WHAT ARE THE TRIBUNAL AND ICMP TRYING TO HIDE?

Stephen Karganovic

(The comment below has provoked lively responses. One of them is by Canadian barrister Christopher Black. He points out some fundamental flaws in the strategy followed by the Karadžić defence. By acquiescing to the rules for the admission of evidence being turned on their head, Mr. Black seems to be suggesting that Dr. Karadžić is, in effect, acting as the Tribunal’s enabler in subverting the proper administration of justice, and all to his own ultimate detriment, of course. Here is Mr. Black’s view of the DNA affair.

“I fail to understand why the Karadzic team does not make a demand for full disclosure instead of piecemeal demands and why they do not hold press conferences to complain about what is going on. Further, having some “expert” produce a summary of the conclusions of these DNA labs is nothing less than hearsay in the absence of the hard evidence.

“If the prosecution claims to have DNA of a claimed missing person then to prove that person was killed they need to call witnesses to say so. And even if they can do that then they still have to prove the unlawful execution of the person to whom the DNA belongs.

“They also need to prove the provenance of the DNA – that is, does it come from the remains found in relevant locations or does it come from a relative or the live “missing” person? There must be a continuous secure chain of evidence. The ICTY purports to say none of that is relevant. If I was on that team – if I was Karadzic – I would walk out of the
trial. Why do they sit there taking this crap?” Mr. Black’s analysis appears legally impeccable. Our comment follows.)

Procedural monkey business usually is an infallible sign that something is not right with the evidence. The illustration that follows derives from the current practice of the Hague Tribunal. It has to do with the defendant’s right of access to the most significant material evidence used against him in relation to Srebrenica charges. It concerns also the important issue of the denial to the accused of the right to independently test the evidence used against him. These circumstances raise a legitimate question: is there anything resembling equality of arms between the parties in dispute before ICTY, the Prosecution and the Defence? But that poses some broader questions as well. Is there a shred of professional integrity remaining in the Hague Tribunal? Is there a distinction between the Prosecution and the Chamber, or are those bodies indissolubly conjoined and act in unison, as a sort of joint enterprise aiming to achieve essentially identical objectives to the detriment of the Accused?

First, we should briefly demarcate the parameters of the analysis that follows. For almost three years an intense dispute has been going on at the trial of Radovan Karadžić concerning the evidentiary use and possibility of testing of DNA samples. Besides autopsy reports, these samples have served as the Prosecution’s key forensic evidence in the last three Srebrenica trials. Forensic material proffered in one form or another has been the principal foundation for the Prosecution’s claim that over 6,000 persons who have disappeared from the Srebrenica enclave have been successfully identified. The identification of thousands of individuals regarded as missing, and their reclassification as execution victims which implicitly and automatically follows, is the principal material basis for the claim that what happened in Srebrenica was genocide.

That is also the fundamental reason why this data, which refers to the condition of exhumed remains and identification of missing persons – if they are used in court as evidence of genocide imputable to the Accused Karadžić – must be made available to the defence in testable form. The right to examine opposing side’s evidence is axiomatic. That applies no less to mass than to individual murder cases. In both types of situations civilised jurisprudence accords to the accused an unconditional right to examine and check the evidence used against him.

Evidently aware of that longstanding practice, the authors of the ICTY Rules of procedure and evidence created Rule 66 [B], a provision which seemingly incorporates that principle from civilised legal practice. Rule 66 [B] states:

 

The Prosecutor shall, on request, permit the defence to inspect any books, documents, photographs and tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused. [1]

 

A cursory look at Tribunal jurisprudence reveals that Rule 66 [B] is generally interpreted in the broad sense. Thus, in the Bagosora case before the Rwanda Tribunal the Appellate Chamber dismissed Prosecution’s attempt to apply this rule restrictively, to the disadvantage of the Accused:

 

The Appeals Chamber routinely construes the Prosecution’s disclosure obligations under the Rules broadly in accord with their plain meaning. Nothing in Rule 66(B) limits an accused’s right to inspection only of material related to the Prosecution’s case-in-chief. Rather, this Rule uses much broader language: “material to the preparation of the defence case” and “intended for use … at trial”.[2]

 

It would seem superfluous to note that in the Karadžić case the proper accounting of victims is at the heart of the Prosecution’s “case-in-chief.” It is one of the central issues of the indictment.

