## Facts

- Radovan Karadžić, a senior Bosnian Serb political and military leader during the 1992–1995 conflict, was charged with multiple international crimes, including genocide in several Bosnian municipalities in 1992 (Count 1).
- The Prosecution alleged a joint criminal enterprise to permanently remove Bosnian Muslims and Bosnian Croats from Serb-claimed territory through persecutions that included genocidal acts.
- After the Prosecution rested, Karadžić moved for a judgment of acquittal under ICTY Rule 98 bis (no case to answer).
- The Trial Chamber granted the motion in part and entered acquittal on Count 1, finding no evidence capable of supporting a conviction for municipalities genocide.
- The Prosecution took an interlocutory appeal seeking reversal of the acquittal and reinstatement of Count 1.

## Issues

1. Whether the Trial Chamber applied the correct Rule 98 bis standard—i.e., whether there was evidence (if accepted) on which a reasonable trier of fact could convict.
2. Whether, taking the Prosecution evidence at its highest, there was evidence capable of supporting findings of genocidal acts in the municipalities (killing, causing serious bodily or mental harm, and/or inflicting destructive conditions of life).
3. Whether, taking the Prosecution evidence at its highest, there was evidence from which a reasonable trier of fact could infer genocidal specific intent to destroy, in whole or in part, Bosnian Muslims and/or Bosnian Croats in the municipalities.

## Decision

- The Appeals Chamber granted the Prosecution’s appeal.
- It reversed the Trial Chamber’s Rule 98 bis acquittal on Count 1 (genocide in the municipalities).
- It held the Trial Chamber misapplied Rule 98 bis by effectively weighing and discounting evidence rather than asking whether a reasonable trier of fact could convict if the evidence were accepted.
- It found the Prosecution adduced evidence that could support underlying genocidal acts, including widespread killings, brutal detention mistreatment, and life-threatening camp conditions.
- It found the Prosecution adduced evidence from which genocidal intent could be inferred from patterns of conduct and contextual statements by leaders, and that the Trial Chamber erred in concluding there was “no evidence” supporting such an inference.
- It reinstated Count 1 and remitted it for adjudication on the full record at the end of trial.

## Legal Principles

- Under Rule 98 bis, the question is whether there is evidence (if accepted) upon which a reasonable trier of fact could be satisfied beyond a reasonable doubt of guilt; the chamber must not conduct a full weighing of the evidence.
- Genocide requires proof of a prohibited act and proof of specific intent to destroy, in whole or in part, a protected group as such.
- Genocidal intent may be inferred from circumstantial evidence, including patterns and scale of violence, the nature of mistreatment and living conditions imposed, and relevant statements by political or military leaders.
- At the Rule 98 bis stage, the existence of competing inferences does not justify acquittal if a reasonable trier of fact could infer the required intent from the Prosecution evidence taken at its highest.

## Conclusion

The Appeals Chamber held that the Trial Chamber applied an overly demanding Rule 98 bis threshold and improperly discounted evidence on genocidal intent; because the Prosecution’s case contained evidence capable of supporting genocidal acts and an inference of specific intent in certain municipalities, the acquittal on the municipalities genocide count was reversed and the count reinstated for determination on the complete trial record.


Prosecutor v. Karadžić, Case No. IT-95-5/18-AR98bis.1 (ICTY App. Ch. July 11, 2013)