Pressure Mounting on Karadzic Prosecutors

Hague prosecutors recently came under fire taking so long to present amended charges against former Bosnian Serb leader Radovan Karadzic – prompting questions about how broad the eventual indictment will be.



At a pre-trial hearing late last month, at which he entered a “not guilty” plea on the accused’s behalf, pre-trial judge Iain Bonomy did not hide his dissatisfaction that prosecutors had not updated the indictment since it was first drawn up eight years ago.



“I find it surprising that bearing in mind the period since the original indictment ... and the significance … of this particular case, that you tell me now that it's only once the accused is in custody that this exercise is being undertaken,” Bonomy told prosecutor Alan Tieger in court on August 29.



When Tieger said he expected to submit it by the last week of September, Bonomy replied, “I sincerely hope that you're not serious about that date.”



Karadzic, the wartime president of Republika Srpska, RS, was transferred to The Hague in July after his arrest in Belgrade brought an end to 13 years on the run. He is currently charged with 11 counts of war crimes and crimes against humanity, including genocide.



There has been a great deal of speculation as to why the Tribunal’s Office of the Prosecutor, OTP, is taking so long to draw up an indictment for such an important trial.



“The moment they picked [Karadzic] up the first thing that they should have been doing is looking at the indictment, and by now they should have had it amended,” said Michael Karnavas, a defence lawyer at the Hague tribunal.



“Why they need until the end of September … is rather strange.”



OTP spokeswoman, Olga Kavran, refused to comment on the amendment process or what charges could be expected in the final indictment.



Tieger told the court that he and his team were evaluating evidence and judgements in previous tribunal trials to make sure the indictment was as efficient as possible “in light of both the evolving jurisprudence, evolving procedures and the adjudicated facts”.



However, the trials and judgements most relevant to the Karadzic case were completed two years ago, meaning the OTP has already had some time to review the material.



Stanislav Galic, who acted under Karadzic’s command during the four-year siege of Sarajevo, was sentenced by tribunal judges to life imprisonment in November 2006. Momcilo Krajisnik, former speaker of the Bosnian Serb assembly, was convicted in September 2006 at the Hague court for his role in the joint criminal enterprise to remove Bosniaks and Bosnian Croats from parts of Bosnia.



According to Karnavas, the OTP could be dithering because it is overstretched at this crucial juncture – when prosecutors are under pressure to wrap up several important trials before the tribunal closes in 2010.



“I think it’s no secret that the OTP is strained with resources. There are lots of big trials going on. They don’t have the same personnel they had in the past. Their numbers are down … so in that sense it’s understandable,” said Karnavas.



The long wait seems a little ironic since former chief prosecutor Carla Del Ponte repeatedly told the world she would swiftly prosecute Karadzic and his military leader Ratko Mladic if only they could be arrested.



“The evidence against both of them [Karadzic and Mladic] is so incriminating that a trial could be rapidly conducted,” she told German magazine Der Spiegel in 2007.



Meanwhile, as judges wait to hear the charges, tribunal watchers wonder how extensive they will be.



At stake is whether the indictment will be expanded to tackle the wider political situation in the former Yugoslavia in the early 1990s; investigating the link between Karadzic and Belgrade; or whether it will only focus on the crimes that took place on the ground in Bosnia.



Some say Karadzic’s claim that former US ambassador to the UN Richard Holbrooke guaranteed him immunity from prosecution on the condition that he disappear from public life should be investigated, along with other allegations of western involvement.



“This indictment has got to be broadened,” said Geoffrey Nice, lead prosecutor in the trial of former Serb president, Slobodan Milosevic.



“This is the last opportunity, subject to the Mladic trial, that the tribunal has to explore the role of Serbia and the western world in the taking of Srebrenica and its hand in the other crimes.”



Some observers maintain that Karadzic’s actions were linked to the administration in Belgrade, and that western powers sanctioned the capture of the eastern Bosnian enclaves of Srebrenica and Zepa.



Although both towns were designated UN “safe areas”, they fell into the hands of Bosnian Serb forces, which proceeded to expel their Bosniak populations. In Srebrenica, more than 8,000 Bosniak men and boys were executed in what was Europe’s largest mass killing since the Second World War.



While accusations of western complicity in Srebrenica have formed a backdrop to war crimes trials at the Hague, they have never been thrashed out in open court.



“I think complicity puts it mildly. A number of… people were more than complicit in not putting a stop to this [war], and... in not ending the deprivations and ethnic cleansing that was going on,” Jim Hooper, Managing Director of Public International Law & Policy Group, a nonprofit global pro bono law firm told IWPR. “There’s no question that the West was complicit.”



“It is well known that the West is ‘thought’ by many people to have been complicit in taking Srebrenica,” said Nice. “If that’s something that is swept under the carpet by having a Bosnia-narrow trial, the tribunal will be seen to be a worthless instrument of record.”



Other observers, however, are concerned that the indictment will not comprehensively cover crimes in Bosnia itself.



