JURIST Contributing Editor David Crane of Syracuse University College of Law, former Chief Prosecutor for the UN Special Court for Sierra Leone, says that the declaration by recently-arrested Bosnian Serb war crimes suspect Radovan Karadzic that he will defend himself before the ICTY at The Hague is an historically-predictable bid to control, play up and even disrupt the proceedings under the guise of exercising his legal right to defend himself....
I recall Hinga Norman, leader of the Sierra Leone's Civil Defense Forces, in June of 2004, loudly declaring he was firing his defense counsel and defending himself just after I gave my opening statement in the joint criminal trial of Norman and his two henchmen. Also, in June of 2007, Charles Taylor refused to come out of his cell on the day his trial opened wanting to represent himself. Saddam Hussein railed at the Iraqi High Tribunal as he defended himself against various international and domestic crimes. And of course there is Slobodan Milosevic, who defended himself in a years-long and drawn out spectacle that eventually ended in Milosevic's death before a judgment could be rendered on his indictment.
One finds such histrionics going all the way back to the International Military Tribunal at Nuremberg as Hermann Goering sought to take control of the proceedings for his own political advantage. Why do these warlords, dictators, and thugs want to represent themselves? The easy answer is that they can. A review of the various rules of procedure and evidence allows an indictee to defend himself if he so chooses. But there is more to all this than the legal right of defending yourself before a tribunal or court.
First, there is the control issue. Having been removed from positions of great and even absolute power, these indictees have controlled nations and even regions in a way that is hard to imagine. In many instances they were the law. To remain in power absolute control was essential. This need to control all matters around them extends into the court room. Their disdain for the judicial proceedings is all part of this. They rant and rave at their situation and howl at the judges refusing to be a part of their case or the jurisdiction of the court to even try them, among other real or imagined incongruities.
A second reason is politics. A trial on international crimes before the world is an incredible "bully pulpit" for these masters of politics and manipulation. To these heads of state and leaders of various factions the trial is in some ways the ultimate grandstand from which they can play out whatever politics they choose to present and in a way that explains their actions and crimes they are being for which they are being prosecuted. It has only been recently that the judges have begun to get their procedural arms around this to avoid the events that took place in the Milosevic trial.
Thirdly, disruption and injecting error into the record of proceedings may be a subtle yet compelling reason. Somewhat similar to control, disruption of the proceedings can show not only control and disdain for the authority of the court, but it is also good theater and many, if not all, of these defendants are great actors. The martyr facing an inevitable fate and before great odds plays well back at home. Yet another more serious issue is the hope of injecting enough error into the proceedings to build an appellate record that may cause a reversal of a judgment or a retrial. Neither of these results is acceptable.
As a former Chief Prosecutor reversible error was one of my biggest fears. Though the proceeding must be open, fair, and just, you can't release these individuals on a technicality caused by an error at the trial level by judges who have generally little to no trial experience. Disruptions of any kind only enhance that chance and the defendants know this.
Of course none of these tactics have actually proven to be of benefit to the accused. Over time each settles down into an almost predictable pattern of anger and rage, denial, and finally acceptance of their situation. These former heads of state are going through a psychological process that moves them from arrogance to humility and it is usually not pretty to watch.
The various tribunals and courts have begun to work out legally supportable methods to ensure the rights of the accused are carefully protected. In places where there is little respect for the law or a great fear of the law, these proceedings must be perceived by the victims and the citizenry of the region as fair and that the law can bring a type of justice that can account for these atrocities in a way that is acceptable to them.
And so it begins again, Radovan Karadzic will represent himself, howling, ranting, and raving at the tribunal that will decide his fate. I wonder if Presidents Omar al-Bashir and Robert Mugabe* will do the same.
*For more information on the crimes against humanity perpetrated by President Mugabe see the recently published white paper "Justice for Zimbabwe" by the !ENOUGH Project and Impunity watch at http://www.enoughproject.org or http;//www.impunitywatch.net
David M. Crane is a professor at Syracuse University College of Law, and former founding Chief Prosecutor for the UN Special Court for Sierra Leone (2002-2005).