The International Criminal Law Bureau : Blog

Guest Post: Radovan Karadžić’s Refusal to Attend Trial and the Options available to the Trial Chamber

Guest post by Niamh Hayes:

As has been well-documented, Radovan Karadžić refused to appear on the opening day of his trial on Monday, 26 October. Dr. Karadžić outlined his reasons for not doing so in a letter to the Tribunal on 21 October. In summary, Dr. Karadžić chose not to appear in protest at the Tribunal’s refusal to allow him sufficient time to prepare his defence. The case against him is lengthy and complex, involving what could fairly be described as an overwhelming flood of documentation and evidence. In May, the Prosecution belatedly completed their disclosure of over 1 million pages of evidence, a mere five months before the commencement of the trial. It is questionable whether any defence team could fairly be expected to wade through such a volume of material in the time allowed, to say nothing of familiarising themselves to the point of adequate preparation for trial. Both the Trial Chamber and Appeal Chamber refused Dr. Karadžić’s request for an additional ten months to prepare for the trial.

The Tribunal’s decisions in this regard and whether they amount to penalising Dr. Karadžić for having the unmitigated temerity to insist on exercising his acknowledged right to self-representation have been discussed elsewhere and could easily form the subject of an entire post. What is worth noting is that, despite the almost uniform characterisation by the media of Dr. Karadžić’s absence this week as intentionally disruptive, politically motivated or equivalent to the obstructive tactics employed by Slobodan Milošević or Vojislav Šešelj, up to this point he has shown exemplary and consistent co-operation with the Tribunal. Perhaps a better comparison would be with Charles Taylor, who famously refused to attend court and fired his defence team on the opening day of his trial in June 2007, after many months of failed motions to be granted adequate time or facilities for his defence. Taylor also submitted a letter to the Court which explained his decision not to attend the trial, and outlined fair trial concerns quite similar to those highlighted by Dr. Karadžić last week. The letter famously concluded “I choose not to be the figleaf of legitimacy for this process.”

While there was an inevitable delay to the commencement of the proceedings against him, which eventually began in January 2008, Mr. Taylor’s concerns regarding the time and facilities for his defence were addressed and he has since proven to be entirely co-operative with the Court and the trial process.

The urgent question now facing the Tribunal is this: what legal options are available to the Chamber in light of a defendant’s refusal to attend the trial? What will the potential consequences be for Dr. Karadžić’s right to represent himself following his decision to remain in his cell in the Detention Unit on Monday? At the close of Tuesday’s hearing, Judge Kwon noted that, following the delivery of the remainder of the Prosecution’s opening statement on Monday, there will be a hearing on Tuesday 3 November to address the matter of Dr. Karadžić’s continuing absence from court. He invited submissions on the following issues: 1) proceeding in the absence of the accused or any lawyer representing him; 2) the imposition of assigned defence counsel; 3) appointing amicus curiae in the case; 4) the length of time which will be necessary for any assigned counsel to prepare for the case, and 5) any other options. It is worthwhile to address each of these issues in turn.

1)      Proceeding with the trial in the absence of the accused or counsel to represent him:

As Professor William Schabas has pointed out, the Rules of Procedure and Evidence at the ICTR have been amended to address the issue of trials in absentia. Although the principles of Rule 82bis have been held to apply to the ICTY, the Rules of Procedure and Evidence have not yet been amended to include a substantially similar provision. In any event, the text of Rule 82bis makes it clear that there are three requirements for continuation of trial proceedings where an accused refuses to appear:

i) the accused has made an initial appearance under Rule 62;

ii) the accused has been notified by the Registrar of the requirement to be present at trial, and

iii) the interests of the accused are represented by counsel [emphasis added].

If Dr. Karadžić had elected to be represented by counsel rather than self-represented, then the trial could proceed in his absence on the basis that such counsel could make interventions, assess the evidence presented by the Prosecution and cross-examine witnesses. In the absence of both the defendant and any counsel to represent his interests, however, it is clear that trial proceedings beyond the opening statement cannot continue.

2)      Assignment of counsel:

Last November, the ICTY adopted Rule 45ter, which states that the Trial Chamber “may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”.  The leading source of instruction on this issue (although it pre-dates the adoption of an explicit rule) is the trial of Slobodan Milošević, in which a variety of permutations and combinations of self-representation, assigned counsel and amici curiae were employed by the Tribunal. The Trial Chamber initially assigned counsel to Mr.  Milošević on the grounds of his ill-health, which had caused significant delays to the trial, rather than obstructionist conduct.

The initial Order on Modalities which subjugated Mr. Milošević’s ability to represent himself to the discretion of the Trial Chamber and gave priority to the assigned counsel proved unworkable due to counsel’s inability to obtain meaningful instruction from the accused and the refusal of many defence witnesses to co-operate with counsel who had been imposed on Mr. Milošević against his wishes. The Appeals Chamber later reversed the Order on Modalities, acknowledging that “any restrictions on [the right to self-representation] must be restricted to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial”. Following the Appeals Chamber decision, the assigned counsel effectively functioned as ‘hybrid counsel’, continuing to file motions and make submissions on legal and evidentiary issues but ultimately taking a back seat to Mr. Milošević’s continuing self-representation.

