Srebrenica Trial Resumes – In Closed Session

The second Srebrenica case to be tried at the Tribunal resumed on July 7, 2003 after a forty-day hiatus caused by a breakdown in communication between the accused Vidoje Blagojevic and his counsel, attorneys Michael Karnavas and Suzana Tomanovic. The trial, which began on May 14 and was suspended on May 26, has been marked by a series of dramatic events, including the last minute guilty pleas of co-accused Momir Nikolic and Dragan Obrenovic, who each pleaded guilty to one count of persecution - a crime against humanity - for their participation in the deportation and murder of at least 7000 men and boys from the U.N. protected enclave of Srebenica in July 1995. The remaining defendants are Blagojevic, who commanded the Bratunac Brigade of the Bosnian Serb Army (VRS), and Dragan Jokic, Chief of Engineering in the Zvornik brigade.

The drama doesn't appear to be over. Hours after Prosecutor Peter McCloskey completed his direct examination of the first witness to be called since the hiatus, the trial chamber issued an extraordinary order to protect the identity of the witness, who had testified in open session and with no protective measures. Such measures may include face and voice distortion and a code name, as well as closed or private sessions during which testimony is not publicly heard. The order, which came at the urgent oral request of the Prosecution, puts today's trial transcript under seal, and forbids the public dissemination of the witness's testimony. Cross-examination will begin tomorrow in closed session. Such a post hoc (after-the-fact) remedy is exceptional, and seems to be the result of the prosecution's failure to act on the witness's requests for identity protection made as early as April of this year.

Neither does the problem with Blagojevic's counsel seem to be fully resolved. At the opening of the session, Presiding Judge Liu Daqun summarized the Chamber's recent (July 3) decision denying Blagojevic's motion to dismiss his attorneys. Although Karnavas and Tomanovic will not be removed from the case, the Court struck a compromise of sorts, recognizing that 'a special step needs to be taken' in order to 'promote better communication between the accused and counsel.' The court therefore ordered the Registrar to appoint a 'legal representative' for a temporary three-month period. The role of this lawyer will be to act as an addition to the defense team, ensuring that Blagojevic's interests are wholly represented and improving the working relationship between the defendant and his regular counsel. Not least, the Court announced that this discretionary step was being taken not just so justice may be done, but also so that 'justice is seen to be done, including by the Accused himself.'

Karnavas was appointed lead defense counsel in August 2001 after meeting with both Blagojevic and his family, who approved of his approach to the case. Tomanovic was appointed as his co-counsel in September 2002, after working on the case as an investigator and legal assistant for almost a year. In Tribunal practice, the Registrar chooses lead defense counsel in consultation with the defendant from a list of qualified attorneys, while co-counsel, when required, is selected by the lead counsel and approved by the Registrar. Blagojevic first tried to have Tomanovic replaced last November, but his motion was denied for lack of good cause, since he provided no concrete reasons for her dismissal. Acceptable reasons for an attorney's dismissal from a case include misconduct, incompetence, or a conflict of interest. Instead, without citing specific reasons, Blagojevic wished to replace Tomanovic with another attorney who had no experience in criminal defense and who was deemed unqualified for the job by both the Registrar and Karnavas.

By the time the trial began in May, Blagojevic had refused to accept documents or any communication from either of his attorneys for over a month, claiming that the necessary atmosphere of trust had been destroyed. The court then appointed an independent lawyer to consult with the defendant and assist him in preparing documentation regarding his complaints. Summarizing the denial of the motion in court today, Judge Liu first reminded the defendant that the 'burden of proof is squarely on the person requesting the withdrawal of assigned counsel to demonstrate good cause for the withdrawal of assigned counsel,' meaning that Blagojevic must provide concrete reasons for dismissing his lawyers; his unexplained wish is not enough. Further, there is no absolute right to co-counsel in Tribunal rules; such counsel may be appointed at the discretion of the Registrar and the lead defense counsel 'in the interest of justice' - usually when a case requires more than one attorney because of its length and complexity. As a practical result, defendants have little control over the choice of lawyers appointed to assist the lead counsel.

Judge Liu also drew on jurisprudence from the European Court of Human Rights holding that the right to choose one's counsel is limited for indigent parties and when the wishes of the accused must be overridden in the interests of justice. Within the Tribunal, a similarly reasoned ruling was made recently in the Seselj case, where the defendant's right to represent himself was limited under some circumstances (see CIJ report 'Court Appoints Standby Counsel in Seselj Case,' May 12, 2003). The Srebrenica trial chamber also based its ruling on the idea – common in international human rights instruments – that a trial must be expeditious in order to be fair. Karnavas has been working on the case for nearly two years; the Court estimated that if new counsel were appointed, he or she would need a minimum of five or six months to become sufficiently familiar with the case before the trial could go on. In order to avoid such delays, the judges held that motions to remove counsel after a trial has already started, or shortly before it is to start, will only be considered in exceptional circumstances.

Finally, the Court recognized that there is indeed 'friction' between Blagojevic and his lawyers, but ruled that such friction doesn't amount to a 'fundamental lack of trust due to misconduct or manifest negligence.' When an accused simply wants counsel replaced without good cause, he 'does not have the right to unilaterally destroy the trust between himself and his counsel,' by, for example, refusing all communication. On the other hand, the Court reminded the defense counselors that they have an ethical obligation to build trust with their client.

It is of course necessary that Blagojevic communicate with his lawyers if justice is to be done, especially after the recent shake-up in the case resulting from Nikolic's and Obrenovic's decisions to cooperate with the Prosecutor. The evidence they are expected to provide against the remaining defendants is likely to require a change in defense strategy. Blagojevic was Nikolic's superior in the Bratunac Brigade, and Nikolic's testimony could be particularly damning against him. Judge Liu requested that the Prosecution bring Nikolic and Obrenevic as witnesses after the summer recess, partly in order to ensure that the relationship between Blagojevic and his counsel has stabilized by the time they give their evidence.

It remains to be seen exactly how this stabilization will be accomplished. As one option, Blagojevic can now ask the trial chamber to certify (or approve) an interlocutory appeal (an appeal that occurs before the end of the trial) of its decision to the Appeals Chamber of the Tribunal. According to the Rules, such applications may be granted when the issue being contested is one that might 'significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.' Blagojevic's lack of a relationship with his counsel would certainly seem to qualify as such an issue, but the Appeals Chamber, like the trial chamber, will be unlikely to set a precedent for defendants to exert a tyrannical hold on trial progress by refusing to communicate. Alternatively, Blagojevic might accept the trial chamber's decision and work with the temporary legal representative in bridging the gulf that has opened between him and his counsel. Either way, given the magnitude of the horrors at Srebrenica, and of the accusations against him, Blagojevic must understand that he cannot now afford to refuse communication with those responsible for his defense.