Milosevic Will Have to Answer Genocide Charge

Trial Chamber III, with Judge Iain Bonomy replacing Judge Richard May, rendered its decision in the Milosevic trial on the Amici Curiae's motion for acquittal on various charges, including the charge of genocide. The three judge court held the Prosecution had produced sufficient evidence, if believed, to support its charge that a joint criminal enterprise existed, whose aim was to destroy a part of the Bosnian Muslims, and that its participants committed genocide in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi. The charges include a far broader area where genocide is alleged to have been committed than in any other trial to date.

The Court held evidence was also sufficient to establish that Milosevic was part of the joint criminal enterprise and shared its intent. Judge O-Gon Kwon dissented from the Court's holding that evidence could also sustain a conclusion that Milosevic shared the specific intent to commit genocide, but agreed he might incur liability even without specific intent under the so-called 'third category of joint criminal enterprise,' [see below].

It is important to note that the Court did not find Milosevic committed genocide. Such a conclusion is premature. It merely found that the Prosecution had produced enough evidence that, if believed, a court could find him guilty of genocide. At this stage, the judges have not weighed the evidence or thrown out evidence they might find less than credible. A motion for acquittal is a procedural technique for expediting the trial. Where the Prosecution has clearly not produced evidence to sustain charges, the Accused should not have to answer them. As a result, the Court acquits him of those charges and he does not have to produce evidence to refute them.

Concluding that evidence was sufficient to sustain a charge that Milosevic shared the intent to destroy a part of the Bosnian Muslim population with other members of the joint criminal enterprise, the Court pointed to evidence of his overall leadership position among the Serbian people, including those in Bosnia; his advocacy and support for the concept of a Greater Serbia; the logistical and financial support Serbia provided to the Bosnian Serbs, which the Court found logical to infer it was provided with Milosevic's knowledge and approval; the Accused's close relationship with and his authority and influence over the Bosnian Serb leadership; his knowledge about everything that was being done and insistence on being informed, and 'the crimes committed, the scale and pattern of the attacks on the four territories, their intensity, the substantial number of Muslims killed, the brutal treatment of Muslims in detention centres and elsewhere, and the targeting of persons essential to the survival of the Muslims as a group.'

The Court also held that the Prosecution had introduced sufficient evidence to support charges that Milosevic aided and abetted or was complicit in the crime of genocide and that he failed to exercise his authority over those who committed genocide. In addition, there was sufficient evidence for a court to find that Milosevic should have foreseen that genocide was a reasonable consequence of the joint criminal enterprise of which he was a part. In other words, he can be held liable for genocide committed by other members of the enterprise even without having a specific intent to commit genocide himself, the Court wrote. The Appeals Chamber recently so held in the Brdjanin case, stating that the Trial Court there erred in acquitting Brdjanin of genocide for lack of specific intent. This appears to expand the liability for genocide well-beyond what it has been to date, an issue that will be taken up in a future report.

The Court granted the Amici's motion for dismissal of a number of factual allegations in the Croatia and Bosnia indictments which the Prosecution's evidence failed to support. None, however, eliminated any of the 66 counts of the indictment. Nor were any allegations dismissed from the Kosovo indictment.

The Court also dismissed the Amici's challenge that an armed conflict did not exist in Kosovo before 24 March 1999, and, therefore, crimes before that time could not be charged. The Court pointed to evidence of the existence of and actions by the Kosovo Liberation Army (KLA) from as early as 1996, as well as Serbian military actions in Kosovo from early 1998.

The Court rejected the Amici's contention that the armed conflict in Croatia was not international until sometime between January 15 and May 22, 1992, because Croatia did not become a state until that time. An international armed conflict is required for the Tribunal's war crimes provisions to apply. Liability for crimes against humanity, on the other hand, can be incurred in an armed conflict that is wholly internal within a state. Trial Chamber III found that the evidence supports a conclusion that Croatia was a state as of October 8, 1991; therefore, war crimes law applied by that date.

Judge Robinson filed a separate opinion, expressing his support for a change in Rule 98bis, the rule that provides for acquittal decisions midway through the trial. Judge Robinson advocates waiting until the end of the trial for a thorough review of the evidence, except where there clearly is none that would support a charge.

Milosevic must now prepare his defence to include charges of genocide and complicity in genocide, as both a primary actor and someone who facilitated it either by action or inaction.