Prosecution, Judges in Karadzic Case Stand-Off

Prosecutors bringing the case against former Bosnian Serb president Radovan Karadzic at the Hague tribunal have stood their ground in the face of pressure from judges to cut the indictment.



In the last court meeting between parties on September 8, pre-trial judge O-Gon Kwon, made a number of suggestions as to how the prosecution could limit the time it needs to present its case - including dropping charges related to alleged opportunistic killings in Potocari in the run up to the genocide in the eastern Bosnian enclave of Srebrenica in July 1995.



The existing indictment drafted on February 27, 2009, outlines five such execution incidents involving Bosniak men and boys on July 12 and 13 during the course of the wider Bosnian Serb operation at Srebrenica.



The judge also suggested that the number of municipalities in relation to which the prosecution plans to present criminal evidence should be cut from 27 to between 10 and 12.



However, prosecutors wrote to the three-judge panel on September 18 arguing that “those further reductions would have an adverse impact on the prosecution’s ability to fairly present its case”.



Kwon’s proposal that the prosecution cut the indictment further after it had already agreed to make certain cuts in response to a request from the judge’s predecessor on the case, Lord Iain Bonomy, sparked angry protest in the Bosnian capital, Sarajevo.



Members from some of the conflict’s victims’ associations took to the streets last week and set fire to pictures of tribunal judges outside the city’s United Nations office.



There is concern that if prosecutors limit the amount of evidence presented and reduce the number of crime sites covered during their case, this will jeopardise their bid to prove the most serious charges against the former president of the Serb-dominated region of Republika Srpska.



Karadzic faces an 11-count indictment, charging him with two counts of genocide for the forcible permanent removal of Bosniaks and Bosnian Croats from large parts of Bosnia as well as for the 1995 massacre of approximately 8,000 Bosniak men and boys at Srebrenica.



He will also go on trial for the three-and-half-year siege of Sarajevo which resulted in the deaths of up to 12,000 civilians.



Prosecutors have already narrowed the indictment down from its original form, which accused Karadzic of orchestrating crimes committed across 45 municipalities.



Arguing for the alleged opportunistic killings in Srebrenica to be retained in the indictment, prosecutors say that the charge demonstrates the horrific treatment suffered by Bosniaks at the hands of Bosnian Serb forces as they were forced to leave the enclave.



“The opportunistic killings at Potocari reflect the level of terror which was inflicted on the civilian population and are therefore relevant to its forced departure from the Srebrenica enclave,” they wrote to judges on September 18.



The evidence is also important to counter Karadzic’s argument that civilians were treated humanely following the fall of Srebrenica, prosecutors say.



The prosecution also reiterated this week its willingness to reduce its evidence by a third and address alleged crimes in a total of only 17 municipalities, as well as two detention camps in Brcko and Banja Luka.



However, it declined to make further cuts to the number of municipalities it wishes to address, saying that it only planned to present a small amount of evidence for each.



“The prosecution has selected very few witnesses for the majority of municipalities it has retained, whose evidence it intends to present expeditiously,” they informed the court, arguing that reducing municipalities further would overly limit Karadzic’s charged responsibility while not actually saving much trial time.



“The cost of further reducing the municipalities and depriving the trial chamber of valuable evidence and reducing the scope of the accused’s criminal responsibility far outweighs the minimal reduction in trial time,” the prosecution added.



Judges will now take account of the arguments raised by the prosecution. However, under tribunal rules, if they deem it necessary, they are entitled to require prosecutors to cut the indictment further before the start of the trial, which is currently slated to begin on October 19.



In which case, it would be the judges rather than the prosecutors who would likely decide which elements of the charge sheet should be dropped, although prosecutors could appeal any such order from judges.



Judges are under pressure to complete the trial as the court seeks to complete its UN mandate. The court is scheduled to finish its work by the end of next year, but is set to continue until mid-2013 in order to complete its remaining caseload. Kwon has stated that Karadzic’s trial should not last more than two and a half years.



The stand-off between the judges and the court’s prosecutors has again raised the lingering question about what ultimate goal the tribunal is looking to fulfil through bringing war crimes suspects from the former Yugoslavia to justice.



Since its inception in 1993, the court has attempted not just to convict those responsible for the worst atrocities committed during the war in the former Yugoslavia and bring a sense of justice to the victims of crimes, but also to provide a historical account of the conflict.



“One of the explicit aims of the tribunal was to provide a historical record [of what occurred during the war], not simply to secure convictions,” explained Paul Troop, who has defended war crimes suspects at the Hague tribunal.



“And there may be a feeling on part of the prosecution, it may be shared by the international community, it may be shared by the victims in Bosnia, that if he is not prosecuted for wrongdoing which properly reflects his culpability then the prosecution will somehow have fallen short.



“The prosecution will not want to be seen to be soft pedalling at all. So if anybody is going to take responsibility for [cutting the indictment] I am sure the prosecutor would prefer that it is the court rather than the prosecutor.”



With the early release of former Bosnian Serb presidency member, Biljana Plavsic, announced by the tribunal last week, criticism from victims’ groups about what they see as the tribunal’s disregard for their need for justice has escalated.



Plavsic was sentenced to 11 years in prison by the tribunal in February 2003 after she pleaded guilty to political, racial and religious persecutions as a member of the Bosnian Serb presidency alongside Karadzic. She had originally been charged with eight counts of war crimes and crimes against humanity, including genocide, committed in Bosnia.



“With Biljana Plavsic barely punished [and] given early release, it would be very wrong to yet again compromise and take the easy option and let off one of the few key perpetrators who hasn’t been brought to justice [and] actually trim his indictment further. How many more times are the victims going to be let down?” Dr Marko Attila Hoare, a Balkans specialist at Kingston University in London and former investigator at the court, told IWPR.



Troop said that judges are faced with balancing a number of priorities when it comes to hearing different cases at the court.



“Clearly, the interest of the victims will be that their particular harm is properly reflected by the prosecution but the judges’ task is different,” he told IWPR.



“They have to balance a number of different interests – those being efficiency [of the case], the strength of the charges, and cost, with bringing suspects to justice. So in that process, even thoroughly deserving cases won’t ever have their day in court.”



But according to both Hoare and Troop, the number of actual crime sites included in the indictment will affect the prosecution’s ability to prove the most serious charges, such as genocide.



It is paramount that the indictment is left alone and that no further municipalities are cut in order for judges to assess the full extent of the alleged crimes across Bosnia during the conflict, Hoare said.



“In terms of establishing the genocidal pattern across the whole of the country, it’s important to keep a broad base of municipalities,” he said.



One of the central controversies stemming from the war is to what extent there was a systematic plan of genocide across Bosnia or whether the crimes occurring in different municipalities were less entwined, Hoare explained.



“So the more you trim the crime base down, the more skewed a picture you get. For the full picture to be made clear, you have to keep the indictment as broad as possible,” he said.



Despite their manifest intentions over recent weeks, Troop believes the judges are unlikely to order the prosecution to cut the charges further.



Past cases at the court have shown that judges may accept the prosecution’s stance on the charges and proceed with the trial, with the rules allowing them to save time by other means, such as limiting time for the examination of witnesses.



“My view is that the prosecution has taken a calculated risk, because it recognises that the Karadzic case is quite a specific case. In previous cases, the judges have invited the prosecution to slim down the charges, the prosecution hasn’t done so and then the court has also been unwilling to do so,” Troop said.



“Judges will not want to start this trial on what they see as a negative note in terms of the perspective of the victims.”



Simon Jennings is an IWPR reporter in The Hague.