Conflict of Interest Concerns Hit Karadzic Trial

Tuesday, 26 August, 2008

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Edina Becirevic

The possibility of Judge Alphonse Orie presiding over the trial of former Bosnian Serb leader Radovan Karadzic has caused a stir in the Balkans and the legal community, with concern focused on potential conflicts of interest as a result of his prior involvement in several high-profile cases at the tribunal.



While Judge Orie has not been officially assigned to the Karadzic case – arguably one of the most significant trials in the annals of international justice – his appointment as pre-trial presiding judge makes this highly probable.



In legal terms, a conflict of interest refers to a situation when a lawyer or judge has competing professional or personal obligations or interests that make it hard to fulfill his or her duties fairly.



As one of the most experienced judges at the tribunal, Judge Orie will have an intricate knowledge of events which took place during the Balkans wars, as well as of previous tribunal jurisprudence. However, some observers say that his involvement in other trials could place him in a difficult position.



Twelve years ago, the judge acted as co-counsel in the defence team of Dusko Tadic, the first Bosnian Serb indicted for war crimes by the Hague court, who was convicted of war crimes and crimes against humanity and jailed for 20 years. He was also presiding judge in the case of former Bosnian Serb parliamentary speaker and close ally of Karadzic Momcilo Krajisnik, who was found guilty of crimes against humanity, but acquitted of genocide charges. In 2006, Krajisnik was sentenced to 27 years in prison.



Judge Orie’s involvement in other cases means he should not preside over the Karadzic case, according to Fadila Memisevic from the Sarajevo-based section of human rights organisation Society for Threatened Peoples.



She said that statements Orie made in earlier cases indicate that a possible conflict of interest could emerge during the Karadzic trial.



“If we carefully read the decision in the Krajisnik case, it seems that Judge Orie agreed with Serb experts and witnesses who claimed that what happened in Bosnia was just a civil war – unplanned and impossible to control – which was also the view taken by the Tadic defence,” Memisevic told IWPR.



Karadzic prosecutors are expected to argue the opposite – that mass killings, persecution and deportation of non-Serbs from large swathes of Bosnia between 1992-95 were all part of a plan – the aim of which was to secure control of those areas which had been proclaimed part of the Bosnian Serb republic.



“What worries me most is that Judge Orie’s take on the events in Bosnia [as outlined in the Krajisnik judgement] could influence his judgement in the Karadzic case,” she added.



Amor Masovic of the Bosnian Missing Persons Committee had concerns about Orie having previously defended Tadic.



“Dusko Tadic was a soldier of the army whose superior commander was Karadzic. Being the defence lawyer of that soldier and then being a judge in a case against his commander is, to put it mildly, very problematic from the point of view of justice,” she said.



A Bosnian lawyer, who spoke on the condition of anonymity, told IWPR that a judge with previous involvement as a defence lawyer in a related trial would never be appointed to preside a case in a Bosnian war crimes court.



He said the perception that there could be a conflict of interest should be enough to prompt Orie to stand down.



“I think it is up to Judge Orie to recognise the importance of Karadzic case and step down, because too many people believe he might have some prejudice in this trial,” said the lawyer.



Some legal experts outside the region have similar concerns.



Goran Sluiter, a professor of international criminal law at the University of Amsterdam, points out that the Krajisnik judgement states that Karadzic was part of a criminal conspiracy with his former colleague, Krajisnik.



“Momcilo Krajisnik was a member of the Bosnian Serb leadership, together with Karadzic. The trial chamber led by Judge Orie has already established that Krajisnik and Karadzic were members of a ‘joint criminal enterprise’, which served as the basis for the conviction of Mr Krajisnik, ” told IWPR.



Sluiter notes the many similiarities between the two Bosnian Serb politicians’ indictments and argues that findings in the Krajisnik judgement seem to implicate Karadzic.



