Institute for War and Peace Reporting | Giving Voice, Driving Change
Radovan Karadzic (left) in court earlier this year. (Photo: ICTY)
Judges at the Hague tribunal this week acquitted wartime Bosnian Serb president Radovan Karadzic of one count of genocide, leaving ten remaining counts on his indictment, including the genocide allegation relating to Srebrenica.
The prosecution rested its case against Karadzic in May. According to Hague tribunal rules, if there is no evidence capable of supporting a conviction, judges can acquit a defendant on one or more counts of the indictment before his defence case begins.
The accused asked to be completely acquitted during a hearing on June 11. (See Karadzic Asks for Acquittal.)
On June 28, the judges dismissed the first count of the indictment, which accused Karadzic of genocide in seven Bosnian municipalities, excluding the eastern town of Srebrenica, between March 31 and December 31, 1992.
“There is no evidence, even taken at its highest, which could be capable of supporting a conviction of genocide in the municipalities,” the bench concluded.
Asked for comment, a spokesman for the prosecutor said his office was “examining whether there are legal or factual errors which are reviewable on appeal”.
A separate count of genocide relating solely to the 1995 massacre at Srebrenica, where more than 7,000 Bosniak men and boys were killed, will remain in the indictment. So will counts of persecution, extermination, murder, deportation, inhumane acts, terror, unlawful attacks and the taking of United Nations peacekeepers as hostages.
Judges also found that a “reasonable trier of fact” could conclude that Karadzic “voluntarily participated” in a joint criminal enterprise with other members of the Bosnian Serb leadership, “the purpose of which was to remove Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory”.
Reading out the chamber’s decision, presiding Judge O-Gon Kwon said the test for acquittal was whether a “reasonable trier of fact could be satisfied beyond a reasonable doubt”.
“The test is not whether the trial chamber would convict, but rather whether it could do so,” he explained.
He said that in making its decision, the chamber did not evaluate the credibility of witnesses in the same way it would for a final judgement.
Discussing the rejected count of genocide, Judge Kwon said the chamber reviewed evidence relating to the seven municipalities of Bratunac, Foca, Kljuc, Prijedor, Sanski Most, Vlasenica and Zvornik. They found that the evidence “indicates that large numbers of Bosnian Muslims and/or Bosnian Croats were killed by Bosnian Serb forces in municipalities during and after their alleged takeover and in detention”.
“This evidence is capable of supporting the conclusion that Bosnian Muslims and/or Croats were killed on a large scale… with persecutory intent,” Judge Kwon said.
This would mean that people were targeted on political or religious grounds, an allegation included in the “persecutions” count of the indictment.
Rejecting arguments previously made by Karadzic that the number of victims in the municipalities was too low to constitute genocide, Judge Kwon said that deciding whether evidence was “capable of supporting” a genocide charge “does not involve a numerical assessment and does not have a numeric threshold”.
The evidence had received about the municipalities was not to a level from which “a reasonable trier of fact could infer that a significant section of Bosnian Muslim and/or Croat groups, and a substantial number of members of [these groups], were targeted for destruction”, he said.
Judge Kwon noted that genocidal intent – required to prove genocide – can manifest itself by doing serious bodily or mental harm to members of the selected group, “or by deliberately inflicting on the group conditions calculated to bring about the physical destruction of that group” in whole or in part.
This serious harm “must go beyond temporary unhappiness, embarrassment and humiliation” and must result in long-term disadvantage to victims, the judge said.
“The evidence indicates that… Bosnian Serb forces caused serious bodily and mental harm to many Bosnian Muslims and Bosnian Croats during detention in multiple detention facilities,” the judge said.
This included, he said, “cruel and inhumane treatment, torture, physical and psychological abuse, inhumane living conditions, rape, sexual violence, forced labour, failure to provide adequate accommodation, shelter, food, water or hygienic facilities”.
However, he went on, in order to support a conviction for genocide, the bodily and mental harm presented in evidence must be so serious as to threaten the destruction of the target group in whole or in part.
“Having completed this review, the chamber came to the conclusion that for the purposes of Count One, the evidence before it, even taken at its highest, cannot support the conclusion that conditions at detention facilities reached a level that could support the inference that Bosnian Muslim and/or Bosnian Croats were detained in conditions of life calculated to bring about their physical destruction,” Judge Kwon said.
The judge noted that the prosecution had submitted statements and speeches made by the accused and by other members of the Bosnian Serb leadership.
“According to the prosecution, [these statements] contained rhetorical warnings of the disappearance, annihilation or extinction of Bosnian Muslims in the event that war broke out,” he said.
The chamber concluded that there was no evidence of the special intent that was required to prove genocide.
The parties will next convene on September 3 for a status conference. Karadzic’s defence case is slated to begin in October.
Rachel Irwin is IWPR Senior Reporter in The Hague.
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