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ANALYSIS: Defence Lawyers Demand 'Equal Arms'

Defence attorneys say they are massively out-gunned by the resources of the prosecutor's office, and ask the court to pay up or dismiss charges against their clients. Have they gone too far?
By Mirko Klarin

The counsel for Zoran Zigic recently put forward a novel defence, challenging a key component of the prosecutor's legal doctrine. According to his indictment, the defendant committed alleged crimes in Omarska and Keraterm camps "as part of the common purpose of the Bosnian Serb leadership . . . to create an ethnically pure Greater Serbia".


Belgrade lawyer Slobodan Stojanovic rejected the "common purpose" doctrine as too broad to have real meaning as part of an indictment, and he chose a very original way to demonstrate the point.


"There are many 'common purposes' in human activities, not all of them criminal," he argued. "One may say that the common purpose of all lawyers here, regardless of whether they are defence or prosecution, is to take money from the United Nations."


Stojanovic's bluntness shocked those present at the trial. Provoked, Judge Fuad Riad reacted by asking, "Aren't truth and justice the main common purpose of the tribunal?" Zigic's lawyer was compelled to agree that they are.


Yet truth and justice are closely linked to money, certainly as far as some defence lawyers are concerned. Calling on the principle of "equality of arms", they have in recent weeks warned the tribunal that truth and justice will not prevail if they are not given more money to represent their clients.


Do they have a case, or are they only trying to extort more money from the UN?


Topping even Stojanovic was US lawyer John E. Ackerman. In early May, he lodged a motion to dismiss the indictment against his client, Radoslav Brdjanin - the former deputy prime minister of the Serbian entity in Bosnia and Herzegovina accused together with Gen. Momir Talic of genocide in Bosnian Krajina, north-east Bosnia - unless the court pays him more.


Already the talk of the court, his motion has gained the popular name "Money or - drop the charges". His argument is based on the following points:


* that the tribunal "has not provided and is not prepared to provide sufficient resources to enable the defendant to properly and legally defend" himself;


* that the tribunal "either has the necessary resources to provide equality between the prosecutor and defence or should make a request to the Security Council/General Assembly for additional funding, but fails to do so";


* that the defendant is being "denied his right to a speedy trial by the refusal of the Tribunal to provide adequate resources";


* that it is "abundantly clear" that the international law principle of Equality of Arms, which "requires that the Prosecution and the Defence be placed on an equal footing so that neither has significant advantage over the other" has been "violated since the very beginning of this case".


Each accused, whose defence is paid for by the tribunal, has the right to a defence counsel, a legal assistant and two investigators, and, from two months prior to the beginning of the trial, a co-counsel. (Of all 41 defendants now at The Hague, only the defence teams for Tihomir Blaskic, Dario Koric and General Talic are not paid by the tribunal. Who is paying is not officially known, although there are rumours that Blaskic's defence is or was funded by Croatia; Kordic's, by the so-called "Herzeg-Bosna"; and Talic's team, by France.)


Due to the huge amount of evidence (some 180,000 pages of documents), Ackerman requested additional legal assistants - one has been already granted - more investigators, an English-speaking legal consultant, plus a co-counsel immediately, and not just two months before the beginning of trial.


Ackerman noted that there are five lawyers in the prosecution team working on the Brdjanin-Talic case, plus "a virtual army of assistants and investigators". Declining to put a precise figure on how much he would require to be on an equal footing with the prosecution, he pointed out that the defence team for Timothy McVeigh in the Oklahoma City bombing case was provided a budget of $20 million.


The tribunal's 2001 budget for defence counsel is $13.3 million. The average monthly costs for one defendant's representation is around $25,000, which according to the Registrar is comparable with the legal aid systems of most advanced, Western countries.


For more complicated cases involving severe crimes (genocide) or covering extended time and locations - definitely including the Brdjanin and Talic case - additional financial aid is provided. So far, Ackerman has been granted an additional package of $50,000, and the Registrar's office confirms that a further amount would be provided prior to the start of the trial.


Much larger packages - $500,000 for the pre-trial stage - have been granted to the defence lawyers of former Bosnian Serb political leaders Momcilo Krajisnik and Biljana Plavsic, accused of genocide in Bosnia. IWPR has learned that further similar "packages" have also been prepared, which would mean the tribunal will invest more than $1 million dollars per defendant for trial preparation alone.


Yet this sum is still not enough for Robert J. Pavich, a US lawyer of Serbian origin who is defending Plavsic. His request for a separate trial was rejected last week. He is now appealing against the decision.


Since Krajisnic was arrested and deported to The Hague nine months prior to the voluntary surrender of Plavsic, her attorney has demanded "additional time and resources . . . necessary to protect the interests of justice".


His motion asserts that separate trials are the only solution, since "to proceed to trial in November 2001 would substantially prejudice Ms Plavsic, [while] to delay the trial in order to accommodate Ms Plavsic's needs might substantially prejudice Mr Krajisnik's right to be tried without undue delay".


In Plavsic's case, Pavich also insists on the principle of equality of arms. He claims that the prosecution team spent a combined total of "500,000 hours and $50 million" preparing her case, and requests similar resources for the defence.


It is not clear how Pavich came up with such figures, especially since the annual budget of the Office of the Prosecutor (OTP) is just more than $30 million dollars. This amount covers not only legal teams preparing for and taking part in trials but also costs of participating in appeals procedures, charges for the teams working on 36 on-going investigations against some 150 suspects, as well as other OTP expenses. In comparison, this year's defence budget of $13.3 million covers expenses only for the defence teams representing the 41 accused who are now held by the tribunal, with cases in pre-trial, trial or appeals stage of proceedings.


Indeed, Hague prosecutors might not protest if at least one aspect of equality of arms were achieved. Subtracting costs from the usual monthly budget, defence lawyers can earn up to $19,000 a month per defendant. Prosecutors, whose must prove guilt beyond a reasonable doubt and who usually work on several cases at a time, cannot earn even half that sum.


Mirko Klarin is IWPR senior editor for the war crimes tribunal and editor-in-chief of SENSE News Agency.


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