WELCOME TO IWPRS ICTY - TRIBUNAL UPDATE No. 594, March 27, 2009 COURT HEARS OPERATION STORM DOCUMENTS MISSING Gotovina defence calls on judges to order EU to hand over requested files. By Rachel Irwin in The Hague (TU No 594, 27-Mar-09)
COURTSIDE GOTOVINA DEFENCE CALLS FOR ACQUITTAL Lawyer argues prosecution case against three Croatian generals is weakest unlawful shelling case in tribunals history. By Simon Jennings in The Hague (TU No 594, 27-Mar-09) WITNESS DESCRIBES MEETINGS BETWEEN PERISIC AND MLADIC He also said he thought Mladic was on Yugoslav army payroll until 2002. By Rory Gallivan in London (TU No 594, 27-Mar-09) LUKIC LAWYERS LAMBAST REPORT ON VICTIMS They say expert witnesss methods inappropriate and irrelevant for case. By Rachel Irwin in The Hague (TU No 594, 27-Mar-09) JOKIC CONVICTED OF CONTEMPT OF COURT Former Bosnian Serb army officer sentenced to four months in jail for refusing to testify in Srebrenica Seven case. By Simon Jennings in The Hague (TU No 594, 27-Mar-09) COMMENT 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. 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For more information about how you can support IWPR go to: http://www.iwpr.net/donate.html **** www.iwpr.net ******************************************************************** COURT HEARS OPERATION STORM DOCUMENTS MISSING Gotovina defence calls on judges to order EU to hand over requested files. By Rachel Irwin in The Hague Lawyers of the former Croatian army general Ante Gotovina claim that 95 reports pertaining to events during the Operation Storm military offensive are missing from a European Union, EU, archive. They say they discovered the key documents were missing after Hague tribunal judges ordered the EU Monitoring Mission to grant the Gotovina defence access to its archives on February 28, 2008. Gotovina is accused along with Ivan Cermak and Mladen Markac of ordering the shelling of civilian areas, murdering Serb civilians and destroying their property during and after Operation Storm. About 200,000 Serb civilians are estimated to have fled their homes in the days leading up to the offensive. Gotovinas defence lawyer Luka Misetic told IWPR that the files in question are crucial to the case because they can provide insight into what really happened during the brief 84-hour offensive, which was launched on August 4, 1995 to retake the Serb-controlled Krajina region of Croatia. Misetic said that throughout the war, three ECMM teams would write reports chronicling events on the ground each day, which were then sent to regional monitoring centres in Knin and Zagreb, and on to EU headquarters in Brussels. The daily output was exact, explained Misetic, so it was not difficult to calculate how many reports were missing. The documents could help to corroborate the defence assertion that Operation Storm was conducted in accordance with international law and that the shelling particularly in the town of Knin was not excessive or targeted at civilians, explained Misetic. It was the European Union [which] publicly stated the most serious allegations, that, in fact, there had been an indiscriminate attack against Knin, Misetic told IWPR. Now the underlying reports [supporting] that assertion are missing. The serious allegations, continued Misetic, were originally made by Carl Bildt, who served as the EU special envoy to the former Yugoslavia at the time of Operation Storm. He has been a vocal critic of the offensive, and was quoted in the Wall Street Journal in 1999 as saying that Operation Storm was "the most efficient ethnic cleansing we've seen in the Balkans. Bildts assertions contrast with those of Peter Galbraith, the former United States ambassador to Croatia from 1993 to 1998. He appeared as a witness for the Gotovina prosecution last June and told the court that the shelling of Knin was relatively brief not very destructive, and took place in the context of an operation aimed at capturing the town. Misetic said that while his team has a few of the ECMM reports drafted between August 4 and 6, all the documents that would assess the shelling of Knin are missing. We dont know why, he said. We now have access to the archives, but we dont have a means of investigating why documents are not [there]. The defence filed a motion on March 20 requesting that judges order Javier Solana, Secretary General of the Council of the European Union, to provide all of the documents requested. The European Union has consistently refused to cooperate voluntarily with the Gotovina defence over the past two years, wrote Misetic in the filing, referring to the fact that they had to request a court order to gain access to the archive. He further requested that the judges order the EU to open an investigation into what happened to the missing documents if it cannot produce them. The judges are expected to make a ruling on the matter within the next 10 days. Cristina Gallach, the spokeswoman for the EU Secretary General, insisted that there is excellent cooperation between The Hague Tribunal and the EU. She added that all that [the Gotovina defence] has asked for has been provided [to them]. When pressed about the missing documents, she