“The Trial Chamber concludes that there is sufficient evidence that genocide was committed in Brčko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Ključ and Bosanski Novi and, Judge Kwon dissenting, that there is sufficient evidence that the Accused was a participant in a joint criminal enterprise, which included the Bosnian Serb leadership, the aim and intention of which was to destroy a part of the Bosnian Muslims as a group.”
Decision on Motion for Judgement of Acquittal, 16 June 2004.
On 16 June 2004, after the Prosecution had closed its case, the Trial Chamber issued a decision that the Prosecution had provided enough evidence that a judge, acting reasonably, could convict Slobodan Milošević of all 66 counts in the three indictments against him, including charges that he committed genocide in Bosnia and Herzegovina. However, it also found that for some crime scenes within several of the counts against him, the Prosecution had failed to provide enough evidence.
Rule 98bis
Under Rule 98bis of the Tribunal's Rules of Procedure and Evidence, once the Prosecution has finished presenting its evidence against the accused, he is entitled to submit a motion to the judges to acquit him of all charges. The purpose of the rule is to spare the accused from having to defend himself against charges the Prosecution failed to provide enough evidence to prove.
Slobodan Milošević did not submit such a motion. However, the amici curiae (friends of the court), whom the Trial Chamber had appointed to raise issues relating to the conduct of the trial, submitted one on his behalf. They asked the judges to dismiss some of the major charges against Milošević. It should be noted that the amici did not challenge every allegation in the indictment.
The Amici's Arguments
Specifically, the amici argued that there was no evidence of the accused’s intent to commit genocide in Bosnia and Herzegovina. They also argued that the Prosecution failed to present sufficient evidence in relation to 185 separate allegations in the indictments against Milošević for crimes committed in Croatia, Bosnia and Herzegovina and Kosovo. Finally, they asserted that the Prosecution failed to prove that the Tribunal had jurisdiction over certain crimes committed in Kosovo and Croatia, and that those charges should be dismissed.
Trial Chamber Upholds All Counts
The Trial Chamber upheld every one of the 66 counts in the indictment against Slobodan Milošević, including the genocide charge (see below), although it did acquit him of some crimes alleged within several of them. Milošević, therefore, would not need to present evidence in relation to those crime scenes. The Trial Chamber also dismissed the amici’s challenges to the Tribunal’s jurisdiction to try Milošević for crimes he was alleged to have committed in Croatia and Kosovo.
Challenge to Genocide Count Dismissed
The longest part of the Trial Chamber’s 98bis Decision, and the one that describes the evidence presented in the case against Slobodan Milošević in the greatest detail, relates to the allegation that he committed genocide in Bosnia and Herzegovina. Genocide constitutes a number of crimes, including murder and causing serious physical or mental harm, which are committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.
The Trial Chamber examined the evidence that Slobodan Milošević conspired with a number of co-perpetrators to commit genocide in eight municipalities in Bosnia that he wanted to include in a Serbian state. Among his alleged co-conspirators who participated in this joint criminal enterprise were members of the Bosnian Serb leadership, including its President Radovan Karadžić, and Bosnian Serb Army commander Ratko Mladić, as well as Bosnian Serb Assembly President Momčilo Krajišnik and Presidency member Biljana Plavšič.
The Crimes
The Trial Chamber first reviewed the evidence in order to establish whether genocide had in fact been committed in those eight municipalities, as the Prosecution alleged. It found that a reasonable judge could conclude that genocide was committed in seven of them: Prijedor, Bosanski Novi, Sanski Most and Ključ in western Bosnia and Herzegovina, and Srebrenica, Bijeljina, and Brčko in the east.
To come to this conclusion, the Trial Chamber described the chronology of events that showed calculated efforts by the Bosnian Serbs to destroy the Muslim population in these municipalities. It referred to two documents that showed the existence of a plan or policy to take control of municipalities. The first was a document, called “Variant A and B,” which described precise steps Bosnian Serb authorities were to take in order to establish control in municipalities in which Serbs were a majority (Variant A), or in which they were a minority (Variant B). As protected witness B-024 testified, the document was distributed to Serbian Democratic Party (SDS) Muncipal Board Presidents at a meeting around 20 December 1991 in Sarajevo at which Radovan Karadžić, Momčilo Krajišnik and Biljana Plavšić were also present.
The Trial Chamber quoted Radovan Karadžić speaking about the document to the Bosnian Serb Assembly four years later, in April 1995:
“In the moment the war began, in the municipalities where we were in the majority, we had municipal power, held it firmly, controlled everything. In the municipalities where we were in the minority, we set up [a] secret government, municipal boards, municipal assemblies and presidents of executive boards. You will remember the A or B variant. In the B variant, we were in the minority – 20 percent, 15 percent – we had to set up a government and a brigade, a unit no matter what size, but there was a detachment with a commander.”
