By Katherine Iliopoulos
The trial of former Bosnian Serb leader Radovan Karadžić commenced without him on October 26, and burdened with the weight of expectation. The only one of the 'big three' from the Bosnian war of the 1990s in custody - the late Slobodan Milošević and fugitive Ratko Mladic having both evaded justice by different means - his trial on charges of genocide, crimes against humanity and war crimes may come to represent one of the most important for the legacy of the International Criminal Tribunal for the Former Yugoslavia.
One key concern for the Tribunal will be to avoid a repeat of the most criticised aspects of the Slobodan Milošević trial - which lasted several years and ended prematurely with the death of the accused in custody. At issue particularly will be the court's handling of Karadžić's decision to represent himself during the trial; the judges must allow him enough time and scope to conduct his defence without unwittingly sanctioning delay tactics or ideological tirades. In the interests of simplifying the trial and ensuring it is completed within a reasonable timeframe, the Tribunal has already compelled the prosecution to trim the original indictment, which had listed only one count of genocide among the eleven charges, but now includes two counts of genocide but a lesser number of crime sites, incidents and municipalities, for which a not guilty plea has been entered on Karadžić's behalf.
As he had forewarned, Karadžić failed to appear in the courtroom and the case was adjourned after 30 minutes. He is not expected to appear on the second day, but judges have warned that they would start the case without him. The prosecution had urged the judges to impose a defence lawyer on Karadžić, as was done in relation to Milošević, but they have not yet made a decision in this regard.
The main allegations against the former President of Republika Srpska relate to the 44-month "Siege of Sarajevo" - a sniping and shelling campaign designed to spread terror - that left over 10,000 dead, the July 1995 massacre of around 8,000 Muslim men and boys in Srebrenica, and the taking of UN personnel hostage to prevent NATO and international air strikes against Bosnian Serb military targets. According to the prosecution, these three criminal conspiracies formed part of an overarching plan, of which Karadžić was a part, to ethnically cleanse non-Serbs from Serb-claimed territory in Bosnia and Herzegovina and to "eliminate" Bosnian Muslims in Srebrenica, carried out between October 1991 and November 30, 1995.
The Prosecution alleges that as part of a persecutory campaign, Karadžić formulated and executed a campaign of sniping and shelling against besieged Sarajevo in order to spread terror among its civilian population. The campaign of terror was said to be an important means of achieving the Bosnian-Serb leadership's territorial ambitions and statehood. The level of terror was moderated in order to secure concessions from the BiH government or to prevent NATO and international intervention in the conflict.
He is also accused of having targeted Bosniak and Croat political leaders, intellectuals and professionals, unlawfully deporting and transferring civilians because of national or religious identity, and of having been responsible for the destruction of homes, businesses and sacred sites.
Central to the accused's defence is his claim that in 1996 former US Ambassador to the UN Richard Holbrooke offered him immunity from prosecution, in return for surrendering power. It is an allegation Holbrooke vehemently denies. The Chamber has ruled that even if such an agreement existed, it could not bind the Tribunal, nor could an agreement entered into by the Prosecution. In a Decision of October 12, 2009, the Appeals Chamber indicated that it will permit Karadžić to pursue the Holbrooke agreement issue insofar as it may be relevant to sentencing and mitigation.
The two genocide charges that are listed in the latest indictment relate to "the crimes committed in Bosnia and Herzegovina during 1992 and the second to the July 1995 massacre in Srebrenica" including the "death or forced departure" of non-Serbs from over 40 Bosnian towns and the widespread killing in detention camps.
The first charge can be seen as a long shot by the prosecution, since the Tribunal has until now always rejected the idea that the campaign of ethnic cleansing across Bosnia in 1992 rose to the level of genocide. In particular, the court acquitted Karadžić's political colleague Momčilo Krajišnik, sometimes known as the "architect of ethnic cleansing", of genocide charges in 2006.
As far as the second charge, the Tribunal established as 'legal fact' that genocide was committed by the Bosnian Serbs at Srebrenica in April 2004 when it convicted the Bosnian Serb general Radislav Krstic of aiding and abetting genocide in connection with the massacres of Bosnian Muslims that took place after the fall of the so-called 'safe haven'. Genocide is considered the 'crime of crimes' under international law but also the most difficult to prove because of the requirement to show a specific intent to destroy a group in whole or in part.
