CHAMBER’S FINDINGS OF FACT REGARDING THE FIRST INCIDENT ADJUDICATED BY THE
JUDGMENT DON’T WITHSTAND SCRUITINY
www.slobodan-milosevic.org - April 12, 2016
Written by: Andy Wilcoxson
The Karadzic trial chamber claims that 45 civilians were killed by Bosnian-Serb
forces in Bijeljina on April 1-2, 1992, but their
findings rely on hearsay evidence, and the citations in the footnotes of the
judgment don’t support the claims that they’re purported to.
The 1992-95 Bosnia war has been portrayed by Western journalists and politicians as a genocidal Serbian assault on defenseless victims. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by the UN Security Council to prosecute war crimes perpetrated during the wars in Croatia, Bosnia, Kosovo, and Macedonia as Yugoslavia disintegrated.
The findings issued by successive ICTY trial chambers have largely confirmed the anti-Serb narrative advanced by our politicians and our news media.
A journalist can make unsubstantiated claims in the media, and a politician can make unsubstantiated claims in a speech, but the judges at the ICTY must prove their findings “beyond a reasonable doubt” and issue “a reasoned opinion in writing” justifying their conclusions. Unlike news reporters and politicians, the judges at the ICTY are required to cite the evidence that proves their claims.
Last month, former Bosnian-Serb president Radovan Karadzic was sentenced to 40 years in prison for crimes committed during the Bosnian war. As is required by Article 23 of the ICTY Statute, a written judgment was issued and the evidence purporting to prove Dr. Karadzic’s guilt beyond a reasonable doubt was set out in detail.
Prosecutors have had more than 20 years to interview witnesses and conduct investigations since the war in Bosnia ended in 1995. Karadzic was arrested in 2008 and the judgment convicting him was rendered in 2016. The Bosnian war went on for three and a half years, and Dr. Karadzic was in office for four years, but the legal proceedings against him at the ICTY dragged on for nearly eight years.
Given the unprecedented length of the trial, and the time that the prosecution had to investigate and marshal its evidence, the trial chamber’s findings should be based on the highest quality evidence.
Let’s see if the Chamber’s findings with regard to the first crime in the judgment, Scheduled Incident A.1.1, can withstand scrutiny. Let’s see if the footnotes listed in the judgment actually support the claims made by the judges.
Paragraphs 617 through 624 of the judgment deal with “Scheduled Incident A.1.1”. The allegation set out in paragraphs 617 and 618 is that on April 1-2 1992, at least 48 civilians were killed by Serb paramilitaries during the Bosnian Serb take-over of Bijeljina. The chamber ultimately found, in paragraph 624, that “At least 45 civilians were killed by Serb Forces on 1 and 2 April 1992 in the town of Bijeljina.”
Paragraph 618 of the Karadzic judgment states that “The Chamber took judicial notice of the fact that at least 48 civilians, were killed by Serb paramilitaries during the Bosnian Serb take-over of Bijeljina” The basis on which they took judicial notice was adjudicated facts 2243, 2245, and 2246, which in-turn rely on paragraph 300 of the Krajisnik trial judgment.
The evidence that paragraph 300 of the Krajisnik chamber relies upon is: Krajisnik trial exhibit P584, which is a newspaper article written by Sejo Omeragic for the Slobodna Bosna newspaper; Krajisnik trial exhibit P857, which is a chart of civilian casualties compiled by prosecution expert Mirsad Tokaca; and the closed session testimony and sealed witness statement of protected Krajisnik trial “Witness 57”.
Because all of witness 57’s testimony is under seal, we have no idea who they were or what they may have said.
Sejo Omeragic’s newspaper article indeed reports a massacre. He says, “Local Chetniks slaughtered people satisfying their innate hatred that one cannot trace the origins and reasons for.” His report consists entirely of hearsay that he heard around town in the days following the alleged massacre and he doesn’t name his sources.
Mirsad Tokaca’s chart contradicts the finding that 48 civilians had were killed on April 1-2, 1992. According to the chart, for the month of April (“IV”) 1992, 10 Bosniak civilians (“Bošnjaci civili”) were killed (“ubijeni”) and 8 went missing (“nestali”) in Bijeljina. This exhibit was tendered into evidence by the prosecutor, and was created by an expert witness who is himself a Bosnian-Muslim.
Krajisnik trial exhibit P857, Chart of civilian casualties produced by Mirsad Tokaca
To bolster its findings, the Karadzic trial chamber explains in paragraph 619 that their own “Witnesses also testified that civilians were killed in Bijeljina on 1 April 1992.”
