Hidden Challenges of Multi-Accused Trials

Addressing the UN General Assembly on October 9, the president of the Hague tribunal Fausto Pocar spoke proudly of the “innovative reforms” implemented since his presidency began in November last year.



These reforms, he said, allowed the tribunal for the first time in its history to conduct six trials simultaneously involving an unprecedented 25 accused.



Pocar said this was made possible by three large multi-accused trials, which began this year “at least six months earlier than originally planned” - meaning they would be complete by 2008, which is the deadline for all trials at the tribunal to finish.



With a combined total of 21 indictees, these are the largest joint trials to be held at the tribunal to date, and courtrooms have had to be renovated to accommodate the swelling numbers of defendants in the dock.



The first began in April this year with six former Bosnian Croat leaders accused of the persecution, imprisonment and expulsion of Muslims in Bosnia and Hercegovina during the Muslim-Croat conflict of 1992 to 1994.



Then July saw the start of the “Kosovo Six” trial, with the same number of former Serb officials charged with responsibility for the ethnic cleansing and persecution of thousands of ethnic Albanians in 1999.



The largest of the three, the “Srebrenica Seven”, began the same month, with former Bosnian Serb army and police officers on trial for atrocities related to the Srebrenica massacre in Bosnia in 1995.



Until this year, the largest trial held at the tribunal was that of Kvocka et al in 2000 during which five Bosnian Serbs were prosecuted for crimes committed at the Omarska and Keraterm prison camps in north-west Bosnia in 1992.



COUNTDOWN TO COMPLETION



With the completion deadline looming, and UN funding set to dry up, the tribunal is under both political and financial pressure to finish on time.



Looking for a way to process trials more quickly and maximise the court’s capacity, law-makers at the tribunal have adopted a similar technique to that pioneered at Nuremberg, the first international war crimes tribunal that was set up after the Second World War.



The opening trial at Nuremberg saw 21 Nazi leaders lined up to face prosecution for monstrous war crimes.



Such large-scale, multi-accused trials haven’t featured at the tribunal before, mainly because suspects have trickled into the UN detention facility at different times.



But following a series of surrenders in the last two years, prosecuting these 21 accused in three large trials seems like an obvious way of processing their cases quickly and efficiently.



Trying those accused of crimes “committed in the course of the same transaction” – as required by the tribunal’s rules – not only reduces costs, but also pre-trial preparation time and time spent in court.



Greater judicial economy lessens the trauma witnesses endure, as the number of times they have to testify is markedly reduced, and defendants spend less time in detention before and during trials, so their human rights are protected.



But some tribunal observers dispute the claim that joint trials guarantee expeditious justice.



Thierry Cruvellier, editor of International Justice Tribune, cites the example of the Hague court’s sister tribunal, the International Criminal Tribunal for Rwanda, ICTR, in Arusha, Tanzania. He says joint trials there have “taken as many years as there are accused persons”.



An “extreme example” of this, he says, is the drawn-out Butare case in which six people have been on trial for genocide since June 2001, and which is set to finish no earlier than July 2007.



Everard O'Donnell, the spokesperson of the ICTR, attributes delays in Butare to the sheer size of the trial; the complexity of the prosecution case; the court’s translation system; and the fact that members of the defence “have been at each other’s throats”.



Cruvellier suggests that launching three joint trials at the Hague tribunal with only two years to go could mean that they are still in progress when the completion date arrives.



But Anton Nikiforov, spokesman for the Office of the Prosecutor, dismisses this concern, saying all three so far are progressing as planned with no significant delays or problems.



He does, however, highlight another problem that the prosecution has to contend with when deciding whether to apply to join a case.



With such a focus on the completion strategy and time pressure as the "single, over-arching issue" the prosecution may have to apply to join cases where it would be normally easier or more appropriate to try a defendant alone.



The tribunal's rules state a co-accused in a joint trial may be tried separately to avoid "conflict of interests that might cause serious prejudice to an accused".



Nikiforov says the increasing pressure to meet the completion strategy

deadline by condensing court time renders other factors of lesser

importance, when the prosecution considers whether to apply to

join a case.



