Lawyering Techniques Called into Question in Srebrenica Trial
Tuesday, 15 July, 2003
Lawyering Techniques Called into Question in Srebrenica Trial
Tuesday, 15 July, 2003
This warning came after a week during which defense lawyers made a number of insinuations about the personal character of the witnesses who appeared – one Bosnian Muslim survivor and three members of the Dutch military. The testimony of Nesib Mandzic – a schoolteacher in Srebrenica at the time of the massacres - was allowed to remain public after the reversal of a last-minute court order protecting his identity. Defense counsel Michael Karnavas (for Blagojevic), and Cynthia Sinatra and Miodrag Stojanovic (for co-accused Dragan Jokic) repeatedly questioned each witness about Bosnian Muslim military offensives against Serbs from within the enclave. They also frequently suggested that the battalion of Dutch UN troops (Dutch Bat), whose role it was to demilitarize the area and protect civilians, shared some responsibility for facilitating the campaign of ethnic cleansing and massacre.
Part of the defense strategy will be to attempt to show that the initial Bosnian Serb takeover of Srebrenica was a legitimate military objective provoked by armed Muslim units, and was not therefore a violation of international law. The idea – at least for the Blagojevic defense - is to show that subsequent atrocities cannot automatically be linked to the participation of the Bratunac Brigade of the Bosnian Serb army (VRS) during the takeover. This is a limited strategy, since the Prosecution will seek to prove the Bratunac Brigade’s participation in the crimes listed in the indictment, quite apart from the legality of the initial offensive. The Prosecution has also never challenged the presence of armed Muslim factions within the demilitarized zone, and there is similarly unchallenged evidence that these factions committed some crimes. Of course, such activities can in no way justify – legally or morally - the mass executions of Bosnian Muslim refugees. Judge Liu felt it necessary to remind counsel of this fact in open court.
Karnavas has begun to paint a picture of Momir Nikolic – the co-Accused who has pleaded guilty and who was subordinated to Blagojevic in the Bratunac Brigade- as an arrogant man who acted like a commander, establishing that it was Nikolic who liaised with the Dutch Bat troops, not Blagojevic. This lays the groundwork for an argument that Nikolic acted in his own capacity and outside the chain of command. This is a risky defense strategy, since Nikolic himself will be called as a Prosecution witness later in the trial. If he says that he reported his activities to Blagojevic, and if the Court finds him credible, then Karnavas’s work will be undone.
A less comprehensible defense strategy emerged during Ms. Sinatra’s questioning of Major Pieter Boering, member of the Dutch Bat, on July 10. She referred to an agreement between VRS Chief of Staff General Ratko Mladic (indicted, at large) and Commander of the Dutch Bat Colonel Thomas Karremans, agreeing that the U.N. would provide fuel for the buses and trucks used by the Bosnian Serb forces to transport the refugees. Ms. Sinatra asked Boering to agree “that the tragedy could have been avoided” if U.N. provision of fuel and military air cover hadn’t been “too little too late.” Judge Liu instructed her to withdraw the hypothetical question. As part of his message to the lawyers on Friday, he reminded the courtroom that the role of this trial is to determine “only whether the acts or omissions of these two individuals [Blagojevic and Jokic] warrant a judgment of guilty or not guilty.” Implicitly, it doesn’t matter what the U.N. troops could or should have done. The tragedy would have been avoided in the end if orders to shoot thousands of unarmed civilians had not been given and carried out.
Concluding his advice session, Judge Liu drew attention to the differences between this Tribunal and some domestic jurisdictions where lawyers must convince juries of a defendant’s guilt or innocence. He asked the lawyers to remember that they are trying the case before professional judges, and to consider this fact in shaping “the substance but also the style of examination.” Given the performances of the lawyers this week, this comment seemed particularly directed at Mr. Karnavas, whose cross-examination techniques include the badgering of witnesses who give testimony contrary to what he wishes to hear, and posing questions repeatedly in order to drive home an answer.
