Global Policy Forum

By Janet Anderson

Hague prosecutors want a joint trial for nine Bosnian Serbs accused over Srebrenica, but opinion is divided whether it can be fair or even practical.

For generations of Europeans brought up since the Second World War, the image of 21 Nazi leaders seated on the long wooden benches of Courtroom 600 in the Nuremberg Palace of Justice remains an example of how a single "mega-trial" can help deal with the legacy of years of horrendous crimes. Five decades on, legal minds faced with the atrocities committed in the former Yugoslavia and Rwanda looked back to Nuremberg for lessons and inspiration. But the tribunals they set up to try war crimes cases have deliberately avoided copying the scale of the Nazi trial. Until now, that is.

Ten years after the Srebrenica massacre, prosecutors at the Hague tribunal for the former Yugoslavia - urged on by a completion strategy that would have the court close its doors in less than three-and-a-half years - have asked for nine senior Bosnian Serb army and police officers to face a joint trial on charges related to the gravest crime committed in Europe since Nuremberg, the Srebrenica genocide. If this proposal is adopted by the judges, one of the three Hague tribunal courtrooms will have to be refitted to make space for them all: Vujadin Popovic, Ljubisa Beara, Drago Nikolic, Ljubomir Borovcanin, Zdravko Tolimir, Radivoje Miletic, Milan Gvero, Vinko Pandurevic and Milorad Trbic. Eight of them were high-ranking officers in the Bosnian Serb army, VRS, while Borovcanin was deputy commander of the Special Police Brigade deployed in the area. Prosecutors want the group to face a revised, common indictment that encompasses the whole of the complex murder and clean-up operation that took place in eastern Bosnia in the summer of 1995.

All but one of the accused are already in The Hague, following a wave of "voluntary surrenders" from Serbia earlier this year. The only one missing is General Zdravko Tolimir, who is still on the run, much like the two men seen as the principal organisers of the massacres, Bosnian Serb political leader Radovan Karadzic and his commander-in-chief General Ratko Mladic. But these two most senior leaders are likely to have their own separate trial – if and when they come to The Hague. Apart from Tolimir, all of the group have pleaded not guilty to the charges laid against them in a new indictment revealed this week.

One of the few comparable trials held by any of the United Nations courts so far is the so-called Butare trial in Arusha, Tanzania, where six people have stood trial since 2001 on charges of genocide, in connection with the killing of an estimated 800,000 Tutsis and moderate Hutus in Rwanda in 1994. But instead of being the example of swift-paced justice it was conceived as, the Butare case looks likely to become one of the Rwandan tribunal's longest trials ever. Marred by procedural difficulties, bitter wrangling between defence counsels, and overall slowness, the trial is "a case-study in what not to do", according to one long-term trial observer. The proposed Srebrenica mega-trial would dwarf Butare and indeed any other proceedings at the Yugoslav and Rwanda tribunals.

And while Hague prosecutors, and some observers too, insist the trial could be a major opportunity for Srebrenica survivors and the world at large to see justice done swiftly, efficiently and in one big judicial process, others warn it could descend into a "managerial nightmare". The process, they say, could be beset with delays and disappointments, as legal motion piles on legal motion and witnesses spend weeks on the stand enduring multiple cross-examination. These procedural difficulties could eventually reach a point where they cloud the essence of the case.

Battle Lines Drawn

The new indictment, filed on June 28 and made public only on July 6, depicts for the first time in legal terms the full scale of the Serb operation that started in early July 1995 and ended only a month later, after two out of three UN "safe zones" in eastern Bosnia had been emptied of their Muslim inhabitants. NATO air strikes that began after the fall of Zepa (although not for reasons directly related to it) are assumed to have stopped the Serb army from advancing on the third and southernmost Muslim enclave, Gorazde.