declined to comment further, citing the ongoing court proceedings. Rachel Irwin is an IWPR reporter in The Hague. COURTSIDE GOTOVINA DEFENCE CALLS FOR ACQUITTAL Lawyer argues prosecution case against three Croatian generals is weakest unlawful shelling case in tribunals history. By Simon Jennings in The Hague The defence teams of former Croatian general Ante Gotovina and his two co-defendants have each called for their respective clients acquittal on all charges including the murder, deportation and forcible transfer of Serb civilians in 1995. Gotovina went on trial on March 11, 2008, and is charged along with two other former generals, Ivan Cermak and Mladen Markac, with orchestrating the permanent removal of Serbs from the Krajina region of Croatia between July and September 1995. According to the indictment, the three men were part of a criminal conspiracy to permanently remove the Serb population from the Krajina region by force, fear, or threat of force, persecution, forced displacement, transfer, and deportation, appropriation and destruction of property or other means. Gotovina was the commander of the Croatian forces deployed in the Krajina and headed the August 1995 military campaign known as Operation Storm which prosecutors alleged prompted around 200,000 Serbs to flee the region. The prosecution says that Croatian forces bombarded towns across the Krajina before embarking on a campaign, which included the killing of civilians, the burning of houses and looting of property in a bid to drive Serbs out of the area and prevent their return. However, lawyers representing Gotovina have called for the former generals acquittal on all charges in relation to attacks on Knin and other towns in the Krajina in August 1995, arguing that the military onslaught was in no way excessive or directed at civilians. The prosecutions case... is that there was shelling in different parts of Knin, defence counsel Payam Akhavan told the court in a second round of arguments calling for the defendants acquittal this week. Beyond speculation... there is not a single instance where an unlawful attack is conclusively proven. Under tribunal rules, the defence may seek an acquittal from the judges at the midpoint of a trial on any charges that it deems the prosecution has not proved during the presentation of its evidence. The prosecution rested its case on March 5, having presented testimony from 79 witnesses. Akhavan pointed to reports by United Nations military observers known as UNMO on the ground in the Krajina which he said do not support the view that there was excessive shelling in Knin by Croatian forces during August 1995. He submitted that the reports conclude that artillery fire was concentrated in the close vicinity of military objectives and caused minimal damage, and therefore show that attacks were not aimed at civilians. Akhavan cited an argument made by the prosecution during its case that between 50 and 75 civilians died as a result of disproportionate force used by the Croatian military during the operation. However, he said that prosecutors had failed to prove that these victims had all been civilians, and argued that that they could therefore have been incidental casualties of an otherwise legal attack against a military target, rather than a residential area. What is most significant for these proceedings is that there is no proof whatsoever of a single death or injury resulting from an unlawful attack, said Akhavan. Akhavan also highlighted the testimony of prosecution witnesses heard over the last 12 months which supported his argument that Operation Storm was not targeted at civilians. Peter Galbraith, the US ambassador to Croatia during 1995, testified in June last year that he [did] not think Operation Storm was taken with the purpose of expelling the Serbs from Croatia, recounted Akhavan, noting that Galbraith was the prosecutions star witness. We would respectfully submit that this is the most untenable, weakest ever, unlawful shelling case in the history of this tribunal, Akhavan told the judges. He argued that the prosecutions failure to prove unlawful shelling meant that other related charges should also be dismissed. There can be no case of mass deportation through unlawful shelling if, in fact, there is no proof of unlawful shelling, he said. Our submission is that the evidence cannot sustain a conviction on any of the counts. We therefore respectfully request the chamber to enter a judgement of acquittal on all counts. Cermaks defence team also took the stand this week to challenge the prosecutions charges against its client. It dismissed the prosecution argument that Cermak was responsible for crimes committed during 1995 because he had known that crimes were being committed yet took no action to stop them, and had also presented false information about them to the media. The prosecution alleges that as commander of the Knin garrison, Cermak failed to maintain discipline among the Croatian military forces and the police. He did not fulfill his duty to prevent or punish crimes, such as the killing and mistreatment of Serb civilians and the burning and looting of property in the aftermath of