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1 Thursday, 11 July 2013
2 [Rule 98 bis Appeal Judgement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.59 p.m.
6 JUDGE MERON: Good afternoon.
7 Registrar, could you please call the case.
8 THE REGISTRAR: Thank you and good afternoon, Your Honours. This
9 is case number IT-95-5/18-AR98bis.1, the Prosecutor versus
10 Radovan Karadzic.
11 JUDGE MERON: Thank you.
12 Mr. Karadzic, can you follow the proceedings in a language you
13 understand? Thank you, Mr. Karadzic.
14 THE ACCUSED: [Interpretation] Good afternoon, Your Excellencies.
15 Yes, I am receiving interpretation.
16 JUDGE MERON: Let me now ask for the appearances of the parties.
17 For Mr. Karadzic. Mr. Karadzic.
18 THE ACCUSED: [Interpretation] Together with me is my lead legal
19 advisor, Mr. Peter Robinson, from the United States; and my legal
20 advisor, Mr. Marko Sladojevic, from Belgrade.
21 JUDGE MERON: Thank you. I note the presence here of
22 Mr. Robinson and Mr. Sladojevic.
23 For the Prosecutor.
24 MR. TIEGER: Good afternoon, Mr. President, Your Honours.
25 Alan Tieger, Katrina Gustafson, and case manager Colin Nawrot on behalf
Page 69
1 of the Prosecution.
2 JUDGE MERON: Thank you, Mr. Tieger.
3 As the Registrar has announced, the case on our agenda today is
4 Prosecutor against Radovan Karadzic. In accordance with the Scheduling
5 Order issued on 5 July 2013, today the Appeals Chamber will deliver its
6 judgement.
7 Following the practice of the Tribunal, I will not read out the
8 text of the appeal judgement, except for the disposition, but instead
9 will summarise the essential issues on appeal and the central findings of
10 the Appeals Chamber. This oral summary does not constitute any part of
11 the official and authoritative judgement of the Appeals Chamber, which is
12 rendered in writing and will be distributed to the parties at the end of
13 the hearing.
14 This case concerns events that occurred between 31 March 1992 and
15 31 December 1992 in certain municipalities of Bosnia and Herzegovina
16 claimed as Bosnian Serb territory, collectively referred to as the
17 municipalities. The indictment alleges that during this period,
18 Mr. Karadzic was the highest civilian and military authority in the
19 Republika Srpska and participated in a joint criminal enterprise, or JCE,
20 together with other members of the Serb and Bosnian Serb leadership to
21 permanently remove Bosnian Muslims and Bosnian Croats from the
22 municipalities through a campaign of persecutions, which included conduct
23 that demonstrated an intent to destroy in part the national, ethnical, or
24 religious groups of Bosnian Muslims or Bosnian Croats as such. The
25 genocidal acts allegedly committed against Bosnian Muslims and/or
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1 Bosnian Croats include: (i) killing; (ii) causing serious bodily or
2 mental harm; and (iii) deliberately inflicting upon detainees conditions
3 of life calculated to bring about their physical destruction.
4 On 11 June 2012, Karadzic moved for a judgement of acquittal on
5 all counts of the indictment following the close of the Prosecution case.
6 At a hearing on 28 June 2012, the Trial Chamber found that there was "no
7 evidence, even taken at its highest, which could be capable of supporting
8 a conviction for genocide in the municipalities as charged under
9 Article 4(3) of the Statute." The Trial Chamber entered the judgement of
10 acquittal on Count 1 of the indictment, which charges Mr. Karadzic with
11 genocide in the municipalities, alleging that Mr. Karadzic was
12 responsible as a superior for and committed in concert with others,
13 planned, instigated, ordered, and/or aided and abetted genocide.
14 The Prosecution advances four grounds of appeal against the
15 judgement of acquittal and requests that the Appeals Chamber reverse the
16 judgement of acquittal and reinstate the charges under Count 1 of the
17 indictment.
