Topic: Crime and Punishment
In a series of pre-trial briefs and a hearing last week former Bosnian Serb president Radovan Karadzic gave the public a sneak peak of his defense against charges of genocide in Srebrenica.
by Andy Wilcoxson
Thursday, August 6, 2009
Former Bosnian-Serb president Radovan Karadzic gave a sneak-peak of his Srebrenica defense during a hearing and a series of pre-trial briefs filed at the Hague Tribunal last month.
Speaking at a pre-trial hearing on July 23rd Karadzic said, "This is the last ever opportunity for us to clarify what happened in Bosnia, and particularly in Srebrenica. ... I assure you that we are talking about the differences that can be numbered in the thousands of victims [this] is matter of establishing the facts, and if we do that, I don't even care what the Trial Chamber's decision will be about me. I just want to find the truth." He said, "Everything in relation to Srebrenica that has been presented so far is erroneous ... everything is contentious and everything needs to be established fact by fact."
Karadzic did not dispute the fact that there were some executions. He said, "people's hands were tied, and based on that we can assume that those people were executed, but this is a generalization which cannot be used to establish the guilt of an entire people, not only one person." He said, "We have to establish the truth. When somebody died, whether they died in 1992, 1993, or 1995; whether they were killed in combat or whether they were killed as a result of executions."
It would be a mistake to treat Karadzic's reference to executions as an admission that Bosnian-Serb forces executed innocent Bosnian-Muslims from Srebrenica. The Srebrenica Muslims were anything but innocent. In 1992 Bosnian Muslims from Srebrenica attacked, massacred, and sadistically tortured Bosnian-Serbs in the surrounding villages. Video evidence of their handiwork can be seen here and here.
During the trial of Slobodan Milosevic the former UN Protection Force commander in Bosnia, General Philippe Morillon, described Srebrenica as a "hellish circle of revenge." He said the Bosnian-Muslims "engaged in attacks during Orthodox holidays and destroyed villages, massacring all the inhabitants. This created a degree of hatred that was quite extraordinary in the region."
The presiding trial judge asked Morillon point-blank: "Are you saying, then, General, that what happened in 1995 was a direct reaction to what Naser Oric [the Bosnian-Muslim military commander in Srebrenica] did to the Serbs two years before?" Morillon responded, "Yes. Yes, Your Honour. I am convinced of that."
During the pre-trial hearing Karadzic set out a series of arguments that, if he can prove even some of them, will seriously undermine the credibility of those alleging genocide in Srebrenica. He said, "graves are being dug out [and] bodies are being moved to Srebrenica in order to prove a point ... There are living people whose names are on the tombstones. In the first elections, there were people who voted who had been listed as missing and killed. ... There were people who fell victims in combat throughout the entire period, and people who died in 1992 on 1993 [who] were later on portrayed as victims of massacre in Srebrenica ... there are many people living abroad who were listed as missing."
Indeed, there is no dispute between the prosecution and the defense that many of the bodies found in the mass graves around Srebrenica had been dug-up from other locations and reburied. The prosecution's explanation is that this was done to conceal evidence of killings. Karadzic's explanation appears to be that those bodies were re-buried to inflate the body count and give credence to the allegation of genocide.
Karadzic raised the possibility that victims are being double and even triple counted by investigators. For example, if the same person's DNA is found in three separate gravesites they may be counted as three separate victims. He said, "There is a multifold exaggeration here. We wish to establish exactly who perished and whose DNA was provided in order to be able to say that, yes, this number of victims is beyond contention ... I have mentioned primary, secondary, and tertiary graves. One DNA could have been portrayed three times representing three persons and we need to verify everything."
To ascertain whether double-counting has taken place, Karadzic is demanding that his expert team be given access to all of the post-mortem and DNA evidence. His intention is to compare 300 random samples from all of the DNA collected to see if there are any duplicates. If there are, his expert team will analyze all of the samples until they ascertain how many unique samples have been found.
Unfortunately, the International Commission on Missing Persons (ICMP), which handles the exhumations and the DNA analysis, is not sharing the evidence with Karadzic's defense team. As it turns out, nobody from the Tribunal has ever seen the DNA evidence. Prosecutor Hildegard Uertz-Retzlaff told the court, "The ICMP did also not provide the DNA to us. They have it. So it's not that they give it to us and not to others."
