Today, the International Criminal Tribunal for the former Yugoslavia (ICTY) will issue its judgment in the case of one of its most high-profile defendants, former Republika Srpska President Radovan Karadžić. When the ICTY was established, the Secretary-General of the United Nations noted that it was ‘axiomatic’ that those tried by the international tribunal would be tried in accordance with the highest international fair trial standards. The Karadžić case highlights just how challenging it is for the ICTY (and other international criminal tribunals like it) to ensure a fair trial in practice.
One of the issues that has blighted the Karadžić trial throughout its lifetime has been the non-disclosure by the prosecution of exculpatory materials by the Prosecution. Under Rule 68 of the Rules of Procedure and Evidence, the Prosecution is bound to disclose to the Defence any material in its possession that may suggest the innocence of the accused, affect the credibility of Prosecution evidence, or mitigate the guilt of the accused. As recently as last week, pursuant to Karadžić’s 107th disclosure violation motion, the Trial Chamber found that the Prosecution had failed to disclose relevant evidence, but (as with its many previous findings of disclosure violations), found that no prejudice had been suffered by the accused and therefore declined to grant any remedies for this breach. Just yesterday, on the eve of the judgment, Karadžić’s legal advisor, Peter Robinson, reported that the defence had just received over 200 further pages of exculpatory evidence from the prosecution.
In a sense, the prosecution’s continued failure in fulfilling its disclosure obligations is unsurprising, given the sheer volume of the case. Over the course of the four-year trial, the testimony of 586 witnesses was received. Many of these witness statements were admitted in written form, with limited or no opportunity for cross-examination. Over 11,000 exhibits (totalling almost 150,000 pages) were received, and the transcript of the proceedings to date exceeds 45,000 pages. The prosecution has disclosed over 2 million pages of evidence. Moreover, the Tribunal has made extensive use of judicial notice of adjudicated facts – including, as I note in my book, such important facts as that Serb forces removed non-Serbs from certain areas, that these forces mistreated detainees in detention facilities, and that attacks were carried out on certain regions.
Karadžić has represented himself throughout the trial, assisted by a small team of support staff. While the Tribunal did overturn some of the Registry’s more restrictive decisions on the funding of Karadžić’s defence team, and did grant him additional time to prepare for trial, the defence team’s David has faced a prosecutorial Goliath. Most recently, the President of the Mechanism for the International Criminal Tribunals notified the UN Security Council that a prosecution team had been established to prepare for the anticipated appeal of Karadžić’s case. When Karadžić asked for funding to resource an equivalent defence team, his motion was denied as ‘purely speculative’ as there was no guarantee that the judgment would be appealed, despite the clear implications on the equality of arms before the Tribunal.
Why should it matter that such high-profile accused persons get a fair trial? Aside from the fact that the Tribunals have already declared their procedures to reflect the highest standards of fairness, and that any derogations from fair trial practices may be utilised by domestic criminal justice systems as justification for their own shortcomings, the impact of fairness on the legitimacy and legacy of the Tribunals cannot be understated. Anything less than scrupulous protection of the rights of the accused allow the Tribunals’ detractors to declare their proceedings ‘show trials’, rigged against the defendants from the outset. With the stakes so high, and the cost of international justice so enormous, nothing less than the fairest of procedures will do.
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