[NYC-L] War Crimes Plea Bargains

[Jeton Ademaj]

http://www.nytimes.com/2003/11/18/international/europe/18TRIB.html?pagewanted=all&position=

November 18, 2003
Plea Deals Being Used to Clear Balkan War Tribunal's Docket
By MARLISE SIMONS

HE HAGUE, Nov. 17 — The United Nations tribunal for the war crimes in the 
Balkans in the 1990's is suddenly rushing through its backlog of cases, 
adopting a disputed strategy to promote plea bargains with much reduced 
sentences in exchange for cooperation and guilty pleas.

The abrupt shift after seven years of methodical if plodding trials came in 
response to intense pressure from the United Nations Security Council and 
particularly the Bush administration, which pays almost a quarter of the 
tribunal's current $120 million annual budget and has little sympathy for 
such international courts. The Council has demanded that the court end all 
investigations next year and complete its trials by 2008.

"It's been a very strange six months," said one high court official. "The 
whole attitude has changed, with procedures speeding up, a lot of guilty 
pleas and trials halted as a result."

Since May this year, eight defendants, a record number, have accepted deals 
with the prosecution and pleaded guilty to various crimes related to the 
wars that broke up Yugoslavia.

Some have already received sentences far lighter than those handed down in 
the past for similar crimes, prompting a torrent of criticism from victims 
groups. Proponents of the plea bargaining, by contrast, point to the 
benefits of the new strategy, like the recent testimony that disclosed the 
detailed Bosnian Serb planning that went into the cold-blooded execution of 
some 7,000 Muslims at Srebrenica in 1995, the greatest massacre of the 
Yugoslav wars.

Lawyers also said the plea-bargaining option was now a topic of keen 
interest and debate at the United Nations jail here, where the former 
Serbian leader Slobodan Milosevic is among the 51 inmates.

The plea bargaining, along with a series of changes in the rules, is part of 
the tribunal's exit strategy, which is being actively promoted by 
Pierre-Richard Prosper, the Bush administration's ambassador for war crimes 
issues.

The strategy calls for focusing on the most senior of those suspected of 
being war criminals, sending lower-level cases back to courts in the Balkans 
and speeding up proceedings by such steps as limiting the scope of 
prosecution evidence and allowing written testimony.

The Security Council even removed the chief prosecutor, Carla Del Ponte, as 
head of a similar war crimes tribunal for Rwanda, ostensibly because that 
would allow her to devote her full attention to the Balkans court.

Some legal experts and judges are troubled, saying that serious charges are 
being dropped and deals are becoming too favorable. Some of the court's most 
experienced officers have even warned that in the rush to clear the docket, 
rules are being adjusted in ways that could undermine the tribunal's 
credibility.

Judge David Hunt, who previously served as a supreme court justice in 
Australia and is now an appeals judge here, recently vented his frustrations 
in an uncommonly strong dissent. He argued that the tribunal would not be 
judged by the number of its convictions or the speed at which it completed 
its mandate, "but by the fairness of its trials."

The judge objected strongly to several recent appeals decisions because, he 
said, they favored the prosecution rather than the rights of the accused. 
Those decisions, he warned, "will leave a spreading stain on this tribunal's 
reputation."

Such language is unusual in the polite quarters of the court's 16 permanent 
judges, where in-house squabbles rarely leak out. But Judge Hunt, who is 
retiring in November, told colleagues he felt obliged to warn against an 
unfortunate "new trend" in which some judges seemed eager to assist the 
prosecution in order to speed up cases.

One recent case that raised eyebrows came on Oct. 28 when Predrag Banovic, a 
Bosnian Serb who was a guard at the notorious Keraterm prison camp, pleaded 
guilty to taking part in the killing of five inmates and in beating 27 
others. He was sentenced to eight years, which may eventually be reduced to 
six for good behavior. Relatives of camp victims were infuriated. In similar 
cases earlier, low-level guards who had not pleaded guilty were given 
20-year sentences.

One of the three judges on the panel, Patrick Robinson, also found the 
sentence too light, saying in a dissent that the crimes to which Mr. Banovic 
had confessed warranted "a longer term of imprisonment." But the verdict 
stood. As part of the agreement, no side will appeal.

Prosecutors, however, say the new policy is a success, saving the court 
costly trials that have taken a year or more on average. They say that as 
part of most deals, defendants have agreed to cooperate and some are already 
providing vital new evidence, as in the case of the two Bosnian Serb 
officers who pleaded guilty to playing a role in the Srebrenica massacre and 
provided the first high-level insiders' account of how and by whom it was 
planned.

Those proponents also argue that the confessions make the continuing denials 
and revisionism about the war more difficult and the tribunal more 
acceptable in Serbia and Croatia, where many people regard the court as 
biased.

The plea-bargaining strategy was proposed by American lawyers on the 
prosecution staff. "Facilitating guilty pleas certainly makes sense from a 
management standpoint," said a senior prosecution official, asking not to be 
identified. "It's a reasonable solution to a difficult problem, how to get 
all our accused tried in the time available."

Plea bargaining is familiar in the American, British, Canadian and other 
justice systems, but those from other legal traditions took some persuading 
of the value of the new strategy, the official said. Tribunal judges are not 
bound by the sentence that the prosecution and defense propose as part of a 
deal, but no chamber has yet gone outside the suggested range. Since 1996, 
there have been 16 guilty pleas at the tribunal, 8 of them since May. 
Defense lawyers say they expect quite a few more. One defense counsel said 
he knew of several cases coming up for trial in which the lawyers now 
preferred to seek a deal.

"We're seeing a snowball effect," he said.

Judge Theodor Meron, the tribunal president, who is from the United States, 
insisted in an interview that the court's proceedings met every standard of 
fairness. He said the recent changes in the rules and strategy were "part of 
the court's coming of age." The court is now running at full steam, he said, 
but must also prepare to end its work in a "fair and orderly fashion."

An international tribunal cannot try all the defendants, Judge Meron 
continued. "We must now focus on the gravest crimes and on the leaders," he 
said.

"We could not do this in the beginning," he added, referring to the years 
when only a few, low-level defendants were delivered to the court.

Now, more than 40 people have been tried, and 27 others are preparing for 
trial. Four people are on trial at the moment, including Mr. Milosevic, 
whose proceedings move in fits and starts because of his poor health or 
complaints of fatigue. An additional 17 people who have been indicted remain 
fugitives, chief among them the Bosnian Serb wartime leaders Radovan 
Karadzic and Gen. Ratko Mladic.

Mrs. Del Ponte recently told the Security Council that given the demand to 
focus on the most senior perpetrators, she had suspended the investigations 
of 62 people. But she said she planned to issue new indictments against up 
to 30 new, senior suspects before the end of 2004, when investigations must 
close.

One lawyer at the court raised the question of whether the workload and the 
rush to complete it would override the interest of justice. "It never 
should," he said. "It's a dilemma for any court, but people are wondering if 
it is happening here."

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