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Court May be Wise to Grant Karadzic More Time
| 29 October 2009 | By Bogdan Ivanisevic
Protests in front of the Tribunal
The initial impasse in the trial of Radovan Karadzic has no doubt been a cause for celebration among the Hague tribunal’s many opponents in Serbia and the Republika Srpska.
Among supporters of the tribunal, failure to start the trial on time this week raised fears that it could turn into another high-profile case determined be the defendant’s whims at the expense of the feelings of the victims.
Hopefully, it’s possible some months from now that the trial will have taken its proper course – the defendant’s cries of injustice having been dismissed as a bid to stop justice from taking its course.
The court faces two challenges. One concerns the substance: Karadzic must be given a fair trial. The other challenge is the perception of fairness. It is important that justice is seen to be done, including in relation to the defendant.
The tribunal should consider appointing a “standby counsel”, as important step to ensure the trial remains on track.
Everyone accused before the International Criminal Tribunal for former Yugoslavia, ICTY, is entitled to “defend himself in person or through legal assistance of his own choosing”.
This phrase from the tribunal’s statute comes verbatim from the key international human rights convention, the International Covenant on Civil and Political Rights.
“To defend oneself in person” is not an absolute right, however, and must be balanced against the interests of justice, which include the need to conduct an expeditious and orderly trial.
If Karadzic boycotts the proceedings unless he is granted significantly more time to prepare his defence, would appointment of a counsel to represent him be in the interests of justice, or would it violate his right to self-representation?
In some European states, including Serbia and Bosnia and Herzegovina, the appointment of a counsel to a defendant charged with particularly grave crimes, such as war crimes, is mandatory.
But the ICTY has adopted the position that even those accused of the gravest crimes may opt to defend themselves. According to tribunal case law, this right may be curtailed only in exceptional circumstances.
In an oft-quoted decision in the case of Slobodan Milosevic, the Appeals Chamber in November 2004 said the court had the right to curtail self-representation if it “substantially and persistently obstructs the proper and expeditious conduct of his trial”.
Some reputable international lawyers think the tribunal went too far here. Critics say decisions of the tribunal appear to have been motivated by a need to ensure the accused is present in court by any means possible.
For example, twice during the trial of the Serbian Radical Party leader Vojislav Seselj, in August and October 2006, the trial chamber assigned a counsel to represent the accused.
Both times the Appeals Chamber then reversed the decisions, the second time in response to Seselj’s hunger strike and refusal to appear in the courtroom.
In the second of these two decisions, the Appeals Chamber argued that the defendant deserved an opportunity to show he was willing to comply with the tribunal’s rules of procedure.
The explanation did not convince trial observers and legal experts, because they felt that Seselj had already given abundant proof of obstructionist and disruptive behaviour.
So, the tribunal does have a standard – the precedent from the Milosevic trial – that it can apply in the Karadzic case – “substantial and persistent obstruction of the proper and expeditious conduct of trial”.
The question is whether Karadzic’s actions to date can be classified as substantial and persistent obstruction to the proper and expeditious conduct of his trial.
The difficulty facing those arguing in favour of the court’s appointment of counsel is that even if Karadzic’s actions do constitute obstruction, that might not be obvious to every reasonable observer. In other words, the perception of fairness is at risk.
It is not obvious, for example, that Karadzic is being obstructive when he argues that he has not been given enough time to prepare for his trial.
Arguably, Karadzic and his legal advisors used up much of the time they were given for a largely irrelevant issue – the so-called “Holbrooke agreement”.
This refers to the claim, strongly denied by Holbrooke, that the former US Balkan mediator promised Karadzic immunity from trial if he agreed to withdraw from political life.
The numerous submissions filed by Karadzic and the team also suggest that he has a strong legal team working for him.
Yet, the material that he and his legal advisors have received from the prosecution is voluminous, whether or not it comprises more than a million pages, as the accused claims. Karadzic also insists most of it has been submitted since May.
The trial chamber is best placed to determine the merit of these claims. If the chamber decides they lack any merit, they will have to discard them and assign him a counsel.
After a period of preparation, this counsel would cross-examine the prosecution witnesses and make submissions. If Karadzic remained a participant in the proceedings, he would also be allowed to cross-examine, after the counsel.
But he may boycott the trial instead. A sense of incompleteness would be the price that the court would have to pay for this course of action.
If the trial chamber now decides Karadzic’s claims have some weight, they will feel justified in giving Karadzic more time to extend time for Karadzic’s preparation and will not assign a counsel.
They would be wise meanwhile to simultaneously name a “stand-by counsel” who can take over from the accused if his right to self-representation is terminated eventually.
This scenario would require some creativity on the part of the judges in terms of explaining why they had ignored Karadzic’s claims a few weeks earlier.
Any time extension should be modest, so as to satisfy the requirement that the trial should be expeditious. A limited time frame would also make it a less of all all-out propaganda victory for Karadzic, assuming this was one of his goals.
At the same time, the allocated time frame should be generous enough to assure reasonable observers that the accused was given sufficient time to prepare.
If Karadzic does not appear in the courtroom after this additional time, the court should change the status of the stand-by counsel into that of a court assigned counsel and let him represent the defence.
What if Karadzic and his witnesses then boycott the trial in protest against the assigned counsel? Milosevic and Seselj did that, in similar situations during their trials.
This is where the perception of the fairness comes in again. Following an extension to the time limit for Karadzic’s preparation, few observers would take his claims of unfair treatment seriously.
Importantly, the example of self-representation in the Milosevic and Seselj trials may now turn against the accused. Most observers feel the tribunal was too magnanimous in handling those cases – to its own detriment and that of the victims.
Few would sympathise with Karadzic if he took the same path as Milosevic and Seselj, and if he decided after being given more time for preparation, to boycott the trial altogether.
Bogdan Ivanisevic is a consultant for the International Center for Transitional Justice. Balkan Insight is BIRN`s online publication.
