March 25, 2016

Yesterday the ICTY Trial Chamber convicted Radovan Karadzic, the wartime political leader of the Bosnian Serbs, for numerous crimes committed during the conflict and sentenced him to 40 years imprisonment. The (mammoth) trial judgment is here, standing at 2615 pages that not even Karadzic’s lawyers will read as a whole; the more accessible summary is here.

The end result is basically as I predicted it will be a couple of days ago – Karadzic got acquitted for genocide in Bosnian municipalities other than Srebrenica, and got convicted for everything else, including the Srebrenica genocide. The sentence is effectively life; he could be eligible for provisional release after serving 2/3 of his sentence, which would (counting the 7 years and 8 months he already spent in detention) mean he would have to spend some 19 more years in prison – but if he lives into his nineties he may get provisionally released, assuming of course that the sentence is affirmed on appeal and that he does not eventually get released on compassionate grounds.

On the vast majority of issues the Trial Chamber was unanimous (I’ll come to points of dissent later on), and that is a very good thing. All in all the judgment is basically exactly what it should have been, although the political reactions in the region are also exactly what one might have expected – while many Bosniaks welcomed the conviction they also decried the acquittal for genocide outside Srebrenica, whereas the current Bosnian Serb president has decried the judgment as yet another example of the ICTY’s anti-Serb bias. So far so predictable. That said, I will spend the remainder of this post on looking at some of the more interesting parts of the judgment, based on a very quick skim read.

First, note that the case structurally had four parts: the crimes in a number of Bosnian municipalities; the siege of Sarajevo; the taking of UN hostages; and the Srebrenica massacre. Most of these crimes have already been the subject of ICTY cases, some more than one. The Karadzic judgment thus inevitably does not bring much new when it comes to the crimes themselves – but there are some exceptions to that.

Second, in that regard, the main thing here is the acquittal for genocide on count 1, in the municipalities component of the case. I’ve already discussed before the specific power of that word and its role in the vicious cycle of competitive victimhood in the Balkans, so I won’t belabour that point here. Bearing in mind the arbitrariness of the definition of genocide, itself a product of political compromise, I see no moral difference between labelling any given crime as genocide or as a ‘mere’ crime against humanity. In other words, the crimes in the municipalities are no less bad simply because they do not satisfy the legal criteria for genocide; their victims are no less dead, and their perpetrators no less culpable. That said, the acquittal will now inevitably be used in the nationalist politics of the Balkans, with Serbs saying, for example, that it confirms that the Republika Srpska was not a ‘genocidal creation’ and that its continued existence is therefore legitimate.

In the judgment the Trial Chamber (like the International Court of Justice before it) found that the crimes in the municipalities satisfy the actus reus of genocide, but that the specific mens rea was not proven beyond a reasonable doubt. For example, the Chamber thought that genocidal intent could not inferred from the speeches, statements and actions of Karadzic and other members of the joint criminal enterprise (para. 2605), or from the overall pattern of the crimes (para. 2625). These findings will inevitably be used by Ratko Mladic in his defence before the Tribunal, and they are also very likely to be appealed by the Prosecution. Bearing in mind the Trial Chamber’s discussion (which is replete with references to Mladic), it will be difficult for the Mladic Trial Chamber to disagree with the Karadzic Trial Chamber and say that genocide in the municipalities was proven beyond a reasonable doubt. It will be similarly difficult for the Mechanism Appeals Chamber to overturn the Karadzic Trial Chamber’s finding, because the Trial Chamber is due deference on its factual determinations, which should be overruled only if no reasonable trier of fact could have reached that conclusion. Difficult – but not impossible.

Third, when it comes to the siege of Sarajevo the Trial Chamber confirmed the overall picture of the terrorization of the civilian population as established in the ICTY’s previous cases, such as Galic. There is however one politically very big issue here – the two shellings of the Markale marketplace in Sarajevo, on 5 February 1994 and 28 August 1995, in which dozens of people were killed and injured. The standard Bosniak narrative is that the marketplace was deliberately shelled by the Bosnian Serb army to terrorize the civilian population; the standard Serb narrative is that the shellings were done by the Bosniaks themselves in order to demonize the Serbs and provoke an international military response (which the latter one did). The Trial Chamber found (starting at p. 1662) that both incidents were perpetrated by Bosnian Serbs. However, Judge Baird dissented (p. 2542 et seq.) with respect to the 5 February 1994 incident, finding that there was reasonable doubt that the Bosnian Serbs did not commit the attack. Clearly this opens the door for Karadzic to appeal (rightly or wrongly), but even more importantly the division in the Trial Chamber reinforces the divided realities lived by the different communities in Bosnia as well.

