On the 26th October 2009 the trial of Radovan Karadzic was due to commence at the International Criminal Tribunal for the Former Yugoslavia. (‘the ICTY’) During the Bosnian war, 1992 – 1995, Karadzic was the political leader of the Bosnian Serbs. The allegations against him include responsibility for the bombing of Sarajevo and the massacre of Srebrenica in which some 7,000 Bosnian Muslim men were killed. For the families of many who were killed it is the chance to see a man they view as responsible for some of the blackest crimes of the modern age, brought to justice.
For Dr Karadzic and his sympathisers, the trial provides the opportunity for him to rebut what they say are lies told by western governments and media about the events of the war. For the ICTY itself the trial provides an opportunity to repair the damage to it’s reputation caused by the lengthy delays in the trial of Slobodan Milosevic, proving that it can conduct a trial of a political leader within a reasonable period of time.
Yet on day one of the trial Dr Karadzic refused to appear. The implications of the defendant’s refusal to appear might not have been so profound had he not decided to follow Milosevic and other high profile defendant in representing himself. As a result, in his absence no one appeared for the defence. The Judges have decided to press on with the trial and are likely to impose defence counsel on him. These defence counsel will be completely new to the case and have no cooperation from the defendant. The implications for the trial will be profound.
Those who have not been following the case might assume that Dr Karadzic is following Milosevic’s strategy of seeking to undermine the tribunal by treating it with distain. But matters are not quite so simple.
Following his capture in the summer of 2008 Dr Karadzic indicated his intention to represent himself at his trial. Having made this clear, he began to engage with the tribunal in a respectful and constructive manner. He sought the advice of experienced international lawyers. He advanced legal arguments, complied with Court orders and appeared to be preparing a proper defence to the charges. Indeed, when he last appeared in Court he made his submissions with reasonableness and even a touch of lawyerly suavity that suggested that he was serious about playing the justice game.
But even as these preparations for the trial were taking place, the Appeal Chamber was considering an application by Dr Karadzic that the commencement of the trial date to be put back for 10 months in order to give him more time to prepare. On the 13th October the application was refused. Shortly after Dr Karadzic wrote to the Court explaining that because he had been given insufficient time to properly prepare for the trial he would not participate in it.
The decision of a party to withdraw from a trial can be an act of petulance or an attempt at blackmail. But it can sometimes be a principled stand, made if that party feels that it will be impossible to receive a fair trial. In this case both the defendant and the Court have found themselves in a very difficult position.
The trial will inevitably be lengthy. Although the Prosecution promised a more focused set of charges than those preferred against Milosevic, the case is one of exceptional scope and complexity. The prosecution case alone will take a year to complete. In the minds of the judges must be the quite proper resolve not to allow a repetition of the delays in the Milosevic case which lasted over 4 years and in which the defendant died before verdicts could be reached.
Yet Dr Karadzic was under severe pressure of time to get to grips with the evidence in such a massive case. He pointed out to the Court that although he would have assistance from legal advisors, he would be conducting the case himself. The response of the Appeal Chamber was, essentially, that if you want to defend yourself that is your right but you must face the consequences.
As one of those who have been assisting Dr Karadzic in the legal aspects of his case I cannot claim to offer an independent view. Giving a self-representing defendant sufficient time to prepare for a massive trial and yet ensuring that it takes place expeditiously is a difficult balance to strike. However, this non-impartial witness cannot help wonder whether greater flexibility could have avoided a situation where a defendant who until this point has been a model of cooperation has decided not to participate. The empty dock will not enhance the legitimacy of the trial, so important if it is to be seen as fair and it’s verdicts are to be respected.
The difficulties that self-representation has caused in this case raises questions about whether defendants in war crimes cases should be allowed to represent themselves at all. The ICTY rules give defendants this right. But is the cost too high?
The principle that a defendant should be allowed to represent himself is considered a fundamental right in most common law countries. Yet other legal systems do not recognise it and insist that a defendant must be represented by lawyers.
Arguments against self-representation in war crimes trials are usually advanced on one of two grounds. First, it is said that self-representation enables defendants to grandstand in the Courtroom and make a mockery of the trial process. This criticism is ill founded. A professional tribunal should be able to cope with even the most strong willed of defendants. In the Milosevic trial the experienced judges had some success in reigning in the defendant, not least through the novel judicial technique of simply switching off his microphone. In contrast some of the judges in the trial of Saddam Hussein lacked the ability to quell either the defendants or their lawyers, failing to ensure proceedings were conducted in an atmosphere of fairness and dignity.
The better argument is that the complexity of trials of political leaders means that there is an overwhelming practical need for experienced defence lawyers.
Even when defence lawyers have been involved, trials in ICTY and ICTR, (it’s sister Tribunal, set up to try those responsible for grave human rights violations in Rwanda) have been criticised for their length. But when a defendant represents himself delays can increase. Delay is inimical to justice: the memories of witnesses fade, victims die, and political tensions fester whilst trials drift into months and even years.
In the case of Milosevic many felt cheated by the lack of a verdict. His supporters were convinced that the length of the trial had contributed towards his death whilst others pointed out that his determination to represent himself despite his poor health itself contributed to the length of the trial and so, perhaps, to his untimely end.
The legacy of self representation at the ICTY will have to be carefully considered by other international tribunals. Meanwhile, the absence of Dr Karadzic from his trial will create it’s own difficulties. The judges must be seen to conduct a fair trial, even in the absence of the defendant. In the Balkans the tendency for perceived injustices to shape the future is only too well known.