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Home EJIL Analysis Karadzic Trial Chamber Finds No Genocide in Bosnia but for Srebrenica

Karadzic Trial Chamber Finds No Genocide in Bosnia but for Srebrenica

Published on June 28, 2012        Author: 

Today the ICTY Trial Chamber trying Radovan Karadzic, the former president of the Bosnian Serbs, delivered an oral order on the defendant’s ‘no case to answer’ motion for acquittal under Rule 98 bis of the ICTY RPE, under which the Trial Chamber shall, by oral decision, and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction. The standard for doing so is whether a reasonable trier of fact could be satisfied beyond a reasonable doubt of the accused’s criminal responsibility on a particular count of the indictment.

A press release on the order is available here. A formal written decision will follow. In a nutshell – and this is hardly news – the Chamber upheld 10 counts of the indictment, finding that a reasonable trier of fact could be satisfied beyond a reasonable doubt that Karadzic was criminally responsible through a JCE for the crimes alleged, including the Srebrenica genocide. What is news, however, is that the Chamber granted Karadzic’s motion with respect to the count charging him with genocide outside Srebrenica in July 1995, in selected other municipalities in Bosnia:

Count 1 of the Indictment charges genocide in relation to the crimes alleged to have been committed between 31 March and 31 December 1992 against the Bosnian Muslims and Bosnian Croats in some municipalities in BiH. Having reviewed the totality of the evidence with respect to the killing of, serious bodily or mental harm to, the forcible displacement of, and conditions of life inflicted on Bosnian Muslims and/or Bosnian Croats in the Municipalities, the Chamber found that the evidence even if taken at its highest, does not reach the level from which a reasonable trier of fact could infer that genocide occurred in the Municipalities.

The Chamber noted that genocidal intent can be inferred from a number of factors and circumstances, including the general context of the case, the means available to the perpetrator, the surrounding circumstances, the perpetration of other culpable acts systematically directed against the same group, the numerical scale of atrocities committed, the repetition of destructive and discriminatory acts, the derogatory language targeting the protected group, or the existence of a plan or policy to commit the underlying offence.  The Chamber noted that although it has heard evidence of culpable acts systematically directed against Bosnian Muslims and/or Bosnian Croats in the Municipalities, and of the repetition of discriminatory acts and derogatory language, the nature, scale, and context of these culpable acts do not reach the level from which a reasonable trier of fact could infer that they were committed with genocidal intent.

The Chamber found that whilst the evidence it had heard indicates that the circumstances in which the Bosnian Muslims and/or Bosnian Croats in the Municipalities were forcibly transferred or displaced from their homes were attended by conditions of great hardship and suffering, and that some of those displaced may have suffered serious bodily or mental harm during this process, this evidence does not rise to the level which could sustain a conclusion that the serious bodily or mental harm suffered by those forcibly transferred in the Municipalities was attended by such circumstances as to lead to the death of the whole or part of the displaced population for the purposes of the actus reus for genocide.

Why is this important? First, readers will know that the ICTY has so far not convicted any defendant for genocide outside Srebrenica. However, Mladic and Karadzic are both charged with genocide in a number of municipalities in addition to Srebrenica – in particular, for crimes committed in 1992, when atrocities against non-Serb civilians in Bosnia peaked. That said, many doubted both the accuracy and the pragmatics of including a very difficult to prove genocide charge for these crimes – on this see Bill Schabas’ take here. Second, genocide outside Srebrenica was also charged in the Milosevic case, and the Trial Chamber there did in fact find that there was a case to answer on this point (see here, para. 246). Subjects to the particular municipalities in question and the specifics of the evidence presented in the two cases, on which I am really unable to comment, the Milosevic and the Karadzic Rule 98 bis decisions contradict one another.

Third, this obviously does not bode well for the prosecution’s case against Mladic with respect to charges of genocide outside Srebrenica. It now seems likely that – if the Mladic case hopefully progresses that far – his Rule 98 bis motion may similarly be granted on this count, or that at the very least he would be acquitted on that count in the final judgment. That end result was always most likely, which is why the prosecution was not entirely wise in pursuing this count in the first place, but the likelihood is now even greater. It would be difficult, to say the least, for one Trial Chamber to say that NO reasonable trier of fact could find beyond a reasonable doubt that genocide was committed outside Srebrenica, and for a diffirent Trial Chamber to say on basically the same evidence that such genocide was in fact proven beyond a reasonable doubt. One way or another, the charge against Mladic will also be dismissed.

Finally, that also means that any hopes that Bosniak politicians may have had about asking the International Court of Justice to revise its 2007 Bosnian Genocide judgment in which it found genocide ‘only’ in Srebrenica in light of new ICTY developments are similarly dashed. The likelihood of the ICJ granting such a request was always minimal, but now it is effectively nil. (Generally on Bosnia, the law and politics of genocide and the ICJ see this article in the Leiden JIL that I wrote a few years ago with Vojin Dimitrijevic.) This is I think both the legally correct and politically wisest outcome, as any further litigation before the ICJ could only serve to exacerbate the relationship between the relevant states without any meaningful benefit, as is in fact the case with the futile Croatian Genocide case currently pending before the Court.