Fourth, the hostages component of the case is I think more specific to the Karadzic and Mladic cases than in any of the ICTY’s prior judgments. The Chamber discusses the elements of the crime of hostage-taking (paras. 467-468), and also finds that the UN peacekeepers were entitled to the protections of Common Article 3 and that the prohibition against belligerent reprisals against protected persons is absolute under conventional and customary international humanitarian law (para. 5949).

Fifth, when it comes to Srebrenica the most striking (and also unanimous) finding of the Trial Chamber is that Karadzic had specific genocidal intent. How did the Chamber reach this finding? On reading the judgment it becomes clear that the Prosecution was not able to provide ‘smoking gun’ evidence that Karadzic knew about the killings in Srebrenica as they were taking place; the Prosecution’s case was essentially circumstantial, requiring the Chamber the draw inferences from indirect evidence, which is what it did.

The Trial Chamber first extensively discussed the evolution of the common plan to eliminate the Bosnian Muslims from Srebrenica, which eventually grew to encompass the agreement to kill all Bosniak adult males while forcibly transferring the women and children, concluding that:

5736. The Chamber is of the view that by designing and conducting a simultaneous operation to kill the Bosnian Muslim men and boys of Srebrenica while the forcible removal of the women, children, and elderly men was ongoing, the common purpose of the plan to eliminate the Bosnian Muslims in Srebrenica was expanded so as to include the killing of all the men and boys, and multiple members of the plan agreed to it. The Chamber was presented with abundant evidence that establishes that, like the forcible removal operation, the killing operation involved an intricate and co-ordinated effort at all echelons of the VRS and MUP, including high-ranking officers, as well as a variety of units across the MUP and the VRS, with the assistance of municipal authorities. In particular, the Chamber is satisfied that the wide scale of the killings that were carried out over a short period necessitated an elaborate operation organised and directed at all times by multiple levels of the VRS security branch, particularly Beara and Popović. The Chamber also finds that the complex operation by which the Bosnian Muslim men and boys of Srebrenica were killed would not have been possible without the authorisation and orders of the VRS Commander, Mladić. Given Mladić’s role and function at the time, his presence on the ground after the fall of Srebrenica, and his actions during the days following the take-over and while the execution of the operation to kill was underway, the Chamber is satisfied that Mladić formed an essential part of this operation.

The Chamber thus established that (para. 5741): “the members of the Srebrenica JCE who agreed to the expansion of means so as to encompass the killing of the men and boys intended to kill all the able-bodied Bosnian Muslim males, which intent in the circumstances is tantamount to the intent to destroy the Bosnian Muslims in Srebrenica.”

Having thus defined the scope of the Srebrenica JCE, the Trial Chamber proceeded to find that Karadzic was a participant in that JCE, sharing its common purpose. The reasoning about Karadzic’s participation in the JCE starts at para. 5798 of the judgment, and the most important item of evidence concerns a conversation Karadzic had with Miroslav Deronjic, an official whom he had earlier appointed as the civilian administrator of Srebrenica – the key paragraph here is 5805:

5805. Finally, the Chamber recalls that, at approximately 8 p.m. on 13 July, Deronjić and the Accused spoke through an intermediary about the fate of the thousands of Bosnian Muslim male detainees then being held on buses and in detention facilities in Bratunac town. The Accused claims that no inference can be drawn from the conversation on 13 July with Deronjić that the Accused knew of any plan to kill the detainees from Srebrenica, or that the detainees had been, were being, or would be executed. The Chamber notes that, despite the fact that Deronjić and the Accused did not explicitly mention the killing of detainees during the conversation, they spoke in code, referring to the detainees as “goods” which had to be placed “inside the warehouses before twelve tomorrow”. The Accused further specified, “not in the warehouses /?over there/, but somewhere else”, which the Chamber has already interpreted as a direction to move the detainees to Zvornik. The Chamber recalls that, earlier that evening, Deronjić had complained to Beara about the detainees’ presence in Bratunac, and that upon encountering Deronjić in Bratunac town, Davidović had urged him to use his connections to the Accused to have the buses moved. Moreover, the Chamber recalls that immediately after this conversation, Beara and Deronjić discussed where—not whether—the detainees were to be killed. It is therefore clear that at the time of Beara and Deronjić’s conversation, a decision had already been made to kill the detainees, and Deronjić invoked the Accused’s authority to convince Beara to accede to their movement to Zvornik. In the Chamber’s view, the use of code to refer to the detainees, as well as the direction to move them toward Zvornik, demonstrates the malign intent behind the conversation. The Chamber finds that this conversation, in addition to the Accused’s subsequent acts as described further below, demonstrate beyond reasonable doubt the Accused’s agreement to the expansion of the objective to encompass the killing of the Bosnian Muslim males.

