Karadzic Trial to Start Without Him

Accused vows to boycott trial, claiming he has been denied enough time to prepare.

By Rachel Irwin and Simon Jennings in The Hague (TU No 621, 23-Oct-09)

	Radovan Karadzic. © ICTY

The Hague tribunal has announced it will begin proceedings against Radovan Karadzic on October 26 as scheduled – although the former Serb president has vowed not to attend.

In a letter to the court dated October 21, Karadzic wrote that “we now have the worst scenario possible, which should have been avoided at all costs…the biggest, most complex, important and sensitive case ever before this tribunal is about to begin without proper preparation”.

Karadzic, who is representing himself, previously requested that the start date of his trial be postponed for ten months, claiming that he has not had enough time to prepare his case. Both trial and appeals judges rejected that request.

He wrote this week that “no lawyer in this world could prepare a defence within this period of time” and that he “shall not appear” before the court on the trial’s start date of October 26.

“As soon as I will be prepared, I will be happy to inform the [judges] and the [prosecution] a few weeks in advance,” Karadzic concluded.

While the court has confirmed that the trial will still begin on October 26, it remains to be seen what actions the judges will take if Karadzic does not appear.

Lawyers following the case say that the judges could allow the prosecution to deliver opening statements, even if Karadzic is not there to represent himself.

“The opening statements are not evidence,” said Alex Whiting, a former prosecutor at the Hague tribunal and a law professor at Harvard University. “There is no cross examination required and therefore there would be no prejudice to the defendant.”

The opening statements could be followed by a delay, said Whiting, or the judges could simply decide to move forward without Karadzic.

“The judges might decide that [not appearing in court] is his choice and the trial will proceed without him,” Whiting said. “There is going to be an enormous temptation to proceed that way because the judges are determined to make this trial run on time and efficiently.”

That is especially true after what happened during the trial of former Serbian president Slobodan Milosevic, who died in prison four years into the prosecution’s case. Like Karadzic, he was representing himself against a very long and complicated indictment.

“There were so many attempts in the Milosevic trial for him to be the master of the agenda,” said Stephane Bourgon, a defence lawyer at the tribunal. The judges may be stricter now to avoid losing control of the trial, he said.

If the judges continue without Karadzic, however, they would have to appoint a lawyer to argue his case in court – a scenario which could result in further complications and delays.

“Whoever steps in at this point is going to have a tremendous disadvantage because they don’t know the facts,” explained Michael Karnavas, a defence lawyer at the tribunal.

Karadzic, the president of Bosnia’s Republika Srpska from 1992 to 1996, has insisted on representing himself since his arrest in Belgrade in July 2008, after 13 years on the run.

Prosecutors are seeking to prove that he was the political force behind the massacre of almost 8,000 Bosniak men and boys at Srebrenica in July 1995.

Karadzic is further charged with orchestrating the 44-month campaign of sniping and shelling on the city of Sarajevo, which resulted in nearly 12,000 civilian deaths.

The indictment – which lists 11 counts in total – also alleges that he is responsible for crimes of persecution, extermination, murder and forcible transfer which “contributed to achieving the objective of the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory”.

Most observers agree that going ahead with the trial without Karadzic could be problematic for such a high-profile and long-awaited case.

“The question is more one of perception and legitimacy of the proceedings, if they choose to go forward without him present,” said Diane Marie Amann, a law professor and director of the California International Law Center.

Karnavas said that while the judges have to ensure the accused receives a fair trial, they also have to make sure that “justice is seen to be done”.

“On the other hand, if a client refuses to cooperate, what should we do?” he said. “Unlock the cell and say ‘It was great having you here and now you can go home?’”

Reaching a compromise with Karadzic is another option, the lawyers said, and probably the best one.

“I think that they really should negotiate with him, and [set] some kind of a minimum delay that would be acceptable to him, and to the prosecution and to the agenda of the [court],” Bourgon said.

Whiting added that Karadzic’s participation is beneficial to everyone involved.

“It’s in everybody’s interests - the prosecution’s interest, the defence’s interest and the judges’ interest - that Karadzic participates in the trial and that he is represented effectively, whether it is by himself or with counsel, “ said Whiting. “If that can be accomplished, that’s what everybody will want.”

At this point, however, a significant delay in the proceedings is inevitable, said Kevin Jon Heller, one of Karadzic’s legal advisors and a senior lecturer at Melbourne Law School.

Since Karadzic originally insisted on a ten month delay, any negotiated postponement is likely to be the order of at least several months, he said. Furthermore, if the court decides to appoint a lawyer to the case, he or she would need some time to prepare.

“I see no scenario under which this trial will start before 2010,” Heller said.

Rachel Irwin and Simon Jennings are IWPR reporters in The Hague.