"Judgement on Defence Motions to Acquit"

3 September 2001
Trial Chamber III (Judges Robinson [Presiding], May and Fassi Fihri)

Procedural Background

• On 8 and 15 June 2001, the three co-accused filed Motions for Judgement of acquittal pursuant to Rule 98 bis of the Rules of Procedure and Evidence1.

• The Office of the Prosecutor responded on 15 and 20 June 2001.

• The Trial Chamber heard the parties on 21 June 2001 and rendered its oral Decision2.
  

Standard of review for the application of Rule 98 bis of the Rules of Procedure and Evidence

Trial Chamber III adopted the test it had enunciated in its Decision on Defence Motions for Judgement of Acquittal on 6 April 2000 in The Prosecutor v. Dario Kordic & Mario Cerkez3, subject to the qualification that although the said test did not deal explicitly with a situation in which a Motion filed under Rule 98 bis of the Rules of Procedure succeeded because an essential ingredient for a crime had not been made out in the Prosecution case, that test also covered that situation. The Trial Chamber added that, if on the basis of evidence adduced by the Prosecution, an ingredient required as a matter of law to constitute the crime was missing, "that evidence would also be insufficient to sustain a conviction and the Motion filed under Rule 98 bis would succeed."

The Trial Chamber reiterated that after its oral Decision of 21 June 2001 in this case, the Appeals Chamber had conclusively resolved the issue of the appropriate standard to be applied on a Motion under Rule 98 bis of the Rules in the Judgement of 5 July 2001 in The Prosecutor v. Goran Jelisic4. The Appeals Chamber stated that the test had been correctly stated by Trial Chamber II in its Decision on Motion for Acquittal rendered on 3 July 2000 in The Prosecutor v. Dragoljub Kunarac et al.5. Trial Chamber III however expressed the opinion that the "test does not differ in substance" from that applied in the Jelisic Appeals Chamber Judgement6.

With regard to Dusko Sikirica

The Trial Chamber reiterated that "[g]enocide is a crime against humanity"7 and considered that it was "easy to confuse it with other crimes against humanity, notably, persecution."8 It also reiterated that "[b]oth genocide and persecution have discriminatory elements, some of which are common to both crimes."

The Trial Chamber held that the Prosecution is required to establish two cumulative elements as a matter of law, i.e. (1) an intention to destroy the populations in whole or in part; and (2) the intention to destroy the groups as such.

The Trial Chamber examined the intent to destroy in whole or in part the Bosnian Muslim or Bosnian Croat populations in Prijedor and held that it was more appropriate to refer to "a 'reasonably substantial' rather than a 'reasonably significant' number" of a particular group9.

The Trial Chamber found that this was "not a case in which the intent to destroy a substantial number of Bosnian Muslims or Bosnian Croats" could properly be inferred. Nor did it consider that there was "a sufficient evidential basis for inferring an intention to destroy a significant section of the Bosnian Muslim or Bosnian Croat population, such as its leadership, whether in or outside the Keraterm camp." The Trial Chamber concluded that the intent to destroy in part the Bosnian Muslim or Bosnian Croat group could not "be inferred on the basis of the evidence, with reference either to the criterion of the intent to destroy a significant number of the group relative to its totality or to the intent to destroy a significant section of the group, such as its leadership." It added that "[t]his part of the definition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group. According to this definition, if that criterion is not met, the mens rea may yet be established by evidence of an intention to destroy a significant section of the group, such as its leadership." While the Trial Chamber did not reject that aspect of the definition which regards the two elements as "alternative, there may be situations in which the inference as to the intent can not be drawn on the basis of the evidence in relation to each element in isolation, but when the evidence in relation to each is viewed as a whole, it would be perfectly proper to draw the inference."

