Could Karadzic Trial Boycott Have Been Prevented?

Rachel Irwin

Senior Reporter

Friday, 5 March, 2010

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On March 1, former Bosnian Serb president Radovan Karadzic will finally deliver the opening statements in his long anticipated trial, four months after boycotting – and effectively halting - the proceedings against him.



Karadzic, who continues to represent himself, now has another chance to take part in his trial and cooperate with the judges.



The trial is the most high-profile the tribunal has seen in years and Karadzic is accused of orchestrating some of the worst atrocities of the Bosnian war, including the 1995 Srebrenica massacre and the 44-month siege of Sarajevo.



The proceedings against him have been closely monitored by law scholars, victims’ groups and Balkan and international audiences.



Yet, in the wake of the autumn boycott and Karadzic’s repeated pleas for more time to prepare, many were left wondering what went wrong in the months leading to up to trial in October.



Were there warning signs along the way that Karadzic might not turn up, and if so, could the judges have taken action much earlier than they did?



In addition, was there merit to Karadzic’s argument of being deluged with around one million pages of “chaotic” disclosure? What exactly happened in the months leading up to his trial?



IWPR has conducted an extensive analysis of pre-trial transcripts and related documents in order to address these questions.



POSSIBLE WARNING SIGNALS



Shortly after his arrest and transfer to The Hague in July 2008, Karadzic announced his intention to represent himself and refused to enter a plea at his initial appearance on July 31 of that year.



During the next few months, he often told Judge Iain Bonomy that the proceedings were moving too quickly and that he was under-resourced as a self-represented accused.



At a status-conference on October 28, 2008, he announced that “quite simply, I’m not prepared for this conference.



“I don’t have the necessary resources, I don’t have a defence team, and with the speed at which matters are progressing…I am afraid I will be in an even less equal position.”



“I’m astonished at your reference to speed,” replied Judge Bonomy. “I’m extremely disappointed at the very slow rate at which this case is proceeding.”



Throughout the pretrial phase, Judge Bonomy expressed a desire for matters to move as quickly and efficiently as possible, since the tribunal is under considerable pressure from the United Nations Security Council to complete all of its cases as soon as possible.



At the October 2008 conference, Judge Bonomy noted that the judges were still considering a motion to amend the indictment.



“That’s a period of three months, and we’ve gone virtually nowhere,” he said.



He then reminded Karadzic that self-representation carries “particular problems which you’ve been told about repeatedly.



“You’re willing to take that on your own shoulders, and that is a matter for you at this stage.”



These signs that perhaps Karadzic was having difficulties representing himself continued.



On February 20, 2009, at another status conference, a small procedural issue arose and Judge Bonomy asked Karadzic how he wanted to deal with it.



“This is too much of a major issue for me to state my views without consulting my legal advisers,” Karadzic answered.



Judge Bonomy was not pleased.



“That’s very unhelpful because you are counsel in your case, and the chamber, when it comes into one of these hearings, expects to be assisted by counsel,” the judge told Karadzic. “Now, what you’re saying is that you’re trying to conduct this case but you’re incapable of conducting it, and that’s an unsatisfactory situation for the court to be in.”



His criticism continued when he told Karadzic that “what you may be claiming is a right to pretend to represent yourself, and we want to be sure that’s not what’s happening here, and that you are actually representing yourself.



“This is a very minor matter in the overall scheme of this case, and it’s very surprising that you are incapable of dealing with it.”



The signs that Karadzic was feeling overwhelmed continued into the spring.



On April 2, 2009, Karadzic warned the judges he would need “a lot of time, a lot of resources to deal with the vast material” coming in from the prosecution. A few months later, on June 15, he again references the amount of documents to sift through.



“Embarking on the proceedings before I am completely acquainted with the case of the prosecution, for me, is dangerous and unacceptable,” Karadzic said. “I really need to see everything, to review everything, because it’s not possible to that during the actual trial.”



And at a status conference on July 1, 2009 Judge Bonomy told Karadzic that he envisaged his trial starting in September.