It seems highly likely that counsel will shortly be assigned to defend Dr. Karadžić “in the interests of justice”, given that – from the Trial Chamber’s perspective – should his refusal to attend the trial turn out to be indefinite, failure to assign counsel would effectively suspend the proceedings against him. Dr. Karadžić’s current legal advisors, with whom he has a strong relationship, are unlikely to agree to act as assigned counsel if they believe that to do so would be against his interests; in which case, it remains to be seen whether Dr. Karadžić would agree to give instructions to or co-operate with other assigned counsel.

3)      Appointing an amicus curiae:

At the outset of the Milošević trial, the Trial Chamber chose to appoint amici curiae to assist it in the proper determination of the case and to ensure fairness in the proceedings. Although the amici curiae had the power to cross-examine witnesses and draw the Chamber’s attention to exculpatory evidence, they were not intended to put forward a substantial defence case or provide any form of representation. In effect, they provided a safety net to ensure that, although Mr. Milošević was representing himself, his lack of legal expertise would not give rise to any detriment to the fairness of proceedings. The role of amici curiae was quite successful in that case prior to the imposition of assigned counsel, although it is unclear what role they could play in the Karadžić trial. As mentioned above, he is ably assisted by several legal advisors, and in a recent decision of the Trial Chamber, a number of those advisors were granted the right to be present in court during trial proceedings, while Peter Robinson was granted a limited right of audience before the Chamber to intervene on legal and procedural issues. An amicus curiae, by definition, would not be capable of providing a substitute for self-representation or assigned counsel to enable the trial to proceed in Dr. Karadžić’s absence, and would appear to be superfluous to requirements in the event that the trial re-commences with Dr. Karadžić represented either in person or by assigned counsel.

4)      Necessary delay to allow for assigned counsel’s preparation for trial:

It is unavoidable that a significant delay will be engendered by a decision to assign counsel in the case. As mentioned above, Dr. Karadžić’s existing legal advisors, who are familiar with the legal and factual issues in the case, are likely to refuse to act as assigned counsel. It is inevitable therefore that any lawyer who does agree to act as assigned counsel will require a substantial period of time to adequately familiarise themselves with the case and prepare for trial, a task which will be all the more difficult and time-consuming – if not impossible – should Dr. Karadžić refuse to co-operate or provide them with instructions. Indeed, it would be completely irresponsible for any lawyer to agree to proceed immediately without insisting on such a delay.

The prospect facing the Trial Chamber, therefore, is effectively to choose between six of one and half a dozen of another. Dr. Karadžić recently submitted that he would require an additional ten months to be fully prepared for trial. Any assigned counsel will require a minimum of several months to bring themselves sufficiently up to speed for the Prosecution’s case to proceed. Dr. Karadžić has made it abundantly clear that he would be happy to attend the trial once he is sufficiently prepared, which raises the spectre of a delay of several months, at the end of which both Dr. Karadžić and the assigned counsel are capable of appearing in court. In light of such a prospect, the recent decisions of the Trial and Appeals Chambers refusing to extend the start date of the trial seem largely redundant. This would also raise issues as to whether it would still be in the interests of justice to insist on the continuation of assigned counsel after the point at which Dr. Karadžić is again willing to attend court.

5)      Any other options:

Some commentators have supported the idea that the Trial Chamber could reach a compromise whereby it agrees to allow Dr. Karadžić an additional period of months to prepare his defence, while at the same time assigning standby counsel to begin preparing for trial and to be capable of stepping in to provide a satisfactory form of self-representation if Dr. Karadžić is unable or unwilling to appear at the end of that period. However, the Trial Chamber may be unwilling to approve of such an arrangement only weeks after issuing a decision declaring that Dr. Karadžić had sufficient time to prepare his case for trial.

The options now facing the Trial Chamber are not particularly enticing. However, it is to be hoped that its decision will be reached with the highest regard for the fairness of the trial and the rights of the accused, rather than penalising supposed ‘obstructionism’ or satisfying the stringent time pressures imposed by the Completion Strategy. The Tribunal has endured some deeply disrespectful and disruptive behaviour from other defendants who availed of the right to self-representation for negative reasons. If the current impasse can be negotiated, the Karadžić trial may provide a positive example, similar to that of Charles Taylor, where addressing concerns which are raised through necessarily dramatic means ultimately facilitates a fair, prepared, courteous and co-operative defence.

Niamh Hayes, LLB, LLM, is a Ph.D candidate and IRCHSS Postgraduate Scholar at the Irish Centre for Human Rights, and is currently interning with the Karadžić Defence Team at the ICTY.