Originally, the nine accused were mentioned in six separate indictments. But the prosecution has now moulded these into one, and in the process it has made several significant alterations to the charges that each faces. The main change is that all the accused now face charges of genocide, and conspiracy to commit genocide, in Srebrenica, and of planning to remove the Bosnian Muslim population of Zepa. The prosecution has added charges of genocide against Trbic and Tolimir, who were previously charged only with the cleansing operation in the Zepa enclave. They, plus Popovic, Nikolic and Borovcanin, have had conspiracy to commit genocide added to the charges against them. Charges relating to the deportation of people from the Bosnian Muslim enclave of Zepa, which earlier figured in the indictments of only three of the nine accused, have now been laid against all nine. These changes are likely to become one of the key points in the defence's objections when the hearing is held to decide whether to join the cases is held. So far, no date has been set, although the judges have said they hope to render a decision before the summer recess, which begins on July 23.

Longstanding tribunal observers see the new indictment as a clear indication that the prosecution hopes to prove there was a large-scale conspiracy surrounding events at Srebrenica and Zepa. Some believe this may be more difficult that it looks from the outside. When Radislav Krstic, the commander of the Drina corps, the largest Bosnian Serb army unit to participate in both events, was tried and found guilty for his role in events at Srebrenica, the judges agreed that genocide had taken place there. But they were not convinced by prosecutors' claims that General Krstic personally organised and planned it, and therefore found him guilty of only aiding and abetting genocide. The genocide was planned, they said, by people much higher up the chain of command. "There is no evidence that the Drina corps devised or instigated any of the atrocities that followed the take-over of Srebrenica in July 1995," said the verdict in Krstic's appeal. "The evidence strongly suggests that the criminal activity was being directed by the VRS Main Staff under the direction of General Mladic." Four of the nine accused were serving within the VRS Main Staff. Dutch lawyer and international trial observer Heikelina Verrijn Stuart says that up until now, no convincing evidence of a conspiracy – which would require premeditation - has yet been presented. Finding this kind of evidence and demonstrating it will be the main challenge in the new case, she said.

Several defence counsels have responded to the joinder motion by arguing against changes to the original indictments, saying that instead of being based on facts, these amendments are merely a way of justifying the joint indictment. The response of Zoran Zivanovic, defence counsel for Popovic, who was assistant commander for security with the Drina corps, indicates this is an area he will be exploring in the trial. Zivanovic says there is "no evidence in supporting material that he was in a position to make any conspiracy with the highest-ranking military persons of VRS".

Conspiracy or Not?

Independent of the issue of whether there existed a conspiracy to execute thousands of Srebrenica men – and if it did, whether it was forged before or shortly after the fall of the enclave - the first question the judges will need to look at in deciding whether to allow the joinder is whether the alleged crimes were committed as a part of a common transaction – meaning a "common scheme, strategy or plan" and whether the accused therefore "acted in concert". According to the court's Rule 48, this is the first criterion that needs to be satisfied before judges move on to assess other factors for or against the joinder. At least one of the accused is going to challenge this notion. Djordje Sarapa, counsel for Vinko Pandurevic, the former commander of the Zvornik brigade - one of the key units present at Srebrenica – says there is "not a single circumstance that would point to a connection with the other accused and to his participation in joint action".

Serving the Interests of Justice

None of the experts IWPR spoke to questioned the basic applicability of Rule 48 to this case. Once the judges have made their ruling on whether the rule applies, they will face another complex task: weighing up whether such a trial would in fact be in the interests of justice.

The prosecutors argue that a joint trial would avoid duplication of evidence including from forensic experts; that it would minimise the hardship of victims and witnesses who might otherwise be called to give the same evidence in numerous trials; that it would be "in the general interests of judicial economy"; and finally, that it would ensure consistency of verdicts. For the prosecution, "the entire factual basis of all these cases is identical" as regards Srebrenica, and so would be the majority of the evidence. Thierry Cruvellier, editor of International Justice Tribune, a newsletter covering international justice issues, believes the joinder "makes initial sense in terms of presenting the whole picture".

Edgar Chen, the Hague representative of the Coalition for International Justice, agrees that the fact there is the same crime base lends weight to the prosecution argument that a joint trial would run more efficiently by streamlining production of documents and witnesses, and by introducing material that has already been proved in other cases concerning Srebrenica such as the Krstic and Erdemovic trials. Even some of the defence lawyers agree, too – Popovic's lawyer Zivanovic says he "fully accepts the arguments regarding duplication of evidence, minimising hardship to victims and witnesses, judicial economy and consistency in verdicts".

