Talk:Momčilo Krajišnik

Acquittal of genocide

This section is very confusing and not accurate. The source cited does not support the text and it is an opinion piece by "Edina Becirevic is senior lecturer at the Faculty of Criminal Justice Sciences in Sarajevo." The publisher, the Institute for War & Peace Reporting, makes it clear that "The opinions expressed in IWPR Online are those of the authors and do not necessarily represent those of the Institute for War and Peace Reporting."

An indication that this is an opinion piece is provided by the last three sentences "The judges in the Krajisnik case said they had established that genocide took place, but were not convinced the Serb leadership intended to commit it. They appear to lean toward a school of thought which sets extremely high standards of proof for genocide. To them, the Srebrenica massacre was one “genocidal incident” in the broader ethnic cleansing of Bosnia. In his book “States of Denial”, Stanley Cohen says that avoiding the use of the word genocide in situations of armed conflict gives other countries an excuse not to intervene. This may help explain why the term was so studiously avoided during the Bosnian war." One can turn that around and say that those who suffered the most in the Bosnian War had a vested interest in portraying the incidents of as genocide to give other countries an excuse to to intervene in situations of armed conflict.

In another opinion piece from the same source on the Bosnian Genocide Case (judgement February 2007) "Dr Larissa van den Herik, an assistant professor in public international law at Leiden University, ... dismisses the claim made by some academics that genocide is too difficult to prove - but rather is a narrowly defined legal definition, which is sometimes charged in circumstances where it doesn't apply. In this particular case, she says, a gap in international law meant the Genocide Convention had to be used. "The only way for Bosnia to go to the ICJ was to allege genocide. There is no Crimes against Humanity Convention providing for jurisdiction for the ICJ," she said. She is concerned that too much focus is placed on the crime of genocide, which is often erroneously held up by victims, the media - and even ad hoc tribunal judges - as the crime of crimes. "Genocide and crimes against humanity are of equal gravity, yet everyone feels that genocide is worse and carries an extra stigma," This preoccupation with genocide is particularly prevalent in the former Yugoslavia, she said. "There, if you are a victim of genocide, does that mean you a higher status of victim?""[1]

What judgement in this case actually ruled was

5.6.2 Legal findings

867. The Chamber finds that some of the crimes described earlier in part 5 meet the requirements of the actus reus for genocide. This is the case with regard to all of the crimes of murder and extermination, described above in part 5.2.2, as well as some instances of cruel or inhumane treatment, discussed above in part 5.4.2. The Chamber does not find, however, that any of these acts were committed with the intent to destroy, in part, the Bosnian-Muslim or Bosnian-Croat ethnic group, as such.

868. In the instances of extermination, the Chamber has considered whether a genocidal intent of the perpetrator could be inferred directly from the large number of killings. In this context, the Chamber has also considered the number of victims relative to the number of Muslims and Croats present in the village or detention centre where the killings took place, and the selection of the victims. The Chamber finds that in no instance are the killings themselves sufficient to make a conclusive finding on whether the perpetrator had a genocidal intent.

869. In addition to the acts themselves, the Chamber has considered the surrounding circumstances, including words uttered by the perpetrators and other persons at the scene of the crime and official reports on the crimes, in order to establish the mens rea. Considering the evidence as a whole, the Chamber can make no conclusive finding that any acts were committed with the intent to destroy, in part, the Bosnian-Muslim or Bosnian-Croat ethnic group, as such.

— page 301 JUDGEMENT: PROSECUTOR v. MOMČILO KRAJIŠNIK

The first paragraph refers to section 5.2.2:

5.2.2 Legal findings

717. Based on the evidence received, the Chamber finds that approximately 3,000 Muslims and Croats were killed in 30 municipalities during the indictment period. To avoid any misunderstanding, the Chamber notes that this is not a historical finding, but a legal one. ...