Operation Storm, say prosecutors. However, British barrister, Steven Kay QC, representing Cermak, said that as commander of the Knin garrison, his client was supportive of law and order. He contested the prosecutions argument that Cermak had effective control over the army or the military and civilian police, arguing that he had lacked the necessary powers to investigate or prevent crimes. There is absolutely no evidence to support the proposition that General Cermak had a duty to investigate [crimes], Kay told judges. To support his case, he cited military disciplinary code which he contended only gave Cermak the authority to discipline the nine soldiers directly under his command and deal with minor disciplinary breaches. Kay also referred to testimony of prosecution witnesses who said that Cermak lacked authority to issue orders to the civilian or military police. Former Croatian military police officer Bosko Djolic confirmed to the court that Cermak had no authority to order the investigation of crimes, Kay said. Kay then quoted a second prosecution witness, who said that Cermak had no authority to issue orders to the civilian police, as they came under the mandate of the Croatian ministry of interior. That was how the system worked and how the documents and paper trail in this case show the system working, submitted Kay. Lawyers for the prosecution - in a tag-team sequence - then responded to the defence teams arguments for a second time. Stephen Margetts, who addressed the arguments of the Cermak defence, argued that the defendant had given false details in a media interview about crimes committed against Serbs, and that he had held information that such crimes had taken place yet failed to act upon it. He referred to an incident during which five Serbs in the town of Grubori were allegedly killed by special police under the command of the third defendant, Markac. Its clear that General Cermak did not present accurate information [to the media] in relation to the victims of the Grubori incident, but its also clear that he had very precise information in relation to evidence that may [have identified] the perpetrators, said Margetts. Prosecutor Edward Russo countered the claim by Gotovinas defence that the prosecution had not provided enough evidence regarding the 50 to 75 Serb deaths to prove the general had committed persecution by killing civilians. He contended that his team was not required to prove that these deaths or injuries had actually occurred in order to prove persecution charges based on the excessive use of force. The prosecution also pointed to the fact that the Gotovina defence had not challenged the evidence that 50 to 75 people had been killed and 30 to 40 others injured as a result of an artillery attack on Knin. The defence had merely argued that prosecutors hadnt proven the identity of the victims so couldnt prove that they were civilians, said Russo. However, he argued that there was no need for prosecutors to identify those who died to prove the charges. There has never been a requirement to specifically name victims of an unlawful attack, Russo told the court. Russo also sought to debunk the argument of Gotovinas defence that there was nothing illegal about the Croatian attack of Knin. To support the charge that during the assault disproportionate force was used, he cited evidence given by former Croatian artillery chief Marko Rajcic in February this year that rocket launchers employed in the attack on Knin were liable to extreme inaccuracy. Your Honours, this admission alone suffices to defeat the Gotovina defences [acquittal] arguments regarding unlawful attack, said Russo. The judges will deliver their decision in due course and the defence case, if required, is scheduled to start on May 28. Simon Jennings is an IWPR reporter in The Hague. WITNESS DESCRIBES MEETINGS BETWEEN PERISIC AND MLADIC He also said he thought Mladic was on Yugoslav army payroll until 2002. By Rory Gallivan in London A witness in the Hague war crimes trial of former Yugoslav army, VJ, chief Momcilo Perisic testified that Ratko Mladic remained in contact with the accused well into the late 1990s. Djordje Curcin a former Yugoslav general and long-time friend of Mladic said that Perisic had met the ex-commander of the Bosnian Serb army at VJ facilities on more than one occasion from 1997 onwards. The witness, who was chief of operations and training in the First Army of the VJ from 1993 to 1998, also said he believed that Mladic was a member of the VJ until he retired in 2002. The indictment against Perisic, Yugoslav army chief from 1993 to 1998, also says that Mladic retired from the VJ at this time. Perisics indictment further alleges that as head of the Yugoslav army, he exerted control over Serb forces operating in Bosnia and Croatia. He is charged with crimes against humanity for the Srebrenica massacre, the siege of the Bosnian capital Sarajevo, and the shelling of the Croatian capital Zagreb. Curcin testified in the Perisic trial after the tribunal issued a subpoena ordering him to appear at the request of the prosecution. Prosecutor Mark Harmon said that the prosecution believed the witness was involved