The broad interpretation of the rule was confirmed also in the recent ICTY chamber decision in the Stanišić case of 11 March, 2011:

 

Rule 6 6 (B) of the Rules provides that the Prosecutor shall, on request, permit the Defence to inspect any documents in the Prosecutor’s custody or control, which are material to the preparation of the defence. The material requested pursuant to Rule 6 6 (B) must (1) be relevant or possibly relevant to an issue in the case… [3]

 

 

As seen here, in applying Rule 66 [B] to an issue in the Stanišić case the Chamber interprets the language even more broadly. The mere possibility that the requested material may be relevant appears sufficient that it be made available to the defence. In the Karadžić case at issue is the very contentious Prosecution DNA evidence. Its relevance to the successful preparation of the defence case is not the least bit hypothetical (although were the standard articulated by the Stanišić chamber to be applied, even that would be sufficient). The testing of that evidence is a matter of essential significance because it concerns the ability of the Accused to dispute a fundamental issue in the Prosecutor’s case-in-chief.

Before going further, it would be useful to briefly present the background of the DNA issue. Between 1996 and 2001, during the initial phase of the propaganda euphoria about “Srebrenica genocide”, when it was still thought that it would be relatively quick and easy to obtain the material evidence, Hague Tribunal forensic teams conducted a series of mass grave exhumations in the field. The results of these disinterments were visibly disappointing. Instead of the expected 8,000 corpses with injuries indicative of execution, Prosecution experts manage to scrape together autopsy reports for 3,568 “cases”. Almost half of those “cases” do not in fact represent an executed person but, rather, consist of a few bones bunched together by the investigators for which the cause of death is impossible to determine. However, an analysis of the presence of femur bones established not only that there were in all about 1,920 exhumed individuals in the mass graves but also the fact that the patterns of injury were quite heterogeneous. In several hundred cases, autopsy reports prepared by Prosecution experts showed injuries which were consistent only with combat casualties, but incompatible with the hypothesis of execution. The Prosecution, and the Chambers which generally were favorable to its cause, found themselves in a dilemma. How is the figure of 7,000 to 8,000 execution victims, announced in advance, to be proved? Without such proof the Srebrenica narrative loses its credibility.

The solution was found in the form of DNA matching mortal remains that were unprocessed up to that point with biological samples donated by relatives of missing persons for whom reports were filed immediately after 11 July, 1995. It so happens that the vast majority of those remains were located along the path of the armed breakout of the 28th Division column from Srebrenica toward Tuzla in the aftermath of the enclave’s fall to Serbian forces. Prosecution forensic teams withdrew from the field in 2001, and their activities since then were taken over by the Missing persons institute of Bosnia and Herzegovina in Sarajevo and the “NGO” International commission for missing persons [ICMP], which maintains its principal laboratory facility in Tuzla. From 2002 on, the process of Srebrenica-related exhumations and the matching of all DNA samples with the goal of identifying Srebrenica victims are under the exclusive control of these two institutions.

There are two important facts that should be noted in this regard. First, ICMP is an organisation founded in 1996 at the initiative of Bill Clinton and since that time it has invariably been headed by an American citizen appointed by the State Department.[4] In order to dispel doubts about impartiality that must naturally arise in relation to an outfit with such a background, ICMP would be well advised to conduct its business with a maximum of transparency. Secondly, DNA matching – even if impeccably done – does not furnish key data in a criminal proceeding: the time and manner of death. The most that DNA can accomplish is two things: to suggest a biological link between a sample taken from mortal remains and a sample donated by a close relative and to assist in the reassociation of the disarticulated parts of the same body. Specialists are well aware of that but they are not the target group of the DNA campaign. It is aimed, rather, at the broad public who do not have a clue and amongst whom the use of advanced technology in resolving this key Srebrenica issue is designed to produce the illusion of final and irrefutable proof.

 

Since the trial of Popović et al. (Trial judgment issued in 2010) the autopsy reports, which were far from satisfactory in their results from the Prosecution’s standpoint, were pushed into the background. DNA evidence, collected and processed in ICMP’s Tuzla laboratory, became the exhibit of choice in support of the view that genocide occurred in Srebrenica during which between 7,000 and 8,000 persons were executed. With each new Srebrenica trial the Prosecution brings out more “identifications” from the ICMP laboratory, all allegedly achieved by matching biological samples. At present that figure stands at about 6,600, tantalisingly close to the numerical goal that was set long ago.

