Nice: Local War Crime Trials May Aid Reconciliation

Sir Geoffrey Nice, lead prosecutor of Slobodan Milosevic, applauds Bosnia’s new war crimes court, compares the Milosevic and Karadzic cases and is mystified by the Florence Hartmann’s indictment.

Q: Recently you visited Sarajevo and visited the State Prosecution. What is the significance of the war-crimes trials now taking place in the region?

A: Enormous. The ICTY [The International Criminal Tribunal for former Yugoslavia] was never intended to try every offender who might properly face a court. The trial by courts within the region of war crimes cases was envisaged from the start. Only by carrying on with these trials in Bosnia Herzegovina, Serbia and Croatia will the rule of law be seen to operate and the maximum returns from trial processes, including the returns of reconciliation, be achieved.

David Schwendiman [the chief prosecutor for war crimes at the State Prosecution] explained his indictment policy for the Bosnian court and it seemed entirely sensible and more comprehensive in approach than may have been the policy in The Hague. It seems unfortunate if, as I have read, some groups were disappointed. Maybe they had unrealistic expectations of the ability of the ICTY to try more people when its funding always was going to be limited. I only hope the local courts are able to press ahead with their work for as long as possible.

Q: Compared with the Prosecution at The Hague, what makes the work of local prosecutors more difficult or easier?

A: This is probably better answered by the local prosecutors. However, more difficult: Access to all the material held by ICTY is not necessarily guaranteed, and provision of that material in a useable form may have been subject to unhelpful limitation by the ICTY; power to force cooperation by other states may be less than at the ICTY; “big name” witnesses may be less willing to go to local courts than to the more prestigious Hague tribunal.

Easier: Access to local witnesses who may find the process of giving evidence in Sarajevo less daunting than a trip to The Hague. Immediate access to the local culture and history through people to whom the prosecutors can speak whenever they need to. In The Hague, everything is more remote. When I was prosecuting Milosevic, one of the most valuable exercises was to travel to the region and spend time with people who could set events into a historical and cultural context for me. There is an unattractive presumption in staffing a court with foreigners who do not speak the language of the people they try or know of their culture, as with pretty well all the ICTY lawyers.

Q: Is the prosecution at The Hague prepared for the trial of Radovan Karadzic?

A: I cannot know, however the Prosecution’s request fora month more to consider a mending the indictment might suggest they would like more time!

Q: How strong is the indictment?

A: There are recordings of things said by Karadzic in Assembly Sessions and elsewhere that would appear to have made his intentions very clear. We did not necessarily have such evidence against Milosevic.

Q: Were you still part of the prosecution, what would you have changed in the indictment?

A: I would need to know all the prevailing circumstances and to have knowledge of the evidence to answer this properly. But, as I have said elsewhere, it seems vital that the connection to and from Belgrade should be dealt with. In this way, any involvement of the Western powers in encouraging the taking of Srebrenica through the agency of Milosevic could be explored. That really should happen in this trial, as it may be the last time the topic can be covered in a court of law.

Q: Can The Hague prosecution demand an investigation into those who helped Karadzic hide all these years?

A: I’m not sure this would be truly relevant for the trial itself. It may become relevant for the issues that Karadzic may raise in connection with the deal he says he had with [Richard] Holbrooke and for whether any such deal, if proved, should have an effect on the trial. If the issue became relevant, the role of international officials might be looked at. Whether their actions could ever bring them before the court – for contempt in hiding a fugitive – would only ever be theoretical. There is no way this tribunal will pursue such officials.

Q: It’s been said that during this trial we may expect to hear a lot about some international officials. What do you expect?

A: I was surprised Milosevic did not raise these issues more. I wondered whether, as was his custom, he focused on what he knew was important, when he felt there was something in it for him but avoided topics… when he knew he had nothing to gain! Karadzic may be less cunning and try to mention the international community as much as he can in any number of settings.

Q: Is there any risk of political pressures in the trial of Karadzic?

A: There is always such a risk in trials at courts likethe ICTY. The question is whether any pressure will succeed – that depends on to whom it is applied, and how.

Q: Do you expect to see Ratko Mladic soon in The Hague?

A: I have no better idea than any informed reader of the newspapers. All of us think it more likely than it was. But will he actually allow himself to be surrendered live to the Tribunal?

Q: To what extent can earlier trials be useful in the Karadzic case?

A: Rules allow for evidence and even verdicts in other cases to have evidential value in a current case. Whether that will happen depends on the success or otherwise of arguments by the parties. I would not expect Karadzic to consent to much from previous trials being admitted into evidence, and this issue is almost certainly going to be contentious.

Q: Can the indictments and trials of Milosevic and Karadzic be compared?

A: This is too big a question except to say that the Milosevic case involved the top politician’s alleged involvement in war crimes committed in three wars over eight years, whereas the Karadzic trial concerns only one war and some three years. Further, Karadzic’s alleged involvement was at a slightly lower level, which might make him vulnerable to more direct evidence than was readily available in the Milosevic case. For these reasons, it could be hoped that the Karadzic indictment may be seen as less complicated than the Milosevic indictment.

Q: How important is the role of the ICTY for the countries of the former Yugoslavia?

A: This is not a question for a foreigner to answer. The ICTY, and the UN, set out wide objectives for the work of the ICTY, far wider than any normal national justice system would claim. I have doubts as to whether the broadest of these ICTY claims – reconciliation; end to impunity, etc. – are being delivered. However, the introduction through the ICTY of some aspect of the rule of law to the region might promote the rule of law more generally.

Q: Can this trial restore what some see as the Tribunal’s tarnished image?

A: I hope it does. Judge [Iain] Bonomy is widely regarded as a very good trial judge, arguably the Tribunal’s best, and is known for his determination to make best use of available time. It will be for the OTP [Office of The Prosecutor] to present their case in a realistic, open way and efficient way and not to feel the need to hide anything under the carpet.

Q: Have you read the book by the Tribunal’s former chief prosecutor, Carla del Ponte?

A: No! I read a summary of some of the allegations about the body parts but did not feel the need to spend time reading the book.

Q: An indictment has now been issued against Del Ponte’s former spokesperson, Florence Hartmann. Might they do the same to you because of what you have said in public?

A: I think it very odd of the Tribunal to prosecute Hartmann however strong the case. It will focus attention, again, on the documents of the Supreme Defence Council that the Tribunal protected from public view and on the decision-making process by which this protection was initially given and maintained – a process by which the Tribunal may be embarrassed. Hartmann may land up being afforded the publicity she seek sand become some form of martyr for free speech, however inappropriately.

The Milosevic case is over and it is hard to see what damage Hartmann has done by what she published and harder still to see why the Tribunal waited so long after publication of Hartmann’s book before acting. Many might think the money spent on prosecuting Hartmann might have been better spent. It is also curious that the Tribunal has gone against Hartmann when Ms del Ponte has been free to cover the same or similar topics. But no, I do not think the Tribunal can do the same to me.

Nidzara Ahmetasevic is BIRN– Justice Report editor. [email protected]. Justice Report is BIRN online weekly publication.