18 The Appeals Chamber first addresses submissions related to the
19 Trial Chamber's assessment of underlying acts of genocide alleged in the
20 indictment. In assessing these submissions, the Appeals Chamber has been
21 cognisant that the test to be applied by the Trial Chamber at the
22 Rule 98 bis stage is "whether there is evidence (if accepted) upon which
23 a reasonable trier of fact could be satisfied beyond reasonable doubt of
24 the guilt of the accused on the particular charge in question," not
25 whether an accused's guilt has been established beyond reasonable doubt.
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1 The Prosecution in its first ground of appeal submits that the
2 Trial Chamber erred in law or in fact in addressing the actus reus of
3 genocide in the judgement of acquittal.
4 The Prosecution asserts that the Trial Chamber erred by not
5 finding that killings in the municipalities constituted the actus reus of
6 genocide. The Prosecution submits, inter alia, that the Trial Chamber
7 erred in law by imposing a "group impact" requirement on the actus reus
8 of killing. In the alternative, the Prosecution contends that even if a
9 group impact requirement applies, the Trial Chamber erred in fact in
10 failing to find that there was evidence (if accepted) based upon which a
11 reasonable trier of fact could conclude that killings as an underlying
12 act of genocide had occurred.
13 Karadzic concedes that the Trial Chamber's findings with respect
14 to killings were sufficient to meet the actus reus requirement of
15 Article 4 of the Statute.
16 The Appeals Chamber notes that while the Trial Chamber assessed
17 whether a reasonable trier of fact could infer that "a significant
18 section of the Bosnian Muslim and/or Bosnian Croat groups and a
19 substantial number of members of these groups were targeted for
20 destruction ... as such," its findings on this issue pertain not to the
21 sufficiency of evidence of the underlying genocidal acts of killing, but
22 to the element of genocidal intent. The Appeals Chamber accordingly
23 discerns nothing in the Trial Chamber's ruling to suggest that it erred
24 in law by imposing a "group impact" requirement on the actus reus of
25 killing, as the Prosecution claims.
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1 In the judgement of acquittal, the Trial Chamber stated that
2 there was evidence indicating that a large number of Bosnian Muslims
3 and/or Bosnian Croats were killed by Bosnian Serb forces in the
4 municipalities and recalled its earlier finding that this evidence was
5 sufficient to support a conclusion that Bosnian Muslims and/or Bosnian
6 Croats were killed on a large scale with persecutory intent. The
7 Appeals Chamber considers that the Trial Chamber was thus satisfied that
8 for purposes of ruling on a motion pursuant to Rule 98 bis of the Rules,
9 there was evidence (if accepted) upon which a reasonable trier of fact
10 could be satisfied beyond reasonable doubt that killings of Bosnian
11 Muslims and/or Bosnian Croats in the municipalities occurred and that
12 these groups had been singled out on national, ethnical, racial, or
13 religious grounds.
14 The Appeals Chamber notes that the Prosecution's relevant
15 submissions are all premised on the incorrect assumption that the
16 Trial Chamber did not find evidence of killings in the municipalities
17 sufficient to demonstrate the actus reus of genocide in the context of
18 Rule 98 bis of the Rules. As noted above, the judgement of acquittal
19 indicates that the Trial Chamber found that evidence of these killings
20 was sufficient. The Prosecution's contentions that the Trial Chamber
21 erred with respect to underlying genocidal acts of killings are therefore
22 moot.
23 The Prosecution contends that the Trial Chamber improperly added
24 an actus reus element by requiring that the serious bodily or mental harm
25 in question achieve a certain level of destructive impact on the group.
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1 In the alternative, the Prosecution submits that the Trial Chamber erred
2 in fact in failing to find that there is evidence on the record that
3 serious bodily or mental harm was inflicted on Bosnian Muslims and/or
4 Bosnian Croats in the municipalities. In support of this contention, the
5 Prosecution notes evidence of, inter alia, beatings, sexual violence, and
6 torture that occurred within detention facilities.
