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The panel of five judges took seven years off the original prison sentence handed down by the court, sentencing Krajisnik to 20 years’ imprisonment.
They upheld his conviction for the persecution of Bosniaks and Bosnian Croats in 32 Bosnian municipalities, inflicted through acts of deportation and forcible transfer of the non-Serb population out of Bosnia.
However, appeals judges reversed his conviction for persecutions based on graver charges – including murder, cruel and inhumane treatment, and unlawful detention – after they found that trial judges had not shown that these crimes were an intended part of a so-called ethnic-cleansing campaign conducted against non-Serb civilians in Bosnia during 1991 and 1992.
On September 27, 2006, Krajisnik was found guilty by the International Criminal Tribunal for the former Yugoslavia, ICTY, of killing approximately 3,000 Bosnian Muslims and Bosnian Croats and forcibly removing more than 100,000 non-Serbs from large parts of Bosnia between July 1, 1991, and December 30, 1992.
Trial judges ruled that Krajisnik had participated in a joint criminal enterprise – which also included his political mentor, former Bosnian Serb president Radovan Karadzic, as well as presidency member Biljana Plavsic – to ethnically reconfigure the territory of the Bosnian Serb republic by removing members of the non-Serb population through the commission of crimes.
Plavsic pleaded guilty in October 2002 to one count of persecutions on political, racial and religious grounds committed in 37 Bosnian municipalities and was given an 11-year prison sentence which she is currently serving in Sweden.
Karadzic was not arrested until July 2008 and is currently in custody in The Hague awaiting trial on 11 charges of war crimes and crimes against humanity committed in Bosnia – including two counts of genocide – between 1992 and 1995.
Krajisnik, who had pleaded not guilty to all charges against him, filed an appeal on February 12, 2007.
In their ruling of March 17, appeals judges reaffirmed the trial chamber’s verdict that “Krajisnik shared the intent to commit the original crimes of deportation, forcible transfer and persecution… from the beginning of the joint criminal enterprise”.
However, they accepted the defence argument that the trial judgement had failed to establish clearly who the prosecution meant when they alluded to lower-level people – such as politicians and paramilitaries – whom they said took part in the joint criminal enterprise with Krajisnik.
“[Trial judges] erred by failing to specify whether all or only some of the local politicians, militaries, police commanders and paramilitary leaders [cited in the prosecution case] were joint criminal enterprise members,” said presiding judge Fausto Pocar, as he read out the verdict.
Appeals judges also reversed the trial chamber finding that Krajisnik was guilty of the crimes of murder, extermination and persecutions, except for deportation and forcible transfer.
Trial judges had found that leading members of the criminal conspiracy were informed that these serious crimes were being committed, yet took no steps to prevent them, and in doing so, “intended” their commission as a means of achieving their goal.
However, the appeals chamber found that trial judges had made “only scarce findings” on this issue.
Judge Pocar and his colleagues said there was little evidence that the leaders had known that these crimes were being committed and had done nothing to stop them – and therefore it was not proven that they had intended these crimes of murder, extermination and persecutions to be committed as part of their plan.
Some observers of international justice have welcomed the verdict.
Michael Karnavas, a defence lawyer at the ICTY, applauded what he described as the judges’ attempt “to rein in the application of joint criminal enterprise” as a legal doctrine.
The concept of joint criminal enterprise has often been criticised for overly widening the scope for criminal responsibility, particularly when applied to crimes where a strong link cannot be shown between those responsible for the overall plan and the actual perpetrators on the ground.
“It’s so overbroad to say that hundreds of miles away some incident happened and somehow the defendant is the cause of it. It is so far fetched,” said Karnavas.
He argued that the appeals judges in the Krajisnik case had employed a measured approach, finding that in its judgement, the trial chamber had not made a concrete enough link between the accused and perpetrators of crimes for him to be convicted of murder, extermination and more serious charges of persecutions.
Krajisnik, who appealed his conviction at a hearing on August 21 last year, called on additional evidence from Karadzic in the form of a written statement in November 2008 to demonstrate that he was outside the political confines of the Bosnian Serb presidency deemed responsible for conceiving the joint criminal plan.
The trial chamber had found that during 1992, Krajisnik was an active member of a five-member wartime presidency of the entity that later became Republika Srpska, RS, under the leadership of Karadzic, the then Bosnian Serb president.
Karadzic testified that Krajisnik’s role was only peripheral, arguing that he did not sit on the Bosnian Serb presidency, and that this expanded wartime presidency did not exist.
However, appeals judges were “not convinced that the additional evidence provided by Radovan Karadzic [was] sufficient to undermine the extensive evidence supporting the trial chamber’s findings”, said Judge Pocar.
Simon Jennings is an IWPR reporter in The Hague.
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