Judges Appoint Karadzic Standby Counsel

Counsel will step in if Karadzic continues to boycott trial after it resumes in March.

By Rachel Irwin in The Hague (TU No 623, 6-Nov-09)

Judges in the Hague trial of Radovan Karadzic have appointed a standby counsel who will step in to represent the former Bosnian Serb leader if he continues to boycott his war crimes proceedings.

The tribunal will resume on March 1, 2010 to give the standby counsel time to prepare to take over the case, judges wrote in the November 5 decision. While they upheld Karadzic’s right to represent himself, if he fails to appear in court or “obstructs the proper and expeditious conduct” of the proceedings, then he will “forfeit his right to self representation” and the counsel will take over the case completely.

For now, however, the only real change in Karadzic’s situation is that he will have more time to prepare – which is precisely what he has been asking for and why he refused to attend his trial in the first place.

“Essentially, the trial chamber came back and said, ‘We won’t give you ten months [like you wanted], [but] we’ll give you four,’ ” said Kevin Jon Heller, one of Karadzic’s legal advisers and a senior lecturer at Melbourne Law School.

“From my perspective, nothing has changed for the defence team.”

When the trial reconvenes in March, Karadzic will still be able to deliver opening statements, question witnesses and address the court directly.

In the meantime, the judges said that Karadzic and his team of legal advisers will continue to handle “day to day matters” like filing motions, while the yet-to-be-appointed standby counsel will “focus solely on trial preparation”.

Heller emphasised that the new standby counsel will only play a role in the proceedings if Karadzic refuses to turn up in March. Furthermore, Karadzic is not required to work with the new lawyer – though the judges suggested he do so.

“The trial chamber encourages the accused to discuss his defence and cooperate fully with the appointed counsel, so that he or she can make most effective use of the time available for preparation,” the judges wrote.

Karadzic, the president of Republika Srpska from 1992 to 1996, is charged with some of the worst atrocities of the Bosnian war. After evading arrest for 13 years, he was finally apprehended in July 2008, while he was living in Belgrade under an assumed name and posing as an alternative healer.

He is accused of planning and overseeing the siege of Sarajevo that left nearly 12,000 people dead, as well as the massacre of almost 8,000 men and boys at Srebrenica in July 1995.

The indictment – which lists 11 counts in total – alleges that he is responsible for crimes of genocide, persecution, extermination, murder and forcible transfer which “contributed to achieving the objective of the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory”.

How Karadzic will respond to this latest development remains to be seen. His primary legal adviser, Peter Robinson, told IWPR that he spoke to the accused briefly on the phone after the decision was released.

“We are in the process of deciding on our strategy over the coming days,” Robinson said, declining to comment further.

Heller, who has not yet spoken to the accused, said the decision “was the best we could have expected.

“Speaking for myself, I would certainly encourage him to accept [the decision] as, if not an ideal compromise, at least a reasonable one.”

At a hearing on November 3, a compromise seemed much less likely.

The judges had already verbally reprimanded Karadzic for not attending the first day of his trial on October 26 or the prosecution’s opening statements held on October 27 and November 2.

“We repeat our warning that there are circumstances where the chamber may proceed in the absence of the accused and may assign counsel to the case,” said presiding Judge O-Gon Kwon on October 27.

At the November 3 hearing, Karadzic appeared in court for the first time since his trial began.

“I don’t want to boycott [the trial] but I can’t take part in something that is bad from the start,” Karadzic told judges, reiterating his request for more time.

“It is the trial chamber, not the accused, [which] determines readiness for trial,” Judge Kwon responded, adding that Karadzic’s request for an additional ten months of preparation time had already been rejected by both trial and appeals judges.

The ensuing discussion covered several scenarios, including the immediate assignment of a lawyer who would take over the case completely, continuing the trial without Karadzic or any lawyer at all, or even using force to bring Karadzic into the courtroom.

“If the accused is brought in by force, is that any different than proceeding in his absence, if he won’t cooperate?” Judge Kwon asked prosecutors.

Some observers were surprised by the judges’ decision.

“I thought the chamber was going to come down harder on Karadzic,” said Gregory Gordon, a law professor at the University of North Dakota.

What they came up with instead was a “middle ground” approach, he said.

“What’s clever about the decision is that while it respects the right to self representation, it also prepares for what might happen if Karadzic continues to obstruct,” Gordon said.

And even if the judges had decided to appoint a defence lawyer to take over straight away, it still would have resulted in a delay – and probably a much lengthier one the than the four months given to the standby counsel, he said.

“If they had stripped him of his right to self-representation now, how much would that change things?” he added.

Nick Kaufman, a former prosecutor at the tribunal, agreed that the judges came up with a compromise that addressed the needs of everyone involved.

“I think the decision strikes a fair balance between the desire of the defendant to have additional time to prepare his case on the one hand, and the desire of the prosecution on the other hand to have counsel appointed in order to prevent any further delay to the proceedings,” he said.

The appointment of a standby counsel should have been done much earlier, Gordon said.

While Karadzic was generally cooperative during the pretrial phase, he repeatedly expressed concern that the proceedings were moving too quickly and that he would not have enough time to prepare. In addition, the judges wrote in the November 5 decision that Karadzic has previously mentioned wanting to "correct" what has been established in previous trials and "show who was responsible for 'the outbreak of the war" - even though this goes beyond the scope of his indictment.

“What would have been the harm to appoint standby counsel if there was sense a few months ago that things were not proceeding as they needed to?”Gordon said.

Others, however, say this would not have been so easy.

"Karadzic has been cooperative and I don’t know that the chamber could have unilaterally said, ‘We anticipate that you are going to be obstructive and therefore we are going to ... impose counsel on you,’” said Luka Misetic, a defence lawyer at the tribunal.

Regardless of what could have been done in the past, the current compromise means that Karadzic will have second chance to present a defence case.

And if he fails to do that, the judges have made it clear he will not have another opportunity.

“There is no question that if he continues his boycott on March 1, they will take away his right of self-representation and the standby counsel [will] become appointed counsel,” Heller said.

Rachel Irwin is an IWPR reporter in The Hague.