Note from the Saker: I have recently posted an excellent analysis by Stephen Karganovic of the legal farce or “judicial persecution” of Vojislav Šešelj by the International Criminal Tribunal for the Former Yugoslavia at the Hague. I was so impressed by this article, that I asked Karganovic if he would agree to update me, and my readers, about the situation of Radovan Karadžić. Karganovic kindly agreed and he sent me the article I am posting today. Considering some of the comments elicited by the previous article I sadly have to remind you all of two things which I consider self-evident:

1) To describe the gross violation of basic legal norms and civil rights of an accused person does not necessarily imply an endorsement of that person’s views, actions or character.  For example, do denounce the murder by a lynchmob of Muammar Gaddafi does not imply an endorsement of his policies or character.

2) In today’s world, it appears that *nobody* has the intellectual honesty or courage to give the accused Serbians at the ICTFY a fair hearing or even to express concern about the total lack of respect of even basic legal norms in their trials. I refuse to “forget” or “not notice”. I shall not be a bystander and I shall not give in to the social pressure to conform.

I want to express my deepest gratitude to Stephen Karganovic for is superb analysis of these two trials.

The Saker
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The Trial Of Radovan Karadžić Enters The Final Phase

by Stephen Karganovic

The Prosecution and the Defence have filed their final submissions in the trial of Radovan Karadžić, former president of the Republic of Srpska, which was concluded on 2 May 2014. The trial was conducted before the International Criminal Tribunal for the Former Yugoslavia at the Hague. A total of 195 Prosecution and 238 Defence witnesses were heard. The prosecutor, Alan Tieger, has asked for life imprisonment, the maximum sentence, for Dr. Karadžić who stands accused of genocide, crimes against humanity (persecution, extermination, murder, deportation, etc.), and violation of the laws and customs of war. Dr Karadžić was the political head of the Bosnian Serb state during the 1992-1995 ethnic conflict in Bosnia and Herzegovina and, as President, he was commander-in-chief of its armed forces.

While during the lengthy trial the prosecution focused on a variety of imputed crimes, the main charges against Dr. Karadžić concerned “ethnic cleansing” of the Muslim and to a lesser extent Croatian population, the siege and bombardment of Sarajevo by Serbian forces, and events in Srebrenica following its capture by Serbian forces in July of 1995.

In his three-day summary of the evidence which began on 1 October, Karadžić reiterated his innocence of the charges outlined in the indictment. “I am not guilty,” he proclaimed. “This court has put on trial not me, but the Serbian people.”

Although not a lawyer but psychiatrist by training and representing himself in the proceedings, as the trial advanced Dr. Karadžić’s proficiency increased noticeably. While in his 876 page final submission he addressed meticulously every item presented in the prosecution’s case, in the concluding remarks he focused mainly on refuting the three charges which were at the heart of the prosecutor’s indictment.

  1. There was never a policy or “joint criminal enterprise” to expel Muslims from Serb areas of Bosnia;
  2. The shelling and sniping in Sarajevo was in response and proportional to outgoing fire and attacks by the Bosnian Muslim forces from the militarized city, and the most dramatic of these events, like Markale, were staged by the Muslims to obtain international intervention for their side; and
  3. He had no knowledge that prisoners from Srebrenica would be, were being, or had been executed and the number of such executions has been exaggerated.

The defendant argued forcefully that while large-scale movement of each of the three ethnic populations (Muslim, Croats, and Serbs) to areas where their co-nationals constituted the majority or were under the control of their armed forces is undeniable, that is an inherent characteristic of most ethnic conflicts. The prosecution, Karadžić claimed, failed to present any evidence of a plan or policy on the Bosnian Serb side to expel members of the other ethnicities from territory under its control. Quite the opposite, numerous orders were issued to troops and authorities under Karadžić’s command prohibiting ill-treatment of Muslim and Croat non-combatants.

Radovan Karadžić

The siege of Sarajevo, as expected, was a very contentious issue during the trial. Karadžić reiterated the position of the Serbian side that while Muslims had a strong presence in the city, the surrounding countryside was mainly populated by Serbs. As a result, there was no “siege” in proper military terms but merely holding the line of demarcation between the respective territories of the two communities. Karadžić was largely successful in demonstrating that, contrary to agreements reached at the beginning of the war concerning its demilitarisation, Sarajevo contained significant and well-equipped Muslim military formations which conducted offensive operations against Serbian forces throughout the conflict.

One of the highlights of the defence case was undoubtedly the meticulous and competent dismantling of the story line constructed around Markale market bombings, with considerable civilian casualties, allegedly carried out by Bosnian Serb forces in February 1994 and August 1995. These bombings were significant in psychologically turning world public opinion against the Serb side and, additionally, served as pretexts for the military involvement of NATO forces on the Muslim side, thus helping to tip the military balance in the war.

Karadžić’s defence reinforced doubts that virtually from the start were circulating widely that the Markale massacres were a classical “false flag” operation conceived and carried out by the Muslims, perhaps with Western intelligence assistance. It was, he argued, designed to incriminate the other side, and not a war crime deliberately committed by Serbian forces. Forensic and eyewitness evidence produced by the defence left intact very little of the prosecution’s case with regard to Markale.

