EU-Turkey Deal: Who is to be Returned from Greece to Turkey, and why it is Unlawful

Today we welcome Will Mosse as a guest blogger!  Will Mosse has an LL.M. in International Human Rights and Humanitarian law from the University of Essex and a post-Graduate Diploma in Legal Studies from London South Bank University. He is an analyst at ATLEX Consulting, in International Human Rights and Humanitarian Law: Research and Advocacy. 

The removal of so-called ‘irregular migrants’ from Greek territory to Turkey commenced yesterday, 4^th April, under a deal struck between the European Union and Turkey on March 18^th. Since the announcement of the deal there has been some confusion among commentators as to who exactly is set to be returned from Greece to Turkey and under what conditions. Additionally, many have questioned the legality of the deal. Given that yesterday’s deportations “only included migrants who had not sought asylum”, the legality of the deal as it applies to refugees and asylum seekers has yet to be tested.

This article aims to clarify what this deal means, setting out that its intention is for the return to Turkey of almost all (but not absolutely all), refugees, asylum seekers and other migrants arriving on Greek islands. There appear, however, to be significant grounds for legal challenge by potential returnees that could well kill the deal off in whole or in part. Much commentary on the deal has focussed on the potential for the treatment accorded to refugees and asylum seekers in practice to not meet the standards required by EU and international law, either regarding procedural safeguards relating to their assessment in and removal from Greece, or in relation to the conditions and treatment they may experience in Turkey. While practical conditions are certainly cause for legal concern and will be addressed below, it is also important to note that the protections afforded by Turkey to refugees and asylum seekers in law do not appear to meet the standards required by the Refugee Convention and the EU Common Procedures Directive. As such, the removal of refugees and asylum seekers from any EU State to Turkey will violate that State’s protection obligations under EU and international law.

EU countries already woefully failing in their obligation to protect refugees cannot evade their legal duties simply by shunting refugees beyond EU borders. EU countries must work together to protect refugees in dire need.

This deal presages a similar deal being worked out between the EU and Turkey that is to see refugees, asylum seekers and other migrants from across the whole union returned to Turkey. That deal is currently due to enter into force on June 1^st 2016. Further, the EU is attempting to conclude similar deals with other countries of transit for refugees, including Lebanon and Jordan.

Note on terminology: All individuals arriving on Greek territory not having entered through regular legal channels are deemed ‘irregular migrants’. Some may be refugees and asylum seekers and some may not be. A refugee is someone fleeing persecution on grounds set out in the Refugee Convention (sometimes known as the Geneva Convention), and additionally the EU Qualification Directive provides that those at risk of ‘serious harm’, including from armed conflict, are to be provided international protection on a similar basis as those subject to persecution. An asylum seeker is someone claiming to be a refugee but whose status the authorities have not yet determined. Asylum seekers have certain rights, while other rights follow once they are determined to be a genuine refugee.

The Current Situation

Though the deal between Turkey and the EU was struck over two weeks ago, removals of individuals from Greece to Turkey did not begin until yesterday. This is largely because Greece is struggling to implement the terms of the deal. In particular, Greece is still awaiting the arrival of several thousand security and legal experts to be sent by other EU States to assist with processing asylum applications. However, all individuals arriving on the Greek islands since the deal was struck are to be processed under the terms of the deal and as such may potentially be subject to the new removals process.

It is key to note, however, that according to Turkey's EU Affairs Minister, Volkan Bozkir, those deported from Greece today “only included migrants who had not sought asylum.” As long as these individuals had been given the opportunity to seek asylum in accordance with EU and international law, today’s deportations therefore avoided the potential legal obstacles to the removal of refugees and asylum seekers, and as such the legality of the deal in its wider form is yet to be tested.

The Terms of the Deal and its Legal Basis

The deal provides that:

1.      “all new irregular migrants crossing from Turkey into Greek islands … will be returned to Turkey”, that;

2.      “Migrants not applying for asylum or whose application has been found unfounded or inadmissible … will be returned to Turkey”, and that;

3.      “For every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the EU” (the so called ‘1 in, 1 out’ plan).

These provisions do not appear to be entirely compatible with one another, and will be addressed below.