The prosecution has alleged that following the fall of Srebrenica on 11 July 1995, Karadžić and Mladic, working with other military and civilian officials, directed the forcible transfer of the Muslim population out of the enclave and the mass executions of over 8,000 men and boys.
Karadžić knew that executing the men and expelling their families from Srebrenica would have a catastrophic and lasting impact on the Bosnian Muslims of Srebrenica, according to the prosecution: "In a patriarchal society, such as the Muslim community of Srebrenica, the execution of the majority of men made it almost impossible for the Bosnian Muslim women who survived to successfully re-establish their lives". This claim is a deliberate echo of the Court's earlier appeals decision in the Krstic case.
In relation to the Siege of Sarajevo, the prosecution alleges that Karadžić shared a common plan in relation to the terror campaign against civilians but it does not explicitly allege that this campaign was directed at the elimination of non-Serbs from Sarajevo, although it is alleged to have given rise to a number of war crimes.
It appears from a reading of his pre-trial brief that during the course of the trial, Karadžić will try to demonstrate that the knowledge of a plan or policy ought to be considered as an element of the crime of genocide which must therefore be proven beyond reasonable doubt.
Karadžić quotes Professor William Schabas - an advocate of the inclusion of the plan requirement as an element of the crime of genocide - who reasons that genocide is so closely associated with a State plan or policy, such that "it is nearly impossible to imagine genocide that is not planned or organized either by the State itself or a state like entity or by some clique associated with it". Raphael Lemkin, who first coined the word 'genocide' and helped draft the Genocide Convention, defined genocide as "a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves".
If the Tribunal finds that the plan requirement is a formal element of the crime of genocide, the prosecution will have to prove - in addition to the other elements of the crime - that Karadžić either intended his conduct to be part of the larger genocidal plan or policy or at least knew that his conduct was part of that plan or policy.
Count 11 of the indictment charges Karadžić with the war crime of 'hostage taking' in connection with the fact that over 200 UN peacekeepers and military observers were detained at various locations and used as human shields in order to render the locations immune from NATO air strikes.
Karadžić argued in a pre-trial Motion that in relation to the crime of hostage-taking under Common Article 3 of the Geneva Conventions, under customary international law the scope of the application of Common Article 3 to an international armed conflict is limited to "civilians". The indictment identified the victims of the crime of hostage taking as UN military observers and peacekeepers and that they were persons taking no active part in the hostilities. But Karadžić argued that the 'hostages' were non-civilians and ought to be classified as prisoners of war (POWs) to which the Third Geneva Convention applies and which does not contain a specific prohibition on hostage-taking.
Interestingly, at the time of the incident the International Committee of the Red Cross (ICRC) disagreed that the peacekeepers that had been collected by the Bosnian Serbs were 'hostages'. That was because the UN had ordered air strikes it had therefore become involved in the Bosnian conflict, with the implication that its personnel were therefore prisoners of war. However, as soon as the personnel were forced to serve as human shields, the ICRC argued that they were being used as hostages and not as prisoners of war.
In response to Karadžić's Motion, the Tribunal affirmed that Common Article 3 clearly refers to the prohibition on hostage taking on any person taking no active part in the hostilities, including POWs, whether in an internal or international armed conflict. It stated that the status of the UN personnel has not been established on the face of the indictment and will be a matter of evidence to be determined during the trial. To date, the ICTY has not specifically addressed whether the detention of combatants can qualify as hostage taking.
Some 290 witnesses will be relied upon the prosecution to prove its case, some of whom have been granted protective measures. "I would go to the moon to get justice for my son," witness and victim Dzenana Sokolovic told BBC journalist Alan Little last week. She and her 7-year-old son were gunned down as they returned from collecting firewood, which involved a dangerous sprint across an intersection near an apartment block housing a group of Serb snipers. After she was shot she was heard screaming "Where's my boy?", unaware that Nermin already lay dead in a pool of blood after being struck in the head with a bullet. As with other witnesses, the judges will have to determine the reliability of the evidence. In relation to this witness, they will need to be satisfied that the bullets were fired from that location and not by other combatants defending Sarajevo.
