## Facts

- The ICTY prosecuted **Vidoje Blagojević** and **Dragan Jokić** for crimes arising from the July 1995 takeover of the **Srebrenica enclave** and the ensuing operation against Bosnian Muslims.
- The indictment alleged involvement in: (i) the **forcible transfer** of Bosnian Muslim women and children from Srebrenica to **Kladanj** on **12–13 July 1995**, and (ii) the **capture, detention, mass execution**, and subsequent **burial and reburial** of thousands of Bosnian Muslim men and boys (roughly ages 16–60) from **12–19 July 1995**.
- Blagojević was alleged to have been the commander of the **First Bratunac Light Infantry Brigade (Bratunac Brigade)** during the indictment period and, through his command role and actions, to have contributed to the Srebrenica operation (including securing areas, facilitating detention/transport, and supporting related activities).
- Jokić was alleged to have been a senior engineer officer (duty operations officer) in the **Zvornik Brigade**, with a role connected to **engineering/excavation work** linked to burial and reburial activities associated with the executions.
- The prosecution pleaded liability under **Article 7(1)** of the ICTY Statute (individual criminal responsibility, including participation in a **joint criminal enterprise**) and, where alleged, **Article 7(3)** (superior responsibility based on effective control and failure to prevent or punish).
- After the Prosecution closed its case-in-chief, each accused filed a **Rule 98 bis** motion (2 March 2004) seeking judgments of acquittal on some or all counts and/or on particular forms of responsibility, arguing that the prosecution evidence could not support conviction.
- The Trial Chamber’s 5 April 2004 ruling addressed only whether the prosecution had presented sufficient evidence to require the accused to answer; it did not make final findings on guilt.

## Issues

1. Under **Rule 98 bis**, must the Trial Chamber enter a judgment of acquittal where, taking the Prosecution evidence at its highest, no reasonable trier of fact could convict beyond a reasonable doubt on a charged count?
2. Was there evidence capable of supporting conviction for Srebrenica-related crimes based on the accused’s alleged participation in a **joint criminal enterprise** and other Article 7(1) forms of responsibility?
3. Was there evidence capable of supporting conviction under **superior responsibility (Article 7(3))** where pleaded, including effective control, knowledge (or reason to know), and failure to take necessary and reasonable measures?
4. Where the prosecution theory depended on **circumstantial evidence**, could a reasonable trier of fact infer the required elements (including knowledge and contribution) from the prosecution case?

## Decision

- The Trial Chamber applied the Rule 98 bis test: it must acquit on a charge **only if there is no evidence** on which a reasonable trier of fact could be satisfied **beyond reasonable doubt** of guilt, assuming the prosecution evidence is credible and taken at its highest.
- The Chamber **granted the motions in part and denied them in part**: it entered acquittals on specific allegations or bases of responsibility where the prosecution’s case lacked evidence capable of sustaining conviction.
- The Chamber **rejected most requested acquittals**, holding that the prosecution had presented evidence capable of supporting convictions on many of the charged crimes connected to the Srebrenica operation, including (as charged) crimes such as persecution, extermination, murder, inhumane acts (including forcible transfer), and related war crimes counts.
- The case therefore **continued to the defence phase** on a reduced but still substantial set of charges and theories of liability, with the weight of evidence and final factual findings reserved for the final judgment.

## Legal Principles

- Rule 98 bis is a mid-trial control on insufficiency: the question is whether there is **evidence (if accepted)** on which a reasonable tribunal of fact could convict beyond a reasonable doubt on the particular charge.
- At the Rule 98 bis stage, the Trial Chamber **does not** resolve credibility disputes, choose between competing factual accounts, or make final factual findings; it proceeds on the basis that the prosecution evidence is credible for purposes of the motion.
- A case may proceed on **circumstantial evidence** if, taken at its highest, it is capable of supporting the necessary inferences for the charged elements; alternative inferences are generally left for the full trial record.
- When multiple crimes and multiple Article 7 modes are pleaded, Rule 98 bis permits **partial acquittals**, removing only those counts (or particular liability routes) that lack evidentiary support while leaving supported counts for the defence case.
- For **Article 7(1)** responsibility (including joint criminal enterprise), the prosecution must present evidence capable of showing the accused’s participation and a contribution connected to the charged crimes, together with the required mental element as charged.
- For **Article 7(3)** superior responsibility, the prosecution must present evidence capable of showing: a superior–subordinate relationship with **effective control**, the superior’s knowledge (or reason to know) of crimes, and failure to take necessary and reasonable measures to prevent or punish.

## Conclusion

In *Prosecutor v. Blagojević & Jokić* (Judgement on Motions for Acquittal Pursuant to Rule 98 bis), the ICTY Trial Chamber held that Rule 98 bis requires acquittal only where the prosecution has presented no evidence on which a reasonable trier of fact could convict beyond a reasonable doubt, taking the evidence at its highest; applying that standard, it entered limited acquittals on certain charges or liability theories but otherwise allowed the Srebrenica-related case to proceed.


Prosecutor v. Blagojevic (Judgment on Motions for Acquittal Pursuant to Rule 98 bis), IT-02-60-T (April 5, 2004)