But other observers warn of other potential dangers that may scupper the case. "My first reaction was of course it makes sense," says legal observer Verrijn Stuart. However, she warns, "it may seem more effective and efficient, but knowing how the tribunal works – with so much time taken up with procedure – I doubt that". What happens if one of the accused is ill? Or if one of the defendants is determined to "throw sand in the machine" – as Verrijn Stuart put it - delaying the whole process for everyone. "Managing such a trial could be a nightmare for the court", agreed Judith Armatta, a long-term Hague observer. The pure logistics of trying several defendants in the UN court's limited space have not yet been dealt with, although the tribunal's statute places no limit on the number of accused who can be tried together.

There are currently three courtrooms, covering a maximum of six trials daily, with the average length of trial being two and a half years. In one of the courtrooms there is barely any room for the public, who end up at an uncomfortable stone's throw from the accused. The two others are significantly larger, but again not large enough to fit the nine accused and full-blown defence teams for each. A representative of the registry confirmed to IWPR that they "have been looking at the practical and logistical measures that might be needed if the joinder were allowed". Verrijn Stuart says other joint trials at The Hague – for instance the Celebici case, where four people were tried together for killing, torturing and raping detainees at a prison camp in central Bosnia - was "sometimes chaotic", partly because there were just too many people in the courtroom.

The prosecution argues that separate trials would potentially have serious negative consequences for the health, welfare and security of witnesses, and could even result in prosecutors "losing valuable and perhaps critical witnesses". A joint trial, says Prosecutor Peter McCloskey - who has the job of writing and presenting the case for it - would minimise trauma and hardship to victims and witnesses who have already testified twice at the other trials related to the Srebrenica massacre. However, Jelena Nikolic, the defence counsel for Drago Nikolic, argues the opposite: that "to go through nine cross examinations [at the same time] can be a traumatising experience" for any witness. He goes further, saying this may affect his own client's rights, because balancing the rights of the accused with welfare of witnesses is likely to be very difficult for the judges.

Defence Strategies

Even if the judges accept all the arguments of the prosecutor's office, and order a joint trial, there are still many uncertainties surrounding how the trial itself would play out – not least, what each of the nine different defence teams would decide as its best strategy. Chen describes this as "the wild card" for all the parties concerned. Finding ways to block the prosecution could lead to any number of defence strategies, some of these possible clashing with each other.

However, what Chen sees as the "most obvious fissure" within the group is between those who were part of the security apparatus and those were military personnel. Careful reading of Srebrenica-related judgements rendered so far reveals that the military below Main Staff were mainly engaged in providing the infrastructural support for the killing operation, while military police and special police units were more likely to be engaged in the actual executions. "The military men may argue along the lines, ‘we had nothing to do with this sinister operation and we were only concerned with the military operation to over-run Srebrenica'," said Chen.

Verrijn Stuart agrees that there could be huge conflicts of interests among the accused if they go into a joint trial. "Every proper defence would be aimed at shifting the responsibilities to others, and thus undermining each other's defence", she says. Drago Nikolic's lawyer Jelena Nikolic addresses this point in her response, arguing that "significant differences exist between each of the accused and their alleged involvement in the events of 1995". The most important difference is "probably that some of the accused would have allegedly conceived the joint criminal enterprise while others allegedly had a role to play of lesser importance in the execution of the joint criminal enterprise", she said.

Jelena Nikolic also argues that, in deciding for or against a joint trial, the trial chamber should be considering not only which evidence would be the same, but how much will be different; and whether, because there are nine accused, some pieces of evidence relevant to only one of them could get missed out. "It may very well be that a witness knows of significant exculpatory evidence for one accused, but that such evidence will not come out due to the presence of other accused," she said.