7 Karadzic recognises that the Trial Chamber acknowledged evidence
8 that Bosnian Serb forces caused serious bodily and mental harm to many
9 Bosnian Muslims and/or Bosnian Croats while they were held in multiple
10 detention facilities. He submits, however, that the Trial Chamber then
11 concluded that the evidence of acts of causing serious bodily or mental
12 harm, taken at its highest, did not support a finding that these acts
13 were committed with the intent to destroy the groups.
14 The Appeals Chamber notes that the evidence reviewed by the
15 Trial Chamber, taken at its highest, indicates that Bosnian Muslims
16 and/or Bosnian Croats suffered injuries, including rape and severe
17 non-fatal physical violence, which are, on their face, suggestive of
18 causing serious bodily harm.
19 More specifically, the Appeals Chamber notes evidence on the
20 record indicating that Bosnian Muslim and/or Bosnian Croat detainees were
21 kicked and were violently beaten with a range of objects, including,
22 inter alia, rifles and rifle-butts, truncheons and batons, sticks and
23 poles, bats, chains, pieces of cable, metal pipes and rods, and pieces of
24 furniture. Detainees were often beaten over the course of several days,
25 for extended periods of time, and multiple times a day. Evidence on the
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1 record also indicates that in some instances detainees were thrown down
2 flights of stairs, beaten until they lost consciousness, or had their
3 heads hit against walls. These beatings allegedly resulted in serious
4 injuries, including, inter alia, rib fractures, skull fractures, jaw
5 fractures, vertebrae fractures, and concussions. Long-term alleged
6 effects from these beatings included, inter alia, tooth loss, permanent
7 headaches, facial deformities, deformed fingers, chronic leg pain, and
8 partial paralysis of limbs.
9 The Appeals Chamber underscores that the commission of individual
10 paradigmatic acts does not automatically demonstrate that the actus reus
11 of genocide has taken place. However, the Appeals Chamber considers that
12 no reasonable Trial Chamber reviewing the specific evidence on the record
13 in this case, including evidence of sexual violence and beatings causing
14 serious physical injuries, could have concluded that it was insufficient
15 to establish the actus reus of genocide in the context of Rule 98 bis of
16 the Rules.
17 Accordingly, the Appeals Chamber finds that the Trial Chamber
18 erred in fact in concluding that the evidence, taken at its highest, was
19 insufficient for a reasonable trier of fact to conclude beyond reasonable
20 doubt that underlying genocidal acts of causing serious bodily or mental
21 harm occurred, and that this error resulted in a miscarriage of justice.
22 The Prosecution submits that the Trial Chamber erred by failing
23 to provide a reasoned opinion in relation to its conclusion that the
24 conditions of life in detention facilities in the municipalities did not
25 satisfy the requirements of genocide under Article 4(2)(c) of the
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1 Statute. Additionally, the Prosecution submits that the Trial Chamber
2 erred in fact by failing to find that the evidence on the record
3 satisfied the requirements of Article 4(2)(c) of the Statute.
4 Inter alia, the Prosecution contends that evidence accepted by the
5 Trial Chamber demonstrates that the conditions in the facilities in which
6 Bosnian Muslims and/or Bosnian Croats were detained were "horrific" and
7 supports a conclusion as to the objective probability of physical
8 destruction.
9 Karadzic does not respond to the Prosecution's argument in
10 relation to the deliberate infliction of conditions of life calculated to
11 destroy.
12 The Appeals Chamber is not persuaded that the Trial Chamber
13 failed to provide a reasoned opinion. The Trial Chamber articulated the
14 legal test that it applied to the evidence and expressly affirmed that it
15 had focused on and assessed the relevant legal factors in reviewing the
16 evidence regarding the alleged underlying genocidal act of deliberately
17 inflicting conditions of life calculated to destroy. The Trial Chamber
18 also identified the evidence that it considered in this context and made
19 specific reference to an earlier and more detailed discussion of this
20 same evidence in relation to Count 3 of the indictment.
