July 2004

Defending War Crimes Cases in The Hague

By David E. Wilson

From May 2001 until December 2003, I was lead counsel in the defense of Dragan Obrenovic, a Bosnian Serb army officer, in a war crimes case filed in the International Criminal Tribunal for the former Yugoslavia (ICTY or Tribunal) in The Hague, the Netherlands. The charges were complicity in genocide, extermination, murder, and persecution. The case arose out of the Bosnian War of 1992-95, in which Bosnian Serb forces in July 1995 executed approximately 7,000 male Muslim prisoners after the fall of the U.N. enclave of Srebenica. My client was charged under theories of "aiding and abetting," "superior responsibility," and participating in a "joint criminal enterprise."

For brief but critical periods of several days and hours, Obrenovic, then a 32-year-old army major, had been the acting commander of a brigade in whose area of responsibility several thousand of those 7,000 executions had occurred. He was not charged with having participated in the shootings or with having ordered them. Under the theory of superior responsibility, an individual is legally responsible for any crimes committed by his subordinates of which he knew or should have known and which he failed to prevent, or for which he failed to punish those responsible. The allegations were that some members of his temporary command had guarded the prisoners in remote areas and later buried them in mass graves after they had been shot by members of other Serb units. Under the "joint criminal enterprise" principle, as under conspiracy law in the United States, one who "joins" such an endeavor is responsible for all "foreseeable" crimes committed by that enterprise, whether or not he personally participated in them or even knew of their commission.

The 7,000 executions that followed the fall of Srebenica are generally regarded as the worst war crimes in Europe since World War II. Europeans, in particular, are aghast that "Srebenica" could occur in Europe only 50 years after the end of the Holocaust, and that U.N. forces present on the ground in Bosnia failed to prevent its occurrence. In 2002, the Dutch government fell when its own commission's report placed substantial blame for the massacres on the Dutch battalion primarily responsible in 1995 for protecting the enclave. The entire Bosnian Serb chain of command up to and including the wartime chief of the army (Ratko Mladic) and the president of the Serbian entity in Bosnia (Radovan Karadzic) stand indicted for the murders, as does Slobodan Milosevic, president of adjoining Serbia-Montenegro. Most of those directly involved in the murders are fugitives, and Karadzic and Mladic are the "most wanted" of the Tribunal's indictees.

The 1991-92 breakup of the 70-year-old nation of Yugoslavia was accompanied and followed by a resurgence of the religious strife that had plagued the Balkans for centuries. During those centuries, Roman Catholic Croats, Orthodox Serbs, and Muslims had engaged in bouts of bloodletting on a number of occasions. As Croatia left the federal union of Yugoslavia in 1992, violent struggles broke out between its Croats and Serbs. This was quickly followed by an even bloodier conflict among Serbs, Muslims, and Croats in Bosnia, the most ethnically diverse component of Yugoslavia, which lasted until the Dayton Peace Accords in December 1995. Bosnia became a "country" divided into a Serbian entity (the Republika Srpska) and a federation of Muslims and Croats (the Federation), each with its own government and its own army. As in Croatia, the federal government in Belgrade, headed by Milosevic, openly sided with the Serbs in Bosnia. Muslim authorities in Bosnia welcomed foreign Muslims, primarily Arabs, who came to participate in a jihad dedicated to preserving Bosnia as a Muslim foothold in Europe. War crimes were committed by all factions. Although the majority of those indicted at The Hague are Serbs, the indictees also include a substantial number of Croats and Muslims. (My client was simultaneously a defendant for Srebenica crimes and a prosecution witness in an ICTY investigation into the massacre by Muslims of approximately 90 Serb prisoners from his small command, two years before Srebenica.)

