Institute for War and Peace Reporting | Giving Voice, Driving Change
Judge Alphons Orie. (Photo: ICTY)
Former Bosnian Serb army commander Ratko Mladic’s request to be acquitted of genocide and other charges prior to the start of his defence case was rejected this week by judges at the Hague tribunal.
“The chamber considers that the accused has a case to answer on all counts of the indictment,” presiding Judge Alphons Orie stated at the conclusion of the April 15 hearing.
According to the tribunal’s Rule 98 bis, at the end of the prosecution’s case, “the chamber shall, by oral decision and after hearing the submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction”.
Mladic’s defence lawyers argued that their client should be acquitted on both counts of genocide in the indictment, as well as of several individual incidents within other counts, on the grounds that the prosecution had failed to prove them. They contended that Rule 98 bis should not be “restrictively interpreted” to include only entire counts, rather than the individual charges included in them. (See Mladic Lawyer Argues for Charges to be Dropped.)
Prosecutors allege that Mladic, the commander of the Bosnian Serb army from 1992 to 1996, is responsible for crimes of genocide, persecution, extermination, murder and forcible transfer which “contributed to achieving the objective of the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory”.
He is accused of planning and overseeing the 44-month siege of Sarajevo that left nearly 12,000 people dead, as well as the massacre of more than 7,000 men and boys at Srebrenica in July 1995.
Mladic was arrested in May 2011 after spending 16 years as a fugitive. His trial began in May 2012 and the prosecution rested its case in February of this year.
Reading out the chamber’s decision in open court this week, Judge Orie noted that according to tribunal case law regarding 98 bis,“the chamber must examine whether there is evidence upon which a reasonable trier of fact could be satisfied beyond reasonable doubt of the guilt of the accused”. During this process, the bench gives the prosecution’s evidence “credence unless incapable of belief”. Judges are therefore not weighing the evidence or determining its credibility, as they would at the completion of the entire case.
Judge Orie noted that Rule 98 bis had been amended in 2004 “to streamline the proceedings in the interest of judicial economy”. Instead of a written decision that dealt with individual charges, it became an oral one that evaluated only entire counts.
“This did not affect the accused’s right to be presumed innocent until proven guilty,” Judge Orie said.
The chamber therefore rejected the defence’s argument to have specific incidents dropped from the indictment.
The judge said that it was the bench’s duty to “assess whether there is evidence capable to supporting a conviction on every count of the indictment, irrespective of whether the defence explicitly challenged all counts”.
To that end, the judge read a lengthy summary of the indictment as well as a “focused selection” of relevant findings.
In terms of the counts of persecution, murder and genocide, the chamber cited evidence received during the trial about Bosnian Serb-run detention facilities, including the Keraterm camp in Prijedor and the KP-Dom in Foca.
Judge Orie described the testimony of a witness who was imprisoned at the Keraterm camp in 1992, and who saw “a table with a machine gun and a portable spotlight being set up and directed at room 3, where 180-200 detainees were squeezed in”.
The witness testified that he subsequently heard machine gun fire and was then ordered to load dead bodies onto trucks.
At the KP Dom in Foca, one witness testified that detainees were often taken to solitary cells “from which moans, screams and shots could be heard”, Judge Orie said.
The judge also described evidence of mass rapes committed by Bosnian Serb soldiers in Foca. While Mladic isn’t charged with any stand-alone counts of rape, the counts of genocide, persecution, deportation and inhumane acts include rape and other crimes of sexual violence as underlying acts.
In 2001, the Hague tribunal convicted three members of the Bosnian Serb army – Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic – of personally raping, enslaving and torturing Bosnian Muslim women at various locations in Foca in 1992.
Judge Orie said that during the Mladic trial, witness RM-70 testified that at a location known as Kareman’s house, Bosnian Muslim women and girls as young as 12 were raped and beaten by Bosnian Serb soldiers.
Another witness, RM-48, testified that she was taken from Kareman’s house in mid-August 1992 to the residence of another Serb soldier “where she was held and raped until her release in July 1993,” Judge Orie said. During this time, the judge continued, the soldier took this witness to a celebration, in the course of Mladic approached them and asked the soldier whether the witness was his “Herzegovinian girl”.
Mladic “then turned to the witness directly and asked her whether it was ‘better than in Alija’s state,’” – an apparent reference to Alija Izetbegovic, the Bosniak president of Bosnia and Herzegovina during the war.
“The witness testified that this made her believe that Mladic knew about girls being kept as sexual slaves. According to the witness, no Muslim women or girls were living freely in Foca at the time,” Judge Orie said.
He added that one of Mladic’s wartime notebooks submitted as evidence during the trial had the names of two young women that Bosnian officials were looking for, and who a witness testified were held as sex slaves. (See also Witness Describes Sexual Torture by Bosnia Serb Forces.)
Moving on to the Srebrenica massacre, Judge Orie described the testimony of Drazen Erdemovic, who admitted to taking part in the execution of some 1, 200 Bosnian Muslim males, aged 17 to 65, at Branjevo Military Farm on July 16, 1995. Erdemovic pleaded guilty to murder in 1998 and was sentenced to five years in prison. He has since testified as a prosecution witness in several Srebrenica-related trials at the tribunal.
Erdemovic, who was part of the 10th Sabotage Detachment of the Bosnian Serb army, testified that after the busloads of prisoners began to arrive, other soldiers joined his unit at the execution site and “beat and cursed the detainees and forced them to pray ‘in a Muslim manner’”.
Two witnesses who survived the executions testified that they lay motionless among the corpses while they listened to other groups of prisoners arriving and then succumbing to machine gun fire, Judge Orie said.
“Witness RM 255 said that on two occasions he heard soldiers make statements about them committing genocide. Once while he was being led to site, and another time after his escape while hiding nearby,” Judge Orie continued.
The bench concluded that there is “evidence that acts of genocide took place in Srebrenica and the municipalities during the indictment period”.
Judge Orie said that the chamber considered that “there is evidence upon which, if accepted, a reasonable trier of fact could be satisfied beyond a reasonable doubt that during the period relevant to the indictment there existed a JCE [joint criminal enterprise] composed of members of the Bosnian Serb leadership and the Bosnian Serb Army, including [Bosnian Serb president] Radovan Karadzic and the accused, the purpose of which was to permanently remove Bosnian Muslims and/or Croats from Serb claimed territories in Bosnia Herzegovina through the commission of crimes charged in the indictment”.
Judge Orie added that there was evidence that Mladic, as commander of the army, “implemented measures… to advance the objective of the JCE”.
The judge also drew attention to specific phone intercepts, including one from 1992 where Mladic tells his interlocutor that “the whole of Bosnia will burn if I start to speak, not just Sarajevo”.
He also noted video footage taken after the Bosnian Serb army captured Srebrenica, where Mladic walks through the streets and says, “We give this town to the Serb people as a gift. The time has come to take revenge on the Turks.”
Mladic’s lawyers will begin presenting their defence case on May 13.
Rachel Irwin is IWPR’s Senior Reporter in The Hague.
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