21 By contrast, the Prosecution is convincing in asserting that the
22 Trial Chamber erred in assessing the factual evidence before it. The
23 Trial Chamber noted evidence indicating that detained Bosnian Muslims
24 and/or Bosnian Croats suffered "cruel and inhumane treatment, torture,
25 physical and psychological abuse, rape and sexual violence, inhumane
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1 living conditions, and forced labour," and were not provided "adequate
2 accommodation, shelter, food, water, medical care or hygienic
3 facilities."
4 More specifically, the Trial Chamber received evidence
5 indicating, inter alia, that Bosnian Muslims and/or Bosnian Croats were
6 detained in overcrowded conditions, at times with hundreds of individuals
7 confined to a single room. For example, evidence before the
8 Trial Chamber indicates that at Keraterm camp in Prijedor, 570 detainees
9 were held in a single room. At KP Dom in Foca, 18 detainees were kept in
10 a room designed for solitary confinement. At Omarska camp in Prijedor,
11 200 individuals were held in a room of 40 square metres and were also
12 crowded into lavatories. And at the Betonirka factory in Sanski Most,
13 detainees had to sleep sitting upright as there was no room to lie down.
14 Other evidence before the Trial Chamber suggests that Bosnian
15 Muslim and/or Bosnian Croat detainees were denied or received inadequate
16 medical care. For example, it was alleged that there were no medical
17 facilities for detainees at the Betonirka factory in Sanski Most. At
18 KP Dom in Foca, there was inadequate medical care and detainees who were
19 kept in isolation cells were denied all access to medical care. And at
20 Keraterm camp in Prijedor, many detainees suffered from dysentery as well
21 as from injuries inflicted during beatings, but they were not provided
22 with any medical care. Finally, the Trial Chamber also received evidence
23 indicating that Bosnian Muslim and/or Bosnian Croat detainees were given
24 insufficient or no food, leading to malnutrition, starvation, and severe
25 weight loss; were sometimes deprived of water; and were not given access
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1 to proper toilet or bathing facilities, leading to the spread of disease.
2 The Appeals Chamber is satisfied that evidence adduced by the
3 Prosecution, when taken at its highest, indicates that Bosnian Muslims
4 and Bosnian Croats were subjected to conditions of life that would bring
5 about their physical destruction, including severe overcrowding,
6 deprivation of nourishment, and lack of access to medical care. This
7 evidence is sufficiently compelling in its totality that no reasonable
8 Trial Chamber could have concluded in the context of Rule 98 bis of the
9 Rules, that there is no evidence capable of demonstrating the actus reus
10 of deliberately inflicting conditions of life calculated to destroy.
11 Accordingly, the Appeals Chamber finds that the Trial Chamber
12 erred in fact in concluding that there was no evidence, taken at its
13 highest, based upon which a reasonable trier of fact could be satisfied
14 beyond reasonable doubt that underlying genocidal acts of deliberately
15 inflicting conditions of life calculated to destroy occurred, and that
16 this error resulted in a miscarriage of justice.
17 The Prosecution submits that the Trial Chamber erred in law and
18 in fact in assessing genocidal intent. Inter alia, the Prosecution
19 submits that insofar as the Trial Chamber conducted an assessment of
20 genocidal intent, it erred in law by impermissibly weighing the evidence.
21 In addition, the Prosecution contends that the Trial Chamber committed a
22 legal error by failing to take the evidence of genocidal intent at its
23 highest, as evidenced by the Trial Chamber's characterisation of the
24 statements of Karadzic and other members of the Bosnian Serb leadership
25 as a "rhetorical warning of the disappearance, elimination, annihilation
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1 or extinction of Bosnian Muslims in the event that war broke out.'"
