What Will Karadzic Trial Draw From Milosevic Case?

Monday, 15 February, 2010

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Caroline Tosh

As prosecutors in The Hague gear up for the trial of Radovan Karadzic, observers are divided as to what lessons can be learnt from the case of former Yugoslav president Slobodan Milosevic.



Some see the trial of the former Bosnian Serb leader as a chance for the United Nations-backed International Criminal Tribunal for the former Yugoslavia, ICTY, to redeem itself after failing to secure a conviction against the man believed to be most responsible for sparking the wars of the Nineties which tore the region apart.



“Karadzic case offers court a chance to repair its image,” said a Washington Post piece on July 24, which argued that “Milosevic at times seemed to be in control of his own trial, turning normally sombre proceedings into a freewheeling forum in order to air his many political grievances”.



Others, however, defend the Milosevic proceedings at the ICTY, saying the problems and delays encountered were largely unavoidable.



The Milosevic case ended abruptly in March 2006, four years into the trial, when the accused was found dead in his cell in the Hague detention unit, causing bitter disappointment for thousands of survivors of the Balkans wars.



In the wake of the trial’s collapse, critics lined up to condemn the work of tribunal prosecutors and judges. The case, they argued, was overly long and complex and Milosevic, who represented himself, was given too much leeway by judges to give political speeches, and he made a mockery of the court.



Karadzic, who faces charges of war crimes and crimes against humanity, including genocide, was president of Republika Srpska, RS, the self-declared Bosnian Serb territory. That makes him the highest-level figure to appear at The Hague since Milosevic.



When the spectre of the Milosevic trial was raised at a recent press conference in The Hague, chief prosecutor Serge Brammertz told reporters he planned to conduct the Karadzic proceedings efficiently.



“Of course it will take some months before the prosecution and defence will be ready to start. It will be a complex trial but we are fully aware of the importance of being efficient,” he said.



PROBLEMS WITH SELF-REPRESENTATION



One of the greatest challenges facing the Milosevic trial chamber was dealing with problems caused by the defendant’s decision to represent himself – which Karadzic has also signalled his intention to do.



Judges were accused of allowing Milosevic to get away with too much as he conducted his own defence.



Meanwhile, the proceedings were dragged out because of the defendant’s chronic health problems, which caused repeated adjournments to the trial.



While most agree the option of self-representation is an essential right, some believe that judges could have done more to rein in Milosevic’s frequent outbursts. In the course of the trial, the former president showed continued defiance for proceedings, at times prompting presiding Judge Richard May to switch off his microphone.



“A major failing of the system was exposed in the conduct of the Milosevic trial, where the considerable degree of lenience offered to the defendant proved counter-productive,” said Dr Carole Hodge, author of Britain and the Balkans.



Hodge believes the judges’ leniency allowed Milosevic to obfuscate and prevaricate when presenting his case, and ultimately tarnished the court’s reputation.



She argues that Milosevic seized on self-representation as an opportunity to promote his own views, reinforce support amongst Serbian nationalists, and pressure prosecution witnesses.



It is not in the interests of the court that this be repeated in the Karadzic trial, she said.



Robert Donia, a historian and ICTY expert, agreed that the Karadzic trial chamber should exercise a firmer hand to ensure that the defendant “is acting as a lawyer and not as the client in the courtroom”.



However, Sir Geoffrey Nice, a former prosecutor in the Milosevic trial, defended the conduct of judges during proceedings against the former president.



“The judges' priority is to… respect the defendant's right to defend himself. One of their methods of doing that was to say to him – he being an intelligent man, a lawyer and a banker and everything else – you’ve got two hours, three hours, four hours, two days to cross examine this witness, and crucially, it’s a matter for you how you spend your time,” he said.



“You have to think how much worse it might have looked if they’d been jumping down his throat the whole time, saying you can’t ask this, you can’t ask that. That would have been to deprive him much more publicly and obviously of a fair trial.”



Nice argues that to some extent, Milosevic’s self-representation proved counter productive.



Among other things, the former president failed to display the legalistic neutrality required when dealing with potentially significant points, and missed opportunities to point to the lack of a connection between himself and certain crimes.



“By doing things that people think were political speeches, he took bad points and he revealed things about himself, which in fact, had he conducted the case in a more measured way and been more careful to take good points, might never have emerged,” said Nice.



“So he emerged as…a bully, and intolerant, unamusing – and that may have worked to his disadvantage.”



Experts also point out that there is a limit to how much judges can intervene when a suspect is representing himself without affecting the quality of justice.



“A lot of the things that are constantly being bandied about in the media, like for instance, telling [a suspect] to shut up, or limiting his ability to rant about particular events are not actually doable,” said Dr Jonathan Eyal, director of international security studies at the Royal United Services Institute in London.



Eyal said it is important – particularly when there has been a 12-year wait to see Karadzic in the dock – that justice is seen to be done, and that the accused is given adequate time to present his case.



“I would say that attention to procedure and a rather relaxed view giving Mr Karadzic the necessary time even if it means ranting is, I would submit, important,” he said.



“I believe that it is better for the court to move slowly than for it to appear to be moving fast. This is one case where seeing justice done is probably more important than justice being done.”



It is also vital to show people in Serbia, where the court is seen as being biased against Serb defendants, that tribunal procedures are fair and the verdict is not a foregone conclusion.



