Mark Ellis, IBA Executive Director, discusses Karadzic trial

Mark Ellis, IBA Executive Director, discusses the trial of former Bosnian Serb leader Radovan Karadžic

Interviewer: We are here to discuss the International Criminal Court and the trial of Radovan Karadžic. Why is the trial of the former Bosnian leader Radovan Karadžic so significant?

Mark Ellis: Karadžic represents one of the three key individuals that have been indicted by the tribunal for the former Yugoslavia. One is Slobodan Miloševic – we’ve already had that trial. The second is General Mladic, who still has not been captured, but he’s been indicted. And the third is Karadžic – so these are three key individuals, when you look back at the atrocities that were committed in the war in former Yugoslavia. And so having Radovan Karadžic in this tribunal is extremely important, not only for the court, but most importantly for the former Yugoslavia, and particularly for individuals in Bosnia and in Kosovo.

So why is it important for the court?

It’s important for the court because I think if the court finished its mandate – and we need to remember that the court’s mandate officially ends in 2010, although it has been given an extension by the UN Security Council – without seen the trial of Radovan Karadžic take place, that there would have been many individuals, and I think rightfully so, questioning the validity and the reasons behind having this tribunal in existence. If in fact, you have a tribunal for this many years and yet never were able to apprehend and bring to justice individuals that really were the masterminds of the atrocities that were committed.

And presumably that’s the importance for the people in the Balkans?

It always has been. I recall in my travels during the war in Sarajevo and in Kosovo and then soon after the war and visiting refugee camps and Macedonians, the Albanians had been forced over the border. And talking to them about what they had just gone through, which were just horrendous atrocities themselves, but they knew the names of these individuals, they knew the caricatures, they knew the Miloševics, they knew individuals who had been in the forefront of the policies that were being implemented by the Serbian Government. And so this is why it’s very important for individuals, for the victims, to see these individuals brought to justice.

So what are the main challenges for the tribunal?

I think the crucial challenge for this particular case will be a challenge that this court has faced in the past, and that is, Mr Karadžic has indicated that he will represent himself. Other high profile defendants in front of this tribunal have said the same thing. And this court, I think, has really wrestled with how to provide the fundamental right to self representation with the desire of having a trial that is fair and meets international standards – and this court has not always succeeded in creating this balance. So I think this issue, more than any other issue, will be the one that this court will wrestle with, with the Karadžic trial.

Perhaps we can pursue that a little bit more – what are the implications of Mr Karadžic defending himself?

It comes back to, again, a fundamental debate that’s going on in international law, and these types of defendants – when I say these types of defendants, very high-profile defendants that have had political positions in their career and that have been brought to this court, in essence because of the allegations of the atrocities they’ve committed when they were in those high level positions. So these individuals then take this opportunity as a platform to present their views on what occurred and what history should say about them. They have really no interest in participating in the legal process but they have a lot of interest in participating in a political process. So the court then is faced with this difficult situation of allowing the defendant to, in this case, defend themselves, which is a fundamental right, but yet not to do so in a way that completely ignores or diminishes the importance of the trial process itself. And that’s where the challenge is, to find that middle ground so that you can achieve justice and at the same time permit a defendant to represent himself if he wants to do that. But again, this court, I think, really has had to deal with this issue and there’s been a lot of criticism the court has not got it right.

Karadžic refused to turn up on the first day of the trial – what’s your view of that?

The court obviously should have anticipated that this was going to happen – Karadžic has made no secret of the fact that he has no interest in participating within the legal framework of this court. He has indicated that he will not accept any type of representation; he will represent himself, and he indicated that he was not going to show up for the first day of the court. What we have been informed is the court has now made a recess, and they’re deciding what to do – I find that somewhat extraordinary because I think the court should have been prepared to move forward with the trial and in this case, either to provide an assigned defence counsel to Mr Karadžic, to provide a representative and an amicus curiae of sorts, who could look after Mr Karadžic’s rights. But that did not happen and we’re back to where we were in previous cases, and that it looks like it’s very chaotic and, that justice is not served – I think that’s unfortunate.

There are obvious resonances here with the trial of the Serbian leader, Slobodan Miloševic – do you feel the lessons have been learnt?

There’s been not just Miloševic but there have been other defendants as well, that have tried the same approach, in the sense of using the trial process as a political platform, not interested really in participating in any direct way with the trial. And I don’t think the court, so far, has learned all the lessons, because in the end I don’t think we can be in a situation where we permit a defendant to hijack the court process. As important as it is for the defendant to have the right to represent himself, and I am a strong supporter of that principle, there is a point where there is an interest in it for justice that the proceedings and court proceedings go forward. And if the defendant is preventing that from happening then I think the court has a legal right to step in and to say, we are not going to permit you to interfere with this court process any more, that we will assign defence counsel to you, if you don’t want to show up and participate in this proceeding, that’s fine. But justice is going to continue because it’s important for the victims, it’s important for history that we proceed, and that’s what I think this court needs to do.

