It appears that the International Criminal Tribunal for the Former Yugoslavia (ICTY) is going to try Radovan Karadzic, the so-called architect of the Bosnian war’s genocide, in absentia. After hiding for over a decade following two 1995 indictments for the siege on Sarajevo and the massacre at Srebrenica, Karadzic was finally arrested and brought into custody at the Hague in July of 2008. Despite the fact that his indictments are over a dozen years old and he has gathered a team of lawyers, he is claiming that he has not had time to prepare his defense. Perhaps having learned a lesson from the massive delays in court proceedings caused by Slobodan Milosevic’s boycotts and disruptive and domineering showmanship when in the courtroom, the ICTY has declared that the show will go on without him. After stalling on October 26 when Karadzic refused to show, the trial began on October 27 despite his absence.
There is great debate over the legality of “trials in absentia” or trials in which the accused is not present. Importantly, the scenario most dreaded and to be prevented by rules against trials in absentia are situations in which the accused is not afforded the opportunity to defend herself. This is clearly not the case for Karadzic, who has had 14 years since his indictment and over a year since his arrest to prepare his defense. Nor has he been denied counsel, having employed a team of lawyers. Further, ICTY judges have made clear that they will appoint him attorneys to provide for his defense should he continue to boycott his trial. Factually, Karadzic’s situation is not the situation that rules against trials in absentia aim to guard against. Rather, Karadzic has been given both ample time and ample resources to mount his defense. It is Karadzic and not the court that presently obstructs this defense.
But what exactly do rules about trials in absentia say? What they don’t say is that you can’t hold court proceedings unless the accused is physically present in the court. Article 21 of the ICTY Statute-the rules that govern the court proceedings-outlines the rights of the accused and Article 21.4.d provides for the right of the accused “to be tried in his presence and to defend himself in person or through legal assistance of his own choosing.” Similarly, Article 14.3.d of the International Covenant on Civil and Political Rights (ICCPR) provides that the accused has the right “[t]o be tried in his presence, and to defend himself in person or through legal assistance of his own choosing.”
Few would claim in good faith that Karadzic has been denied this right. Indeed he is sitting very close to the courtroom in which he is being tried at the moment that I write this, and could enter it and proceed with his defense if he chose. And this is the key-he is making a choice to waive this right. Just as a person can waive her right to be represented by an attorney, Karadzic’s boycott is his waiver of his right to be present in the court room while he is tried.
International law contemplates the possibility that a fair trial can occur despite the absence of the defendant. Indeed, the defendant’s rights can be fully upheld even if she refuses to show up in court. Special emphasis is placed on the situation of an otherwise fair trial in which the defendant could be present but chooses not to be. The Human Rights Committee, the treaty body assigned with the task of articulating the details of the rights located in the ICCPR, has clarified in its General Comment 13 that it is possible to hold a trial without the accused present and still uphold all relevant rights of the accused as provided for under international law. Paragraph 11 of General Comment 13 clearly contemplates trials in asbentia and their legality when it states:
When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary.
It is no stretch to say that there are exceptional and justified reasons for proceeding with Karadzic’s trial without him. It is exceptional that he has been on the run for so long. The crimes he is accused of are certainly exceptional and are of the character and magnitude to compel his trial. That Milosevic’s trials were allowed to be stalled for so long by his antics should be deemed exceptional as well, and the ICTY is right to avoid such missteps in the Karadzic case.
As for justification, how much more does the court have to justify itself before it can start proceedings–should court personnel march to his jail cell and conduct the trial there? It would be another case if Karadzic had turned himself over to the court and then asked for an extension to prepare his defense. But he has little ground to ask for 8 more months to prepare given the lengthy delay that he has already caused. As time goes on, the court becomes more justified in beginning the trial without him, because his individual insistence on impeding the proceedings cannot hold out against the claims of both the victims of the war and the international community to see the facts of his case brought before the court.
Importantly, the Human Rights Committee has further elaborated as recently as April 2009 that situations parallel to Mr. Karadzic’s can justify trials in asbentia:
This provision [Article 14 paragraph 3] and other requirements of due process enshrined in article 14 cannot be construed as invariably rendering proceedings in absentia impermissible, irrespective of the reasons for the accused person’s absence. Indeed, proceedings in absentia may in some circumstances (for instance, when the accused person, although informed of the proceedings sufficiently in advance, declines to exercise his right to be present) be permissible in the interest of the proper administration of justice.
This 2009 Human Rights Committee communication repeats identical language from a 1983 Human Rights Committee public document, making it the prevailing legal interpretation of the issue at the time when Karadzic was indicted. In short, despite debate on the topic, the ICTY is likely entirely justified in beginning the court proceedings in spite of Karadzic’s boycott. This is good news for all who think that a decade and a half is enough to wait.
