Tribunal Agrees to Genocide “Mega Trial”

Judges at The Hague have agreed to allow a joint trial for nine Bosnian Serbs charged in connection with the Srebrenica massacre, despite questions about whether such a trial is fair or even practical.

The nine accused – Ljubisa Beara, Ljubomir Borovcanin, Milan Gvero, Radivoje Miletic, Drago Nikolic, Vinko Pandurevic, Vujadin Popovic, Zdravko Tolimir and Milorad Trbic – are all senior Bosnian Serb army, VRS, and police officers.

All but Tolimir are already in The Hague following a wave of voluntary surrenders in Serbia earlier this year.

Eight were high-ranking officers in the VRS, while Borovcanin was a deputy commander of the Special Police Brigade.

They all face charges in relation to what the prosecution calls two interrelated, joint criminal enterprises: one to “force the Muslim population from the [UN safe zones] Srebrenica and Zepa enclaves” and the second “to murder all the able-bodied men captured from the Srebrenica enclave”.

At least 8,000 Muslim men and boys were killed in Srebrenica.

Nine of the accused are charged with murder as a crime against humanity; eight with murder as a war crime and persecution; five with genocide and/or complicity in or conspiracy to commit genocide; and five with extermination. All are charged in relation to their own criminal responsibility, and two - Borovcanin and Pandurevic - face allegations relating to their command responsibility.

In a tightly argued decision, which includes a separate, but not dissenting, opinion from the presiding judge himself, the judges say that the charges the men face relate to “acts carried out by the same people, against the same people, during one period of time and in the same area, and this is all that is required” to allow a single trial.

The judges also say that it is not relevant – as some of the defence lawyers have attempted to argue – that some of the accused were lower down the chain of command than others, provided they all took part in the common plan.

Under the tribunal’s own rules, the judges also had to consider whether having a joint trial would avoid duplication of evidence, “promote judicial economy”, minimise hardship of victims and witnesses and ensure consistency of verdicts.

They say “the scales tip in favour of a single trial because the ‘crime base’ evidence is the same for each accused and could be presented once in a joint trial instead of six times in separate ones”.

As some of the men are named on joint indictments, only six trials would have been necessary if individual hearings had been decided on.

The judges quote the prosecution’s estimate that if the six cases were tried separately the trials would likely last seven to eight years, whereas a joint trial would take only 18 to 24 months.

Though one of the accused remains at large, the judges say “this is not likely to lead to any significant delay, because the chamber can at any time exercise its discretion to sever the trial from that of his co-accused”.

The judges go on to state that “witnesses would be better protected by a single trial”, explaining that if a witness had to give potentially traumatic testimony on six separate occasions over a period of several years that would “be more burdensome than consecutive cross-examinations in a single trial”.

The judges also considered whether a joint trial would adversely affect the rights of one of the accused. They decided that there was “no concrete risk of prejudice” because the evidence that would be heard in a joint trial would be the same as if it were a single trial.

The judges also could not see any convincing arguments about a possible conflict of interest between the accused.

A trial of eight or nine individuals would be the largest the Hague has ever undertaken and according to the registry there are “active plans to boost and expand [the tribunal’s] capacity for trials in a number of courtrooms”.

Alterations will be needed to all three courtrooms to boost their capacity as at least one other joinder motion involving six defendants has recently been granted with one outstanding.

In a separate opinion attached to the end of the ruling, the presiding judge, Patrick Robinson, responded directly to a statement by the lawyer for Milan Gvero that the “completion strategy” of the tribunal should not be allowed to influence the judges’ decisions. The tribunal has been told by the UN Security Council that it should finish trying cases by 2008 and appeals by 2010.

Judge Robinson took great pains to explain that the chamber did not agreed to a joint trial because of the completion strategy, saying if he had dismissed a request for a joint trial in 2000 he would still dismiss it now. He reaffirmed that while the prosecutor should take into account the completion strategy in determining her plans, for a trial chamber to do so would be an “improper consideration”.

Janet Anderson is IWPR programme manager in The Hague.