Prosecutors Argue Against Cutting Karadzic Indictment

Friday, 19 April, 2013

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Rachel Irwin

Senior Reporter

Hague tribunal prosecutors this week offered forceful arguments against last year’s decision to acquit Radovan Karadzic of one count of genocide.

The acquittal was the result of a process known as “98 bis”, which occurs at the conclusion of the prosecution’s case. According to this rule, if there is no evidence capable of supporting a conviction, judges can acquit a defendant of one or more counts of the indictment before the defence case begins.

On June 28 last year, trial judges dismissed the first count of the indictment, which accused Karadzic of genocide in seven Bosnian municipalities, excluding the eastern town of Srebrenica, between March 31 and December 31, 1992. (See Karadzic Acquitted of One Genocide Count on this.)

A separate count of genocide relating to the 1995 massacre at Srebrenica, where more than 7,000 Bosnian Muslim men and boys were killed, remains in the indictment. So do counts of persecution, extermination, murder, deportation, inhumane acts, terror, unlawful attacks and the taking of United Nations peacekeepers as hostages.

Prosecutors appealed against the decision shortly after it was delivered, and the appeals bench heard their arguments on April 17.

Trial lawyer Alan Tieger started off by asking the chamber to “imagine for a moment a middle aged baker from the municipality of Prijedor who has lived there his entire life”.

In 1991 and early 1992, the baker would have been exposed to “mounting signs of anti-Muslim animus” including the arming of his Serb neighbours and mounting claims that the “villains of World War II” had returned – a reference to the Croatian fascists known as Ustasha and their supposed Muslim collaborators”, Tieger said.

Then, on May 24, 1992, Bosnian Serb police and armed forces attacked the town of Kozarac, and 800 people were killed.

“Although our baker survives, he is rounded up and taken with other men to Omarska or Keraterm camps,” the lawyer contined. “At Omarska, he is beaten upon arrival. Over the course of the summer – until enterprising journalists exposed the camp and its conditions to the world — he is held in horrific conditions.”

The several thousand prisoners were “jammed into cells far too small for that number”, with conditions for hygiene “practically non-existent”.

“Prisoners sometimes lie in their own excrement,” Tieger said.

Dysentery and other diseases were rife, prisoners were given water to drink that was intended for “industrial use”, and the starvation rations resulted in “dramatic” weight loss, he said.

Leaders of the Muslim and Croat communities were singled out for “particular horrific treatment” and few of them survived, though everyone was beaten regularly, Tieger said.

“Every night men were taken to be killed, [and] every day piles of bodies are seen outside waiting to be carted away like garbage. As [one] witness explained, ‘It was inhumane and pitiless machinery which did not see anything human in anyone. It was turned only to itself. That was Omarska.’”

Meanwhile, attacks on remaining Muslim areas in Prijedor continued, and those who survived were taken to the camps where they too were severely mistreated and often killed, Tieger said.

“Overall, as many as 5,000 Muslim bodies were hurled into an abandoned mine shaft following the commencement of attacks and detentions, prompting concern by Bosnian Serb officials in 1993 about what to do with those bodies – ‘incinerate, grind them up, or something else?’” Tieger said.

“No one who experienced this would understand it as anything less than the result of an intention to destroy the Muslims and Croats of Prijedor,” he continued.

Tieger then turned to statements made by the accused. He showed the court video footage of Karadzic from October 1991, in which he famously warned members of Bosnia’s assembly not to pursue independence from Yugoslavia.

“Don’t think that you won’t take Bosnia and Hercegovina to hell, and Muslim people to possible extinction,” Karadzic says in the footage.

A few days earlier, Karadzic reportedly told an interlocutor that what awaited Muslims and Croats in Bosnia was “a real bloodbath”, and that Sarajevo would become a “cauldron where 300,000 Muslims would die at the hands of armed Serbs”. The Bosnian Muslims would be “up to their necks in blood” and would “disappear,” Tieger quoted the defendant as saying.

The lawyer said Karadzic spoke to Bosnian Serb politician Momcilo Krajisnik about Bosnian president Alija Izetbegovic’s plans to pursue independence.

“Does he want to destroy Sarajevo? We will release our tigers and let them do their job,” Karadzic said, according to Tieger.

The lawyer said that “once conflict was under way, once the tigers were released, and once people in Omarska were slowly dying of starvation and disease, or more quickly from beatings,” Karadzic agreed with remarks by a Bosnian Serb politician to the effect that Serbs were to be the “executioners” of Bosnia’s Muslims.

The accused allegedly added that the “conflict was roused to eliminate Muslims. Muslims think they are being nationally established, but in fact they are vanishing.’”

At this point, Judge Patrick Robinson interjected.

“Would statements like this be enough to meet the 98 bis standard for genocidal intent?” he asked.

“Taken individually under the 98 bis standard, they certainly would be,” Tieger replied. “The reason I outlined several of those is to avoid any ambiguity about context and nuance. The repeated insistence on annihilation, extinction, [and] blood to their knees, makes clear that taken on their face and taken at their highest, [these statements] more than suffice as direct evidence of the requisite intent.”

