The Appeals
Chamber of the International Criminal Tribunal for the former Yugoslavia has
overturned a ruling by the Trial Chamber that acquitted Radovan Karadzic of
genocide with respect to charges relating to the 1992-1995 war. About a year
ago, in a decision known as a ‘Rule 98bis ruling’, the Trial Chamber dismissed
the genocide charges against Karadzic with the exception of those concerning
the Srebrenica massacre. This week, the Appeals Chamber reinstated them.
The ‘Rule
98bis ruling’ is a rather classic procedural step following the close of
evidence by the prosecution when the defence argues that even if it produces no
evidence in rebuttal the charges cannot stand because the proof is
insufficient. In other words, there is ‘no case to answer’. It is rare for
someone to be totally acquitted at the 98bis stage and I don’t believe this has
ever occurred at the international criminal tribunals. And of course Karadzic
only managed to remove one of the genocide charges. The rest of the indictment
– genocide in Srebrenica, crimes against humanity and war crimes everywhere
else – stands untouched and has never really been in doubt. It seems
inconceivable he could be acquitted altogether given that so many of his henchmen
have been convicted and are serving their sentences.
Probably
this week’s genocide ruling is being heralded in Bosnia as an important
development. It shouldn’t be. Essentially, the three judges of the Trial
Chamber said in their ‘Rule 98 ruling’ last year that there wasn’t enough
evidence for a conviction, even if they had believed everything the prosecution
had tendered. Now the judges of the Appeals Chamber, after spending many, many
months deliberating on the point, have told them that the evidence ‘taken at
its highest’ might sustain a conviction. Of course, that is not taking into
account the defence evidence, which is now being presented and that presumably
will weaken, not strengthen, the prosecution case.
Is it very
likely that after thinking there is no evidence and then being told there is a
little bit of evidence they will now conclude that there is enough evidence to
convict beyond a reasonable doubt? In the annals of criminal justice, I cannot
think there would be many cases where three judges would say, effectively,
there is no evidence. Then, after being told by the Appeals Chamber that there
is a wee bit of evidence, they change their minds and convict. Anything
is possible, of course. But if Bosniaks think that some huge reversal is afoot,
I fear they will be woefully disappointed.
No wonder
some of the members of the Security Council express frustration at the slow
pace of the tribunals as they complete their work. Here we have three judges at
the Trial Chamber helpfully clearing the decks by reducing the charges in their
Rule 98bis ruling. Then the Appeals Chamber, after consuming considerable
judicial energy and resources, replies that actually there may be a bit
of evidence that might sustain a conviction. The Appeals Chamber judges may be
correct in a technical sense. But isn’t this just a big waste of time, in the
end?
The
Prosecutor might have made a useful contribution by accepting the Trial Chamber
ruling instead of filing an appeal. Perhaps the Prosecutor filed the appeal
without enthusiasm and was responding to political pressures. He knows the case
law goes against him. Nobody has been convicted at the Tribunal for genocide
with the exception of the Srebrenica massacre. His predecessors made many
attempts but none of them succeeded. The failure to convict for genocide by the
Tribunal – with the exception of Srebrenica, of course - was endorsed by the
International Court of Justice in the 2007 judgment in the Bosnia v. Serbia
case.
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