African Union: Hybrid Court No Replacement for ICC; National Reforms Needed

African Union: Hybrid Court No Replacement for ICC; National Reforms Needed

(New York) October 29, 2009 -- The African Union (AU) should support the High-Level Panel on Darfur's call for prosecutions to provide justice for victims in Darfur, Human Rights Watch said today. Human Rights Watch said that the panel's recommendation to create a "hybrid court" - along with establishing a truth and reconciliation commission and strengthening the domestic criminal justice system - could usefully supplement justice efforts in Darfur, but not replace International Criminal Court (ICC) cases.

The panel's report is being presented to a meeting of the AU Peace and Security Council in Abuja on October 29.

"African Union states should endorse the Mbeki Panel's call for prosecutions - the victims of the attacks in Darfur deserve justice," said Richard Dicker, International Justice Program director at Human Rights Watch. "A hybrid court and national law reforms could potentially help, but not substitute the ICC's cases."

The High-Level Panel on Darfur, headed by Thabo Mbeki, the former South African president, was established by the AU in March 2009 to explore ways to secure peace, justice, and reconciliation in Darfur. The panel carried out its work - including holding a series of hearings in Sudan - for approximately six months and prepared a comprehensive 125-page report.

The panel concluded that the "people of Darfur have suffered extreme violence and gross violations of human rights." One of the panel's main recommendations is to establish a new hybrid court consisting of Sudanese judges and judges appointed by the AU to prosecute the most serious crimes committed in Darfur.

The Mbeki Panel did not take a position on whether the hybrid court would seek to try cases currently before the ICC, which has been investigating and prosecuting crimes in Darfur since 2005, when the United Nations Security Council referred the situation to the ICC.

The ICC currently has cases against four individuals suspected of war crimes and crimes against humanity committed in Darfur. One of these is President Omar al-Bashir, for whom the ICC issued an arrest warrant on March 4, 2009.

"Sudan has been obstructing justice for crimes committed in Darfur for years," Dicker said. "The proposed hybrid court and national law reforms should not delay the ICC cases for one minute. If and when a hybrid court gets up and running, there will be plenty of additional cases to fill its docket."

The establishment of a new hybrid court - which Human Rights Watch said should conform to international standards for fair trials - is likely to face major obstacles, Human Rights Watch said. The Sudanese leadership has previously undercut efforts by domestic courts to prosecute Darfur atrocities. A hybrid court that has Sudanese participation could be plagued by a similar lack of political will to hold perpetrators to account. In addition, new courts can take a long time to create and can be very expensive.

The Mbeki Panel also recommends strengthening the national criminal justice system and removing immunities for state actors who violate human rights. These recommendations are consistent with legal and institutional reforms required under the terms of the 2005 Comprehensive Peace Agreement, signed by the ruling National Congress Party and the southern Sudan People's Liberation Movement, which ended more than 20 years of civil war.

A genuine law reform process requires the Sudanese legislature to repeal or amend existing laws to bring them into conformity with applicable international human rights standards, Human Rights Watch said. These should include, as a matter of urgency, reform of the National Security Forces Act, which currently grants sweeping powers of arrest and detention to national security authorities who continue to commit human rights violations in Darfur and across Sudan.

"The Mbeki Panel's call for real legal reform in Sudan as one key element in improving accountability for human rights violations is welcome," said Georgette Gagnon, Africa director at Human Rights Watch. "Genuine reforms could also help create the conditions necessary for free and fair national elections in April 2010."

The Mbeki Panel further recommends the establishment of a truth and reconciliation commission, which could make an important contribution to broader accountability for crimes in Darfur. Such a process can contribute to societal healing by thorough documentation of victims' experiences and crimes committed.

The AU and the ICC

In July, the AU called for its member states not to cooperate with the arrest and surrender of al-Bashir to the ICC because the Security Council had not responded to an AU call to defer the case. Article 16 of the Rome Statute, which created the ICC, permits the Security Council to grant deferrals for renewable one-year periods to maintain peace and security. Under the Rome Statute, efforts to strengthen national prosecutions for crimes falling under the jurisdiction of the court are not a basis for an article 16 deferral.
As South Africa and Botswana have pointed out, the July AU decision goes against the obligations of African states that are parties to the Rome Statute. All states parties are obliged to cooperate with the ICC irrespective of such summit decisions. The AU decision was also inconsistent with article 4 of its own Constitutive Act, which rejects impunity.

With the arrest warrant for President al-Bashir, some government officials in Africa have suggested that the ICC is unfairly targeting African leaders. However, all ICC situations to date were either voluntarily referred by African governments or, in the situation of Darfur, by the UN Security Council.

At the same time, the application of international justice has been uneven, with officials from powerful states less vulnerable to prosecution. The solution is to work to extend - not curtail- accountability, including by promoting wider ratification of the Rome Statute. Otherwise, victims will be denied redress and a culture of accountability frustrated, contrary to the AU's Constitutive Act, Human Rights Watch said.

Human Rights Watch urges states to work for prosecutions of serious crimes that violate international law wherever they occur and to extend the reach of international courts. Human Rights Watch, other international organizations, and civil society across Africa have urged African states to cooperate with the ICC in the arrest and surrender of al-Bashir.

"African civil society has repeatedly called for African states to cooperate with the ICC in the arrest of President al-Bashir," said Gagnon. "African states should heed this call."


Background on National Efforts to Prosecute Serious Crimes in Darfur

On June 7, 2005, the day after the ICC prosecutor announced he was opening investigations into the events in Darfur, the Sudanese authorities established the Special Criminal Court on the Events in Darfur (SCCED). However, by June 2006 authorities had brought only 13 cases before these courts, all involving low-ranking individuals accused of minor offenses such as theft. In the sole case relating to a large-scale attack on civilians, the court merely convicted the accused of theft that occurred after the attack.

In August 2008, Sudan's justice minister, Abdelbasit Sabdarat, appointed a special prosecutor and legal advisers in each of Darfur's three states to investigate crimes from 2003 onward. In October 2008, Sudanese justice officials announced that the special prosecutor had completed an investigation into allegations against Ali Kosheib, a militia commander who is wanted by the ICC for war crimes and crimes against humanity. In February 2009, the special prosecutor for Darfur stated that three men, including Kosheib, had been charged in a case related to events in Deleig, Mukjar, Bandas, and Garsila. However, there has since been no indication of any progress in this or any other case, and the special prosecutor has complained publicly that he has had difficulty accessing and interviewing victims.

The ICC's Darfur Cases

To date, the ICC has issued arrest warrants for three suspects for alleged war crimes and crimes against humanity committed in Darfur: President al-Bashir; Ahmad Harun, the former Minister of State of the Interior and the former Minister of Humanitarian Affairs; and Ali Kushayb, an alleged commander of the Janjaweed militia. The ICC also has issued a summons to appear for a Sudanese rebel leader, Bahar Idriss Abu Garda, for alleged war crimes committed as part of an attack on an African Union peacekeeping base, Haskanita. Applications for arrest warrants or summons to appear for two other rebel commanders - whose names have not been disclosed - who are believed to have also participated in the Haskanita attack are under review.

