Blagojevic Prosecutors' Amendment Plea

Wednesday, 9 November, 2005

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Rachel S.

In an unusual move, the prosecution in the case against Vidoje Blagojevic, the Bosnian Serb commander accused over the Srebrenica massacre, has requested permission to amend its indictment more than half way through the trial.

The proposal - changing the charge of “complicity in genocide” to “aiding and abetting genocide” - may seem a technical legal issue, but it could have real implications for the case.

To find Blagojevic guilty of complicity in genocide, the tribunal would have to believe the defendant acted with genocidal intent.

But to find him guilty of aiding and abetting genocide, it would simply have to determine he was aware of the genocidal intent of others.

It is presumably easier, therefore, to prove aiding and abetting genocide than it is to prove complicity in genocide.

If approved, this will be the prosecution’s fifth change to the indictment. The original was filed in October 1999, two amendments were made before the proceedings began, and another was submitted after Momir Nicolic and Dragan Obrenovic, originally co-accused in the indictment, pled guilty.

But this time is different, as the trial is well underway. The prosecution rested its case in February and Blagojevic’s defence is already in its ninth week.

According to rule 50 of the tribunal’s rules of procedure and evidence, once a trial has begun, the prosecutor may only amend the indictment if the trial chamber, after hearing the parties, decides to allow it.

On June 8, the parties presented their arguments. The prosecution explained that they wanted to amend the indictment to take account of the April 19 decision in the case against Bosnian Serb general Radislav Krstic.

In that case, the appeals chamber found that the Srebrenica massacre - in which approximately 7,000 Muslim men and boys were killed - was genocide. But the judges also found Krstic guilty only of aiding and abetting genocide - not actually committing it - and, as a result, cut his sentence from 46 to 35 years.

“The criminal liability of Krstic is more properly expressed as that of an aider and abettor to genocide, and not as that of a perpetrator,” they said.

The judges said they came to this conclusion because they did not have enough evidence of Krstic’s own genocidal intent. Before this judgment, the differences between complicity in genocide and aiding and abetting genocide had been legally murky.

“When the prosecution charged the accused Blagojevic with complicity in genocide [the trial chambers of this tribunal suggested] that complicity in genocide was synonymous with aiding and abetting genocide,” the prosecution wrote on June 3, adding that they wished the indictment to reflect this development.

They insisted that “the prosecution did not intend to charge the accused Blagojevic with a crime entailing genocidal intent, but rather with knowledge of the genocidal intent of others”.

But defence counsel Michael Karnavas seemed sceptical of their argument.

In court this week, Karnavas suggested that the Krstic case was like the Blagojevic case but with more evidence - and hypothesised that when the prosecution saw the Krstic findings they realised “there’s no way on earth they’ll be able to meet the burden of proof of genocidal intent…which is required for complicity”.

As such, he said, the prosecution was trying to “lower the bar so they could get a conviction for the crime of crimes”.

Much this week’s hearing centred on whether Blagojevic would be prejudiced by the proposed amendment.

The prosecution insisted in a May 14 motion that because “the term ‘complicity’ encompasses conduct broader than aiding and abetting”, Blagojevic was already on notice of the relevant facts underlying the new charge. He therefore would not be harmed if they changed their indictment, they argued.

“If there is any substantive effect resulting from the proposed amendments, it is that the amendments would actually reduce the scope of the prosecution’s case against the accused,” they wrote.

But Karnavas - who found himself in the bizarre position of asking the tribunal not to lessen the severity of the charges against his client - insisted that making such a change so late in the game would be unfair to Blagojevic.

In court this week, Karnavas asked whether, if the prosecution thought all along that Blagojevic was only guilty of aiding and abetting genocide, then “what, pray tell, stopped them from charging him with aiding and abetting?”

Karnavas said in a May 26 submission to the court that Blagojevic’s rights “including the right to an expeditious trial, to be informed promptly of all charges, to have adequate time and facilities for preparation, and others” could be put in jeopardy by such a change.

He explained that he had made decisions about how to allocate time and money, how to investigate and prepare the case, and how to examine witnesses based on the existing indictment and would be disadvantaged if he had to change mid-stream and now defend against a charge of aiding and abetting genocide.

Regardless of how the tribunal decides this issue, the proposed change marks another interesting development in an already complex case.

In April, the tribunal acquitted Blagojevic of personal responsibility for planning, instigating and ordering crimes against humanity and violations of the laws or customs of war. It did, however, allow the charges relating to his alleged command responsibility for these crimes to remain - along with those accusing him of complicity in genocide.

Prosecutors told the tribunal that if its motion to amend the indictment to include aiding and abetting genocide is denied, they’ll proceed with the complicity in genocide charge.

Rachel S. Taylor is an IWPR editor in The Hague.