Analysis 10 Jun 11

Joining Mladic and Karadzic Indictments ‘Will Delay Justice’

Despite suggestions from Hague prosecutors that the indictments against Ratko Mladic and Radovan Karadzic may be merged, there are worries that the main result would be delays to Karadzic’s trial.

Denis Dzidic

The arrest of Ratko Mladic, former commander of the Main Staff of the Army of Republika Srpska, VRS, after more than 15 years on the run, has prompted numerous questions about how his trial before the ICTY could be conducted.

The Prosecutor’s Office at the International Criminal Tribunal for the Former Yugoslavia, ICTY, has already raised the possibility that the trial of Mladic could be joined in some way with the proceedings against Radovan Karadzic, former President of Republika Srpska, RS, and supreme commander of the armed forces.

This is largely because both men are charged with the same crimes during the 1992-5 war in Bosnia and Herzegovina.

Serge Brammertz, Chief Prosecutor of the Hague tribunal, said after the arrest of Mladic that he was still considering proposing to merge the indictments against Mladic and Karadzic.

“When Karadzic was arrested, we hoped the arrest of Mladic would follow soon. We had hoped that both [indictees] could face the judges in The Hague together,” he said.

“It is still possible to go for a partial joinder. That's a theoretical possibility but I would not say it is a very likely thing today, though we are still looking into a number of options,” Brammertz told BIRN Justice Report.

But legal experts say this solution would be far from ideal, given that Karadzic was arrested almost three years ago and his trial is ongoing now for about 20 months.

If a request for joinder is filed, it could cause new delays in the case against Karadzic, which would greatly dissatisfy victims of the war in Bosnia.

The tribunal says a request for joining indictments can be filed after a trial starts, and if both sides agree on the proposal, the Trial Chamber will decide whether a joint trial is in the interest of justice.

Peter Robinson, legal adviser to Karadzic, told BIRN-Justice Report that he did not know whether he would oppose the motion for a joinder of the charges.

“Karadzic and I have talked about it and we agreed it would be best to wait and talk with General Mladic and his legal team before deciding what our position will be,” Robinson said.

One indictment or two?

The Hague prosecution in 1995 originally indicted Mladic and Karadzic together for genocide and other grave crimes committed on the territory of the whole of Bosnia and Herzgovina.

After that both men went on the run, until Karadzic was arrested in July 2008 in Belgrade.

Mladic continued his flight from justice until May, when Serbian police arrested him in the village of Lazarevo in northern Serbia. In the meantime, his indictment was separated from Karadzic’s and amended several times.

Last May, the Hague prosecution suggested that Mladic's indictment be aligned with Karadzic’s, as the two were key participants in a Joint Criminal Enterprise, JCE. The Hague Tribunal accepted the amended indictment in May.

“The proposed indictment would allow the joining of these cases and given that Karadzic and Mladic are the main members of the JCE in the two indictments, they would be very suitable for merger,” the Hague prosecution said in May 2010.

Mladic and Karadzic are charged with 11 counts of genocide, crimes against humanity and violations of the laws or customs of war, referring to “ethnic cleansing” campaigns in Bosnia between 1992 and 1995, as well as for their participation in terrorizing the citizens of Sarajevo during the three-year siege of the Bosnian capital.

The ICTY media office emphasized that either party, defence or prosecution, can file a proposal to connect the indictments, while “all other parties to the proceedings have the right to comment on the proposal.”

“The Trial Chamber shall decide whether it is in the interest of justice to merge or split a trial and whether joining indictments can have a negative impact on the fairness of the trial for any of the defendants,” Nerma Jelacic, ICTY spokeswoman, explained.

Peter Robinson, legal adviser to Karadzic, said that joining indictments with Mladic’s was “possible” and would depend on the Trial Chamber.

“The prosecution will have a major role in a possible merger but we will be allowed to present our view. Now it is too early to assess whether it will happen,” Robinson said.

According to Robinson, Karadzic was “saddened” by Mladic’s arrest, but was looking forward “to close and cooperative work with him and his defence team”.

Karadzic is defending himself during the trial with the help of legal advisers and associates, while Mladic has not declared whether he will defend himself or through counsel. The ICTY has named Aleksandar Aleksic, a Serbian defence lawyer, as Mladic’s duty counsel.

Mladic said during his initial appearance before Hague Tribunal judges that his plan was to have “a sound defence, which will not consist of one man only”.

Fears of fresh delays:

Alexander Knoops, legal expert and professor of International criminal law at the University of Utrecht, told BIRN-Justice Report that it was “impossible to merge two legal proceedings, unless both accused agree.

“A prosecution request to join these two cases would mean the Karadzic trial have would have to be postponed until the Mladic case started and reached the same stage as the Karadzic trial,” he explained.

“This could cause a delay in the Karadzic trial”, Knoops added.

Murat Tahirovic, president of the Association of Detainees in Bosnia and Herzegovina, said he hoped the merger would not occur, given that the case against Karadzic was already at “an advanced stage

“What we hope for is a common presentation of evidence in Mladic’s and Karadzic’s trial in respect to crimes in Srebrenica, because this part of the indictment hasn’t been presented in Karadzic’s case,” he said.

“This will ultimately depend on the Court, but I see that even the Hague prosecutors are skeptical,” Tahirovic added.

So far, Karadzic’s trial has heard evidence relating to the sniping at and shelling of Sarajevo between 1992 and 1995, as a result of which several thousand civilians were killed.

Karadzic and Mladic are both accused of involvement in the genocide committed in July 1995 in Srebrenica, eastern Bosnia, during which over 7,000 Bosniak [Muslim] men and boys were killed.

On the question of whether there is a possibility of a partial merger of the Mladic and Karadzic cases in relation to some counts of the indictments, Brammertz noted the indictment against Mladic was complete.

“The current indictment is operative, but of course we are looking at a number of possibilities to make sure a manageable trial can take place as soon as possible,” he said, «but it is much too early to say in what direction we are going”.

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