Human Rights Watch Press release

Canada jails Rwandan war criminal

Munyaneza will be in jail for at least 25 years A Rwandan man convicted of war crimes has been jailed for life by a Canadian court, without the prospect of parole for 25 years. Desire Munyaneza, 42, was found guilty in May in the first court case brought under Canada's 2000 War Crimes Act. He was convicted of genocide, crimes against humanity and war crimes committed in 1994. The sentencing judge said the law considered the crimes committed by the accused to be the "worst in existence." Judge Andre Denis described the sentence, the harshest possible, as "severe". The trial took place over two years, and heard emotional testimony from 66 witnesses about the atrocities. 'Boost for survivors' Munyaneza was accused of leading a militia whose members raped and killed dozens of Tutsis, and of orchestrating a massacre of 300-400 Tutsis in a church. His lawyer has said he will appeal against the conviction. Munyaneza arrived in Canada in the 1990s and tried to claim asylum - but the authorities rejected his claims. He was arrested in 2005 in a Toronto suburb after allegations emerged that he had been a militia leader during Rwanda's civil conflict. Rwandan Jean-Paul Nyilinkwaya said: "The fact that he was found guilty is a very big boost for the survivors. Everybody there is desperate for justice." Mr Nyilinkwaya, who now lives in Canada, was instrumental in Munyaneza's capture, according to Associated Press news agency.

Arrests over 1995 massacre

Arrests over 1995 massacre

SARAJEVO (Reuters) – Bosnian police arrested three former policemen suspected of taking part in genocide against Muslims in Srebrenica in 1995, Europe’s worst massacre since World War II, the state prosecutor said yesterday.
Dusko Jevic, 52, and Zoran Ilic, 36, were arrested on Wednesday by the State Protection and Investigation Agency in Srebrenica and Mendeljev Djuric, 49, in the northeastern town of Bijeljina, a spokesman for the state prosecutor’s office said.
“The three were members of the Bosnian Serb Interior Ministry and are detained on orders of the state prosecutor on suspicion of genocide over the Srebrenica massacre,” Boris Grubesic told Reuters.
The United Nations war crimes tribunal for the former Yugoslavia in The Hague has sentenced seven Bosnian Serbs for the Srebrenica massacre. Nine more are on trial. Mladic is still on the run, 14 years after he was indicted.
The Bosnian war crimes court, set up in 2005 to relieve the burden on the Hague-based tribunal, has put dozens of Bosnian Serbs on trial over Srebrenica. Twelve have been jailed, seven acquitted and seven are still being tried.

Ex-soldier sentenced

Separately yesterday, the court sentenced former soldier Zoran Maric, a 45-year-old Serb, to 15 years in jail for crimes against civilians for killing and wounding dozens of Bosnian Muslims early in the country’s 1992-95 war.
Maric reached a plea deal with the court, admitting participating in the killing in a western Bosnian village that occurred on September 10, 1992, the court said in a statement.
He was found guilty of taking part as co-perpetrator in the imprisonment and forcible removal from their homes of civilian Bosniaks (Bosnian Muslims) in the village of Osoje.
“Imprisoned civilians were taken to a place called Tisovac where they were ordered to line up next to the edge of an abyss after which members of the Serb Republic army opened fire and killed 23 persons,” said the court, adding that four civilians were wounded and one was unharmed.
The trial of Bosnian Serb wartime leader Radovan Karadzic opened in The Hague this week, with prosecutors accusing him of leading a genocidal campaign against Bosnian Muslims during the war. Karadzic, who denies all charges, boycotted the hearing.

Early release for the ‘Iron Lady’ of Bosnian Serbs

Early release for the ‘Iron Lady’ of Bosnian Serbs  Penitent stance earns Biljana Plavsic reduced time REUTERSFormer Bosnian Serb President Biljana Plavsic (left) is greeted by supporters in Belgrade on Tuesday, following her early release from prison in Sweden. BANJA LUKA (AFP) – Former Bosnian Serb President Biljana Plavsic, released early from a 11-year jail term for war crimes on Tuesday, made a remarkable turnaround from an apologist for ethnic cleansing to rehabilitated cooperator with the international community. Known as the “Iron Lady” for her ruthless leadership, the former ally of wartime Bosnian Serb leader Radovan Karadzic was the most rabid nationalist who, during the war, publicly supported the campaign of persecution of non-Serbs. The Hague-based International Criminal Tribunal for the former Yugoslavia (ICTY) decided last month that Plavsic should be granted early release for good behavior and apparent rehabilitation. Plavsic was sentenced in February 2003 after she admitted playing a leading role in a campaign of persecution against Croats and Muslims during Bosnia’s 1992-95 war. Muslim victims of the war voiced outrage last month at the decision to grant early release. “It might be in line with international law, but it has nothing to do with justice,” Murat Tahirovic, head of an association of Muslim and Croat war camp prisoners, told AFP. “How can we explain this to children whose parents had been killed [in Serb-run camps], children who remember their parents only from photos,” he said. Plavsic, 79, once famously defended her purge of non-Serbs as “a natural phenomenon” and not a war crime. The former biology professor underwent an extraordinary pragmatic conversion in 1996, which saw her cooperate with the international community, turning the tables on her mentor Karadzic – now on trial for genocide – who was forced to resign. It was this postwar conduct together with her surprise guilty plea to the tribunal that the judges considered to be seriously mitigating circumstances. Instead of the 15 to 25 years the prosecution had requested, Plavsic was sentenced to 11 years for crimes against humanity including persecution, deportation, unlawful detention and cruel and inhuman treatment. She is the highest-ranking official of the former Yugoslavia to have acknowledged responsibility for the atrocities committed in the Balkan wars in the 1990s. A widely published photograph showed her in the first days of the Bosnian conflict stepping over the body of a slain Muslim civilian to kiss the brutal Serbian warlord Zeljko Raznjatovic, known as Arkan, and hailing him as a great patriot. Born on July 7, 1930, in Tuzla in northeast Bosnia, she was appointed to the chair of biology at Sarajevo University in 1956 and had a distinguished academic career before turning to politics. She co-founded the Serbian National Party in 1990 that she eventually went on to head. After being in Karadzic’s inner circle during the war, she abruptly changed alliances and turned increasingly pro-Western after the Dayton peace agreements were signed. The Serbs, she said, had suffered “50 years of slavery under the Communists” and she became increasingly feted by the West as a relative moderate. She used this to seek reconstruction funds for the Bosnian Serbs’ moribund economy. From Banja Luka, where she set up the capital of the Bosnian Serb entity in Bosnia far away from the nationalist stronghold in Pale, she led the opposition against her former hardline allies. In 1997 she formed her own breakaway faction, the Serbian Popular Alliance. She began to withdraw from political life in the middle of 2000 after the party’s electoral setback in April local elections and resigned her seat in the Bosnian Serb parliament in December of the same year. She gave herself up to UN tribunal in The Hague in January 2001 after she learned that she was the subject of a secret indictment. Plavsic has served her sentence in a Swedish prison and under Sweden’s law became eligible for release on Tuesday, after serving two-thirds of her term. Newspapers and presidency chairman express outrage over war criminal’s failure to serve full jail term SARAJEVO (AP) – Bosnia’s top official canceled a diplomatic visit to Sweden yesterday, angry that the Swedish government chose to grant Bosnian Serb war criminal Biljana Plavsic an early release from jail. President Zeljko Komsic, a Croat, said he will not go to Stockholm because, although Swedish law offers the possibility of early release, the government had to actively make that choice. Komsic, chairman of Bosnia’s three-person presidency, was supposed to meet with King Carl XVI Gustaf during a four-day visit starting November 4. “The Swedish government wanted to do it; it was not forced to do it,” Komsic said in a statement. Other Muslim Bosniak and Croat officials as well as the media expressed outrage over the early release and the fact that Plavsic flew from Sweden to Belgrade on a Bosnian Serb government jet bought with tax money from some of her victims, who still live in the Bosnian Serb republic. Plavsic was warmly welcomed in Belgrade by Bosnian Serb Prime Minister Milorad Dodik. Komsic also called the behavior of Swedish Foreign Minister Carl Bildt “unacceptable and compromising for the Swedish government.” Bildt, he said, testified at the UN war crimes tribunal on Plavsic’s behalf, visited her in jail in Sweden and took part in the decision for her to be released early. Komsic had urged the Swedish government and parliament last September not to grant the early release, saying it would be a mistake to show this kind of mercy to a person who had committed the worst crimes against humanity. A headline in the Sarajevo daily Dnevni Avaz said, “Victims paid for the flight to Belgrade,” and the daily Oslobodjenje had a photo of Dodik holding Plavsic by the hand with a headline “Flown by Dodik’s plane to freedom.” In Belgrade, Dodik defended his decision to send a government jet to pick up Plavsic, saying, “It was a moral thing to do.” He said Plavsic will remain in Belgrade for now but stay out of political life. “She has served her time in jail, and she’s now a free person,” Dodik said.

