The Right to be Present: Fundamental but not Absolute

Those standing trial in front of the ICTY have the statutory right to be present at their own trials (art. 21(4)(d) ICTY Statute). Moreover, the accused is entitled to adequate time to prepare for his trial (art. 21(4)(b)). While the right to be present at one’s own trial is a fundamental one, Judge Kwon remarked on Tuesday, it is not absolute. Indeed the Human Rights Committee (see Monguya Mbenge v. Democratic Republic of the Congo, Communication No. 16/1977) confirms that one may, when voluntary and unequivocal, waive the right to be present. Karadzic had notice of the beginning of the trial and decided not to show up.

One can, however, infer his seriousness to defend himself in front of the tribunal rather than boycott the court as he has assembled a legal team of 30 international lawyers to prepare for his defence. Taking into account the amount of evidence involved in the case and the necessary time to prepare a full defence, the court’s Tuesday finding that Karadzic unequivocally waived his right to be present is questionable. Nevertheless, Judge Kwon’s finding of an unequivocal waiver leads to important consequences with regards to trials in absentia and assigned counsel.

The Court’s Problematic Options

Amongst 5 options outlined by Judge Kwon at the end of proceedings on Tuesday, the likely possibilities that could occur in the continued absence of Karadzic are: a) continue the trial without Karadzic and without any defence counsel; b) appoint counsel on behalf of Karadzic; or c) appoint an amicus curiae. There are major problems that arise with at least two of these options.

Continuing the trial without Karadzic or any assigned counsel would make the trial patently unfair, regardless of whether he waived his right or not. Confidence could be lost in the administration of the ICTY. The adversarial process, a legitimizing aspect of the court, would fall by the wayside.

Assigning counsel is also problematic. Karadzic could, as in the Šešelj case, challenge the appointment leading to further delays. In addition, unless the court adjourned for some time, counsel would not have sufficient time to prepare an adequate defence.

The ICTY is heavily criticized for overstepping the boundaries imposed by its statute and Rules of Procedure and Evidence. International bodies are limited to what is expressly bestowed onto them. Kevin Jon Heller, a Karadzic legal adviser, believes that the court is not authorized to hold the trial in Karadzic’s absence, even if counsel has been assigned to protect his interests. The ICTY Rules of Procedure, he argues, do not have the same addition that the ICTR made (Rule 82 bis) allowing for trials in absentia.

A Different Possibility

Rather than risking the fairness of the trial by assigning an ill-prepared lawyer or by proceeding without any defence, the court could hold a proceeding to determine whether Karadzic is in contempt of court. The high profile nature of this case is further incentive for the court to ensure the appearance of fairness and justice, which would engender respect for international criminal tribunals in general. A finding of contempt would punish him and potentially compel him to appear.

Proceeding at trial without the accused should only be a last resort, if used at all. The court should explore an avenue that prevents Karadzic from taking advantage of the court and its rules, while still ensuring that he benefits from a fair trial. Upholding the principles of legality and the rule of law further legitimizes the international criminal order. However, international criminal tribunals need coherent and transparent rules of procedure in order for trials, such as Karadzic’s, to be deemed fair.

You can follow the Karadzic trial this Monday, November 2^nd at 9 A.M. G.M.T. + 1 by watching the ICTY’s live feed: www.icty.org. Thanks to Gerard Kennedy, student at Queen’s University Faculty of Law, for his insight.