The legal basis underpinning the deal is provided by a Readmission Agreement concluded between Greece and Turkey in 2001, as well as the terms of the EU Common Procedures Directive. Under the bilateral Readmission Agreement, each party agreed to readmit migrants that had irregularly crossed from its territory into the territory of the other party. Though until now it has not been properly implemented, it is still in force. The EU Common Procedures Directive sets out the terms whereby an asylum seeker or refugee may be returned to a non-EU State that is deemed to be a ‘first country of asylum’ or a ‘third safe country’.

A readmission agreement between the EU and Turkey entered into force on 1^st October 2014, and its provisions allowing for the return of refugees, asylum seekers and other third country nationals from across the whole EU to Turkey are currently due to become active on July 1^st this year.

Who is to be Removed from Greece?

The deal states that all new irregular migrants are to be returned. However, its terms go on to provide that all asylum applications will be considered individually, as is required by law, and that,

“Migrants not applying for asylum or whose application has been found unfounded or inadmissible … will be returned to Turkey.”

The key point here is that under Common Procedures Directive, one ground on which an application may be found to be inadmissible is that the individual applying for asylum has come from a third safe country or a country of first asylum to which he or she may be returned. Under the deal Turkey is to be designated a safe country and has agreed to accept returnees. Therefore, if the deal were implemented in the way in which the EU and Turkey intend, all refugees and asylum seekers would be returned to Turkey unless they can show specific and exceptional reasons why Turkey would not be safe for them in their particular circumstances. It would therefore have been consistent with the actual terms of the deal to state that almost all new irregular migrants will be returned.

This deal, however, raises significant legal concerns and as such will be subject to legal challenge.

Grounds for Challenge: Procedural Safeguards

EU and international law provide significant procedural safeguards whereby each and every asylum applicant arriving in Greece must be provided with a full and fair hearing to the highest standard, and must have the opportunity to challenge any initial ruling in the national courts. It is far from clear that the Greek authorities have the capacity to actually implement this on the scale required, and even with the additional capacity pledged by other EU States, if those arriving to assist do not speak Greek and are not trained in Greek law it is unclear how exactly they will negotiate the Greek legal system. This in itself may lead to challenges on the basis of the fairness of the asylum hearings.

Grounds for Challenge: Is Turkey a ‘Safe Country’ for Refugees and Asylum Seekers?

As noted, the EU Common Procedures Directive provides that where an individual applying for asylum has come from a third safe country or a country of first asylum, if that third country will readmit the asylum seeker, he or she may be returned there. The premise for this is that the asylum seeker will be able to seek, and if necessary receive, protection in the third country to the standard required by EU and international law – in other words that the third country is safe for the asylum seeker. Under the terms of the deal, Greece and the EU are to consider Turkey to be safe for refugees and asylum seekers. However, the Common Procedures Directive sets very stringent conditions for when a third country may be considered safe – conditions that Turkey appears not to meet. Notably, in order to be considered a safe third country, the third country must provide the possibility to:

“request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention”;

and in order to be considered a first country of asylum, it must be the case that the asylum seeker:

“enjoys sufficient protection in that country”.

According to the UNHCR, Greece is set to remove Syrian refugees and asylum seekers (or stateless persons normally residing in Syria) to Turkey on the basis that Turkey is a first country of asylum, predicated on the fact that Turkey has implemented a temporary protection regime whereby all Syrians are automatically entitled to protection without going through a full asylum application process. Non-Syrian refugees and asylum seekers will be removed on the basis that Turkey is designated a third safe country, whereby they may seek and receive protection under Turkey’s Law on Foreigners and International Protection, which came into effect in 2014.

‘Third Safe Country’ Designation and Refugee Convention Ratification

In order to be designated a third safe country, a refugee must be able to request and receive protection “in accordance with the Geneva [Refugee] Convention”. Turkey has not ratified the Refugee Convention and its Protocol so as to cover refugees from outside Europe (a legacy from the WWII era). The EU argues that as long as the substance of the protections provided in the Refugee Convention are available in practice, formal ratification is not necessary for Turkey to be designated a ‘third safe country’. The UNHCR and many other legal analysts dispute this, however, arguing that formal ratification of the Convention to cover refugees from all countries is required. A legal challenge is highly likely on this basis.