I became involved in my ICTY case by referral from a friend, a fellow former federal prosecutor with whom I had once tried a case. He was contacted by the accused, had a conflict of interest, and recommended me. In our first meeting in the U.N. Detention Unit in The Hague (an old Gestapo prison in World War II), I learned that Obrenovic (then 39 and a lieutenant colonel) was a native of Bosnia, a Serb, and a professional soldier who had graduated at the top of his class at the Yugoslav Military Academy. He explained to me that he wanted a U.S. or British trial lawyer, preferably one with military experience. As a former Army Judge Advocate General's Corps lawyer with civilian experience as a prosecutor, judge, and defense attorney, I fit his objective criteria. In a series of conversations through interpreters over several days, we established the necessary feelings of mutual comfort or fit. He satisfied himself that I had the qualifications and experience he was seeking, and that I was not dissuaded from defending him by the enormity of the crimes in the indictment. I satisfied myself that he did not expect me to pursue a "political" defense attacking the legitimacy of the Tribunal or seeking to justify the killings of unarmed prisoners, or any defense other than a straightforward attempt to dismantle the prosecution's case.

He requested that I consider as my co-counsel a Yugoslav lawyer, a former Belgrade judge who had been fired by Milosevic for refusing to toe the party line. Thinking that any judge fired by Milosevic could not be all bad, I agreed to interview the lawyer, Dusan Slijepcevic, who flew to The Hague. After two hours of our interviewing each other, he agreed to be co-counsel. Laura Zeman of Stoel Rives, who had clerked for me when I was a U.S. magistrate judge, agreed to help part-time as a legal assistant. Stephen Karganovic, a multilingual interpreter from Seattle, became our interpreter/translator and case manager. We hired an investigator from Bosnia, and augmented our forces with part-time volunteers from the U.W. School of Law community. Having formed the defense team, we began Obrenovic's defense.

The Tribunal was created by the U.N. Security Council in 1993 to try grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity committed in the then rapidly disintegrating Yugoslavia. Collectively, these categories of crimes are usually referred to as war crimes. Situated in The Hague, 45 minutes by train from Amsterdam, the ICTY is one of several ad hoc tribunals created or sponsored by the United Nations to try crimes against humanity and other war crimes committed in the world's trouble spots at the end of the 20th century. Other tribunals, using several models, were established in Rwanda, East Timor, and Sierra Leone. The ICTY and its sister tribunals are presumably both the first and the last of their breed. The new International Criminal Court (ICC) in The Hague came into being on July 1, 2002, and has jurisdiction over most such allegations arising anywhere in the world after that date. (The United States has chosen not to accept the jurisdiction of the ICC, or to participate in it.)

The United States played a key role in the formation of the Tribunal, donating financial support, the services of a number of experienced prosecutors, and a multimillion-dollar computer system. Judges and lawyers from the United States have played leading roles in its work. Two of the presidents of the ICTY during its short life have been from the United States: Gabrielle Kirk McDonald (1997-99), a former U.S. district judge from Texas, and Theodor Meron (2002-present), a distinguished professor of international law from New York University who is himself a survivor of the Holocaust. U.S. prosecutors have had prominent roles in most of the more important cases at the ICTY. And U.S. lawyers are well represented in the defense bar, whose organization is the Associated Defense Counsel for the International Criminal Tribunal for the former Yugoslavia (ADC-ICTY). The ADC-ICTY's first president was from the United States.

In creating the ICTY, the U.N. Security Council enacted a statute defining specific crimes, and authorized rules of evidence and procedure for use before the Tribunal. The operating tenets of the ICTY reflect a blending of principles from the world's common-law or "adversarial" legal systems, and from its civil-law or "inquisitorial" systems. (Defense attorneys at the ICTY joke that the drafters took those parts of the common-law system favorable to prosecutors, and combined them with those parts of the civil-law system favorable to prosecutors.) For judicial precedents, the ICTY looks to its own rulings and to prior rulings by other international tribunals such as that at Nuremberg, and finally to national courts' opinions in related areas. Although the ICTY is developing a substantial body of case law through the rulings of its trial and appellate chambers, its jurisprudence remains one in which there are many unanswered questions. Thus attorneys appearing there have a unique opportunity to influence the development of international criminal law. ICTY precedents are certain to play an important role in the jurisprudence of the ICC.

