ICTY PROSECUTORS MUST NOT MAKE SAME MISTAKES IN KARADZIC TRIAL

PHOTO: Serge Brammertz, Chief United Nations' Prosecutor of the
International Criminal Tribunal for the Former Yugoslavia (ICTY).

"The same legal team which led the prosecution in the [Momcilo] Krajisnik case is in charge of prosecuting [Radovan] Karadzic, too, and unless they change their strategy, they could repeat the same mistakes."

KRAJISNIK APPEAL MAY PRESENT PROBLEMS FOR KARADZIC PROSECUTORS

Appeals verdict in Momcilo Krajisnik case suggests prosecution could have trouble proving charges against former Bosnian Serb president.

By Edina Becirevic in Sarajevo

Last week’s appeals judgement against Momcilo Krajisnik surprised many by reducing the sentence awarded and clouding the trail of responsibility for atrocities committed during the 1992-95 war in Bosnia and Hercegovina.

On March 17, appeals judges at the Hague tribunal confirmed the conviction of former president of the Bosnian Serb assembly for the persecution of Bosniaks and Bosnian Croats in 32 Bosnian municipalities through acts of deportation and forcible transfer of the non-Serb population out of Bosnia.

However, they reduced his prison sentence by seven years, after reversing convictions against him for murder, extermination and persecutions (through crimes other than deportation and forcible transfer).

The reasoning of the final verdict yet again highlights key weaknesses of the system and practice of the Hague tribunal.

It could also have implications for the genocide case of the highest-profile indictee currently in custody – former Bosnian Serb president Radovan Karadzic.

In the trial chamber judgement of September 27, 2006, Krajisnik was sentenced to 27 years’ imprisonment after judges convicted him of killing some 3,000 non-Serbs and forcibly removing another 100,000 non-Serbs from large swathes of Bosnia in 1991 and 1992.

Trial judges acquitted him of genocide, as while they found evidence that this crime had been committed, they did not establish that Krajisnik had shown the criminal intent necessary to secure a conviction. (Page 305 of the first-instance judgment is available at: www.icty.org/x/cases/krajisnik/tjug/en/kra-jud060927e.pdf)

By not appealing the genocide acquittal, prosecutors showed they accepted their own failure to prove that Krajisnik intended to commit genocide in Bosnia.

The appeals chamber ruling highlights another shortcoming of the prosecution case against Krajisnik – the attempt to establish the accused’s responsibility for crimes through use of the “joint criminal enterprise” doctrine.

This is 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.

One problem with its use in the Krajisnik case seems to be that it wasn’t clearly established during the trial at what point the members of the joint criminal enterprise intended to commit certain crimes.

Appeals judges confirmed the trial chamber verdict that the accused “shared the intent” to commit deportation, forcible transfer and persecution “from the beginning of the joint criminal enterprise”.

Yet they found that trial judges did not clearly set out in their judgement at what point the Bosnian Serb leaders conspired to commit murder, extermination and persecution (excluding acts of deportation and forcible transfer) and so convictions against Krajisnik on these charges were overturned.

“..The Appeals Chamber is not able to conclude with the necessary preciseness how and at which point in time the common objective of the joint criminal enterprise included the expanded crimes [of murder, extermination and persecution] and, consequently, on what basis the Trial Chamber imputed those expanded crimes to Krajisnik,” stated the appeals judgement.

Another problem seems to stem from the fact that prosecutors failed to name all members of the joint criminal enterprise in the indictment.

Appeals judges accepted the argument submitted by the defence that trial judges had not clearly established who prosecutors were referring to when they mentioned lower-level participants, including paramilitaries and politicians.

In Krajisnik’s indictment, prosecutors identified a diverse group of people as taking part in the same joint criminal enterprise as the accused.

The list included Bosnian Serbian politicians Biljana Plavsic, Radovan Karadzic, Radoslav Brdjanin and Nikola Koljevic; Serbian president Slobodan Milosevic, Serbian paramilitary leader Zeljko Raznjatovic (aka “Arkan”); as well as Bosnian Serb generals Ratko Mladic and Momir Talic.

While other members are not individually named, the indictment states that “numerous individuals participated”.

The indictment vaguely alludes to these individuals – implicating members of the Bosnian Serb leadership, the Serbian Democratic Party, SDS, leadership, the Yugoslav army, the Bosnian Serb army, police and territorial defence, the Serbian and Bosnian Serb paramilitary forces and volunteer units, and military and political figures from the former Yugoslavia, Serbia and Montenegro.