Djordje Sarapa, defending Pandurevic, is already arguing that his client should be given a separate trial because, he says, there is a conflict of interests. In his response to the joinder motion, Sarapa suggests that Pandurevic "was undertaking reasonable actions in order to save the people of both sides in the conflict, even though it was contrary to the orders of the superiors". The prosecutors themselves recognise that there is already a conflict of interest between Trbic and some of the other accused. In the testimony he gave at the trial of Bosnian Serb army officers Vidoje Blagojevic and Dragan Jokic, and also in his statements to the prosecutors, Trbic has already "implicated several of his current co-accused in the Srebrenica crimes", according to the prosecution. However, McCloskey argues that the danger of such conflicts of interest would only work as an argument against a joinder if the case evidence were to be heard by a jury rather than professional judges.

There is considerable speculation that one or more of the accused may be prepared to do a deal with prosecutors so as to testify about the others in return for receiving a lower sentence. "It is not beyond reasonable expectation", commented Chen. Some observers even suggest that the joinder motion is a way of encouraging those accused who were lower down the military hierarchy to consider testifying.

Chen points to lower-ranking officers like Trbic, who he says may ask themselves, "why should I bear the same responsibility as Beara [the former security chief] who was higher up the chain?...These are the pressure points", says Chen. Others like Beara and Popovic "are the lynchpins, where there would be no deal", he added.

Completion Strategy

The tribunal faces a deadline of 2008 by which time it is required by the United Nations to have finished the all trials except those that have gone to appeal. The prosecutor's office argues that a joint trial will help achieve that target. The Hague tribunal "cannot possibly try two or more Srebrenica trials within the dates of its current mandate," warned prosecutor McCloskey, noting that individual trials would each "take a minimum of one year, and likely longer". Armatta suggests that the trial chamber is likely to agree to the joinder because of the time pressures and associated resource limitations, "as long as they don't feel it significantly impinges on any of the accused's rights".

Cruvellier, though, expresses doubt that the joint trial could be completed in the three years officially left to the tribunal. The defence counsel for Nikolic, Jelena Nikolic, argues along similar lines, saying that one big trial could in fact use more resources, while the large number of defendants would probably make objections and motions more frequent. The big trial "is not likely to be shorter than two or three trials held separately", she says. In the nearest parallel case – that in Arusha - 61 separate motions have been filed and ruled upon by the trial chamber over the last four and a half years. Cruvellier, a long-term observer of the Arusha court, also says that the experience there shows that "the whole argument about gaining time thanks to common witnesses in a joint trial has never been proved right".

Other observers see the joint trial as potentially part of a longer prosecution strategy, which, because it is unlikely to be completed by the end of 2008, would provide an extra argument for keeping the tribunal going beyond the deadline set by the UN. Already both the president and the chief prosecutor of the tribunal have told the UN that they will have to carry on trials until 2009 at least. "The OTP [Office of the Tribunal Prosecutor] has hardly shown a strong and clear strategy to complete trials before 2008. So there might be some further concern that by going for a joint trial, they know they could be stuck in the middle of the trial when the deadline comes," said Cruvellier. If that were the case, it would run contrary to the arguments that the chief prosecutor and the tribunal president have put to the UN Security Council: that joint trials would provide judicial economy.

What is curious is that the two sister tribunals are choosing different strategies as the deadline approaches for their winding down. In Arusha, the next three years will be dominated by new, short trials of individuals – no new joint trials are envisaged – while it continues slogging through a number of extremely long joint trials which have already started. The Hague, on the other hand, is looking to hold an all-new mega trial.

In part, that choice is explained by the huge increase in detainees from Serbia who have arrived at The Hague in recent months –simple arithmetic makes joint trials look inevitable. However, the judges deciding on the Srebrenica joinder motion may want to pause for a moment and consider how far the Butare trial has got four years after it began. It was only in January of this year that the first and most senior of the defendants, a former minister, was able to start presenting her case. There are five more defendants to go, and each of their lawyers is following a different strategy. The president of the Rwanda tribunal told the Security Council recently that the Butare trial might finish its initial proceedings during 2006. But five years after the trial started, nobody can be sure any more how much longer it will really take.