[718- lists murders, massacres and extermination of the victims amounting to the 3,000 mentioned in 717]

721 The Chamber finds that all the victims in the above incidents died as a result of acts of the perpetrators who intended to kill on a mass scale. The Chamber further finds that the victims referred to above were either captured or detained at the time of their killing, or otherwise not taking active part in the hostilities. The Chamber finds that the killings were part of the widespread and systematic attack against the Muslim and Croat civilian population. The Chamber therefore finds that all the above incidents constitute extermination as a crime against humanity.

— pp. 261-269 JUDGEMENT: PROSECUTOR v. MOMČILO KRAJIŠNIK

The first paragraph of 5.6.2 (867) can be interpreted as is done by Edina Becirevic, but equally it can be read that for a genocide to take place then crimes against humanity such as those described in 5.2.2 are be committed. The second paragraph (868) is ambiguous, it does not make it clear if the number of people killed (around 3,000 out of the total population) meets the "[substantial] in part" criteria of the CPPCG -- The court did not have to answer this question because in the last paragraph (869) the court did not find that beyond reasonable doubt that there was "intent to destroy".

All in all, given the February 2007 ICJ judgement in the Bosnian Genocide Case was given after this section was written (before 5 December 2006), I think this section should be deleted as there is no evidence presented that the conviction of Krajisnik for crimes against humanity and not for genocide is a controversial issue among disinterested (neutral) observers. --Philip Baird Shearer (talk) 10:20, 9 April 2008 (UTC)

Alex Whiting has argued that the Appeal Chamber may have been too anxious to see final judgment rendered. It failed to consider the body of evidence on which the Trial Chamber had based its findings. Whiting observes that the Trial Chamber's "scarce findings" which were the basis of the Appeal Court's criticism may have been due to haste in publishing its judgment. Witing argues that the Appeal Chamber could have reviewed the evidence itself or remitted the case for further proceedings. Judge Fausto Pocar considered that it was not in the interests of justice to remit, but Whiting points out that no cogent reason was given for this.

"Alex Whiting, a professor of law at Harvard Law School and a former Hague tribunal prosecutor, Some people might be concerned [that] if the prosecutors were unable to convict Krajisnik of these more serious crimes, how could they possibly convict Karadzic. But I think that would be a misreading of what happened [in reaching the appeals judgement],” Alex Whiting, a professor of law at Harvard Law School and a former Hague tribunal prosecutor, told IWPR.

“I do not think that this appeals chamber decision is a bad sign for [prosecutors in] the Karadzic case.”

Whiting said he believed that Krajinik’s convictions had been overturned not because of a lack of evidence against him, but because of “a lack of proper findings by the trial chamber”.

Appeals judges ruled that the trial chamber had only made “scarce findings” as to exactly when and how the crimes of murder, extermination and the more serious counts of persecution became part of the Bosnian Serb leadership’s criminal plan, and as a result they could not attribute those crimes to Krajisnik.

Whiting pointed out that in reaching their decision, the appeals judges only reviewed the trial judges’ findings and did not examine the body of evidence presented in the case which led them to those findings – a decision he finds “baffling”.

“The prosecution believes [that] there was evidence available to make those specific findings – it’s just the trial chamber didn’t do it,” said Whiting.

Some observers say the reversal of the trial judges’ convictions on appeal – after they failed to set out their findings clearly enough – result from excessive haste in delivering the judgement. The trial chamber delivered its verdict on September 27, 2006, less than four weeks after the presentation of evidence was concluded.

“[The overturning of the convictions are] a reflection of the problems of rendering a judgement so shortly after the end of the trial,” David Josse, who was on the Krajisnik defence team at the trial stage, told IWPR.

According to Whiting, having acknowledged the trial judges’ shortcomings, the appeal judges could either have reviewed the evidence themselves or, preferably, have sent the case back to the trial judges to ask them to substantiate their findings so that the convictions could be upheld.

“The appeals chamber provided no cogent reason why this course could not be followed,” said Whiting.

Instead, appeals judges made it clear that they were not prepared to review the evidence and quashed the convictions.

“[It was] not in the interests of justice to remit the case for further proceedings,” said Judge Fausto Pocar in handing down the appeals judgement."

Simon Jennings, IPWR 9.4.2009 [2] Opbeith (talk) 23:33, 16 March 2010 (UTC)