The bench of the ICTY consists of 16 judges, who must come from 16 different countries. Judges are elected by the U.N. General Assembly for four-year periods, and can be re-elected. Presidents are elected by their fellow judges for two-year terms, and can be re-elected. Trials are held before three-judge "Trial Chambers." There are no juries at the ICTY. Appeals are to a seven-judge panel known as the "Appeals Chamber," composed of judges from both the ICTY and its Rwanda counterpart. The Appeals Chamber serves as an appellate court for both tribunals. In addition to the permanent judges of the ICTY, the General Assembly has elected ad litem judges to sit in the Trial Chambers on individual cases, as needed.

The administrative staff for the Tribunal is housed in a branch called the Registry. The third branch of the ICTY is the Office of the Prosecutor, whose chief prosecutor is appointed by the U.N. Secretary General. The current prosecutor is from Switzerland, her immediate predecessor was from Canada, and the first prosecutor was from South Africa. The Office of the Prosecutor's trial attorneys come from a number of countries.

The ICTY created a system of providing legal representation to indigent indictees through private attorneys compensated at an hourly rate. The system is similar to that by which private practitioners are appointed as defense counsel in federal courts in the United States under the Criminal Justice Act (CJA). Unlike in the CJA system, however, in the ICTY the accused is allowed to choose his counsel from the approved list, rather than the court making that choice for him.

In practice, most accuseds are military officers or civil servants from Europe's poorest corner, and no one charged before the ICTY has been able to afford to mount a defense through private means. The indictments are complex and typically require extensive preparation over two or more years preceding trial. Trials in turn are prolonged, with the average trial lasting between one and two years. (The trial of Milosevic has been ongoing for two years, and is expected to last another two years.) Based upon the complexity of the case, the defense teams are given a case budget for the pretrial phase of the case, for the trial phase, and for the almost inevitable appeal. (There is no "double jeopardy" protection for an accused at the ICTY. Since either the accused or the prosecution can appeal the verdict and/or the sentence, the only cases likely to escape an appellate review are those in which an accused has pleaded guilty and has received an agreed-upon sentence.)

The Tribunal strives to present an international appearance. It currently has more than 1,200 staff members from 84 countries. (Facts and statistics about the ICTY are available at www.un.org/icty.) The international character of the proceedings is most clearly on public display in the Tribunal's three courtrooms. Any number of nations will be represented in a proceeding, with three trial judges required to be from three different legal systems, and prosecutors, defense attorneys, and courtroom staff coming from still other countries. The judges wear red-and-black robes. The attorneys also wear robes. Those attorneys who come from countries in which robes are traditional for attorneys wear their national robes. (My favorite outfits were those worn by the British barristers, most of whom appeared properly wigged. In a class by himself, a Swiss lawyer's ensemble included a fur-trimmed cape.) Attorneys whose countries have no such traditions wear the black robes and white bibs of Dutch lawyers. The "Defence Attorneys' Lounge" (a spelling concession to the British) usually resembled an international bar convention, with various courtroom garb and conversations in several languages ongoing at any time.

All participants in the proceedings wear headphones that deliver simultaneous translations into English and French (the official languages of the United Nations and the Tribunal), "Bosnian-Croatian-Serbian" (a common language for the benefit of the accuseds and witnesses), and whatever other languages are necessary in order for the participants to follow the proceeding. Although the interpreters/translators are generally very good, the necessity of interpreting/translating everything that occurs in the courtroom slows down the pace of the proceedings, as it does in any courtroom.