But by not specifying clearly who all the individual members of the joint criminal enterprise were, prosecutors made it harder to prove that Krajisnik was responsible for their crimes.

A further flaw with prosecution’s attempts to prove Krajisnik’s participation in a joint criminal enterprise, as well as his responsibility for genocide, was the limited time covered by his indictment, which spans only the period from July 1, 1991, to December 30, 1992.

It is hard to follow the logic of the prosecution for restricting the indictment to these 18 months, as he remained president of the Bosnian Serb assembly for the entire period of the 1992-95 war.

He was therefore a key member of the Bosnian Serb leadership at the time of the Srebrenica massacre of July 1995, which both the Hague tribunal and the International Court of Justice, ICJ, have found to have been genocide.

By limiting their case to this narrow window, prosecutors made it harder to demonstrate the extent of the criminal plan in which Krajisnik took part.

This can be illustrated further by comparing the case to that of Milosevic.

Prosecutors in the Milosevic case attempted to prove that the accused participated in a joint criminal enterprise and possessed genocidal intent by demonstrating his involvement in an alleged plan drawn up at the Bosnian Serb assembly on May 12, 1992.

They argued that the so-called Six Strategic Objectives of the Serbian People set out the Bosnian Serb leadership’s plan to separate Serbs from Bosnia’s Bosniak and Croat communities by carving up the country.

According to the prosecution, they defined the leaders’ military objectives in the war – to create an ethnically pure Republika Srpska which would later become part of a Greater Serbia – and were clearly pursued until the conflict ended.

When presenting their case, the prosecutors of Milosevic clearly linked the six strategic goals to crimes committed on the ground throughout the war, with an indictment covering a period from August 1, 1991, to “at least” December 31, 1995.

They argued that the strategic goals were a clear manifestation “that a plan existed to remove non-Serbs from power in all targeted areas and to essentially remove non-Serbs physically from targeted parts of Bosnia, regardless of whether they formed the ethnic majority or not”.

A key argument in their case was that this document could be seen as a vehicle “employed by the Bosnian Serb leadership to implement a genocidal plan”.

Although Milosevic died while in detention in March 2006, before a judgement was passed in his trial, judges found following the presentation of the prosecution case that there was enough evidence on all charges in the indictment to proceed with the case.

Perhaps if prosecutors had charged Krajisnik for crimes committed throughout the entire war – and related his actions to the pursuit of these strategic goals – they would have managed to prove his responsibility for more atrocities, including genocide.

The same legal team which led the prosecution in the Krajisnik case is in charge of prosecuting Karadzic, too, and unless they change their strategy, they could repeat the same mistakes.

The amended Karadzic indictment is an improvement on the last version, updated in April 2000, in which he was not accused of taking part in a joint criminal enterprise at all.

Introducing the joint criminal enterprise doctrine should give prosecutors the opportunity to demonstrate the full extent of the Bosnian Serb leadership’s role in the war, and perhaps prove a link to Belgrade, thus giving a clearer picture of what went on in the conflict.

Furthermore, the time-frame of the Karadzic indictment – which covers the entire 1992-95 period – will allow prosecutors to draw on more evidence to support charges in the indictment.

But a glance at the Karadzic indictment would suggest that prosecutors could learn more from their experience of prosecuting Krajisnik.

When setting out the joint criminal enterprise in the Karadzic indictment, they have failed to include certain key figures, who acted in concert with the Bosnian Serb leadership during the war.

In Karadzic's indictment, the joint criminal enterprise is defined with the same vagueness that ultimately hamstrung the prosecution in the Krajisnik case.

It states that members of the joint criminal enterprise included, “members of the Bosnian Serb leadership; members of SDS and Bosnian Serb government bodies at the republic, regional, municipal, and local levels, including Crisis Staffs, War Presidencies, and War Commissions”.

To overcome this vagueness, during the presentation of their case, prosecutors must attempt to show a link between Karadzic and the particular individuals who implemented the criminal plan he is accused of orchestrating.

It is very likely that Karadzic's defence will be based on the notion that Milosevic was responsible for everything and the accused was only a cog in the machine.

Prosecutors must therefore use the evidence of the six strategic goals adopted by the Bosnian Serb parliament at the start of the war to demonstrate evidence of both a joint criminal enterprise and of genocidal intent.

Edina Becirevic is Assistant Professor at the Faculty of Criminal Justice Science, University of Sarajevo. Her OP/ED comment was published by IWPR (Institute for War & Peace Reporting) on March 27, 2009.