Friday 23 October 2009

Karadzic to Boycott Trial

Radovan Karadzic has announced that he intends to boycott his trial due to begin Monday at the International Criminal Tribunal for the former Yugoslavia ( It’s not the first time this has happened at the ad hoc tribunals. I wrote on this earlier in the year, in my article: ‘In Absentia Proceedings before International Criminal Courts’, in Göran Sluiter & Sergey Vasiliev, International Criminal Procedure: Towards a Coherent Body of Law, London: Cameron May, 2009, pp. 335-380. Here are the relevant excerpts:

‘When I came back to Dublin I was courtmartialed in my absence and sentenced to death in my absence, so I said they could shoot me in my absence.’ Brendan Behan

Some defendants have chosen to boycott proceedings, as a form of protest against rulings by the bench. In May 2003, a Rule was added to the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda to address this issue:

Rule 82 bis: Trial in the Absence of Accused

If an accused refuses
to appear before the Trial Chamber for trial, the Chamber may order that the
trial proceed in the absence of the accused for so long as his refusal persists,
provided that the Trial Chamber is satisfied that:
(i) the accused has made his initial appearance under Rule 62;
(ii) the Registrar has duly notified
the accused that he is required to be present for trial;
(iii) the interests of the accused are represented by counsel.

There is no similar provision in the Rules of the International Criminal Tribunal for the former Yugoslavia, although the principles set out in Rule 82 bis have been judged to apply to that institution.[1] There is an equivalent provision in the Rules of Procedure and Evidence of the Special Court for Sierra Leone:

Rule 60: Trial in the Absence of the Accused

(A) An accused may not be tried in his absence, unless:
(i) the accused has made his initial appearance, has been afforded the right to appear at his own trial, but refuses so to do; or
(ii) the accused, having made his initial appearance, is at large and refuses to appear in court.
(B) In either case the accused may be represented by counsel of his choice, or as directed by a Judge or Trial Chamber. The matter may be permitted to proceed if the judge or trial Chamber is satisfied that the accused has, expressly or impliedly, unequivocally waived his right to be present. [2]

Several accused at the Special Court for Sierra Leone have boycotted the proceedings. A Trial Chamber said that

though in essence trial in the absence of an accused person is an extraordinary
mode of trial, yet it is clearly permissible and lawful in very limited
circumstances. The Chamber opines that it is a clear indication that it is not
the policy of the criminal law to allow the absence of an accused person or his
disruptive conduct to impede the administration of justice or frustrate the ends
of justice. To allow such an eventuality to prevail is tantamount to judicial
abdication of the principle of legality and a capitulation to a frustration of
the ends of justice without justification.[3]

Rule 82 bis of the Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda was adopted in the context of the refusal of an accused, Jean-Bosco Barayagwiza, to attend his trial. At the beginning of the trial, in October 2000, his counsel told the Trial Chamber of the International Criminal Tribunal for Rwanda that their client would not be attending the trial, and that he had instructed them not to represent him, all of this ‘based on his inability to have a fair trial due to the previous decisions of the Tribunal in relation to his release’. Barayagwiza personally issued a statement ‘refusing to associate himself with a show trial’ and insisting that ‘the ICTR was manipulated by the current Rwandan government and the judges and the prosecutors were the hostage[s] of Kigali’.[4]

