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Krajisnik Judgement Controversy

Weeks after Krajisnk's acquittal on charges of genocide, lawyers, experts and Bosnian victims alike continue to question the judgement.
By Edina Becirevic
Tribunal prosecutors last week asked the appeals chamber at the Hague tribunal to revise what they called the "manifestly inadequate" sentence for crimes against humanity recently handed down to Momcilo Krajisnik - but have not challenged his acquittal on the ultimate charge of genocide.



The former Bosnian Serb leader was convicted on five counts arising from his role in the early stages of the war in Bosnia in the early Nineties. But his 27-year sentence, prosecutors argued, reflects a "disregard for the inherent gravity of the crimes", and asked that he receive life imprisonment instead.



The former Bosnian Serb assembly president was found guilty of extermination, murder, deportation, forcible transfer of population and persecution of Muslims and Croats in Bosnian Serb territories – crimes perpetrated to "ethnically recompose the territories under [Bosnian Serb] control . . . pursuing this objective through the commission of crimes, all of which were very serious".



Specifically, Krajisnik was found to have had a "crucial" role in the joint Bosnian Serb "criminal enterprise" of persecution, "killing, through murder or extermination, of approximately 3,000 Bosnian Muslims and Bosnians Croats" and the "forcible removal" of more than 100,000.



Stressing the human realities behind these numbers, the judges underline that they comprise "a multitude of individual stories of suffering and ordeal". And they acknowledge that "a sentence, however harsh, will never be able to rectify the wrongs, and will be able to soothe only to a limited extent the suffering of the victims, their feelings of deprivation, anguish, and hopelessness".



Noting the defence's argument that at the age of 61 any significant sentence is in effect a life sentence, and accepting a range of mitigating factors, including good behaviour and the lack of a prior conviction, the court set the sentence at 27 years, with credit for six and a half years served.



The prosecutor's appeal, lodged October 26, seeks to challenge this sentence, and a status conference will be held at the court on December 11.



To the surprise of some observers, however, the prosecutors did not challenge the ruling in the trial chamber's September 27 decision that Krajisnik was not guilty of genocide.



To date, the tribunal has set a very high standard of proof for the highest crime. So far, the only verdict of genocide handed down by the court has been the 2001 ruling against Radislav Krstic over Srebrenica, directly covering the massacre of nearly 8,000 Bosnian Muslim men and boys in July 1995.



With the death of former Yugoslav president Slobodan Milosevic, and with the two principal Bosnian Serb indictees, Radovan Karadzic and Ratko Mladic, still at large, the Krajisnik verdict was seen by many observers in Bosnia and internationally as a key opportunity for the court to confirm that genocide did in fact take place in Bosnia during the war, extending the crime from the specific case of Srebrenica to the wider campaign of "ethnic cleansing".



Such a ruling would likely have significance for other cases - especially if Karadzic and Mladic are ever brought to trial - and for Bosnia itself and the historic understanding of crimes committed during the war. Without a genocide verdict, fierce debate over the understanding of events during the 1992-95 war will only continue.



The trial chamber concluded that Krajisnik "wanted the Muslim and Croat populations moved out of Bosnian Serb territories in large numbers, and accepted that a heavy price of suffering, death and destruction was necessary to achieve Serb domination and a viable statehood".



However, the court rejected the genocide charge. Proof of genocide requires evidence of the "criminal act" in carrying out genocidal actions and the "criminal mind" in specifically intending to destroy a population as a group.



While the court found that, in the period through 1992 covered by the case, genocidal acts (actus reus) had taken place, there was insufficient evidence to prove beyond a reasonable doubt that Krajisnik "had genocidal intent . . . to destroy the Bosnian Muslim or Bosnian Croat ethnic groups as such".



This is, the judges underline, "not to say such evidence does not exist" - but only that on the evidence provided to the court, a "genocidal mental state" (mens rea) could not be confirmed.



Such distinctions underline the caution of legal scholars not to take the ruling as historically definitive. Robert Donia, a historian and expert witness in several trials at the Hague tribunal, says it would be "simply wrong to assume that either the prosecutors or the court's chambers have concluded that no genocide took place in 1992".



Yet the fact that prosecutors have not challenged this decision on appeal suggests acceptance that such evidence cannot reliably be provided.



"We don't see legal grounds for making such an appeal," explained spokesman for the prosecution Anton Nikiforov. "The trial chamber's judgement was quite clear . . . [that] the prosecution did not provide evidence to establish genocidal intent - the main point for proving genocide. If there is no intent, there is no genocide."



