Analysis 23 Nov 09

Future of Genocide Trials Hangs on Karadzic Verdict

Bosnian prosecutors still hesitate at filing indictments for genocide but some rights activists believe this may change once the trial of the former Bosnian Serb leader is over.

Erna Mackic

Bosnia’s judicial institutions have completed only one case pertaining to genocide till now, the genocide in 1995 in Srebrenica.

Data available to the OSCE show that not one indictment for genocide has been filed before local courts in Bosnia and Herzegovina since 2003. Before this year, only one verdict for genocide was pronounced before the Court in Sarajevo, referring to the crime committed in the Vogosca area during 1992.

Unlike Bosnia’s own judicial institutions, the German judiciary has determined in one of its verdicts in 1997 that genocide was committed in Bosnia and Herzegovina in 1992.  

Bosnia’s decision in 1993 to sue the Federal Republic of Yugoslavia before the International Criminal Tribunal for former Yugoslavia, ICTY, for committing genocide in Bosnia and Herzegovina is in contradiction with the doings of local prosecutors’ offices.  

Many human rights organizations and some local and international academics maintain that a genocide occurred Bosnia from 1992 onwards – but the State Prosecution of Bosnia and Herzegovina does not entirely support those claims.

From the State prosecution office, BIRN’s Justice Report was told  that “investigations have not shown elements of genocide for any other areas [than Srebrenica]”.

Hasan Balic, a Sarajevo university professor and former judge of Bosnia’s Supreme Court disagrees. “What about Foca, Visegrad, Prijedor, Rogatica... the whole of eastern Bosnia and the Drina valley?” he asks.

Mirsad Tokaca, president of the Research and Documentation Center, IDC, is of the same mind. Reducing the scale of the genocide in Bosnia to Srebrenica in 1995 “represents a huge forgery”, he says.  

IDC data suggest that most cases of murder, deportation, the destruction of cultural and historical monuments, the establishment of detention camps and mass rapes in Bosnia happened in 1992.

The IDC considers that this points to the existence of an intention in 1992 to destroy an entire community of people, which is a prerequisite for proving genocide.  

Edina Becirevic, a Sarajevo university professor who researches war crimes and court practices is the author of a book called the “Drina River Genocide”, in which she says that genocide was committed throughout the entire country from 1992.

Geoffrey Nice, prosecutor in the trial of former Serbian leader Slobodan Milosevic, says genocide cannot be determined or defined solely by the number of victims. What he calls “the purpose of the killing” is the key factor.

He uses this argument to rebut arguments that the number of victims of the Bosnian war, estimated at about 100,000, is not large enough to amount to genocide.  

Experts say many things in relation to genocide indictments in Bosnia may change as a result of the completion of the trial of the former Bosnian Serb leader Radovan Karadzic, who is indicted for genocide in Srebrenica and ten other municipalities from 1992 to 1995.

The trial verdict may help solve the issue of whether other indictments can be filed for genocide committed in other parts of Bosnia and Herzegovina.

Only one so far:

Bosnia’s criminal code stipulates that genocide is committed when an individual commits or orders others to commit murders and other grave crimes with a view to totally or partially exterminating a national, ethnic, racial or religious group.  

Over nearly five years since it was established the Court of Bosnia and Herzegovina has passed down only one-second instance verdict for genocide.

This was pronounced against six former members of the Bosnian Serb Second Special Police Squad from Sekovici, who were found guilty of “abetting the commitment” of genocide, rather than committing genocide themselves.  

Milenko Trifunovic was sentenced to 33 years in prison, Brane Dzinic and Aleksandar Radovanovic to 32, and Petar Mitrovic, Branislav Medan and Slobodan Jakovljevic to 28 years for participating in the shooting of more than 1,000 Bosniaks from the Bosniak enclave of Srebrenica in the Kravica Agricultural Cooperative in July 1995.

A first-instance verdict sentenced Milorad Trbic, former assistant commander for security with the Bosnian Serb army’s Zvornik Brigade, to 30 years in prison for genocide in Srebrenica.

Trials are ongoing against Momir Pelemis, Slavko Peric, Radomir Vukovic, Zoran Tomic and Zeljko Ivanovic, who are charged with crimes committed in Srebrenica.

In most cases the grave crimes committed in others eastern Bosnian towns, such as Foca and Visegrad, in Doboj in northern Bosnia and in Prijedor, in the northwest, have been characterized as crimes against humanity.  

The OSCE, which monitors war-crime trials, notes that no indictments for genocide have been filed before the Bosnian courts in the past seven years.  

Local prosecutors’ offices filed such indictments during the course of the war and in the late 1990s.

In 1996, for example, the former Higher Public Prosecutor’s Office in Sarajevo filed three such charges. These cases were completed before the Supreme Court of the Federation.

Borislav Herak was the only indictee found guilty of genocide. A verdict in 1999 sentenced him to 20 years in prison.

In 2005 the Supreme Court sentenced Sretko Damjanovic, charged under the same indictment as Herak, to nine years’ jail for war crimes against civilians, having been originally charged with genocide in the Vogosca area.

