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Wednesday, August 17, 2011

Chutzpah at the ICTY: OTP motion to severe Mladic Indictment

I have been offline for a while now, too busy in the "real world" to blog on some of the issues that came up in recent months.

However, I couldn't really resist commenting on this piece of news: the ICTY Prosecutor filed a motion yesterday requesting a severance of the Mladic indictment to do two separate trials. This is the OTP's overview of its own motion:
1. The Prosecution seeks leave to: (a) sever the Second Amended Indictment (“Indictment”) against Ratko Mladic into two indictments (“Srebrenica” and “Sarajevo, Municipalities and Hostages”); (b) have the Srebrenica indictment tried first, followed by the Sarajevo, Municipalities and Hostages indictment [...]
2. The Prosecution has considered several options for proceeding against Mladic. Factors which have been taken into account include Mladic’s arrest at this late stage of the Tribunal’s mandate, the need to ensure justice for the victims, the desirability of commencing a trial as soon as possible, and the need to plan for the contingency that Mladic’s health could deteriorate. In the circumstances, severance of the Indictment and conducting two focused trials will best serve the interests of justice. 
3. Such an approach will maximise the prospect of justice for the victims, enable more effective management of the two separate trials and best allow the proceedings to be adapted in case of unforeseen contingencies. It is also consistent with the Rules of Procedure and Evidence (“Rules”) and will not unfairly prejudice the Accused’s rights.
Several brief thoughts :

1) On the substance of the indictments, the Prosecutor justifies the possibility of a severance by basically saying that there was no overarching Joint Criminal Entreprise (JCE) in Bosnia, contrary to what he had argued in the amended indictment of last June (§5):

Radovan KARADZIC and,  as of  12  May  1992,  Ratko  MLADIC,  were  key  members  of  an  overarching joint criminal  enterprise  which  lasted  from  at  least  October  1991  until  30 November  1995.  Their  objective  was  the  permanent  removal  of  Bosnian Muslims  and  Bosnian  Croats  from  Bosnian  Serb-claimed territory  in  BiH through crimes charged in this indictment.
The story now is that the JCE to eliminate the Bosnian Muslims in Srebrenica is unrelated (or in the words of the Prosecutor "not part of" and "not a foreseeable consequence of") to the JCE to permanently remove all Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory. This basically looks like confirmation from the prosecutor that Srebrenica was a one-off genocidal event... or is it? because there are also counts of genocide under the proposed Municipalities indictment. So if I understand correctly, there is genocidal intent in both cases, but they are unrelated... I find that a little confusing. As Professor Schabas was quoted saying in a recent Economist article: "either there was a general bid to exterminate or there was not" and severing the two seems extremely artificial.

2) I won't really comment on the practical justifications given by the prosecutor to hold two trials instead of one (interests of justice, interests of victims, manageability...). One can only wonder why, if these issues are so important, this has not been the practice in the past? I was under the impression that the ICTY was always acting in the interests of justice and of the victims, and that the efficient administration of justice was a permanent key consideration for the Court. But I must have been mistaken.

3) What puzzles me the most is the Procedure and timing of the motion. As the Prosecutor's immediate recourse to "inherent powers doctrine" shows (§21 of the motion), there is no actual textual basis for the severance in the founding documents. I generally don't like the use of this shaky doctrine by international criminal tribunals, but let's play along for the sake of argument.
The real issue is timing. I find that this motion shows the  chutzpah of the Prosecutor, and ultimately of the ICTY, should the severance be accepted. Indeed, let's look at the timeline for a second. The first indictment against Mladic was filed some 15 years ago.The Prosecutor, filed an revised indictment in May 2010, which was only approved nearly a year on in May 2011, so that gave him time to reconsider his approach. More importantly, Mladic was rushed through the initial appearance (with the playing-to-the-media-i'm-reading-ALL-the-charges show from Judge Orie)  and the ridiculously hasty pleading proceedings (with the removal of Mladic from the courtroom at his own request), his request for additional time to read and understand the charges having been denied. Everything was rushed along, probably in the "interests of justice". And now, the Prosecutor suddenly decides to change his mind and hold 2 trials, because of these same "interests of justice"? Whatever the practical merits of that solution, I find the Prosecutor's conduct quite careless, especially in light of the ICTY's attitude towards Mladic, which seems to indicate that a Court having conducted dozens of trials is suddenly having first date jitters when it comes to this defendant.

4) On a final and related note, I'm still in favour, at least in theory, of joining the Karadzic and Mladic trials, especially if Srebrenica is tried separately. On top, from what I understood, the Karadzic Chamber has not even started hearing evidence on Srebrenica (someone correct me if I'm wrong). As I've said elsewhere, these this is essentially the same case, from a narrative point of view. If the "interests of justice" are so important, then I believe both cases should indeed be joined.


  1. I think it is a good idea, since the previous application of the 'interests of justice' principle clearly did not bring efficient results(in Milosevic and now in Karadzic). It is clear that it is worth trying smaller cases rather than everything in one huge trial. For the accused, it does not make much difference, and actually might help him focus the defence and pleadings more...

  2. Thanks for your comment Guy. Just to be clear, I actually agree that this is a better solution in principle. I just find the reasoning of the Prosecutor somewhat disingenuous in light of past practice and past claims in relation to the scope of the JCE.

  3. I think there might be something to be gained here for the Defence...receive focussed disclosure (without being inundated in millions of docs) and prepare a focussed case; potentially be able to argue for the 2nd case to not begin till his appeal brief is filed in the first one, with disclosure on that only commencing after he rests his defence in trial (with the exception of Rule 68 material perhaps).

  4. It's more about their concern of the potential for legal paradox arising from the ICJ's verdict in BiH vs Serbia and Montenegro. Part of the price for protecting Serbia.