Not surprisingly, the attempt by the Tribunal's creators to merge the common-law systems and the civil systems has led to a hybrid system in which neither camp is completely comfortable. In my view, the practitioners from the adversarial systems found in the United States and the British Commonwealth have an easier time adapting than do lawyers from inquisitorial systems. Certain core concepts of the adversarial system are firmly embedded in the Tribunal, albeit with bows to the civil system. For civil-system lawyers who are not used to such practices as extensive cross-examination and the general adversarial concepts that common-law attorneys take for granted, major adjustments in techniques are required. (One does not, for example, master the art of cross-examination in a weekend.) Some civil-law attorneys quickly adapt, but others have told me that they never feel totally at ease at the Tribunal, even after more than one case. For the common-law attorneys, on the other hand, the civil-law concepts that crop up from time to time, such as the more active role traditionally played by presiding judges, usually do so in forms and contexts that permit time to recognize them, learn about them, and formulate a plan for dealing with them.

The procedural and evidentiary rules employed in the Tribunal are premised on the theory that the fact-finders are all professional judges. By U.S. standards, the rules of evidence are extremely flexible. As examples: hearsay is admissible, testimony from previous proceedings in which your client was not a party is admissible, and out-of-court statements by nontestifying codefendants that implicate your client are admissible. In general, evidence offered will be admitted, with objections and arguments going to its weight and not its admissibility.

The composition of our Trial Chamber changed several times in the two years preceding the start of the trial. Each change of judges had an effect on our prospects — sometimes for the better, sometimes not. Our first chief judge on the trial panel was Australian, the next German, and the last Chinese. When the trial finally began, the panel consisted of a chief judge from China, and two ad litem judges from the Ukraine and Argentina. All three spoke English in the courtroom. (Our two primary prosecutors were from the United States and Switzerland. The eight defense attorneys representing the four defendants ultimately charged in our case included three Bosnians; three Americans; a German; and my co-counsel, a "Yugoslav," who in 2003 became officially a "Serbian," when what remained of Yugoslavia finally expired.)

Although exhausting, our defense effort in the case turned out to be a relatively abbreviated one. Soon after the trial began, after two years of extensive preparation, a codefendant and then my client elected to plead guilty pursuant to a plea bargain. Each admitted guilt as to the crime of "persecution," agreed to cooperate in the prosecution of others, and in return received a nonbinding recommendation by the prosecutors of a sentence in the 15- to 20-year range. Although we had a triable case, my client chose not to roll the dice with regard to charges as to which the prosecutor had to prove only that he "knew or should have known" about the crimes of his subordinates, and failed to prevent the crimes or punish the subordinates. He (and I) believed that if Obrenovic were convicted of all the charges, including complicity in genocide, the probable sentence would have been much more than that recommended. (The maximum sentence at the ICTY is life imprisonment; there is no death penalty. The only previous sentence of a Srebenica defendant, also a "superior responsibility" case, had been 46 years.) The decision to plead guilty was a difficult choice, but one rationally arrived at after exploring and considering all options.

Plea bargaining is a practice virtually unknown in the civil-law systems of the world, and some ICTY judges are clearly uncomfortable with it. It is also a risky maneuver for accuseds at the ICTY, since the prosecution's sentencing recommendation is not binding on the judges, and they are free to accept it or to impose a more severe sentence. In our case, after a sentencing hearing in which he was aided immensely by several courageous Muslim witnesses who testified as to his having saved their lives during the war, my client was sentenced to 17 years, which he will serve in a Scandinavian prison. With time off for good behavior and credit for time served in pretrial confinement, he can hope to be released in eight and one-half years. For him, the plea bargain worked. His sentence was within the recommended range. For his codefendant, it did not work. He pleaded guilty with the same recommendation of 15 to 20 years, but received 27 years. The codefendant is appealing his sentence, a process that carries its own risk, since the Appeals Chamber can increase his sentence, as it has done in at least one case. The other two codefendants in our case are still in trial.

I left The Hague with mixed feelings about the experience. Overall, it was a positive one professionally and personally. The case was fascinating and challenging. The participation in the process of criminal law on the international scale called upon all of my life's experiences, and offered more than enough challenge, variety, travel, and adventure. I was impressed by many of the individuals at the Tribunal, who worked hard, did the very best job they could, and clearly recognized that the work they were doing was important to the development of international law. A number of them have gone on to permanent employment with the new ICC.

