High Crimes, High Drama: A Preview of the Karadzic Trial
October 29 2008

Staff-prepared summary of the seminar with Michael P. Scharf, Professor of Law and Director of the Frederick K. Cox International Law Center, Case Western Reserve University School of Law

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was supported by the United States as a policy compromise in 1993 between those who sought to make a bold statement against the nationalist violence in the region and those who opposed military intervention. Like the Nuremberg trials that followed WWII, it was hoped that the ICTY would help the countries of the former Yugoslavia find a peaceful, judicial resolution to the gross human rights violations endured by the people during the wars of the 1990s, and end the cycle of grievance and retaliation.

Although the court initially experienced difficulty exercising its authority and moving beyond low-profile indictments, international actors were eventually compelled to unite behind the ICTY and, through the use of various levers (such as withholding World Bank loans and stalling progress in the European Union accession process) the former Yugoslav countries began to take the ICTY more seriously. Over time, the ICTY became a model for international intervention in other regions, and similar courts were established to respond to genocide in Rwanda, East Timor and Sierra Leone.

Michael Scharf offered his analysis of the ICTY, based on his careful study of the court for more than a decade. While nearly as anticipated as Slobodan Milosevic's arrest, Scharf pointed out that the recent arrest of Radovan Karadzic was markedly different in several ways. Milosevic was indicted during NATO's 1999 bombing of Serbia and Prime Minister Zoran Dzindzic authorized his transfer to The Hague in opposition to Serbian law and a Supreme Court ruling. By contrast, Karadzic's extradition followed a ruling by a domestic tribunal which permitted his transfer, and was conducted under much less contentious circumstances than Milosevic's handover.

Like Milosevic, Karadzic intends to represent himself, although unlike Milosevic, he is not trained in law. Scharf explained that this is a common strategy in a case of this nature: since the indictee does not believe that he has any chance to be exonerated, he does not feel compelled to follow established judicial procedure. By representing himself, Milosevic knew that he could address the court throughout the proceedings, which were televised, rather than wait until the closing statements, when it is customary for the defendant to speak. Like Milosevic, it is likely that Karadzic will use the trial as a public relations campaign to help provoke sympathy for himself and weave a narrative of his own victimization at the hands of the West.

In an effort to limit expectations and tame the proceedings, Scharf recommended that, if the court must continue allowing defendants the right of self-representation, the judges must create mechanisms by which to rein them in when they disrupt the trial. Most importantly, Scharf suggested that the ICTY adopt a better public outreach strategy. He recommended that a trusted, Serbian journalist be enlisted to explain the proceedings in an even-handed manner, in an effort to help local populations digest the chaotic and confusing trial, which is scheduled to begin on January 20, 2009.

Scharf cited recent qualitative research that shows that, to a certain degree, Milosevic and other ICTY indictees have succeeded in boosting domestic sympathy for themselves as victims and challenging the validity of the court. Like Germans in the aftermath of the Nuremberg trails, Serbs tend not to believe that the charges against ICTY indictees are valid or that the ICTY is legitimate. Rather than building peace, Scharf asserted that post-conflict trials are by nature divisive. Nevertheless, after 30 years, the attitudes of Germans have changed dramatically, and Scharf predicts that a similar shift will occur over time in the former Yugoslav countries as well.

Martin Sletzinger, Director, East European Studies, 202-691-4000