In July 2008 I remember running into the office of my
favorite professor, out of breath from both running and excitement, saying
“They got him! They got him! Karadžić!” I couldn’t believe it!
Before his arrest, on 21 July 2008, Karadžić evaded justice
for 13 years, living in Belgrade under an assumed identity
as Dragan Dabić, new age doctor and spiritual healer. He was transferred to the
ICTY nine days later and his trial
began in October 2009.
The process
of the Karadžić trial included 498 trial
days. During this time the court heard
testimony from 434 witnesses and
received written testimony from another 152. A total of 11,469 exhibits were admitted into evidence. The complete trial
record amounts to over 48,000 transcript
pages, over 95,000 pages of filings and over 190,000 pages of admitted
exhibits, totaling to over 330,000 pages of trial record.
Last Thursday the trial judgment came out. Because Serbian
president Slobodan Milošević died before the judgment in his case was rendered,
I think many of us felt relief at the fact that the ICTY was able to issue a
judgment against Karadžić – the highest
ranking official after Milošević to be tried by the Tribunal and the highest
ranking official to be convicted for crimes committed during the wars in the
former Yugoslavia.
Karadžić was charged with
11 Counts in total: two Counts of
genocide, five Counts of crimes against humanity, namely persecution (Count
3), extermination (Count 4), murder (Count 5), deportation (Count 7), inhumane
acts (forcible transfer) (Count 8), and four
Counts of violations of the laws or customs of war, i.e. war crimes, namely
murder (Count 6) terror against civilians (Count 9), unlawful attacks on
civilians (Count 10), and taking of hostages (primarily of UN personnel) (Count
11). Regarding the counts of genocide, Count
1 alleged that genocide was committed in the municipalities of Bratunac, Foča,
Ključ, Prijedor, Sanski Most, Vlasenica, and Zvornik, while Count 2 concerned
allegations of genocide in Srebrenica.
In the indictment,
the Prosecution alleged that Karadžić
participated in four different joint criminal enterprises (JCEs): (1) to
permanently remove Muslims and Bosnian Croats from Bosnian Serb claimed
territory in Bosnia and Herzegovina through crimes charged (Overall JCE); (2) to
spread terror among the civilian population of Sarajevo through a campaign of
sniping and shelling (Sarajevo JCE); (3) to eliminate the Bosnian Muslims in
Srebrenica (Srebrenica JCE); and (4) to take United Nations personnel as
hostages (hostage JCE).
In addition, the Prosecution had charged Karadžić
under Article 7(1) of the ICTY Statute (individual criminal responsibility) for
planning, instigating, ordering, committing, and/or aiding and abetting the
alleged crimes, and under Article 7(3) of the Statute (command responsibility) for
the crimes charged.
The Trial Chamber
found Radovan Karadžić guilty on 10 of 11 Counts (he was acquitted on Count 1)
and sentenced him to 40 years of imprisonment.
For those of you who (unlike me) had better things to do last
Thursday than to watch a 2-hour live reading of the judgment, below is a recap
of the findings of the Trial Chamber.
The Overarching
JCE
The Chamber found that many crimes were committed in the
municipalities of Bijeljina, Bratunac, Brčko, Foča, Rogatica, Sokolac,
Višegrad, Vlasenica and Zvornik in Eastern Bosnia; in the municipalities of
Banja Luka, Bosanski Novi, Ključ, Prijedor, and Sanski Most in the Autonomous
Region of Krajina (ARK); and in the municipalities of Hadžići, Ilidža, Novi Grad, Novo Sarajevo,
Pale, and Vogošća in the Sarajevo region.
The Chambers further found that there was a common plan during the war, to permanently remove Bosnian
Muslims and Bosnian Croats from Bosnian Serb-claimed territory through the
commission of crimes and that Karadžić
significantly contributed to the common plan. In fact, he “was central in
outlining the goals of the Bosnian Serb leadership including separation from
Bosnian Muslims and Bosnian Croats, the take-over of Bosnian Serb-claimed
territory, and the creation of a largely ethnically homogeneous Bosnian Serb
state.”