I liked, respected, and felt great sympathy for my client, whom I came to know throughout this intense experience as a brave, intelligent, and honorable man, who plainly had the misfortune to be in the wrong place at the wrong time. With no foreknowledge of what was to happen at Srebenica, he voluntarily left the hospital where he was recovering from combat wounds, days before the murders, because his unit was short of officers. Had he followed his doctor's recommendations instead, he would have remained in the hospital at the time of the executions near Srebenica, and he would not have been charged. Hemingway defined courage as "grace under pressure." He accepted his fate with far more grace than I could have managed had our roles been reversed.

I liked and respected my co-counsel, who brought to the case a very different approach from my Anglo-Saxon one. I came to know him as a man of complete integrity and goodwill. Having had his 25-year judicial career ended by a vengeful Milosevic, he shed no tears as we watched his former president arrive in The Hague in chains. But he did not dwell on past wrongs to himself. He is back in Belgrade practicing law now, and devoting large portions of his time to unpaid service on an anticorruption commission. With men and women like him attempting to rebuild their shattered country, there is hope for the former Yugoslavia.

I enjoyed living in The Hague, a cosmopolitan and friendly city where English is a second language. I liked Serbia and Bosnia, to which I traveled repeatedly. The former Yugoslavia is a breathtakingly beautiful land, but a devastated one both economically and politically. Despite the scars of many wars and conflicts, the people there were always kind and hospitable to me, no matter what their religious beliefs.

On the negative side, I believed that the cases before the ICTY took too long for resolution. There are, in my view, many reasons for this, some probably unavoidable, some not. Mostly unavoidable are many logistical problems flowing from trying complex cases more than a thousand miles from the scenes of the crimes. Avoidable, however, are occasional overchargings by prosecutors, unjustified delays caused by some defense counsel, and, sometimes, institutional inefficiency. When I began my case in spring 2001, my client was a sole defendant, newly arrested, and the estimation was that his trial would begin in May 2002 and last three months. By the time the trial actually began, there were four defendants, it was May 2003, and the prosecution's case alone was expected to last 20 months. Had we contested the case, the entire process from my appointment to verdict would have taken approximately four years. And then there would have been an appeal. In these respects the case was fairly typical.

I found the inadequacy of the resources allocated to the defense under the ICTY rules to be a troubling factor. The problem worsened while I was there, due to ICTY budget cuts and a shrinking U.S. dollar, in which defense attorneys are paid. Having been a prosecutor for many years, I know that very few defendants can match the prosecution in resources, in any venue. In my opinion, however, the mismatch in the Tribunal is alarming, growing worse, and approaching a condition that is perilous to the overall mission of the Tribunal: to fairly affix blame for some of the world's worst crimes. The cases filed there are almost always exceedingly complex, both factually and legally. Defending against them requires a long and labor-intensive effort. Defending war crimes cases should not and will never be a path to riches for defense lawyers. But fundamental fairness to the people charged in such courts requires that they be provided with adequate resources to defend themselves, lest the proceedings be viewed as mere "victor's summary justice." If the international community is unwilling or unable to ensure that such proceedings are fair in this regard, then the decision to initiate such trials should be reconsidered.

As to the judges before whom we appeared, I found the judges who were on the panel at the time our trial began to be fair, hard-working, and considerate of everyone in the courtroom. But that was not true of every judge. One judge whom I observed on a number of occasions would have gotten very different ratings in two of the above three categories, and the judicial conduct I observed in that courtroom would have provided ammunition for the arguments of those who oppose U.S. membership in the ICC.

Would I take another case in the ICTY? Other commitments probably preclude that for now. But for anyone offered an opportunity to try a case in The Hague who has the interest and who can afford the time and other costs of the undertaking, it can be a rewarding experience unlikely to be equaled elsewhere.

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David E. "Gene" Wilson practices with McKay Chadwell in Seattle and served as a U.S. magistrate judge in the Western District of Washington from 1992 to 2000.

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