Defending Radovan Karadzic by Marko Sladojevic
Date de publication: 30.01.2012
Defending Radovan Karadzic
by Marko Sladojevic
legal adviser to Radovan Karadzic, Defence lawyer at the ICTY
Radovan Karadzic’s case – Basic Facts
Ladies and Gentleman, welcome and thank you for attending this debate. I would like to thank the organisers for inviting me. I have been working at the Tribunal for eight years, on the Milosevic, Krajsnik, Ojdanić, Gvero and now Karadzic cases.
Radovan Karadzic's case is without doubt one of the biggest and most complex in the history of international tribunals. It covers events in the former Yugoslavia over a period of 5 years, from 1990-1995. The case has now been in the evidentiary phase of the trial for almost two years, and will take another 2 years approximately until the judgment in the first instance is rendered. To date, the volume of disclosed material has grown to over 2 million pages. The Prosecution originally planned to call approximately 600 witnesses. It has now reduced the list down to some 200 witnesses, varying from crime base witnesses, to UN officials, international diplomats, various experts and insiders. Over 150 of them have already testified. Some 5,000 exhibits have already been admitted during the trial by both Prosecution and Defence, and the forecast is that approximately between 10,000 and 15,000 documents in total will become evidence at the end of the trial. The pace of the trial has increased to the equivalent of a five-day trial week. There are almost 2,500 adjudicated facts, which the Prosecution is not required to prove. It is up to Defence now to challenge them. Some 200 witness statements had been tendered before the trial even started without the right of the Defence to cross-examine those witnesses. There are over 25 Prosecution expert witnesses covering miscellaneous areas, from military and history topics to forensic sciences.
Defence Team – Composition
Radovan Karadzic’s team composition is simple. There are two pillars held by two legal advisers and their four assistants: procedure and evidence. The procedural side of the case is handled by Peter Robinson, an American lawyer from California. The evidentiary side of the case is run by myself - Marko Sladojevic, born in Belgrade, educated in Serbia and The Netherlands. My job is to review and organize the massive volume of materials described above and to prepare Radovan Karadzic for cross-examination of Prosecution witnesses on a daily basis, as well as to prepare the Defence case and hundreds of witnesses that Radovan Karadzic intends to call during the Defence phase of the trial.
(In)Equality of Arms
The Prosecution had 13 years to prepare for this and many other trials on the same subjects held before the Yugoslavia Tribunal, in which to learn the case and perfect its strategy. During the Karadzic trial, the Prosecution has employed six lawyers to conduct the direct examination of its witnesses, rotating a fresh lawyer in the trial with every witness. It has further employed 29 additional support staff just to review its evidence collection for disclosure. As the Prosecution recently noted when explaining its own resource problems in the case:
In contrast to an accused whose powers relate to a single organ such as the military, the Accused in this case is alleged to have exercised authority over military, paramilitary, police, political and governmental organs.
In a nutshell, this Accused is alleged to have controlled every segment of his country. He is accused of responsibility for a range of crimes including those committed in Sarajevo, Srebrenica and various municipalities in Bosnia-Herzegovina.
On the other side of the case, the 6-men strong Defence team is worn out by the pace and complexity of the trial, but is nevertheless putting up a resistance that has never been seen before any of the international tribunals. The Karadzic Defence team has already tendered over 2,000 exhibits, while the case has not yet reached even half time. Radovan Karadzic is of course conducting his own Defence.
Furthermore, the Prosecution opted to call over 90% of witnesses pursuant to a procedural rule that allows the Prosecution to admit through a single witness hundreds of pages of statements and documents into evidence within 10-15 minutes and hand over the witness to the Defence for cross-examination. The Defence then has the task to analyze and put that evidence to test, usually in far less time then necessary. And this concerns 4-5 witnesses per week, every week.