And the ruling could set a precedent in the case of any future trial against Karadzic and Mladic.



The cases against the Bonsian Serb leadership are based on the concept of a "joint criminal enterprise" (JCE), implicating all of the senior figures. In the Krajisnik ruling, the judges go beyond the accused to conclude that "considering all the evidence, the Chamber does not find that the evidence supports a finding beyond a reasonable doubt that at any time during the indictment period the common objective of the JCE came to include the crime of genocide".



More broadly, Bosnians and scholars alike may also conclude that the high standard set by the court in proving genocide has as much to do with the definition of the crime as the evidence.



The trial chamber confirms Krajsnik's intent to "separate" the ethnic populations through "forcible removal", persecution and other specific crimes. They find that in his leadership role, he exercised control over the army and police, was fully involved in the decision-making process and fully and regularly informed. There is no doubt that he knew what was happening and not only supported it but personally drove it.



Yet the court concludes that the specific intent to "destroy an ethnic group in whole or in part" cannot be confirmed. In short, there is a clear distinction between ethnic cleansing and genocide itself, and in this case only the former charge has been accepted. This distinction is also implicitly confirmed in the 2004 Krstic Srebrenica appeal, in which the appeal chamber emphasised that the genocide charge rested on the massacre and not a broader effort to dislocate or remove people from a region.



While scholars may debate the point, had Milosevic lived, his case may have provided important clarification on the charge. Some analysts had raised concerns that the court's strict definition of genocide made a genocide conviction unlikely in this case, too. (See Milosevic and Genocide: Has the Prosecution Made the Case? Stacy Sullivan, TU 344,

18 February 2004, http://www.iwpr.net/?s=f&o=166466&p=tri&l=EN&apc_state=hena-genocide_2_tri_sullivan____publish_date_1_10_compact)



But significantly, in a June 16, 2004 procedural ruling in that case, the trial chamber concluded that "there is sufficient evidence that genocide was committed in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi". It goes on to confirm that it "could be satisfied beyond reasonable doubt that the accused was a participant in the joint criminal enterprise, found by the trial chamber in paragraph 246 to include the Bosnian Serb leadership, and that he [Milosevic] shared with its participants the aim and intention to destroy a part of the Bosnian Muslims as a group".



As historian Donia notes, "This does not carry the weight that a final judgement would have had in this case. But it is nonetheless authoritative in concluding that evidence exists that Milosevic committed genocide, and nothing presented in the defence phase of the case, which was almost over when Milosevic died, was raised that would change this judgement".



This raises the conjecture that, had Milosevic been found guilty of genocide, it may have set a precedent to reach a similar verdict against other participants of the joint criminal enterprise – namely Bosnian Serb leaders, including Krajisnik. Now, the opposite precedent appears to have been established, which prosecutors have concluded they are not in a position to challenge.



Whatever the legal niceties, the complexity of the decisions in The Hague are often lost back in Bosnia, where the verdict is being seized on to make definitive conclusions.



Sabra Kolenovic from Srebrenica, who survived the siege of Srebrenica in 1992 and 1993, is bitterly disappointed in the prosecution's decision not to appeal Krajisnik's acquittal for genocide.



"When they say we were 'ethnically cleansed', it sounds as if somebody came to our house and asked us to leave because we are not good or clean enough. That term is a humiliation for us, who are victims and survivors of genocide," she said. "Genocide did not happen only in Srebrenica and only in 1995 - it also took place in 1992 and 1993."



A number of scholars, including Eric Weitz, Samantha Power, Atila Marko Hoare and many others do not hesitate to qualify crimes committed by Bosnian Serbs against Muslims and Croats as genocide which started as early as in 1992.



There remains the possibility that the International Court of Justice - also in The Hague, which tries cases between states - could rule that a state is guilty of genocide even where the intent of individuals is difficult to prove. A verdict is due next year in the long-standing case brought by Bosnia against Serbia and Montenegro.

Yet this is the first time in its 60 years, that ICJ judges have had to interpret the Genocide Convention, and their decision is at this point unknown.



This underlines the importance of the ICTY. Seizing on the Krajisnik ruling, Mladen Ivanic, Bosnian foreign minister and a Bosnian Serb, argued that "considering that Krajisnik was one of the top political leaders of the Bosnian Serbs during the war, this definitely proves that the Serb people or their leaders cannot be accused of genocide".



If Karadzic and Mladic are never brought to justice, he might just be right.



Edina Becirevic is senior lecturer at the Faculty of Criminal Justice Sciences in Sarajevo.