Prosecution Seeks to Amend Indictment in Second Srebrenica Case
Prosecution Seeks to Amend Indictment in Second Srebrenica Case
Eight weeks into the defense case in the second Srebrenica trial, the Prosecution this week sought Court permission to amend the indictment against Vidoje Blagojevic, one of two remaining defendants.* The trial began May 14, 2003, and the Prosecution concluded its case in chief on February 27, 2004.
The Prosecution seeks to conform its genocide-related charge with the recent Appeals Chamber decision in the Krstic case, which distinguished between complicity to commit genocide and aiding and abetting genocide. Blagojevic was initially charged with complicity.** The Prosecution wants to change the charge to aiding and abetting. Blagojevic's counsel opposed the amendment, claiming it was too late in the proceedings and prejudiced the Accused.
In Krstic, the Appellate Court held that complicity in genocide requires a specific intent to destroy a substantial part of an identifiable group, in this case the Bosnian Muslims in Srebrenica. One can be convicted of aiding and abetting, however, without sharing the specific intent of the primary actors. One need only know of their intent to destroy a substantial part of an identifiable group and take action that assists the accomplishment of that end. The Appeals Court set aside Krstic's conviction as a participant in a joint criminal enterprise to commit genocide, replacing it with conviction for aiding and abetting genocide. The latter offense, the Court held, is a 'lesser included offense' within the crime of genocide. Therefore, the Accused was not prejudiced by having to answer a charge of genocide rather than one of aiding and abetting genocide.
Until the Krstic decision, trial chambers in the ICTY and the Rwanda Tribunal treated complicity in genocide as synonymous with aiding and abetting genocide. The Blagojevic indictment was written with that understanding. The Prosecution argued that the Krstic court expanded the meaning of complicity beyond what it (the Prosecution) had intended when it charged Blagojevic with the crime. Aiding and abetting genocide more appropriately reflects their intent, they said.
In seeking to have the indictment amended, the Prosecution argued that aiding and abetting is a 'lesser included offense' within the charge of complicity, as well as within the genocide charge. In other words, it would not require the defense to answer anything new. Defense counsel disputed that, maintaining he might have pursued a different strategy had the charge been one of aiding and abetting. The defense, however, provided no specifics on how the Accused would be prejudiced by having to answer the charge of aiding and abetting rather than complicity in genocide.
The Prosecution may also have had in mind the Trial Court's earlier acquittal of Blagojevic on other charges alleging he was a primary actor in the campaign of mass killing. At the close of the Prosecution's case, the Court granted substantial parts of a defense motion for acquittal, finding that the evidence could not sustain Blagojevic's involvement as a major planner or organizer.
[Generally, when the prosecution finished presenting its evidence, a court reviews the evidence presented by the prosecution solely to determine if it is adequate (if believed) to allow a reasonable trier of fact (trial court) to conclude beyond a reasonable doubt that the crime charged was committed and committed by the accused. Unless the evidence is blatantly unbelievable, the court does not weigh the evidence to determine what it finds credible and what it does not, leaving this for its final judgment after the defense has had an opportunity to present evidence to contradict prosecution evidence. But where the prosecution hasn't produced sufficient evidence to support its charges by the close of its case, the trial court can acquit the accused on those charges.]
In the Blagojevic case, the Trial Court acquitted the Accused of planning, instigating or ordering the joint criminal enterprise that included crimes of murder, extermination, forcible removal, and persecution of the Bosnian Muslims in Srebrenica. However, the Accused could still be held liable for participation in the joint criminal enterprise for 'committing' the crime of persecution by virtue of his involvement in the evacuation of Bosnian Muslims.*** Finding as well that the evidence was sufficient to establish a murder operation existed and that it constituted genocide, the Court also concluded that the evidence could support a finding that Blagojevic was complicit in the genocide.
Reviewing the facts, the Trial Court found they could support conclusions that troops and resources of the Bratunac Brigade (which Blagojevic commanded) were involved in the commission of crimes, that Blagojevic was aware of the crimes and was informed of the criminal activities of those who answered to him. Therefore, he could be found guilty as a commander who failed to prevent or punish the crimes, since he had the power to do so.****
Finding that the evidence was insufficient to support a conclusion that Blagojevic was one of the main actors in the joint criminal enterprise ('planned, instigated, ordered,' in the words of Article 7 (1) of the ICTY Statute), the Court noted that he was merely present in the relevant area at the relevant time; there was little evidence of contact between him and alleged members of the joint criminal enterprise; superior commands of the Bratunac Brigade, the Main Staff of the VRS (Army of the Republika Srpska) and the Drina Corps were co-located with the Bratunace Brigade, and there was evidence of occasions when the superior echelons bypassed the chain of command and issued orders directly to the Bratunac Brigade without Blagojevic's authorization.
