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What Karadzic Prosecutors Learnt From Krajisnik Trial

Tribunal watchers disagree on lessons Karadzic prosecution may have drawn from Krajisnik appeal ruling.
By Simon Jennings
Observers are at odds over the possible implications of the appeals judgement in the case of Momcilo Krajisnik for the imminent trial of his once close political ally Radovan Karadzic.



Karadzic, the former president of Republika Srpska, RS, is accused of leading the same Bosnian Serb criminal plan – or joint criminal enterprise – that Krajisnik, the ex-speaker of the RS parliament, was convicted of taking part in. He is charged with many of the crimes committed against non-Serbs in Bosnia, including genocide, for which Krajsinik has been acquitted.



A joint criminal enterprise is the legal doctrine under which members of a group are considered to be part of a conspiracy and are held responsible for each other’s criminal acts.



Following a March 17 decision by appeals judges to reverse Krajisnik’s convictions on key charges including murder, extermination and persecution, some observers fear that prosecutors may have trouble making similar accusations against Karadzic stick.



But others argue that it was the judges’ incomplete assessment of the prosecution case against Krajisnik, rather than a lack of evidence presented, that led to his acquittal on these charges.



They say that the more senior political position held by Karadzic – who is in custody in The Hague awaiting trial on 11 charges of war crimes and crimes against humanity – could mean a clearer link exists between orders given and crimes committed, and may make his case easier to prove.



Krajisnik was originally sentenced to 27 years in prison for crimes against humanity – including persecution, murder, extermination and deportation – for his bid to permanently remove Bosniaks and Croats from large areas of Bosnia between July 1, 1991 and December 30, 1992.



Trial judges found him guilty of responsibility for the killing approximately 3,000 Bosnian Muslims and Croats and forcibly removing more than 100,000 non-Serbs from Bosnian Serb-held territory.



But he was acquitted of genocide charges after judges found that prosecutors had failed to prove that he possessed genocidal intent, an element necessary for a conviction.



In last month’s appeal verdict, judges reduced Krajisnik’s sentence to 20 years after overturning his convictions for murder, extermination, as well as several of the more serious persecution counts, including cruel and inhumane treatment and unlawful detention.



Appeals judges upheld his conviction for persecution, committed through deportation and forcible transfer, saying they were satisfied with the trial chamber’s finding that Krajisnik “shared the intent” to commit these crimes as part of the joint criminal enterprise.



In explaining why the convictions were overturned, appeals judges said the trial chamber had erred by failing to establish which local politicians, military forces, police commanders and paramilitary leaders it was refering to when it mentioned lower-level members of the joint criminal enterprise.



It also failed to show exactly when the crimes of murder, extermination, and more serious counts of persecution became part of the Bosnian Serb leaders’ criminal plan, the appeal judges said.



Karadzic is charged with many of the same crimes – including killings and extermination in the Bosnian municipalities of Bijeljina, Brcko, Foca, Ilijas, Kljuc, Kotor Varos, Novi Grad and Prijedor – of which Krajisnik has now been acquitted.



Some say that following the Krajisnik appeal judgement, the prosecution in the Karadzic trial will be under pressure to ensure that it can deliver on all the charges against the former Bosnian Serb strongman – particularly after appeals judges confirmed that he and Krajisnik were members of the same joint criminal enterprise at the top of the Bosnian Serb regime.



“Anyone concluding from all of this that [it is a matter of] going in there and putting on evidence and walking away with a conviction on Karadzic, I think is mistaken,” Michael Karnavas, a defence lawyer at the Hague tribunal, told IWPR.



“Karadzic is [Krajisnik’s] political twin so the evidence that applies to one applies to the other.



“If they couldn’t get Krajisnik [for several of the charges in his indictment], it’s going to be very difficult to [prove similar charges against] Karadzic, unless there’s additional evidence.”