The subsequent acts of the accused referred to by the Chamber include his continued seeking of information about what was happening in Srebrenica through various channels (para. 5805, 5809, see also paras. 5767, 5769, 5777, 5781-5783), and a meeting with Deronjic on 14 July (emphasis mine):

5807. The Chamber recalls that earlier on 14 July, the Accused had met with Deronjić alone between 12:40 p.m. and 1:10 p.m.; both later met together with a larger delegation from Srebrenica for about four hours. The Prosecution claims that the only reasonable inference is that Deronjić travelled to Pale in advance in order to meet with the Accused in private, report on significant events relating to the killing aspect of the plan to eliminate, and receive further instructions; thus, during their initial meeting, the Accused and Deronjić must have discussed the murder and burial operations then in progress in the Bratunac and Zvornik areas and, more specifically, Deronjić must have reported on the implementation of the Accused’s order to transport the detainees from Bratunac to Zvornik by midday that day. The Accused acknowledges that he met alone in his office with Deronjić on 14 July; he also acknowledges the evidence that, by the time of this meeting, Deronjić was aware of the killings at the Kravica Warehouse on 13 and 14 July, and that the latter had participated in discussions to bury the bodies of detainees who had been killed. However, the Accused argues that it is “reasonably possible” that Deronjić did not inform the Accused of what he knew, suggesting that “there were more pressing issues concerning [the] administrative organisation of Srebrenica” for the two to have discussed, that the Kravica Warehouse killings required no action of the Accused, and that Deronjić would not have wanted to tell the Accused that a negative incident had occurred on his watch.

5808. In relation to the content of the conversation between Deronjić and the Accused prior to their meeting with the larger group, the Chamber notes that it has no direct evidence thereof. However, it received evidence that, during the second meeting, Deronjić reported on the situation in Srebrenica. As stated above, the Chamber is satisfied that Deronjić had been aware of the killings at the Kravica Warehouse since the evening of 13 July. More importantly, the Chamber recalls the conversation between the Accused and Deronjić the night before in which the Accused ordered the transfer of the detainees from Bratunac to Zvornik. The Chamber also recalls Deronjić’s participation in the efforts to bury the bodies of those killed at the Kravica Warehouse, starting in the early hours of 14 July. The Chamber also received evidence that the Accused and Deronjić had frequent communications, either by telephone or in person, during the Srebrenica operation. According to officials from Bratunac municipality, in his official capacity as civilian commissioner of Srebrenica, Deronjić should have reported about the killings at the Kravica Warehouse to the Accused. More specifically, Simić testified that Deronjić told him that he had informed the Accused about the events at the Kravica Warehouse the day after the incident. The Chamber received evidence that there was no mention or discussion about the executions of detainees in Srebrenica during the meeting with the Srebrenica representatives. Nevertheless, the Chamber has no doubt that during the individual meeting between Deronjić and the Accused, they both discussed the killings at the Kravica Warehouse, and the implementation of the Accused’s order to transport the detainees from Bratunac to Zvornik by midday that day.

The conversations with Deronjic were absolutely pivotal evidence – they allowed the Chamber to infer that Karadzic knew about the killings in Srebrenica as they took place. Note, however, that the Chamber itself drew inferences about the content of these conversations, about which it had little direct evidence. There’s however a further step in moving from knowledge to intent to kill the Muslim men and boys:

5811. The Chamber also finds that the Accused adopted and embraced the expansion of the plan to entail the killing the Bosnian Muslim men and boys in Srebrenica during his conversation with Deronjić on the evening of 13 July. Given the Accused’s position as RS President and Supreme Commander, as well as the evidence demonstrating the continuous flow of information he was seeking and receiving from the ground from many different sources the Chamber considers that the Accused must have known about the killing aspect of the plan to eliminate at some point prior to his conversation with Deronjić in the evening of 13 July. However, the Chamber can only make a positive determination as to the Accused’s agreement to the expansion of the means so as to encompass the killing of the men and boys as of the moment of the conversation with Deronjić. The Accused’s shared intent is reaffirmed by the fact that, from the moment he directed Deronjić to move the detainees to Zvornik the Accused became, and subsequently continued to be, actively involved in overseeing the implementation of the plan to eliminate the Bosnian Muslims in Srebrenica by killing the men and boys.

