Yesterday, the Trial Chamber of the International Criminal Tribunal for Yugoslavia convicted Radovan Karadzic, former leader of the Bosnian Serbs during the 1990’s, of numerous crimes committed during the conflict. Karadzic received a 40-year sentence; because he is 70 years old, the sentence essentially amounts to life imprisonment (unless he is released on compassionate grounds at some future point in time, but in all likelihood, even if that were to happen, he will be in his late 80’s or early 90’s by then). The trial verdict is over 2,000 pages long and is available here. A shorter summary of the verdict is available here, and an excellent analysis of the verdict by Marko Milanovic on EjilTalk! is available here.
This post will highlight some of the most interesting points from the Karadzic verdict. While the fact that Karadzic was found guilty is not surprising to anyone in the academic community, a few more nuanced points from the verdict are worthy of interest. First, Karadzic had been charged with several counts of genocide, one of which (count 1) was for genocide committed against different municipalities in Bosnia. Karadzic was acquitted of that charge. While the acquittal in this context should not mean much – because even if he did not commit genocide in the legal sense, Karadzic still committed other numerous crimes, such as crimes against humanity, war crimes, etc., which are equally reprehensible – the acquittal on the genocide charge may be interpreted by some (Serb nationalists, in particular) as a legitimization of Republika Srpska and of some of its heinous policies. Marko Milanovic has already made this point, and I simply repeat and emphasize it here. What I would add though is that the Karadzic case can serve as guidance to future international criminal tribunals’ prosecutors in the following sense: the crime of genocide is notoriously difficult to prove, and prosecutors would be much better off, in many cases, if they charge defendants with crimes against humanity and win “easy” convictions. An acquittal on the charge of genocide can be much more harmful to the affected region and can contribute toward fueling nationalistic tensions and hatred. Trying to win a genocide conviction simply because of the symbolic value that this type of conviction and “label” may carry is not worth the risk of acquittal on the same charge, especially in places like Bosnia where resentments still linger and where true reconciliation may be decades away.
Second, the Karadzic case is interesting because of the genocide conviction on a separate count – Karadzic was actually convicted of genocide because of his role in the Srebrenica massacre. The trial chamber held that Karadzic was a participant of a joint criminal enterprise “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.” (para 5741). The trial chamber then established that Karadzic had the requisite intent to commit genocide at Srebrenica, as a participant in the said joint criminal enterprise, based on conversations which Karadzic had with Miroslav Deronjic, an official appointed earlier as a civil administrator of Srebrenica. From these conversations, the trial chamber infers that Karadzic both knew that the massacre was about to happen, and had the intent for it to occur. The relevant language, which Marko Milanovic quoted in his post already, and which I choose to reproduce here, because of its legal significance is as follows:
“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.”
This is significant for the purposes of defining the requisite mens rea for genocide. Genocide is notoriously difficult to prove because a defendant must have the highest mens rea, intent, to kill or harm in other ways members of protected groups, because of their membership in such groups. Here, the trial chamber seems willing to infer such intent, presumable because Karadzic knew that the massacre was about to be committed but did nothing to stop it, and because, according to the trial chamber, he must have shared the genocidal intent with other participants of this joint criminal enterprise. If one accepts the idea that one of the most fundamental goals of international criminal justice is to secure the highest level of convictions against those who commit atrocities, and that the most significant conviction is that of genocide, then one would support the argument that the definition of genocide should be interpreted more loosely, to allow for inferences of this sort. If one thinks, on the other hand, that rule of law is the most important thing and that legal definitions should be interpreted strictly, then one may take issue with the trial chamber’s liberal approach in finding a genocidal intent based on inferences.
What is almost certain is that the Karadzic team will appeal the verdict on some of these grounds and will hope for a partial reversal and a reduction of the sentence. What is also certain is that Karadzic participated in the commission of some of the worst atrocities in Bosnia and that his conviction in general is a victory for international criminal justice.