Though an autumn trial had been discussed before – and in fact even summer dates had previously been mentioned - Karadzic seemed surprised by Judge Bonomy’s suggestion.



“I don’t know whether you had in mind September this year as the date for the beginning of the trial, because the material I have requires months and months of time just to look through, to classify it, to give instructions to [my] defence team in the field to do their investigation,” he said to Judge Bonomy. “So I’d like to know September [of] which year you’re planning for the beginning of the trial.”



The discussion then veered into other issues and the judges never responded to Karadzic’s inquiry.



On July 23, 2009 Karadzic told Judge Bonomy that he “would like to have every incident that happened during the civil war in Bosnia-Herzegovina re-examined”.



Karadzic further stated that he intended to prove that some people who had been sentenced to life in prison by The Hague tribunal were not guilty.



“What is relevant is whether the incident took place and perhaps how it took place, but the extent to which you may examine the evidence that was led against individuals is another matter,” responded the judge, “…do not expect that you will be retrying other cases. That’s not the function of this trial.”



This incident was eventually cited in the judges’ November 5, 2009 decision appointing standby counsel.



Earlier this week, on February 22, the accused asked for nearly four months of additional preparation time following his opening statements, due to a funding dispute with the court. The judges rejected the request on February 26, but Karadzic’s legal advisers have said they will ask for leave to appeal.



If Karadzic fails to comply with the judges’ ultimate decision on the matter, the standby counsel whom they appointed in November could be asked to take over the case completely.



The question that remains, however, is whether this step could have been taken sooner. Most observers agree that there were a plethora of warning signs in the months leading up to the October 2009 boycott.



“The writing was on the wall from early on,” said Gregory Gordon, a law professor and director of the University of North Dakota Center for Human Rights and Genocide Studies.



“Considering the statements he’s made – ‘You can’t be thinking September 2009 you must be thinking September 2010’ and ‘I can’t believe how fast this is all going’ - everything should have alerted the chamber that this was not looking realistic,” he told IWPR.



Gordon said he was especially struck by what Judge Bonomy said in February 2009, that Karadzic may be claiming a right to “pretend to represent himself”.



“Had I been the judge, I would have put it on the record—‘Based on a, b, and c it seems as though you need standby counsel,” Gordon said. “‘I’m going to monitor this more, but if I see more signs, I’m going to have to appoint standby counsel’.”



However, others say these incidents have to be read in the context of previous cases that dealt with a self-represented accused.



Besides former Serbian president Slobodan Milosevic, perhaps the most well-known of these cases is that of Serbian nationalist Vojislav Seselj, who has since his arrest in 2003 frequently lashed out judges and prosecutors.



Judges repeatedly tried to assign Seselj counsel in 2006, but those decisions were overturned by the appeals chamber.



When trial judges tried to instead appoint him standby counsel, Seselj protested by going on hunger strike. As a result, appeals judges ordered that the standby counsel be removed and that Seselj be given another chance to take part in the proceedings.



Most observers agree that the subtle signs in the Karadzic case prior to the October boycott would never have been enough to take away his right of self-representation altogether, especially since he was consistently polite and made efforts to follow court procedure.



Opinions differ, however, when it comes to whether they could have appointed standby counsel.



Some say that the Seselj case set the bar so high in terms of what is considered obstructive or questionable behaviour, that judges may have been especially cautious when dealing with Karadzic.



“Even if legally, the court had the ability to take a preliminary step [and appoint standby counsel], it might have been reluctant to do so because of the risk of antagonising Karadzic when there were at least some indications that he was trying to participate in the process,” said Alex Whiting, a law professor at Harvard University and a former prosecutor at the tribunal.



Whiting said there is a “delicate dance” that takes place between judges and a self-represented accused.



“It’s all a kind of negotiation and a dance, so the judges are calculating what is going to work and what is not going to work,” Whiting continued. “At the end of the day you could say they miscalculated, but it was not because they missed the warning signs, it was because there were other considerations going on.”