Karadzic no-show at UN trial

Karadzic no-show at UN trial

A Bosnian Muslim woman from the Srebrenica area, Dzemila Mustajbasic, 76, reacts as she listens to a news report on the radio on the war crimes trial of Radovan Karadzic, in a refugee center near Zivinice, 72 kilometers north of Sarajevo, on Tuesday.By Reed Stevenson - Reuters
THE HAGUE – Radovan Karadzic led a genocide campaign to make Bosnian Muslims “disappear from the face of the earth” and carve out a monoethnic state for Bosnian Serbs, war crimes prosecutors told a UN tribunal on Tuesday.
In opening statements, prosecutors painted a picture of the former Bosnian Serb leader as a supreme commander single-mindedly pursing a campaign of “ethnic cleansing” during the 1992-95 Bosnian war that killed an estimated 100,000 people.
They spoke to empty chairs on the defendant’s side of the court as Karadzic, who denies all charges, boycotted the trial at the International Criminal Tribunal for the former Yugoslavia for a second day.
“The Supreme Commander explained in October 1991 what was coming for Sarajevo: ‘Sarajevo will be a black cauldron where Muslims will die. They will disappear, that people will disappear from the face of the earth,’” senior prosecutor Alan Tieger cited Karadzic as saying in an intercepted call.
He was referring to the 43-month siege of Sarajevo that began in 1992 and killed an estimated 10,000 people as the former Yugoslavia was torn apart in the 1990s by Serbs, Croats and Muslims fighting for land.
“The supreme commander had directed his forces in a campaign to carve out a monoethnic state within his multiethnic country,” Tieger said.
“This case, your honors, is about that supreme commander. A man who harnessed the forces of nationalism, hatred and fear to implement his vision of an ethnically separated Bosnia – Radovan Karadzic.”

Shocking evidence

In addition to maps, slides and intercepted phone calls, Tieger showed several videos of Serbian snipers shooting Sarejevo citizens, as well as others of Karadzic on the hills overlooking the city, observing and directing the siege.
He promised to provide witnesses and testimony during the trial showing Karadzic’s active involvement in Sarejevo and other campaigns to wipe out minorities.
Karadzic, 64, has denied all 11 war crimes charges against him.
Judge O-Gon Kwon warned Karadzic to appear in court or risk having counsel assigned to him and being tried in absentia.
“Should the accused persist in his refusal to attend the trial... the trial will proceed in his absence, and counsel will be assigned,” the South Korean judge said.
Following the end of opening remarks next Monday, a hearing will be held on Tuesday to decide how to proceed if Karadzic continues his boycott. Options include trial in absentia, assigning counsel, seeking outside advice and adjourning to allow assigned legal counsel time to prepare. “If we get enough time to prepare a proper defense, he will will appear in court, definitely,” said Marko Sladojevic, one of Karadzic’s legal advisers, adding that Karadzic was following proceedings closely, working until 5 a.m. on the trial.
A mother who lost much of her family in Srebrenica condemned his absence.
“Today again the war criminal Karadzic did not appear at his trial,” Nirmela Kolenovic said. “For me, it means he is a coward and he has acted in a cowardly manner toward the Serbian people.”
The complex trial is expected to last until at least 2012 and involve hundreds of witnesses. There are more than 1 million pages of prosecution documents.

Karadžić Genocide Trial Begins

By Katherine Iliopoulos

The trial of former Bosnian Serb leader Radovan Karadžić commenced without him on October 26, and burdened with the weight of expectation. The only one of the ‘big three’ from the Bosnian war of the 1990s in custody – the late Slobodan Milošević and fugitive Ratko Mladic having both evaded justice by different means – his trial on charges of genocide, crimes against humanity and war crimes may come to represent one of the most important for the legacy of the International Criminal Tribunal for the Former Yugoslavia. One key concern for the Tribunal will be to avoid a repeat of the most criticised aspects of the Slobodan Milošević trial – which lasted several years and ended prematurely with the death of the accused in custody.  At issue particularly will be the court’s handling of Karadžić’s decision to represent himself during the trial; the judges must allow him enough time and scope to conduct his defence without unwittingly sanctioning delay tactics or ideological tirades.  In the interests of simplifying the trial and ensuring it is completed within a reasonable timeframe, the Tribunal has already compelled the prosecution to trim the original indictment, which had listed only one count of genocide among the eleven charges, but now includes two counts of genocide but a lesser number of crime sites, incidents and municipalities, for which a not guilty plea has been entered on Karadžić’s behalf. As he had forewarned, Karadžić failed to appear in the courtroom and the case was adjourned after 30 minutes. He is not expected to appear on the second day, but judges have warned that they would start the case without him. The prosecution had urged the judges to impose a defence lawyer on Karadžić, as was done in relation to Milošević, but the they have not yet made a decision in this regard.