in harbouring General Mladic. The Hague tribunal indicted Mladic for genocide and crimes against humanity in 1995. This week, Curcin described several days that he spent with Mladic, playing chess and chatting, at military facilities at Rajac and Stragari in Serbia in the late Nineties. He spoke of equally congenial meetings taking place between Perisic and Mladic at the same military bases around that time. Asked about his first meeting with Mladic at Rajac in July 1997, Curcin said they played chess and cards and had lunch over the course of a few hours. Mladic was accompanied by several members of a security team, he added, noting that while some of the bodyguards were in civilian clothes at the time, he later saw them wearing the camouflage uniform of the VJ. He said he was unclear about who paid these mens salaries although added that he thought it was the same source that paid that of Mladic, which he assumed was the Yugoslav ministry of defence. However, when questioned later by Perisics defence lawyer Novak Lukic, Curcin said the men were not members of the VJ and denied he had said they were. Curcin also described meetings between Perisic and Mladic. The first one was in July or August 1997 at Rajac, and was instigated by Curcin himself, said the witness. As I emerged from a facility to take a walk on the road, I noticed a dark coloured Audi with tinted windows, said Curcin. I went up to the vehicle and when the windows came down, I saw General Perisic there dressed in civilian clothes, driving the car. I said: Why dont you drop by and visit us? He didnt want to, but then I talked him into it and he came to the facility and spent some time there. He played chess with General Mladic maybe also some table tennis and after they had lunch, he left for Belgrade. Curcin said he did not know why Perisic had been reluctant to meet Mladic. The witness said that he himself had subsequently visited Mladic three or four times at the Stagari facility. He said he knew of an occasion when Perisic met Mladic at Stragari, in early autumn 1997, and confirmed that he had also been present at the time. We spent the majority of that day together, he said. We talked, we walked through the woods, we played chess, some cards, table tennis, we had lunch, then we walked some more. Asked by Harmon whether Perisic knew about the indictment against Mladic at that time, Curcin said he was not sure, adding that he himself had been unaware of it. Curcin added he did not know if Perisic had visited Mladic at Stragari on any other occasion. Curcin later said that he himself had been visited by Mladic several times at his apartment. When asked by Harmon if Mladic had been taken there by a driver, he replied that he was not sure. During his examination by Lukic, the witness said he had no knowledge of who had organised Mladics stay at the military facilities, adding that the general appeared to be in charge of his own security. He also confirmed that he met Mladic socially on several occasions in Mladics apartment in Belgrade after that meeting at Rajac in 1997. In response to a question by Lukic, the witness explained why he believed Mladic to be a member of the VJ until his retirement seven years ago. Because he had a health insurance card of the same sort as our officers, he could be treated in the health institutions of the military medical academy, and he received his salary via the ministry of defence, he said. Through these structures, he received the decree on his retirement on March 8, 2002, said Curcin, adding that this was signed by the office of the president of Yugoslavia, as is the normal procedure. Asked by Lukic about reports that Mladic had attended football matches during this period, Curcin said he had indeed attended two with Mladic at the Red Star stadium in Belgrade one between Yugoslavia and Croatia in August 1999 and one between Yugoslavia and Greece. Mladic did not try to disguise himself or conceal his appearance at this time, said Curcin. Curcin confirmed that he stopped seeing Mladic once former Yugoslav president Slobodan Milosevic was arrested on March 31, 2001. At this point, he said, Mladic became fearful that he, too, would be arrested, either by NATO troops or specialist teams within Serbia. Rory Gallivan is an IWPR contributor in London. LUKIC LAWYERS LAMBAST REPORT ON VICTIMS They say expert witnesss methods inappropriate and irrelevant for case. By Rachel Irwin in The Hague A statistician who prepared the initial list of victims allegedly killed by Bosnian Serb cousins Milan and Sredoje Lukic came under fire this week from defence lawyers, who pronounced her report irrelevant and asked judges to dismiss it. What does a proof of death project [carried out to identify victims] have to do with demographics? Jason Alarid, Milan Lukics lawyer, asked expert witness Ewa Tabeau, a statistician in the prosecutions demography unit. Confusion on how exactly a statistical report can prove that a person is dead was rife throughout the expert witnesss testimony. Tabeaus report, outlining the results of her Proof of Death project, has come under heavy criticism in recent weeks after the defence produced evidence