But he stresses that an application would not be made if there was a

possibility that joining the trial would prejudice the fairness of the

proceedings.



When the prosecution first proposed that the six Srebrenica cases be merged into one indictment in June last year, three of the indictees objected on the grounds of conflict of interest.



The defence of Radivoje Miletic and Milan Gvero claimed that a conflict would arise from the fact that they were the only ones not charged with genocide.



While the lawyers of Vinko Pandurevic argued there would be a conflicting defence, because during combat, their client “was undertaking reasonable actions to save people”, contrary to the orders of his superiors.



Still in its decision to join the trial, the chamber insisted that “no convincing argument” had been advanced to suggest a conflict of interest that would prohibit prosecuting the accused together.



CUT-THROAT DEFENCE



Such conflicts can make it hard to balance the needs of each defendant.



Lawyers are free to use a “cut-throat” defence, and with no limits on how far they can go, tactics can become ruthless in a battle to shift the blame.



Named after a card game in which players score individually rather than in partnership, this describes a defence strategy in which one accused tries to pin the blame for a crime on the other, in an effort to save his own skin.



Such tactics can cause the most carefully constructed defence case to collapse like a house of cards.



A cut-throat defence was employed in a murder case in the UK in 2002 when two men - Edward Randall and Nicholas Glean - stood trial accused of killing Michael Barber, who died from head injuries after being attacked in Hertfordshire in 2001.



Each man tried to pin the blame on the other, and after a two-week trial, Randall was convicted of manslaughter, while Glean was acquitted.



Hague-based journalist and president of the Association of Journalists at the International Criminal Court, AJICC, Thomas Verfuss, says such a defence is surprisingly rare at the tribunal.



“That’s something you would expect, where one accused would maybe try to blame the other for something he has done, but it happens less often than you might imagine,” he said.



But even where there is no direct finger pointing by co-accused, the defence strategy of one indictee can still harm that of another.



In the trial of the Vukovar Three in September this year, it was every man for himself among the three former officers in the Yugoslav People’s Army, JNA, who presumably once operated closely together.



A witness was called to testify in defence of Mile Mrksic who, together with Veselin Sljivancanin and Miroslav Radic, stands accused of the 1991 massacre in the eastern Croatian town of Vukovar in which at least 264 non-Serbs were slaughtered.



But while Mrksic’s defence witness testified for the principal accused, he spoke against his co-accused, Sljivancanin.



Dusan Jaksic, who commanded the Vukovar Territorial Defence Force, before being sacked by Sljivancanin, claimed that he appointed “riff-raff, criminals and incompetent people” while removing “the honorable and honest”, said trial reports.



Sljivancanin apparently replaced Jaksic with Miroljub Vujovic, who four days later, took part in the slaughter of more than 200 Croats detained at a farm in Ovcara - a crime he was convicted of by the Serbian courts last year and sentenced to 20 years in prison.



Jaksic’s attack on Sljivancanin led to big problems with the two men’s defence case, as Sljivancanin’s lawyer, Momcilo Bulatovic, attempted to undermine the credibility of Mrksic’s witness.



And neither is it the first time the defence teams of the three former officers have clashed.



Earlier this month, Mrksic, who was recovering from surgery, refused to permit his co-accused, Radic, to start his testimony in his absence, and the trial was adjourned for a week until he recovered.



At the time of the alleged crimes, Radic served under Mrksic and it was clear that his testimony could potentially implicate his former boss.



Exasperated by the delay, Borivoje Borovic, Radic’s defense counsel, urged the trial chamber “put a stop to the stalling by the first accused”.



The lack of trust on show between the men was compounded when Borovic then cast doubt on medical assessments that pronounced Mrksic too ill to attend.



This trial shows coordinating more than one defence case is not an easy task, and can be fraught with clashes, setbacks, and delays.



STRIKING A DEAL



Verfuss says defence cases may also suffer in situations where some indictees admit guilt, and their confessions implicate their co-accused.