According to the Court, 'While there is evidence which could lead a reasonable trier of fact to conclude that the Accused had knowledge of the murder operation, this evidence is not deemed sufficient to allow a reasonable trier of fact to conclude that the Accused as a consequence participated in the joint criminal enterprise to execute Bosnian Muslim men.' However, the Court also concluded, 'The Trial Chamber finds that there is sufficient evidence which, if accepted, could lead a reasonable trier of fact to find that the Accused knowingly provided assistance in the commission of the crimes.'
With regard to Jokic, however, who had been viewed as the less culpable of the two, the Court let stand charges that he was a member of the joint criminal enterprise, shared its goal and the intent to destroy, and participated in the execution and furthering of its common design. The evidence could also support a finding that he aided and abetted the joint criminal enterprise by knowingly assisting in the commission of the crimes.
The evidence did not support a finding, however, that he participated in the planning, instigating or ordering of the operation.
The Prosecution earlier requested permission of the Trial Chamber to appeal the acquittal judgment. The Trial Chamber denied the motion, holding that the Prosecution had used the wrong legal procedure and should have appealed directly to the Appeals Chamber rather than requesting the Trial Chamber's permission to do so. The Prosecution did not pursue the appeal, apparently accepting the Trial Court's determination that Blagojevic's culpability is more properly characterized as an aider and abettor rather than a main actor.
Until the Trial Chamber rules on the Prosecution's latest motion, the indictment against Blagojevic and Jokic looks like this. Blagojevic is charged with: complicity in genocide; extermination, murder, persecutions and forcible transfer, all crimes against humanity, as a result of his command responsibility. He is also charged with murder as a war crime, via command responsibility. Finally, the charges that he committed the crime of persecutions and inhumane acts by forcible transfer (crimes against humanity) remain.
Jokic must answer charges of: command responsibility, as well as individual responsibility, for committing extermination, murder, persecutions and forcible transfer, all crimes against humanity; also for murder as a war crime.
The trial continues daily.
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*Two others, Momir Nikolic and Dragan Obrenovic, pled guilty prior to the beginning of the trial.
**Co-Accused, Dragan Jokic, was not charged with crimes under the Genocide Article.
***Individual criminal responsibility (for genocide and other crimes punishable under the ICTY statute) is assigned to 'a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the . . . Statute. . . .' Article 7 (1)
****Article 7 (3) provides for liability based on command responsibility, i.e. if one with superior authority over others knew or had reason to know that a subordinate was about to commit one of the crimes prohibited by the ICTY Statute or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.'
The Prosecution seeks to conform its genocide-related charge with the recent Appeals Chamber decision in the Krstic case, which distinguished between complicity to commit genocide and aiding and abetting genocide. Blagojevic was initially charged with complicity.** The Prosecution wants to change the charge to aiding and abetting. Blagojevic's counsel opposed the amendment, claiming it was too late in the proceedings and prejudiced the Accused.
In Krstic, the Appellate Court held that complicity in genocide requires a specific intent to destroy a substantial part of an identifiable group, in this case the Bosnian Muslims in Srebrenica. One can be convicted of aiding and abetting, however, without sharing the specific intent of the primary actors. One need only know of their intent to destroy a substantial part of an identifiable group and take action that assists the accomplishment of that end. The Appeals Court set aside Krstic's conviction as a participant in a joint criminal enterprise to commit genocide, replacing it with conviction for aiding and abetting genocide. The latter offense, the Court held, is a 'lesser included offense' within the crime of genocide. Therefore, the Accused was not prejudiced by having to answer a charge of genocide rather than one of aiding and abetting genocide.
Until the Krstic decision, trial chambers in the ICTY and the Rwanda Tribunal treated complicity in genocide as synonymous with aiding and abetting genocide. The Blagojevic indictment was written with that understanding. The Prosecution argued that the Krstic court expanded the meaning of complicity beyond what it (the Prosecution) had intended when it charged Blagojevic with the crime. Aiding and abetting genocide more appropriately reflects their intent, they said.
In seeking to have the indictment amended, the Prosecution argued that aiding and abetting is a 'lesser included offense' within the charge of complicity, as well as within the genocide charge. In other words, it would not require the defense to answer anything new. Defense counsel disputed that, maintaining he might have pursued a different strategy had the charge been one of aiding and abetting. The defense, however, provided no specifics on how the Accused would be prejudiced by having to answer the charge of aiding and abetting rather than complicity in genocide.
The Prosecution may also have had in mind the Trial Court's earlier acquittal of Blagojevic on other charges alleging he was a primary actor in the campaign of mass killing. At the close of the Prosecution's case, the Court granted substantial parts of a defense motion for acquittal, finding that the evidence could not sustain Blagojevic's involvement as a major planner or organizer.