The second document the Trial Chamber pointed to on the existence of a plan or policy to take control of municipalities spelled out six strategic goals for the Bosnian Serb people, and was approved by the Bosnian Serb Assembly in May 1992. Its first goal was to separate from the other two national communities in Bosnia, and to live in separate states. The other goals described the Bosnian Serbs’ territorial ambitions in Bosnia.
The Trial Chamber cited documents and witnesses that showed that after Bosnian Serb forces took control of the seven municipalities, its Muslim inhabitants were victims of murder, including mass murder, rape, torture and beatings, were held in inhumane conditions in a number of camps, and were expelled from their homes.
To cite but a few examples: witness B-1450, a Muslim woman was raped at knifepoint in May 1992, on the Sava River in the Brčko municipality. The Trial Chamber related that protected witness B-108, who testified in closed session, stated that he received an order from a Colonel Ančić, “to remove the entire civilian population in Podbriž [a village in Sanski Most municipality] in early June 1992.” Witnesses Mesanović and B-1088 gave evidence about the inhumane conditions in the Omarska and Keraterm camps in Prijedor, respectively, and the killings and mistreatment they witnessed. Former Bosnian Serb official Miroslav Deronjić, and witness B-1804, who held a senior position in the Bosnian Serb Army's Zvornik Brigade, testified about the events that led to the killings of over seven and a half thousand Muslim men and boys in Srebrenica in July 1995. And the Trial Chamber described much more...
The cumulative effect of these crimes was a dramatic decline in the Bosnian Muslim population between 1991, before the war, and 1997-1998, after it ended. For example, Prijedor, which had some 40,000 Bosnian Muslims (or 42.6% of the population) in 1991, had only 397 (or 1%) in 1997-1998. In Srebrenica, the change is even more dramatic, with the Bosnian Muslim share of the population dropping from 73.2% in 1991 to 0.1% in 1997-1998. Of 344,803 Bosnian Muslims living in areas where Slobodan Milošević is alleged to have committed crimes, only 7,933 (or about 1.4%) remained in 1997-1998.
The Leaders
Having established that a reasonable judge could conclude that Muslims were victims of genocide in seven Bosnian municipalities, the Trial Chamber looked at whether the evidence supported the Prosecution’s allegation that Slobodan Milošević was responsible. Specifically, the Trial Chamber examined whether the evidence could lead a judge to conclude that Slobodan Milošević, together with his co-perpetrators in the Bosnian Serb leadership, intended to destroy the Bosnian Muslim group, in whole or in part.
The Trial Chamber heard expert testimony that genocide never develops from the “bottom up,” but rather from the “top down.” In other words, genocide occurs with the “knowledge, approval, and involvement of the state authorities.” In this case, as the Prosecution alleged, the state authorities were both the members of the Bosnian Serb leadership and Slobodan Milošević.
Criminal Intent of Bosnian Serb Leaders
The Trial Chamber heard evidence that could lead it to conclude that the Bosnian Serb leadership intended to commit genocide in these seven Bosnian municipalities. It cited a number of statements that Bosnian Serb President Radovan Karadžić made that indicate his state of mind. For example,
“They [Muslims] will disappear, that people will disappear from the face of the Earth… They do not understand that there would be bloodshed and that the Muslim people would be exterminated. The deprived Muslims, who do not know where he [Bosnian Muslim leader Alija Izetbegović] is leading, to what he is leading the Muslims, would disappear…”
In a similar vein, the Trial Chamber heard evidence that then acting Bosnian Serb President Biljana Plavšić told an international representative on 1 May 1992 that the Serbs deserved more territory in Bosnia and Herzegovina, and if it took the lives of three million people to solve the problem, then they should get on with it. The Trial Chamber also cited a statement from Bosnian Serb Assembly President Momčilo Krajišnik that “it would be the greatest tragedy if the Muslims accepted to live together with us… I simply wouldn’t accept that,” he said, “I would accept a lesser percentage then we have now in order to remain divided…”
Whether Milošević Had Genocidal Intent
The Trial Chamber also found that reasonable judges could conclude that Slobodan Milošević shared the Bosnian Serb leadership’s genocidal intent, with Judge O-Gon Kwon dissenting (see “Dissent” below).
First, the Trial Chamber found that Slobodan Milošević was the leader of all Serbs. It cited the testimony of Borisav Jović, the former President of the Yugoslav Presidency, who said that “for more than a decade [during the 1990s], [the accused] was the main political figure in Serbia. He held absolute authority within the people and within the party, and he had the possibility of having a decisive role on all decisions made. And by the same token, he was in a way the main actor of everything that came to pass during that period of time.”
Second, the Trial Chamber found evidence that Slobodan Milošević “had profound influence over the Bosnian Serb political and military authorities.” In an intercepted telephone conversation on 9 July 1991, Radovan Karadžić said to Milošević, “Get in touch with me maybe daily. It is very important for me to hear your assessment.” Showing Milošević’s influence over Ratko Mladić, the Trial Chamber cited a UN representative’s testimony that when he had to write name signs for negotiation meetings for the Bosnian Serb delegation, Ratko Mladić would cross out the word “Bosnian” and say, “No, no, we are a single Serb delegation. You know, Belgrade is our capital.”