How significant do you feel the time pressure to have this completed quickly has been? At one point they were saying it had to be completed in a year – is that helpful?

I think the time pressure came initially from the realisation that this court, the ICTY, has a limited time mandate – it’s meant to end its mandate by 2010. But the UN Security Council has already spoken about this issue, has provided the court with whatever time it needs to finish these cases, so I don’t think timing is a real issue right now. Having said that, there is a real desire for this court not to repeat what happened with the Miloševic case – and that is an endless trial, where there didn’t seem to be an end time available. The court here has said that this trial will not follow that path, the prosecutor has been forced to amend his indictment, to limit the charges so that this can be a manageable trial – and so I think you’ll find this trial to be shorter than you have seen in other high profile trials.

And yet Mr Karadžic is doing everything he can to try and derail that?

He is.

With a long list of what amounted to reasons why the tribunal was treating him unjustly. Do you feel there was any merit in that?

Whether I feel there is merit or not is less important than whether or not Karadžic had the opportunity to air these complaints and to get a fair hearing – and that he did. He had nearly 100 pre-trial motions that he filed on an array of different issues concerning immunity and his involvement with Richard Holbrooke, dealing with the issue of not having sufficient time to review all the files. And the court has looked at these cases, has ruled on many of them, if not all of them, and so he’s been given, I think, a fair hearing on these issues. The court though is now saying the time is now to move this forward and to start this trial – that’s where I hope we are and that’s where we need to be.

Do you feel it’s right that the tribunal is seeking to impose universal standards of justice now, in 2009, on events in the Balkans that we all know come out of very culturally specific issues that emerged from circumstances – religious, ethnic, geopolitical, ideological and sometimes they go back as far as the 14th century – the Battle of Kosovo and so on. 

Well, whatever the cause of the event was, whatever the premise for what occurred in the former Yugoslavia and the wars in Bosnia and Kosovo, the court’s focus is on the crimes that were committed. The court’s mandate is to look at crimes of genocide and war crimes. The historical reasons or justifications for those crimes really is of little importance, I think to the court, and it shouldn’t be of importance to the court. However one wants to try to justify why crimes have been committed against humanity or genocide, is really not that relevant. What is relevant is the allegation that these crimes were committed and most importantly then, is that the international community has stated with great strength, that these types of crimes must not go unpunished, that it is the responsibility of the international community to bring to account individuals who have committed these crimes. And that, in the end, is all that this court is doing – it’s ensuring that individuals who have committed the most heinous crimes imaginable, are brought to justice – I think that’s a really worthy goal of this tribunal.

Absolutely. So if justice can be applied in this sort of situation, we can be optimistic about situations such as Israel and Gaza?

I hope we can. I think what we’re seeing is an evolutionary process of international law. Now, here we have in Yugoslavia a court that was created by the United Nations and the UN Security Council, with a specific mandate to hold individuals accountable for the atrocities that were committed in the former Yugoslavia. We do not have that same mandate for the alleged atrocities that were committed in Gaza last year. However, I believe in the future, with the recent creation of the International Criminal Court, that as these universal principles begin to grow, that are premised on the idea that there should be no impunity for these types of crimes, then all of these types of atrocities will be brought to bear within the context of international law. And I think the International Criminal Court, now the permanent court that has come into existence will, I hope, have jurisdiction over these types of events. Today they do not; it does not have full jurisdiction, but again, it’s an evolutionary process and, I think, in the future it will.

This again is an example of where the trials of Miloševic and Karadžic, whilst they have their failings and their difficulties, are very important in establishing law, and establishing the rule of law that is followed by countries in Africa and elsewhere around the world?

Yes, I think all of the international tribunals that have come into existence over the last 15 or 20 years have played a very, very important role in setting out a principle, that in essence says, for certain crimes, we, the international community, will ensure that those individuals who have committed those crimes will be brought to justice. And they’re doing so not just for the sake of accountability, but they’re also doing it in the name of the victims. And so this is what we’re watching and I think the international tribunals have played a very, very important role in educating the world about these types of crimes, about the justice, about the need to bring to account these individuals. They’ve created a whole body of law that has allowed this concept of universal jurisdiction, universal principles of international law to expand. And so I think that these tribunals are playing an extremely important role in the development of international law.

And yet, the Serbs may feel that Croatians, particularly Franjo Tudjman, may have been treated with an element of impunity, which might betray a sort of Western European partiality. Karadžic is probably likely to allude to this when he plays to the gallery and his domestic audience. There seem to be problems here for the tribunal.

