What the Karadzic Trial Didn’t Prove

Last week, ICTY chief prosecutor Serge Brammertz wrote an article for Al-Jazeera attempting to downplay the fact that that the Radovan Karadzic trial chamber had exonerated Slobodan Milosevic for crimes committed during the 1992-95 Bosnia War.

Brammertz argued that:

Some government officials throughout the region regularly misrepresent and disregard the judicial and historical record. [...]

Last week marked a new low. To widespread surprise, a thin pretext was seized in an attempt to publicly absolve former President of Serbia Slobodan Milosevic, of responsibility for the atrocities committed in Bosnia and Herzegovina.

Some, including the Serbian Foreign Minister Ivica Dacic, contend that earlier this year the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) exonerated Milosevic in its trial verdict convicting former Bosnian Serb leader Radovan Karadzic.

The arguments are not only misguided, but wrong. The only person on trial in Karadzic’s case was Karadzic himself.

Mr. Brammertz’s assertion that “The only person on trial in Karadzic’s case was Karadzic himself” is somewhat disingenuous. The charges against Milosevic and Karadzic are inexorably linked. Because of the way Mr. Brammertz and his prosecutors structured their indictments one can’t separate the two, and being the ICTY chief prosecutor, Mr. Brammertz ought to know that.

Milosevic’s culpability was an issue before the Karadzic trial chamber because Mr. Brammertz and his staff made it an issue. The Karadzic indictment accuses Slobodan Milosevic of co-perpetrating a “joint criminal enterprise” together with Radovan Karadzic. That’s why the Karadzic chamber made findings regarding Milosevic’s participation in the alleged “joint criminal enterprise” in first place. If Milosevic’s culpability wasn’t a relevant issue before the Karadzic trial chamber, then the judges wouldn’t have made any findings about him at all.

Mr. Brammertz and the prosecutors working under him charged Milosevic and Karadzic with undertaking the same conspiracy or “joint criminal enterprise” to permanently remove Bosnian Muslim and Bosnian Croat inhabitants from Bosnian Serb territory through the commission of various crimes. Radovan Karadzic’s indictment lists Slobodan Milosevic as his co-conspirator, and Slobodan Milosevic’s indictment lists Radovan Karadzic as his co-conspirator. Milosevic and Karadzic were accused of co-perpetrating exactly the same joint criminal enterprise in Bosnia together.

Paragraph 9 of the indictment against Karadzic says: “Radovan KARADZIC participated in an overarching joint criminal enterprise to permanently remove Bosnian Muslim and Bosnian Croat inhabitants from the territories of BiH claimed as Bosnian Serb territory by means which included the commission of [crimes].” And in Paragraph 11 the indictment asserts that “Radovan KARADZIC acted in concert with other members of this criminal enterprise including [...] Slobodan MILOSEVIC”.

Conversely, paragraph 6 of the indictment against Milosevic says: “Slobodan MILOSEVIC participated in the joint criminal enterprise [...] The purpose of this joint criminal enterprise was the forcible and permanent removal of the majority of non-Serbs, principally Bosnian Muslims and Bosnian Croats, from large areas of the Republic of Bosnia and Herzegovina, through the commission of crimes.” And in Paragraph 7, “The individuals participating in this joint criminal enterprise included Slobodan MILOSEVIC, Radovan KARADZIC, [...]”.

The Karadzic chamber’s determination that the evidence against Milosevic was not only “insufficient” to show that he was part of the joint criminal enterprise, but also that there was exculpatory evidence showing that he had limited influence over the Bosnian Serbs, opposed ethnic cleansing, and wanted to find a peace settlement that was fair to the Muslims and the Croats undermines the allegations against him in a very direct and obvious way.

The presiding judge in the Karadzic case (O-Gon Kwon of South Korea) was one of the three judges who sat on the bench throughout the Milosevic trial. He was certainly aware of the evidence, or more accurately, the lack of evidence against Milosevic.

Ms. Hildegard Uertz-Retzlaff was one of the senior prosecutors in both the Milosevic case and in the Karadzic case. She too would have been aware of evidence against Milosevic, and she had ample opportunity to advise her colleagues or present whatever evidence she had to the chamber during the nearly 8 years that Radovan Karadzic was on trial.

Moreover, the Karadzic chamber had access to recently disclosed documents that the Milosevic chamber did not. Specifically, they had access to Ratko Mladic’s diaries and they had access to the transcripts of the Supreme Defence Council, both of which they made reference to in their findings pertaining to Milosevic.