The Chamber further found that that Karadžić knew that the common plan, whereby
thousands of non-Serb civilians were expelled en masse from their homes during
and after the forcible take-over of towns and villages, and detained in
facilities throughout the Municipalities, was carried out in a context of inter-ethnic
animosity and violence. Furthermore, he knew that there was a climate of
impunity for crimes committed against non-Serbs.
Consequently, the Chamber
held Karadžić individually criminally responsible pursuant to Article 7(1) of
the Statute for persecution, extermination, murder, deportation and forcible
transfer as crimes against humanity; and murder, as a violation of the laws or
customs of war in relation to the above-mentioned municipalities.
The Prosecution had also alleged that in seven of the
Municipalities, namely Bratunac, Foča, Ključ, Prijedor, Sanski Most,
Vlasenica, and Zvornik, the persecutory campaign included or escalated to
include conduct and intent which amounted to genocide. However, the Chamber
found that it didn’t have
“sufficient evidence to find beyond reasonable doubt that genocide was committed
in these municipalities.” Karadžić was
therefore acquitted on Count 1, genocide, in relation to these
municipalities.
The Sarajevo JCE
During the war in Bosnia, the capital Sarajevo was under
siege by Bosnian Serb forces for a total of 1,425 days, from 5 April 1992 to 29
February 1996 - the longest siege in modern warfare.
The Trial Chamber found
that from late May 1992 until October
1995, the civilian population of Sarajevo was deliberately shelled and sniped
by members of the Bosnian Serb Forces, namely the Sarajevo Romanija Corps
(SRK). The practice of sniping and
shelling of civilians continued for over three years. Bearing in mind the
longevity and the nature of the practice, the Chamber found that the intention
of Bosnian-Serb units, and their commanders, was to target civilians and use
indiscriminate or disproportionate fire on the city.
The Chamber therefore found that members of the SRK committed murder, unlawful attacks on civilians, and
terror as violations of the laws or customs of war and also murder as a crime
against humanity. The Chamber then discussed Karadžić’s responsibility for
the crimes.
The Chamber found that there was a common plan, which emanated from the Bosnian Serb political and
military leadership, to spread terror among the civilian population of Sarajevo
through the campaign of sniping and shelling. The Chamber further found
that Karadžić significantly contributed
to the plan, through his support to Mladić’s strategy in Sarajevo, as well as
through his position as Supreme Commander of the VRS and his de jure control over the SRK and VRS.
Throughout the existence of the Sarajevo JCE, Karadžić was informed about SRK attacks on
civilians in Sarajevo. The Chamber found that instead of ensuring that the
attacks be stopped, he denied that the SRK was responsible. Furthermore,
according to the Chamber there was not a single attempt to prosecute SRK
soldiers for opening fire on civilians in Sarajevo, showing a culture of
absolute impunity within the SRK. The Chamber also found that Karadžić only
attempted to limit the targeting of civilians when he came under pressure by
the international community, or threat of NATO intervention.
In the end, the Chamber found
that Karadžić “was so instrumental in
the Sarajevo JCE that without his support the SRK attacks on civilians in the
city could not have occurred.” Accordingly, the Chamber found Karadžić individually criminally responsible
pursuant to Article 7(1) of the Statute for murder, unlawful attacks on civilians,
and terror, as violations of the laws or customs of war and for murder as a
crime against humanity, in relation to the Sarajevo JCE.
Hostages JCE
On 26 May 1995, following NATO air strikes against Bosnian
Serb military targets in Pale, UNPROFOR and UNMO personnel in Bosnia and
Herzegovina were detained by Bosnian Serb Forces and taken to various locations
throughout Bosnia.
During their detention,
UN personnel were threatened that they would be harmed or killed if NATO
continued the airstrikes. This was communicated to the UN. Some of the UN personnel were handcuffed
outside locations of military significance to the VRS.
The Chamber found that all
UN personnel who were detained by Bosnian Serb Forces were entitled to the
protections under Common
Article 3 of the Geneva Conventions, including the prohibition against
hostage taking, as they were not a party to the conflict and took no active
part in hostilities.
According to the Chamber, the detention of the UN personnel was intentionally carried out for the
purpose of obtaining a concession, namely the end of airstrikes against
Bosnian Serb military targets. The Chamber therefore found that the elements of the crime of taking hostages as a violation
of the laws or customs of war, under Article 3, were met.
