The Karadzic trial: An overview 28 Oct 2009
As the Karadzic trial commences at the ICTY, the Hague Justice Portal provides a brief overview of the case and the challenges faced in conducting this 'mega trial'.

On 26 October 2009, the International Criminal Tribunal for the former Yugoslavia (ICTY) began the trial of Radovan Karadžić, in what will be one of the largest and most high-profile cases since the Tribunal was established in 1993. Karadžić was captured in Belgrade by Serbian Security forces in July 2008, after nearly 13 years on the run from authorities, and transferred to The Hague on 22 July 2008. The former Bosnian Serb leader will face charges of Genocide, crimes against humanity and war crimes, committed during the war in Bosnia. According to the Prosecution, Karadžić bears responsibility for crimes during the Srebrenica massacre and the siege of Sarajevo, some of the darkest moments of the war.

Radovan Karadžić 

Born in 1945 in the municipality of Šavnik in the Republic of Montenegro, Federal Republic of Yugoslavia (FRY), Radovan Karadžić was one of the founding members of the Serb Democratic Party of Bosnia and Herzegovina, Srpska Demokratska (SDS). Karadžić was President of the SDS from July 1990 to July 1996, and later became President of the National Security Council of the Serb Republic of Bosnia and Herzegovina (“Republika Srpska”). Radovan Karadžić was a member of the Supreme Command of the Armed Forces of the Serbian Republic from November 1992 and was the sole President of Republika Srpska and Supreme Commander of the Armed Forces from 17 December 1992 until his resignation on 19 July 1996.

Radovan Karadžić was among the high command of Bosnian Serb leaders that as early as July 1991 sought to take control of various regions of Bosnia and Herzegovina. In effecting this joint plan, the non-Serb population was subjected to extreme living conditions calculated at their forced removal. Those who remained were further persecuted, either being forcibly expelled or murdered. A considerable proportion of the Muslim population who became victims of this policy sought refuge in areas of Bosnia that remained untargeted by Serb forces, including the enclave of Srebrenica. On 16 April 1993, the UN Security Council adopted Resolution 819 declaring Srebrenica and its surrounding areas as a “safe area”, demanding the immediate cessation of all attacks. Nevertheless, in July 1995, Bosnian-Serb forces apparently on the orders of Karadžić launched an attack on Srebrenica which the International Court of Justice determined in 2007 constituted genocide.

During the period from April 1992 until November 1995, Bosnian Serb forces, under the direction and command of Karadžić, also led a campaign of violence in the capital of Bosnia and Herzegovina which became known as the “Siege of Sarajevo”. Lasting for well over three years, the siege was the longest-running siege of a city in modern warfare, paralleled only by events during WWII. The campaign of violence and deprivation against the civilian population in Sarajevo was instigated by Serb leaders, including Karadžić.

Following his arrest and transfer to The Hague, Karadžić made his initial appearance before the Tribunal on 31 July 2008, attending the hearing without the assistance of counsel. Karadžić informed the Tribunal that he intended to represent himself throughout his pre-trial and trial proceedings. In March 2009, Trial Chamber III entered a plea of ‘not guilty’ on behalf of Karadžić after he refused to enter a plea to the charges brought against him.

Indictment and Charges

Radovan Karadžić is charged with a multitude of crimes, covering various geographical locations and dates spanning three and a half years. He is charged with committing Genocide, crimes against humanity, and serious violations of the Geneva Conventions. Karadžić is charged with being responsible for crimes as a superior as well as for taking part in a ‘Joint Criminal Enterprise’ (‘JCE’) together with other senior Bosnian Serb leaders. Quite understandably, the case has been described as a ‘mega-trial’.

The initial Indictment against Karadžić was confirmed on 25 July 1995, along with that of General Ratko Mladić, who remains a fugitive of the ICTY. This Indictment related to crimes committed throughout Bosnia and Herzegovina, including campaigns of sniping and shelling during the siege of Sarajevo. A second Indictment later that year added crimes committed in the Srebrenica enclave, including Genocide. In May 2000 an Amended Indictment was filed which consolidated the two indictments. In September 2008, following Karadžić’s capture, the Prosecutor filed a new version of the operative Indictment, narrowing the charges and updating the document in line with recent ICTY jurisprudence. This Indictment removed the charge of complicity to commit genocide, and split the charge of Genocide into two. The Indictment also reduced the number of ‘crime sites’ in the Indictment, from 41 municipalities to 27.

The Prosecution was further urged by the Trial Chamber to streamline the case, limiting the number of crime sites and incidents in order to reduce the length of the trial. On 8 October 2009, the Prosecution filed a ‘marked up Indictment’ in response to the Tribunal’s request. This Indictment, filed on 19 October, has been further reduced in terms of crime sites and individual incidents.

One of the reasons that the trial will be so large in scope is because Karadžić is not only charged as a commander, but with taking part in a ‘Joint Criminal Enterprise’. This means that Karazdic committed crimes by participating in a group criminal activity, including a plan to create a Serb-dominated enclave in Bosnia and Herzegovina by carrying out ‘ethnic cleansing’ of the non-Serb population. Other members of the JCE include:  Ratko Mladić, Momčilo Krajišnik, Slobodan Milošević, Biljana Plavšić, Nikola Koljević, Mićo Stanišić, Momčilo Mandić, Jovica Stanišić, Franko Simatović, Željko Ražnatović, and Vojislav Šešelj. Another JCE relates to a common plan to spread terror in the civilian population of Sarajevo through sniping and shelling the city from April 1992 to November 1995.

