Key Srebrenica Charges Dropped

A week before the start of the defence part of their trial, former Bosnian Serb officers Vidoje Blagojevic and Dragan Jokic have been unexpectedly acquitted of around half the charges relating to their alleged participation in the mass killings of Bosnian Muslims in Srebrenica in 1995.

The judges concluded on April 7 that the prosecution had failed to produce enough evidence to prove the officers' personal involvement in planning, instigating and ordering one of the most horrific crimes of the Bosnian war.

This is the first time in the history of the tribunal that defendants implicated in the Srebrenica massacre have been acquitted of charges relating to personal involvement.

Nonetheless, the trial chamber is set to continue the case on the remaining, equally serious offences: command responsibility for crimes the men's troops committed in Srebrenica, and - in Blagojevic case - also complicity in genocide. These charges carry sentences as heavy as the ones that got dismissed.

The prosecutors are highly likely to issue an appeal next week on the decision to acquit the two of some charges.

Blagojevic and Jokic held comparatively high command posts in the Bosnian Serb army units that participated in the capture of the Srebrenica enclave.

At the time, Blagojevic was a colonel in command of the Bratunac brigade. Jokic, who held the rank of major, was a chief of engineering in the 1st Zvornik infantry brigade. A number of soldiers from both units were involved in some of the murders that took place after the fall of the enclave as well as in the subsequent burials and reburials of the victims.

The prosecutors at the Hague tribunal charged Blagojevic and Jokic with being among those personally responsible for planning, instigating, ordering and committing the murders and the massive exodus of Srebrenica civilians. They were also charged for their subordinates' participation in these crimes. Blagojevic was charged separately with complicity to genocide.

But the defence counsels for both men insisted that despite their ranks or the involvement of some of their soldiers in murders, neither Blagojevic nor Jokic actively participated in or ordered the killings, and were never a part of a joint criminal enterprise to do so. After the prosecution wrapped up its case, the defence filed a motion for total acquittal of their clients.

At least on some points, the judges agreed. They ruled that the evidence produced by the prosecutors was so unconvincing that half of the charges should be dismissed.

Explaining their decision with respect to Blagojevic, they said, "The prosecutor has produced very little evidence of direct contact between the accused and other alleged members of the joint criminal enterprise. The trial chamber does not consider that proof of participation in criminal activity of ... troops [under the formal command of Blagojevic] is sufficient ... to conclude that [he] was a member of the joint criminal enterprise to kill Muslim men."

Still, they added, the evidence presented so far makes it reasonable to expect that after the end of the trial the accused could be found "responsible for the crimes of murder as aider and abettor".

A very similar verdict was delivered on Jokic, who was also acquitted of ordering "the crimes of murder, extermination or persecution".

The acquittal seems to have come as a surprise for the prosecutor's office, whose staff were busy last week combing the judgment in preparation for a possible appeal.

One possible argument for a likely appeal could focus on the discrepancy between the judges' acknowledgement that the two officers knowingly provided assistance in the operation and some of their troops participated in key aspects of the executions, and the judges' belief that the defendants did not intend the massacre to take place

Michael Karnavas, Blagojevic's defence lawyer, seemed fairly satisfied with the outcome and commended the judges for acknowledging that his client was not personally involved. He criticised the prosecutor's office, saying, "The indictment was made without any understanding of the system of command within Bosnian Serb military an police structures, simply assuming that if you were formally in charge you must have planned the atrocities."

Throughout the first part of the trial, Karnavas insisted that his client may have been a cog in the Bosnian Serb military machine, but never actively participated in the decision to execute thousands of Srebrenica men.

Karnavas has since moved a step further in the defence of his client, claiming that what happened in Srebrenica was not really genocide according to the legal definition.

"While Srebrenica was a truly enormous atrocity, with mass killings, burials and later exhumations as an attempt to hide the murder, it was still not a genocide," he told IWPR. "It doesn't fit the convention."

This line of defence is not only politically charged, but could also be juridically impossible to maintain - Radislav Krstic, the deputy commander of the Drina corps, which comprised the main bulk of Serb army that participated in the Srebrenica killings, was convicted for genocide by the Hague tribunal.

The Krstic case is currently in appeal and the verdict will be delivered next week. Should the appeal chamber uphold the initial judgment, what happened in Srebrenica in July 1995 would be a juridically proven case of genocide.

In a bizarre turn of events that rounded up the hearing last week, Blagojevic showed no joy or appreciation for the lawyer who helped acquit him of charges of personal involvement in the worst crime in the history of Bosnian war. Instead, he lashed out again at him, saying he was "concerned and astounded" by the way he was being represented and that he even feared for his life.

Court insiders have repeatedly said that the reason for Blagojevic raging animosity towards his counsel is the latter's refusal to split his fees. This practice, whereby defence attorneys paid by the court give a percentage of their fees to the accused and their families is one of tribunal's more embarrassing open secrets.

In his address to the trial chamber on April 7, Blagojevic said his defence team was working "against him" by falsely accusing him of "bribery and corruption".

Karnavas was appointed by the tribunal to represent Blagojevic - a normal practice in cases when the accused hasn't the financial means to hire a defence counsel. Initially, Blagojevic worked together with his lawyers on his defence, but later turned against them.

During the past year, Blagojevic has repeatedly tried to have Karnavas replaced. His urgings were finally rejected by the appeal chambers, which concluded that he failed to present "justified and valid reasons" for this replacement.

During this week's hearings, presiding judge Liu Danqui praised Karnavas as a "very good counsel". "Please Mr Blagojevic, try your very best to seek advise form Mr Karnavas, ... he is really very professional in his field," said the somewhat exasperated judge.

The beginning of the defence part of the trial is scheduled for next week. Blagojevic's defence has 11 weeks to present its case, and Jokic six.

Ana Uzelac is IWPR project manager in The Hague.