Joint Criminal Enterprise
I would like to address now the main legal problem that we, Defence lawyers, are facing at the Tribunal, and that is the concept of joint criminal enterprise, which is a mode of criminal liability which has been widely applied to political and military commanders in the indictments and convictions issued by the ICTY. It is constructed in such a way that persons can be accused even if they had no direct connection to the alleged criminal plan. In the Tribunal's Statute there is a form of liability known as command responsibility but it is much easier for the Tribunal to indict and convict people using JCE than using command responsibility because JCE is only very vaguely defined.
The form of liability known as joint criminal enterprise was first formulated in the Tadic and Furundzija cases and it has since been used in numerous trials at the Tribunal. It forms the basis of the indictment against Radovan Karadzic. JCE, which has been widely criticised by legal scholars, has the advantage for Prosecutors of being very vaguely defined. There are three forms of JCE liability according to the Tribunal. The basic idea is that there should be people, a common criminal plan, and the intention on the part of the Accused to participate in it. But the concept has been extended so far by the Tribunal that it is now used to criminalise the fact of being a member of a political party or other groups. In the Krajsnik case, for instance, the fact that the Accused was a founder member of the Serbian Democratic Party was adduced as proof of his criminal responsibility because this fact was artificially connected to crimes that happened two years later as it will become clearer later in this speech. In the Karadzic case, the claim is that political formations and political institutions of Bosnia were created, among other reasons with the purpose of committing persecution against the Bosnian Muslims and Croats. A problem for this theory is the fact that these very formations and institutions cooperated with the Muslims and Croats for two years before the war broke out and they worked well at that stage in the exercise of power.
JCE is also used to blame a superior for the acts of subordinates, even if he was unaware of them, even if he had never met or communicated with the perpetrator, and even if the perpetrator was not a member of the structures in question. According to this theory of liability, it seems that the only thing Dr Karadzic could have done to escape indictment would have been to abolish the state and party structures he created. But for there to be true criminal liability, there must be true collaboration between persons allegedly participating in the criminal enterprise. In Brdjanin, the criteria were applied strictly: both the the executor and the person who procured the executor had to have an agreement to pursue a common plan. But, in the absence of proper proof in Krajsnik, the Chamber used criteria which contradicted those used in Brdjanin. There is therefore legal instability at the ICTY: the Appeal Chamber in Brdjanin later confirmed the vaguer criteria used to convict Krajsnik.
This produces great confusion for the Defence because it is impossible to know what the borders are in this theory of liability. As things stand, Radovan Karadzic can be convicted for acts committed without his intent or knowledge, and even if the executors were paid by a third party to commit a crime. Let us imagine the following scenario, that a person committing a crime shared the same goals as Dr Karadzic, namely that the Serbs and Muslims in Bosnia should live separately. Third category JCE could be used to convict Dr Karadzic, but only by obscuring the essential and definitive difference between the two, namely that Dr Karadzic wanted to achieve his goals politically and not criminally.
JCE is based on the Tadic and Furundzija cases. In the latter, the Accused was charged with interrogating prisoners while another person maltreated them physically: the Tribunal ruled that his criminal liability was the same as that of the person committing the mistreatment. However this concept has now been extended to criminalise a whole people. Dr Karadzic's principal activity was to create a political party and state structures including the parliament of Serbs in Bosnia. Yet this is precisely what Momcilo Krajsnik, a close associate of Dr Karadzic, was convicted for: “In the Chamber’s view, the Accused’s overall contribution to the JCE was to help establish and perpetuate the SDS party and state structures that were instrumental to the commission of the crimes.” Given that the SDS party was elected with 95% of the vote, this would mean that the whole of the Bosnian Serb people is criminalised by the Tribunal.
This view of events is in any case based on a retroactive analysis of the facts: acts are being condemned in view of what happened afterwards. Post hoc ergo propter hoc is not a watertight theory of criminal liability. Starting with the fact that crimes were committed in Bosnia, the problem has been analysed backwards. It is alleged that the crimes were committed as a consequence of the creation of these state structures. The former president of the Tribunal, Antonio Cassese, in his book, "The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise," laid down strict criteria for JCE. Our hope is that the Tribunal will respect President Cassese's advice.