Immunity Agreement

Since his arrest in Serbia in 2008, Karadžić has adamantly maintained that he is immune from prosecution before the Tribunal pursuant to an agreement made with then US Special Envoy to the Balkans and peace negotiator, Richard Holbrooke. The so-called ‘Holbrooke Agreement’, agreed under the framework of the Dayton Peace Accords signed in 1995, allegedly promises Karadžić that he will not be prosecuted by the Tribunal. In return, Karadžić contends that he agreed to resign from all positions in the Republika Srpska and the SDS, and further agreed to withdraw completely from public life.

In a 139-page Motion including annexes filed on 25 May 2009, Karadžić called for the ICTY to dismiss the Indictment against him, contending that the Tribunal lacked jurisdiction to prosecute him based on the alleged ‘Holbrooke Agreement’. According to Karadžić, continuing with the trial would constitute an abuse of process given the alleged deal struck with Richard Holbrooke (now US Special Envoy to Pakistan and Afghanistan). On 8 July 2009, the ICTY Trial Chamber found that it is not bound by the Agreement since Karadžić had failed to show that Holbrooke was acting with the authority of the Security Council. The Trial Chamber also found that there had been no abuse of process. Following an appeal lodged by Karadžić against the Decision, on 12 October 2009 the Appeals Chamber delivered its Decision. Rejecting the appeal in its entirety, the Chamber stated that “even if the alleged Agreement were proved, it would not limit the jurisdiction of the Tribunal, it would not otherwise be binding on the Tribunal and it would not trigger the doctrine of abuse of process.” According to the decisions of both Chambers, even if the Agreement were proved, the US did not have sufficient authority to issue immunity agreements, and moreover such an agreement would be void under the Statute of the Tribunal and in international law.

The existence of the Agreement remains a disputed factual issue, especially after the Trial Chamber declined Karadžić’s request to hold an evidentiary hearing to make findings of fact on the alleged Agreement. On 16 October 2009, Karadžić wrote to the Security Council to request that they enact a resolution honouring the Agreement. In his request Karadžić said that if it failed to do so then the ability of diplomats to make agreements ending conflict around the world would be lost, citing Sudan, Zimbabwe and Honduras as current examples.

Self-representation

As noted, at his initial appearance before the Tribunal, Karadžić informed the Chamber that he intended to represent himself throughout the proceedings, reminding many of another self-represented accused, Slobodan Milošević. Judges Kwon, Morrison and Baird will undoubtedly be hoping that the precedent set by Milošević from the beginning of his trial in February 2002 will not be followed by Karadžić, since the former’s trial was characterised by significant delays, theatrics and politically-charged attacks on the Tribunal. In the Milošević trial, the Prosecution took over two years to present its case.

In its Decision of 13 October 2009, the Appeals Chamber addressed the issue of Karadžić’s self-representation in response to complaints from Karadžić that he had not been granted sufficient time to prepare his Defence. Karadžić further asserted that the Trial Chamber had not sufficiently considered the difficulties posed by the complexity of the case on an Accused who had chosen to represent himself. The Appeal Chamber noted that “[a] defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel”.

Size of Trial and Boycott by Karadžić

In a status conference on 2 April 2009, when Presiding Judge Iain Bonomy asked Karadžić if there were any elements of the case that would not be challenged, Karadžić replied, "For the time being, I only have in mind the weather”. Accordingly, prior to the commencement of the trial, Karadžić had filed a multitude of motions concerning his proficiency in English, seeking access to various confidential materials, demanding the recusal of Judge Baird, and concerning his right to have documents in his native language. With Karadžić accused of purposely bombarding the Tribunal with paperwork, former presiding Judge, Iain Bonomy dismissed one particular Motion to exclude the testimony of war correspondents as “frivolous and vexatious” and containing “no tenable argument”.

Karadžić has consistently claimed that the trial will be the most complex in the Tribunal’s history, surpassing the Milošević trial. Karadžić has thus sought to challenge the Prosecution’s case and the size of his trial, criticising the Prosceution for ambushing him with unnecessary material. While the Prosecution has reduced the size of the case against Karadžić, striking various crimes bases and trimming the number of witnesses, Karadžić maintains that he needs more time to prepare his defence due to the complexity of the case, citing the number of counts and charges, the gravity of the crimes with which he is charged, and that, as a non-native English speaker who is self-represented, he faces particular difficulties in reviewing certain material. In a Motion filed in September, Karadžić sought to delay the trial for 10 months, providing the Tribunal with calculations that the sheer scope of the case against him necessitates at least 22,145 hours of preparation – or the equivalent of 10.1 months. Informing the Trial Chamber of their duty to avoid the injustice of a hasty trial, Karadžić stated that he had “no incentive to delay the trial unnecessarily” but “cannot look forward to a trial for which he has had no proper opportunity to prepare”.

Nevertheless, in its 13 October Decision in which it confirmed that proceedings would commence no later than 26 October 2009, the Appeals Chamber emphasised that Karadžić had enjoyed “significant assistance” in preparing for the trial, including a large number of paid assistants. The Appeals Chamber rejected his contentions that, in themselves, the number of counts and documents disclosed demonstrate that he had been granted insufficient time as based on erroneous assumptions. The Chamber also rejected as, ‘mechanical’, his calculation on the time needed to prepare a Defence.

Following the announcement of the commencement of the trial, Karadžić informed the Judges that based on his belief that he had been allowed insufficient time to prepare his Defence, he would not appear for the scheduled start of the trial. On 26 October Karadžić followed through on this threat and did not appear in court for the start of the trial.

The trial is expected to take up to two years, and there will likely be a lengthy appeal to follow. Unless the two remaining fugitives of the ICTR, Ratko Mladic and Goran Hadžić, are brought before the Tribunal, Karadžić’s trial will likely be the last to take place in the ICTY.

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