Institute for War and Peace Reporting | Giving Voice, Driving Change
REGIONAL REPORT: Duelling Defendants
While the prosecution struggles to ready itself for the biggest Bosnian war crimes trial to date, the conflicting positions of the two defendants are precluding any cooperation by their lawyers in preparing a joint defence and could even see the accused levelling accusations at each other.
The defendants, top Bosnian Serb leaders Momcilo Krajisnik and Biljana Plavsic, were rivals during the conflict, and in the immediate post-war period competed for power through electoral and other means. Now they find themselves together in the dock, where their rivalry could undermine their defence.
The stakes could not be higher, for the defence or prosecution. The case could provide a definitive ruling in court on the responsibility of the Bosnian Serb leadership for genocide in Bosnia, and Chief Prosecutor Carla Del Ponte has deemed the forthcoming proceedings as "a kind of" trial of "Karadzic in absentia".
Bosnian Serb wartime leader Radovan Karadzic remains at large, and the court statutes do not allow actual trials in absentia. "That is why it is necessary that Karadzic be extradited to The Hague before the trial commences," she told the Banja Luka weekly Reporter.
Yet while all sides struggle to deal with the scale of evidence, the co-defendants are hardly helping each other. Sources close to the legal teams for both defendants confirm that contacts between them are no more than cordial, and that there is no question of a joint defence strategy. In April, the two defendants studiously ignored each other during a 40-minute status conference.
"It is not ruled out that we might make some contacts in the final stage, at least so as not to be in each other's way," one of Krajisnik's defence lawyers said. But for now, he insisted, Plavsic's attorneys are avoiding contact.
Her lawyers warn that Krajisnik "stands no chance in The Hague". Speaking to IWPR from Banja Luka, a member of her defence team expresses concern that "he could pull her with him to the bottom".
Counsel for Krajisnik, however, believe he has the stronger defence. Under the presidential system that was in place at the time, his position as speaker of the parliament in Republika Srpska was weak on paper, and his responsibility for crimes carried out by the Serbian authorities may be hard to establish.
The cases were joined by an order of the trial chamber this spring, following Plavsic's surrender. Neither side is pleased.
Krajisnik has seen his trial date, originally set for May, postponed twice, first to late November, and then to January 2002. Further delays may be possible.
Sources in the Krajisnik defence team believe the real reason for the delays is that the prosecution's case is not ready yet. They note that tribunal investigators interviewed the former chief of staff of the Bosnian Serb army, General Manojlo Milovanovic, only three weeks ago, apparently focussing on the involvement of the two defendants in the three-and-a-half-year siege and shelling of Sarajevo.
Another reason for the delays, they suggest, is the court's hope that Karadzic might be arrested and brought to the tribunal, so that he could be tried together with his associates.
Plavsic, who arrived in The Hague nine months after her co-defendant, has consistently sought more time. In April, her counsel made a formal request to the tribunal for a separate trial, raising concerns about possible conflicts of interest. Plavsic's request to separate the cases was refused and cannot be overturned.
Krajisnik's defence, although unhappy about a joint trial, has never lodged such an official request. But his lawyer Goran Neskovic has told the court that joining the cases will "prolong the trial and make the work of the defence more difficult".
In a case of such complexity, this is hardly a small concern. In January, presiding judge Richard May dismissed as "unacceptable" a proposal from the prosecution for a joint trial lasting two years.
Nevertheless, Mark Harmon, lead prosecutor in the case, has told the court that his team has so far identified 800 "key documents" against Krajisnik and as many as 104,000 pages of "potentially relevant documents". It is also continuing its search through almost 3 million documents.
The defence was presented with 3,400 pages of written statements from 123 witnesses whom the prosecutor intends to summon to the trial.
According to defence counsel Neskovic, the documents are "mainly minutes of the parliament of Republika Srpska and minutes of the main board meetings of the Serbian Democratic Party", the ruling Bosnian Serb party during the war.
Krajisnik is preparing an ambitious defence, in which as many as 12 lawyers will take part. Besides Neskovic, other members of his team include Dejan Brasic, an American of Serb origin, and Fahri Karkin, a Bosniak.
Karkin was a member of the Bosnian army during the war and his appointment caused a scandal in Sarajevo last winter, with claims that he was "defending the enemy".
Both Krajisnik and Plavsic told the court that they do not have money for their defence. They have since been granted the usual monthly financial support from the tribunal registry of $25,000. Due to the unusually large volume of evidence to review, the defence was allocated further supplementary packages of $500,000.
But it appears they have both undertaken separate fund-raising, too.
The Krajisnik family's access to funds through Republika Srpska were curtailed when Momcilo lost power in 1998, and especially after he went to prison. Since then, his younger brother, Mirko, has been collecting donations from wealthy and sympathetic Serbs. In an interview on December 14, 2000, Momcilo Mandic, a well-known Serbian "businessman", told the Bijeljina-based magazine Ekstra that he is the chief financier of the Krajisnik's legal defence.
Members of Plavsic's defence team who will not appear in court claim that Plavsic's defence is partly financed by former prime minister of Republika Srpska Milorad Dodik, who was a political ally after she broke with the hard-line Serbs in Pale.
The head of her legal team, Robert Pavich, an American lawyer of Serb origin, has an office in Chicago, which may assist the defence in securing support from the expatriate community or other US lobbies.
But the problem the co-defendants cannot solve, for the moment, is each other. According to members of his defence team, Krajisnik fears that his long-time rival could actually serve as an important prosecution witness in a joint trial.
Neskovic, his lawyer, downplays such concerns, and anyway even if their cases had been divided she could have served as a witness in his case, and vice-versa.
Yet such a role could be critical based on the lines of defence the two teams are expected to take. Neither is expected to deny that the crimes took place, but instead will try to prove that their clients were not in positions of authority to order them.
"Simply, we are trying to prove that Mr. Krajisnik was not a superior to those who possibly committed crimes," Neskovic explained.
Although as speaker of the Bosnian Serb parliament Krajisnik had little constitutional authority, in reality he had considerable power, serving as the unchallenged number two in the Serbian civilian leadership, and at later stages, after 1994, wielding even greater influence than Karadzic.
It is on just such questions as the practical exercise of authority among the Bosnian Serbs that Plavsic could be such a dangerous witness for Krajisnik.
As for Plavsic, "she will succeed in proving that she was only a decoration in the system, a political figure, a professor, who actually strayed into all that because she was somewhat of an anti-communist," said Simic, who no longer represents her.
There is some truth to this. Although remaining in the presidential office, as the fighting wore on, Plavsic was increasingly marginalised due to disagreements in the leadership, and relegated to humanitarian work.
Nevertheless, she too has reason to fear inside witnesses. In 1996 Goran Jelisic, a self-styled "Serbian Adolf", accused Plavsic, one of two wartime Bosnian Serb vice-presidents, of being responsible for mass killings and expulsions of non-Serbs in Semberija and Posavina.
However, according to Simic, Jelisic, who was sentenced in The Hague to 40 years for war crimes against non-Serbs in north-eastern Bosnia in 1992, visited her in her cell as soon as she arrived at The Hague, and swore that he had never said such a thing.
Zeljko Cvijanovic, a regular contributor to IWPR, writes regularly for Dani magazine in Sarajevo and other publications.
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