For the purpose of determining the number of Bosnian Muslims and Bosnian Croats who were victims in the Keraterm camp within the terms of Article 4(2)(a), (b) and (c) of the Statute10, the Trial Chamber estimated the entire camp population to have been between 1000 and 1400 persons "out of a total of 49,351 in the Prijedor municipality." It found that this figure "would represent between 2 % and 2.8 % of the Muslims in the Prijedor municipality and would hardly qualify as a 'reasonably substantial' part of the Bosnian Muslim group in Prijedor." The Trial Chamber emphasised "that not all the detainees at Keraterm were Muslims" but held that the evidence showed "that the number of Bosnian Croats who were victims of acts covered by [the above-mentioned Article] was very small." On the whole, it concluded that "the number of Bosnian Muslims and Bosnian Croats detained in the Keraterm camp, and who were victims within the terms of Article 4(2)(a), (b) and (c)" of the Statute, was "negligible." The Trial Chamber also concluded that when this fact was "considered along with other aspects of the evidence", this was "not a case in which the intent to destroy a substantial number of Bosnian Muslims or Bosnian Croats" could be inferred.

It reiterated that "[i]f the quantitative criterion is not met, the intention to destroy in part may yet be established if there is evidence that the destruction is related to a significant section of the group, such as its leadership." The Trial Chamber pointed out that "[t]he important element here is the targeting of a selective number of persons who, by reason of their special qualities of leadership within the group as a whole, are of such importance that their victimisation within the terms of Article 4(2)(a), (b) and (c)" of the Statute would impact on the survival of the group as such.

• In examining the evidence to determine whether leaders were targeted, the Trial Chamber meant "Bosnian Muslims who, whether by reason of their official duties or by reason of their personality, had this special quality of directing the actions or opinions of the group in question", i.e. those who had a significant influence on its actions. However, it found that very little evidence had "been adduced as to the leadership status of those who" had been detained in Keraterm and in particular "no specific evidence" which identified "them as leaders of the community." The Trial Chamber considered that they did "not appear to have been persons with any special significance to their community" and hence that "a significant impact on the survival of the Muslim population as a whole in Prijedor" had not been established.

It refused to treat all the Bosnian Muslims who had been "active in the resistance of the take-over of their villages […] as leaders" and underscored that this "would involve a definition of leadership so elastic as to be meaningless."

The Trial Chamber examined the situation outside the Keraterm camp, referred to the Judgement rendered by Trial Chamber I on 14 December 1999 in the case The Prosecutor v. Goran Jelisic11 and found that no evidence had "been led to show that the disappearance of those who [had been] targeted by Bosnian Serbs would have [had] a significant impact on the survival of the population in Prijedor to which they belonged by reason of their leadership status or for any other reason."

• The Trial Chamber also examined the situation of Bosnian Croats and held that there was "no evidence as to their significance within the group."

In sum, it did not consider that there was a "sufficient evidential basis for inferring an intention to destroy a significant section of the Bosnian Muslim or Bosnian Croat population, such as its leadership, whether in or outside the Keraterm camp." The Trial Chamber concluded that the intent to destroy in part the Bosnian Muslim or Bosnian Croat group could not "be inferred on the basis of the evidence".

It concurred with the analysis of the Jelisic Trial Chamber Judgement on the intent to destroy a national, ethnical, racial or religious group, as such12 and emphasised that the mental element of the crime distinguishes it from other crimes which encompass acts similar to those constituting genocide. The Trial Chamber added that "the significance of the phrase 'as such' in the chapeau" of Article 4(2) of the Statute is that the evidence must establish that the group had "been targeted, and not merely specific individuals within that group." It pointed out that "the ultimate victim of genocide is the group" which "differentiates genocide from the crime against humanity of persecution." In the case of persecution, the Trial Chamber held that "the perpetrator commits crimes against individuals, on political, racial or religious grounds" and that this factor "establishes a demarcation between genocide and most cases of ethnic cleansing."13 It found that no evidence had "been adduced to show that there was a specific intent to target the Bosnian Muslims or Bosnian Croats as such, that is, as a group, as distinct from the individual members of that group."

The Trial Chamber concluded that the evidence did not establish that Dusko Sikirica possessed the very specific intent required by Article 4(2) of the Statute to destroy in part the Bosnian Muslims or Bosnian Croats as a group. It reiterated that the two elements as to the requirement of intent in the chapeau of Article 4(2) of the Statute - "the intention to destroy in part and the intention to destroy the group as such - are cumulative."

It held that "[w]hile the general and widespread nature of the atrocities committed may be evidence of a plan of persecution, in the circumstances of this case, it was "not sufficient to satisfy the specific intent required for the crime of genocide."