The first witness they cite is protected witness KDZ531.
The testimony cited was given in closed session, so we don’t know who the
witness was or what was said. All we know about that witness was that Dr.
Karadzic wanted their testimony to be given in public, but his request was
denied. [Transcript pages 15836-15838]
Next the Chamber cites the following testimony given by Martin Bell of the BBC as proof that civilians were killed on April 1, 1992 in Bijeljina. [Transcript pages 9781–9782 (14 December 2010)]:
MARTIN BELL: I knew Arkan's men well from the war in Croatia. I had been to their headquarters. I had even done a report on his volunteers being baptised in the great cathedral in Dalj. I knew Arkan well. The interview there was conducted in the ice cream parlour that he owned in Belgrade. They quite often wore balaclavas, as you would have seen in this report, so I had no difficulty in identifying them.
PROSECUTOR: You also spoke of an incident in Bijeljina, and you reported: ‘They have just accounted for 41 so-called Muslim extremists in an action in Bijeljina nearby.’
Do you recall what information you had about the events in Bijeljina and how you came to be aware of it?
MARTIN BELL: The report was -- this report was edited in Belgrade. And when I was in Belgrade, I found out about the attacks in Bijeljina, which actually yielded one of the iconic still images of the war which appeared on the front page of 'Time' magazine. But I have no reason to doubt the accuracy of that report and those figures.
Martin Bell is not a direct witness. He is testifying about what he heard while he was in Belgrade, and what he was told was that 41 “Muslim extremists” (not civilians) had been “accounted for” (not killed).
The contemporaneous news report that he filed for the BBC was
admitted as exhibit P2001, and in the context of his report, “accounted for” seems
to mean taken in for questioning. What he said in his report was: “The Serbs on
their side of the lines were taking in suspects for questioning by the busload.
The men on guard here were members of the most disciplined of their private
armies, commander Arkan’s volunteers. They had just
accounted for 41 so-called Muslim extremists in an action in Bijeljina nearby.”
Furthermore, the date stamp on the slate at the beginning of his report says “23-Mar-92 17:42,” which is eight days before April 1, 1992. Unless we’re to believe that Martin Bell is clairvoyant, he would not have even been reporting about the events of April 1st on March 23rd.
Karadzic trial exhibit P2001, Screen-capture showing computer generated date-stamp on Martin Bell's BBC News report
The next evidence cited by the chamber as proof that
civilians were killed is the witness statement of Defense witness Aleksandar Vasiljevic (exhibit
D3065, paragraph 176). Vasiljevic is not a direct
witness either. He served as the head of the counter intelligence unit of the
JNA and oversaw a JNA security detail that was in Bijeljina
and reported to him at the relevant time.
Paragraph 176 of his statement says: “The Serbs and Arkan’s men then blocked the barracks, threatening to attack the JNA too, if it interfered in the conflict. Finding himself in this situation, a lieutenant, a Croat, asked the barracks commanders to leave and go home, because he did not wish to interfere. The commander gave him approval and a Military Police patrol to escort him out of the barracks, but he was killed by armed Serbs, or Arkan’s men right there in front of the barracks, and fighting continued throughout the day. According to the security organ figures, some 52 or 53 people had already been killed in the clashes. Also the Muslims hanged a Serb who worked at the town hospital, and who was said to have been an SDS member. But there were around 50 bodies in the course of the first day. It was mostly Arkan’s men who did the fighting, but Serbs from the neighboring villages had also risen and entered the town to help the fight of the Serbs in Bijeljina, which Arkan had, in effect started.”
Notice that Vasiljevic did not say that the people “killed in the clashes” between the Serbs and the Muslims in Bijeljina on April 1-2, 1992 were necessarily civilians. Although he did readily agreed with the prosecutor’s suggestion that “Arkan, would loot, would mistreat the non-Serbs, and would even kill prisoners of war or innocent civilians.” [Transcript pg. 34700]
What the chamber omits to tell you is that in paragraph 174 of Vasiljevic’s witness statement he says: “I have no information that Radovan Karadzic had any part in sparking these incidents or Arkan’s unit arriving.”
In Paragraph 172 he says that the Muslim Patriotic League was active in Bijeljina, and in paragraph 173 he speaks of two-way fighting in the area, saying: “There were constant scuffles between the Serbs and the Muslims during that time. I am not sure whether the Serbs had first attacked the Muslims at their café or the other way around. But the first serious conflict took place when grenades were thrown into cafés frequented by the Serbs and the Muslims.”
