Saturday, August 02, 2008

When a defendant must be convicted

One of the most famous books from Dutch literary history is "Max Havelaar" by Multatuli. The book was written in 1860 and starts with a short theater piece "Barbertje must hang". Below my translation.

Barbertje must hang
Court servant: Mr. Judge, there is the man who killed Barberje
Judge: The man must hang. How did he do that?
Court servant: He cut her to small pieces and salted her.
Judge: He did very wrong. He must hang.
Lothario: Mr. Judge, I did not kill Barbertje! Ik nourished, dressed her and took care of her. There are witnesses who will declare that I am a good person and not a killer.
Judge: Man, you must hang. You aggravate your crime by vanity. It doesn't fit for someone who is accused of something to pose as a good man.
Lothario: But judge, there are witnesses who will confirm my words. And as I am now accused of murder...
Judge: You must hang! You cut Barbertje in pieces and salted her and you are vein... Three capital crimes! Who are you, woman?
Woman: I am Barebertje
Lothario: Thank God! Judge, you see that I didn't kill her!
Judge: Hm... yes...soo! But the salting?
Barbertje: No judge, he didn't salt me. He did on the contrary much good to me. He is a noble person!
Lothario: You hear it, judge, she says that I am a good person.
Judge: Hmm... The third point still stays. Court servant, bring the man away, he has to hang. He is guilty of vanity. Clerk, cite in the notes the jurisprudence of Lessings's patriarch.

The book was written against colonial abuses and it would be easy to believe that such excesses only accur in exceptional circumstances. But what about Al Capone, who was convicted to 12 1/2 years of prison because of tax evasion? And even that was hardly proved as all his possessions were on his wife's name. The problem was that he was seen as guilty from the beginning. The government considered it a shame that such a high profile mafioso was walking around freely and for that reason they wanted him in jail. Something similar can also be seen in the US after 11 september 2001 where the philosophy seems to be that you can better condemn 10 innocents than free one terrorist.

A similar "he must be convicted" attitude can be seen in the processes of high profile Serbs like Milosevic and Plavsic. Milosevic was accused of facilitating nearly everything that had gone wrong under his rule. Yet - even in the face of a lack of evidence and Milosevic's health problems - the court refused to shrink the indictment. Milosvic was too important to miss a chance to get him convicted. Compare this with Nasir Oric who was only indicted for a small part of the excesses for which many people held him responsible. The Plavsic verdict shows another side of this policy: she was not directly responsible for any war crime, but was convicting for "embracing, supporting and contributing to" them. Again, such indirect responsibility was not applied to people like Oric.

A few days ago I saw mr. Nice - the Milosevic prosecutor - on television. He claimed that one of the reasons Oric and Haradzinaj were set free was because they had top lawyers, while Milosevic by defending himself missed many chances to rebut evidence against him. This is a very nice theory, but I think that mr. Nice misses the point that Milosevic was just like Al Capone a man who had to be convicted no matter what because some people considered that necessary. In that aspect his case was fundamentally different from that of Oric and Haradinaj.

I am not stating here that the court is partial. It is something more subtle: no one wants to go in the history books as the (wo)man who made the mistake that let Milosevic escape justice. And so everyone tends to err on the safe side - and that is not the side of Milosevic. But this ends up with Milosvic having a much smaller chance of being acquitted than an Oric for the same amount of evidence.

In that light Milosevic's self defence was not so self defeating. It looks like he partially gave up on the court and instead focussed on his reputation with the general public. And this he did quite well. Even here in Holland I found many people who were impressed by his court performance. And these were people without much interest in the Balkan who just read the local newspapers and watched the local television.

Some people believe that Milosevic just abused his freedom in the court to make propaganda. But I think that there is more than that. A court is about establishing the truth and gagging Milosevic would not have helped the truth. Instead the court should focus on telling its version of the truth. If Milosevic had survived he would very probably have been convicted. However, nobody would have understood for what. The Muslims, Croats and Albanians would just have used the verdict to tell the Serbs once again that they are bad but hardly a Serb would have been convinced.

Now we have the same questions with Karadzic wanting to defend himself. I would like to hear comments on this.

Postscript 1: John Laughland, author of a book on the history of political trials, criticized the international courts and believes they aren't fair and should be abolished.


pierre said...

"Some people believe that Milosevic just abused his freedom in the court to make propaganda."

Those people are wrong. I believe anyone brought before a court has an absolute right to testify on his on behalf. A person has a right to tell his own story. That DOES NOT mean he MUST speak, but rather he should have the right to do so, if he chooses to speak.

"But I think that there is more than that. A court is about establishing the truth and gagging Milosevic would not have helped the truth. Instead the court should focus on telling its version of the truth."

I would go further than what you wrote. Since the court/prosecution puts the accused in jail, the court has the absolute duty to prove why they feel the person should be in jail/prison. It is not up to the accused to prove his innocence, after all, the accused did not come to court of his own free will.

Furthermore, there should be solid evidence that can't be refuted. Although, from what I've seen, the evidence presented in the Hague is not reliable and indeed always seems to be second hand accounts of events and hearsay, that is, completely unreliable. Also, if the prosecution is so sure the accused should be removed from society, then there should be no harm in letting the accused person speak.

"If Milosevic had survived he would very probably have been convicted. However, nobody would have understood for what. "

Exactly, see my above comments. I hope they at least let Karadzic live through his trial.

Anonymous said...

Should Karadzic be allowed convict himself? That seems to be the question you are asking and I see no reason why not, in theory. Self defence is after all a fundamental right. I would only point out that letting Milosevic defend himself was not always productive in terms of "truth". Most of his own witnesses could not be taken seriously by any court, such was their bias. Seselj, another self-defender, can more or less be relied upon to obstruct the course of truth and justice.

If Karadzic were to be defended by one of the world's top criminal defence lawyers, as was Haradinaj, not only would he stand a fighting chance of winning the points he should win but it would also drag the standards of the court up. On the whole, Milosevic and Seselj have dragged it in the other direction (this is not to deny that Milosevic had his moments).

There are other factors that contribute to the low bar at the ICTY. Every department has its failings and inadequacies. As a rule, it helps to have really good lawyers to help you through some that jungle.

I don't know if Karadzic has the possibility of raising any funds, let alone the amount that would be necessary to purchase a Haradinaj-esque defence. If he doesn't, he has a rather unappealing choice to make: self defence or legal aid.

It takes a very unique kind of person to deal with this UN court effectively and it is highly unlikely that Karadzic or any legal aid counsel he is assigned will be up to the job.