It should also be noted that the chamber based its findings mainly on the evidence tendered by prosecutors working for Mr. Brammertz himself. Karadzic had no obligation to defend Milosevic, but the prosecution was certainly obliged to present its evidence against Milosevic because they made allegations against him in the Karadzic indictment -- allegations that the judges rejected.

The ICTY’s Findings Can Be Questioned

If a senior ICTY official like chief prosecutor Brammertz, and outspoken ICTY apologists like RFE/RL Balkan Service Director Gordana Knezevic, can dispute the Karadzic chamber’s findings regarding Slobodan Milosevic, then others are free to question findings made by ICTY trial chambers. By denying, disputing, or trying to downplay the significance of these findings they have forfeited their right to accuse the Tribunal’s critics of “genocide denial” and “revisionism” for questioning other findings made by the Tribunal.

If the only findings that the Karadzic chamber was competent to make were the findings related to his acts and conduct alone, and not the acts and conduct of other people (e.g. Slobodan Milosevic), then we can disregard the vast majority of their findings. We can disregard all of the trial chamber’s findings related to the scheduled incidents listed in the indictment because Radovan Karadzic is not alleged to have personally killed or mistreated anyone.

The argument that Brammertz and Knezevic are advancing is a double-edged sword. If the Karadzic chamber is not competent to determine whether Slobodan Milosevic and Radovan Karadzic participated in a joint criminal enterprise in Bosnia together because Slobodan Milosevic wasn’t officially charged in the Karadzic case, then they’re certainly not competent to determine what Bosnian-Serb military and police personnel, who also weren’t officially charged with crimes in the Karadzic case, did at Srebrenica or in prison camps where Radovan Karadzic was not present. Nor can they credibly determine whether a shell or a bullet came from the Serbian or the Muslim side of the confrontation line in Sarajevo where the alleged shooters were not officially charged in the Karadzic proceedings.

Of course the ICTY’s findings have always been questionable, and that certainly includes some very questionable findings contained in the Karadzic judgment itself. Slobodan Milosevic isn’t innocent because of anything in the Karadzic judgment, and the tribunal doesn’t deserve a gold medal for exonerating him ten years after they killed him in their jail. Slobodan Milosevic is innocent because that’s what the evidence has always shown. 

Mr. Brammertz made one excellent suggestion in his article. He said that “while Milosevic did not face final judgment in the courtroom, the facts and evidence remain. Today, any member of the public - and any government official - can access the ICTY’s judicial records and read the evidence. Vital information can also be found in Serbia’s state archives.”

Anyone who takes Mr. Brammertz suggestion on board and goes through that evidence will very likely come to the conclusion that Mr. Brammertz is wrong when he claims that “Milosevic played a central role in fostering ethnic cleansing campaigns throughout the former Yugoslavia.” That wasn’t the determination of the Karadzic trial chamber when they looked at the evidence, and if our so-called “experts” and “journalists” ever bothered to take a detailed look at the evidence for themselves, they’d find that there wasn’t any substance to the allegations against Milosevic either.

What the Karadzic Verdict Does Not Prove

As long as we’re on the subject of what the Karadzic trial proceedings prove or don’t prove, there are a couple of noteworthy issues that the trial process specifically did not purport to prove: (1) that the Bosnian-Serb war effort was unjustified, and (2) that Bosnian-Muslim and Bosnian-Croat forces were innocent of crimes against Bosnian-Serb civilians.

There are two important principles in international law, one of which concerns the Karadzic trial and one of which does not: jus in bello and jus ad bellum.

Jus ad bellum (Latin for “right to war”) is the branch of international law that determines whether entering into an armed conflict is permissible or justified. Jus in bello (Latin for “right in war”), regulates the conduct of the belligerents engaged in an armed conflict regardless of whether they’re fighting an offensive war or a defensive war.

The Karadzic trial process openly disregarded jus ad bellum, and was only concerned with jus in bello. During the trial process Alan Tieger, the lead prosecutor in the Karadzic case, explained that “As this Trial Chamber has repeatedly pointed out to Dr. Karadzic, this case is not about who started the war, jus ad bellum.”[1]

The government of Germany made the same observation when it refused to hand over documents related to weapons shipments destined for Bosnian-Muslim soldiers based in the Srebrenica “safe area”. They noted that “The indictment specifically does not charge the Accused with violating the rules of jus ad bellum, but rather with disregarding jus in bello.”[2]

In its written submissions the prosecution argued that “International humanitarian law (IHL) applies to all parties in an armed conflict irrespective of the lawfulness of the other party’s resort to force, a violation of IHL can never be excused as a valid reprisal to an alleged violation of jus ad bellum.”[3]

