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Does Krajisnik Sentence Set Dangerous Precedent?

IWPR roundtable on the recent acquittal of Bosnian Serb leader on genocide charges provokes a fiery debate.
By Caroline Tosh
Prosecutors, defence lawyers and academics this week considered what legal precedent Momcilo Krajisnik’s acquittal on genocide charges might set - particularly for the future trial of former Bosnian Serb leader and war crimes fugitive, Radovan Karadzic - at a debate in The Hague, organised by IWPR.

They also discussed the implications of the former senior Bosnian Serb politician’s sentence, a 27-year prison term for crimes against humanity, for the understanding of crimes committed in Bosnia between 1992 and 1995.

The November 27 debate, which was chaired by Tony Borden, the executive director of IWPR, generated a heated discussion on a highly complex and often emotive subject.

On September 27, Momcilo Krajisnik, who was a high-level member of the Bosnian Serb leadership during the war, was convicted of extermination, murder, persecution, deportation and forced transfer of non-Serb civilians from large parts of Bosnia during the 1992-95 war.

But it was his acquittal on the charge of genocide, which provoked discussion in the media - and legal circles - particularly in Bosnia.

The prosecution, who had called for life imprisonment, has since appealed what they deem to be a "manifestly inadequate" sentence, but has not chosen to challenge the genocide acquittal.

Speakers at this week’s roundtable in The Hague were David Tolbert, the deputy prosecutor with the Office of the Prosecutor, OTP; Alan Tieger, the senior trial attorney with the OTP who prosecuted Momcilo Krajisnik; Michael Karnavas, a defence counsel and president of the Association of Defence Counsel; and Muhamed Mesic, an academic from the Institute for Research of Crimes against Humanity and International Law at the University of Sarajevo.

The legislation governing genocide is set out in article four of the tribunal’s statute. It describes the crime as any one of five acts committed with the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.

Thus, in order to make a finding of genocide, the court must prove beyond reasonable doubt not just that the actus reus, or guilty act or acts, were committed by the accused, but also that he possessed the mens rea – that is, the intent to commit genocide.

The trial chamber in the Krajisnik judgement found “evidence of acts perpetrated in the municipalities which constituted the actus reus of genocide”, but did not establish if the perpetrators had genocidal intent, “that is the intent to destroy, the Bosnian-Muslim or Bosnian-Croat ethnic group, as such”.

Tolbert pointed out what he called a " troubling" focus on genocide particularly "in the media" which he said resulted in "forgetting about other aspects of the judgement".

The Krajisnik judgement, he said, "is a very, very significant judgement" which found crimes against humanity, and "including extermination as a crime against humanity" - a conviction of which requires proof of killing on a mass scale.

"These are very serious crimes and they really, in my view, represent a vindication of the victims who've suffered very grievously," he said.

"What concerns me a bit is the focus on genocide takes us away from the judgement and also in a way denigrates or doesn't give the proper attention to the findings of crimes against humanity, which I think this judgement very, very importantly underlines," said Tolbert.

He argued that just because crimes did not meet the “"very specific legal definition” of genocide, did not mean that the crimes were not “very, very serious, or perhaps every bit as serious as genocide”.

Tieger addressed the confusion that surrounds the definition of genocide in certain quarters, which, he said, was "not something floating around in concrete reality waiting to be attached to somebody" but "a legal finding".

Therefore, he explained, it was entirely possible for the trial chamber to determine "that acts or conduct falling within the actus reus had been satisfied" without proving beyond reasonable doubt that the accused possessed genocidal intent.

Tieger dismissed the notion that Krajisnik's judgement would set a legal precedent for other trials, and stressed that the case was "about the criminal culpability of one person".

He also expressed concerned that in some "publicity" following the Krajisnik trial "the attention of the victims quoted was on their level of suffering and their perception that the finding related to genocide was somehow a direct comment on the existence or non-existence of the tragedies they had endured.

"Victims should not be misled into thinking that a genocidal finding is in effect a verdict on the extent of their suffering and an acquittal on a genocide charge is the equivalent or a denial of their sufferings.

"This judgement…is replete with findings and determinations about the extent of the sufferings of the victims in this case."

Karnavas, who defended Vidoje Blagojevic, the former Bosnian Serb commander found guilty of complicity to commit genocide in 2005, said that genocide was sometimes used as a “political tool” at ad-hoc tribunals.

He argued that when considering cases at the Hague tribunal and International Criminal Tribunal for Rwanda, ICTR, ‘’one might conclude that the prosecution has been engaged in stretching and contorting the Genocide Convention” in an attempt to secure more genocide convictions.

“Genocide has a certain cache value – to the prosecutors…and to the OTP because it can then argue for more funds and more resources,” argued Karnavas.

“Aided and abetted by the chambers of the ad-hoc tribunals, they are interpreting the genocide convention in an overly broad and contradictory fashion.”

He disagreed with the trial chamber’s finding in 2001 in the judgment of Bosnian Serb general Radislav Krstic that genocide occurred at Srebrenica.

“Srebrenica was not genocide,” he said.

On the question of whether Krajisnik’s judgement would set a legal precedent that could later apply in any future trial of Karadzic, he said, “It would be highly inappropriate if we expect chambers to convict in the absence of proof, simply to secure an equally flimsy conviction down the road.”

Karnavas also asserted that it was “false and erroneous to assume that a court is there to find historical truth”.

Nicholas Stewart, the lead counsel for the defense of Krajisnik, who was in the audience, backed this position, stating, “It’s not a truth commission, it’s a criminal trial. The prosecution has to prove the case…beyond reasonable doubt.”

Mesic, the only speaker not connected to the tribunal, criticised the use of the term "ethnic cleansing" - a phrase which appears in the Krajisnik judgement - which is used, he said, by the “international community” to describe events that occurred during the Bosnian war.

“ When you've got genocide, but just call it ethnic cleansing, it's exactly the same but you don't get the world looking down on you,” he claimed.

This term “gives a chance to evade the obligation by the 1948 convention, to diligently sanction genocide, but it also comes as an insult to all those poor children, women and men, who've fallen victims to these crimes”, said Mesic.

“It reminded me of when you want a Coke, but you don't want the calories, so you invent Coke Light. Genocide is the Coke and ethnic cleansing is the Coke Light,” he said.

Carole Hodge, a research fellow from the University of Glasgow who attended the event, also remarked on the use of the phrase “ethnic cleansing” during the debate, and said she was surprised to hear it being used when it was not a legal term.

Mesic concluded his talk by saying, “If there is no appeal against [the acquittal of Krajsinik] it does imply that Mr Karadzic could also get away with this.”

A status conference relating to the prosecution’s appeal of the Krajisnik sentence will take place on December 11.

A transcript of the event will soon be available on the IWPR website.

Caroline Tosh is an IWPR reporter in The Hague.

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