial and Appeal Chambers were correct to take a sceptical view of Karazic’s request. Karadžić, who has no legal training, has been representing himself with the help of legal advisers. He appeared alone in court at all pre-trial hearings. I am in sympathy with the prosecution’s forceful arguments on the issue:
“Тhе Prosecution maintains that Karadžić’s own choices have made his preparation for trial more difficult. It contends that Karadžić’ s decision tо represent himself, seek large volumes of disclosure material of only limited relevance, have his legal volunteers work оn issues other than trial preparation and request large volumes of materials at а late stage from third parties are self-inflicted hindrances tо adequate trial preparation.”
The right under Article 21(4)(d) of the ICTY Statute “to defend himself in person” is absolute and nothing should be done to deny it. Echoing the US Supreme Courts decision in Faretta v. California, even though as an objective matter most defendants would receive a better defense if they accepted a lawyer’s representation, a knowing and intelligent waiver “must be honored out of that respect for the individual which is the lifeblood of the law.” It is, however, and entirely different matter to suggest by deliberately inconveniencing one’s defence by self-representation that one can legitimately decry other inconveniences that flow from that decision (One of Karadzic’s advisers said the former Bosnian Serb leader will not co-operate with Mr Harvey). Karadžić wilfully and consciously eschewed the benefits of a full defence team. As the Appeals Chamber put it:
“While Karadžić’s defence team maу have taken some time to recruit and mау not bе аblе to work оn еvеrу trial issue he would wish them to, these advisors are а source of significant support, and their limitations are linked to Karadžić’s choice to bе self-represented. The Appeals Chamber has explained that while “а Trial Chamber must bе particularly attentive to its duty of ensuring that the trial bе fair” to self-represented defendants, “[а] defendant who decides to represent himself relinquishes many of the benefits associated with representation bу counsel.””
A case with assigned counsel will still be fair. Indeed, it is highly likely that it may stand a better chance of acquitting or mitigating Karadžić’s punishment than a process that he halts and self-represents ineptly. It is not an either/or situation – the fairness of the Karadžić trial does not depend on him representing himself. With capitulation to every request and caprice that flows from self-representation, the trial runs the risk of becoming the unedifying circus that the Slobodan Milosevic trial became. The ICTY has by and large been scrupulously fair, but at the cost of time and resources that have undermined the concept of international criminal justice far more so than the assignment of counsel to a foot-dragging defendant ever can.
Finally, it is worth remembering that in strict procedural terms, this may be a big issue and worthy of legal contestation (to which Niamh has made a valuable contribution). However, as a matter of transitional and natural justice, there is more to the ICTY than scrupulous fairness, if indeed one opts characterize the decisions of the two Chambers as less than fair. In expediting the trial process, elderly victims whose rights are neglected in unduly lengthy trials might see the conviction they were denied for Milosevic, Mladic, the unindicted Tudjman etc. While a million pages of prosecution documents is probably erring too far on the side of conscientiousness, there is a strong argument that this is useful in historical terms considering Yugoslavia has never seen a proper truth and reconciliation or formal historical inquiry process. Karadžić’s position on the top of the tree makes the usually pregnable argument for historical revelation in trial that little bit stronger. It remains the case that Karadžić voluntarily failed to avail himself of the optimum opportunity to marshal his opposing case against the material therein. These are the arguments on which international criminal lawyers and their more woolly-minded brethren in the transitional justice community usually depart, but there remains a final argument on which both groups might coalesce, which runs as follows: The much-maligned completion strategy is important, and should be adhered to provided it is in keeping with a trial that is fair enough to meet international standards (which Richard Harvey’s appointment would not deny). States must wince at the delays and cost of the ICTY and every time they do they undermine the prospect that the ICC and other internationalised processes that have benefited from the example of the ICTY will be considered worthwhile.