- First of all, attention should be drawn to the fact that the count of genocide was formulated as an alternative – «genocide OR in the alternative [with] complicity in genocide». Such an alternative is not acceptable because it shows that the Prosecution is not sure with what to charge the accused. It may be genocide or complicity in genocide, but not both or alternative. The criminal charge must be definitive according to the principle of legal certainty.
- It has to be stressed that the Trial Chamber’s (TC) judgment was hugely based on the Prosecution’s opening statement (POS). For example several statements of the judgment on the page 191 (par. 546) are a simple repetition of the POS. This is completely unacceptable. The Court’s judgment cannot simply repeat POS but should demonstrate whether the propositions stated in the indictment (not POS) were or were not proved during the evidentiary phase of the trial.
- TC’s judgment assumed as a proved fact some unclear numbers, for example the numbers of people from column «reported as missing». The numbers rage from 10.000 to 15.000 and from 8.000 to 10.000. The prosecution’s algebra, accepted by the Court, means that the possible combination may be 10.000 missing out of 10.000 = 100%. The Court judgment cannot be so imprecise, otherwise that means that neither the prosecution, nor the Court has reliable factual data on which to base its judgment.
- In an attempt to show that the targeted group was «Bosnian Muslims» and not some set of individuals from Srebrenica, the TC judgment says that unspecified «evidence shows that they [people from Srebrenica] rather viewed themselves as members of the Bosnian Muslim group» (page 196, par. 559). Such an exercise in wordplay cannot be considered credible. First, it must the pertinent evidence must be specified; secondly, it must be explained what «rather» means in this context if the Court chose to use that word; and third, and the most important, it must be shown that this matter is relevant to the qualification of the elements of genocide in the first place. In fact, it was precisely the Court’s role to define the group itself, not to rely on its alleged self-perception («rather viewing»).
- Findings of the TC on factual matters are uncertain. The Trial Chamber always rely on the so-called «evidence presented», but fail to consistently reference it to the exact evidence and witnesses. It made clear references to Prosecution’s opening statement and its closing arguments. But that is not enough for a credible court judgment. At the same time, such an approach clearly shows that the TC does not have persuasive independent evidence to support its findings. For example, the critical finding that «the VRC forces sought to eliminate all of the Bosnian Muslims in Srebrenica as a community» have a single reference to the unspecified «evidence». There is no reference at all to proof regarding the number of the victims or how the identity of the perpetrator was established. In par. 572 the TC says that «evidence was presented» that the killings were planned. Again there are no reference to the exact evidence alleged here. Moreover, there is quite a misleading footnote. It does not clarify the exact evidence or witness, but refers to the Appeals Chamber’s judgment in another case. Such lack of references and of basic clarity makes the Krstić judgment in the form in which it was published seriously deficient in terms of conformity to fundamental principles of criminal law and even fundamental principles of law in general.
- The absence of correct and persuasive references in the TC judgment in the Krstić case to the exact evidence and witnesses that supposedly support the Court’s findings has an explanation. This approach made it possible for the TC to avoid altogether a thorough and serious review of the credibility of prosecution witnesses. The way the judgment is drafted shows that the TC avoids analyzing this critical issue, thus making the judgment itself null and void (see par. 5 above).
- Many definitions and findings of the TC are too vague and thus professionally incorrect. In an attempt to establish Gen. Krstić’s genocidal intent, the TC makes reference to a «racist statement» allegedly made by him, which consists of the expression «Ustasha-Muslim hordes». It is clear that this expression cannot be considered racist because it has nothing to do with race. The reason behind TC’s attempt to made the defendant’s words appear «racist» is clear, but it only shows the judges’ lack of objectivity and thus their bias.
- There are some additional concerns with respect to Court’s findings. Without any factual foundation, the TC in Krstić accepts that:
a) The number of executed persons was 7.500. No evidence to support that figure was presented to the TC at that time or during any of the subsequent Srebrenica trials before ICTY.
b) The presumed «fact» that the killings were committed by the VRC. No reliable evidence was presented to establish these so-called facts beyond reasonable doubts. - Finally it must be noted that the TC judgment contains even grammatical mistakes (see page 195, par. 556 – «second WORD war») that raises the obvious question: if the three judges failed to correct this error, did they really compose or at least read the text?
- In addition to the topic of the present research it must be stressed that there are other legal requirements for a proper legal document that the so-called TC Judgment does not meet. First, it is hugely based on the testimony of anonymous witnesses. Second, it does not deal with the issue of witnesses credibility. The testimony of witnesses is simply taken as the truth with no apparent attempt to seriously assess their credibility. No defense arguments or issues put in doubt by the defense during cross-examination are subjects of the Court’s analysis. These facts alone are sufficient to make this Judgment null and void.
Dr. Alexander Mezyaev,
Head of the Department of International Law,
Law Faculty, TISBI Academy, Kazan, Russia