Former Bosnian Serb leader Radovan Karadzic, enters the courtroom at the International Criminal Tribunal for the Former Yugoslavia in The Hague, Netherlands, Friday Aug. 29, 2008. Karadzic refused to enter pleas to the 11 charges, including genocide and crimes against humanity, filed against him. After his refusal to plead, Presiding Judge Iain Bonomy entered not guilty pleas on his behalf. (AP Photo/ Valerie Kuypers, Pool).

The main allegations against the former President of Republika Srpska relate to the 44-month “Siege of Sarajevo” - a sniping and shelling campaign designed to spread terror - that left over 10,000 dead, the July 1995 massacre of around 8,000 Muslim men and boys in Srebrenica, and the taking of UN personnel hostage to prevent NATO and international air strikes against Bosnian Serb military targets. According to the prosecution, these three criminal conspiracies formed part of an overarching plan, of which Karadžić was a part, to ethnically cleanse non-Serbs from Serb-claimed territory in Bosnia and Herzegovina and to "eliminate" Bosnian Muslims in Srebrenica, carried out between October 1991 and November 30, 1995. The Prosecution alleges that as part of a persecutory campaign, Karadžić formulated and executed a campaign of sniping and shelling against besieged Sarajevo in order to spread terror among its civilian population. The campaign of terror was said to be an important means of achieving the Bosnian-Serb leadership’s territorial ambitions and statehood. The level of terror was moderated in order to secure concessions from the BiH government or to prevent NATO and international intervention in the conflict. He is also accused of having targeted Bosniak and Croat political leaders, intellectuals and professionals, unlawfully deporting and transferring civilians because of national or religious identity, and of having been responsible for the destruction of homes, businesses and sacred sites. Central to the accused's defence is his claim that in 1996 former US Ambassador to the UN Richard Holbrooke offered him immunity from prosecution, in return for surrendering power. It is an allegation Holbrooke vehemently denies. The Chamber has ruled that even if such an agreement existed, it could not bind the Tribunal, nor could an agreement entered into by the Prosecution. In a Decision of October 12, 2009, the Appeals Chamber indicated that it will permit Karadžić to pursue the Holbrooke agreement issue insofar as it may be relevant to sentencing and mitigation. The two genocide charges that are listed in the latest indictment relate to "the crimes committed in Bosnia and Herzegovina during 1992 and the second to the July 1995 massacre in Srebrenica” including the "death or forced departure" of non-Serbs from over 40 Bosnian towns and the widespread killing in detention camps. The first charge can be seen as a long shot by the prosecution, since the Tribunal has until now always rejected the idea that the campaign of ethnic cleansing across Bosnia in 1992 rose to the level of genocide.  In particular, the court acquitted Karadžić’s political colleague Momčilo Krajišnik, sometimes known as the “architect of ethnic cleansing”, of genocide charges in 2006. As far as the second charge, the Tribunal established as ‘legal fact’ that genocide was committed by the Bosnian Serbs at Srebrenica in April 2004 when it convicted the Bosnian Serb general Radislav Krstic of aiding and abetting genocide in connection with the massacres of Bosnian Muslims that took place after the fall of the so-called ‘safe haven’. Genocide is considered the ‘crime of crimes’ under international law but also the most difficult to prove because of the requirement to show a specific intent to destroy a group in whole or in part. The prosecution has alleged that following the fall of Srebrenica on 11 July 1995, Karadžić and Mladic, working with other military and civilian officials, directed the forcible transfer of the Muslim population out of the enclave and the mass executions of over 8,000 men and boys. Karadžić knew that executing the men and expelling their families from Srebrenica would have a catastrophic and lasting impact on the Bosnian Muslims of Srebrenica, according to the prosecution: “In a patriarchal society, such as the Muslim community of Srebrenica, the execution of the majority of men made it almost impossible for the Bosnian Muslim women who survived to successfully re-establish their lives”.  This claim is a deliberate echo of the Court’s earlier appeals decision in the Krstic case. In relation to the Siege of Sarajevo, the prosecution alleges that Karadžić shared a common plan in relation to the terror campaign against civilians but it does not explicitly allege that this campaign was directed at the elimination of non-Serbs from Sarajevo, although it is alleged to have given rise to a number of war crimes. It appears from a reading of his pre-trial brief that during the course of the trial, Karadžić will try to demonstrate that the knowledge of a plan or policy ought to be considered as an element of the crime of genocide which must therefore be proven beyond reasonable doubt. Karadžić quotes Professor William Schabas - an advocate of the inclusion of the plan requirement as an element of the crime of genocide – who reasons that genocide is so closely associated with a State plan or policy, such that "it is nearly impossible to imagine genocide that is not planned or organized either by the State itself or a state like entity or by some clique associated with it". Raphael Lemkin, who first coined the word ‘genocide’ and helped draft the Genocide Convention, defined genocide as "a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves". If the Tribunal finds that the plan requirement is a formal element of the crime of genocide, the prosecution will have to prove - in addition to the other elements of the crime - that Karadžić either intended his conduct to be part of the larger genocidal plan or policy or at least knew that his conduct was part of that plan or policy. Count 11 of the indictment charges Karadžić with the war crime of ‘hostage taking’ in connection with the fact that over 200 UN peacekeepers and military observers were detained at various locations and used as human shields in order to render the locations immune from NATO air strikes. Karadžić argued in a pre-trial Motion that in relation to the crime of hostage-taking under Common Article 3 of the Geneva Conventions, under customary international law the scope of the application of Common Article 3 to an international armed conflict is limited to “civilians”. The indictment identified the victims of the crime of hostage taking as UN military observers and peacekeepers and that they were persons taking no active part in the hostilities. But Karadžić argued that the ‘hostages’ were non-civilians and ought to be classified as prisoners of war (POWs) to which the Third Geneva Convention applies and which does not contain a specific prohibition on hostage-taking. Interestingly, at the time of the incident the International Committee of the Red Cross (ICRC) disagreed that the peacekeepers that had been collected by the Bosnian Serbs were ‘hostages’. That was because the UN had ordered air strikes it had therefore become involved in the Bosnian conflict, with the implication that its personnel were therefore prisoners of war. However, as soon as the personnel were forced to serve as human shields, the ICRC argued that they were being used as hostages and not as prisoners of war. In response to Karadžić’s Motion, the Tribunal affirmed