ICTY: KRSTIC JUDGMENT SETS ASIDE GENOCIDE

1. (SBU) Summary: The Appeals Chamber of the International
Criminal Tribunal for the Former Yugoslavia (ICTY) set aside
a trial chamber's 2001 judgment that Radislav Krstic,
commander of the Drina Corp immediately under Ratko Mladic
during the Srebrenica massacres of July 1995, perpetrated
genocide. The Appeals Chamber found that significant
portions of the evidence showed that Krstic knew of other
officers' genocidal intent and made contributions toward
their murderous endeavor, but that it did not show that he
shared the "intent to destroy, in whole or in part, a
national, ethnic, racial or religious group, as such," as
required by international law. The immediate reaction of the
prosecution team has been one of frustration and anger toward
what it sees as an over-reaching and poorly reasoned
decision. End summary.



2. (U) In a Judgment issued on April 19 and summarized in
open court by ICTY President and Presiding Judge Theodor
Meron, the Appeals Chamber found that, while "the Bosnian
Serb forces committed genocide" in and around Srebrenica in
July 1995, General Radislav Krstic himself was not a
principal perpetrator. Rather, Krstic aided and abetted the
commission of genocide, principally by making substantial
resources of the Republika Srpska Army's (VRS) Drina Corp,
which he commanded, available to Serb forces carrying out the
massacres and the subsequent reburials. The Appeals Chamber
thereby set aside Krstic's conviction for genocide, for which
the Trial Chamber had sentenced him to forty-six years in
prison, and convicted him instead as an aider and abettor of
genocide, an aider and abettor of extermination and
persecution as crimes against humanity and murder as war
crimes, and as a participant in murder and persecutions as
war crimes. The Appeals Chamber, taking into account the
reduced responsibility for genocide and other "mitigating"
factors, reduced his sentence to thirty-five years.



3. (SBU) Prosecutors, both senior and junior, expressed
varying degrees of disappointment at the Appeals Chamber
decision. They have focused their displeasure on two levels
-- first, the chamber's readiness to find fault with numerous
factual findings of the trial chamber, seemingly without
paying any deference to the trial chamber's fact-finding; and
second, what they perceive as legal gymnastics which allowed
it to find that 'genocide occurred' without identifying any
particular or specific perpetrators.



4. (C) On evidentiary questions, one senior prosecutor
condemned the Appeals Chamber judgment as displaying
"arrogance" and failing to appreciate the entire range of
facts and contexts which supported the trial chamber
judgment. Prosecutors are chafing at numerous instances
where the Appeals Chamber found that the Trial Chamber's
interpretation of evidence was unreasonable. These included,
for instance, an assessment of what Krstic would have
understood from Mladic when the latter said, in company that
included a Bosniak, UNPROFOR personnel and the accused, that
the Bosnian Muslims in Srebrenica could "survive, stay, or
disappear" (among other similar threats). In another
instance, the Appeals Chamber disputed the Trial Chamber's
interpretation of a coded statement in which PIFWC Beara
sought Krstic's assistance in the 'distribution' of 3500
'parcels' -- which to the Trial Chamber, and to a dissenting
appeals judge, clearly meant 'killing of 3500 persons'. On a
more general level, the prosecutors are upset that
conclusions seen as supported by hundreds of hours of trial,
thousands of pages of transcripts/evidence, and hundreds of
paragraphs of the Trial Chamber's judgment could be dismissed
as unreasonable by judges who did not sit through the long
proceedings themselves. (NB: The Trial Chamber included the
well-regarded U.S. Judge Patricia Wald, formerly of the
federal Appeals Court for the District of Columbia.)



5. (C) Reactions to the Appeals Chamber's legal conclusions
have been more complicated. There is a general sense among
prosecutors that the Appeals Chamber first decided that
Krstic did not merit conviction as a principal perpetrator of
genocide but that, for "political" reasons, it did not want
to set aside the finding that the massacres around Srebrenica
constituted genocide. The result, one prosecutor said, made
it seem as if "an eighteen year-old law clerk" had written
the judgment on the basis of a decision reached "by academics
and diplomats". In fact, a law clerk involved in the
drafting confirmed to embassy legal officers that the chamber
had given the drafters general directions, "the bottom line,"
and that the law clerk drafters had to determine how to get
there. (NB: In some respects, such an approach does not
differ significantly from U.S. appeals courts, where law
clerks tend to do the lion's share of drafting and research.)
In any event, many are perplexed that the Appeals Chamber
could "call() the massacre at Srebrenica by its proper name:
genocide", but fail to identify perpetrators who in fact
shared the specific intent to commit genocide, as required by
the ICTY Statute and the 1948 Genocide Convention. The
references to Mladic's bellicose, seemingly genocidal
statements, moreover, are downgraded as evidence reflecting
even his intent to commit genocide, making the conclusion all
the more troubling to prosecutors who need to consider how
the judgment affects further genocide prosecutions.