The next evidence cited by the chamber as proof of the April 1st killings is paragraph 117 of Milorad Davidovic’s witness statement (exhibit P2848). That paragraph generally speaks about Arkan’s cruel behavior towards Muslims in Bijeljina and the murder of Amir Fidahic and his son, but it does not deal with the specific events of April 1-2, 1992 and the alleged killing of 48 civilians. Ironically, Milorad Davidovic was sent to Bijeljina by the Bosnian-Serb authorities to put a stop to the paramilitary activity there. [Transcript pg. 15581]
The next evidence that is cited as proof of killings on
April 1, 1992 is exhibit P29. This is a transcript of protected witness KDZ446’s
testimony in the Slobodan Milosevic trial where he testified as protected
witness “B-161”. Specifically, the chamber references page 21108 of the
Milosevic trial transcript where the witness said, “In Bijeljina,
behind the SDS building, several tens of people were killed.”
But if you read the testimony of the same witness on pages 21057 through 21061 of the Milosevic transcript you see the following exchanges:
MILOSEVIC: You have no idea as to how many people were killed, both Serbs, Muslim, men and women, in those events in Bijeljina.
B-161 (KDZ446): I said about close to 50 all in all were killed.
MILOSEVIC: A moment ago, you said that in those headquarters 50 people were reported to have been killed.
B-161 (KDZ446): Yes, but in the town only some about six people were killed.
MILOSEVIC: I see. So they were captured, taken to the headquarters, interrogated, and killed. How do you know that?
B-161 (KDZ446): It was told by people who were in the headquarters.
MILOSEVIC: And did you see, since you referred to these interrogations in those headquarters and people being killed, were you present at any one of those interrogations? Did you see anyone being killed there?
B-161 (KDZ446): No. I couldn't reach that place, but I had many friends who told me about these things. And I know that some people have not been traced to this day. I had a friend, a Muslim, who was in the police, and he went there and never returned. He told a high-ranking position.
MILOSEVIC: But you did not attend any of those interrogations. You didn't see anyone being killed, but you heard about it from people who were recounting these events.
B-161 (KDZ446): Yes, that is true. But I couldn't reach that place. Not just me, but no civilian could.
MILOSEVIC: I'm just talking about your testimony. You're not testifying about something that you know from your own knowledge but on the basis of what you heard.
B-161 (KDZ446): Yes.
MILOSEVIC: And during those three days of fighting in Bijeljina, did you see any bodies then?
B-161 (KDZ446): No, I didn't see any then, but I heard that they had been buried close to the Drina.
MILOSEVIC: In your testimony you said that you went there for the first time on the day Abdic came to Bijeljina; is that right?
B-161 (KDZ446): We're talking about the centre of Bijeljina. That was the first time I could reach the centre of Bijeljina, when Abdic and Biljana Plavsic arrived.
Abdic and Plavsic did not arrive in Bijeljina until April 4, 1992, two to three days after April 1-2, 1992.
None of the witnesses whose testimony is cited by the
chamber as proof of the specific allegation that 48 civilians were killed in Bijeljina on April 1-2, 1992 are testifying on the basis of
their direct knowledge. In fact, none of these witnesses were even in town when
the killings were alleged to have happened. They’re all testifying about rumors
they heard from other people after the fact.
Finally, we have the evidence of the Prosecution’s expert witness Amor Masovic, and he wasn’t a direct witness to the events either. He testified as an expert.
In paragraph 619 of the judgment, the Trial Chamber relies on the evidence of Masovic to establish that “A total of 55 individuals who went missing from Bijeljina between 1 April 1992 and 15 September 1993 were exhumed from individual or mass graves in the area. However, of these 55 exhumed bodies, only five are linked to this scheduled incident. The Chamber will not make a finding with respect to the remaining 50 exhumed bodies.”
Just to recap, the allegation is that 48 civilians were killed by Serbian paramilitaries in Bijeljina on April 1-2, 1992, but the only publicly accessible evidence that the trial chamber cites in support of that allegation is hearsay evidence from witnesses who claim to have received their information second-hand from other people.