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3 Responses

  1. Said

    For the sake of debate, let us see what exactly the Trial Chamber in Milosevic case consisting of judges Patrick Robinson, O-Gon Kwon and Ian Bonomy had to say in para. 246 of their 2004 Decision: “On the basis of the inference that may be drawn from this evidence, a Trial Chamber could be satisfied beyond reasonable doubt that there existed a joint criminal enterprise, which included members of the Bosnian Serb leadership, whose aim and intention was to destroy a part of the Bosnian Muslim population, and that genocide was in fact committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi. The genocidal intent of the Bosnian Serb leadership can be inferred from all the evidence, including the evidence set out in paragraphs 238-245. The scale and pattern of the attacks, their intensity, the substantial number of Muslims killed in the seven municipalities, the detention of Muslims, their brutal treatment in detention centers and elsewhere, and the targeting of persons essential to the survival of Muslims as a group are all factors that point to genocide.”

    In contrast to the above position, in 2012 Press Release reporting on the Decision taken by Trial Chamber III consisting of judges O-Gon Kwon, Howard Morrison and Melville Baird in Karadzic case, it is said: “Count 1 of the Indictment charges genocide in relation to the crimes alleged to have been committed between 31 March and 31 December 1992 against the Bosnian Muslims and Bosnian Croats in some municipalities in BiH. Having reviewed the totality of the evidence with respect to the killing of, serious bodily or mental harm to, the forcible displacement of, and conditions of life inflicted on Bosnian Muslims and/or Bosnian Croats in the Municipalities, the Chamber found that the evidence even if taken at its highest, does not reach the level from which a reasonable trier of fact could infer that genocide ocurred in the Municipalities.

    The Chamber noted that genocidal intent can be inferred from a number of factors and circumstances, including the general context of the case, the means available to the perpetrator, the surrounding circumstances, the perpetration of other culpable acts systematically directed against the same group, the numerical scale of atrocities committed, the repetition of destructive and discriminatory acts, the derogatory language targeting the protected group, or the existence of a plan or policy to commit the underlying offence. The Chamber noted that although it has heard evidence of culpable acts systematically directed against Bosnian Muslims and/or Bosnian Croats in the Municipalities, and of the repetition of discriminatory acts and derogatory language, the nature, scale and context of these culpable acts do not reach the level from which a reasonable trier of fact could infer that they were committed with genocidal intent.

    The Chamber foud that whilst the evidence it had heard indicates that the circumstances in which the Bosnian Muslims and/or Bosnian Croats in the municipalities were forcibly transferred or displaced from their homes were attended by conditions of great hardship and suffering and that some of those displaced may have suffered serious bodily or mental harm during this process, this evidence does not rise to the level which could sustain a conclusion that the serious bodily or mental harm suffered by those forcibly transferred in the Municipalities was attended by such circumstances as to lead to the death of the whole or part of the displaced population for the purposes of the actus reus for genocide.”

    Commenting on the potential implications of the 2012 Trial Chamber decision on Mladic case you write in your post: “It would be difficult, to say the least, for one Trial Chamber to say that NO reasonable trier of fact could find beyond a reasonable doubt that genocide was committed outside Srebrenica, and for a different Trial Chamber to say on basically the same evidence that such genocide was in fact proven beyond a reasonable doubt.”

    Now, your argumentation here seems to be flawed because this is exactly what the Trial Chamber III consisting of judges Kwon, Morrison and Baird did. In other words, they sucessfully surmounted all the difficulties and eight years after the Trial Chamber consisting of judges Robinson, Kwon and Bonomy concluded that “… genocide was in fact committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi”, Trial Chamber III said on basically the same evidence that genocide outside of Srebrenica had not been proven beyond a reasonable doubt. I wonder what makes you think that the Trial Chamber in Mladic case will not do exactly the same, contrary to your conclusion that “… the charge against Mladic will also be dismissed”? Unless you think that Kwon, Morrison and Baird are somehow more “reasonable” than Robinson, Kwon and Bonomy?

  2. Marko Milanovic Marko Milanovic

    Said,

    Your point is well taken. As I said in my post, the Milosevic and Karadzic decisions are prima facie contradictory (although how much so exactly depends on the totality of the evidence produced in each case). And as you say, if the Karadzic Rule 98 bis decision could contradict Milosevic, so could a potential Mladic decision contradict Karadzic. The possibility is certainly there – I just think it is very unlikely.

