One of the Genocide Counts Against Karadzic is Dismissed

The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia that is trying Radovan Karadzic today dismissed a charge of genocide. The ruling was part of the decision that Trial Chambers of the Tribunal make after the prosecution has closed its case and before the defense phase of the trial has begun. Karadzic challenged all of the counts in the indictment, but was successful on only one, concerning alleged genocide perpetrated in Bosnia during 1992. Another count charging genocide with respect to the July 1995 Srebrenica massacre remains, and Karadzic must now produce evidence in reply.

For many years, these rulings have been delivered orally. In a few weeks, the transcript of the decision will be available on the website of the Tribunal. For the time being, all that we have is the press release issued a few hours ago. Here is what it says:

Count 1 of the Indictment charges genocide in relation to the crimes alleged to have been committed between 31 March and 31 December 1992 against the Bosnian Muslims and Bosnian Croats in some municipalities in BiH. Having reviewed the totality of the evidence with respect to the killing of, serious bodily or mental harm to, the forcible displacement of, and conditions of life inflicted on Bosnian Muslims and/or Bosnian Croats in the Municipalities, the Chamber found that the evidence even if taken at its highest, does not reach the level from which a reasonable trier of fact could infer that genocide occurred in the Municipalities.

The Chamber noted that genocidal intent can be inferred from a number of factors and circumstances, including the general context of the case, the means available to the perpetrator, the surrounding circumstances, the perpetration of other culpable acts systematically directed against the same group, the numerical scale of atrocities committed, the repetition of destructive and discriminatory acts, the derogatory language targeting the protected group, or the existence of a plan or policy to commit the underlying offence.  The Chamber noted that although it has heard evidence of culpable acts systematically directed against Bosnian Muslims and/or Bosnian Croats in the Municipalities, and of the repetition of discriminatory acts and derogatory language, the nature, scale, and context of these culpable acts do not reach the level from which a reasonable trier of fact could infer that they were committed with genocidal intent.

The Chamber found that whilst the evidence it had heard indicates that the circumstances in which the Bosnian Muslims and/or Bosnian Croats in the Municipalities were forcibly transferred or displaced from their homes were attended by conditions of great hardship and suffering, and that some of those displaced may have suffered serious bodily or mental harm during this process, this evidence does not rise to the level which could sustain a conclusion that the serious bodily or mental harm suffered by those forcibly transferred in the Municipalities was attended by such circumstances as to lead to the death of the whole or part of the displaced population for the purposes of the actus reus for genocide.

More than once, extremists have labelled me a ‘denier’ because I have challenged the use of the label genocide for the conflict in Bosnia and Herzegovina. But today’s decision is quite consistent with earlier decisions of the Tribunal and with the 2007 judgment of the International Court of Justice. The Bosnian war was characterized by war crimes and crimes against humanity. The waves of ethnic cleansing constituted persecution rather than physical extermination of the groups that were targeted.

The one exception, according to the case law, is the 1995 Srebrenica massacre. To my mind, the approach taken by judges at the Tribunal and the International Court of Justice is somewhat incoherent, in that they have generally rejected the genocide qualification for the conflict, yet applied it to one terrible event during the war that was of short duration and isolated in a geographic sense. That approach is now well-established, whatever one thinks about the inherent inconsistency of it. Karadzic will have a hard time beating the charge of genocide with respect to the Srebrenica massacre.