Individual Responsibility, Global Condemnation –The Question of 'Adjudicated Facts' in the Srebrenica Trial

On July 23, 2003, the Srebrenica trial adjourned after two weeks of testimony from six Bosnian Muslim survivor witnesses. These witnesses gave evidence about the deportations and mass executions of refugees that underlie the indictment of defendants Vidoje Blagojevic and Dragan Jokic. The trial will resume in mid-September, once the appeals chamber reaches a final decision on whether Blagojevic may dismiss his counsel, an action he continues to insist is necessary. The witnesses who have appeared in the trial so far have all given what is considered background evidence; they set the scene and establish that crimes occurred, and the Prosecution will wait until the status of Blagojevic's counsel is settled before bringing 'substantive' witnesses to link Blagojevic and Jokic to those crimes.

The crime base testimony has been uniformly gruesome; the Court has heard from women torn from their families during the transport of refugees at Potocari, and from men who survived mass executions at some of the most notorious killing sites around Srebrenica: the Kravica warehouse, Orahovac, the Sandici meadow, the Petkovci dam, and the Branjevo Military Farm. In 1996, Drazen Erdemovic, a member of the Bosnian Serb Army (VRS), pleaded guilty to one count of crimes against humanity for his role in the Branjevo farm executions, where over a thousand men were killed on July 16, 1995. Each of the male witnesses survived the massacres by feigning death among the corpses, and escaping once the Bosnian Serb Army (VRS) perpetrators left the area. Some of the men had been blindfolded, with their hands bound behind their backs. Some also described hearing or seeing heavy construction equipment operating at the execution sites, presumably to haul bodies and wash away blood.


One witness, identified only as P-111, was 17 years old when VRS soldiers packed him into a truck with other Bosnian Muslim men and transported them for two days from one holding area to another; he described a climate of constant terror, summary executions, beatings and terrible thirst. By the time VRS soldiers bound his hands and blindfolded him, the boy was barefoot, soaked in urine, and waiting for death. VRS soldiers lined him up with other men in a field filled with bodies and opened fire. Wounded in several places and bleeding, the witness described lying motionless for hours as other groups of men were unloaded and executed. When he ultimately saw someone else moving in the field, it took him another hour to find the strength to roll his body over the corpses, so that the other survivor could untie P-111's hands with his mouth. The two men – the only two known to have survived the Petkovci dam massacre - escaped into the woods, walking and crawling for four days to reach safety.

None of this powerful testimony was new for the Tribunal, and none of it came as a surprise to the defense teams. Almost every witness who has appeared in the current trial also testified to the same crime base in the previous trial against VRS General Radislav Krstic. In 2001, a Trial Chamber of the ICTY held that the events at Srebrenica amounted to genocide, and sentenced Krstic to 46 years of imprisonment for his role in the atrocities. That judgment is now on appeal. Similarly, the basic outline of what happened at Srebrenica is well established. Eight years ago, on the evening of July 11, 1995, Bosnian Serb forces took control of the U.N.-protected enclave of Srebrenica after shelling the area for days and taking hostage some of the soldiers from the battalion of Dutch UN troops (Dutch Bat) whose role it was to demilitarize the area and protect civilians. Over the course of the next two days - and in front of the nearly helpless UN soldiers – approximately 25,000 Bosnian Muslim women, children and elderly men were transported out of the UN-protected 'safe zone' and delivered to Bosnian Muslim-held territory. The majority of the men – in age ranging from around 14 to the extremely aged – were separated out, detained in inhuman conditions, and executed by Bosnian Serb forces.

Judging from the records of missing people, eyewitness accounts, and forensic investigation from over 20 mass gravesites, over 7000 men and boys were killed by the end of that week in July, constituting what is widely regarded as the worst atrocity on European soil since WWII, and one of the most tragic failures of UN peacekeeping forces. The Dutch parliament has held a series of emotional inquiries into its responsibility for Srebrenica, and the ruling governmental coalition collapsed in 2002 following the publication of an exhaustive report.

The witnesses in the current trial appear against this backdrop, and the Krstic judgment noted that 'almost without exception', witnesses for both the prosecution and the defense in that case did not contest that mass killings occurred, at the orders of Bosnian Serb officials, and outside of combat activities. It was also not disputed - it should be noted - that armed Bosnian Muslims conducted offensives against Serbs from within the enclave. The current trial, based on the same events, is proceeding similarly. Defense counsel conducted very limited cross-examination of the survivor witnesses, accepting most of their testimony unchallenged.


It can seem strange that the same witnesses, in a second trial, must again describe largely undisputed background facts to the Court. One reason for this procedure is to ensure a fair trial for the Accused in the current trial, who must be tried based on their individual responsibility, and who may not share the same goals and information as the Krstic defense team. Therefore, they properly have the right to cross-examine certain repeat witnesses on different grounds. The Krstic judgment cites another reason for an exhaustive record, quoting Nuremberg Prosecutor Telford Taylor: '[it is] important that these incredible events be established by clear and public proof, so that no one can ever doubt that they were fact and not fable.' Yet not all evidence must be reexamined, and in fact it would be pointless and a waste of time to do so. The Court must therefore decide which, if any, aspects of the crime base may be accepted as incontrovertible without further evidence in this trial.

