Last week, the Appeals Chamber at the International Criminal Tribunal for the Former Yugoslavia (ICTY) reversed a decision to acquit Radovan Karadžić of genocide in relation to events in Bosnia’s municipalities. This has significant implications for the continuation of the trial of the former Bosnian Serb leader, which may face further delays.
The trial of Radovan Karadžić commenced in 2009, after Karadžić – who had been living as a fugitive since the end of the wars, disguised as an alternative therapy healer – was discovered on a Belgrade bus and transferred to The Hague. The indictment contained 11 counts, including two counts of genocide. The first of these alleged that Karadžić had participated in a joint criminal enterprise to remove Bosnian Muslims and Bosnian Croats from municipalities in Bosnia and Herzegovina in 1992. The second count of genocide addressed events at Srebrenica in 1995. Karadžić also faced charges of war crimes and crimes against humanity.
After the close of the prosecution case in May 2012, Karadžić applied for the case to be dismissed on the basis of insufficient evidence. In Australia, we would call this a “no case to answer” plea: The defence applies for an acquittal, on the basis that the prosecution has not brought enough evidence to sustain a conviction. Because the burden of proof always remains with the prosecutor to establish their case, if a Trial Chamber is satisfied that the prosecution’s evidence is not enough, they can acquit the accused at this earlier point. Such a decision is a responsible use of a court’s limited resources, and focuses the parties and the judges on the counts that may be capable of being proven.
In June 2012, the Trial Chamber upheld Karadžić’s “no case to answer” application regarding the first count of genocide, and acquitted Karadžić of this. The count was removed from the indictment, and Karadžić’s defence case – which began in October 2012 – did not need to address these issues.
The prosecution appealed this decision, but it was not until April 2013 that the Appeals Chamber heard arguments from the parties. On Thursday, the decision of the Appeals Chamber was finally delivered – over a year since the original Trial Chamber decision to acquit on this count, and nine months into Karadžić’s defence case. The Appeals Chamber’s decision to overturn the acquittal does not mean that Karadžić has been found guilty of this count: it means that Karadžić is back on trial for this count, and that he must address it in his defence case.
Thursday’s reinsertion of the genocide count has significant implications for the management of the trial. The parties have been progressing for the last year on the basis that the count is not included. In light of this, Karadžić has set out his case in a particular manner. His team has managed their limited resources, their documents, and their court time, on the basis of this count not being included.
All parties will now need to reassess their approach to the trial. It is likely that a substantial delay will be necessary, in order for the parties to reconfigure their case strategies and structures, and for the Trial Chamber to reorganise their materials. As the Tribunal has its summer recess from late July until mid-August, it can almost be guaranteed that the trial will have an adjournment that segues from this recess, probably into September or even later. Karadžić’s team will need to run investigations in Bosnia, identify witnesses, prepare lines of examination and witness materials, and organise a new aspect of defence strategy. The reinsertion of the count into the case will have a significant impact on how the team manages their already limited money and manpower, and how the defence presents its evidence.
Yet again, this issue demonstrates the problems with the slow pace of decision-making in international criminal law. It is concerning that this decision has been delivered over a year since the initial decision to acquit. Had this decision been rendered before the commencement of Karadžić’s defence case – rather than nine months into the presentation of his evidence – the issues around how the parties and the judges organise the trial would not exist. Now, though, a new set of issues will likely slow down the already glacial pace of this trial. Decisions around the scope of the trial, how the trial is run, and how evidence is admitted, must be delivered more speedily than they often are in international trials.
There was also another issue with Thursday’s decision: It was delivered on the 18th anniversary of the fall of Srebrenica, the town in Bosnia’s east that in 1995 was the primary site for a series of massacres and deportations of Bosnian Muslims. Karadžić faces one count of genocide in relation to events in and around Srebrenica. It is true that Thursday’s decision was not at all related to Srebrenica. The count of genocide that had been acquitted by the Trial Chamber related to other parts of Bosnia, and the genocide in Srebrenica has always been addressed in a separate count. But the Karadžić case is an important one for Srebrenica, as it will examine issues around who planned this genocide, and what Karadžić knew or didn’t know. Issuing such a significant genocide decision in this case on the anniversary of Srebrenica’s fall to the Bosnian Serb Army is disappointing. If the ICTY accidentally overlooked the significance of the date, that is also concerning. Given that this decision had already taken such a long time to be delivered, postponing just a day or two would have been preferable to delivering this decision on a day so important to so many.
The delayed decision of the Appeals Chamber in this case has the potential to again disrupt an already lengthy trial. Judgment in the Karadžić case is not expected until around 2015. The slowness in issuing this decision, and its eventual consequence of reconfiguring the defence case at a late stage, raises serious questions about how the judges and the parties will conduct the remainder of the trial. Meanwhile, the reinsertion of the count is likely to have little impact on the ultimate decision of the Trial Chamber about Karadžić’s guilt or innocence on this genocide count. Their preliminary decision to acquit suggests they are highly unlikely to find the Prosecution has established their case “beyond a reasonable doubt”. It may be, then, that the Karadžić trial will face delays and uncertainties, for the same final result on this count. Only time will tell; but observers will be waiting for a long while yet.
Disclosure: Between 2010-2011, the author worked as a Legal Assistant to the Standby Defence Counsel in the Karadžić case.
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