The Chamber also found that a JCE existed with the common purpose of taking UN personnel
hostage in order to compel NATO to abstain from conducting air strikes against
Bosnian Serb targets and that Karadžić was a member of this JCE. According
to the Chamber, the only possible inference from the evidence it received with
regard to Karadžić’s statements, acts, and conduct was that he not only intended
to detain the UN personnel but also intended for threats to be issued against
them during their detention in order to achieve the objective of stopping the
NATO air strikes.
The Chamber also found that Karadžić significantly
contributed to the common purpose to take UN personnel hostage in order to
deter NATO from engaging in further air- strikes and that he was the driving
force behind the hostage taking and an active participant in every aspect of
the events. Consequently, the Chamber found Karadžić guilty for the crime of taking hostages pursuant to Count 11 of the
Indictment.
Srebrenica JCE
And
as the facts of what happened in Srebrenica are since previously well known, I
will try to make the following section as short as possible, although I am
afraid it might be impossible.
As
seen above, there was a common plan to permanently remove Bosnian Muslims and
Bosnian Croats from Bosnian Serb territory and that Karadžić
significantly contributed to this plan.
In March 1995, Karadžić issued Directive 7, ordering
the Drina Corps to “create an unbearable
situation of total insecurity with no hope of further survival or life for the
inhabitants of Srebrenica”, many of whom had fled there
after attacks on nearby villages in earl 1993. Following this, restrictions on humanitarian aid and
UNPROFOR re-supply convoys intensified, resulting in disastrous conditions in
the Srebrenica enclave.
On 9 July, one day after the arrival in Srebrenica of General Mladić, Karadžić was informed that
favorable conditions for extending the attack on Srebrenica had been created. Karadžić
approved this and ordered the take-over of Srebrenica, which fell to Bosnian
Serb Forces by the end of 11 July.
What followed the Srebrenica take-over is by now very well
known. The Bosnian Muslim population had already fled the relentless shelling
of Srebrenica earlier that day. The vast
majority of the able-bodied men formed a column and departed the enclave on
foot in an attempt to reach Tuzla, while
the women, children, and elderly men moved north to the UN Compound in
Potočari (about 7 kilometers or 4.3 miles). As they fled, the group moving
towards the UN Compound was shelled.
Between 12 and 13 July, approximately 30,000 Bosnian Muslim
women, children, and elderly men were bussed from Potočari to Bosnian
Muslim-held territory. After the
first convoy departed Potočari, Bosnian
Serb Forces began to separate Muslim men and boys from the rest of the people
meant to leave, forcing them to leave behind their families as well as
personal belongings like ID cards, and detained them – first at a building
known as ‘the White House’ and, when this became full, at different locations
in the town of Bratunac (a 5 kilometers or 3.1 miles from Potočari). At the same time Bosnian Serb
Forces began to receive information about the column of Bosnian Muslim males
attempting to reach Tuzla and began to take steps to intercept it by way of
ambush or shelling.
Large scale killings of Bosnian Muslim men and boys by
Bosnian Serb Forces began on 12 July at different locations and continued until
the 17th. It is estimated that around 8,000
Bosnian Muslim men and boys from Srebrenica were killed by Serb Forces during
these days.
On 13 July, between 1,500 and 2,000 Bosnian Muslim men from
the column mentioned above, who surrendered or were captured, were detained by
Bosnian Serb Forces at various locations. They were then taken either to
Bratunac or to the Kravica Warehouse, where Bosnian Serb Forces later that day
killed between 755 and 1,016 Muslim men. On the evening of the 13 July,
thousands of Bosnian Muslim men and boys were bussed from Bratunac to Zvornik,
where they were first detained before being killed in the coming days. In the
days following the conclusion of the killing operation in Zvornik, members of
the Bosnian Serb Forces continued to kill Bosnian Muslim males who came into
their custody.
The Chamber found
that, noting in particular the mobilization of busses which took place as
Bosnian Serb Forces consolidated control over the Bosnian Muslims gathered in
Potočari, as Srebrenica fell, the
long-term strategy aimed at removing the Bosnian Muslim population from
Srebrenica, began to be transformed into a concrete common plan to eliminate
them.