that three of the allegedly deceased victims named in it were likely to be alive. The report cross-references the alleged victims names with available census information, voting records and lists of missing persons, among other sources. Other than eyewitness statements collected by the prosecution, her report provides the only proof that the victims in the indictment are, in fact, dead. The Bosnian Serb Lukic cousins are accused of murdering about 150 Bosniaks in the eastern Bosnian town of Visegrad during the summer of 1992. The three so-called living victims are alleged to have died in a house fire in Pionirska Street on June, 14, 1992, after the Lukic cousins allegedly barricaded a group of 70 Bosniaks into the house and set it alight. The prosecution asked judges last week to remove three names from the Pionirska victim list, conceding that it was possible that they did not die in the fire. Confusion over what exactly the report proves compelled presiding Judge Patrick Robinson to ask Tabeau the same question slightly reworded three times in a row. How does demography establish that Mr Lukic killed someone? asked Robinson. We cant help establish whether Mr Lukic killed these people or not, she finally responded. [But] we can help establish whether these people were killed or not. Isnt it fair to say that has nothing to do with statistics? retorted Alarid. Tabeau defended her report, as well as the lengthy written clarification she produced on March 16, after the allegations surfaced that some victims were still alive. She conceded only that it was possible that three people originally on the victims list did not die in the Pionirska fire and strongly denied Alarids suggestion that up to 18 alleged Pionirska victims might be alive. Tabeau responded to a defence submission, in which it presented details of 18 living people that it said had been mistakenly included on the list of those killed in the fire. She said that while these people had the same names as the recorded victims, she reiterated that their ages and other biographical information did not match those listed in the indictment. When Alarid pressed Tabeau about the lack of death certificates or any other physical evidence of the fire victims, she responded that methods are much different in times of conflict. Youre saying that a death certificate is the ultimate proof, she said. Maybe in peacetime, but were speaking about a conflict, where people are on the move and many things are happening. You cant expect that those cases will be documented the same way as in peacetime. Alarid also brought up the fact that some of names on the list seemed to have no other identifying information corresponding with a real, live person. Can we consider those people non-persons? asked Alarid. Absolutely not, responded Tabeau. Witness statements are not perfect, but that doesnt mean the victims never existed. There will be errors, but it doesnt mean that the war never happened and people were never killed. When Alarid repeatedly claimed that some of the alleged victims had never existed, Tabeau grew exasperated. What would you say about victims of the Cambodia [genocide]? she asked. [There are] no names. Does it mean that crimes never happened? Alarid brushed off her remark, saying her methods were inappropriate in a first commission case, where the defendants are personally accused of killing over 100 people. [My client] could go to jail for killing someone thats alive. Isnt that true? asked Alarid. Im not going to allow that, interjected Judge Robinson. During the short cross-examination, prosecutor Maxine Marcus criticised the defences methods of obtaining information about victims on the deceased list including looking up names in the phonebook. There is no reason to believe youd ever be able to narrow down your search [by pursuing such methods], said Tabeau. Its impossible. She also said that the police and government authorities in Visegrad whom the defence asked for assistance in locating alleged victims had no access to the 1991 census. It was unclear, she said, what sources they used for providing any information they dispensed. At the end of her testimony, Alarid asked Judge Robinson to strike Tabeaus report and subsequent clarification. Its statistically not relevant, said Alarid. Judge Robinson criticised Alarid for making such a request verbally and said the chamber would deal with the matter at a future date. Rachel Irwin is an IWPR reporter in The Hague. JOKIC CONVICTED OF CONTEMPT OF COURT Former Bosnian Serb army officer sentenced to four months in jail for refusing to testify in Srebrenica Seven case. By Simon Jennings in The Hague Judges at the Hague tribunal this week sentenced a former Bosnian Serb army, VRS, major who has already been convicted of war crimes by the court to a further four months in prison for refusing to give evidence against his former colleagues. Dragan Jokic was convicted of contempt of the tribunal on March 27 for twice refusing to give evidence in the ongoing case of Vujadin Popovic and six other high-ranking Bosnian Serb military and police officials, collectively known as the Srebrenica Seven. Jokic is currently serving