B. The Indictment

Karadžić was first indicted by the ICTY Prosecutor in 1995, for crimes committed in Srebrenica, and Bosnia in general. This indictment was amended on 28 April 2000.Footnote ³ As of the time of writing, the first amended indictment still remains the operative indictment against Karadžić. As his arrest took the ICTY by surprise, as it did everyone else, the ICTY moreover being preoccupied by its remaining cases and the deadlines of the completion strategy imposed by the UN Security Council, very little work seems to have been done in the Office of the Prosecutor since 2000 on the preparation of their case against what is now their most high-profile defendant since Slobodan Milošević. It was only after Karadžić's arrest, on 22 September 2008, that the Prosecutor filed a motion with the Trial Chamber to amend the first amended indictment, in order to better take into account the relevant developments since 2000.Footnote ⁴ The Prosecutor has, as of the time of writing, not yet been granted leave by the Trial Chamber to amend the indictment, in accordance with Rule 50 of the ICTY Rules of Procedure and Evidence (RPE). It is to be expected, however, that the proposed second amended indictment will be accepted by the judges, with little or no modifications.

The first amended indictment charged Karadžić with one count of genocide and one count of complicity in genocide in Srebrenica and 17 other municipalities in Bosnia; two counts of extermination and murder as crimes against humanity; two counts of murder and willful killing as war crimes; one count of persecution as a crime against humanity; two counts of deportation and other inhumane acts as crimes against humanity; one count of inflicting terror upon the civilian population of Sarajevo as a war crime; and one count of taking UN peacekeepers as hostages, a war crime.

The proposed second amended indictment introduces several major changes in relation to the previous indictment. First, it significantly reduces the so-called crime base, the actual instances of criminal conduct that the Prosecution has to prove, from 41 to 27 municipalities. Secondly, the proposed indictment takes into account the developments in the ICTY's jurisprudence since 2000, by re-characterizing some previously existing allegations of criminal conduct and by specifying in detail the elements of the responsibility of the accused. The proposed indictment charges joint criminal enterprise as one the modes of liability, and indeed specifies four distinct joint criminal enterprises in which Karadžić took part, while indicating persons with whom he colluded to engage in criminal conduct and his own contribution to the enterprise. The proposed indictment also elaborates on the legal and factual elements of other potential modes of Karadžić's criminal liability, including planning, ordering, instigating and aiding and abetting under Article 7(1) of the ICTY Statute, and command responsibility under Article 7(3) of the Statute.

Thirdly, the proposed indictment also restructures the counts of the indictment. The single genocide count from the first indictment has been separated into two, one for Srebrenica and the other for 10 other municipalities, while the complicity in genocide count has been dropped. The one count from the first amended indictment which alleged grave breaches of the 1949 Geneva Convention has also been dropped, leaving in the indictment only those war crimes which are punishable in non-international, as well as international armed conflicts, and thereby obviating the need for the Prosecution to prove that the conflict in Bosnia was international by nature.

In sum, the proposed indictment takes into account the developments in case law, and attempts to streamline the charges so as to facilitate a shorter, more efficient trial. Both of these aspects of the proposed indictment are commendable. It is hardly necessary to recall how the Milošević trial collapsed under its own weight, nor is the pressure from the Security Council on the ICTY to complete its work to be underestimated. Indeed, the Prosecutor would perhaps have been wiser to narrow down even further the charges against Karadžić. In any event, the proposed indictment remains broad enough to fully encapsulate the magnitude of Karadžić's criminality. Generally speaking, it has three distinct crime bases: the siege of Sarajevo, the Srebrenica genocide, and the crimes in the remaining 27 municipalities.

The only questionable element of the proposed indictment is the Prosecutor's decision to retain charges of genocide in municipalities other than Srebrenica, even if he reduced the number of these municipalities from 17 to 10. As is well known, so far the ICTY has been unable to establish genocide, a crime requiring the specific intent to destroy a protected group as such, in whole or in part, anywhere in Bosnia except in Srebrenica, where in July 1995 Bosnian Serb forces massacred around 8,000 Bosnian Muslim men and boys.Footnote ⁵ Following the ICTY's jurisprudence, the ICJ in its 2007 Genocide judgment likewise found that during the Bosnian conflict genocide was committed solely in Srebrenica.Footnote ⁶ It is therefore doubtful that in the Karadžić case the Prosecutor will manage to prove beyond a reasonable doubt that genocide was committed in 1992, in 10 municipalities besides Srebrenica. Indeed, the Prosecutor was unable to furnish such proof in relation to many of the same municipalities in Krajišnik, another case dealing with a high-ranking Bosnian Serb official.Footnote ⁷