But despite the strong links between the two cases, other observers do not believe that overturning many of Krajisnik’s convictions will have a significant bearing on the Karadzic case.



“Some people might be concerned [that] if the prosecutors were unable to convict Krajisnik of these more serious crimes, how could they possibly convict Karadzic. But I think that would be a misreading of what happened [in reaching the appeals judgement],” Alex Whiting, a professor of law at Harvard Law School and a former Hague tribunal prosecutor, told IWPR.



“I do not think that this appeals chamber decision is a bad sign for [prosecutors in] the Karadzic case.”



Whiting said he believed that Krajinik’s convictions had been overturned not because of a lack of evidence against him, but because of “a lack of proper findings by the trial chamber”.



Appeals judges ruled that the trial chamber had only made “scarce findings” as to exactly when and how the crimes of murder, extermination and the more serious counts of persecution became part of the Bosnian Serb leadership’s criminal plan, and as a result they could not attribute those crimes to Krajisnik.



Whiting pointed out that in reaching their decision, the appeals judges only reviewed the trial judges’ findings and did not examine the body of evidence presented in the case which led them to those findings – a decision he finds “baffling”.



“The prosecution believes [that] there was evidence available to make those specific findings – it’s just the trial chamber didn’t do it,” said Whiting.



Some observers say the reversal of the trial judges’ convictions on appeal – after they failed to set out their findings clearly enough – result from excessive haste in delivering the judgement. The trial chamber delivered its verdict on September 27, 2006, less than four weeks after the presentation of evidence was concluded.



“[The overturning of the convictions are] a reflection of the problems of rendering a judgement so shortly after the end of the trial,” David Josse, who was on the Krajisnik defence team at the trial stage, told IWPR.



According to Whiting, having acknowledged the trial judges’ shortcomings, the appeal judges could either have reviewed the evidence themselves or, preferably, have sent the case back to the trial judges to ask them to substantiate their findings so that the convictions could be upheld.



“The appeals chamber provided no cogent reason why this course could not be followed,” said Whiting.



Instead, appeals judges made it clear that they were not prepared to review the evidence and quashed the convictions.



“[It was] not in the interests of justice to remit the case for further proceedings,” said Judge Fausto Pocar in handing down the appeals judgement.



JOINT CRIMINAL ENTERPRISE



Some suggest that following the appeals judges’ decision in the Krajisnik case, trial chamber judges may require Karadzic prosecutors to present more specific evidence when attempting to prove that the defendant took part in a joint criminal enterprise.



Appeal judges in the Krajisnik case limited the application of joint criminal enterprise by finding that trial judges had neither clearly linked the accused to lower-level perpetrators of crimes, nor established when exactly those criminal acts became a part of the Bosnian Serb leaders’ plan.



Observers say this decision is likely to mean that judges at the court are now less willing to accept a broad application of the doctrine.



As a result, prosecutors in the trial of Karadzic – who is accused of taking part in four joint criminal enterprises – may now have to present more specific evidence to prove each alleged conspiracy separately.



In addition to the alleged overarching plan to permanently remove Bosnian Croats and Bosniaks from large parts of Bosnia, Karadzic is charged with being part of a joint criminal plan to eliminate Bosniaks in what became the Srebrenica genocide of July 1995. It was there that nearly 8,000 Bosniak men and boys were carted off and killed in the worst atrocity on European soil since the Second World War.



Karadzic is additionally charged with spearheading the 44-month siege of Sarajevo between April 1992 and November 1995, as well as with involvement in a fourth criminal plan in May and June 1995, to hold United Nations personnel hostage in a bid to force NATO to cease airstrikes against the Bosnian Serb population.



“Rather than just proving that an overriding criminal plan took place, the prosecution will now have the burden of proving when the [members of the] joint criminal enterprise came to an agreement with respect to [each of these four] different criminal activities,” said Luka Misetic, a defence lawyer at the tribunal.