Mr. Tieger made the same observation in court citing a U.S. military manual to argue that “the side that is acting in self-defence against illegal aggression does not because of that fact gain any right to violate the law of armed conflict.”[4]

When the Trial chamber refused to subpoena documents sought by the Karadzic defense from the United States government they did so on the basis that “the issue of who was responsible for starting the war is not relevant to the Accused’s defence case.”[5]

In court, Judge Kwon admonished Karadzic for spending too much time on the issue of whether Bosnian-Serb combat activities were offensive or defensive. He said, “Who started the attack is not relevant for the purpose of this case at all. So I was concerned very much about delving into whether the nature of certain combat activities was defensive or offensive. It’s all related jus ad bellum as I indicated yesterday. In the future, the Chamber will keep a closer look as to the relevance of the Defence witnesses’ evidence and, if necessary, it may consider not allowing the evidence at all.”[6]

Crimes against Serbs

Evidence of crimes committed against Bosnian-Serb civilians by Bosnian-Muslim and Croatian forces was also deemed “irrelevant” and suppressed by the prosecutors working for Mr. Brammertz, and by the trial chamber itself.

When a protected Bosnian-Muslim witness, under questioning from Dr. Karadzic, began testifying about Serbs who had been beheaded by Nasir Oric’s fighters in Srebrenica, prosecutor Melissa Pack intervened to stop the testimony. She said, “I can see that we are going down the road of this witness testifying about crimes allegedly committed by the ABiH against Serbs. This is the second answer which purports to describe those sorts of events, and I just want to at this point caution Dr. Karadzic and raise this as a potential issue. In my submission, evidence of crimes against Serbs is not relevant.”[7]

On many occasions prosecutors objected to the admission of documents on the grounds that “they consist of detailed evidence of crimes against Serbs and don’t satisfy the standard of relevance”.[8]

The judges openly sided with the prosecutors and forced the witnesses testifying in the trial to redact their statements in order to prevent evidence of crimes against Serbs from going on the record.

Witness Goran Sikiras had his statement redacted by the chamber on the grounds that “about half of Sikiras’s statement is concerned with crimes committed against Bosnian Serbs in Vogosca and as such are not relevant to the charges in the indictment. I refer here to page 4, parts of page 5, as well as pages 6 and 7. The Chamber reminds the accused once again that it will not admit detailed tu quoque evidence under the guise of relevance to this trial.”[9]

Witness Branislav Dukic’s statement was rejected in its entirety on the grounds that “Dukic’s proposed 92 ter statement is concerned, almost entirely, with detailed descriptions of crimes committed against the Serbs and against Dukic in particular. It also contains some references to previous meetings between Dukic and the Prosecution. As such, the Chamber considers that Dukic’s evidence is not relevant to the charges in the indictment. While his statement does contain some remote references to the positions and military activity of the ABiH and the Bosnian Croat forces in and around Sarajevo, these are not only minimal but also general in nature and thus are not sufficient in and of themselves to warrant admitting parts of his statement. Accordingly, the Chamber decides, proprio motu, to exclude the evidence of Branislav Dukic in its entirety.”[10]

The statement of witness Vidomir Banduka was redacted because “the Chamber finds paragraphs 59, 60, 62, 63, 72 to 75, 77, and 78 are not relevant in that they either refer to the detention facilities established by Bosnian Muslim authorities or to crimes committed against Bosnian Serbs. So these paragraphs should be redacted and will not admit associated exhibits referred to therein.”[11]

The statement of witness Nenad Kecmanovic was redacted because, “paragraphs 45 and 46 of Mr. Kecmanovic’s statement contain a detailed information about mistreatment of Bosnian Serbs, including the existence of detention centres. The Chamber is of the view that this level of detail is not relevant to the charges against the accused, and accordingly orders the redaction of these paragraphs.”[12]

When they ordered the redaction of witness Milovan Bjelica’s witness statement the judges explained that “the Chamber had an opportunity to skim through the statement. Para 44, the Chamber -- we will keep the first and last sentence, but the other part should be redacted, as well as paragraph 45, 47, and paragraph 49 to 51. They do contain too much detailed evidence, including names, ages of victims on crimes against Bosnian Serbs that are not relevant or necessary.”[13]

The judges were so keen to suppress evidence of crimes against Serbs that they would redact even a single sentence if the witness dared to mention that crimes had been committed against Serbs. When they ordered the redaction of Tomislav Savkic’s witness statement the judge explained that “the Chamber finds that the last sentence of paragraph 62 and the document referred to therein and the last sentence of paragraph 81 contain excessive detail about specific crimes committed against Bosnian Serbs which is not relevant to the charges against the accused in the indictment and orders that they be redacted.”[14]