On the other hand, recent population loss studies for the Bosnian conflict do show that 1992 was the bloodiest year of the war, more than half of the entire casualty count of the conflict taking place in just a few months of that year, and confirm that about 85 per cent of civilian casualties were Bosniaks or Bosnian Muslims by ethnicity.Footnote ⁸ It is thus possible, if not very likely, that the Prosecution will be able to present more conclusive evidence of genocide beyond Srebrenica in Karadžić than it did in Krajišnik. Whether this possibility is worth the time and effort and the adverse public effects of a probable genocide acquittal is hard to say. In the event that the Prosecutor does succeed in securing a genocide conviction, however, that might serve as grounds for Bosnia to ask for revision of the ICJ's Genocide judgment, which was ultimately confined both in time and space to the July 1995 events in Srebrenica, and did not rule on Serbia's responsibility for any other crimes committed during the conflict, especially in 1992, when the control that Belgrade exercised over the Bosnian Serbs was at its peak.Footnote ⁹

C. Alleged Immunity Deal With Holbrooke

At his first appearance before the ICTY, Karadžić immediately raised an issue that in his view precluded any proceedings against him—that sometime in 1996 he and Richard Holbrooke, the top US negotiator in the Balkans, concluded an agreement whereby, in exchange for withdrawing from public life in Bosnia, Karadžić was promised not to ever stand trial before the ICTY. Karadžić also alleged that despite the fact that he honoured his part of the agreement, Holbrooke and the US government were out to assassinate him, inter alia, so he would not be able to divulge the existence of the agreement.Footnote ¹⁰ The possibility that Holbrooke offered immunity to Karadžić has long been a topic of speculation in the Balkans, even among officials of the ICTY. Karadžić's allegation to that effect thus caused quite a stir in Serbia and Bosnia, despite Holbrooke's protestations to the contrary.

Whether Holbrooke truly offered Karadžić immunity is of course politically and historically a fascinating topic, but the legal relevance of any such agreement appears to be nil. Even if it could be conclusively established that Holbrooke did in fact offer Karadžić immunity on behalf of the United States Government, and that such an agreement was not merely an expression of a political commitment, but was also legally binding between the parties, such an agreement could not bind the ICTY, for which it would be res inter alios acta.

Karadžić himself appears to have realized this. At his most recent status conference, he thus argued that by concluding this putative immunity agreement Holbrooke was not merely representing the US Government, but also the permanent members of the Security Council and the Contact Group for the former Yugoslavia.Footnote ¹¹ Yet again, even if this were so, and Holbrooke was truly acting on behalf of the Security Council, any such agreement would still remain a pactum tertiis for the ICTY. Only if the Security Council had passed a resolution immunizing Karadžić—which it would undoubtedly have the power to do, since the ICTY is after all a subsidiary organ of the Council—would Karadžić have any legal entitlement to immunity.

As of the time of writing, the Trial Chamber was yet to decide on what importance, if any, it should give to the alleged Karadžić-Holbrooke agreement. Bearing in mind what was stated above, it is extremely unlikely that the Chamber will in any way decide in Karadžić's favour. Needless to sat, that will not stop Karadžić from repeatedly raising this issue over and over again once his trial begins.

D. Self-Representation And The Symbolic Importance Of The Trial

In the wake of the untimely demise of the Milošević trial, Karadžić is perhaps the only remaining accused before the ICTY whose prosecution can truly expose the totality of the policy of ethnic cleansing that the Bosnian Serbs implemented during the conflict. Karadžić was not a mere cog in the machine, nor even just a military figure, but a politician at the very top of the pyramid, or the joint criminal enterprise, which devised and orchestrated this policy. In short, he is the best substitute for Milošević that the Tribunal will ever have, and his trial will therefore be of tremendous symbolic importance, particularly among the general public in the former Yugoslavia. The need for both the Office of the Prosecutor and the Tribunal's judges to employ their best people and show the greatest care when handing this case cannot be overstated.

This of course sounds like a truism, and indeed it would be one had the ICTY not already shown less than stellar performance when handing several delicate cases, the most egregious example perhaps being the ongoing debacle that is the trial of Vojislav Šešelj. Šešelj, the leader of the ultra-nationalist Serbian Radical Party (and self-styled ‘greatest living Serbian nationalist’), charged with the crime against humanity of persecution, is in effect running his own trial, chiefly due to the sheer ineptitude of the presiding judge, Jean-Claude Antonetti.Footnote ¹² Like Milošević before him, Šešelj demanded—and obtained—the right to represent himself in court, as the ICTY Appeals Chamber (twice) caved into his demands to end a much-publicized hunger strike, replacing the Trial Chamber which had previously imposed counsel on him. Šešelj has to this day managed to retain the right to represent himself despite the fact that he frequently engages in disruptive behaviour, writes vulgar and openly insulting submissions to the court (as well as defamatory books and pamphlets about various court officials), and that his own stated purpose is no less than the destruction of the Tribunal itself. Indeed, Šešelj's grip on the right to self-representation is such that Judge Antonetti threatened the other two members of the Trial Chamber, in open court, that he will resign from the Chamber (and thereby effectively bring the trial back to square one) if they decided to impose counsel on Šešelj.Footnote ¹³

