The International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber rejected Radovan Karadzic’s motion for retrial on August 13, 2012. The former Serbian leader, accused of involvement in the Srebrenica massacre, based his motion on the prosecution’s repeated failure to submit evidence in a timely fashion. The ICTY held that while the prosecution submitted evidence in violation of the rules of procedure, the delay did not prejudice the defense’s case or deny the defendant his right to a fair trial.
The motion for retrial came as Karadzic prepared his defense, scheduled for October 2012. The wartime leader of the Serb-controlled area of Bosnia, known as Republika Srpska, has been on trial since 2009 for charges of genocide, persecution, extermination, murder, and forced relocation of Bosnian Muslims and Croats, crimes committed between 1992 and 1996. Karadzic, who is representing himself, pled not guilty to all charges against him. The Chamber maintains that, although the prosecution has repeatedly failed to produce evidence and documentation on time, the judges have ensured that the defense has had ample time to review evidence and prepare its responses.
At the core of the case against Karadzic is the allegation that he was involved in the planning of both the 1995 Srebrenica massacre—resulting in the death of 8,000 Muslim men and boys—and the 44-month siege of Sarajevo‑—resulting in 12,000 deaths. After the United Nations Security Council instituted the ICTY,[CMF1] Karadzic remained at large for thirteen years before his July 2008 arrest in Belgrade.
Karadzic’s motion for a retrial argued that the prosecution failed to disclose 406 witness statements and other testimonies in a timely fashion in addition to committing “numerous” violations of the rules of disclosure. Since the trial began in 2009, Karadzic has filed more than 70 motions alleging various late or improper disclosures of evidence. In several of such instances, the ICTY Trial Chamber stopped trial proceedings and provided Karadzic with sufficient time to review documents or other late evidence. Despite the prosecutors’ repeated infractions of the ICTY’s rules of procedure, the Trial Chamber’s Judge Kwon, in the August decision, ruled that while the actions “put the prosecution in a bad light,” Karadzic had not “suffered damage from this violation,” and thus it was not necessary to grant him a new trial.
As the ICTY has not established a standard to determine fairness of a trial, the Chamber looked to general protections of the rights of the accused as outlined in the Statute of the Tribunal. Articles 20(1), 21(4)(c), and 21(4)(b) protect the accused’s right to be tried expeditiously, without undue delay, with full respect of his or her rights (as enumerated in other international treaties, such as the International Covenant on Civil and Political Rights), and to have “adequate time and facilities for the preparation of his defense.” The Chamber also considered its own procedural rulings in each of Karadzic’s previous complaints about the Prosecutor’s failure to disclose. The Chamber explained its decision by applying the general articles delineated in the Statute and looking at the cumulative effect of the repeated delays of disclosure. Judge Kwon’s decision stated that the nature of the evidence was neither sufficiently different from other evidence nor substantial enough to prejudice Karadzic’s case.
In reaching its decision, the Chamber’s central question was how the defendant’s procedural rights relate to whether the defendant has received a fair trial. The ICTY has often faced such questions and has applied Judge Shahabuddeen’s statement in his Separate Opinion on Slobodan Milošević that “the fairness of a trial need not require perfection in every detail. The essential question is whether the accused has had a fair chance of dealing with the allegations against him.” In light of the prosecution’s repeated missteps, the question of whether Karadzic receives a sufficiently “fair chance” of addressing the charges against him broadens because of his repeated refusal to accept the advice of legal counsel. Although the Chamber has undertaken “active management” of the trial to protect Karadzic’s rights when the prosecution has been found to have violated the rules of disclosure, the court is unable to force Karadzic to listen to or take the advice of his court-appointed standby legal adviser. As the trial moves forward, the Chamber must continue to balance the often-competing interests in protecting the rights of the accused, helping Karadzic navigate his defense without legal representation, and ensuring that the Prosecution does not infringe on Karadzic’s right to a fair trial.