that Common Article 3 clearly refers to the prohibition on hostage taking on any person taking no active part in the hostilities, including POWs, whether in an internal or international armed conflict. It stated that the status of the UN personnel has not been established on the face of the indictment and will be a matter of evidence to be determined during the trial. To date, the ICTY has not specifically addressed whether the detention of combatants can qualify as hostage taking. Some 290 witnesses will be relied upon the prosecution to prove its case, some of whom have been granted protective measures. "I would go to the moon to get justice for my son," witness and victim Dzenana Sokolovic told BBC journalist Alan Little last week. She and her 7-year-old son were gunned down as they returned from collecting firewood, which involved a dangerous sprint across an intersection near an apartment block housing a group of Serb snipers. After she was shot she was heard screaming “Where’s my boy?”, unaware that Nermin already lay dead in a pool of blood after being struck in the head with a bullet. As with other witnesses, the judges will have to determine the reliability of the evidence. In relation to this witness, they will need to be satisfied that the bullets were fired from that location and not by other combatants defending Sarajevo. In the wake of the Milošević precedent, where the accused represented himself and refused to adopt defence counsel, the Tribunal is faced with the issue of how to deal with Karadžić’s insistence on self-representation. There were fears of another long, drawn out trial, delaying justice to victims, before the Tribunal rejected Karadžić’s request for a 10-month extension and insisted on the trial commencing in late October and finishing by 2012. Now the issue seems to be procedural fairness and the rights of Karadžić. The issue of self-representation is inextricably linked to an assessment of adequate trial preparation. How can this ‘right’ – established as such in the Milošević case on the basis of the Tribunal’s interpretation of 21(4)(d) of the ICTY Statute – be reconciled with the main side-effect of an inadequately staffed ‘legal team’: the need for more trial preparation time and thus the right to a fair trial?  It is clear that some sort of compromise would need to be reached, respecting the rights of the accused in a way that does not allow an abuse of the proceedings for political ends, and without deterring witnesses from testifying.  Arguably, fair trial rights include the right to have counsel, not the right not to have it. A genuinely ‘fair’ trial does not seem possible without adequate legal assistance. One of Karadžić’s legal advisers, Peter Robinson, has said that he will boycott the trial until he is adequately prepared to defend the prosecution case, which he says relies on over a million pages of witness testimony and is "the biggest, most complex, important, and sensitive case ever before this tribunal". Similar tactics were used by Milošević. But Chief Prosecutor Serge Brammertz denies that Karadžić’s rights have not been respected, saying that Karadžić, who has filed almost 270 motions on various issues since his transfer to the tribunal's detention centre, has had 15 months to prepare since his arrest in Belgrade last year. It is unclear how the trial will proceed without Karadžić in the dock, as the Tribunal’s procedural rules do not allow for trials in absentia. Possible options for the judges would include either postponing the trial, imposing counsel to represent him, starting without him, or compelling him to attend. Or, seeking more time on an ad hoc basis, for example, before each witness commences testimony. If counsel is imposed, for example current adviser Robinson, the case would have to be postponed for some months to allow him to prepare. Karadžić’s trial has been streamlined to include the main incidents, but many atrocities will go unaddressed. Many observers believe that the Karadžić trial it will be a relatively straightforward affair compared with that of Slobodan Milošević. Gideon Boas, a senior legal officer in charge of managing the Milošević trial for the Tribunal’s Chambers, suggests that the Milošević indictment bears much of the responsibility for the long and arduous trial. But, the number of witnesses to be called and the volume of documentation can also play a part. The Bagosora trial before the International Criminal Tribunal for Rwanda, which heard 242 witnesses and examined over 35,000 pages of documents, lasted six years despite an indictment of reasonable length and scope, and representation by counsel. But a promising sign in this case is the lack of grandstanding, interruptions and preaching that characterised Milošević’s pre-trial appearances. Some of the other politicians who served alongside Karadžić in the Bosnian Serb leadership have already been convicted. One of those is Krajišnik, currently serving a 20-year sentence, a member of the National Security Council of the Republika Srpska during the relevant period. In 2006 he was convicted of persecutions, extermination, murder, deportation and forced transfer but acquitted of genocide, but in March 2009 he was acquitted on appeal of several of these charges, though the appeals court upheld his conviction for the crime against humanity of persecution effected through deportation and forcible transfer. Appeals judges confirmed that Karadžić and Krajišnik were members of the same joint criminal enterprise at the apex of the Bosnian Serb political hierarchy. Karadžić is charged with many of the crimes committed against non-Serbs in Bosnia, including genocide, for which Krajišnik was acquitted. Some legal commentators are worried that the inability of the prosecution to convict Krajišnik of the most serious crimes may have a bearing on the likelihood of a conviction of Karadžić for the same crimes. “Karadžić is [Krajišnik's] political twin so the evidence that applies to one applies to the other”, Michael Karnavas, a defence lawyer at the Hague tribunal, told the Institute for War and Peace Reporting following the Krajišnik appeal. "If they couldn't getKrajišnik [for many charges in his indictment], it's going to be very difficult to prove similar charges against Karadžić, unless there's additional evidence." But other observers are less sceptical, saying that Krajišnik's convictions had been overturned not because of a lack of evidence, but because of a lack of proper findings by the trial chamber. Even so, it seems the prosecution will need to present more evidence in this case. The judges may require the prosecution to put forward more detailed evidence in relation to the allegation that Karadžić participated in a joint criminal enterprise, to establish a link between Karadžić and lower-level perpetrators, and to determine the time when certain criminal acts became part of the criminal plan to remove non-Serbs from large areas of Bosnia. After the first two days of prosecution evidence, consisting of the opening statement, the court will adjourn until the following week, when Karadžić is scheduled to give his opening statement in response. Karadžić was the political leader of the Bosnian Serbs during the 1992-95 war which left 100,000 dead, mainly Bosnian Muslims, and resulted in a country partitioned between a Serbian entity and a Muslim-Croat entity. Prosecutors had wanted to try Karadžić together with his wartime military chief, General Ratko Mladic, who remains at large.  The trial is expected to last at least three years. Source: Crimes of War Project