Misetic added that the Karadzic defence could benefit from this more stringent requirement.



But according to Andre de Hoogh, professor of international law at Groningen University, it is not beyond prosecutors to convict Karadzic for the more serious crimes of which Krajisnik was acquitted.



He pointed out that while appeals judges found the trial chamber did not clearly establish Krajisnik’s responsibility for crimes, it did not overrule the finding that the atrocities had occurred.



Whiting says that prosecutors will just have to be careful to provide more concrete links between the accused and specific crimes.



This is a lesson that prosecutors in the Karadzic case seem to have taken on board already.



Last week, they filed a motion asking for more time to hand judges an outline of their pre-trial brief, so as to add more detail on matters related to joint criminal enterprise.



“The Prosecution is fully cognisant of the fact that a considerable amount of detail is required in a case involving one or more joint criminal enterprises in relation to members of the joint criminal enterprise, their subordinate personnel and their actions,” prosecutors submitted in an application to pre-trial judges on March 25.



KARADZIC’S ROLE



Although lessons can be learnt from the Krajisnik trial, observers say that Karadzic’s senior political role during the war may mean that there is more compelling evidence against him than there was against his accomplice.



While Krajisnik argued strongly that he was not part of the Bosnian Serb presidency or an expanded wartime presidency, and therefore just a peripheral political figure, there is no doubt about Karadzic’s position at the pinnacle of the RS administration.



“I would imagine that Karadzic had separate contacts both to Belgrade and to the military apparatus on the ground [in Bosnia] that went beyond [what] Krajisnik had,” said Whiting.



Karadzic’s position as head of the Bosnian Serb state also allows prosecutors to seek to prove his guilt on the grounds of command responsibility, an opportunity not open to prosecutors in the Krajisnik case.



According to de Hoogh, if prosecutors can show that Karadzic knew about and tolerated the crimes being committed by his subordinates, then they can prove he was responsible for them.



“Krajisnik was a member of parliament – president of the assembly – and [didn’t] as such have command power,” said de Hoogh.



“But Karadzic was commander-in-chief, and as commander-in-chief, he actually [could] give orders to generals, which means if he was aware of the commission of crimes under his command he should have taken steps to prevent them.”



Karadzic’s superior position may also make it easier to secure a genocide conviction against him.



The prosecutors bringing the case, headed by American lawyer Alan Tieger, are the same team which prosecuted Krajisnik.



Karnavas believes that the prosecution made a “tactical decision” not to appeal Krajisnik’s acquittal on genocide charges because it wanted to leave the door open to seek a conviction in the Karadzic case.



Krajisnik was originally charged with genocide and complicity in genocide in relation to crimes committed against Bosniaks and Bosnian Croats in certain municipalities of Bosnia between July 1991, 1, and December 30, 1992.



According to Karnavas, if the appeals chamber had confirmed the verdict that Krajisnik did not commit genocide, it would have made it very difficult for prosecutors to convict Karadzic of the same charge.



“It virtually makes it impossible for them, with the same evidence on Karadzic, to try to get another trial chamber to make findings that genocide occurred,” said Karnavas.



But prosecutors will now have a fresh opportunity to try to prove the charge against Karadzic, who is also charged with a second count of genocide for the 1995 massacre at Srebrenica, of which Krajisnik was never accused.



The tribunal has already established that genocide occurred at Srebrenica in the case of the Bosnian Serb army general, Radislav Krstic, who was convicted in August 2001 and sentenced to 35 years in prison on appeal for aiding and abetting the genocide.



While it is unclear what evidence prosecutors possess against Karadzic and what strategy they will adopt for the case against him, it seems certain they will now have a clearer idea of what level of proof is required.



“The prosecution will now have a blueprint to see [where they] failed to established the [alleged] facts so in the Karadzic case [they] will go out and find evidence, if it exists, to fill in those holes,” said Misetic.



Simon Jennings is an IWPR reporter in The Hague.