The Chamber also found
that these killings were carried out
pursuant to a systematic and highly organized plan, which was overseen by VRS
staff of all levels of command. According to the Chamber, Bosnian Serb
Forces began to obtain detailed intelligence regarding the presence of Bosnian
Muslim males amongst the population in Potočari on the night of 11 July and,
around the same time, began to receive reports about the existence and movement
of the column of Bosnian Muslim men and boys attempting to make their way
towards Tuzla.
The Chamber considered
that the manner as well as the systematic and highly organized nature of the
killings showed a clear intent “to kill
ever able-bodied Bosnian Muslim male from Srebrenica.” The Chamber further
noted that “killing every able-bodied
male of a group results in severe procreative implications that may lead to the
group's extinction” and found that the only reasonable inference was that those orchestrating this operation intended
to destroy the Bosnian Muslims in Srebrenica.
The Chamber found Karadžić’s establishment of Bosnian Serb
structures in Srebrenica demonstrated intent to permanently and
forcibly remove the Bosnian Muslim population. The Chamber noted that
throughout the Srebrenica operations Karadžić received information from various
high-ranking VRS officers and that he received regular written reports,
including daily VRS combat reports, which revealed that the Bosnian Serb Forces
observed relatively few able-bodied Bosnian Muslim males in Potočari and
described the actions taken by the Bosnian Serb Forces in pursuit of the
column.
The Chamber considered that as President of the RS and
Supreme Commander of the VRS, Karadžić
was the sole person within the RS with the power to intervene on behalf of the
Bosnian Muslim men and boys and to prevent them from being killed. However,
instead, the Chamber found that Karadžić
ordered that the Bosnian males who were being detained in Bratunac be
transferred elsewhere to be killed; they were then taken to Zvornik and
killed.
According to the
Chamber, Karadžić “knew that the
thousands of Bosnian Muslim male detainees being held by Bosnian Serb Forces in
the Srebrenica area constituted a very significant percentage of the Bosnian
Muslim males from Srebrenica.” However, he did nothing to intervene to stop
the killings that occurred between 13 and 17 July. Consequently the Chamber
considered that the only reasonable inference was that Karadžić had the intend to kill every able-bodied Bosnian Muslim male
from Srebrenica, “which, in the Chamber’s view, amounts to the intent to
destroy the Bosnian Muslims in Srebrenica as such.”
However, the Chamber could only conclude that Karadžić
agreed to expand the common purpose of the Srebrenica JCE to eliminate the
Bosnian Muslims by killing men and boys after 8pm on 13 July and that therefore
he could not be held responsible under Article (1) (individual criminal
responsibility) for killings and related persecution that occurred before that
time. Nevertheless, regarding these killings the Chamber found that Karadžić knew or had reason to know that
crimes had been committed by his subordinates in the aftermath of the fall of
the Srebrenica enclave and that he failed in his duty as Supreme Commander to
take necessary and reasonable measures to punish the commission of genocide,
murder, extermination, and killing as an underlying act of persecution. He
was therefore criminally responsible for such failures pursuant to Article 7(3)
of the Statute (command responsibility).
However, since the Chamber
already found Karadžić guilty of genocide on the basis of his
participation in the Srebrenica JCE, the judges declined to enter a conviction
pursuant to Article 7(3) in relation to Count 2.
What happens now remains to be seen; Karadžić’s lawyer has
already said he will
appeal the judgment. No doubt the Prosecution will also want a shot at
appealing the acquittal on Count 1.
A Divisive Judgment
Karadžić’s trial and
conviction (because seriously, who thought he’d get off scot free??) was always
going to be divisive and problematic, which is true more often than not of most
war crimes trials. This has been particularly true for the Balkans where
not much has happened in terms of reconciliation between people of the
different countries, or as in the case of Bosnia and Croatia between different
ethnic groups in the country. For one
side the accused will often be considered a hero. His/her trial will therefore
be seen as hugely unfair simply because of its existence and any conviction
will be seen as unfair and often as an attack on the particular country or
group the accused belongs to. On the other side are the victims, who often
look to these courts and tribunals, as these are often the only institutions
willing and able to provide some measure of justice.