[Generally, when the prosecution finished presenting its evidence, a court reviews the evidence presented by the prosecution solely to determine if it is adequate (if believed) to allow a reasonable trier of fact (trial court) to conclude beyond a reasonable doubt that the crime charged was committed and committed by the accused. Unless the evidence is blatantly unbelievable, the court does not weigh the evidence to determine what it finds credible and what it does not, leaving this for its final judgment after the defense has had an opportunity to present evidence to contradict prosecution evidence. But where the prosecution hasn't produced sufficient evidence to support its charges by the close of its case, the trial court can acquit the accused on those charges.]
In the Blagojevic case, the Trial Court acquitted the Accused of planning, instigating or ordering the joint criminal enterprise that included crimes of murder, extermination, forcible removal, and persecution of the Bosnian Muslims in Srebrenica. However, the Accused could still be held liable for participation in the joint criminal enterprise for 'committing' the crime of persecution by virtue of his involvement in the evacuation of Bosnian Muslims.*** Finding as well that the evidence was sufficient to establish a murder operation existed and that it constituted genocide, the Court also concluded that the evidence could support a finding that Blagojevic was complicit in the genocide.
Reviewing the facts, the Trial Court found they could support conclusions that troops and resources of the Bratunac Brigade (which Blagojevic commanded) were involved in the commission of crimes, that Blagojevic was aware of the crimes and was informed of the criminal activities of those who answered to him. Therefore, he could be found guilty as a commander who failed to prevent or punish the crimes, since he had the power to do so.****
Finding that the evidence was insufficient to support a conclusion that Blagojevic was one of the main actors in the joint criminal enterprise ('planned, instigated, ordered,' in the words of Article 7 (1) of the ICTY Statute), the Court noted that he was merely present in the relevant area at the relevant time; there was little evidence of contact between him and alleged members of the joint criminal enterprise; superior commands of the Bratunac Brigade, the Main Staff of the VRS (Army of the Republika Srpska) and the Drina Corps were co-located with the Bratunace Brigade, and there was evidence of occasions when the superior echelons bypassed the chain of command and issued orders directly to the Bratunac Brigade without Blagojevic's authorization.
According to the Court, 'While there is evidence which could lead a reasonable trier of fact to conclude that the Accused had knowledge of the murder operation, this evidence is not deemed sufficient to allow a reasonable trier of fact to conclude that the Accused as a consequence participated in the joint criminal enterprise to execute Bosnian Muslim men.' However, the Court also concluded, 'The Trial Chamber finds that there is sufficient evidence which, if accepted, could lead a reasonable trier of fact to find that the Accused knowingly provided assistance in the commission of the crimes.'
With regard to Jokic, however, who had been viewed as the less culpable of the two, the Court let stand charges that he was a member of the joint criminal enterprise, shared its goal and the intent to destroy, and participated in the execution and furthering of its common design. The evidence could also support a finding that he aided and abetted the joint criminal enterprise by knowingly assisting in the commission of the crimes.
The evidence did not support a finding, however, that he participated in the planning, instigating or ordering of the operation.
The Prosecution earlier requested permission of the Trial Chamber to appeal the acquittal judgment. The Trial Chamber denied the motion, holding that the Prosecution had used the wrong legal procedure and should have appealed directly to the Appeals Chamber rather than requesting the Trial Chamber's permission to do so. The Prosecution did not pursue the appeal, apparently accepting the Trial Court's determination that Blagojevic's culpability is more properly characterized as an aider and abettor rather than a main actor.
Until the Trial Chamber rules on the Prosecution's latest motion, the indictment against Blagojevic and Jokic looks like this. Blagojevic is charged with: complicity in genocide; extermination, murder, persecutions and forcible transfer, all crimes against humanity, as a result of his command responsibility. He is also charged with murder as a war crime, via command responsibility. Finally, the charges that he committed the crime of persecutions and inhumane acts by forcible transfer (crimes against humanity) remain.
Jokic must answer charges of: command responsibility, as well as individual responsibility, for committing extermination, murder, persecutions and forcible transfer, all crimes against humanity; also for murder as a war crime.
The trial continues daily.
--------------------------------------------------------------
*Two others, Momir Nikolic and Dragan Obrenovic, pled guilty prior to the beginning of the trial.
**Co-Accused, Dragan Jokic, was not charged with crimes under the Genocide Article.
***Individual criminal responsibility (for genocide and other crimes punishable under the ICTY statute) is assigned to 'a person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the . . . Statute. . . .' Article 7 (1)
****Article 7 (3) provides for liability based on command responsibility, i.e. if one with superior authority over others knew or had reason to know that a subordinate was about to commit one of the crimes prohibited by the ICTY Statute or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.'