This happened, he says, in the trial of two Bosnian Serb Army, VRS, officers Vidoje Blagojevic and Dragan Jokic, who were convicted in January 2005 for crimes related to the Srebrenica massacre of 1995 which saw an estimated 8,000 Muslim men executed by VRS forces.



Blagojevic and Jokic were originally indicted with two other VRS officers - Momir Nikolic and Dragan Obrenovic.



But in May 2003, just as the trial was due to start, Nikolic struck a deal with prosecutors. Days later, Obrenovic followed suit and made a similar deal.



Both pleaded guilty to persecutions and agreed to testify against their former colleagues, who had chosen to plead not guilty and face trial instead.



The two dealmakers did not get off lightly. Nikolic was sentenced to 27 years, later reduced on appeal to 20 years, and Obrenovic got 17 years. But significantly, the charges of genocide against them were dropped.



Blagojevic, on the other hand, was found guilty of complicity in genocide and was sentenced to 18 years.



Nikolic’s testimony against Blagojevic was the most damning in implicating his former boss in the massacre of Muslim men.



“It was apparent to me that Blagojevic was fully informed of the transportation and killing operation and expected me to continue to carry out the duties related to those operations,” he said.



While Jokic, later sentenced to nine years for crimes against humanity, was incriminated by Obrenovic, who testified about the logistical support he supplied for the executions.



Some trial observers claim that by joining trials, there’s pressure on indictees to strike a deal with prosecutors, particularly those keen to sever their case from those co-accused charged with graver crimes.



But Verfuss doesn’t see this as a significant risk, and again cites the example of Blagojevic and Jokic.



Jokic was the only one of the four not accused of genocide, but he felt no need to make a plea agreement, and instead chose to face trial, he said.



ADVANTAGES OF A COORDINATED DEFENCE



With record numbers of indictees standing in the dock together, there’s greater potential for ruptures between defendants than ever before.



Though it’s proving difficult in the Vukovar case to coordinate the defence of three accused, it’s not necessarily the case that it must be even harder to construct a defence with six or seven indictees.



Zoran Zivanovic, defence counsel of Vujadin Popovic, the principal accused in the Srebrenica Seven case, says that four months into the trial, there have been no clashes of interest between defence counsels.



So far, it seems unlikely that cut-throat tactics will be employed.



“At the moment, my client cannot see any advantage from a defence that shifts the blame to some of the co-accused,” he said.



In fact, lawyers in this case are working closely to coordinate their clients’ defence, with particular cooperation between those whose clients are charged with more similar crimes.



Pitting the wits of several legal brains against the prosecution can even strengthen a defence, and Zivanovic says that lawyers in this case will warn each other if something arises that may harm the defence of a colleague’s client.



A joint trial can also alleviate some of the stress suffered by defendants and their lawyers, as together they shoulder the “heavy burden a trial brings”, he said.



But such cooperation has its limitations, for while they may stand trial together, indictees will face judgment, and perhaps sentencing, individually.

Therefore defence teams generally plan strategy separately, with the ultimate objective being the defence of their client alone.



“I don't expect that witnesses I intend to call will testify against any of the accused, but I could not exclude such a situation,” said Zivanovic.



So in the early stages of this trial, everything is running to schedule, with no clashes between defence.



If this – and the other two multi-trials – continue to progress at a rate which allows the tribunal to meet its completion date, it seems likely that the strategy of prosecuting groups of suspect together could be adopted by other international courts, such as the International Criminal Court, ICC, the first permanent international forum for prosecuting war crimes.



At first glance, it appears logical to consider joining the cases of four senior leaders of the rebel group the Lord’s Resistance Army, LRA, indicted by the ICC for war crimes committed in Uganda since July 2002.



But whether this will happen depends on logistical factors, such as whether defendants are arrested separately or together, said an ICC spokesperson.



She was also keen to stress that indictees would be given “the opportunity to request or oppose joinder” before judges make a final decision.



With international war crimes courts still in their infancy, only time will tell if multi-accused trials are an efficient and fair way of prosecuting suspects, but what is clear from cases so far is that showing one’s hand and coordinating defence tactics can only benefit those on trial.



Caroline Tosh is an IWPR reporter in The Hague.