Any tribunal, when they are bringing to justice an individual that was involved with the type of ethnic conflict that existed in former Yugoslavia, will be accused of being one-sided, at least in relation to that particular case. But the real question is, over a period of time, can you look at a tribunal and say, well, this tribunal has been impartial, this tribunal has been able to provide a fair hearing and this tribunal has not been geographically biased nor ethnically biased in bringing to justice those that have committed the crimes. And I think the answer here, when you look at the tribunal for the former Yugoslavia, is yes, they have played that role; they’ve played a role that has been, again, impartial. And the second point is, remember these trials are there simply to supplement what is the most fundamental right in international law or responsibility in international law, and that is for nation states to undertake their own trials, to bring to justice their own individuals who have been accused of these types of atrocities – and that has occurred in the former Yugoslavia as well. Croatia has its own domestic war crimes courts, Serbia has created its own domestic war crimes courts. And these have been very dynamic courts; they have done what the ICTY has not been able to do, and that is look at a larger number of individuals, and they’ve been very successful, I think, in bringing to justice individuals in their own courts who have committed these crimes – that’s a significant step forward in international laws.

But not Franjo Tudjman?

Again, if he was still alive my sense is he could have very easily have been brought to justice. Absolutely. The fact is that the atrocities that were committed in Kosovo, in Sarajevo, and specifically the role that the Serbian leadership played, was unique, and so I don’t want to fault the tribunal for having focused its attention on these individuals. But it does not, in any way, suggest that the tribunal has not focused on high ranking individuals in Croatia, because it has.

Part of this is the sense that the siege mentality is so important, certainly in national identity – this again, is something that goes back to the 14th century, the Battle of Kosovo – this runs through a lot of the way they project themselves. There may be some concern that that is something that Mr Karadžic would play on, particularly for his domestic audience, and that he may reinforce that siege mentality that has fuelled the ethnic tensions and ethnic conflicts?

I think, again, if we focus on what the mandate of this court is and what the requirement under international law is, about simply bringing to justice individuals who have committed the crimes, then you can easily move away – and I think very quickly –  from the sense that this is an indictment on an entire people, Serbia, or an indictment on an entire country, Serbia.

But that’s very important?

Exactly, it is not the mandate and its jurisdiction, this court is on individual responsibility. It’s not an indictment of Serbians as a people, it’s not an indictment of Serbia as a state – not under this court – this court is focused on individual responsibility. And I think that’s very, very important to emphasise, that simply by bringing to justice an individual, or a number of individuals, you are not, in doing so, indicting an entire nation or an entire people.

Is there a danger that whatever happens with the tribunal, whether it’s viewed as successful or not, that Mr Karadžic will feel that he has been vindicated, largely because of the formation of the Republika Srpska?

Whether he feels he’s been vindicated or not, I don’t know. The story about what happens with the Republik Srpska and what happens with Bosnia generally is still a story that’s playing out as we speak today. So again, I would be very careful in trying to show a link between the development of, again, a Republik Srpska, with the accusations of the crimes that were committed by Mr Karadžic and others – this court is focused on crimes that were committed. The political debate around the viability of the Republik Srpska within a Bosnian nation, that’s different and that can be debated. But it does not, to me, have relevance to the crimes that were being committed – whether they were being committed because Karadžic was President of the Republika Srpska, is irrelevant to me – the court’s jurisdiction over it is because the crimes are alleged to have been committed and Radovan Karadžic is alleged to have been the mastermind behind it.

You’ve alluded to it already, that the implications for international justice are immense with tribunals of this nature. Perhaps you can just talk through, looking forward – and I’m being optimistic – what are the implications of bringing a head of state like this to justice?

This is where you can look at tribunals as a basis for the development of law in particular areas, and one of them is kind of head of state responsibility. And in the statutes for the forming in the ICTY, the ICTR, even the new International Criminal Court, it’s very clear that there is no impunity for individuals who have committed these crimes, including heads of states, so even a head of state can be brought to justice for committing these crimes. And this is clearly what’s occurring – it’s not only the soldier on the battlefield, if he’s committed these crimes – it’s looking at the command and it’s moving up the command structure and saying, well, all individuals can be held responsible, including those individuals who are at the highest command, who have never fired a weapon, but who have masterminded, who have set up policy that has involved crimes against humanity, genocide or war crimes. And if that brings you up to the head of state then so be it, and that’s what international law is stating right now, whether it’s an indictment against Al-Bashir, whether Charles Taylor, Miloševic, we have now broken through that barrier that would have. Fifty years ago, it would have been unheard of to have suggested that you could bring a head of state to justice – those days are over. It’s very clear right now that an individual who is alleged to have committed these crimes will be brought to justice, and that includes heads of state – that’s a powerful statement to make.

It is a powerful statement – does this apply to all states equally?

It does. The political reality of this evolutionary process that I’ve talked about would, I think, show that there will be delays in this process, that we will not, within a period of 24 hours, see that all individuals and all states are treated equally on that. I think we just have to accept the reality that that that does not occur at this moment, but it’s important to note that there is no discrimination in the principle of law or principles that are embodied in these courts, or embodied in the new International Criminal Court, or principles that are embodied in the concepts of universal jurisdiction – there is no discrimination. And so, as we begin to chip away from the political hurdles that we face, I think we’ll see more and more instances where, regardless of where you are, regardless of the country that’s involved, international principles of justice and accountability will be there and will be very strong.