Mark Ellis, executive director, International Bar Association
Opinion: Self-representation is a privilege, not a right
02 November 2009
24 June 2013
14 January 2014
1 July 2013
29 January 2014
19 June 2013
Radovan Karadzic is among the highest-ranking officials brought to trial by the International Criminal Tribunal for the Former Yugoslavia (ICTY).
The former President of Republika Srpska, head of the Serb Democratic Party and Supreme Commander of the Bosnian Serb Army is charged with the genocide of more than 7,000 Bosnian Muslim men and boys in Srebrenica and the responsibility for killing thousands of civilians during the 44-month siege of Sarajevo.
Karadzic’s trial will be the most important in shaping the ICTY’s legacy.
The trial will also be notable for Karadzic’s decision to represent himself. It renews a central dilemma for international courts on how to conduct fair and expeditious trials, while not impinging on the right of the accused to self-representation.
Karadzic seems to be adopting a proven formula where maverick political leaders who find themselves before an international court insist on self-representation and then flagrantly exploit this right by either boycotting or disrupting court proceedings. They refuse to comply with court orders, intimidate witnesses, insult judges, fail to file requested court documents, ignore judges’ rulings, and generally conduct themselves in a highly belligerent and obstructionist manner.
Their primary objective is to use the court as a political platform to evoke a sympathetic response from their constituency back home. Much to the consternation of many observers, international courts have been viewed as mollifying the actions of these high-profile defendants rather than focusing on upholding justice.
The right to self-representation is well-grounded in international law. A number of international and regional treaties interpret the right to self-representation as a fundamental right. The ICTY’s own statute entitles the accused “to defend himself in person”. And in the Milosevic case, the ICTY found that the right to self-representation is “an indispensable cornerstone of justice.”
However, it is equally important to note that, although laudable, the right to self-representation is not absolute. It is a qualified right that can be restricted or even denied in certain circumstances.
Thus, if Karadzic continues to boycott his trial, in the interest of justice the court could proceed without him. There is no tenet in international law that prevents a trial in absentia when the accused forfeits his right to be present at that trial. The court simply needs to ensure that Karadzic has the opportunity to follow the proceedings from his cell. The court could also assign standby counsel or amici curiae to ensure that the interests of the accused are represented. Either intervention would provide the minimum requirements to protect the rights of the accused and ensure the proceedings are conducted fairly.
The appointment of standby counsel would also be appropriate if Karadzic decides to return to court but subsequently disrupts court proceedings. The ICTY recently amended its rules, likely in anticipation of dealing with Karadzic, which now allows the court to assign counsel to represent the accused. In essence, it reaffirms the duty of the court to conduct a fair and expeditious trial, even if it means superseding the right to self-representation.
Unless the indicted Ratko Mladic is apprehended, the trial of Karadzic will be the ICTY’s last major case. The legacy of the trial should be to contribute to the system of international justice that upholds accountability through a fair and independent judicial process. It should not be remembered for having been a miscarriage of justice where the court process was again hijacked by the defendant’s obstinate and disruptive behaviour.