With that in mind, let’s look at paragraph 620 of the judgment, which reads: “The Accused disputed (i) the number of Bosnian Muslim victims; (ii) their status as civilians; (iii) the circumstances in which they were killed; and (iv) the identity of the perpetrators, and tendered evidence in support. However, the Chamber does not find the Accused’s arguments to be convincing or the evidence adduced by the Accused on these issues to be reliable. In reaching this conclusion the Chamber considered that the evidence of the witnesses was either based on speculation or hearsay information and when cross-examined the source of the information was unclear.”
That sword ought to cut both ways because, as we’ve just seen, the prosecution’s evidence was itself “based on speculation or hearsay information and when cross-examined the source of the information was unclear.”
The Trial Chamber doesn’t tell you the name or even the pseudonym of one witness who directly saw 48 civilians being killed in Bijeljina on April 1-2, 1992, and by their own admission they’ve only got forensic evidence for five bodies – not 48. Plus they’ve got one of the prosecution’s own experts, a Muslim, publishing a chart that says for the whole month of April that 10 Bosniak civilians were killed and 8 went missing in Bijeljina – not 48.
As if it discredited Karadzic’s case,
the Trial Chamber, in paragraph 621 of the judgment, cites a report from the 17th
corps of the Yugoslav People’s Army (JNA) [exhibit P6214], which says
“According to Bijeljina MUP information, recent
conflicts in Bijeljina resulted in 43 casualties,
i.e. 5 Serbs, 8 Albanians, 2 Croats and 28 Muslims were killed. There are some
indications that few deceased were buried without identification.” Notice that
the JNA report says absolutely nothing about: (i) the
casualties’ status as civilians; (ii) the circumstances in which they were
killed; and (iii) the identity of the perpetrators. Moreover, the JNA report
isn’t even based on the direct observation of JNA personnel, it’s based on “Bijeljina MUP information”.
As proof that civilians were targeted and killed the chamber makes reference to, “An article dated 10 April 1992 [which] referred to the killing of 40 individuals in Bijeljina whose bodies were buried without religious rites.” That article is exhibit P6185, and it’s the exact same Slobodna Bosna article written by Sejo Omeragic that was mentioned earlier with regard to the adjudicated facts. In order to bolster the credibility of the exhibit, the chamber observes in footnote 1998 that “The 39 named individuals in this article correspond to the names of listed victims. Prosecution Final Brief, Appendix, G.”
If you look at Appendix G of the Prosecution’s final brief, you’ll find that the underlying source cited is exhibit P6185 itself. It’s no wonder the names in the article correspond to the names on the prosecutor’s list because that’s where the prosecutor got the names from in the first place. Of course they’re going to match.
In the very next paragraph 622 of the judgment, the chamber rejects a report by the Bijeljina SJB (local police station) to the MUP (interior ministry). This report is exhibit D3142, and it states that 31 Muslims were killed “putting up armed resistance” (27 of whom are listed as the victims of this incident on the prosecution’s list), and that an additional six of the people named as victims of this incident were in fact killed by the Muslim side. The chamber says it rejected the report because “the language used in the Bijeljina SJB report is highly inflammatory and one-sided, which undermines its reliability and the weight which can be attributed to it.”
As examples of this “one-sided and inflammatory language”, the chamber explains in footnote 2003 that “the report refers to the Muslim ‘fanatics’, ‘extremists’, ‘fundamentalists […] [who] wanted to establish a Muslim state’. It also refers to the crushing of barricades and Muslims who ‘have stained their hands with the Serbs’ blood’.”
This begs the obvious question of why they didn’t reject Sejo Omeragic’s newspaper report as “highly inflammatory and one-sided” since he writes about “chetniks” slaughtering Muslims “to satisfy their innate hatred.”
It also begs the question of why the chamber accepted the JNA’s report of what the Bijeljina MUP told them if it felt that the Bijeljina SJB wasn’t a credible source of information. The odds are pretty good that the MUP got its information from the SJB and then relayed it to the JNA.
While Sejo Omeragic may have written an inflammatory newspaper article to influence public opinion, there’s no reason why the Serb police would report false information to their own interior ministry in their internal reporting.
In paragraph 622 of the judgment, the chamber argues that “while there are differing contemporaneous reports as to the number of individuals killed, the Chamber does not consider that these reports undermine the evidence that in total at least 45 non-Serb civilians were killed on 1 and 2 April 1992” and they buttress that argument by again referencing adjudicated facts 2243, 2245, and 2246, which were already dealt with in the beginning of this article, before finally concluding in paragraph 624 that: “The Chamber therefore finds that at least 45 civilians were killed by Serb Forces on 1 and 2 April 1992 in the town of Bijeljina.”