Michael Scharf, a law professor and director of the Frederick K Cox International Law Center at Case Western Reserve University, agreed that there is a “power play” involved, especially in high profile cases.



However, he contended that the Seselj debacle would not have prevented the judges from appointing Karadzic standby counsel, if they had decided it was necessary.



“From a legal point of view, they could have appointed standby counsel and told him, that’s how it’s going to be,” Scharf said. “The definition of stand-by counsel is that they are standing by. You have not yet revoked the right of self representation.”



He said that other ad-hoc tribunals have begun to see standby counsel as a way of preventing boycotts and other problems, and that judges at the tribunal can look at those precedents as well.



“If you look at the body of law that has emerged on this issue, what you’ll see is an evolution away from an absolute right of self- representation towards a more qualified right which the courts are becoming inclined to reign in,” Scharf explained.



Scharf – who trained judges and prosecutors in the 2005 trial of former Iraqi president Saddam Hussein – said that a standby counsel was appointed early on in that case and delivered closing arguments when Hussein and his lawyers boycotted.



He said that other tribunals, such as the Special Court for Sierra Leone, have begun to see that “these special tribunals are not just for the rights of defendants, but also for the rights of victims”.



“The self represented accused can control the whole case by saying, ‘I’m going to boycott’,” he said. “So it’s a prophylactic to have standby counsel.”



Whiting noted that the worst result is if the accused refuses to participate – and while that is what judges may have been trying to prevent, that is exactly what ended up happening.



“At the end of the day, that’s where they arrived,” Whiting said. “But back in February 2009, that may have been why judges were nervous about taking that step.”



Karadzic’s legal advisers maintain that there would have been no legal basis to appoint him standby counsel in the months leading up to the trial.



“Even forgetting about Seselj - let’s go back to what a normal threshold should be - there was nothing in isolation or accumulation to justify even a warning that [standby] counsel would be imposed,” said Alexander Zahar, one of Karadzic’s legal advisers and a lecturer at Griffith University in Australia.



“The difficulties that arose could be traced to the fact that Karadzic is a layperson, and not a lawyer, or had to do with the indisputable fact of a very rapid accumulation of evidence.”



Nerma Jelacic, the tribunal spokeswoman, said that the judges did not have any reason to appoint standby counsel earlier.



She noted that Karadzic had been “very active and cooperative, even in following the rules and the procedure. He was very active at filing motions, requests for assistance and he was... on time and in accordance with the rules to respond to the prosecution's motions.



“There was no obstruction as such. The obstruction was when [Karadzic] refused to appear in the courtroom on the first day [of his trial], and when Judge [O-Gon] Kwon warned him explicitly what it could result in.



“On the very first day, he actively obstructed and was immediately warned. The decision to appoint standby counsel was made very quickly.”



THE DISCLOSURE ISSUE



Just five days before his trial was due to start last October 26, Karadzic sent a letter to the judges informing them that he would not be attending. His previous bids for more preparation time had been rejected by both trial and appeals judges.



“Why and how is it possible that the prosecution is allowed to literally bury me under a million pages, only to start disclosing relevant material many months after my arrest?” he wrote.



“I have regularly complained about a chaotic state of disclosure by the prosecution during status conferences,” he states elsewhere in the same letter. “The first relevant disclosure was only received in May 2009 and it is still chaotic and incomplete.”



According to an IWPR analysis of prosecution disclosure reports from March 15 to October 15, 2009, Karadzic received a total of 891, 572 pages during those months. That does not include material disclosed prior to March.



Over 100,000 of these pages were witness statements and previous testimony. The rest was comprised of potentially exonerating materials – known as exculpatory evidence – as well as exhibits and other materials sought by the accused.



According to Peter Robinson, Karadzic’s legal adviser, the prosecution was not ordered to disclose its witness list until May 2009.



“Up until then, we didn’t know who the witnesses were,” he said. “That was the first time we could start to make sense of the material we had been given.”



Before May, Robinson said, the prosecution would disclose huge numbers of documents, but “we didn’t know which ones were witnesses [in the trial] and which ones were not”.