“Reading the Krajisnik judgement, one notices numerous highly incriminating findings concerning Karadzic,” he said.



“Basically, it appears that by considering Karadzic as a member of this joint criminal enterprise, the trial chamber convicted not only Krajisnik, but Karadzic as well.”



Dr Carole Hodge, tribunal expert and author of Britain and the Balkans, said she felt uneasy about Judge Orie presiding over the Karadzic trial – particularly as, in her view, “a very narrow definition of genocide was adopted” in the Krajisnik judgement.



Judges in the Krajisnik case found that while there was evidence that crimes committed in Bosnia constituted the actus reus, or criminal act, of genocide, they did not establish that the accused possessed mens rea, or genocidal intent, which is needed to prove the charge.



While Hodge noted that in strict legal terms it could be argued that there would be no conflict of profesional and personal interests for Orie, she said given the gravity of the Karadzic trial – and its wide-reaching implications in the region and for international law – it would be in the interests of justice to select judges who have no previous involvement in related cases.



Professor of international law and director of Transnational Law Institute at Washington and Lee University, Mark Drumble, said that if Judge Orie were to preside over the trial, “the competing history of events that was raised in Tadic's defence might raise the spectre of conflict of interests, especially if that same general evidence were tendered against Karadzic.



“That said, it's entirely up to the parties to make an objection on this issue, else the discussion is just theoretical”.



Spokesperson for the tribunal Nerma Jelacic said that the court’s rules allow any party who might have some concerns with regard to possible judicial prejudice or conflict of interests to raise them before the tribunal’s judges.



According to tribunal rules, “A judge may not sit on a trial or appeal in any case in which…the judge has or has had any association which might affect his or her impartiality. The judge shall in any such circumstance withdraw, and the president shall assign another judge to the case.”



According to Sir Geoffrey Nice, British lawyer and former prosecutor in the case against ex-Yugoslav president Slobodan Milosevic, the fact that Judge Orie acted as defence counsel in the Tadic case should not mean there will be a conflict of interest if he presides over the Karadzic trial.



“Advocates and judges are expected to act objectively and dispassionately, on the basis of instructions given by a defendant [if defending as an advocate] or on the basis of evidence [if making decisions as a judge],” he said.



He added that in theory, Judge Orie’s findings in the Krajisnik case – which identified Karadzic as a member of a joint criminal enterprise – should not present a problem either.



“His having already made a factual decision as a judge in another case that there was a joint criminal enterprise involving Karadzic of the same kind as charged in this indictment should create no technical difficulty, as a judge should be able to put out of her or his mind the evidence received and decisions made in an earlier trial,” he said.



However, he added that in a trial like that of Karadzic where the issue is “so serious and substantial”, this might be difficult in practice.



“It might be thought to be asking the impossible of a judge to decide the issue of Karadzic's participation in a [joint criminal enterprise] on the evidence in this trial without regard to the finding made in the previous trial – where Karadzic was not present to argue his position,” he said.



“This could found an argument to have Orie recuse [disqualify] himself from the Karadzic trial,” he said, adding that the issue should be dealt with fully by the tribunal.



“Of course, if the prosecution is able to get the previous conviction [of Krajisnik] and the previous finding of a [joint criminal enterprise] involving Karadzic into evidence within the tribunal's rules then the problem could be overcome.



“But the decisions about admitting that conviction on that basis would rest with Orie and his fellow judges so the same or similar problems of prejudice or pre-judgement would arise.”



It would clearly be easier to meet these possible problems by having the Karadzic case presided over by a judge who does not have these difficulties to face, concluded Nice.



Jelacic defended the choice of Judge Orie as pre-trial judge.



“Like all other judges, [Judge Orie’s] post was approved by the UN General Assembly,” she said. “[He] is one of the most experienced and well respected judges of this

tribunal.”



Edina Becirevic is senior lecturer at the University of Sarajevo’s Faculty of Criminal Justice Sciences.