The Trial Chamber declared that ‘Barayagwiza was entitled to be present during his trial and had chosen not to do so, and the trial would proceed nonetheless. The Chamber also stated that he would be free to attend whenever he changed his mind.’ Counsel were ordered to continue representing Barayagwiza.[5] They attended at court until February 2001, and then informed the Trial Chamber that their mandate had been terminated. A new counsel, Giacomo Barletta-Calderera, was soon appointed for Barayagwiza, and he represented Barayagwiza for the duration of the trial, but Barayagwiza never attended personally.[6]
Barayagwiza unsuccessfully raised the matter on appeal, where he argued that nothing in the Statute or the Rules authorised proceedings in his absence. During the appeals hearing, his counsel suggested that the Tribunal might have brought him to court physically in order to ensure his presence at trial.[7] Barayagwiza noted that Rule 82 bis had been adopted well after his trial had begun, and could not therefore have a retroactive effect. The Appeals Chamber observed that the Secretary-General’s report of 3 May 1993 did not oppose the idea that a trial might proceed in the absence of a defendant who refused to appear. The famous reference in the report to in absentia trials was addressed to individuals who had not yet been apprehended by the Tribunal.[8] According to the Appeals Chamber, an accused person can renounce to presence at trial providing this is ‘libre, non équivoque (même si elle peut être expresse ou tacite) et faite en connaissance de cause’.[9] It noted that these were the same criteria applicable to renunciation by a suspect of the right to be assisted by counsel during questioning, pursuant to Rule 42 (B),[10] and to the validity of a renunciation by an accused person of the protection against self-incrimination.[11] The Appeals Chamber said an accused must have received notice of the date and place of the trial, and of the charges against him or her, and the right to be present at trial. Moreover, where an accused who is in custody refuses to attend, the interests of justice require that counsel be designated.[12] In the specific case of Barayagwiza, the Appeals Chamber concluded that

Barayagwiza a exprimé de manière libre, expresse et non équivoque sa
renonciation au droit d’être présent aux audiences de son procès, après avoir
été dûment informé par la Chambre de première instance tant du lieu, de la date
du procès et des charges retenues contre lui que de son droit d’assister à ces
audiences et de la nécessité de sa présence. À ce stade de l’analyse, la Chambre
d’appel ne peut discerner une quelconque erreur dans l’appréciation faite par la
Chambre de première instance du refus de l’Appelant de se présenter en

Barayagwiza’s appeal on grounds that he had not been present at trial was therefore dismissed, given that he had voluntarily waived his right.

[1] Simić sentencing judgement , supra note 110, para. 8.
[2] The provision, adopted 1 August 2003, contains slight but insubstantial changes from the original version adopted on 7 March 2003.
[3] Ruling on the Issue of the Refusal of the Third Accused, Augustine Gbao, to Attend Hearing of the Special Court for Sierra Leone on 7 July 2004 and Succeeding Days, Prosecutor v. Gbao, Case No. SCSL-2004-15-T, T. Ch., SCSL, 12 July 2004, para. 8. See also Ruling on the Issue of Non-Appearance of the First Accused Samuel Hinga Norman, the Second Accused Moinina Fofana, and the Third Accused, Allieu Kondewa at the Trial Proceedings, Prosecutor v. Norman et al., Case No. SCSL-04-14-PT, T. Ch., SCSL, 1 October 2004; Ruling on the Issue of the Refusal of the Accused Sesay and Kallon to Appear for their Trial, Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, T. Ch., SCSL, 19 January 2005.
[4] M. Momeni, ‘Why Barayagwiza is Boycotting his Trial at the ICTR: Lessons in Balancing Due Process Rights and Politics’, (2001) 7 ILSA Journal of International and Comparative Law 315, at 315-316.
[5] Decision on Defence Counsel Motion to Withdraw, Prosecutor v. Barayagwiza, Case No. ICTR-97-15-T, T. Ch. I, ICTR, 2 November 2000. Similarly, Gbao – Decision on Application to Withdraw Counsel, Prosecutor v. Gbao, Case No. SCSL-04-15-T, T. Ch., SCSL, 6 July 2004.
[6] Judgment and Sentence, Prosecutor v. Nahimana et al., Case No. ICTR-99-52-T, T. Ch. I, ICTR, 3 December 2003, para. 83.
[7] Judgment, Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, A. Ch., ICTR, 28 November 2007 (‘Nahimana et al. appeal judgement’), para. 89, footnote 186. The option of forced appearance was briefly considered by another Trial Chamber but opposed by defence counsel: Transcript, Prosecutor v. Rwamakuba, Case No. ICTR-98-44-C-I, T. Ch. III, ICTR, 6 June 2005, at 3.
[8] Nahimana et al. appeal judgement, supra note 118, para. 98.
[9] Ibid., para. 110.
[10] Ibid., citing Decision on Prosecutor’s Motion for the Admission of Certain Materials under Rule 89(C) of the Rules of Procedure and Evidence, Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, T. Ch. I, ICTR, 14 October 2004, paras. 18 and 19.
[11] Ibid., citing Decision on Vidoje Blagojević’s Oral Request, Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, T. Ch. I (Section A), ICTY, 30 July 2004, at 8; Decision on Motion for Exclusion of Statement of Accused, Prosecutor v. Halilović, Case No. IT-01-48-T, T. Ch. I (Section A), ICTY, 8 July 2005, paras. 22 and 23.
[12] Ibid.
[13] Ibid., para. 116.