    Bear in mind that the Rule 98 bis standard is one that is very favourable to the prosecution, and motions to acquit are normally dismissed – all that is needed for dismissal is for the trial chamber to be able to say that a (hypothetical!) reasonable trier of fact could find the charge proved beyond a reasonable doubt, on the evidence as presented by the prosecution, with cross-examination by the defense etc. This does not necessarily mean that the trial chamber is in fact convinced of the guilt of the accused, and would in fact convict him – merely that it could.

    But once a trial chamber finds that NO reasonable trier of fact could find the crimes proven beyond a reasonable doubt even without any evidence presented by the defense, then you are in a different territory altogether. Note also how Judge Kwon, who sat on both cases, actually changed his mind – in Milosevic he thought that there was evidence of genocide beyond Srebrenica, here thought otherwise. Of course we need to see what the Appeals Chamber here will do on the prosecution appeal, but the Mladic defense team would have a field day with this finding, even if it is not upheld. And even if it is not upheld, Karadzic will be acquitted in the merits judgment for genocide outside Srebrenica (the same judges who thought no reasonable trier of fact could find it proven beyond a reasonable doubt are hardly going to change their mind, and for the Appeals Chamber to overturn their finding it would need to say that no reasonable trier of fact could have reached that conclusion). I hope this is clearer, even though all these ‘reasonable’ people make it difficult!

  3. Said

    Marko,

    Your point is taken, though I will take issue with the part of your comment where you write: “Note also how Judge Kwon, who sat on both cases, actually changed his mind – In Milosevic he thought that there was evidence of genocide beyond Srebrenica, here thought otherwise.”

    In his dissenting opinion in the 2004 Decision, Judge Kwon wrote in para. 3: “Taking the evidence from the Prosecution’s case at its highest, the furthest that a Trial Chamber could infer in relation to the mens rea requirement is the knowledge of the Accused that genocide was being committed in the specified municipalities in Bosnia and Herzegovina, but not the genocidal intent of the Accused himself. The latter conclusion cannot be automatically inferred from the finding that the Accused knew that genocide was being committed by the principal perpetrators, or that it was reasonably foreseeable to him that genocide could be committed as a consequence of the commission of other crimes. And, with the evidence presented, finding of the genocidal intent of the Accused is too tenuous.”

    Back in 2004 in Milosevic case, Judge Kwon thought that genocide was committed in the specified municipalities in Bosnia and Herzegovina. It is just that, in Judge Kwon’s view, Milosevic neither participated in the joint criminal enterprise “… which included members of the Bosnian Serb leadership, whose aim and intention was to destroy a part of the Bosnian Muslim population…” nor is there in his view “… sufficient evidence upon which a Trial Chamber could find beyond reasonable doubt that the Accused had the dolus specialis required for genocide, i.e., the intent to destroy the Bosnian Muslims as a group in whole or in part.” One can reasonably conclude from this that in the merits judgments it is unlikely that the same judges who unanimously thought that “… genocide was in fact committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi” were going to change their mind, while it is open to speculation, due to Judge Kwon’s dissent, whether the majority would have convicted Milosevic of genocide under the first category of joint criminal enterprise, third category of joint criminal enterprise, aiding and abetting or complicity in genocide, or alternatively whether he would have been acquitted of this charge entirely.

    Eight years later, Judge Kwon, now sitting on Karadzic case, decides along with the other two judges (unless there was a dissent from one of them) midway through the trial that there is no case to answer for Karadzic in relation to the charge of genocide in the specified municipalities in Bosnia and Herzegovina. In other words, while Judge Kwon thought in Milosevic case that the accused did not participate in the joint criminal enterprise “… which included members of the Bosnian Serb leadership, whose aim and intention was to destroy a part of the Bosnian Muslim population…” and did not have a required dolus specialis for genocide, in the case of one of the alleged “principal perpetrators” Bosnian Serb leader Karadzic he has taken the stance that NO reasonable trier of fact could infer beyond a reasonable doubt that genocide was committed in these municipalities. In other words, Judge Kwon from now seems to be telling Judge Kwon from eight years ago that he was ‘unreasonable’ in making prima facie finding of genocide in these municipalities.

    Going back to your comment, you seem to suggest that the fact that Judge Kwon changed his mind somehow strengthens the ‘legal correctness’ of the 2012 Decision. I think the opposite is true for the reasons stated above.

    Note also another possible avenue for discussion opened up by Judge Robinson in his separate opinion to the 2004 Decision where he says in para. 15: “In the first place, although the Rule itself is designed to secure an acquittal of an accused on an offense charged, its use is more directed at the dismissal of specific paragraphs or allegations in a count of an indictment than the count itself. True enough, in common law jurisdictions sometimes no case to answer submissions have a similar purpose. But at the level of the Tribunal, it is more the norm than the exception that Rule 98bis is used in this way.”

    Ps. I am quite suprised by the lack of reactions to this decision both on EJIL blog and generally and can only attribute it to summer break and the fact that commentators are waiting for the written decision to be out. I hope they will come back to your post since it would be interesting to hear what other people think of this important decision.