Major Boering was subjected to one of the most extreme examples of this tactic. Karnavas attempted to show that at least one of three meetings between General Mladic and Colonel Karremans on July 11 and 12, 1995 – during which the fate of the Srebrenica refugees was discussed - was requested by the U.N. forces and not by Mladic, as has been widely reported. It is not a major point, and like the question of Dutch Bat participation in loading the buses and trucks with refugees, it has little bearing on why the executions ultimately occurred and at whose command. Karnavas’s purpose in questioning this point – which he said would become clear over the course of the trial - was perhaps to introduce the idea that the transport of the refugees was initiated by the UN and not by the Bosnian Serbs. This interpretation of events would lend credence to the defense theory that the transport of refugees from Srebrenica was an evacuation rather than a forced deportation.
When Boering insisted that Mladic had called the meeting in question, Karnavas seemed to lose his temper, and did not abandon the point. Judge Liu asked Karnavas to explain the relevance of his continued questioning, to which Karnavas replied: “if the Court is willing to take judicial notice of the fact that Karremans requested the meeting, then I’ll move on. If not, I’m going to start impeaching this witness unless he starts answering the questions accurately.” This is an odd statement. To “impeach” a witness means to question his or her reliability, either through the introduction of evidence or by cross-examination. If a court takes “judicial notice” of a fact, it means that it accepts the fact as a given, and no evidence need be presented to establish it. According to Tribunal jurisprudence, the Court should take judicial notice of facts that are commonly or universally known, and may take judicial notice of facts that have been adjudicated in other trials at the Tribunal.
Whether or not Karremans or Mladic requested the meeting at issue in Boering’s testimony is a contested point about which evidence must be presented and weighed by the Court. By definition, it cannot be “judicially noticed.” A legitimate cross-examination in this situation would introduce evidence that the witness is mistaken, which Karnavas accomplished by playing a video that shows Mladic asking why Karremans wanted to meet. The lawyer cannot force a witness to change his testimony by simply repeating the question, and it is for the court to decide based on the evidence whether the witness was in fact mistaken. Judge Liu’s reminder about the absence of a jury was directed at precisely this type of lawyering; the judges are trained to weigh evidence, and do not need Karnavas to repeatedly and fruitlessly question a witness or attack his character when he could simply introduce contrary evidence.
The events of the week give rise to difficult questions about the proper role of defense counsel in a trial about events that, as the Krstic Court wrote, “have become well known to the world.” Neither Blagojevic’s nor Jokic’s defense team contests that atrocities were committed by Bosnian Serbs after the fall of Srebrenica. Rather, the defense strategies center around the idea that neither defendant was in a position to be informed about the atrocities at the time. Furthermore, the witnesses who have appeared in court so far are considered “background” witnesses, meaning that they will simply establish the factual background of the situation as a whole, leaving it to later witnesses to link the defendants with the crimes charged. Given these facts, the breadth of defense cross-examination of these preliminary background witnesses is somewhat surprising. Notably, the Prosecution has not felt it necessary to conduct re-direct examination of any of the witnesses so far, evidently feeling that the testimony either hasn’t been successfully challenged by the defense, or that the parts of the testimony successfully challenged are inessential to the case.
In fact, the Prosecution initially had hoped to introduce the evidence of one of the witnesses - Paul Groenewegen of Dutch Bat - by “stipulation of the parties,” meaning that both sides would simply agree to accept his testimony as evidence, without cross-examination. Groenewegen, who was a 19-year-old private at the time, gave evidence about the atmosphere of chaos and fear among the refugees, about the separation of men and boys from the others, and about a killing he witnessed. Defense lawyers challenged his descriptions of refugees being beaten and insulted as they were loaded onto the trucks and buses, descriptions similar to those of every other witness who appeared this week.
Lawyers are of course ethically required to vigorously defend the interests of their clients. Criminal defense lawyers also must present their case according to the defendant’s wishes, within the bounds of the law and the lawyer’s best judgment. There is a thin line between vigorous representation and the unnecessary questioning of witnesses about peripheral evidence. Given the Trial Chamber’s advice, the lawyers in this case may have crossed that line, and their performance will be closely watched next week as massacre survivors begin to testify.
