Friday, November 6, 2009

Why the ICTY Got It Wrong in the Karadžić Appointment of Counsel Decision

ICTY The following is a guest post by Professor Gregory S. Gordon from the University of North Dakota School of Law:

Yesterday, the International Criminal Tribunal for the former Yugoslavia issued its "Decision on Appointment of Counsel and Order on Further Trial Proceedings" in the case of defendant Radovan Karadžić.  Last week, Karadžić refused to be present at the commencement of his trial because he felt he needed several more months to prepare.  The Trial Chamber proceeded with the prosecution's opening statement and then adjourned the case to hold a hearing on Wednesday regarding appointment of counsel and future trial proceedings.  In the end, the Chamber gave Karadžić most of what he wanted – a delay into next year (trial to resume in March) and the continued right to represent himself.  The Chamber further ruled that stand-by counsel will be appointed.


On the surface, the decision seems to be in the best interests of justice and effective at maintaining the integrity of the proceedings.  In the first place, the Tribunal avoided the unseemly result of continuing the trial without the defendant in the courtroom and no attorney in his stead.  At the same time, the right of self-representation, which the Tribunal considers "fundamental," albeit not absolute, has been respected and preserved.  The defendant, as requested, has been given additional time to prepare and stand-by counsel has been appointed – if Karadžić remains obstructive in March, counsel will be ready to take over.


On closer inspection, however, the decision appears quite flawed.  For one, the timing seems suspect.  Over the past year, there have been ominous signs concerning Karadžić's pre-trial preparation.  For example, Karadžić has openly devoted significant pre-trial time and resources establishing the existence of a supposed July 1996 agreement with former American special envoy Richard Holbrooke granting him immunity from prosecution, despite its marginal value based on court rulings.  Moreover, as the Trial Chamber noted in its decision:

[The] Accused  . . . gave some indication that he intends, in the course of his defense, to 'correct' what has been adjudicated by this Tribunal in prior cases concerning other accused persons, which is something he has stated during status conferences held during the pre-trial stage, and show who was responsible for 'the outbreak of the war.'  The Trial Chamber reiterates that the Accused's task is only to address the allegations in the indictment against him, and to challenge the evidence brought by the Prosecution in support of those allegations, and that he should be focusing his preparation accordingly.  He cannot reasonably claim to require many more months to prepare for trial when his preparation includes matters that are not, and will not be, the subject of the trial.

Clearly, the Tribunal was on notice during the pre-trial phase that Karadžić would not likely be ready for trial in October.  So that was the time to appoint stand-by counsel.  With a little foresight and initiative, the Tribunal could have accomplished months ago what it did yesterday – preserve and respect the right of self-representation while giving an attorney time to prepare for trial should the defendant choose to engage in obstruction tactics on the eve of trial (and it could have communicated with that attorney in the interim to gain a more objective assessment of the pace of pre-trial preparations).


Instead, the Tribunal delayed and was inexplicably caught flatfooted.  And given the time pressures (especially in light of the Tribunal's completion strategy), it granted what amounts to less than a four-month extension.  But the defendant had previously stated he needed an additional eight months to prepare (two months ago he asked for a ten-month continuance).  In effect, the Tribunal halved his requested extension, which seems at cross-purposes with its other efforts to appear fair.  Moreover, given the case's complexity and its voluminous body of evidence, it seems difficult to imagine that less than four months (to March 1st) will be sufficient for appointed counsel to prepare.  Perhaps the Chamber could have split the difference and accorded the defendant and his counsel at least a six-month continuance.


And if the Tribunal had ample warning that Karadžić would be boycotting his trial, why did it have the prosecution deliver its opening statement last week?  If it had an inkling it would likely delay the proceedings another few months, what was the point of getting underway and then disrupting the flow of trial?   Wouldn't it have made more sense to hold yesterday's hearing first?  On many levels, the Tribunal's handling of this mess smacks of judicial incompetence.


It is not as if such issues are new to the Tribunal.  Slobodan Milošević exploited his right to represent himself by delaying the proceedings until the Tribunal was forced to appoint him counsel late in his four-year trial.  In the meantime, so much time had elapsed that he died before a verdict and was thus able to evade final justice.  And the Tribunal has been dealing with obstruction tactics during the ongoing two-year-old trial of Vojislav Šešelj, who also serves as his own attorney.  At least in those cases Milošević and Šešelj were trained as lawyers.  There is no good reason why the Karadžić Trial Chamber (and the Pre-Trial Judge for that matter) should have been asleep at the switch during the pre-trial phase in this case.

In the pantheon of due process rights, self-representation is not at the apex.  No less, it must be counterbalanced with the public's right to a speedy and fair trial.   In this instance, the Tribunal should have been much more vigilant and far less deferential in the lead-up to yesterday's decision.  The Hague's high-profile Balkan defendants understand quite well that justice delayed is justice obstructed and they rightly roll the dice that it will be justice denied.  It is difficult to excuse the Tribunal's judicial wing when it serves as an unwitting accomplice to that strategy.


The full decision of the ICTY can be found here. Professor Gordon can be contacted through his web page.



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