Both Milošević and Šešelj have used their trials as political platforms, to promote their own agendas, ideologies and versions of history, generally for the benefit of the Serbian public. In that regard their self-representation has proven to be particularly effective, allowing them to play the role of a supposedly lone defendant fighting against the vast machinery of the Prosecutor. There is no small amount of irony in having people like Milošević and Šešelj playing the role of a victim. That irony is compounded by the fact that in Serbia, as in numerous countries around the world with a civil law tradition, it is mandatory for defendants accused of having committed serious crimes to be represented by counsel. In that regard it must be said that the ICTY's case law on self-representation, particularly the December 2006 Appeals Chamber decision in the Šešelj case, uncritically adopted an absolutist theory of self-representation, without taking into account the communitarian needs and the truth-finding role that an international criminal trial is supposed to serve. It even did so notwithstanding the fact that Article 21 of the ICTY Statute, stipulating the right of the accused to a fair trial, is in relevant parts a verbatim reproduction of Article 14 of the International Covenant on Civil and Political Rights,Footnote ¹⁴ and that during the past several decades no one has seriously suggested that the widespread civil law practice of assigning mandatory counsel violates the ICCPR or, for that matter, Article 6 of the European Convention on Human Rights.Footnote ¹⁵

Be that as it may, it comes as no surprise that, looking at what are from his perspective the very successful examples of Milošević and Šešelj, Karadžić decided to represent himself.Footnote ¹⁶ He did so despite being repeatedly advised by the pre-trial judge that, unlike in the Anglo-American legal tradition, before the Tribunal retaining counsel is not an all or nothing proposition, and that he would be allowed to actively participate in his trial even if he had representation.Footnote ¹⁷ Like Milošević, Karadžić will be using the trial as a political platform. Like Milošević, he knows full well that the likelihood of him ever leaving the ICTY as a free man is next to nil, either because he knows he is guilty or because he believes that the ICTY is a tool of a global conspiracy against him. In that regard, admonishing Karadžić, as the pre-trial judge has recently done,Footnote ¹⁸ that self-representation is not in his best interest, completely misses the point. From Karadžić's perspective, he has nothing to lose by representing himself, as he will not be seeking to persuade the judges of anything. His audience, like that of Milošević, will not be the judges, but the regular people in Bosnia and Serbia.

As the trial progresses, it is entirely possible that the Trial Chamber will be actively considering any adverse impact of Karadžić's self-representation, and may decide to impose counsel on him, or explore some other modalities, such as stand-by counsel or amici curiae. In that regard, Karadžić has so far exhibited a more compliant (or less belligerent) attitude towards the Tribunal than either Milošević or Šešelj. It is moreover to be doubted that Karadžić personally possesses either the inclination or the faculties to be as disruptive at his trial as is Šešelj, and he certainly lacks the sophistication of the late Milošević. On the other hand, several factors might favour the imposition of counsel. Unlike both Milošević and Šešelj, Karadžić has no legal training. He will of course have a team of advisers operating from Serbia and Bosnia—apparently, according to Karadžić, this team includes ‘invisible’ advisers, and at least two of these, since he is a Gemini in the ZodiacFootnote ¹⁹ (indicating, at the very least, that Karadžić's Dr Dabic persona was not entirely an act). Nonetheless, Karadžić's capacity to deal with the variety of complex legal issues that can arise in a trial of this magnitude will probably be quite limited. Moreover, as Karadžić himself has repeatedly told judges, he is not particularly interested in the trial being conducted speedily. On the contrary, Karadžić wants the trial to go on for as long as possible, which is only natural, since his trial is probably the last time in his life that he will be in the spotlight. In any event, all is not done with the matter of Karadžić's self-representation, and the impact it might have on the conduct of a dignified and efficient trial.

E. Conclusion

The arrest of Karadžić indicates willingness on the part of the new Serbian coalition government (including, bizarrely enough, Milošević's own former party) to complete its cooperation with the ICTY and arrest the two remaining fugitives. The Government suffered less political fallout due to the arrest than could have been expected, possibly in no small part due to the rather inglorious circumstances in which the would-be national hero of the Serbian people was apprehended. Indeed, the main nationalist opposition party, led by Šešelj, recently split in half. Therefore, some degree of optimism that Ratko Mladić, the alleged architect of Srebrenica, will soon find himself in the dock, would not be unwarranted. As for Karadžić, the ICTY Prosecutor and judges certainly have an enormous task ahead of them. It can only be hoped that they have learned from the mistakes of the MiloševićFootnote ²⁰ and ŠešeljFootnote ²¹ trials and that these will not be repeated.