According to victims’ associations in Bosnia, chief prosecutor Serge Brammertz has confirmed the OTP is considering charges of genocide in up to 20 municipalities across Bosnia – in addition to counts related to Srebrenica. The OTP spokeswoman was not able to confirm this.



Jasna Causevic of the Society for Threatened Peoples believes it would be a “disaster” if Karadzic was only charged with genocide in Srebrenica, as some people have suggested.



“There were 96 communities in which genocide was committed in Bosnia Herzegovina,” she argued.



“All genocide crimes in Visegrad, Brcko, Prijedor, Foca, Gorazde, Bijeljina, Kalinovik, Nevesinje, Trebinje and Gacko should be part of the indictment. It was not only single massacres or single war crimes.”



Some are concerned that prosecutors, wanting a streamlined indictment to avoid a long, drawn-out trial like that of Milosevic, may go too far and remove charges crucial to justice being done.



The prosecution case against Milosevic was based on extensive charges, which spanned events related to conflicts in Bosnia, Croatia and Kosovo, and took two years to present. The ill health of the accused – along with his using the trial as a platform to make constant political statements – meant proceedings were dragged out even longer until he died in The Hague Detention Unit in 2006.



“I think that they're streamlining and reducing charges, so that the trial will be as focused and efficient as possible, learning lessons from the lengthy Milosevic trial,” Kelly Askin of the Open Society for Justice Initiative told IWPR.



Charges of sexual violence are also central to the Karadzic indictment. While they are included in the current indictment as elements of the crimes of genocide and persecution, many believe they should be charged separately.



But expediency has often had a role to play in the drafting of indictments, especially as the tribunal tries to meet its completion strategy as laid out by the United Nations Security Council.



Del Ponte systematically excluded or reduced charges of sexual violence in order to streamline cases, as shown by the trial of the Lukic cousins for war crimes in the eastern Bosnian town of Visegrad.



In its motion to amend the indictment in the Lukic trial in June this year, the prosecution submitted to the trial chamber, “[The prosecutor] exercised her discretion not to seek an amendment on the indictment prior to the 15 November 2007, in part, based on her belief that amending the indictment to include new charges of sex crimes would lengthen the prosecution’s case.



“She had taken the position that fulfilling her obligations to conclude the work of the Prosecutor in the time frame mandated by the UN Security Council did not permit an amendment to add sex crimes charges which she believed would add to the length of the trial. She directed her staff to prepare the case for trial as expeditiously as possible.”



Pressure groups have asked Brammertz not to worry about time constraints and give gender crimes the attention they deserve.



Rhonda Copelon of the International Women’s Human Rights Law Clinic sent IWPR a copy of a letter she wrote to the chief prosecutor.



“To advance the closing strategy … by undermining gender-inclusive justice and relegating sexualized violence once again to the margins of international criminal law would be a profound and bitter insult to the survivors of sexualized violence,” read the letter.



Uncertainty over the future of the tribunal’s mandate and how much time there will be to try Karadzic is also piling pressure on the prosecution.



According to Kavran, “There’s been no indication [from the Security Council] that the tribunal will close before it’s able to complete its cases.”



Under the tribunal’s completion strategy, all trials should have been finished by the end of this year, and all appeals by the end of 2010. However, the Security Council is yet to tell the tribunal whether it can remain in operation for longer.



Tribunal president Fausto Pocar has asked for time to try all indicted war crimes suspects, including Mladic and Croatian Serb war crimes indictee Goran Hadzic, who have not yet been arrested.



Observers say the prosecution must demonstrate its efficiency if the tribunal is to make a convincing case for its remit to be extended.



“[Judge Bonomy] would expect that the OTP would give this the highest priority, especially if they want to go back to New York to the Security Council to ask for more funding for this place to stay open longer in order to try [Karadzic] and perhaps try Mladic,” said Karnavas.



Any timeframe laid out by the Security Council could affect which crimes are covered because judges could be forced to speed up the trial.



If the Security Council issues a tight deadline, judges might go back to prosecutors and ask them to streamline the indictment further, or order that certain crime scenes be dropped altogether. Or having accepted an amended indictment at this stage, judges could then, during the pre-trial phase, limit the number of witnesses or the time given to each to testify.



“The judges should not be put in a position in which they are going to have to make certain decisions that affect the quality of the trial because they are being pressured by the Security Council,” said Karnavas.



In the trial of former Herceg-Bosna prime minister Jadranko Prlic, who Karnavas represents, the presiding judge imposed time contraints on all trial parties, prompting complaints from both the prosecution and the defence that a rush to complete the trial was jeopardising the fairness of proceedings.



Whatever amendments the prosecution adopts, the trial will be a serious challenge. It will also be the first real test of Brammertz’s approach after the seemingly overambitious efforts of his predecessor, Del Ponte, in the Milosevic trial. He will want to prove every charge.



“There’s going to be a lot of pressure on the prosecution to put on as big a show as possible,” said Karnavas.



Simon Jennings is an IWPR reporter in The Hague.