As a result, the Trial Chamber found "that, on the basis of the evidence adduced by the Prosecution, the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" could not be inferred.

With regard to Damir Dosen

The Trial Chamber found that there was "no evidence linking Damir Dosen to the incident alleged" in relation to counts 12 to 15 of the indictment (torture, inhuman acts and cruel treatment).

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1. "(A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor's case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii).
(B) The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges."
2. See Weekly Update No. 178.
3. The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-PT, Trial Chamber III, Decision on Defence Motions for Judgement of Acquittal (summarised in Judicial Supplement No. 14).
4. The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-A, Appeals Chamber, Judgement, 5 July 2001 (hereinafter the "Jelisic Appeals Chamber Judgement", summarised in Judicial Supplement No. 26). See also The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in Judicial Supplement No. 23), para. 434.
The ICTR Judges added Rule 98 bis entitled "Motion for Judgement of Acquittal" to the ICTR Rules of Procedure and Evidence at the Fifth Plenary Session held from 1-8 June 1998. It was applied by the ICTR for the first time on 27 September 2001 in a Decision in the case The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T. In the Decision, Trial Chamber III subscribed to the interpretation contained in the Jelisic Appeals Chamber Judgement regarding the test to be applied to a Motion for Judgement of acquittal (paras. 14 and 15).
5. The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23/1-T, Trial Chamber II, Decision on Motion for Acquittal, 3 July 2000 (summarised in Judicial Supplement No. 18).
6. See also The Prosecutor v. Miroslav Kvocka et al. ("Omarska & Keraterm Camps"), Case No. IT-98-30/1-T, Trial Chamber I, Decision on Defence Motions for Acquittal, 15 December 2000 (summarised in Judicial Supplement No. 21).
7. See The Prosecutor v. Clément Kayishema & Obed Ruzindana, Case No. ICTR-95-1-T & ICTR-96-10-T, Trial Chamber II, Judgement, 21 May 1999 (hereinafter the "Kayishema & Ruzindana Trial Chamber Judgement"), in which the Trial Chamber held that the definition of the crime of genocide was based on that of crimes against humanity and that "[t]he crime of genocide is a type of crime against humanity." It considered that the essential difference is that genocide requires the "specific intent to exterminate a protected group (in whole or in part) while crimes against humanity require the civilian population to be targeted as part of a widespread or systematic attack." The Trial Chamber added that "[t]here are instances where the discriminatory grounds coincide and overlap." (Para. 89) It further reiterated that under crimes against humanity all the "crimes must be committed specifically against a 'civilian population' where as to commit the crime of genocide one must commit acts to destroy 'members of a group'." (Para. 631)
8. On the definition of persecutions, see The Prosecutor v. Zoran Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-T, Trial Chamber II, Judgement, 14 January 2000 (summarised in Judicial Supplement No. 11), para. 621.
9. See also Kayishema & Ruzindana Trial Chamber Judgement, in which the Trial Chamber "stated that the intent to destroy a part of a group must affect a 'considerable' number of individuals" (para. 97); The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Trial Chamber I, Judgement, 7 June 2001, in which the Trial Chamber held "that the destruction sought must target at least a substantial part of the group." (Para. 64); The Prosecutor v. Radislav Krstic ("Srebrenica"), Case No. IT-98-33-T, Trial Chamber I, Judgement, 2 August 2001 (summarised in this issue of the Judicial Supplement), para. 503.
10. "Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part".
11. The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-T, Trial Chamber I, Judgement, 14 December 1999 (hereinafter the "Jelisic Trial Chamber Judgement", summarised in Judicial Supplement No. 10).
12. Jelisic Trial Chamber Judgement, para. 70.
13. See The Prosecutor v. Radovan Karadzic & Ratko Mladic ("Bosnia & Herzegovina"), Case No. IT-95-18-I, Judge Fouad Riad, Review of the Indictment, 16 November 1995, in which the Judge described "ethnic cleansing" as a form of genocide. Judge Riad considered that the policy of "ethnic cleansing" "presents, in its ultimate manifestation, genocidal characteristics." The Judge added that in the instant case, "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, which is specific to genocide, may clearly be inferred from the gravity of the 'ethnic cleansing' practiced in Srebrenica and its surrounding areas" (page 4).