2 Finally, the Prosecution submits that the Trial Chamber erred in
3 fact by failing to find that Karadzic and other alleged JCE members
4 shared the intent to commit genocide based upon the evidence on the
5 record.
6 Karadzic responds that the Prosecution fails to show any legal
7 error on the part of the Trial Chamber.
8 The Appeals Chamber finds convincing the Prosecution's
9 contentions regarding the Trial Chamber's interpretation of evidence on
10 the record. The Appeals Chamber notes that the Trial Chamber received
11 evidence that in meetings with Karadzic "it had been decided that
12 one-third of Muslims would be killed, one-third would be converted to the
13 Orthodox religion, and a third will leave on their own," and thus all
14 Muslims would disappear from Bosnia. At the appeal hearing, Karadzic's
15 legal advisor accepted that, taken at its highest, this statement could
16 constitute evidence of genocidal intent.
17 Other statements on the record also suggest that Karadzic
18 possessed genocidal intent. For example, Karadzic is alleged to have
19 said that his goal was "to get rid of the enemies in our house, the
20 Croats and the Muslims, and not to be in the same state with them
21 anymore," and that if war started in Bosnia, Muslims would disappear and
22 be annihilated.
23 Evidence on the record also indicates that other senior members
24 of the Bosnian Serb leadership alleged to have been members of the JCE
25 possessed genocidal intent. For example, in discussing Bosnian Muslims
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1 and Bosnian Croats, Ratko Mladic, Mladic, the commander of the Army of
2 the Republika Srpska Main Staff, is alleged to have said that, and I
3 quote: "My concern is to have them vanish completely." In addition,
4 Slobodan Milosevic, president of Serbia, stated that Momcilo Krajisnik,
5 president of the Bosnian Serb Assembly, wished to "kill off all the
6 Muslims and Croats."
7 Finally, the Appeals Chamber notes that the Trial Chamber
8 received extensive indirect evidence from which a reasonable trier of
9 fact could infer genocidal intent. The Appeals Chamber recalls that
10 specific intent may be inferred from "a number of facts and
11 circumstances, such as the general context, the perpetration of other
12 culpable acts systematically directed against the same group, the scale
13 of atrocities committed, the systematic targeting of victims on account
14 of their membership of a particular group, or the repetition of
15 destructive and discriminatory acts." In this regard, the Trial Chamber
16 noted evidence of "culpable acts systematically directed against Bosnian
17 Muslims and/or Bosnian Croats" in the municipalities, as well as evidence
18 of repetitive "discriminatory acts and derogatory language." In
19 particular, the Appeals Chamber observes that the record includes
20 evidence of genocidal and other culpable acts committed against Bosnian
21 Muslims and Bosnian Croats throughout the municipalities, such as
22 killings, beatings, rape, and sexual violence, as well as evidence of the
23 large scale and discriminatory nature of these acts.
24 The Appeals Chamber recalls again that pursuant to Rule 98 bis of
25 the Rules, the Prosecution's evidence is assumed to be credible and is
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1 taken at its highest and that a judgement of acquittal shall be entered
2 only if there is "no evidence capable of supporting a conviction." In
3 the context of this appeal, the Appeals Chamber considers that the
4 evidence on the record, taken at its highest, could indicate that
5 Karadzic possessed genocidal intent. Other evidence on the record
6 indicates that other alleged members of the JCE also possessed such
7 intent. The Appeals Chamber considers that this evidence assessed in
8 conjunction with evidence regarding the scale and nature of the alleged
9 genocidal and other culpable acts is sufficiently compelling in its
10 totality that no reasonable Trial Chamber could have concluded in the
11 context of Rule 98 bis of the Rules that there was no evidence capable of
12 demonstrating that Karadzic and other alleged JCE members possessed
13 genocidal intent.
14 Accordingly, the Appeals Chamber finds that the Trial Chamber
15 erred in fact in concluding that there was no evidence, taken at its
16 highest, based upon which a reasonable trier of fact could be satisfied
17 that Karadzic and other alleged JCE members possessed genocidal intent
18 and that this error resulted in a miscarriage of justice.
