Wednesday, 24 September 2008

New Indictment Against Radovan Karadžić

An amended indictment has been filed against Radovan Karadžić before the International Criminal Tribunal for the former Yugoslavia: Both Karadžić himself and Presiding Judge Iain Bonomy have grumbled about the fact that the Office of the Prosecutor, which has been calling for the arrest of Karadžić for more than a decade, wasn’t ready with an amended indictment when the defendant was brought into custody.
Some press reports have described the amended indictment as a ‘second genocide charge filed against Karadzic’ (see, e.g., Associated Press:, but on closer scrutiny this does not seem to be the case.
The earlier indictment charged Karadžić with genocide between 1 July 1991 and 31 December 1992 in eighteen municipalities. The amended indictment charges him with genocide between 31 March 1992 and 31 December 1992 in ten municipalities.
The earlier indictment also charged him with genocide at Srebrenica, over a period from March 1995 to November 1995. The amended indictment charges him with genocide ‘between a few days before 11 July 1995 and November 1995’.
This looks to me like a reduction in the genocide charges, not an expansion of them.
The Prosecutor would have been wise to drop the genocide charges for 1991 and 1992 altogether. Several trials at the Tribunal alleging genocide during this period have resulted in acquittals. Moreover, the International Court of Justice dismissed claims of genocide filed by Bosnia and Herzegovina against Serbia covering much of this period. The Prosecutor is stubbornly clinging to the theory of a genocide in Bosnia and Herzegovina in 1992, but based on all previous judicial decisions this is likely to fail. It will only lengthen this important trial at a time when the Court is trying to streamline its work and conclude its activities.
As for the Srebrenica charge, which really concerns a few days in July 1995, the case law is much more favourable. In my own opinion, however, even the theory of genocide at Srebrenica is a tenuous one. The better charge would be the crime against humanity of extermination. Either the war in Bosnia was genocidal or it was not. But a vision whereby most of the war was not genocidal, but where a genocidal massacre was essentially improvised over a few days in the final months of the conflict doesn't make a lot of sense. Yet that is what emerges from the case law, which seems to be stuck on the precedent created by a 2001 ruling of a Trial Chamber (Krstić Trial Judgment). Ever since, the judgments have been clawing this back, as if the judges have all realised that the charge was tenuous and difficult to sustain.

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