It's a little bit shocking that the Tribunal relies on the ICMP's findings to substantiate allegations as grave as genocide when they haven't even seen the evidence -- let alone tested its quality or reliability. When dealing with allegations as serious as genocide you'd think they'd be more careful.
In a pre-trial brief filed on June 29th, Karadzic challenged the Tribunal's questionable use of the term "genocide" in relation to Srebrenica.
In the Krstic case Tribunal ruled that "the existence of a plan or policy is not a legal ingredient of the crime of genocide." Krstic was convicted of genocide in Srebrenica in spite of the fact that the judges found, "no statements by members of the VRS Main Staff indicating that the killing of the Bosnian Muslim men was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica."
The Tribunal uses such a broad definition of genocide that the killing of military personnel during a war qualifies. In the Krstic judgment the tribunal found that "a percentage of the bodies in the gravesites examined may have been of men killed in combat."
According to the ICTY appeals chamber, "the Trial Chamber treated the killing of the men of military age as evidence from which to infer that Radislav Krstic and some members of the VRS Main Staff had the requisite intent to destroy all the Bosnian Muslims of Srebrenica." Their ruling said, "the perpetrator's genocidal intent will almost invariably encompass civilians, but that is not a legal requirement of the offence of genocide."
Srebrenica genocide deniers, such as myself, reject the tribunal's definition of genocide and the inference it's based upon. The definition of "genocide" used in relation to Srebrenica could be applied to almost any military conflict.
In his pre-trial brief, Karadzic held that "genocide is a specific intent crime" and as such the prosecutor must prove the existence of a genocidal plan. He pointed to the work of prominent international lawyer Raphael Lemkin who was instrumental in drafting the Genocide Convention.
Lemkin invented the word genocide in his book Axis Rule in Occupied Europe, where he wrote: "By 'genocide' we mean the destruction of a nation or of an ethnic group. This new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin cide (killing), thus corresponding in its formation to such words as tyrannicide, homicide, infanticide, etc.(1) Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves."
Ever since the word genocide was invented the existence of a plan has been an essential requirement. Karadzic went on to cite judgments from the Israeli courts, the Nuremburg tribunal, and the statute of the ICC all of which hold that a plan is an essential ingredient in the crime of genocide. He concluded his argument by stating that "The ICTY should join its sister Tribunals in concluding that the existence of a plan is a required element of genocide."
In a separate motion filed by the defense on July 22nd, Karadzic asked the court to subpoena NATO command for documents related to airlifts by US C-130 aircraft to the Bosnian-Muslim airbase in Tuzla. In the filing Karadzic stated that "guns and other military equipment was delivered from Tuzla by helicopter to Zepa, largely to be forwarded in transit from there to Srebrenica. Both were UN safe zones from which the Bosnian Muslim Army launched attacks against the Bosnian Serbs."
Karadzic wrote in the filing that "the material related to the sighting of aircraft carrying supplies of arms into Tuzla for onward shipment to the safe area of Srebrenica, is relevant to rebut the allegation in the indictment that Dr. Karadzic was part of a joint criminal enterprise to eliminate the Bosnian Muslims of Srebrenica. The documents obtained will support Dr. Karadzic's defence that there was a legitimate military objective to commence operations in March 1995 directed at the enclaves, since they had become a safe haven to which weapons were being smuggled and from which attacks on Serb civilians were being launched.
"In addition, documents showing the actual presence of an aircraft carrying weapons in violation of the United Nations Arms Embargo on the side of the Bosnian Muslims from NATO member states are relevant to the credibility and bias of international witnesses from those states to be called by the prosecution for the purpose of establishing violations of United Nations safe zones and other agreements on the part of Dr. Karadzic and the Bosnian Serbs."
If the pre-trial hearings are this interesting one can only imagine what Karadzic has in store for the Tribunal when his trial starts and he gets to cross-examine witnesses and call evidence.
Andy Wilcoxson administers a website where he covered Milosevic's trial in The Hague. He recently finished writing a book about the break up of Yugoslavia based on the information that came to light during the course of Milosevic's trial. He was a founding member of Milosevic’s defense committee in The Hague.
©2009 Andy Wilcoxson, all rights reserved.