1 comment:

Professor Charles C. Jalloh said...

Dear Bill, thanks for your usual insights on hot international criminal justice topics.

Your post on the Karadzic trial reminded me of the trial of former Liberian President Charles Taylor at the Special Court for Sierra Leone.

As you know, Mr. Taylor also boycotted the opening of his trial in The Hague on 4 June 2007.
I happen to have been involved in that process. I could therefore not help but notice the striking similarity of the arguments raised by the two high profile accused, in two separate trials, in two separate international criminal tribunals. Essentially, both made serious complaints about the adequacy of time and resources available to them, in light of the size and complexities of their specific cases.

Of course, as you observed, this is not the first time this has happened at the ad hoc tribunals. And, based on my personal experiences in the trenches of the defence side of international criminal justice, this will certainly not be the last.
While I have not yet had the benefit of reading your book chapter on the point, as you noted, some tribunals such as the ICTY and SCSL have planned for boycotts by adopting rules permitting the proceedings to continue in the absence of the accused. I am not against rules permitting trials, which have already begun, to continue if the accused simply chooses to boycott to protest an unfavorable ruling or to score cheap political points with a domestic constituency.

What I find unfortunate is the tendency to lump the two scenarios together, instead of distinguish them. Many, both within and outside the tribunals, tend to do this far too often. Yet, if one looked closely enough, it seems that at least some of the accused who decide to boycott proceedings do so because they have tried every available avenue and failed to get a proper remedy. Isn't there an old adage that where there is smoke, there's got to be some fire?

Anyway, while I'm not familiar enough with the Karadzic case to say that is the mischief, I can say that in the Taylor trial, that was largely the problem. The history of motion after (denied)motion requesting adequate resources and adequate time by the struggling Defence Team, facing an array of more experienced prosecutors, is there to back me up. All essentially came to naught.

So, in the end, Taylor decided to send a letter to court firing his counsel instead of show up to listen to his serious charges. Of course, at the time, he was vilified as the quintessential manipulator – by media, but more surprisingly, lawyers and academics alike.

At the end of the day, however, once the trial chamber made the necessary orders for the Registrar to enable the Defence Office to provide Mr. Taylor with the resources required for a fair defence, he quickly hurried back to court. Of course, faced with a new defence team, the logic for some preparation time for new counsel to read into the case was inescapable. Interestingly, the Taylor case, which was on the verge of collapse on opening day, has now become a model trial in the SCSL, and the accused, the model participant.

Overall, my sense is that, far too often, accused persons are painted with a broad brush. They fail to get (enough) sympathetic ears from the bench, or from players within and commentators outside the system, simply because the crimes for which they are charged do not, frankly, make them the most sympathetic figures.

The irony is that the drastic decision to boycott proceedings is then invoked to illustrate how recalcitrant and “bad” they truly are. Reminds me of something they used to call the "Bad Man Rule" in Canadian criminal law...