19 For the foregoing reasons, the Appeals Chamber grants grounds 2
20 and 3 of the Prosecution's appeal in part and reverses the
21 Trial Chamber's finding that there was no evidence from which, if
22 accepted, a reasonable trier of fact could infer genocidal intent on the
23 part of Karadzic and other alleged JCE members.
24 In his response, Karadzic suggests that insofar as the
25 Trial Chamber found evidence indicative of both the actus reus of
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1 genocide and of his genocidal intent, it correctly concluded that there
2 was no "confluence" between the acts and his intent and that "killings
3 and serious harm in the municipalities were not done with the intent to
4 destroy the Bosnian Muslims as a group." Karadzic also submits that in
5 the interests of justice, the Appeals Chamber should not reverse the
6 judgement of acquittal even if it determines that the Trial Chamber
7 erred. Karadzic contends that the reversal of the judgement of acquittal
8 would disrupt the ongoing trial on the remaining counts of the indictment
9 and would represent an irresponsible use of public funds.
10 The Prosecution replies, inter alia, that evidence on the record
11 indicates that there is a confluence between genocidal intent and
12 actus reus. The Prosecution further maintains that it is in the
13 interests of justice to proceed to a "proper full determination of
14 Count 1 of the indictment at the end of the trial."
15 The Appeals Chamber finds unconvincing Karadzic's assertion that
16 the Trial Chamber's decision to acquit him of genocide in the
17 municipalities was premised on the lack of a confluence between killings
18 and other harmful acts against Bosnian Muslims and/or Bosnian Croats and
19 genocidal intent. The Appeals Chamber is also unconvinced by Karadzic's
20 contention that the Appeals Chamber should refrain from reversing the
21 judgement of acquittal on prudential grounds. No exceptional
22 circumstances exist in the present case. Specifically, Karadzic did not
23 plead guilty to the acts underlying Count 1 of the indictment, and there
24 has been no final adjudication of the underlying acts of genocide through
25 other counts of the indictment. Moreover, the Appeals Chamber observes
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1 that no sentence has been pronounced against Karadzic at this stage of
2 the trial, given that the proceedings for the remaining counts of the
3 indictment are ongoing. The Appeals Chamber is similarly unpersuaded by
4 Karadzic's submission that a reversal of the judgement of acquittal would
5 disrupt the ongoing trial on the remaining counts of the indictment and
6 would represent an irresponsible use of public funds. Accordingly,
7 Karadzic's argument in this respect is rejected.
8 I shall now read out the full operative text of the Appeals
9 Chamber's disposition.
10 Mr. Karadzic, would you please stand.
11 [The accused stands up]
12 JUDGE MERON: For the foregoing reasons, the Appeals Chamber,
13 pursuant to Article 25 of the Statute and Rule 117 of the Rules; noting
14 the respective written submissions of the parties and the arguments they
15 presented at the appeal hearing of 17 April 2013; sitting in open
16 session; grants the Prosecution's first ground of appeal, in part; grants
17 the Prosecution's second and third grounds of appeal, in part; reverses
18 the Trial Chamber's acquittal of Mr. Karadzic for genocide in the
19 municipalities under Count 1 of the indictment; and reinstates the
20 charges against Mr. Karadzic under Count 1 of the indictment; dismisses
21 the Prosecution's remaining grounds of appeal; and remands the matter to
22 the Trial Chamber for further action consistent with this judgement.
23 Mr. Karadzic, you may be seated.
24 [The accused sits down]
25 JUDGE MERON: Mr. Registrar, would you please distribute copies
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1 of the judgement to the parties.
2 The hearing of the Appeals Chamber of the International Criminal
3 Tribunal for the former Yugoslavia stands adjourned.
4 --- Whereupon the hearing adjourned at 3.40 p.m.
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