Turkish Asylum Law and Substantive Refugee Convention Standards

Even if the Greek Courts were to side with the EU on the matter of Refugee Convention non-ratification, it would still be the case that the right of refugees and asylum seekers to be protected “in accordance with the Geneva Convention” must mean that the substantive content of all of the protections of the Refugee Convention must be available under Turkish law. Additionally, with regard to the first country of asylum requirement that the asylum seeker will enjoy “sufficient protection” in that country, the UNHCR has stated that this requires:

“compliance, in law and practice, […] with relevant international refugee and human rights standards, including adequate standards of living, work rights, health care and education”.

Again, the substantive protections of the Refugee Convention must be available under Turkish law. However, despite the commendable steps of introducing the new general asylum law, based heavily on the EU model, and the temporary protection regime for Syrians, there are various areas in which Turkish law falls short.

Under the general asylum law, non-European asylum seekers may apply for what is called ‘conditional refugee’ status, but the protections available are somewhat less than those provided to European refugees under the Refugee Convention. One example of where this protection falls short is with regard to wage earning employment. The Refugee Convention provides that refugees must receive “the most favourable treatment accorded to nationals of a foreign country”, but Turkish law requires a six month period following the lodging of an asylum claim before a refugee can apply for a work permit even if determined to be a refugee before that point – a restriction that does not apply to all foreigners present in Turkey.

Far more restrictive conditions are placed on Syrians under the temporary protection regime with regard to wage earning employment. In addition to the protection standard iterated above, the Refugee Convention provides that after three years in the country, “restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied [to refugees]”. Under the temporary protection regime for Syrians, work permits must be applied for by a prospective employer and will be valid only with regard to a particular workplace, requiring a new application every time the place of employment changes. Further, the number of foreigners under temporary protection employed in a given workplace cannot be more than 10 per cent of Turkish citizens employed in the same workplace. These restrictions do not apply to other foreigners in Turkey, and do not expire after three years.

A comprehensive analysis of Turkish asylum law as against the Refugee Convention will be necessary to fully determine all potential shortcomings of Turkish law, but there appear to be other such instances. For example, with regard to freedom of movement, the Refugee Convention provides that refugees shall be accorded “the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.” However, the Temporary Protection Regulation provides that Syrians “shall be obligated to … reside in a province, temporary accommodation center or a certain place determined by the Directorate General”. According to the Asylum Information Database (AIDA):

“On 29 August 2015, a DGMM written instruction signed by the Minister of Interior was circulated to the Governorates across Turkey, specifically ordering the institution of a range of measures by provincial authorities to control and prevent the movement of Syrians inside Turkey. […] Its existence became known when security agencies particularly in the southern provinces began to act on this instruction and started intercepting Syrians seeking to travel to western regions of the country. It appears that the impetus behind this measure was to halt the growing irregular sea crossings of Syrian nationals to Greek islands along the Aegean coast. The instruction explicitly refers to the ongoing problems arising from the “movement of Syrians outside the provinces where they are registered””.

These restrictions do not apply to aliens generally, nor to non-European ‘conditional refugees’, nor to European refugees.

In addition to violating the specific rights listed, these provisions violate the Refugee Convention standard whereby the protections of the Convention shall be applied to all refugees without discrimination as to country of origin.

Protection Standards in Turkey in Practice

Additionally, asylum applicants in Greece may challenge their removal to Turkey on the basis that on arrival in Turkey they are, in reality, at risk of not receiving those protections that are required by the Refugee Convention, and potentially even those that are provided for by Turkish law. Of course, this will depend on an ability to show that there are grounds for believing this to be the case, but human rights organisations have expressed concern about the conditions in which refugees live in Turkey. Amnesty International has reported that through 2015:

“most refugees and asylum-seekers outside camps received little or no assistance and were not granted the right to work. In many cases they struggled to survive, getting by through exploitative and underpaid irregular work and the charity of neighbours. Asylum applications for non-Syrians were rarely processed in practice. […] In September, at least 200 refugees – mostly Syrian – attempting to travel irregularly to Greece were kept in incommunicado or even secret detention at various locations in Turkey.”

One matter of particular concern regarding treatment to which Syrian refugees and asylum seekers may be subjected in practice is the proposal for so-called ‘safe areas’ inside Syria. The EU-Turkey deal provides for the possibility of spaces inside Syria

“near the Turkish border which would allow for the local population and refugees to live in areas which will be more safe.”