This problem was alluded to at a status conference on April 2.



“All I wanted to know was whether … it’s impossible for [Karadzic] to tell which statements that he has already received … relate to people who will actually be witnesses,” Judge Bonomy asked the prosecution.



“With respect to the crime based [witnesses], I believe that would be correct,” responded prosecutor Alan Tieger.



Judge Bonomy was critical of the prosecution’s disclosure methods at other intervals during the pre-trial phase.



During a conference on March 24, 2009, he admonished them for the way they disclosed expert reports that had been used in previous trials. Judge Bonomy said the reports should be updated and tailored specifically to Karadzic’s case.



When prosecutor Hildegard Uertz-Retzlaff responded that the experts would need a good deal of time to complete this task, Judge Bonomy said that was “one way of viewing it”.



“A cynical person might think that perhaps lack of preparation and organisation may have contributed to that situation,” continued the judge. “Would it be unreasonable to think that there may have been some element of that involved?”



“I don't know what to say to this,” Uertz-Retzlaff replied.



One of the problems seemed to be that due to translation issues, the amended indictment was not finalised until February 2009, and the prosecution could not be ordered to file a detailed pre-trial brief until that point.



The same goes for the pre-trial work plan, in which Judge Bonomy set out deadlines for disclosing different materials, including witness lists and related statements.



Most observers agree that the disclosure process at international tribunals is very complex.

Paul Troop, who has represented defendants at the tribunal, calls the process “woefully inadequate”.



“There is no penalty on the prosecution for failing to disclose on time,” he said. “In our case, they disclosed material every week, even disclosing material about a witness as that witness was giving evidence.”

Whiting, the former tribunal prosecutor, called disclosure “an enormous challenge”.



“It’s always been incredibly challenging for the prosecution to try to determine what needs to be disclosed and how it should be done,” he said.



However, he added that “it’s frequently the case that you will get the witness statements a few months ahead of time and then go to trial”.

Whiting said that in large and complicated cases, the prosecution will sometimes identify in advance who the first witnesses will be “so the defence can know where to focus their efforts”.



However, Robinson contends that this did not happen until just before the start of the trial, when the prosecution announced that they intended to lead with the charges related to the siege of Sarajevo.

Before that, he said, they had “no idea which witnesses would be first” and had to prepare the case chronologically.



The Office of the Prosecutor, OTP, insists that it acted in accordance with the rules set out by judges and notified the accused on October 8, 2009 of the order of the first 30 witnesses.



“In addition, the prosecution has in advance informed the accused that it would start by leading evidence for the Sarajevo component of the case,” Frederick Swinnen, political adviser to the prosecutor, said in a statement to IWPR. He said this was done in early October in the weeks leading up to the trial.



Furthermore, Swinnen said, “the prosecution has carried out its disclosure obligations in a manner designed to assist Karadzic in expeditiously organising and digesting the material”.



Swinnen said that a “vast amount” of material was disclosed prior to May 2009, when the judges ordered the OTP to disclose the witness lists.



In May, he said that the prosecution provided Karadzic with a final pre-trial brief, the exhibit and witness lists, and summaries for each witness.



According to Swinnen, the OTP also informed Karadzic which exhibits would be associated with each witness, identified the victims and perpetrators for each incident and gave notice of the evidence it will call.



“The prosecution also provided the materials on a hard-drive directly to Karadzic’s [legal] associates,” Swinnen continued. “[We] have also frequently assisted the defence team in locating items, on a case-by-case basis.”



While the disclosure process can be very complicated, law professor Scharf contends that given the complexity of the case, the number of documents involved is not so unusual. He added that Karadzic is not working by himself, but with a team of advisers – both paid and unpaid – as well as a group of interns.



“When you have a team like he does, and they know what they are looking for, they don’t have to read every word but can scan for relevant terms and hone in on that,” Scharf said.



Robinson conceded as much.



“It’s impossible to read all the material,” he said. “You simply cannot read from page one to one million.”



Rachel Irwin is an IWPR reporter in The Hague.