In the wake of the Milošević precedent, where the accused represented himself and refused to adopt defence counsel, the Tribunal is faced with the issue of how to deal with Karadžić's insistence on self-representation. There were fears of another long, drawn out trial, delaying justice to victims, before the Tribunal rejected Karadžić's request for a 10-month extension and insisted on the trial commencing in late October and finishing by 2012. Now the issue seems to be procedural fairness and the rights of Karadžić. The issue of self-representation is inextricably linked to an assessment of adequate trial preparation. How can this 'right' - established as such in the Milošević case on the basis of the Tribunal's interpretation of 21(4)(d) of the ICTY Statute - be reconciled with the main side-effect of an inadequately staffed 'legal team': the need for more trial preparation time and thus the right to a fair trial?
It is clear that some sort of compromise would need to be reached, respecting the rights of the accused in a way that does not allow an abuse of the proceedings for political ends, and without deterring witnesses from testifying. Arguably, fair trial rights include the right to have counsel, not the right not to have it. A genuinely 'fair' trial does not seem possible without adequate legal assistance.
One of Karadžić's legal advisers, Peter Robinson, has said that he will boycott the trial until he is adequately prepared to defend the prosecution case, which he says relies on over a million pages of witness testimony and is "the biggest, most complex, important, and sensitive case ever before this tribunal". Similar tactics were used by Milošević.
But Chief Prosecutor Serge Brammertz denies that Karadžić's rights have not been respected, saying that Karadžić, who has filed almost 270 motions on various issues since his transfer to the tribunal's detention centre, has had 15 months to prepare since his arrest in Belgrade last year.
It is unclear how the trial will proceed without Karadžić in the dock, as the Tribunal's procedural rules do not allow for trials in absentia. Possible options for the judges would include either postponing the trial, imposing counsel to represent him, starting without him, or compelling him to attend. Or, seeking more time on an ad hoc basis, for example, before each witness commences testimony. If counsel is imposed, for example current adviser Robinson, the case would have to be postponed for some months to allow him to prepare.
Karadžić's trial has been streamlined to include the main incidents, but many atrocities will go unaddressed. Many observers believe that the Karadžić trial it will be a relatively straightforward affair compared with that of Slobodan Milošević. Gideon Boas, a senior legal officer in charge of managing the Milošević trial for the Tribunal's Chambers, suggests that the Milošević indictment bears much of the responsibility for the long and arduous trial. But, the number of witnesses to be called and the volume of documentation can also play a part. The Bagosora trial before the International Criminal Tribunal for Rwanda, which heard 242 witnesses and examined over 35,000 pages of documents, lasted six years despite an indictment of reasonable length and scope, and representation by counsel. But a promising sign in this case is the lack of grandstanding, interruptions and preaching that characterised Milošević's pre-trial appearances.
Some of the other politicians who served alongside Karadžić in the Bosnian Serb leadership have already been convicted. One of those is Krajišnik, currently serving a 20-year sentence, a member of the National Security Council of the Republika Srpska during the relevant period. In 2006 he was convicted of persecutions, extermination, murder, deportation and forced transfer but acquitted of genocide, but in March 2009 he was acquitted on appeal of several of these charges, though the appeals court upheld his conviction for the crime against humanity of persecution effected through deportation and forcible transfer.
Appeals judges confirmed that Karadžić and Krajišnik were members of the same joint criminal enterprise at the apex of the Bosnian Serb political hierarchy. Karadžić is charged with many of the crimes committed against non-Serbs in Bosnia, including genocide, for which Krajišnik was acquitted. Some legal commentators are worried that the inability of the prosecution to convict Krajišnik of the most serious crimes may have a bearing on the likelihood of a conviction of Karadžić for the same crimes.
"Karadžić is [Krajišnik's] political twin so the evidence that applies to one applies to the other", Michael Karnavas, a defence lawyer at the Hague tribunal, told the Institute for War and Peace Reporting following the Krajišnik appeal. "If they couldn't get Krajišnik [for many charges in his indictment], it's going to be very difficult to prove similar charges against Karadžić, unless there's additional evidence." But other observers are less sceptical, saying that Krajišnik's convictions had been overturned not because of a lack of evidence, but because of a lack of proper findings by the trial chamber. Even so, it seems the prosecution will need to present more evidence in this case. The judges may require the prosecution to put forward more detailed evidence in relation to the allegation that Karadžić participated in a joint criminal enterprise, to establish a link between Karadžić and lower-level perpetrators, and to determine the time when certain criminal acts became part of the criminal plan to remove non-Serbs from large areas of Bosnia.
