COURTSIDE: Jelisic Appeal Judgement: No Retrial on Genocide Charges

Despite accepting almost all its arguments, appeals chamber judges narrowly ruled against the prosecution's call for a retrial of Goran Jelisic, the so-called "Serbian Adolph", convicted of crimes against humanity and violations of the laws or customs of war in October 1999.

The prosecution's move was prompted by court's original decision to acquit the accused on charges of genocide. Jelisic was sentenced to 40 years imprisonment for 12 murders he confessed to committing in May 1992 in Brcko and the nearby Luka prison camp.

Half way through the trial, after prosecutors had presented their case, the judges concluded it had not proven beyond reasonable doubt that the defendant had carried out the killings with "genocidal intent" - or, as it is defined in article four of the tribunal's Statute, with "intent to destroy, in whole or in part, a national, ethnical, racial or religious group".

Acquitting Jelisic of genocide, the original trial judges concluded the accused had committed the murders with "discriminatory intent", "randomly" and "arbitrarily". (See Tribunal Updates Nos. 148 and 156)

In its judgement on July 5, 2001, the five-member appeals chamber unanimously concluded that the judges acted in error when they acquitted Jelisic of genocide charges half way through the trial and without hearing the prosecution's arguments.

The appeals chamber also concluded the trial judges had in the middle of the trial erroneously applied the standard needed to prove a charge beyond reasonable doubt and had incorrectly assessed the evidence presented by the prosecution relating to Jelisic's alleged genocidal intent.

After reviewing the evidence presented during the trial, the appeals court concluded that available evidence "could have provided the basis for a reasonable chamber to find beyond a reasonable doubt that the respondent [Jelisic] had the intent to destroy the Muslim group in Brcko".

Jelisic, the appeals chamber judgement concludes, "believed himself to be following a plan sent down by superiors to eradicate the Muslims in Brcko and that, regardless of any such plan, he was himself a one-man genocide mission, intent upon personally wiping out the protected group in whole or part.

Some of the evidence was specifically cited by the trial chamber itself and summarised in its judgement. This included threats by Jelisic to kill 70 per cent, to beat 30 per cent and to spare only 10 per cent of the Muslim detainees; statements that he wanted to rid the world of the Muslims; and his daily killing quotas.

Of particular importance to future trials involving genocide charges was the conclusion by the appeals chamber that a defendant could be found guilty of genocide, even if it is not proven that the crime was committed within the framework of a wider "genocidal plan" or "joint policy" to destroy some ethnical, racial or religious group.

Nevertheless, the appeals chamber voted against a retrial. The defence's appeal against the length of the sentence was unanimously rejected and the 40-year term confirmed.

Mirko Klarin is IWPR senior editor for the war crimes tribunal and editor-in-chiefof the SENSE News Agency.