However, victims’ expectations are often high (sometimes unfairly or
unreasonably, but understandably, so I would say). Victims
are often disappointed that indictments don’t cover exactly all the crimes they
believe the accused to be guilty of; or they are upset that the person they
consider responsible for what happened to them is indicted. However, prosecutors can only charge what
they believe they will be able to prove. This of course doesn’t mean that
an accused wasn’t involved in said crimes, but it would be irresponsible of the
prosecution, and a waste of resources, to charge a person with crimes they
don’t think can be proven. The same goes for the choosing of who to indict. Legally speaking prosecution is not a
matter of prosecuting everyone, or
the same amount of people from each ethnic group involved in a conflict, or
even a number of people according to which side committed the most or the worst
atrocities. Those are political considerations. International courts like
the ICTY and the ICC need to be legal institutions where prosecutors and judges
approach each case in a purely legal fashion, while of course understanding the
political aspects of the case or the situation. To do anything else would make
a mockery of the justice these tribunals aim to administer.
In cases where domestic courts are unable or unwilling to
deal with the crimes, it is understandable that victims put all their faith
into an international court or tribunal. Nevertheless,
however upsetting and crushing an acquittal may seem to victims and their
families, it doesn’t mean some great injustice has been done. A court can,
and should, convict only when there’s no reasonable doubt and when the there’s
enough evidence to make a reasonable finding of guilt.
Needless to say the
Karadžić judgment will be divisive in Bosnia, and in other Balkan countries.
In Republika Srpska, and Serbia, Karadžić is still very much a war hero and
anything other than an outright acquittal is difficult to accept for many
people there. However, many (victims but also activists and legal
professionals) had hoped that this case was the case that would show that
genocide occurred all over Bosnia during the war, not only in Srebrenica. The
fact that the Trial Chamber acquitted Karadžić on Count 1 if of course a source
of deep disappointment in this regard. Indeed
victims gathered
at the ICTY on the day of the judgment expressed disappointment and disbelief
that the Chamber didn’t consider what happened in Bosnia genocide. Karadžić’s
lawyer has already said
he will appeal the judgment. No doubt the Prosecution will also want a shot at
appealing the acquittal on Count 1. However, whatever the outcome is from an
appeal this, too, will be hugely divisive.
It is also important to consider a few things.
First, while some
will interpret the acquittal of Count 1 as a denial by the Court of the facts,
this is untrue. As stated by one commentator,
“the judges accepted the facts and described them in hundreds of pages of
horrific detail. What they concluded is that the facts amount not to genocide,
but to multiple crimes against humanity.”
Second, Karadžić was
found guilty of six crimes against humanity in the municipalities charged for
Count 1: murder, persecution, extermination, deportation, forcible transfer,
and ‘other inhumane acts’, including rape and sexual violence, because of his
participation in the Overarching JCE. As importantly pointed out by the
same commentator,
crimes against humanity are not minor
crimes, and not necessarily lesser crimes than genocide. And it is meaningful that on the basis
of facts established at trial Karadžić was convicted of major crimes, even if
the conviction was not for every count that was sought.
Third, while the Trial Chamber in this case found that
genocide had not been committed in the municipalities as charged, this doesn’t mean that had the Court found that genocide had occurred, Karadžić would have
been found guilty. I am not familiar with all the evidence presented so
it’s impossible for me to say what I believe, but even if the Chamber would have
found that genocide had occurred the prosecution would still have had to link Karadžić
to the crimes charged and prove that he had the intent to commit genocide. This is no small feat.
In the end whether Karadžić’s
trial and judgment will be considered a success or a failure will largely
depend on politicians in the Balkans deal with it, particularly those of
Serbia and Bosnia (including Repulika Srpska). Those of you who know me know
that I wouldn’t hold my breath for a breakthrough in relations or for
acceptance of the past. At least not in the current political climate in
Bosnia. However, the judgment
“effectively does what the verdict in the trial of Slobodan Milošević should
have done if the trial had not outlasted the defendant.” If nothing else it
has established a record of some of the things that happened in Bosnia and who
was involved. Perhaps in the end this is what we can and should expect of these
trials – to provide a historical record of atrocities committed, in the hope
that we will learn something from it and keep history from repeating itself.
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