That Someone Guilty Be Punished - International Center for ...

at least 2012; another, Ratko Mladić, remains at large. Particularly in light of the tiny number
of remaining cases in which it is even theoretically possible that the ICTY will judge there to
have been a genocide outside the context of Srebrenica, 419 many Bosniaks are disappointed in
the Tribunal’s failure to sustain genocide-related charges in the few cases where genocide was
charged and which resulted in a verdict.
One of the most important of these is the case against Momčilo Krajišnik, a senior
member of the Bosnian Serb leadership during the war. On September 27, 2006, ICTY Trial
Chamber I found the defendant responsible for “the killing, through murder or extermination,
of approximately 3,000 Bosnian Muslims and Bosnian Croats” in 30 Bosnian municipalities
during the period of the indictment. 420 It also found that “the perpetrators of the killings chose
their victims on the basis of their Muslim and Croat identity.” 421 Yet, perhaps in part due to the
limited timeframe charging genocide solely for the early stages of the conflict, the chamber did
not find that the prosecutor had proved beyond a reasonable doubt that “any of these acts were
committed with the intent to destroy, in part, the Bosnian-Muslim or Bosnian-Croat ethnic
group, as such,” 422 a key element of the crime of genocide. 423
Interviewed several months after the trial judgment was issued, Nerma Jelačić said it
was “a huge thing” for victims that Krajišnik “wasn’t found guilty of genocide.” 424 Commenting
on the Krajišnik judgment several years later, historian Smail Čekić said, “I am completely
disappointed. … For all of us investigators and victims of genocide, this is like a shock, like
a major hit. ... [They] proved the existence of the actus reus of the crime of genocide but they
failed in proving the intention of the crime.” 425 Srebrenica survivor Kada Hotić found it “ridiculous,
silly” that Krajišnik was acquitted of the genocide-related charges “when there was so
much evidence” against him. 426
Others were not so much shocked as disappointed. When asked to describe the public
reaction when Krajišnik was acquitted of genocide-related charges, Nidžara Ahmetašević said:
“People didn’t even expect that Krajišnik would be convicted of genocide. People don’t … trust
that people will finally recognize that we survived genocide. … In a way, people expected that
decision because they just lost confidence in international justice.” 427
3. Non-disclosure of evidence in the Milošević case
It goes without saying that ICTY chambers must be satisfied that the prosecutor has proved
beyond a reasonable doubt all elements of the crime of genocide—including the mental element
of specific intent—before it may convict defendants of this charge, however disappointed
victims may find an acquittal. The way that such acquittals are misused by political leaders
is a serious problem, which we address in Chapter V, but it is not one that falls to judges to
anticipate and address through their evaluation of evidence. Yet one aspect of the ICTY’s conduct
has caused widespread concern, both within Bosnia and elsewhere: Its Appeals Chamber
allowed evidence that might have established Serbia’s responsibility for genocide and other
68 ACHIEVEMENTS, FAILURES, AND PERFORMANCE