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Friday, November 4, 2011

Karadzic in The Hague

I was visiting The Hague a few days ago for a conference on international criminal procedure and decided to drop by the Radovan Karadzic trial at the ICTY.  Although I have watched countless hours of the trial via the court’s video feed, this was the first time I saw Karadzic – who is representing himself – in person.  A few observations:

First, Karadzic is turning out to be a pretty good lawyer – much better than Milosevic ever was.  Ironically, Milosevic was trained as a lawyer and Karadzic was trained as a psychiatrist (one of the reasons that he passed as a new-age healer in a Belgrade clinic while he was on the run from the authorities for more than a decade).  Milosevic used his trial to make political speeches largely addressed to a domestic constituency – and to history – rather than address the judges with explicitly legal arguments.  True, Karadzic is making some political arguments and is trying to settle old scores with enemies (e.g. NATO, Richard Holbrooke), but he is also couching his claims in a legal framework.

During last week’s testimony, a young Croatian man spoke about various atrocities, including the killing of his father by Bosnian Serb forces.  Karadzic personally cross-examined the witness and he was incredibly well prepared by his legal associates, who were constantly handing him documents, reports, and transcripts that included previous testimony from the witness.  Karadzic was trying to find inconsistencies between the accounts.

Karadzic also claimed, over and over again, that the witness’ testimony was mere hearsay because he was describing atrocities that he had not personally witnessed.  Even the killing of the witness’ father took place within his earshot but he did not actually see it with his own eyes.  Since he directly heard the killing, though, there was no question that this was direct witness testimony.  But much of the rest of the testimony was indeed hearsay as American lawyers typically understand the concept.

Unfortunately for Karadzic, though, there’s no actual prohibition on hearsay evidence at international criminal tribunals like the ICTY.  That’s because the ICTY has no juries, and he common law rule excluding hearsay evidence was developed to prevent juries from being contaminated with unreliable and potentially prejudicial information.  Under this theory, judges are better able than juries to assess the appropriate weight that should be given to a particular piece of evidence. Ergo, there's no need for an exclusionary rule for hearsay.

So Karadzic’s repeated complaints to the court about hearsay evidence largely fell on deaf ears because there was no exclusionary rule to prevent it from coming into evidence.  But that’s not to say that the issue was entirely irrelevant.  Karadzic was entitled to argue to the Trial Chamber judges that they should give the evidence less weight, during their deliberations, because of its hearsay character – and he certainly made that point.

A second major issue is the question of time management and preventing the trial from turning into a four-year mess like the Milosevic trial.  At the end of his allotted time for the cross-examination, the presiding judge, O-Gon Kwon, told Karadzic that he had five minutes left. 

Karadzic launched into a tirade against the court for hampering his defense, to which Judge Kwon responded that it wasn’t the court’s fault that Karadzic had wasted so much time on “marginal” issues.  Karadzic  He seemed to be making a reference to his right of self-representation and suggesting that he ought to receive more leeway since he was not an attorney.  But Judge Kwon stuck to his guns and insisted that Karadzic wrap things up.

The next five minutes stretched into about 20 minutes, and Karadzic eventually said that he wanted the right to recall the witness.  Before Judge Kwon could interject on this issue, the witness jumped in and said that he would show up again – any day any time – at Karadzic’s choosing.  Just tell me when you want me here, he said.  It was a battle of wills between the two men.  The witness was not about to back down.

Then Karadzic brought up the issue of protective measures that the court had granted for this witness, including keeping his place of residence a secret. 

The witness immediately volunteered that he had no objection revealing to Karadzic where he lived now.  It seemed to me that the witness wanted to make abundantly clear that he wasn’t afraid of Karadzic.

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