An absolutely fundamental provision of international refugee law is the prohibition of non-refoulement, whereby refugees or asylum seekers may not be returned to a country where they face a real risk of persecution, or, under EU law, of ‘serious harm’. There is no way to know if these proposed Syrian so-called ‘safe areas’ will actually be or remain safe to the standards required by EU law. The possibility that refugees removed from EU territory may be further removed into such areas inside Syria raises significant concern that, despite the formal provisions of Turkish law prohibiting non-refoulement, there is in fact a real risk that this will happen. Further to this, Amnesty International last week released a report documenting numerous instances of Syrians being forcibly refouled from Turkey to Syria.

Syrian Refugees: 1 in, 1 out

The ‘1 in, 1 out’ agreement contained in the deal to resettle one Syrian refugee from Turkey in Europe for each Syrian returned to Turkey from Europe, up to a total of 72,000 refugees, makes no difference to the legal situation. It is unlawful to remove refugees to a country where they will not be fully protected, whatever happens in response.

Removal of Refugees and Asylum Seekers to Turkey Must be Considered Unlawful

Turkey is to be commended for providing some employment and other protections to over 2.7 million Syrian refugees on its territory, and for providing the possibility for others to apply for asylum. However, given that; Turkey has not ratified the Refugee Convention and its Protocol so as to apply to non-Europeans; Turkish asylum law does not meet the substantive protection standards set out in the Refugee Convention and under EU law; and refugees and asylum seekers removed to Turkey face in practice a real risk of being subjected to treatment or conditions falling far short of the protections required by the Refugee Convention and other provisions of EU and international law; it cannot be considered that refugees and asylum seekers removed from Greece to Turkey will “receive protection in accordance with the Geneva Convention” or will receive “sufficient protection” in that country. Combined with serious concern over the ability to apply the legally mandated procedural safeguards in Greece, any removals of refugees or asylum seekers to Turkey will be unlawful.

Europe’s Dismal Failure to Protect Refugees in Dire Need

To state that Turkey is not a safe country for the purposes of EU law is not an exercise in claiming that Turkey is worse than European countries in its treatment of refugees. Indeed, though much more still needs to be done, Turkey has made notable steps in the right direction in recent times. The absolute responsibility for protecting refugees present in EU countries lies with those very EU countries, many of which are woefully failing in this regard. In a recent study conducted by the Refugee Rights Data Project at the “Jungle” refugee camp in Calais, France, almost 75 per cent of respondents reported having experienced police violence whilst resident at the camp. Even if a proportion of this could be justified as some form of crowd control, it would appear to indicate the systemic ill treatment of those in need of international protection in Calais, in violation of the European Convention on Human Rights. One doctor who has worked with refugees and internally displaced people in Darfur, Myanmar, Uganda and Congo has recently stated that the conditions in Europe are the worst he has ever seen.

EU countries cannot absolve themselves of their responsibilities simply by shunting refugees and asylum seekers beyond EU borders. Any attempt to remove those in need of international protection without the proper safeguards or to remove them to a place where they are not guaranteed protection to the legally mandated standard will simply amount to further violation of the legal obligation to protect refugees. The only way that EU States can comply with their humanitarian obligations is to change their behaviour and directly protect refugees and asylum seekers on their territories. Given the numbers of people in need of protection at the current time, and though there is no explicit legal obligation to do so, in practice it would appear that the only way for EU States to effectively comply with their legal obligation to protect refugees is to cooperate so as to share this responsibility across the whole Union.

On the Karadžić Judgment

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!

My childhood had been filled with images of the atrocities committed in Bosnia: of men starving in the Omarska, Keraterm, and Trnopolje concentration camps;  of dead bodies and burned down villages; and of women and children arriving in Tuzla from Srebrenica telling stories of how thousands of the men and boys were executed thought to have been executedby Bosnian Serb troops. I also remember seeing countless images of Radovan Karadžić, President of Republika Srpska, Bosnia’s breakaway republic, and Supreme Commander of its armed forces, the VRS (Vojsks Republike Srpske) (often accompanied by Bosnian Serb General Ratko Mladić, aka ‘the butcher of Bosnia’). Seeing the same man before the judges at the International Criminal Tribunal for the former Yugoslavia (ICTY), having to answer for what happened under his watch, was a huge deal. Indeed, it has by some commentators have called it “the most important war crimes ruling in Europe since Nuremberg.”

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 17^th. 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.