There is something rotten in the state of Holland, more specifically, in the
International Criminal Tribunal for the Former Yugoslavia (ICTY). The following article
critiques the pre-trial procedure of the International Criminal Tribunal for the Former
Yugoslavia, (ICTY) a topic of great significance at the moment, as the trial of Radovan
Karadzic, one of the ICTY’s most well-known fugitives, has recently commenced in the
Hague. This article argues that the ICTY’s Rule 61 procedure, which an absent Karadzic
was subject to over ten years ago, severely degrades the defendant’s right to a fair
trial in two ways. First, it effectively functions as a trial in absentia, contravening
the ICTY statute and depriving the defendant of the right to be present at trial.
Secondly, Rule 61 procedure degrades the defendant’s right to a public trial by limiting
the public’s ability to control judicial proceedings, a central purpose of a public
trial.

Rule 61 procedure was the result of a compromise between the civil and common law
countries that created the ICTY, the former advocating for the Tribunal’s adoption of the
trial in absentia, the latter urging to keep it out. An agreement was reached with Rule
61, which allowed for a functional equivalent of the trial in absentia when the defendant
could not be apprehended. This procedure is different from the traditional trial in
absentia, as it does not produce a final, binding verdict; instead, the defendant is
re-tried upon extradition to the ICTY.

Rule 61 is a novel pre-trial procedure that is not utilized in any other court, either at
the national or international level. Unfortunately, this unique procedure significantly
infringes on the aforementioned due process rights of the defendant, mainly by acting
like a trial in absentia without the necessary protections of such a trial. I propose
that Rule 61 should either be changed to better accommodate the defendant’s rights by
allowing defense counsel participation, or should be eliminated from use in the ICTY.
Furthermore, Rule 61 should not be used as a template for future international criminal
tribunals. It should be noted that this topic is particularly significant because Radovan
Karadzic is the first Rule 61 defendant to be apprehended and tried, and it is unclear
how the findings and witness testimony of his Rule 61 hearing will be used at trial