Tag Archive | "International Criminal Tribunal for the former Yugoslavia"

The International Criminal Tribunal for the Former Yugoslavia

Protected Witness in Mladic Trial Recalls His Survival of a Mass Execution During the Srebrenica Genocide

This is a summary of the Prosecution’s cross examination of witness RM255 on July 19, 2012 in the war crimes case against General Ratko Mladic.

Bosnian Serb ex-army chief Ratko Mladic oversaw the Serb army “obliterating everyone like a fire,” a protected witness said Thursday. Separated by Serb soldiers from his family while trying to evacuate, the protected witness, referred to only as RM255 by the court, was taken to a field to be executed by gunfire with the other males from his village. As the bullets rained down and bodies fell, the witness escaped into the nearby woods at night after untying his hands. In the field where his fellow villagers were shot now stands two fruit trees and a mass grave filled with the “ground up” bones of multiple persons.

“They tried to hide it . . . in the woods . . . in the mountains . . . each year they find more graves.”

The International Criminal Tribunal for the Former Yugoslavia

The witness was called to testify in the Mladic trial to provide details on the July 1995 Srebrenica massacre, which Prosecutors have called the key to charging Mladic. Prosecutors at the International Criminal Tribunal for the Former Yugoslavia (ICTY) allege that Mladic, the commander of the Army of Republika Srpska (VRS) from 1992 to 1996, played a pivotal role in coordinating and overseeing the methodical slaughter by VRS of more than 7000 Bosnian Muslim (Bosniak) men and boys in and around the town of Srebrenica. The indictment against Mladic contains 11 counts, charging Mladic with genocide, crimes against humanity, and violation of the law and customs of war. After 16 years on the run, Mladic was finally arrested on May 26, 2011 in Serbia and was extradited to The Hague to face trial. Mladic has pleaded not guilty to all counts of the indictment.

During July of 1995, the near constant shelling Srebrenica town drove the witness and thousands of other Bosniaks to seek protection by United Nations Protection Forces in Potočari. On July 12, 1995, Serb soldiers arrived in Potočari with gifts of bread and an offer to transport the refugees to an area free of gunfire and violence. Although the witness entertained serious doubts about the intent of the VRS, he and other villagers “headed out because Srebrenica was falling.”

“Did people shuffle to get on the bus? Of course, it was death and life!”

The night before getting on the buses, the witness testified that he and the other refugees could hear the cries and screams of their fellow villagers. Although this happened over ten times, the witness said that the Serb soldiers were “making fun out of it” and that “a woman had a baby.”

The next day, as the refugees lined up for the buses, men and boys “as young as 15” were picked out of the crowd one by one and separated from their families. The witness, like the other male refugees, was told by Serb soldiers that he was needed for questioning and would be returned to his family shortly. Serb soldiers then proceeded confiscate his identification and belongings before herding him and the other male refugees into a house in the village. Once inside, the men were forced to sit shoulder to shoulder without any room to move.

After two hours, the Serb soldiers removed the witness and the other men to a nearby school for two days, where the witness said that soldiers not only beat the men, but denied them water and the use of the restroom. During this time, the witness said that men were taken outside and “never seen again.” Following the two-day stay the school, the men were told they were being moved to a new location, but were instead driven in the opposite direction. Once at their new location, Serb soldiers took Bosniak men outside where the witness could hear the sounds of physical beatings and gunshots.

On July 16, 1995, the witness and the remaining men were taken to a large field. As they drew closer to the field, the witness said he could hear gunfire and soon saw bodies littering the ground. With their hands bound, Serb soldiers sprayed the refugees with bullets. The witness, along with four other men, managed to untie his hands and escape into the woods. Left behind by these younger refugees, the witness said that he turned himself into the Serb police shortly afterwards and was released on December 23, 1995.

The witness provided new testimony where he claims to have seen General Mladic approach the men with two bundles of cloth, one green and one white, instructing them to “tear it up and tie your hands yourselves.” The Prosecution, however, stated that it is not their intention to rely on the new testimony. Rather, the Prosecution will rely on the previous statement provided by the witness to the ICTY on May 25, 1996 and the corroborating evidence. Whether this statement will be admitted into evidence was not settled during the cross examination.

Having recounted in harrowing detail events that invoked images of the methodical rounding up the Jews of Kiev and transporting them to be shot at Babi Yar, the witness thanked the court and asked them to keep in mind that “there can be no justice without life sentence . . . many, many tears have been shed.”

The Mladic trial adjourns for a three-week summer recess starting on Monday.

Cassandra Kirsch is a rising third year law student at the University of Denver and a Senior Editor for The View From Above.  She won the Sturn College of Law’s Leonard v.B. Sutton International Law Writing Competition and is spending this summer at The Hague Academy of International Law. 

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Peter Robinson

Interview with Peter Robinson, Legal Advisor to Radovan Karadzic

Peter Robinson

Peter Robinson

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.

Peter Robinson and Jon Bellish at the ICTY

Peter Robinson and Jon Bellish at the ICTY

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?

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.

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