Απών από το εδώλιο ο Κάρατζιτς, όπως είχε απειλήσει

Την απόφασή του να μποϊκοτάρει τη δίκη του ενώπιον του Διεθνούς Ποινικού Δικαστηρίου έκανε χθες πράξη ο ηγέτης των Σέρβων της Βοσνίας, Ράντοβαν Κάρατζιτς. Ο Κάρατζιτς δεν εμφανίστηκε στο δικαστήριο, κάτι για το οποίο είχε ενημερώσει την περασμένη Τετάρτη με επιστολή του στην οποία ισχυριζόταν πως δεν είναι έτοιμος για την υπεράσπισή του. «Διαπιστώνω ότι ο κατηγορούμενος δεν είναι παρών. Παρατηρώ ακόμα ότι, εφόσον επέλεξε να υπερασπιστεί μόνος του τον εαυτό του, δεν είναι παρών κανείς συνήγορος για να τον εκπροσωπήσει», είπε λίγο αφότου ανέβηκε στην έδρα ο Νοτιοκορεάτης δικαστής, Ο-Γκον Κουόν. Το δικαστήριο αμέσως μετά την έναρξη της ακροαματικής διαδικασίας υποχρεώθηκε να διακόψει για σήμερα. Η κίνηση του Κάρατζιτς προκάλεσε την οργή μέρους του ακροατηρίου. Τριάντα μητέρες θυμάτων του πολέμου στη Βοσνία που βρίσκονταν στη δικαστική αίθουσα ξέσπασαν σε διαμαρτυρίες. «Είναι σαν να σκοτώθηκαν για δεύτερη φορά», είπε με αγανάκτηση η 62χρονη Μούνιρα Σούμπασιτς, η οποία έχασε τους δικούς της ανθρώπους στη Σρεμπρένιτσα το 1995. Η Μπακίρα Χάσετσιτς, θύμα βιασμού κατ’ επανάληψη στη διάρκεια του πολέμου, σχολίασε: «Θέλουμε να δικαστεί ο Κάρατζιτς… αλλά δεν θα ξαφνιαστώ αν δεν εμφανιστεί ποτέ στο δικαστήριο». Είχε προηγηθεί διαδήλωση μητέρων θυμάτων της σφαγής της Σρεμπρένιτσα στη Χάγη. Η δίκη αναμένεται να διαρκέσει δύο χρόνια. Ο 64χρονος ηγέτης των Σέρβων της Βοσνίας δηλώνει αθώος για τις κατηγορίες της γενοκτονίας, των εγκλημάτων πολέμου και των εγκλημάτων κατά της ανθρωπότητας που τον βαραίνουν και τον Σεπτέμβριο υποστήριξε πως χρειαζόταν άλλους δέκα μήνες για να προετοιμάσει την υπεράσπισή του. Source: Lawnet.gr

UN-backed court hands down final rulings in Sierra Leone

Former leader of the RUF in Sierra Leone Issa Hassan Sesay (centre)

26 October 2009 – The United Nations-backed Special Court for Sierra Leone (SCSL) has upheld the convictions and sentences passed on three former rebels in the last judgment by the tribunal to be handed down in the West African nation.The three former leaders of the rebel Revolutionary United Front (RUF) were convicted earlier this year for atrocities committed during Sierra Leone’s decade-long civil war.
The charges include forced marriage as a crime against humanity and attacks against UN peacekeepers – the first time that an international criminal tribunal has entered guilty verdicts for both charges.
The Court – which is based in the capital, Freetown – dismissed all the appeals of the defendants, except one regarding Augustine Gbao for the charge of collective punishment, which has been overturned. He will still have to serve the 25-year sentence originally imposed on him.
The other defendants, Issa Sesay and Morris Kallon, will serve 52 years and 40 years, respectively.
The acting Prosecutor of the Court, Joseph Kamara, welcomed today’s judgment, calling it “a final condemnation of one of the most brutal and notorious rebel groups in modern times.
“This judgment sends a signal that such tactics of warfare will not go unpunished. It may act as a deterrent against those who would use this strategy to further their own aims at the expense of the innocent,” he added in a news release.
With today’s judgment, the Court’s trial proceedings in Sierra Leone now complete. It has now delivered final judgements in all three of its Freetown-based trials, with eight accused persons convicted.
The remaining trial, involving former Liberian president Charles Taylor, is continuing at The Hague, where it was moved for security reasons.
The Special Court is an independent tribunal established jointly by the Sierra Leonean Government and the UN in 2002. It is mandated to try those who bear the greatest responsibility for atrocities committed in Sierra Leone after 30 November 1996.
Source: UN News

Police 'reviewing Lockerbie case'

Megrahi was convicted of the Lockerbie bombing in 2001 Police are pursuing "several potential lines of inquiry" as they review the Lockerbie bombing case, reports say. Detectives in Scotland are working with forensic scientists to try to build a case against those involved in the 1988 atrocity, the Sunday Telegraph says. Prosecutors say Libyan Abdelbasset Ali al-Megrahi - who was convicted in 2001 of the murder of 270 people but freed in August - was not working alone. Relatives of those who died have renewed calls for a public inquiry. The Crown Office in Scotland said there was "no question" of re-opening the case against Megrahi. 'Unfinished business' Some 259 people on board Pan Am Flight 103 from London to New York were killed in the bombing on 21 December 1988, along with 11 people on the ground. Members of UK Families Flight 103 delivered a letter to the UK prime minister asking for a full independent inquiry and to meet him. In it they write: "We have waited patiently for almost 21 years to learn the full truth of what happened.  If [the investigation] is just a dodge to prevent an investigation into why the lives of those killed were not protected... I would be livid  Dr Jim Swire, relative and campaigner "Now we await Prime Minister Gordon Brown's response to our renewed calls for a full inquiry into all the circumstances of the bombing." A spokeswoman said: "Since 1989 senior political figures from successive governments have agreed in principle to an inquiry but have qualified their comments by saying that it could not take place while the criminal investigation was ongoing. "With the abandonment of Mr Megrahi's appeal against his conviction, there has been no resolution to any aspect of responsibility for the bombing." Mr Megrahi, who has terminal prostate cancer, served eight years in prison before he was released on compassionate grounds days after dropping a second appeal against his conviction. The Sunday Telegraph said the latest review of the case was revealed in e-mails from the Crown Office - Scotland's prosecuting authority - to relatives. It said Lindsey Miller, a senior Procurator Fiscal, wrote: "Throughout the investigation we have, at various times, taken stock of the evidence as a whole with a view to identifying further lines of inquiry that can be pursued. Prosecutors have always believed Megrahi did not act alone "Now that the appeal proceedings are at an end a further review of the case is under way and several potential lines of inquiry... are being considered." She added that it "would not be appropriate" to elaborate on those lines. Pamela Dix, whose brother Peter was killed when Pan Am flight 103 exploded over Lockerbie, said the announcement should be interpreted as a "good thing". "Expectations around Megrahi's appeal were really quite high but hopes were profoundly dashed when the appeal was abandoned. The situation is unresolved and it is unfinished business," she said. Dr Jim Swire, who has campaigned for a full inquiry into the bombing since his daughter Flora died in the atrocity, said: "I think that if they are really going to a meaningful investigation then that is all well and good and long overdue. I would be all for it. "But if it is just a dodge to prevent an investigation into why the lives of those killed were not protected then I would be livid." Megrahi 'not alone' UK Families Flight 103 said they were seeking access to previously withheld documents referred to in Megrahi's trial, which suggested they contained "significant information" from a foreign power. They argue that under the European Convention on Human Rights they have the right to an inquiry that confirms to "certain minimum standards where it has occurred at the hands of a state or at the hands of agents of a state". Megrahi, who returned to Libya after the Scottish Government made the decision to release him, has always protested his innocence. A Crown Office spokesman said: "There is no question of re-opening the case against Megrahi. The open case concerns only the involvement of others with Megrahi in the murder of 270 people and the Crown will continue to pursue such lines of inquiry that become available. "The trial court accepted the Crown's position that Mr Megrahi acted in furtherance of the Libyan intelligence services and did not act alone. "The Crown stood ready, willing and able to support his conviction throughout the appeal process which he abandoned." Source: BBC News

KARADZIC TRIAL TO START WITHOUT HIM

Accused vows to boycott trial, claiming he has been denied enough time to prepare.