Karadzic’s legal advisor Peter Robinson did not deny that the accused made the statements cited, but argued that “there has to be a result” from genocidal intent.

“I can have a loaf of bread, I can have a package of ham, but I don’t have a ham sandwich. There has to be confluence in order for you to have genocide,” he said.

Robinson offered a very different narrative of the war from that presented by the prosecution.

He conceded that villages were attacked and some Muslims and Croats were killed or captured, but argued that much larger numbers were “transported to territory controlled by Bosnian Muslims”.

Some prisoners died in detention camps, but the “vast majority” were exchanged for Serb prisoners or released, Robinson continued.

“Time after time, in village after village, town after town, [and] in these detention facilities, Bosnian Serbs would have tens of thousands of Bosnian Muslims in their custody and control; they had the opportunity and means to destroy them, and let the overwhelming majority of them go. That’s why there was no genocide in the municipalities,” Robinson said.

He further submitted that there was “simply no evidence that anyone acted on these statements [cited by the prosecution] and committed acts to destroy Bosnian Muslims”.

“You had displacement, not destruction,” he said.

Judge Robinson then interjected and pointed out that the prosecution argument was about “not just displacement” but also other factors that cumulated in genocide.

“All you are looking for is evidence that raises possibility for conviction, for guilt – not the certainty for guilt. That is where a fine line of distinction has to be drawn between the end of the case and the half-way stage,” the judge said. “I don’t understand the prosecution to be saying if there is any evidence, [the genocide count] must [remain] till the end of the case. It is some evidence that raises reasonably the possibility of conviction.”

The defence lawyer asked, “What is evidence capable of sustaining a conviction? The trial chamber looked at it in detail; heard all the evidence you’ve heard. They decided the evidence was not capable of sustaining a conviction.”

The exchange between the two men went on for several minutes, and then presiding Judge Theodor Meron asked the lawyer about the testimony of a witness who described meeting a municipal leader during the war. According to the witness, this municipal leader described having meetings with Karadzic where it was decided “that one-third of Muslims would be killed, one-third would converted to the Orthodox [Christian] religion and one-third would leave on their own, and thus Muslims would disappear from the territory”.

“Does a statement like that provide direct evidence of genocidal intent?” Judge Meron asked.

“Yes,” lawyer Peter Robinson replied. “Now the question is whether it was ever acted upon or whether genocide ever took place. That is evidence which taken at its highest could be seen as evidence of genocidal intent.”

The prosecution went on to argue that this was an “extraordinary concession” on the part of the defence.

“This shows that what [the defence lawyer] is relying on is a weighing of evidence. What he is suggesting is that you have to simply look and see whether, when weighing all the factors, it’s enough to sustain a genocide charge,” Michelle Jarvis, a senior legal advisor in the Office of the Prosecutor, said. “We say that’s the fundamental problem, that’s the question for the end of the case.”

“It would be unbelievably problematic for this tribunal to terminate Count 1 at this stage. It is one of the fundamental questions arising out of the criminal campaign in Bosnia in 1992, and that’s a question that deserves the fullest consideration based on the full evidentiary record and full argument by the parties,” Jarvis continued.

At the end of the hearing, Karadzic briefly presented his own arguments to the bench.

“Although I’m not a lawyer, better than anyone else in the world I know the factual state of war in Bosnia and Hercegovina. And I know also what my responsibility was. It’s not only that I know what I did, I know what I thought, what I wanted, what I was saddened by, what I worked for…. No one was responsible for genocide, because genocide didn’t happen,” he said.

Meanwhile, in Karadzic’s ongoing defence case, the former commander of Bosnian Serb troops around Sarajevo, began his testimony on behalf of the accused.

General Stanislav Galic, wartime commander of the Sarajevo-Romanija Corps of the Bosnian Serb army, was sentenced to 20 years imprisonment by tribunal judges in 2003, for commanding a sniping and shelling campaign against the city that ultimately killed some 12,000 civilians. His sentence was increased to life in prison on appeal in 2006.

Giving evidence this week, Galic claimed that “we received orders that all 1949 Geneva Conventions be adhered to”.

“I would then in turn issue instructions further down the corps,” he said. “And I think everyone was aware of this. One has to bear in mind that we were at war. It was really hard to reach every soldier and to train him. The next order I would issue is that civilians shouldn’t be targets of the attack.”

Galic said civilian casualties in Sarajevo “were proportionate to the targets that were fired upon”. If there was “some indication that there was sometimes an excessive use of artillery”, he said “that was not entirely possible to control”.

The witness said he took “seriously” all allegations of excessive fire on civilians and made inquiries into every protest lodged by the United Nations and others. However, he said in that in some cases there were indications that the “Muslim forces” were firing on their own people – an allegation Karadzic has made numerous times during the trial.

Galic will continue his testimony next week.

Rachel Irwin is IWPR’s Senior Reporter in The Hague.