This process is called 'judicial notice,' or accepting certain facts as given, and it is governed by Rule 94 of the Tribunal Rules of Procedure and Evidence. The first part of the Rule, following the widespread practice of all legal systems, says: 'a trial chamber shall not require proof of facts of common knowledge.' The Tribunal has interpreted this to mean that judges cannot require evidence of common or universally known facts. The second part of the Rule stipulates that a Trial Chamber 'may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal…' This portion of the Rule recognizes that some cases before the Tribunal will share factual underpinnings, just as the case against Blagojevic and Jokic is based on the same events for which Krstic was convicted. Judges have discretion to accept certain 'adjudicated facts,' meaning facts that other trial chambers accepted as true after hearing the evidence and cross examination. Valuable resources can be saved by not requiring evidence on matters that have already been decided, and such 'judicial economy' is a major reason behind Rule 94. Another central goal of the Rule is to ensure the right to a speedy trial for defendants; repeatedly presenting unchallenged evidence for the same crimes at subsequent trials can unacceptably lengthen those trials. Finally, taking judicial notice of certain facts avoids repeated trauma for witnesses, who, each time they appear in court, must relive the devastating events they suffered and survived.

Yet there is no consensus about when facts are truly adjudicated, and this question is an area of great contention in the Srebrenica trial. The Prosecution has sought to introduce 409 factual statements and 168 items of documentary evidence from the Krstic trial under Rule 94, maintaining that the Rule 'was designed to apply in precisely this type of case, where there is essentially no dispute as to the existence of the crime base and the issue to be litigated is instead the criminal liability of the accused.' The defense teams, meanwhile, maintain that the Prosecution must show that each individual fact is admissible under Rule 94 before the Court may accept them. Only facts of a certain nature may be included under Rule 94; in tribunal jurisprudence, judges may not take judicial notice of facts from other trials if those facts incorporate or reflect legal conclusions, if they were agreed upon as part of guilty plea (meaning they were never truly 'tried,' since evidence was not presented about them during trial), if they incriminate the accused, or if they are subject to appellate proceedings.
These restrictions require great care from the party seeking judicial notice of a fact. For example, the Prosecution in this trial cannot seek to have the Court take judicial notice of the following fact contained in the Krstic judgment: 'the Bosnian Muslim civilians of Srebrenica who were bussed out of Potocari were not making a free choice to leave the area of the former enclave.' This is indeed a factual finding, but it incorporates a legal conclusion – that deportation occurred. Rather, the Prosecution can (and does) seek to have the Court take judicial notice of the fact that 'on 12 and 13 July 1995, the women, children and elderly were bussed out of Potocari, under the control of VRS forces, to Bosnian Muslim held territory near Kladanj.' This is a legally neutral fact: accepting it as true does not lead to a conclusion that crimes occurred (or didn't occur), nor does it indicate responsibility for any crime.
The fact that the Krstic judgment is on appeal presents the most difficult legal question for this Court in deciding whether and which facts from that judgment may be accepted as 'adjudicated.' A 2001 decision in the Kupreskic case says that judges may not take judicial notice of any fact from a judgment on appeal. Other trial chambers have held that this ban applies only to facts that are specifically appealed, not to those left unchallenged. One of the most recent decisions, by the Krajisnik trial chamber in February 2003, holds that facts adjudicated at trial and not specifically appealed may be judicially noticed 'even before the appeal is finally concluded.' 'The mere fact that a judgement has been appealed, in other words, does not in itself, provide sufficient grounds for excluding all facts adjudicated in that judgment.' But the chamber also held that judicially noticing these facts does not necessarily end the inquiry: it merely shifts the burden of proof about that specific fact to the opposing party. So if the defense, for example, produces evidence successfully challenging an 'adjudicated' fact, then the prosecution must once again prove it to be true through witnesses and documentation, just as if the fact had never been adjudicated before.

This is of course a paradoxical ruling, and has been rejected by the Milosevic Trial Chamber as contradicting the principle behind the idea of adjudicated facts, which is that such facts are beyond dispute and cannot be judicially noticed unless the Court is convinced that there is no dispute. The Milosevic Court has taken judicial notice of a limited number of facts relating to the historical and geographic background of the case. Shifting the burden of proof on certain facts rather than accepting them as given may be inconsistent with the theory of judicial notice. However, in practical terms, the resulting burden on the opposing party is no greater than if the evidence had been presented at trial. Either way, the opposing party must produce evidence if it wishes to challenge a particular fact, as the Milosevic Prosecution has recently pointed out. The rules of the game only change when a traditional approach is taken with respect to judicial notice; that is, when parties are not allowed to challenge facts accepted by the court.

In the setting of the Tribunal, with its limited jurisdiction, overlapping cases, and enormous crime bases, it may be wise for Trial Chambers to adopt the modified theory of adjudicated facts set forth by the Krajisnik Court. Such a policy would streamline trials; it precludes one party from blocking judicial notice of a fact when it has no evidence to contest that fact. Whatever the Srebrenica Court decides about the specific adjudicated facts before it, its challenge is to chart a course that acknowledges the overwhelming and uncontested evidence of crimes in Srebrenica – and the pain suffered by those called to testify to those crimes - while remaining scrupulously fair towards the defendants, Blagojevic and Jokic. Presumed innocent until proven guilty, their responsibility must ultimately be determined individually and independently of Krstic's culpability for Srebrenica and of the world's moral condemnation of what happened there.