Karadžić trial: If I were a prosecutor
By Sean L Hanley, on 30 October 2012
Former Bosnian Serb leader Radovan Karadžić has presented evidence in his defence to the International Criminal Tribunal for the Former Yugoslavia – it almost amounts to a second prosecution case, finds Eric Gordy.
If I were a defence lawyer for Radovan Karadžić – currently on trial for genocide and war crimes at International Criminal Tribunal for the former Yugoslavia in The Hague – I would be inclined to offer the advice most defence lawyers offer to defendants in criminal cases: do not present a defence unless you have to. The prosecution is required to prove guilt beyond a reasonable doubt, and the defence does not have to prove anything to get an acquittal – all the defence has to do is raise doubt. When it starts presenting its own evidence, it raises the risk of providing additional material for the prosecution.
This is especially the case if the defendant is, like Radovan Karadžić, guilty. Prosecutors love it when this kind of defendant decides to offer a case. It becomes a second prosecution case, offering the prosecutors both new evidence and the chance to introduce in rebuttal evidence that they were not able to introduce when it was their turn.
So let’s have a peek at the some of the evidence that Karadžić submitted on 15 October in his defence. He gives us a written statement by Blagoje Kovačević, a Republika Srpska Army (VRS) colonel who ranked high among the commanders in the siege of Sarajevo from 1992 to 1995.
The prosecutors ought to be able to use several parts of the statement for just the opposite purpose that Kovačević had in mind when he gave the statement, and to great effect. All they need to do is ask him about some of his claims. Like the following ones:
- p. 2, para. 6: “the 1st ABH /Army of Bosnia and Herzegovina/ Corps was in the city of Sarajevo under the control of the Muslim authorities. My information about the numerical strength of this Corps was based on my own estimation of the possible number of mobilised soldiers, which was about 80,000 combatants.” For comparison (para. 7), he estimates the size of his own brigades at 2500. Kovačević claims that he was protecting civilians, but who did VRS consider to be a civilian and who a combatant? The population of Sarajevo in 1991 was 361,735 ,so simple math shows that he thought that about a quarter of the population were combatants.
- p. 2, para. 8: “There was no interest in taking areas which had not been ethnically defined as Serbian.” Here again we are confronted with issues of definition. Specifically ‘ethnic’ definition. How was this done, and by whom, and what importance did this definition take on in day-to-day military operations?
- p. 3, paras. 9 and 10: the “objective … was not to allow the Muslim forces a breakthrough from Sarajevo and their use on other battlefields.” If this happened “the situation at the fronts would have drastically changed to the detriment of VRS.” This is an argument that the siege of the city could be justified on the ground of military necessity. But it allows the prosecutors to ask what the VRS command considered to be military necessity.
- p. 13, para. 12: “[T]he Muslims never hid their intention to provoke an incident which would be reason enough for the then UNPROFOR units or those of NATO to be deployed on their side. We were perfectly aware of the fact that the opposite side deliberately opened fire at times of truce in order to provoke a reaction on the part of our forces, so that we would then be blamed for causing the incident.” Here Kovačević is inviting the prosecutors to ask him about first, the source of his knowledge about other people’s intentions, and second, the genesis of every single ‘incident’ about which he as a commander would be expected to know. If anything done by his forces was an action rather than a reaction, it contradicts his description of VRS policy.
- pp. 3 and 4, para. 14: Referring to the use of explosives to attack crowds of civilians, Kovačević says “I have no information as to who caused these incidents, but they could have been caused by anyone in Sarajevo.” The passage is followed by speculation about what he might have found if he had investigated. Here he opens up lines of questioning as to the positioning of forces and arms, about the chain of command, and about who was authorised to issue orders. In cases where chains of command form an element of criminal responsibility, it is a violation for commanders not to know things that they are obligated to know.
- p. 4, para. 15: “I have no knowledge to the effect that the final objective for Sarajevo of the Serbian authorities was a division of the city. It is mistaken to believe that the Serbs wanted a division, because Serbs too lived in the city. The Muslims wanted to drive the Serbs away from Sarajevo and not the other way around.” Here Kovačević is opening up lines of questioning about sources of information used by military commanders. Where did his information about the other side’s political goals come from? Was there information about political goals coming from the higher ranks of Republika Srpska (RS) politicians, including Karadžić? The statement also invites evidence to be introduced about the stated goals of RS political leaders, including Karadžić, in interviews and news articles in 1992 and 1993.
- p. 5, para. 25: “Neither I nor my unit ever had the intention during combat to cause civilian casualties or wreak terror on civilians under the control of Muslim authorities.” And in the same paragraph, p. 6: “I claim that the army never sought to wield any psychological impact on civilians under the control of Muslim authorities.” These statements raise questions not only about general tactics and war aims, but about the purpose of individual events. When this missile was fired into this residential building, was there an intention to cause casualties or to bring about psychological effects? What was the purpose of sniper fire on this residential area on this date? You get the point.
- p. 6, para. 28: Kovačević states that he never ordered attacks against “civilians” or “means of public transportation.” This invites prosecutors to go through the artillery diaries and news accounts, and to ask what the source of the command for large numbers of individual attacks was. If the number is large enough over an extended period of time, it suggests a pattern of acts – leading to a conclusion that attacks were not incidental.
- p. 7, para. 33: “My unit received orders from superior commands or the civilian authorities to the effect that in the event that fire was opened at civilians … an investigation was to be conducted and the perpetrators punished.” p. 7, para. 34: “In any case we punished such breached of discipline.” In this event there should be a record of the commands (something which appears unlikely given that Kovačević does not appear to know where they came from) and of the investigations and punishments. If the records cannot be produced, or do not show that the number of investigations and punishments matches the number of breaches, then the obligation to prevent and punish violations has not been met. If the number of investigations and punishments is zero or very small, it is an indication of the existence of a policy to commit violations.
This is just a partial sampling of the questions and opportunities to introduce new evidence raised by one witness statement, probably not an especially major one and certainly not the only one to be offered in a defence case that will probably take well over a year. Look over the document yourself and you will find some more. Keep doing this with all the defence evidence and you will see that, while there could be some places where Karadžić helps himself, most of what he is doing is presenting a second prosecution case – and it could be better than the prosecution’s original case because he knows some things they do not, he allows them to use material they knew about, but could not introduce.
Eric Gordy is Senior Lecturer in South East European Politics at UCL-SSEES. His research focuses on the politics and culture of the contemporary Balkans. His new book Guilt, responsibility and denial: The past at stake in post-Milosevic Serbia is forthcoming with University of Pennsylvania Press.
This piece is reproduced with permission from his blog East Ethnia
Note: This article gives the views of the author(s), and not the position of the SSEES Research blog, nor of the School of Slavonic and East European Studies, nor of UCL