The Trial Chamber also referred to evidence that Slobodan Milošević held himself out as the leader of the Bosnian Serbs. During the negotiations to end the war in Bosnia, American representative Richard Holbrooke asked Milošević whether he should deal with him or with the Bosnian Serbs. Milošević replied, “With [me], of course.” American army general Wesley Clark testified in relation to the same negotiations that Milošević stated that his initials were enough to verify the Dayton Peace Agreement that ended the Bosnian war, and that he would produce the Bosnian Serbs’ signatures later.
Third, the Trial Chamber heard evidence that Slobodan Milošević advocated and supported the policy of creating a Greater Serbia. In a speech he gave on 15 January 1991, Slobodan Milošević declared that the Serbian people wanted to live in one State, and that a division that would force them to live in separate sovereign states was unacceptable. Putting his Greater Serbia plan into action, Slobodan Milošević held a secret meeting with Croatian President Franjo Tudjman in March 1991 in which they agreed to divide Bosnia along ethnic lines and annex the parts to Croatia and Serbia respectively, with the Bosnian Muslims living in an enclave.
Fourth, the Trial Chamber stated that it was reasonable to infer that Slobodan Milošević knew about the considerable logistical and financial assistance that the Bosnian Serbs received from Serbia, and that he supported it. The Trial Chamber cites evidence that the Bosnian Serb army (VRS) received a very substantial initial gift of combat hardware, ammunition, and personnel from the Yugoslav National Army (JNA) when it left Bosnia in May 1992. It also cited evidence that the JNA, and its successor the Yugoslav Army (VJ), continued to provide the VRS with equipment and ammunition. Among the evidence it cited were Ratko Mladić's own words when in April 1995 he gave a review of the VRS' consumption from the beginning of the war until 31 December 1994. His overview showed that most of the VRS' infantry, artillery and anti-aircraft ammunition came from the VJ, or was inherited from the JNA.
The Trial Chamber also cited evidence that VRS officers received their salaries from the VJ. In addition, the VJ had to approve promotions for VRS officers before they became effective and VRS soldiers could receive medical treatment in Serbia. One witness who testified before the Tribunal had a JNA identification document that was issued in 1992, and a VRS identification document issued in July or August 1996. Both documents had the same number.
In 1996, Slobodan Milošević himself acknowledged that Serbia provided the Bosnian Serb army with material assistance: “As regards the resources spent for weapons, ammunition and other needs of the Army of Republika Srpska and the Republic of Serbian Krajina [in Croatia], these expenditures constituted a state secret and because of state interests could not be indicated in the Law on the Budget, which is a public document. The same applies to the expenditures incurred by providing equipment… for the security forces and special anti-terrorist forces in particular… and this was not made public because it was a state secret, as was everything else that was provided for the Army of Republika Srpska.”
In addition to providing funds, soldiers, ammunition and equipment, the VJ also assisted the VRS in operations in Bosnia. One witness described how one night in January 1993, about 300 men from the 72nd Brigade crossed the border into Bosnia. Just before they did so, they changed the VJ insignia on their uniforms to VRS. Once across the border, they met the 63rd Parachute Brigade from Niš in southern Serbia and attacked the village of Skelane.
Finally, the Trial Chamber cited evidence that Slobodan Milošević knew about everything that was happening on the front lines. During the Dayton negotiations, Milošević showed that he knew a lot about the terrain, and did not need to speak to anyone. During the negotiations, American General Wesley Clark asked Milošević if he had this influence over the Bosnian Serbs, why he had allowed Ratko Mladić to kill all those people at Srebrenica. Milošević replied, “Well General Clark, I told him not to do it but he didn’t listen to me.” General Clark testified that he thought this admission was stunning, because it showed that Milošević knew about the Srebrenica killings before they happened.
Dissent
Judge O-Gon Kwon dissented from the majority opinion that the evidence submitted against Slobodan Milošević could lead a judge to conclude that Slobodan Milošević had the special intent required to convict him of genocide. However, Judge Kwon found that there was enough evidence for a Trial Chamber to convict Slobodan Milošević of aiding and abetting genocide, or failing to prevent and punish it.
Not a Conviction
In summarising the evidence against Slobodan Milošević, the Trial Chamber pointed out that it does not reflect its own analysis of the evidence. Also, it is very important to note that the Trial Chamber’s 98bis decision is not a conviction. The decision only indicates that at the close of the Prosecution phase the Trial Chamber had found sufficient evidence on which it could convict Slobodan Milošević of the crimes with which he was charged. The Judges made clear in their decision that this does not necessarily mean that they should convict him, nor that they would. The judges issued their decision before having seen the defence evidence which Slobodan Milošević presented. Because Milošević died before the trial was completed, the Trial Chamber terminated the proceedings without issuing a judgement.