The use of DNA technology to achieve purposes which go far beyond its scientific scope confirms the illusion that the politically most important charge in the Srebrenica indictment stands essentially demonstrated even before the formal conclusion of the judicial process. That is another compelling reason why the Defence must insist by all available means on the verification of this data. That applies not just to the accuracy of the matching of biological samples but to the authenticity of the allegedly identified persons as well. Did everyone on the identification list exist or are there invented identities amongst them? Without the opportunity to inspect the physical data base, the Defence cannot make good its right to investigate the authenticity of each individual victim.

For this, two things are necessary. First, all biological samples that the Prosecution relies on for advancing its claims of deaths for which the Accused is criminally liable must be made available to the Defence. The Defence should them hire an independent laboratory to authenticate each of the alleged matches. If by using biological material turned over to the Defence the independent laboratory obtains the same result as ICMP, the match and the identification are successful, otherwise they are not. Secondly, if the matching process succeeds in identifying a certain number of individuals further field checks must be conducted, using ID card numbers and other investigative methods, to check these individuals’ true current status. For that to be possible, what the Prosecution must furnish to the Defence is not a bare number but a personalised list.

Technically, the second condition has been met, but in a way that further illustrates the Tribunal’s obstructionism because once again all practical avenues of verification are closed. Although the Defence has received the alleged list of the first and last names of DNA identified persons (without, however, any other personal information for effective verification to be performed) that was done under the strict condition that only defence team members be allowed to see it. Sharing that information with others may trigger contempt of court proceedings against the offender. That excludes engaging local administrative organs and other necessary personnel to check the status of each one of the 6,600 allegedly “identified individuals”. The list has been delivered, but it is practically useless. It is meant to remain unutilised in the defence team’s files, so that it continues to be unverifiable.

The Karadžić defence team has been attempting for almost the last three years to remedy that situation by seeking independent review of the alleged DNA matches. In an effort not to appear too bold in the assertion of its procedural rights, the Karadžić defence advanced from the start a very modest set of demands. It does not presume to invoke facilities theoretically available to it under Rule 66 [B]to see all the evidence. Nor does it seek to obtain and test in an independent laboratory all biological samples collected and used by ICMP and relied on by the Prosecution in making its case. Such an obvious and natural course would be quite hopeless at the Tribunal. In fact, in October of 2008 that was attempted by the defence in the Popović case, only to be rebuffed by the chamber.[5] The reason stated by the court for its decision was shocking, to put it charitably. In that ruling, however, until then an unsuspected but highly significant fact came to light. In its response to the Defence motion, the Prosecution admitted that the DNA material it was citing as evidence in making its case, i.e. the biological samples which ICMP had allegedly matched in its laboratory, was not in Prosecution’s custody at all, but was stored elsewhere, under the control of ICMP at its facility in Tuzla.

This state of affairs enabled the chamber to engage in breathtaking sophistry. Since Rule 66 [B] refers only to the Prosecution’s obligations, the judges reasoned, it is an error to rely on that rule to request items that are under the control of a third party. The clear implication of what the court was saying was that the Prosecution was not even pretending that its evidence of mass murder consisted of testable biological samples. Instead, the basis for the Prosecution’s claims were eletropherograms[6] of the alleged laboratory results. That is a revelation of extreme significance.

An electropherogram is a graphic representation of the sequence of genomes of two matched individuals demonstrating the degree of their correspondence, or kinship. Electropherograms are computer generated images on paper, not experimentally verifiable laboratory tissue. To the Defence and its experts these pieces of paper are useless. They are generated by ICMP to replace the real evidence and they depict what suits the Prosecution and ICMP. Electropherograms show what they wish to portray.

Electropherogram

Moreover, under the guise of evidence it turns out that the Prosecution has been submitting, and the Popović Trial Chamber has accepted it, material that it has not actually seen, much less reviewed for authenticity. That was publicly confirmed in court by prosecutor Hildegard Uertz-Retzlaff in response to a demand made by the accused Radovan Karadžić to examine that evidence: “ICMP has not shown the DNA to us either. So that it is not correct that they gave it to us, but not to others.”[7] At the Tribunal, the Prosecution is offering evidence blindly, and the Accused is compelled to put up a blind defence.