When the trial chamber ordered redactions to Srdjan Sehovac’s witness statement they did so on the basis that “the statement, which the Prosecution seeks to exclude, falls within the category of detailed evidence pertaining to crimes committed against Bosnian Serbs which the Chamber has consistently excluded on the grounds that it is irrelevant tu quoque evidence.”[15]

When Radojka Pandurevic, a Serbian woman who was imprisoned in a camp run by the Bosnian-Muslims where she and other Serbian prisoners were subjected to beatings and sexual violence, took the witness stand the judges demanded that large swaths of her witness statement be redacted because “her statement is comprised of tu quoque or otherwise irrelevant evidence and will therefore not be admitted.”[16]

When she took the witness stand she objected to the redactions saying, “I read the statement, but it doesn’t reflect accurately everything I said, as I can see that some portions are marked which were unacceptable and redacted. Those paragraphs have to do with my stay in the Silos camp, which in turn would mean that I cannot convey the suffering I had undergone in the Silos camp.”[17]

The judges made no secret of what they were doing during the trial. They said it clearly, they said it openly, and they said it literally: “We didn’t allow the accused to expand on the issue of crimes committed against the Serbs.”[18]

In his editorial for Al-Jazeera, Mr. Brammertz argues that, “Progress and reconciliation require acceptance of clear, historical facts, no matter how uncomfortable those facts may be.” Unfortunately, the Karadzic trial purported to establish no such historical facts.

The Radovan Karadzic trial was not an objective exercise in truth seeking, nor did it purport to be one. The judges clearly told Radovan Karadzic that “It is you, not the Serbian army or Serb people or anybody else, that was indicted in this case.”[19] They said, “We are not trying to publish a white book on the history of the BiH. This is a criminal trial which deals with the charges against you.”[20] The judges were explicit. They said, “The purpose of this trial is to judge whether you are guilty of charges as alleged in the indictment. And this is not an opportunity for you to produce a white book of all the events that took place at the time.”[21] They were very clear about the fact that “We are not pursuing to produce a white book in history or to correct the history.”[22]

The Karadzic trial did nothing to promote progress and reconciliation in the Balkans, in fact it served exactly the opposite purpose. Publicizing crimes committed by Serbs, while shamelessly suppressing evidence of crimes committed against them, and suppressing evidence that they were defending themselves from illegal aggression can only serve to engender resentment and hard feelings. The Serbian people will never accept the Tribunal’s condemnation of Radovan Karadzic under these circumstances, nor should they.

Suppressing evidence of crimes against Serbs, and suppressing evidence of whether the Serbs were fighting an offensive or a defensive war, directly undermines the Karadzic trial chamber's conviction of Radovan Karadzic. It's entirely possible that Serbian forces who did perpetrate crimes were motivated to do so in retaliation for crimes and aggression against Serbs by Muslims and Croats, and not because Radovan Karadzic was the evil mastermind of a “joint criminal enterprise”. The way in which this trial was conducted leaves ample room for resonable doubt.

Serge Brammertz does not speak from a position of credibility either. Thanks to Wikileaks, we know how he got his job as ICTY chief prosecutor, and it’s an interesting story.

According to a classified U.S. State Dept. cable dating from 2007, “France is backing Serge Brammertz to succeed Carla Del Ponte as ICTY Chief Prosecutor from a belief that Brammertz will otherwise refuse to extend his mandate at the UN International Investigative Commission (UNIIIC), an outcome the French characterize as disastrous.”[23]

According to the cable, a more qualified prosecutor was passed over in favor of Brammertz despite doubts about his competence. The cable says, “With Del Ponte set to retire in September, current Deputy Prosecutor Tolbert would manage the transition until Brammertz’s arrival.  [MFA UN/Middle East Action Officer Salina Grenet] acknowledged that the outcome was not positive for Tolbert, an [American citizen], whom she called an excellent candidate in his own right to succeed Del Ponte. She volunteered moreover that the UK had raised doubts about whether Brammertz possessed the right profile and competence for the ICTY position.”[24]

Brammertz got the job of ICTY chief prosecutor, despite the fact that the ICC wouldn’t even give him his old job back. The cable says, “Grenet conceded that Brammertz, on leave as Deputy Prosecutor of the International Criminal Court (ICC), should technically be able to resume his prior function; however, she claimed that ICC Prosecutor Ocampo, whose personal relationship with Brammertz has continued to deteriorate, has effectively shut the door on that possibility.”[25]

Why should anyone take the ICTY seriously when its chief prosecutor got his job for blatantly political reasons in spite of doubts about his competence?

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