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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.

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  1. pmcauliffe
    November 26, 2009 at 4:25 pm

    Goran Sluiter disagrees with me: http://www.internationallawbureau.com/blog/?p=984

  2. January 4, 2010 at 12:21 am

    Irrefutable Proof ICTY Is Corrupt Court/Irrefutable Proof the Hague Court Cannot

    Legitimately Prosecute Karadzic Case

    http://picasaweb.google.com/lpcyusa/
    (The Documentary Secret United Nations ICC Meeting Papers Scanned Images)

    This legal technicality indicates the Hague must dismiss charges against Dr Karadzic

    and others awaiting trials in the Hague jail; like it or not.

    Unfortunately for the Signatures Of the Rome Statute United Nations member states

    instituting the ICC & ICTY housed at the Hague, insofar as the, Radovan Karadzic, as

    with the other Hague cases awaiting trial there, I personally witnessed these United

    Nations member states openly speaking about trading judicial appointments and

    verdicts for financial funding when I attended the 2001 ICC Preparatory Meetings at

    the UN in Manhattan making the iCTY and ICC morally incapable trying Radovan

    Karazdic and others.

    I witnessed with my own eyes and ears when attending the 2001 Preparatory Meetings

    to establish an newly emergent International Criminal Court, the exact caliber of

    criminal corruption running so very deeply at the Hague, that it was a perfectly viable

    topic of legitimate conversation in those meetings I attended to debate trading verdicts

    AND judicial appointments, for monetary funding.

    Jilly wrote:*The rep from Spain became distraught and when her country’s proposal

    was not taken to well by the chair of the meeting , then Spain argued in a particularly

    loud and noticably strongly vocal manner, “Spain (my country) strongly believes if we

    contribute most financial support to the Hague’s highest court, that ought to give us and

    other countries feeding it financially MORE direct power over its decisions.”

    ((((((((((((((((((((((((( ((((((((((((((((((((((((( Instead of censoring the country representative

    from Spain for even bringing up this unjust, illegal and unfair judicial idea of bribery for

    international judicial verdicts and judicial appointments, all country representatives

    present in the meeting that day all treated the Spain proposition as a ”totally legitimate

    topic” discussed and debated it between each other for some time. I was quite shocked!
    The idea was “let’s discuss it.” “It’s a great topic to discuss.”

    Some countries agreed with Spain’s propositions while others did not. The point here is,

    bribery for judicial verdicts and judicial appointments was treated as a totally legitimate

    topic instead of an illegitimate toic which it is in the meeting that I attended in 2001 that

    day to establish the ground work for a newly emergent international criminal

    court.))))))))))))))))))))))))))))

    In particular., since “Spain” was so overtly unafraid in bringing up this topic of trading

    financial funding the ICC for influence over its future judicial appointments and verdicts

    in front of every other UN member state present that day at the UN, “Spain” must have

    already known by previous experience the topic of bribery was “socially acceptable” for

    conversation that day. They must have previously spoke about bribing the ICTY and
    ICC before in meetings; this is my take an international sociological honor student.

    SPAIN’s diplomatic gesture of international justice insofar as, Serbia, in all of this is,

    disgusting morally!

    SPAIN HAS TAUGHT THE WORLD THE TRUE DEFINITION OF AN
    “INTERNATIONAL CRIMINAL COURT.”

    I remind everyone, when I attended those ICC Preparatory Meetings in 2001,

    witnessing first hand the country plenipotentiary representatives present with me

    discussing so openly, trading judicial funding of a new international criminal court, for

    its direct judicial appointments and judicial verdicts, those same state powers were

    concurrently,

    those same countries and people were already simultaneously, funding the already

    established ICTY which was issuing at that time, arrest warrants for Bosnian Serbs

    under false primary diplomatic pretenses.

    The ICTY and ICC is just where it should be for once. Cornered and backed into and

    an international wall, scared like a corned animal (and I bet it reacts in the same way a

    rabid cornered animal does too in such circumstances). (ICTY associates)

    http://picasaweb.google.com/lpcyusa
    (Documents: Hague war crimes tribunal for the former Yugoslavia (ICTY) has

    destroyed all material evidence about the monsterous KLA Albanian/KLA organ trade in

    Kosovo).

    I believe strongly that ICYU assocaites murdered former Serb President, Slobodan

    Milosevic, tried to murder me, as well and other Serbs prisoners and presently places ,

    Doctor Radovan Karadzic’s life in direct danger as well as Ratko Mladic’s life
    in danger should he be brought there.

    The ICTY has no other choice than to halt all further court proceedings against, Doctor

    Radovan Karadzic, and others there both serving sentences and awaiting trials. Miss

    JIll Louise Starr (The UN Security Council has no choice but to act on this now).

    I accuse the Hague ICTY war crimes tribunal of attempted assassination on my life and

    others, contempt of court and obstruction of international justice and “international

    witness tampering” in complicity with Richard Holbrook and Bill Clinton (Former US

    President of the USA) as well as political players in Spain and the Netherlands .

    I represented the state interests’ of the Former Yugoslavia, in Darko Trifunovic’s

    absence in those meetings and I am proud to undertake this effort on Serbia’s behalf.

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