Just a couple of minutes ago the ICTY Appeals Chamber sitting in the Karadzic case reversed the Rule 98 bis judgment of acquittal rendered by the Trial Chamber last year (see my post on that decision for more background; the Appeals Chamber’s decision is not yet available at the time of writing, but a summary can be found here). The Trial Chamber had earlier decided that on the evidence presented by the prosecution, taken at its highest, no reasonable trier of fact could have found Karadzic guilty beyond a reasonable doubt of genocide committed by Bosnian Serb forces against Bosnian Muslims and/or Croats in a number of Bosnian municipalities in 1992, the bloodiest year of the war. In essence, the Trial Chamber had decided that ‘only’ the 1995 Srebrenica massacre could be legally qualified as genocide, and Karadzic’s trial proceeded on that basis.
The Appeals Chamber now ruled that the Trial Chamber erred in fact when it made its findings with regard to the actus reus and mens rea of genocide in the municipalities other than Srebrenica. In particular, the Trial Chamber failed to take at its highest the evidence presented by the prosecution with regard to the existence of genocide intent, which it had to do when deciding on a Rule 98 bis, ‘no case to answer’ motion for acquittal. Accordingly, the Appeals Chamber reinstated the genocide charge for the municipalities and remanded further proceedings to the Trial Chamber, which will now have to try Karadzic for genocide beyond Srebrenica. (Appropriately enough, the judgment was rendered on the 18th anniversary of the start of the Srebrenica genocide; for the avoidance of doubt, I myself see no moral distinction between genocide and ‘mere’ crimes against humanity, and Karadzic would have been no less the villain even if his acquittal was affirmed, but of course politically the G-word is a whole different story.)
The Appeals Chamber’s decision has a number of implications. First, most obviously, there will now need to be some reconfiguring of the Karadzic trial proceedings. Second, one can now foreshadow the fate of a possible Rule 98 bis motion in the ongoing Mladic case, which contains similar charges. Third, more importantly, it remains very unlikely, in my view, that in its final judgment the Trial Chamber will actually convict Karadzic for genocide in the municipalities – the standard for conviction is of course much higher than for rejecting a Rule 98 bis motion, the prosecution’s evidence need not be taken at its highest, and the same trial judges who previously said that no reasonable trier of fact could convict Karadzic are now hardly going to say that he is guilty beyond a reasonable doubt.
Fourth, consequently, despite today’s ruling it is also unlikely that an eventual acquittal will be reversed on the facts by the Appeals Chamber, because of the deference that the Trial Chamber will be due on its own findings of fact. Fifth, today’s judgment will receive a lot of political play in the region, especially in Bosnia. Finally, the whole thing may have repercussions on a possible Bosnian request for revision of the ICJ’s 2007 Bosnian Genocide judgment, which found genocide ‘only’ in Srebrenica. As explained in my previous post, I don’t think such a request would either be wise or likely to succeed, but today’s judgment leaves the doors open, at least for the time being.