Legal challenge

Radovan Karadzic did not appear in court at the start of his genocide trial on Monday. His legal adviser had reiterated on Sunday that his client would not be present because UN war crimes judges had not given him time to prepare his defense.

The move comes after repeated previous requests to delay the trial and is a sign that the court proceedings in The Hague won't be easy. By boycotting the opening of the trial, Karadzic, who was arrested last year after 11 years on the run, is increasing the pressure on presiding judge O-Gon Kwon.

"He doesn't necessarily need to show up, if he waives his right to be present, the trial might go in absentia, but it's very difficult from a procedural aspect to continue a trial without the accused being present," Christoph Safferling, director of the Research and Documentation Center for War Crimes Trials at the Philipps-University Marburg, said.

Karadzic is charged with 11 counts of war crimes and crimes against humanity for his role in the Bosnian conflict

Karadzic, who faces life in prison if convicted, may not need to attend the trial from a legal point of view. But experts say his absence could make it harder for the court to conduct a fair and impartial trial.

"The judge has to give the accused room to also interpret and question and give his own view of things and the allegations, so it will be very very difficult for the judges to handle this situation indeed," Safferling said.

Kai Ambos, who heads the Department for Foreign and International Criminal Law at the Georg August University Goettingen, said that Karadzic, like two other prominent Serbian leaders indicted by the UN court- Slobodan Milosevic and Vojislav Seselj - is trying to mount a political defense.

"He's not interested in having a rapid, quick trial that really treats the matters for which he was indicted."

As part of his strategy, Karadzic, who is not a lawyer, but a trained psychiatrist, has announced that he will defend himself before the tribunal. "It's his right to defend himself so one has to accept that," Safferling said. But he added that the tactic is a potential stumbling block for the court.

"History tells us this is always a very difficult situation for the judges if an accused defends himself. We have seen that with Milosevic who has chosen to defend himself and also with Seselj at the Yugoslav Tribunal, whose trial is still going on and he is defending himself and puts a major challenge to the judges."

Defense team

While Karadzic said publicly that he will defend himself, that claim should not be taken literally, argued Ambos: "It's a kind of hypocrital statement to say I'm defending myself." Karadzic, like Milosevic and others, has a sizeable legal team working on his behalf in the background.

"So in fact they are connected with a group of defense lawyers and these defense lawyers consult them, so de facto they have a defense," he said.

The most well known aspect of Karadzic's political defense strategy is probably his oft repeated claim that he was guaranteed immunity from prosecution as part of a deal he struck in 1996 with US negotiator Richard Holbrooke. Therefore he should be exempt from trial.

According to Karadzic, he agreed to resign from political life in exchange for having the war crimes charges against him dropped. Holbrooke, a former ambassador to Germany and currently US Special Representative for Afghanistan and Pakistan, has denied the deal.

While there are some indications and statements by people involved in the negotiations back then suggesting that there might have been a political deal, that still wouldn't change the situation.

Whether a deal was struck or not, Karadzic has no claim to immunity, legal experts say. "Holbrooke or any other politician who negotiated in Dayton or before and after Dayton cannot speak for the tribunal," argued Ambos.

"They are not organs of the tribunal and they cannot give immunity to a person sought by the tribunal." He added: "Even the correctly understood immunity rules which we accept in international law would not apply before an international criminal tribunal."

No immunity

His colleague concurred: "If you take international criminal justice seriously you can't grant immunity to anyone of that official and political standing," said Safferling. He admitted that distinctions between political and legal solutions of conflicts often become blurred, but that in order to further establish the still nascent area of international criminal law it is imperative to draw a line.

"Legally speaking you cannot accept this. There are allegations of criminal conduct and you have to prosecute this criminal conduct. There is no question and immunities don't play a role in this regard."

Both experts argued that the relevance of the Karadzic trial cannot be overestimated. Its significance is proven by the fact that the number of charges against Karadzic was scaled down in negotiations between the prosecutors and the chamber in order to finish the trial in the foreseeable future, "because nobody wants to go through the same experience of a defendent who dies during the trial," argued Ambos, refering to Milosevic who died during the proceedings.

He added that it is important for both the defendent and the people of Bosnia-Herzegovina that the alleged crimes carried out in the name of Karadzic and the ideology of a Greater Serbia are investigated thoroughly during this trial.

"This is very much a test case for international criminal justice and for the Yugloslav Tribunal as it is," said Safferling. "So it is absolutely essential that there is a proper trial against Karadzic."

The challenge for the judges is enormous and goes far beyond the legal realm. "If it is not guaranteed that it is a fair trial and the outcome is sort of acceptable to all the groups it might well be that the conflict erupts again in one way or the other," argued Safferling. "Everybody on the territory of the former Yugoslavia will look at this trial and monitor what is going on in The Hague very closely."

Author: Michael Knigge
Editor: Rob Mudge