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.