Mladic Unlikely to Face Trial With Karadzic

Rachel Irwin

Senior Reporter

Friday, 27 May, 2011

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Ratko Mladic is unlikely to stand trial alongside his former boss, ex-Bosnian Serb president Radovan Karadzic, experts say.

After years as a fugitive, Mladic was finally apprehended in Serbia on May 26 and is due to be transferred to the The Hague in the coming days, where he will have an initial appearance before a pretrial judge at the International Criminal Tribunal for the Former Yugoslavia, ICTY.

Among the many questions that have surfaced since Mladic’s arrest is what his trial will look like, and if it will be joined with Karadzic’s, which has been ongoing at the ICTY for more than a year now. Karadzic also evaded arrest for many years before his arrest in Belgrade in 2008.

As commander of its main staff from 1992 to 1996, Mladic was the highest authority in the Bosnian Serb army, save for his boss, Radovan Karadzic, who was president of the self-declared entity of Republika Srpska and supreme commander of the army.

The two men are charged with some of the worst atrocities of the Bosnian war and are alleged to have been part of a joint criminal enterprise, the purpose of which was the “removal of Bosnian Muslims and Bosnian Croats from the Bosnian Serb-claimed territory in [Bosnia-Hercegovina]”, states Karadzic’s indictment.

These crimes include the 44-month shelling and sniping campaign against Sarajevo, which killed about 12,000 civilians, and the 1995 Srebrenica massacre, during which some 8,000 Bosniak (Bosnian Muslim) men and boys were murdered. It is considered the worst single atrocity on European soil since World War II.

Mladic and Karadzic are also charged with crimes of genocide, persecution, extermination, murder and forcible transfer in relation to various municipalities across Bosnia.

Prosecutors moved to amend Mladic’s indictment in May of 2010, in order to align it more closely with Karadzic’s. One day after Mladic’s arrest, judges confirmed these changes, save for one incident relating to the Srebrenica massacre.  Prosecutors are to refile the indictment, minus this particular incident, within seven days.

When the prosecution filed its motion to amend the indictment last year, they stated that the updated document would “facilitate the possible joinder of this case, either in whole or in part, with the Karadzic case, in the event that [Mladic] is arrested in a reasonable amount of time.”

That was a year ago, when the Karadzic trial had only just gotten underway. Now, prosecutors have finished presenting evidence related to Sarajevo and have moved on to crimes committed in the municipalities.

According to Karadzic’s legal adviser, Peter Robinson, it is “too early to speculate” on whether the cases will be joined. “It is up to the trial chamber,” he told IWPR.

The Office of the Prosecutor, OTP, stated on May 27 that a joinder is a “possibility” but that no decision has been made on whether or not to ask for one.

Law experts, however, say that joining the two cases at this point would be complicated at best.

“The prosecution’s problem is, what does it do with the fact that it’s already heard a year’s worth of witnesses [in the Karadzic trial]?” said Nick Kaufman, currently a defence lawyer at the International Criminal Court, ICC, who formerly worked as a prosecuting lawyer there and at the ICTY.

As a result, even if judges approved a joinder, the Mladic defence would likely demand that those witnesses return to be cross examined for a second time, Kaufman said. Not only would this be logistically complicated, but it could significantly prolong an already lengthy trial that will go on for a few more years as it is.

“It would be a violation of Karadzic’s right to an expeditious trial if he has to wait [while witnesses are cross-examined again], and it would be a mockery of the process to have Mladic injected in the middle of trial,” said Michael Karnavas, a defence lawyer at the ICTY. He added that the possibility of joining the proceedings together at this point is “ridiculous”.

In addition, evidence produced in other trials at the tribunal has suggested that Karadzic and Mladic didn’t always see eye to eye during the war, and this could create further difficulties for a joint trial.

However, if Mladic goes to trial separately on an indictment that is nearly identical to Karadzic’s, prosecutors could still be faced with the prospect of bringing back all the same witnesses for a second time, and having what might appear to be a “repeat” trial.

In this situation, “the defence is perhaps more likely to benefit, since the prosecution is having to show its hand as it lays out its case against Karadzic”, Karnavas said.

This situation, however, is typical in cases involving conspiracy where co-defendants are tried separately, explained Michael Scharf, a law professor at Case Western University who has published three books about the Hague tribunal.

“Absolutely Mladic’s lawyers will look at every single statement made by every witness and figure out how they can exploit them during his trial,” he said.

And while two separate trials utilising the same evidence isn’t necessarily a problem from a procedural perspective, it could impart a “strange narrative of justice”, said Dov Jacobs, an expert on international criminal law who is currently a postdoctoral researcher at the University of Amsterdam.

This is especially true if, for example, prosecutors are presenting their case in the Mladic trial while Karadzic is rebutting that same evidence during his defence case.

“If anything, you could say that there will be no closure on the Karadzic case – even though there might be legal closure – until the Mladic case ends,” Jacobs said. “It might not be joined, but it’s one case, from a narrative point of view.”

Nonetheless, observers say that Mladic’s arrest is extremely important for the tribunal’s legal and global legacy.

“I think the prosecution of Mladic is a critical component to finalising the tribunal’s work,” said Mark V Vlasic, an adjunct professor at Georgetown University who was a member of the Slobodan Milosevic and Srebrenica prosecution teams.

“He’s one of the most important alleged perpetrators to be investigated and prosecuted,” Vlasic continued. “I think that having personally worked on [one of] the Srebrenica investigation and prosecution teams, I would have been very disappointed to see the tribunal close its doors before Mladic was tried.”

Others say that Mladic’s long-awaited arrest shows that the tribunal, despite some difficulties, has ultimately been able to exert influence in the Western Balkans and the international community.

This process began with the arrest of former Serbian president Slobodan Milosevic in 2001 – who died before his trial could be completed – and followed by Karadzic’s capture in 2008.

“It is a culmination of a process that has effectively created or instigated regime change in Serbia and the government of the [Serbian entity in Bosnia] as well,” said historian Robert Donia, who has testified as an expert witness in numerous trials at the ICTY.

And in terms of the tribunal’s reputation for bringing to justice those most responsible, the arrest was critical, Scharf said, the professor at Case Western University. When the ICTY was created in 1993, he was working in the United States State Department and helped to draft the tribunal’s statute and rules of procedure.

Scharf said that he believes the tribunal was originally formed in order to try Milosevic, Karadzic and Mladic.

“In the end, the tribunal would forever have been thought of as a failure if the last of the triumvirate had escaped justice,” Scharf said.

“I think the perception has to be now that this was a legitimate tribunal that was able to prosecute the high level figures that were most responsible,” he continued. “It sends an important signal worldwide that those who are indicted by international tribunals, like Muammar Gaddafi in Libya, and Omar al-Bashir in Sudan, are on borrowed time.”

Rachel Irwin is an IWPR reporter in The Hague.