If I were a prosecutor

But, first things first. If I were a defence lawyer, I would be inclined to offer the advice that most defence lawyers offer to defendants in criminal cases: do not present a defence unless you have to. Remember, the prosecution is required to prove guilt beyond a reasonable doubt, and the defence does not have to prove anything. All the defence has to do to get an acquittal is to raise doubt. When they start presenting their own evidence, they raise the risk of providing additional material for the prosecution.

This is especially the case if the defendant is, like Radovan Karadžić, guilty. What everyone but the defendants knows is that prosecutors love it when this kind of defendant decides to offer a case. It becomes a second prosecution case, offering the prosecutors both new evidence and the chance to introduce in rebuttal evidence that they were not able to introduce when it was their turn.

So let’s have a peek at the evidence that Karadžić submitted on 15 October in his defence. He gives us a written statement by Blagoje Kovačević, a Republika Srpska Army (VRS) colonel who ranked high among the commanders in the siege of Sarajevo from 1992 to 1995. The prosecutors ought to be able to use several parts of the statement for just the opposite purpose that Kovačević had in mind when he gave the statement, to great effect. All they need to do is ask him about some of his claims. Like the following ones:

  • p. 2, para. 6: “the 1st ABH /Army of Bosnia and Herzegovina/ Corps was in the city of Sarajevo under the control of the Muslim authorities. My information about the numerical strength of this Corps was based on my own estimation of the possible number of mobilised soldiers, which was about 80,000 combatants.”  For comparison (para. 7), he estimates the size of his own brigades at 2500. Prosecutors will want to be asking him about strategic issues and issues of policy. Kovačević claims that he was protecting civilians, but who did VRS consider to be a civilian, and who a combatant? The population of Sarajevo in 1991 was 361735 so the simple math tells you that he thought that about a quarter of the population were combatants.
  • p. 2, para. 8: “There was no interest in taking areas which had not been ethnically defined as Serbian.”  Here again we are confronted with issues of definition. Specifically “ethnic” definition. How was this done, and by whom, and what importance did this definition take on in day to day military operations?
  • p. 3, paras. 9 and 10: the “objective … was not to allow the Muslim forces a breakthrough from Sarajevo and their use on other battlefields.”  If this happened “the situation at the fronts would have drastically changed to the detriment of VRS.” This is fundamentally an argument that the siege of the city could be justified on the ground of military necessity. But it allows the prosecutors to ask how those grounds were formed in the minds of the VRS command.
  • p. 13, para. 12: “Throughout the war the Muslims never hid their intention to provoke an incident which would be reason enough for the then UNPROFOR units or those of NATO to be deployed on their side. We were perfectly aware of the fact that the opposite side deliberately opened fire at times of truce in order to provoke a reaction on the part of our forces, so that we would then be blamed for causing the incident.”  Here Kovačević is inviting the prosecutors to ask him about two topics – first, the source of his knowledge about other people’s intentions, and second, the genesis of every single “incident” about which he as a commander would be expected to know. If anything done by his forces was an action rather than a reaction, it indicates that policy was not what he says it was.
  • pp. 3 and 4, para. 14: Referring to incidents in which explosives were used to attack crowds of civilians, Kovačević says “I have no information as to who caused these incidents, but they could have been caused by anyone in Sarajevo.”  The passage is followed by speculation about what he might have found if he had investigated. Here he opens up lines of questioning as to the positioning of forces and arms, about chain of command, and about who was authorised to issue orders and who was obligated to be informed. In cases where chains of command form an element of criminal responsibility, it is a violation for commanders not to know things that they are obligated to know.
  • p. 4, para. 15: “I have no knowledge to the effect that the final objective for Sarajevo of the Serbian authorities was a division of the city. It is mistaken to believe that the Serbs wanted a division, because Serbs too lived in the city. The Muslims wanted to drive the Serbs away from Sarajevo and not the other way around.”  Here Kovačević is opening up lines of questioning about paths and sources of information used by military commanders. If he had information about political goals of both sides, where did this information come from? Was there information about political goals coming from the higher ranks of RS politicians, including Karadžić? The statement also invites evidence to be introduced in the form of the stated goals of RS political leaders, including Karadžić, in interviews and news articles in 1992 and 1993.
  • p. 5, para. 24: “It was only in Muslim mass media that I saw that the possible victims of combat between our units and the adversary units of the 1st BH Army Corps had been civilians.”  And para. 25: “Neither I nor my unit ever had the intention during combat to cause civilian casualties or wreak terror on civilians under the control of Muslim authorities.”  In the same paragraph, p. 6: “I claim that the army never sought to wield any psychological impact on civilians under the control of Muslim authorities.”  The prosecutors would be most likely to pursue this with questions not only about general tactics and about war aims, but about the purpose of individual events. When this missile was fired into this residential building, was there an intention to cause casualties or to bring about psychological effects? What was the purpose of sniper fire on this residential area on this date? You get the point.
  • p. 6, para. 28: Kovačević states that he never gave orders to attack “civilians” or “means of public transportation.”  This is the occasion for the prosecutors to go through the diaries of artillery used, the news accounts, and the records that commanders are obligated to keep, and to ask what was the source of the command for large numbers of individual attacks. If the number is large enough over an extended period of time, a pattern of acts leads to a reasonable conclusion. But judges do not like patterns of acts, and the diaries ought to confirm that the pattern was not incidental.
  • p. 7, para. 33: “My unit received orders from superior commands or the civilian authorities to the effect that in the event that fire was opened at civilians … an investigation was to be conducted and the perpetrators punished.”  p. 7, para. 34: “In any case we punished such breached of discipline.”  In this event there should be a record of the commands (something which appears unlikely given that Kovačević does not appear to know where they came from) and of the investigations and punishments. If the records cannot be produced or do not show that the number of investigations and punishments matches the number of breaches, then the obligation to prevent and punish violations has not been met. If the number of investigations and punishments is zero or very small, it is indication of the existence of a policy to commit violations.

This is just a partial sampling of questions and opportunities to introduce new evidence raised by one witness statement, probably not an especially major one and certainly not the only one to be offered in a defence case that will probably take well over a year (today there is another, from Dušan Škrba who has just begun his testimony). Look over the document yourself and you will find some more. Keep doing this with all the defence evidence and you will see that while there could be some places where Karadžić helps himself, most of what he is doing is presenting a second prosecution case – and it could be better than the prosecution’s original case, because he knows some things they do not know and because they can use material that they knew about but could not introduce once he introduces it.

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