Ironically, in the Prosecution’s final brief (appendix G), the prosecutor only lists the 39 victims alleged by Sejo Omeragic’s newspaper article. The chamber is finding that there were “at least” six more victims than what’s listed by the prosecutor, and for no apparent reason it’s now 45 civilians instead of the 48 originally alleged.
In 1992, military aged men (age 16-60) would have been born between 1932 and 1976. The prosecutor helpfully lists the gender and date of birth for all of the alleged victims. 30 out of the 39 victims on the prosecution’s list were military aged men.
As we’ve already seen, there was
testimony from Vasiljevic about fighting in the area.
Defense witnesses Milivoje Kicanovic
and Cvijetin Simic both
testified that they had seen, and in the case of Kicanovic
been fired upon, by Muslim fighters in Bijeljina who
were dressed in civilian clothes.
Kacanovic was the director of the hospital in Bijeljina. According to his witness statement [exhibit D3089] “The Muslims were the ones who fired on 31 March 1992, but the Serbs did not return fire.” [D3089, Para 23] He said, “On 31 March 1992, I was driving in my car along the street in front of the municipality building in Bijeljina. When I came to the crossroads with Njegoseva Street, in front of the aforementioned building, where the SDA [Muslim Party of Democratic Action] had its headquarters, I saw a large group of people most of whom were armed with various types of side arms. After seeing that I had slowed down and that I was looking in their direction, some of the people from the group, to my great astonishment, opened fire on me without any warning.” [D3089, Para 12] According to the witness, “None of the men who fired shots at me on 31 March 1992 were in uniform.” [D3089, Para 24]
At the hospital, Kacanovic says “I was told that the patients and medical staff of Serbian ethnicity had been held hostage by armed Muslim extremists, more precisely, that the medical staff of Serbian ethnicity had been harassed and mistreated while, while patients of Serbian ethnicity had been thrown out of their sick beds and hospital rooms and physically mistreated by armed Muslims. An example of this inhumane and criminal conduct by Muslim extremists at the Bijeljina hospital was the case of an 11-year-old boy of Serbian ethnicity who had had an appendectomy. He was taken out of his hospital room and the hospital building in a blanket, dumped in the hospital yard and beaten. Another example I would like to mention as an illustration of the brutality of the Muslim extremists at the hospital was the case of a Serbian woman who was raped while receiving dialysis at the Dialysis unit.” [D3089, Para. 15]
It’s very likely that Serbian paramilitaries did kill and mistreat Muslim civilians in Bijeljina in 1992, just as it’s likely that Muslim extremists killed and mistreated Serbian civilians. Unfortunately, the evidence pertaining to this specific incident is so contradictory and vague that it’s impossible to determine what actually happened. The truth is probably that some people were lawfully killed in combat, and some people were killed unlawfully, but specific and reliable evidence of what exactly happened just isn’t there. The Muslims have their version of events, and the Serbs have theirs.
The Karadzic trial chamber’s blatant misrepresentation of the evidence, and their obvious determination to gin-up the body count and put all of the blame on the Serbian side certainly won’t help the process of interethnic reconciliation in the Balkans. All it does is provoke hard feelings and animosity on both sides.
The April 1-2, 1992 killings in Bijeljina are the first of more than 400 scheduled incidents that have been adjudicated by the trial chamber in the Karadzic judgment. The process of going through each specific incident and deconstructing the trial chamber’s findings would take years, yet Radovan Karadzic has only been given 30 days to appeal.
The judgment is nearly 2,600 pages long and contains almost 21,000 footnotes citing the evidence that is supposed to justify the trial chamber’s findings, but we’ve just seen how much credibility those footnotes have.
The trial record contains the testimony of the 434 witnesses who testified before the chamber, the 153 witnesses whose testimony was given in writing, and the 11,469 exhibits representing 191,040 pages that were tendered during the trial. The sheer volume of the trial record is unprecedented: the trial transcript ran to more than 48,000 pages, and an additional 94,917 pages of filings were submitted to the chamber.
If Radovan Karadzic is really the monster that he’s made out to be, then the trial should have focused on specific incidents in which his guilt could be conclusively proven with direct evidence. They should have picked two or three really heinous crimes and proven that he was responsible for them. Instead we’re treated to this elaborate tapestry of stupidity where every rumor that went around Bosnia during the war gets recorded in the trial record, and the conclusions reached by the judgment aren’t supported by the underlying footnotes.