Instead of waging the battle for access to biological samples (Raw data), to which it is clearly entitled, knowing that battle to be futile the Karadžić’s defence chose to demonstrate its cooperative spirit by agreeing to a compromise. Instead of 6,600 it agreed that it should receive only 300 randomly selected samples, or about 5% of the total. However, even that much would be denied to the Defence unless written consent from relatives who had donated their samples was previously secured. But even if all the agreed conditions were to be fulfilled ideally no tangible benefit would accrue to the Defence. Assuming independent testing concluded that each of the 300 identifications was erroneous, the Prosecution could still respond quite logically that there remained about 6,300 without any demonstrated flaws. Yet, at ICTY allowing the Defence access even to such a paltry number of samples does not go smoothly. After numerous pretexts were advanced, the Defence did not receive them in their entirety as provided in the agreement.

Karadžić then decided to resort to a different mechanism, Rule 54, in an attempt to accomplish anything at all. Since reliance on Rule 66 [B] was pointless, at least in DNA motions filed by Srebrenica indictees, Karadžić returned to the Chamber with the following application. If the court could not issue an order to produce this evidence to the Prosecutor, would it at least be in a position to issue a binding order or a subpoena (the rule provides for both possibilities) to ICMP to release to the Defence – if not all 6,600, that clearly would be presumptuous – then at least the totality of the agreed upon 300 DNA samples? But even that approach was fruitless.[8]

Rather than analyse the technical reasons why Karadžić’s motion was denied once again, for a better understanding of the modus operandi of this unique court it would be more productive to focus on some of the positions enunciated in the Trial Chamber’s 4 March, 2013, ruling.

But first, to set the stage, here are two illustrative passages cited by the Chamber from the Prosecution submission in opposition to Karadžić’s motion. “The Accused,” says the Prosecutor, “has failed to show that the information he now seeks [referring to the difference between the originally agreed and the currently offered number of samples] is necessary in order to challenge the ICMP methodology as the ICMP could at that stage still provide the accused with about 150 case files for testing, which is a reasonably large and representative number.”[9] The Prosecutor goes on to sternly chide the Accused Karadžić for “us[ing] the issue of consent [of the relatives who donated their samples] in order to attempt to create the impression that he has a valid claim to exclude probative evidence because of unfairness.”[10]

If the evidence is so probative, why are they refusing to show it? As glimpses into the mentality of the chief actors in the Hague proceedings, these statements are priceless. It is asserted that 150 DNA samples, from a cohort of about 6,600, are a “reasonably large and representative number.” Dr. Karadžić’s position that written consent by the relatives is no more than a pretext because the Chamber has all the required authority to issue binding orders irrespective of the relatives’ opinion, the Prosecutor portrays as an abuse of the judicial process. A legitimate request, grounded in the Rules of procedure and evidence, is pilloried as a machination to which the Defence resorts in order to “create an impression.”

The Chamber’s own comments are equally interesting. “[T]he Accused,” the Chamber says, “has not established any basis for his concern that the ICMP would manipulate its database or its results to strengthen its conclusions….” The Chamber then goes on to feign blessed ignorance: “…throughout the years of litigation concerning the ICMP, the Accused never advanced a specific theory as to how the supposed fraud would be committed, who exactly would perpetrate it, and what the motives behind such a fraud would be.”[11]

It is not difficult to adequately address the straw man issue raised by the Chamber. With regard to the reliability of results and the possibility of fraud, the real issue is unverifiable assertions made by a source closely associated with one of the sides in the conflict in Bosnia and Herzegovina. US armed forces took part in the bombing of Bosnian Serbs. ICMP is interlocked with US government agencies. It was founded by Bill Clinton and its leadership is composed of State Department insiders. That is inconsistent with the profile of a neutral, humanitarian institution which is merely offering its good offices in the aftermath of a complex local crisis. ICMP claims that it has identified a certain number of victims, but it persists in the refusal to allow its results to be subjected to independent scientific analysis. Would that not be sufficient for any court to perceive a conflict of interest and to reject evidence originating from such a source, unless it is independently tested?

The Chamber then goes on to make the following comment:

“…the information sought through the issuance of a subpoena must also be of material assistance, rather than merely helpful or of some assistance. In other words, it must be of substantial or considerable assistance to the Accused in relation to a clearly defined issue that is relevant to the trial.”[12]

In a trial where genocide is the principal charge in the indictment, can there be anything of greater material assistance not only to the Accused, but to the judicial proceedings as a whole, than finding a reliable answer to the question of the actual number of victims?

Finally, Karadžić’s judges reach the intellectual high watermark of their analysis: “ICMP has already provided the Accused with what the Chamber considers to be a large enough sample of test cases for the purpose of testing the ICMP results.”[13]

The clear message to the defendant is to stop complaining and start rolling with the punches.

