The latest delay in the trial of Radovan Karadzic at the International Criminal Tribunal for the former Yugoslavia (ICTY) has raised questions about whether the tribunal is penalizing the former Serbian leader for choosing to represent himself during his war crimes trial in The Hague.

The trial is on hold while the appeals chamber reviews a submission by the defence asking for more time to prepare. Last month, ICTY President, Patrick Robinson, ruled that the Registrar’s decision to restrict legal aid funding to the defence was “completely unreasonable.” Robinson said Karadzic should be allowed funds to cover eight assistants, working full-time. Karadzic is now asking for a postponement to make up for time lost following the Registrar’s original ruling.

The debate over trial-phase funding is the latest in a series of appeals lodged by Karadzic’s team. Other points of contention have been the amount of time allotted to the defence to prepare for trial, the amount of pre-trial funding made available to the defence, and the appointment of standby counsel, where the court appointed British barrister Richard Harvey to “represent the interests of the Accused” against Karadzic’s wishes.
 

"Hostility"
“I don’t think the institution is being very upfront about its own hostility to Karadzic’s self-representation,” says ICTY defence counsel Wayne Jordash. “There’s a real risk that Karadzic, by choosing to represent himself, is effectively being pushed into a situation where he cannot represent himself effectively: you have an accused…being asked to proceed to trial with undue haste, combined with the possibility that if he’s not able to conduct the proceedings in a way that the court appreciates, they’ll impose a counsel who he has had nothing to do with.”

Peter Robinson, legal advisor to Karadzic, puts it more bluntly:

“The Registrar is totally prejudiced against people who represent themselves - I would say more than prejudiced, paranoid - and the experience they’ve had with Milosevic and Šešelj probably is the reason for that.”

“There’s a general assumption that anybody who chooses to exercise their right to self-representation is doing so to be obstructive,” adds Jordash. This means, he says, that any delay in proceedings is attributed to the accused when, often, it’s due to the size of the prosecution case.

“Instead of these institutions regarding their primary function as the conduct of fair trials, they hang on to the notion that the primary function is somehow to create a historical truth, and so the prosecution set out to prove a whole war and attribute the consequences to a single accused. And as a consequence of that, the trials take an inordinate amount of time.”

"Political platform"
But, says former ICTY chief prosecutor Richard Goldstone, the practical problems raised by self-representation can’t be ignored: 

“Self-representation certainly makes the work of the judges and the prosecutor more difficult. It may be difficult to run the trial efficiently as the consent of the accused to making concessions or avoiding unnecessary and long formal evidence may be difficult, if not inappropriate, to seek. There is also the inability to cross-examine either efficiently or to the point…Finally, there is the wont of self-representing accused to use the court as a political platform.”

Regarding the questions of standby counsel, Goldstone says, “I fully agree that the defendant should be consulted…The problem is that it is highly unlikely that the defendant will agree to the appointment, let alone participate in choosing who they should be.”

Hybrid model
Bjorn Elberling wrote his doctorate on the position of the defendant in international criminal proceedings. He agrees that “many of the [judges’] decisions amount to punishment of the self-represented accused…[and are] not really consistent with the fact that they say they give you the right to represent yourself.”

But, Elberling says, many international criminal trials - where the alleged crimes took place within the course of complex political events - “call for an active role for the defendant.” Legal advisor Peter Robinson says this is precisely the issue in the Karadzic case: “Dr. Karadzic wants to represent himself because he wants the floor during the trial. He feels he knows these events in Bosnia better than any lawyer could learn them and he feels that…if he represents himself, he’ll be able to be heard every day to put forth his side of the story.”

Elberling proposes that a way to reconcile the accused’s desire to participate in the trial, with the courts’ concerns about delays and obstruction, would be to institute a kind of hybrid system, where the accused is represented by counsel, but still has “the right – the right, not the privilege – to make submissions in court or ask questions, cross-examine witnesses or whatever. In a couple of cases at least, this could lead to defendants choosing not to represent themselves.”