What was this active involvement? First, the dissemination of false information about what happened in Srebrenica (para. 5812), which in the Chamber’s view showed that “the Accused intended to shield the true actions of the Bosnian Serb Forces from international attention and intervention.” Second, the fact that not only did Karadzic take no real action to prosecute the direct perpetrators of the massacre, but that he praised and rewarded them (para. 5813). This allowed the Chamber to make the following conclusion about Karadzic’s genocidal intent:

5829. […] in the Chamber’s view, there is no doubt that the Accused knew that the thousands of Bosnian Muslim male detainees being held by the Bosnian Serb Forces in the Srebrenica area constituted a very significant percentage of the Bosnian Muslim males from Srebrenica.

5830. The Chamber therefore takes particular note of the fact that, despite his contemporaneous knowledge of its progress as set out above, the Accused agreed with and therefore did not intervene to halt or hinder the killing aspect of the plan to eliminate between the evening of 13 July and 17 July. Instead, he ordered that the detainees be moved to Zvornik, where they were killed. Moreover, once Pandurević reported on 16 July that he had opened a corridor to allow members of the column who had not yet been captured or surrendered to pass through, Karišik was promptly sent to investigate and the corridor was closed within a day. Finally, the Chamber recalls that although he touted the opening of the corridor when speaking to the international press, in a closed session of the Bosnian Serb Assembly held weeks later, the Accused expressed regret that the Bosnian Muslim males had managed to pass through Bosnian Serb lines. Accordingly, the Chamber considers that the only reasonable inference available on such evidence is that the Accused shared with Mladić, Beara, and Popović the intent that every able-bodied Bosnian Muslim male from Srebrenica be killed, which, in the Chamber’s view, amounts to the intent to destroy the Bosnian Muslims in Srebrenica.

What are we to make of the Chamber’s analysis? It is is clear that had it not been for the phone conversation and subsequent meeting with Deronjic, Karadzic could not have been convicted as a participant in the genocidal JCE. The whole reasoning rests on what inferences can be drawn from Karadzic’s contacts with Deronjic. And while it’s clear to me that a reasonable inference is that Karadzic was informed about the killings, it’s not as clear that this is the ONLY such reasonable inference, which is what they beyond a reasonable doubt evidentiary standard requires. For example, the phone conversation with Deronjic could be interpreted as Karadzic’s agreement with the forcible removal of the Bosniak males, but not necessarily with their extermination.

I’m sure that Karadzic will focus most of his energies on appeal on this particular point, and we shall see what the Appeals Chamber will do. But in any event the Trial Chamber also quite sensibly entered a conviction on the basis of superior responsibility (para. 5833 et seq.) Even if on appeal Karadzic’s contemporaneous knowledge of the killings can’t be inferred beyond a reasonable doubt, he clearly had reason to know that the killings took place, and did nothing to punish the perpetrators. At the very least, therefore, the Mechanism Appeals Chamber will affirm his conviction on this basis (but perhaps reducing his sentence somewhat), even if it does not find him to have been a participant in the genocidal JCE.

Lastly, when discussing sentencing the Trial Chamber quite deftly dealt with the alleged agreement Karadzic had with the US emissary Richard Holbrooke that he would not be prosecuted before the ICTY if he left his political posts. Without going into whether the alleged (oral) agreement actually existed, the Chamber simply said that it’s not relevant why Karadzic relinquished his post as president, but the fact that he did so since “his decision had a positive influence on the establishment of peace and stability in BiH and the region in the wake of the Dayton Agreement,” and should accordingly be taken into mitigation (para. 6057).

The appellate proceedings before the Mechanism will take a year or two; it’s clear that responsibility for genocide will be the key issue on the appeal. The Prosecution will try to reverse the finding that there was no genocide in the municipalities, while Karadzic will focus on his conviction for Srebrenica. Karadzic will also raise the Markale shelling, and will also inevitably raise the numerous disclosure violations by the Prosecution (most if not all of which were unintentional) to argue that his trial was not fair, but he would have to show that the Trial Chamber somehow failed to meaningfully remedy these violations and caused his case real prejudice, which does not seem likely. We shall see what will ultimately happen, but again there’s no doubt that Karadzic’s conviction will largely be upheld – and there is similarly no doubt that yesterday was a good day for international criminal justice.

Dr Marko Milanovic, Unversity of Nottingham




Fields with * are required.