6. (C) Meanwhile, the Appeals Chamber seems to have made it
easier to prosecute a person for aiding and abetting
genocide, leading to one prosecutor's conclusion that the law
now reflects a strict liability standard for aiding and
abetting genocide (i.e., knowledge plus support, without
intent to commit genocide, amounts to aiding and abetting
genocide). It has also been described as a law criminalizing
the "failure to prevent" genocide.



7. (C) A dissenting opinion by Judge Shahabuddeen (a
consistent dissenter or separate-opinion writer) gives voice
to the prosecution's concerns, particularly with respect to
the lack of deference to Trial Chamber fact-finding. To
Shahabuddeen's mind, the Trial Chamber's extensive
documentation of the evidence in its Judgment strongly
supported the conviction of Krstic for genocide. His dissent
presents similar evidence to that assessed by the majority
but reaches starkly different conclusions, such as that
Krstic evidently did share the intent to commit genocide
during the crucial days of mid-July 1995. The dissent in
effect undermines the Appeals Chamber's repeated statements
that the Trial Chamber reached decisions that were not ones
"that a reasonable trier of fact could have made."



8. (SBU) Apart from the questions associated with genocide,
the Appeals Chamber also addressed whether Krstic could be
convicted of "cumulative" charges (i.e., convicting him on
several grounds for the same basic criminal offense) and
whether the Prosecution violated any of its obligations to
disclose to the defense exculpatory material in accordance
with Rule 68 of the Tribunal Rules of Procedure and Evidence.
The Appeals Chamber confirmed that the defense could only be
granted a remedy in the event that the Prosecution failed to
comply with Rule 68 and that failure resulted in prejudice to
the defense. The Appeals Chamber found that Rule 68
violations by the Prosecution did not materially prejudice to
the defense, thereby not requiring a retrial or similarly
stark remedies as requested by the defense. It did, however,
order the Prosecution to "investigate the complaints alleged
and take appropriate action."



9. (C) Comment: What is striking about the comments of
prosecutors is not their disappointment in the Krstic appeals
decision; any prosecutor is disappointed when their "victory"
is pared back on appeal. Rather, it is the anger and
bitterness, borne out of their surprise at the judgment,
which undercuts what was a landmark ruling on Srebrenica and
genocide by a highly respected trial chamber. Embassy legal
officers, from discussions with a key drafter of the opinion,
share the sense that the Appeals Chamber took a results
oriented approach in its decision. It wanted to establish
that genocide occurred in Srebrenica, wanted to keep the bar
very high for a genocide conviction, but also believed
Kristic had some degree of responsibility. The result is are
the legal gymnastics and intrusive reanalysis of the facts
complained of by the prosecutors. In particular, the finding
that the Chamber's conclusions were "unreasonable" in light
of the evidence strikes us as a reach.



10. (C) Comment, cont'd: Whatever the motivations behind the
result, the Judgment gives prosecutors in other cases
involving genocide charges arising out of the Srebrenica
massacres (i.e., Milosevic, Karadzic, Mladic, Krajisnik,
Blagoevic, Drago Nikolic, Beara) a lot to study. One comes
away from reading the Judgment tending to agree with the
prosecutors who believe that it will make it easier to
convict the mid- and lower-level indictees of aiding and
abetting genocide but harder to convict the most senior
leaders with direct perpetration of genocide. The
possibility of a set of convictions for aiding and abetting
genocide, but none for direct acts of genocide, surely puts
pressure on the trial chambers to convict someone of
principal responsibility for genocide, since the Appeals
Chamber has affirmed that genocide did in fact occur. The
prosecutors believe that honor has been saved for Mladic, but
few if any beneath him. End comment.
SOBEL