By Rachel Irwin and Simon Jennings in The Hague

The Hague tribunal has announced it will begin proceedings against Radovan Karadzic on October 26 as scheduled – although the former Serb president has vowed not to attend.

In a letter to the court dated October 21, Karadzic wrote that “we now have the worst scenario possible, which should have been avoided at all costs…the biggest, most complex, important and sensitive case ever before this tribunal is about to begin without proper preparation”.

Karadzic, who is representing himself, previously requested that the start date of his trial be postponed for ten months, claiming that he has not had enough time to prepare his case. Both trial and appeals judges rejected that request.

He wrote this week that “no lawyer in this world could prepare a defence within this period of time” and that he “shall not appear” before the court on the trial’s start date of October 26.

“As soon as I will be prepared, I will be happy to inform the [judges] and the [prosecution] a few weeks in advance,” Karadzic concluded.

While the court has confirmed that the trial will still begin on October 26, it remains to be seen what actions the judges will take if Karadzic does not appear.

Lawyers following the case say that the judges could allow the prosecution to deliver opening statements, even if Karadzic is not there to represent himself.

“The opening statements are not evidence,” said Alex Whiting, a former prosecutor at the Hague tribunal and a law professor at Harvard University. “There is no cross examination required and therefore there would be no prejudice to the defendant.”

The opening statements could be followed by a delay, said Whiting, or the judges could simply decide to move forward without Karadzic.

“The judges might decide that [not appearing in court] is his choice and the trial will proceed without him,” Whiting said. “There is going to be an enormous temptation to proceed that way because the judges are determined to make this trial run on time and efficiently.”

That is especially true after what happened during the trial of former Serbian president Slobodan Milosevic, who died in prison four years into the prosecution’s case. Like Karadzic, he was representing himself against a very long and complicated indictment.

“There were so many attempts in the Milosevic trial for him to be the master of the agenda,” said Stephane Bourgon, a defence lawyer at the tribunal. The judges may be stricter now to avoid losing control of the trial, he said.

If the judges continue without Karadzic, however, they would have to appoint a lawyer to argue his case in court – a scenario which could result in further complications and delays.

“Whoever steps in at this point is going to have a tremendous disadvantage because they don’t know the facts,” explained Michael Karnavas, a defence lawyer at the tribunal.

Karadzic, the president of Bosnia’s Republika Srpska from 1992 to 1996, has insisted on representing himself since his arrest in Belgrade in July 2008, after 13 years on the run.

Prosecutors are seeking to prove that he was the political force behind the massacre of almost 8,000 Bosniak men and boys at Srebrenica in July 1995.

Karadzic is further charged with orchestrating the 44-month campaign of sniping and shelling on the city of Sarajevo, which resulted in nearly 12,000 civilian deaths.

The indictment – which lists 11 counts in total – also alleges that he is responsible for crimes of persecution, extermination, murder and forcible transfer which “contributed to achieving the objective of the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory”.

Most observers agree that going ahead with the trial without Karadzic could be problematic for such a high-profile and long-awaited case.

“The question is more one of perception and legitimacy of the proceedings, if they choose to go forward without him present,” said Dianne Marie Aman, a law professor and director of the California International Law Center.

Karnavas said that while the judges have to ensure the accused receives a fair trial, they also have to make sure that “justice is seen to be done”.

“On the other hand, if a client refuses to cooperate, what should we do?” he said. “Unlock the cell and say ‘It was great having you here and now you can go home?’”

Reaching a compromise with Karadzic is another option, the lawyers said, and probably the best one.

“I think that they really should negotiate with him, and [set] some kind of a minimum delay that would be acceptable to him, and to the prosecution and to the agenda of the [court],” Bourgon said.

Whiting added that Karadzic’s participation is beneficial to everyone involved.

“It’s in everybody’s interests - the prosecution’s interest, the defence’s interest and the judges’ interest - that Karadzic participates in the trial and that he is represented effectively, whether it is by himself or with counsel, “ said Whiting. “If that can be accomplished, that’s what everybody will want.”

At this point, however, a significant delay in the proceedings is inevitable, said Kevin Jon Heller, one of Karadzic’s legal advisors and a senior lecturer at Melbourne Law School.

Since Karadzic originally insisted on a ten month delay, any negotiated postponement is likely to be the order of at least several months, he said. Furthermore, if the court decides to appoint a lawyer to the case, he or she would need some time to prepare.

“I see no scenario under which this trial will start before 2010,” Heller said.

Source: Institute for War & Peace Reporting International Justice Project
Rachel Irwin and Simon Jennings are IWPR reporters in The Hague.

Large group of lawyers help Karadzic with his defense

 Former Bosnian Serb leader gets advice ahead of defending himself at ICTY

AFPFormer Bosnian Serb leader Radovan Karadzic (right) is seen entering the ICTY courtroom at the start of his initial appearance on July 31, 2008, in this file photo.

THE HAGUE (AFP) - Wartime Bosnian Serb leader Radovan Karadzic, who will boycott his long-awaited trial in a UN court next Monday, has a small army of mostly volunteer backroom lawyers advising him on his self-run defense.
Karadzic has put himself in charge of arguing, objecting and questioning witnesses in the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, which has charged him with genocide and war crimes.
But Karadzic announced on Thursday that he would not be present for the scheduled opening of the trial as he needed more time to prepare.
In a written interview with AFP, he said he wants «to force the witnesses to present a true picture of what happened in Bosnia and who is responsible for it.» But he is not entirely alone: Karadzic enjoys the backing of eight defense team members paid by the ICTY, as well as another 20-odd attorneys, trainee advocates, and international law experts from all over the world assisting him free of charge.
«It is very unusual» to have such a big team on a case, his chief legal adviser Peter Robinson told AFP ahead of the trial - the most prominent before the ICTY since that of Yugoslav ex-President Slobodan Milosevic which ended without a verdict with his death in 2006.
Milosevic had also handled his own defense, a fact that many experts have partly blamed for the long-drawn out nature of his trial, which started in 2002.
The court ruled this month that two defense lawyers will be allowed to sit in on the proceedings. Robinson will be allowed to speak only at Karadzic's explicit request and only on legal issues.
Karadzic, 64, meets members of his team of legal advisers daily at the UN detention center in The Hague's seaside suburb of Scheveningen.
«Normally I go to the prison in the morning and I meet with him for about three hours from 10 to 1,» said Robinson.
Together they examine all the motions, appeals and requests filed by Karadzic.
«I explain it to him, he looks at it, we discuss it and he signs» before filing them with the registrar.
A former psychiatrist without legal training who refers to himself as «Doctor Karadzic» in his filings, the former strongman has said he works «full time, seven days a week» to study the million pages of evidence filed by the prosecutor.
«I know the facts better than any lawyer,» he told AFP, adding that this way «I can have the floor every day.» «He is really bright and he's very quick, he catches on very quickly,» said Robinson. «The only question is... whether he can question the witnesses well enough to bring up the facts that he wants to bring up. I think he'll do a pretty good job.»
«The quality of international tribunals depends on the quality of the defense,» said Goran Sluiter, international law expert at the University of Amsterdam, explaining his decision to be part of Karadzic's volunteer drafting team. Legal intern Kevin Griffith said Karadzic was «very appreciative of our work.»

