Posted on 19 July 2011.
On Monday, July 18, 2011, I sat down with Peter Robinson at the International Criminal Tribunal for the former Yugoslavia
in The Hague, The Netherlands. Mr. Robinson is the legal advisor to founding member of the Serbian Democratic Party and former President of the Republic of Srpska, Radovan Karadzic
. Karadzic appears before the tribunal charged with genocide, war crimes, and crimes against humanity committed in the former Yugoslavia in the 1990’s. His trial began on October 26, 2009 and is currently ongoing. What follows is a candid conversation touching on Dr. Karadzic’s case specifically and the ICTY and international criminal justice more generally. I would like to take this opportunity to thank Mr. Robinson for his time and cooperation. His experience and insight are an invaluable resource for those seeking to look critically at international criminal justice. Biographical information about Mr. Robinson, as well as a link to buy his thriller, The Tribunal, are available at www.PeterRobinson.com
JB: Many of our readers may be unfamiliar with the nature of your professional relationship with Dr. Karadzic, as he represents himself and you act as his Legal Advisor. Can you describe your division of labor and respective roles?
PR: Basically, I work on all legal issues. I draft pleadings for him to review and sign if we are going to file something in writing. If something comes up during the trial, I can intervene by objection. Sometimes, I make oral motions on evidentiary issues that need to be made quickly and are not so complicated that they need to be put in writing. In short, I work on the legal aspect of the case and [Dr. Karadzic] deals with the factual issues.
JB: And does he take your legal advice?
PR: Most of the time. Actually, I advised him against boycotting the trial at the start because I didn’t think it was legitimate to do that. He told me, “Look. I know politics, and you know law. This is a political tribunal, and we are going to do it my way.” So, that is how we did it.
JB: It is frequently argued that representing yourself in a criminal proceeding, even if you are a trained lawyer, is a foolish thing to do. Have you found that self-representation has served Dr. Karadzic’s needs politically and legally speaking? Would you recommend someone in his position to handle his or her situation as Dr. Karadzic has handled his?
PR: Well, it depends on the person, and it depends on the trial. From his point of view, he was correct in thinking that it would be very difficult for any lawyer, no matter how good they were, to be able to get him off on these charges. If what he wants to accomplish is to educate the public, to educate history, especially in the view of the Bosnian people, then he has a good opportunity to do that by representing himself and having the floor every day. Otherwise, he would just be sitting there. In two years, when it was his turn to testify, he would be able to speak for a couple of weeks and that would be it as far as participation in his trial was concerned.
Also, he has actually gotten to be very good in the course of the year that he has been [representing himself]. He has improved a lot and does a really good job. Because he knows the facts so well, he is sometimes able to come up with a counter argument on the spot in a way that no lawyer could have ever done. His abilities are very high. He is articulate and works really hard. Given the parameters of what he wants to accomplish, I think it was a good decision for him.
JB: Part of the reason that Dr. Karadzic selected you to be his Legal Advisor was that you came from a common law system. Why, as a common lawyer, were you particularly suited to represent a client at this tribunal?
PR: Maybe 80% of the decisions made here are based on common law principles and precedents. And the procedure in the trial itself is maybe 95% common law. Even though you can use concepts from both systems, and a good lawyer would try and take the best from any system and try and argue that they should apply it here. In practice, because the Americans were the driving force in setting up [the ad hoc tribunals] that it’s taken a real common law bent where as the ICC is a little more of a balance between the common and civil law systems.
JB: International criminal tribunals seek the twin goals of domestic catharsis and bringing culpable individuals to justice. Based on your extensive experience at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, how do you see this balance being struck in practice?
PR: I think they have gone way too far in the way of trying to prove everything that took place in a particular conflict, from a historical point of view. As a result, the trials are too big, they take too long, and in the Milosevic case they never accomplished the real goal, which is to hold an individual accountable.
And they made the same mistake in Karadzic’s case. We asked them to narrow the charges and simplify the trial, but they had no interest in doing that. As a result, we are in a trial that is going to last four or five years. It was a mistake not to focus the cases on the most effective way to hold someone accountable and have a sentence that would reflect the gravity of the charges while at the same time making the trial manageable.
JB: So you think that the public criticism that these trials are mostly a decade long formality, that this is not a situation in which someone is innocent until proven guilty, and that the focus of these tribunals is not on the defendant but on the public at large are well-founded?
PR: Yeah, they are. I think that it is more difficult to get a fair trial at these tribunals than it is in [the American] national system.