Turning to Srebrenica, while asserting that the prosecution offered no evidence to link him to the planning, execution, or knowledge of any crimes committed there in the aftermath of the Serbian takeover in July 1995, Dr. Karadžić vigorously disputed the standard narrative. His position was that the prosecution claim of 7,000 to 8,000 executed prisoners was an impossibility because the prosecution failed to produce evidence that more than about 3,500 Muslim POWs were ever taken captive in that military operation. Furthermore, according to evidence presented by the defence, a large number of Muslim losses were in fact combat deaths sustained during Muslim army 28th Division’s breakout from Srebrenica to Tuzla and were therefore legitimate casualties which cannot be imputed as war crimes.

Dr. Karadžić’s position is that up to 1,000 Muslim prisoners of war were probably executed after the fall of Srebrenica on 11 July 1995, but that – setting aside revenge killings – the executions had neither an official nor premeditated character and were carried out by rogue structures outside of the Bosnian Serb military chain of command. Karadžić did not deny that a massacre of prisoners took place, though on a far smaller scale than alleged in the indictment, but asserted that neither the military nor the political authorities of the Republic of Srpska were involved in it.

On the issue of “genocide,” which is particularly complex from the legal standpoint and sensitive morally, Karadžić maintained that the evidence does not demonstrate any intent, prior to the 11 July 1995 takeover of Srebrenica, to exterminate Muslims as a group protected under the Genocide Convention. Moreover, he referred to much contrary evidence produced at the trial indicating that captured prisoners were being treated regularly into 13 July, thus again refuting the existence of prior genocidal specific intent. Subsequently, groups of prisoners were shot at various locations, but the prosecution failed to link those events to state or military policy. According to Karadžić, it would be just as reasonable to view these murders as revenge by local Serbs for the atrocities previously committed by Muslim army forces using the UN-protected Srebrenica enclave as a launching pad for military operations against Serbian civilians in the surrounding areas.

In any event, Karadžić argued, the object of a genocide – even if there was the intention to commit it – could only have been Bosnian Muslims as a whole, not a comparatively negligible percentage of Muslim residents and refugees in a small town. However, no evidence was presented that a crime of such scope or nature was planned or committed either on the national or the municipal level.

The Karadžić trial (and the mostly parallel trial of Bosnian Serb army commander, General Ratko Mladic) is the last in the series of Hague show trials since the Tribunal was established and began its work in the mid-1990s. In an important sense it encapsulates the spirit and methodology of ICTY. Inequality of resources between the huge Prosecution staff and the tiny Defence team is blatant. The Chamber regularly granted Prosecution requests and blocked those of the Defence. The Prosecution deprived the Defence of thousands of pages of potentially exculpatory evidence during the trial without provoking the slightest effort on the part of the judicial Chamber to correct that outrageous procedural and substantive injustice. Defence request for access to important evidence for independent forensic verification, such as DNA data that allegedly supports the prosecution’s version of the number of Srebrenica victims, was flatly denied by the Chamber. And the list goes on and on…

The unequal conditions in which the trial was conducted leave little doubt that the judges will go to great lengths to look at the evidence and its significance from the Prosecution’s point of view. With respect to the formal outcome of the Karadžić trial, it is practically certain that the judges are highly unlikely to take the politically risky step of disregarding the prosecution’s recommendation of life in prison for Radovan Karadžić.

That being settled, the larger issue is how the verdict will be framed and what reverberations it will have on the Bosnian political scene.

Karadžić’s close collaborator, Bosnian Serb National Assembly President Momčilo Krajišnik, was initially accused of genocide, but in the verdict that charge was dropped by the court for lack of evidence. In Dr. Karadžić’s case, whether or not he is found guilty of genocide (it being understood that in light of Tribunal’s jurisprudence, there are in any event plenty of crimes in the indictment that the court could use to rationalize life imprisonment, if it so chooses) is bound to have considerable impact on local Bosnian politics. It would add considerable impetus and an apparent legal justification to the persistent Muslim demand for the dissolution of the Republic of Srpska as a “genocidal entity.” It would also provide a quasi-judicial basis for collecting from Republic of Srpska’s taxpayers huge civil indemnity judgments that individual Muslim “victims” have obtained in various courts for abuses suffered at the hands of Serbian forces during the Bosnian civil war.

There is also another important potential effect of the Karadžić judgment that is certain to have an impact on the Serbian Democratic Party (SDP) in the Republic of Srpska, which he founded. While Karadžić was in hiding and later at the Hague, his party, once considered a bastion of Serbian nationalism, was taken over by a new cadre of pragmatic politicians eager to avoid confrontations with Western powers and ready to make political accommodations in return for Western support to replace current pro-Russian Republika Srpska President Milorad Dodik. SDP’s candidate lost the 12 October election to Dodik, but the party still has considerable influence with the support of about one-fourth of the electorate. It is rumored in Banja Luka, the Bosnian Serb capital, that the new SDP leadership has agreed to redesign party ideology to make it more acceptable to Euro-Atlanticist mentors, similarly to the way that operation was performed a few years ago in neighbouring Serbia by former nationalist Radicals Aleksandar Vučić and Tomislav Nikolić.

According to well-informed sources, again, current SDP leadership were warned by Western interests that by the time the Karadžić trial is over they would be well advised to fully transform their traditional image. Otherwise, their “extremist nationalist” and, after the Karadžić verdict, quite possibly also “genocidal” party might simply be banned by the High representative in Sarajevo who, after all, is the real ruler of Bosnia and Herzegovina.