The Higher Public Prosecutor’s Office in Sarajevo also charged Veselin Cancar with genocide in 1996. However, the Supreme Court of the Federation did not find him guilty of genocide but sentenced him to nine years’ imprisonment for committing crimes against civilians in the Foca area.  

The Higher Public Prosecutor’s Office in Sarajevo also indicted Teso Tesic and Dusan Borovic for genocide, this time in Vlasenica. However, a second-instance verdict acquitted them of all charges.   

The ICTY in 2004 pronounced Radislav Krstic and Vidoje Blagojevic guilty of abetting and supporting the commitment of genocide in Srebrenica, sentencing them to 35 and 15 years in prison respectively.  

Indictments for genocide committed in other parts of Bosnia and Herzegovina have been filed before the Hague Tribunal, but not proved.

The indictment filed against the former President of the Bosnian Serb assembly Momcilo Krajisnik, who was sentenced to 20 years in prison this year, was one such.

The verdict summary in 2009 said that “although the committed crimes represent an act of genocide”, the presented evidence did “not prove that the genocide was committed as part of joint goals of the joint criminal enterprise, in which, according to evidence, Krajisnik participated, or the existence of specific intentions, which is necessary for commitment of genocide”.  

The former Bosnian Serb president Biljana Plavsic was charged in 2001 with genocide and complicity in genocide. But those counts were dismissed after she struck a guilt admission agreement in 2002 as a result of which both the charges and the length of her prison term were substantially reduced.

Plavsic was sentenced to 11 years in prison and released last month after having served two-thirds of her sentence.  

The ICTY charged Goran Jelisic in 1995 with genocide in the northern Bosnian town of Brcko but the allegations were dismissed by the first-instance verdict. He then reached a guilt admission agreement in 2001 and was sentenced to 40 years’ imprisonment.  

In the Karadzic trial, the ICTY Prosecution will try once more to prove that genocide was committed in the broader area of Bosnia and Herzegovina, starting in 1992, not 1995, and maintaining that the Srebrenica massacre was only a culmination of those crimes.  

Milosevic’s half-time verdict:

The ICTY Trial Chamber made “a half-time” decision at the trial of Slobodan Milosevic, saying that the Prosecution “had presented sufficient evidence to pronounce the indictee guilty of all charges contained in the indictment, unless the indictee manages to rebut the evidence during the course of his own evidence presenting”. However, Milosevic died before the end of the trial.  

According to the decision of the Trial Chamber in June 2004, the evidence presented to date showed that “the joint criminal enterprise participants, including Slobodan Milosevic, indeed committed genocide in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi”.

Geoffrey Nice, who on behalf of the ICTY Prosecution proved Milosevic’s participation in genocide, explained to Justice Report that genocide “is the matter of purpose and forethought by individuals who are linked with each other in a certain criminal way”.

With reference to the number of victims, he added that in postwar Germany the thesis had been accepted that “said that one individual, even if he or she killed only one person, can be held responsible for genocide if he or she had the necessary forethought”.

Edina Becirevic notes that the German courts in 1997 sentenced Nikola Jorgic to life imprisonment for genocide in 1992 in the village of Grapska in the Doboj area. She regrets that the Bosnian courts have not reached similar conclusions.

“I think the Prosecution of Bosnia and Herzegovina lacks courage and is perhaps waiting for the verdict against Karadzic to be pronounced so that it can use it as a guide when filing indictments for genocide committed in other parts of Bosnia apart from Srebrenica,” she told Justice Report.

“The Hague Tribunal’s practice would then be the basis for actions that would not generate political controversies [in Bosnia],” she added.

The Prosecution of Bosnia and Herzegovina insists it is necessary to prove an intention for full or partial extermination of a national, ethnic, racial or religious group for genocide to be proven.

It emphasizes that the investigations conducted to date “have not proved the existence of such intentions in other parts of Bosnia and Herzegovina, except Srebrenica”.  

Sonja Biserko, head of Serbia’s Helsinki Human Rights Committee, considers it is clear that genocide occurred in Bosnia in 1992 and was only completed by the attack on Srebrenica in 1995.

“It was clearly proved at The Hague that the genocide was not a single event,” she said. “It certainly involved logistics and preparations and it… is obvious that this could not have been done without the help from the Serbian State.”

Smail Cekic, director of the Institute for Research into Crimes against Humanity and International Humanitarian Law, from Sarajevo, considers that the fact that the Prosecution of Bosnia has not filed indictments for genocide committed in any other areas except Srebrenica “a cardinal mistake”.

He says: “Documents confirm that genocide was committed in all occupied areas and towns that were under the siege in line with the definition of the gravest crime in the UN Convention on Preventing and Sanctioning Genocide, bearing in mind the five criminal acts defined in the Convention.”

Biserko states that the trial of Karadzic will very important with reference to future indictments for genocide, as it will encompass other locations, besides Srebrenica.

For this reason, “Belgrade is nervous, because it does not know what unpredictable things may happen”, Biserko said.

Erna Mackic is BIRN’s Justice Report journalist. Justice Report is BIRN online publication.

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