JB: I was particularly struck by the disparity in numbers. The prosecution has around 30 lawyers at its disposal and the defense team has only 5 full time attorneys. The prosecution turned over 2 million pages of documents for review. This seems to bolster negative perception frequently attributed to the ad hoc tribunals. Why doesn’t the UN do something about it?
PR: We really complain about that a lot. When it started out, they only wanted to have one person representing him. The registrar said that if you are representing yourself, that means “self.” Only you. We will pay someone to pass papers back and forth between you and the registrar, but that’s it. We had to appeal all the way to the President for them to say, “No. You cannot have self-representation unless you have the right to the assistance of case managers, investigators, and a legal advisor.” But the problem is that you will never be equal to the prosecution. Even in the U.S., the police will always have more resources than the defense.
The prosecution is supposed to take the results of their work and turn it over as disclosure. The theory is that you can make up for the disparity in resources by having the prosecution turn over the results of what they do. The problem is that, because the cases are so big, we really cannot effectively utilize the disclosure. We need more people to be able to equalize the playing field. And I am speaking only about our ability to handle what the prosecution already did, let alone have our own people go out and re-investigate the case. We just want to be able to understand what they are giving us.
Most of these documents fall under the category of “exculpatory evidence.” They think the evidence is important enough to Dr. Karadzic’s case that they feel compelled to turn it over. At this point, we cannot find it or read it. I think the problem with the UN system is that the cases are so big and the tribunals are so expensive that they don’t want to pay a lot of money for a big defense team.
JB: Dr. Karadzic’s defense would appear to rest on attribution. There is little question factually as to what happened, and the question seems to be whether what happened is attributable to Dr. Karadzic such that the charges levied against him can be imputed to him. Has the conceptual distance between Dr. Karadzic and the actions on the ground made his defense easier? Conversely, will General Mladic’s defense be more difficult due to the fact that he was actually directing men on the field?
Peter Robinson and Jon Bellish at the ICTY
PR: It is true that the closer you are to the perpetrators, the easier the case is. So when crimes are committed by the army, it will be easier to hold Mladic responsible than Karadzic, but Karadzic was also the Supreme Commander of the Army, like Barack Obama is the Commander in Chief of the United States Army. But the problem is that Dr. Karadzic does not really accept that the facts are the way the prosecution says they are, and he wants to challenge what happened in these municipalities. For example, the court has established in other trials that the authorities were responsible for what happened in a camp in a particular municipality, that the authorities gave direction to the people who were maltreating victims in the camp. He doesn’t accept that. He thinks that in other cases, people haven’t challenged the facts because they just want to say, “it wasn’t me,” or, “it was somebody else.” So he insists that this “crime base,” as it’s called, be challenged, and he doesn’t accept anything until it is actually proven. He wants to know not just that crimes were committed but who specifically committed them, what is their specific relationship to the state, what is their specific relationship to the authorities. As a result of that, lots of things have come out of his trial that ever came out before. Where the court thought that people under the authority of the state were committing the crimes, it comes out, as it did today, that people were not under the control of the state when committing the crimes.
It has been a different approach than most lawyers would have taken for him. Most lawyers would just say, “let’s just concentrate on the most difficult part that they have to prove – that you are linked to these crimes.” But [Karadzic] just says, “No. I want every stage to be challenged. Who did it, why did they do it, what is their relationship to me?”
JB: Do you have any reason to believe that the UN will take these lessons to heart in the ICC and shrink the cases thereby seeking a more balanced approach?
PR: They seem to be doing that. They started off with a very small charge against Thomas Lubanga in their first case. It went sideways on many different levels due to some problems with the case, but their concept was basically to focus on something that was manageable. It seems like they have continued in that way, and have applied lessons they learned from the Milosevic case in particular.
JB: What will be the future of Karadzic’s and Mladic’s cases? Do you think they will have their cases joined or have them transferred to the ICC, or will the Security Council simply cease their demand for the tribunal to finish its work?
PR: I think that they will just let the trials be completed. They would like to have them completed as soon as possible. There is some possibility that the two cases will be joined for the purposes of Srebrenica. We haven’t started hearing witnesses for that, and this could create a situation where the witnesses would only have to come once. It is a possibility, but it is one that would delay the rest of Karadzic’s trial. It’s not easy to work that out when we have already had a year of trial. The prosecutor does not seem to be headed in that direction. Karadzic has said that he wants to see what Mladic’s defense team looks like and what his strategy is before deciding if the defense wishes to join the case or if we would rather have them be separate.