“[ICTY] has to persuade ordinary Serbs that regardless of what happened to Milosevic, the trial of Karadzic…, despite all the years of him as a fugitive and despite all the frustration, will be a normal trial with the individual presumed to be innocent,” said Eyal.



Karadzic has already used his first appearance before the tribunal to revive claims that he was offered a deal by the United States to withdraw from political life, in return for escaping a Hague trial.



“He must be seen to be airing all that he wants to air, including all the conspiracy theories, like the promises that he supposedly got from the Americans,” said Eyal, adding that such rumours had no bearing on the case.



“It doesn’t really matter if he brings new ones all the time but he shouldn’t be allowed to chew over them like a dried-up curd forever more, which is what we used to have with Mr Milosevic.”



Observers point out that in the six-and-a-half years since the start of the Milosevic trial, the court has gained a great deal of experience in dealing with problems associated with accused individuals representing themselves, and this is likely to prove invaluable during the Karadzic case.



“Experience is hugely valuable, and the court now has a whole lot more experience with the problems of unrepresented defendants that they didn’t have in the Milosevic case – it was a new problem,” said Nice.



SIMPLER INDICTMENT



Perhaps the greatest challenge encountered by Milosevic prosecutors was the sheer size of the case against the accused, which comprised 66 counts relating to Bosnia, Croatia and Kosovo.



While the indictment against Karadzic is currently being reviewed and updated, the last version from 2000 lists just 11 counts of crimes committed in Bosnia. Unlike Milosevic, Karadzic has not been accused of taking part in a conspiracy, or so-called “joint criminal enterprise”, an extremely difficult charge to prove.



When the case against Milosevic collapsed with his death, his court-appointed lawyer Steven Kay wrote in the British newspaper The Times of the difficulties of dealing with a trial of “impossible size”.



Others say the decision to divide the enormous list of crimes into three geographical areas, rather than considering them chronologically, created major problems during the trial.



“I don't think that the, let's say, modus operandi of Milosevic ever came out clearly as it might have if the trial had proceeded to look at his career chronologically and look more closely at the antecedents of the kind of things he ended up doing,” said Donia.



As the case against Karadzic is far smaller and more straightforward, many of the problems encountered by the Milosevic prosecutors should be avoided.



“I think the challenge, in a sense, is not going to be quite as great,” he said. “I think if the prosecutors are wise – and I have a great deal of confidence in them – when they prosecute the trial, I think they'll seize on that and use a lot of very direct evidence.”



Observers argue that the Karadzic trial poses very different challenges to that of Milosevic, partly because of the types of personality involved and the way the two men operated politically.



Early on in the conflict, Karadzic was much more forthright and explicit about what he was intending to do, and his words have been disseminated in a wide variety of sources, said Donia.



Since Karadzic’s capture, there have been growing concerns that in a bid to streamline the case, prosecutors may remove the genocide charge relating to the initial phase of conflict, in 1991 and 1992, leaving it in place only for Srebrenica, the massacre of some 8,000 men and boys in July 1995. Prosecutors might seek to focus the case on Srebrenica because the crimes committed there have already been classed as genocide by both the ICTY and the International Criminal Court, ICC.



During the earlier period of 1991-92, Karadzic’s indictment says, non-Serbs were allegedly expelled from their villages and forced to live in camps “under conditions of life calculated to bring about the physical destruction in whole or in part of those national, ethnical, racial or religious groups”.



Olga Kavran, spokesperson for the Office of the Prosecutor, refused to speculate on any amendments to Karadzic’s indictment that might be currently being considered.



In the last several months, a number of indictments at the Hague tribunal have been trimmed after judges asked prosecutors to remove counts, or fix the number of crime scenes – apparently to ensure “fair and expeditious trials”.



Donia said that dropping the earlier genocide charges against Karadzic would be a mistake, “I believe that [the Karadzic trial] is their best shot to prove [that genocide occurred in Bosnia in 1992] and I think even more so than in the case of Mladic, they will have the evidence at hand to prove mens rea [genocidal intent] and the various deeds which were effectively carrying out that intent.”



There has also been speculation that Karadzic’s indictment could be altered to incorporate a joint criminal enterprise component to link his alleged crimes back to Belgrade and Milosevic.



Observers note that the charge sheet against General Ratko Mladic, who was in command of all Bosnian Serb army, identifies Karadzic along with Milosevic as a member of a joint criminal enterprise which aimed to eliminate or permanently remove non-Serbs from large areas of Bosnia through the commission of crimes.



According to Nice, this vital link between Karadzic and Belgrade must be incorporated into the case.



“[The indictment] needs to be expanded to take account of the criminality of Milosevic and the involvement of… Milosevic and Belgrade in these crimes,” he said.



“In order to lay out the history of Srebrenica, you need to have evidence of what part Milosevic took in it. They might [add that in]. I think they probably may do.”



Donia, however, sees no need to link Karadzic to Milosevic, and urges prosecutors not to go down this road.



“The Milosevic trial is a thing of the past, and his guilt or innocence not being definitively established, it’s much easier – more advisable – to focus on Karadzic as an individual perpetrator rather than trying to weave a complex web around him, when in fact – at least for most of the war – he was the primary perpetrator,” he said.



“To me, there’s no judicial utility to linking him to Milosevic and Belgrade, beyond what is necessary to establish that it provided him with perhaps some of the means to carry out what he did.”



Caroline Tosh is an IWPR editor in London.