Bodies believed to be from Srebrenica exhumed

SARAJEVO (AFP) - Remains believed to belong to at least 19 victims of the 1995 Srebrenica massacre have been exhumed from a mass grave in eastern Bosnia, an official said yesterday.
«So far we have exhumed six complete and 13 incomplete skeletons,» Lejla Cengic of Bosnia's Missing Persons Institute told AFP.
The victims' hands had been tied with wire and two had been blindfolded, she added.
Forensic experts expect to find more bodies in the grave located in a 30-meter (99-foot) deep natural cave in the village of Bisina, near the eastern town of Tuzla.
Bullet casings found on the site indicate that the victims had been executed over the cave, Cengic said.
Bosnian Serbs overran the UN-protected Muslim enclave near the end of Bosnia's 1992-95 war before summarily killing around 8,000 Muslim men and boys within a few days.
The remains of thousands of the massacre victims have been exhumed over the past years from about 70 mass graves around the ill-fated town, with more than 5,600 people identified by DNA analysis.
The Srebrenica massacre is considered the worst atrocity in Europe since World War II. It is the only episode of Bosnia's war that has been ruled as genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ), both based in The Hague.
Source: Kathimerini

Secrecy still shrouds Srebrenica

Former Bosnian Serb leader Radovan Karadzic has told The Hague he will boycott the start of his trial on Monday. The most serious charge against him is of genocide in the 1995 massacre of 8,000 people at Srebrenica. Olenka Frenkiel considers whether the trial will air the full facts about what happened at Srebrenica, and set the record straight over the alleged complicity of Western governments. Karadzic is boycotting his trial and has said that his defence is 'not ready' "The Karadzic trial may well be the last opportunity to examine the issues of Srebrenica at the top level in a forensic setting. That's why it's a very important trial." Sir Geoffrey Nice was the chief prosecutor in the trial of Slobodan Milosevic at the criminal tribunal for the Former Yugoslavia (ICTY) in The Hague. That trial ended without conclusion in 2004 when Milosevic died in jail. So although Milosevic was charged with genocide for his role in the Srebrenica massacre, his culpability from his base in Belgrade has never officially been proved. For Sir Geoffrey, four years studying the case raised other unanswered questions. "The role of what's called the West, the degree to which the West was complicit in the takeover of the enclaves - including Srebrenica. There's no suggestion that the West was aware in advance that there was going to be a massacre, but they may have been aware in advance that there was going to be a takeover because the enclaves were no longer capable of being kept. And the very fact of their knowledge in light of what happened may be an embarrassment that leads to a desire not to allow that detail out." The prosecutor in the forthcoming trial will set out to prove Karadzic's responsibility for the massacre of around 8,000 men and boys at Srebrenica on 11 July 1995. But will the trial deliver on its wider mandate - to air all the relevant facts so that the victims and their relatives receive the justice international law promises? Allegations Some 8,000 people were killed at Srebrenica The former Dutch Defence Minister, Joris Voorhoeve, who watched as his troops, Dutch peacekeepers, capitulated to the attacking Serbs would also like answers to questions which have haunted him for 14 years. Why were his calls for airstrikes the night before ignored? And why was there no action taken more than a month previously, when - according to Mr Voorhoeve - the Serbs intentions to attack were known? "I know from intelligence sources that there were already Serb decisions to take the three Eastern enclaves among which was Srebrenica. Those decisions were taken probably in May and June - two months before." Joris Voorhoeve further alleges that the international community knew the attack was coming. "Two security council members had knowledge that the attack was coming. I'm not saying they had knowledge the attack would be followed by mass murder. In any case they did not do anything with this knowledge." Dayton Agreement After Srebrenica fell the second UN designated safe area, Zepa, fell to the Serbs - its Muslim populations killed or forced to leave. The map was re-drawn and when a peace deal was signed at Dayton the Republika Srpska was created. The Bosnian Serbs were allowed to keep the spoils of the Karadzic war. The man who helped negotiate that peace deal was Richard Holbrooke, the then US envoy to Bosnia. On the 10th anniversary of the Srebrenica massacre, in 2005, he told a Bosnian reporter: "Srebrenica is a great tragedy which should not have been permitted to occur. But it did, and I tell you that I was under initial instructions to sacrifice Srebrenica, Gorazde and Zepa, and I felt that was wrong. I look forward to the day when Srebrenica is fully back in the hands of its original inhabitants who are Moslem.' When asked whether it was the town which was to be sacrificed or the population, he replied "both". Mr Holbrooke later said he "mis-spoke" - he had not meant to include Srebrenica or Zepa in what he had said. Newsnight has asked Mr Holbrooke for further clarification, but he has declined. Redacted documents So why did the European Union, Nato and the United Nations do nothing to prevent the worst massacre of civilians since World War II? Two weighty reports, by the Dutch government and the UN, examined the failures at Srebrenica. Both claimed they were hampered by the reluctance of governments to provide key documents citing national security. Dame Pauline Neville-Jones was political director at the Foreign Office at the time: "It's not something one regards as a great triumph for one's own efforts or western diplomacy generally, it's a source of grief. We did not get it right. That's clear. Holbrooke knows that too. Something very, very disastrous went very badly wrong, and there were many contributory factors." Dame Neville-Jones was Britain's lead negotiator at the Dayton accord Dame Neville-Jones says she was unaware of any advance intelligence warning of the attack, and does not believe there was a secret policy to allow the Serbs to re-draw the map sacrificing Srebrenica in order to end the war. "It was certainly not part of any British policy and I'm surprised at the implication it was part of American policy, which I doubt." Sir Geoffrey Nice believes the answers may lie in partly blacked out documents which he saw when prosecuting Slobodan Milosevic, but which the court in The Hague has ruled must remain secret. "All those interested in the topic need access to the best material and that's been denied them by Serbia in its calculated use of the Yugoslavian tribunals procedures to block production of documents, and then to avoid those documents being made available publicly." Without these documents in a separate court - the International Court of Justice (ICJ), the victims of Srebrenica and their relatives have failed to win compensation from the Serbian government for the crime. Secrecy continues to prevent the noblest of the aims of international justice - truth and restitution for the victims. Source: BBC News