a nine-year jail term in Austria following a conviction in January 2005 for aiding and abetting the extermination and killing of Bosniak civilians at Srebrenica in eastern Bosnia in July 1995. The former chief of engineering in the Zvornik brigade was convicted of providing equipment and personnel to dig mass graves for the burial of executed Bosniaks. In the summer of 1995, around 8,000 Bosniak men and boys were carted off from Srebrenica and massacred an atrocity judged by the Hague tribunal and the International Court of Justice in The Hague to have constituted genocide. Vujadin Popovic, Ljubomir Borovcanin, Ljubisa Beara, Vinko Pandurevic and Drago Nikolic are facing genocide and war crimes charges in connection with the massacre, while Radivoj Miletic and Milan Gvero are accused of blocking aid and supplies to the UN designated safe area. There were good grounds to believe that Jokics testimony could be material to the facts at issue [in the case], said Judge Carmel Agius, in finding Jokic guilty of contempt. The court called Jokic to testify at the prosecutions request about the 1995 events in Srebrenica on October 31 and November 1, 2007, but he refused to do so, despite warnings that he could be held in contempt of court. According to the contempt charge against Jokic, he knowingly and wilfully interfered with the administration of justice by contumaciously refusing to testify. Presiding judge Carmel Agius, in delivering the verdict this week, said he made a conscious decision not to testify and understood the consequences of his behaviour. Witnesses summoned by judges at the UN court are dutybound to testify. In his defence, Jokic did not contest that he had repeatedly refused to testify, but argued that he did not intend to interfere with the courts administration of justice in doing so. He had also argued that there were reasonable excuses for him refusing to testify, which were relayed to judges in a confidential court filing on November 1, 2007. According to Judge Agius, one of Jokics concerns was for his and his familys safety, if he were to give evidence in the Popovic trial. However, the judge pointed out that any risk to witnesses or their families can be remedied by the court and do not automatically override the duty to testify. Jokic was granted protective measures with his testimony due to be heard behind closed doors. The chamber is therefore not convinced that Jokics security concerns provide a reasonable excuse for his refusal to testify, said Judge Agius. Judges had commissioned a psychiatrist to examine Jokics mental condition before and after he was summoned by the court in order to establish the accuseds state of mind when he refused testify, and his fitness to stand trial for contempt. Two confidential reports from the psychiatric expert were filed with the court on June 16 and August 20, 2008. Judges took the view that the state of Jokics mental health was not a valid reason for him not to testify. To undermine the capacity of a person to serve as a witness, such a condition must have a substantial effect on his credibility, which consequently empties his evidence from having any probative value, explained Judge Agius. Jokic had also argued that he was afraid of falsely incriminating someone by giving evidence in the case. However, the judges psychiatrist did not support this claim. Delivering the verdict to an expressionless and casually dressed Jokic this week, Agius noted that his refusal to testify was a serious offence which had deprived judges of evidence in a case. The chamber has taken into consideration both the gravity of the conduct involved and the need to deter such conduct in the future, said Judge Agius, in handing down the four-month prison sentence. Simon Jennings is an IWPR reporter in The Hague. COMMENT 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 (TU No 594, 27-Mar-09) Last weeks 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: http://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 accuseds 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 others criminal acts. One problem with its use in the Krajisnik case seems to be that it wasnt 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 Krajisniks 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 prosecutions attempts to prove Krajisniks 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 leaderships plan to separate Serbs from Bosnias 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 leaderships 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. **** www.iwpr.net ******************************************************************** ICTY - TRIBUNAL UPDATE, which has been running since 1996, details events and issues at the International Criminal Tribunal for the Former Yugoslavia, ICTY, in The Hague. These weekly reports, produced by IWPR's human rights and media training project, seek to contribute to regional and international understanding of the war crimes prosecution process. The opinions expressed in ICTY - Tribunal Update are those of the authors and do not necessarily represent those of the publication or of IWPR. 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