The ability of the Accused Karadžić (and by the same token of Mladić, insofar as he is in a similar position) to review the crucial evidence against him is blocked at every turn. One who has firm evidence does not fear verification nor would he create an elaborate obstacle course preventing its full disclosure, as the Prosecution at the Hague Tribunal is persistently doing.

The Prosecution is interfering with the proper implementation of the Rules of procedure and evidence and it is systematically evading the obligation to disclose its evidence. With the Chamber’s full cooperation, instead of submitting genuine evidence the Prosecution is putting into the record worthless, computer generated, experimentally useless pieces of paper where the alleged results of DNA identifications are summarised in schematic form. Such frivolous “evidence” is supposed to serve as the foundation for verdicts of genocide and potentially for life sentences. The professional and moral bankruptcy of the Hague Tribunal is evident and total.

Our associate from the United States, Andy Wilcoxson, has made the following comment about the latest Chamber decision in Radovan Karadžić’s case:

This is a victory because it incriminates the Tribunal and the ICMP…Rulings like this one don’t hurt Karadzic as much as they hurt the Tribunal. Most fair minded people can understand that if you’re going to charge somebody with a crime the defendant has the right examine and test the evidence that’s used against him. When the Tribunal convicts Karadzic on the basis of DNA evidence that it wouldn’t let him test, that won’t bode well for the credibility of the verdict.

Between the DNA evidence that can’t be tested and the intercepts with no tape recording to back them up, the verdict isn’t going to pass the smell test. People are going to look back on these trials the way they look back on the Star Chamber and the McCarthy hearings.

The day will come when the politics calms down, and historians actually sit down and read through this evidence and these verdicts. It might take years, but it will happen.

 

There is little that need be added to this sober assessment.
[1] ICTY, Rules of procedure and evidence, http://www.icty.org

/x/file/Legal%20Library/Rules_procedure_evidence/IT032Rev48_en.pdf

[2] ICTY, DECISION ON INTERLOCUTORY APPEAL RELATING TO

DISCLOSURE UNDER RULE 66(B) OF THE TRIBUNAL’S RULES OF

PROCEDURE AND EVIDENCE, ICTR-98-41-AR73, 25 Septembre 2006.

[3] ICTY, DECISION ON STANISIC REQUEST FOR ORDER OF

DISCLOSURE OF MATERIALS RELATED TO THE ADMISSIBILITY

OF THE EXPERT REPORT OF REYNAUD THEUNENS, Par. 12, document D28796-D28787.

[4] http://www.srebrenica-project.com/DOWNLOAD/books/

Dekonstrukcija_2_izdanje.pdf . State Department announcement

of the appointment of James Kimsey as Director of ICMP, p. 165.

[5] ICTY, DECISION ON POPOVIC’S MOTION FOR

DISCLOSURE PURSUANT TO RULE 66 (B) AND REQUEST TO FILE AN

ADDENDUM TO PROFESSOR STOJKOVIC’S EXPERT REPORT, document D24052-D24047.

[6] Graph with a pictorial representation of the sequence of genomes in

DNA samples taken from two or more individuals: http://www.google.ba/search?q

=electropherogram+analysis&hl=sr&tbm=isch&tbo=u&source=univ&sa=

X&ei=eG44UZatL4ny4QTt3YDgCA&ved=0CEIQsAQ&biw=986&bih=718#imgrc=

BPnqvxiHvhpJ2M%3A%3BlF3XARs49BGtdM%3Bhttp%253A%252F%252Fwww.ac

cessscience.com%252FloadBinary.aspx%253Ffilename%253DYB030170FG0020.gif%

3Bhttp%253A%252F%252Fwww.accessscience.com%252Fsearch.aspx%253Ftopic%253

DMED%253AFORENS%2526term%253DForensic%252Bmitochondrial%252BDNA%252Banalysis%3B537%3B303

[7] Prosecutor v. Karadžić, Status conference, 23. July 2009, p. 364, lines 21-23.

[8] ICTY, Decision on the Accused’s Motion for Binding Order to International

Commission for Missing Persons, document D73367 – D73354, hereinafter „Decision“.

[9] Decision, Par. 6.

[10] Decision, Par. 7.

[11] Decision, Par. 29.

[12] Decision, Par. 34.

[13] Decision, Par. 34.