Appeals Chamber Reinstates Genocide Charge

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.