November 22, 2017 marks another important day for justice, as the ICTY delivered its trial judgement for the Ratko Mladić case. Mladić was the commander of Bosnian Serb Army (VRS) during the 1992-1995 war in Bosnia and Herzegovina, and he was first indicted on July 25, 1995 – along with the first President of Republika Srpska, Radovan Karadžić – for genocide and other crimes perpetrated in Bosnia and Herzegovina. On November 16, 1995 a second indictment was issued against both Mladić and Karadžić, including the charges of genocide and other crimes in the area of Srebrenica. On October 10, 2002 a separate amended indictment was issued against Mladić, which was subsequently revisited three times after his arrest on May 26, 2011. The initial indictments charged Mladić with a total of 15 counts of genocide, war crimes, and crimes against humanity, while in the end he was indicted for two counts of genocide (in six municipalities and in Srebrenica), five counts of crimes against humanity (namely persecution, murder, extermination, deportation, and the inhumane act of forcible transfer) and four counts of violations of the laws or customs of war (namely murder, acts of violence the primary purposes of which was to spread terror among the civilian population, unlawful attacks on civilians, and the taking of hostages).[1] There was hardly any doubt about Mladić’s conviction and that he will spent the rest of his life in prison; the question was for which counts he would have been convicted for?

The majority of the aforementioned crimes have already been the subject of a number of ICTY’s cases, and after Karadžić’s trial judgment on May 24, 2016[2] I did not expect much new from this judgement. I am not surprised that Mladić was found guilty of all counts, except Count 1, as a member of various joint criminal enterprises, but I do remain sceptical about the ICTY’s verdict for Count 1: genocide in the six municipalities of Prijedor, Sanski Most, Foča, Ključ, Kotor Varoš, and Vlasenica, punishable under Articles 4(3)(a), and 7(1) and 7(3) of the ICTY Statute (hereafter, genocide in the six municipalities). If you are not familiar with the ICTY’s cases, you will be rightly wondering why being sceptical only for Count 1. My answer would be complicated if I go into details of the highly political ‘Bosnian Genocide’ decision by the International Court of Justice (ICJ) – which Marko Milanovic correctly characterises here as the ‘strangest’ case ‘pursued by a changing applicant against a changing respondent before a changing Court’ that became even more strange after the recent request for revision in 2017 – which is why in this contribution I focus only on what I call the Mladić-Karadžić ‘saga’ via ICTY’s Rule 98 bis.

Rule 98 bis of the ICTY’s Rules of Procedure and Evidence provides that at the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision, and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction. When it comes to the Karadžić case, at a hearing on June 28, 2012 the Trial Chamber acquitted Karadžić of the charge of genocide in the municipalities as there was ‘no evidence, even taken at its highest, which could be capable of supporting a conviction for genocide in the municipalities as charged under Article 4(3) of the Statute’.[3] The decision was subsequently reversed by the Appeals Chamber on July 11, 2013, which held that ‘the Trial Chamber received extensive indirect evidence from which a reasonable trier of fact could infer genocidal intent’, referring specifically to the sufficiency of evidence when assessed in conjunction with evidence regarding the scale and nature of the alleged genocidal and other culpable acts.[4] Nevertheless, in the trial judgement, the over-precautionary Tribunal held that there was no sufficient evidence to find beyond reasonable doubt that genocide was committed in these municipalities. They based their reasoning on the fact that although the actus reus requirements for genocide under the certain provisions of the Statute have been satisfied, there was not enough evidence to satisfy the required mens rea for genocide by the accused.[5]

In the Mladić’s case, the Defence argued – based on the dismissal of allegation of the crime of genocide in the municipalities by the ICJ in the Bosnian Genocide case and by the ICTY in the cases of Stakić, Sikirica, Krajišnik, and Brđanin – that the available evidences of criminal acts directed against Bosnian Muslims and Bosnian Croats in the municipalities, did not establish the necessary genocidal intent.[6] The Prosecution in turn submitted that the ICJ’s decision was not ‘was not relevant to the present proceedings’ due to the difference in legal standards and the body of evidences. With regard to the second point of the Defence, it was counter-argued that ‘the genocide count for the municipalities has been upheld, whether by Trial Chambers or by the Appeals Chamber following an appeal’.[7] Although both parties presented reasonable arguments, the Appeals Chamber on April 14, 2014 held that Count 1 was still standing as there was evidence that acts of genocide took place in the municipalities, and the evidence also provided information on the perpetrators’ genocidal intent.[8] A decision which did not survive through the trial judgement of Mladić,[9] who as we said was not found guilty of genocide in the municipalities. The Tribunal held that ‘the Bosnian Muslims targeted in each municipality formed a relatively small part of the protected group and were also in other ways not a substantial part’, in order to conclude that the physical perpetrators of the actus reus possessed also the required intent to destroy a substantial part of the protected group of Bosnian Muslims.[10]

Although both trial judgments of Mladić and Karadžić concluded that there was not enough evidence to establish the necessary mens rea for genocide in the municipalities, it will be interesting to see whether the Appeals Chamber of the United Nations Mechanism for International Criminal Tribunals (MICT) – which handles any remaining proceedings after the closing of the ICTY at the end of this year – will reach a similar conclusion and consider the relevant acts in the municipalities as war crimes or crimes against humanity, instead of genocide, or whether the MICT will revisit the whole thing. Milanovic argues here that he sees ‘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’. Although I can understand where his argument comes from, I do have to disagree. Genocide, although an arbitrary concept, is a very powerful one and when it falls in the ‘mouth’ of wrong people it can be easily manipulated for political reasons. This argument does not intend to undermined the significance and relevance of the other crimes; indeed the opposite is the case. However, one needs to keep in mind that genocide does not seem to be a ‘common’ crime nowadays, or at least it is not commonly ‘labelled’ as such anymore. My argument might be influenced from my dual background (Greek/Armenian) and the significance both communities have put on recognising the Greek and Armenian genocides by the then Ottoman Empire respectively; but I do believe that if the ICTY put an end to the manipulation of ‘genocide’, then we might experience a greater embracement of the transitional justice in the Balkans. However, in order to do so, the ICTY needs to be seen as the ‘justice’ in the transition, which is another problematic aspect of the general legacy of the ICTY in the Balkans which will be discussed in a later contribution.

                                                                                                                                                                                   

[1] For more details see the Fourth Amended Indictment of 16 Dec 2011, available at: http://www.icty.org/case/mladic/4#ind

[2] For a summary of the 2615 pages of judgement see here: 160324_judgement_summary.pdf

[3] Rule 98 bis Trail Judgement summary in the case of Radovan Karadžic (28 June 2012).

[4] Rule 98 bis Appeals Judgement summary in the case of Radovan Karadžic (11 July 2013), p. 4.

[5] Trial Judgement Summary for Radovan Karadžić (24 March 2016), p. 3-4.

[6] Rule 98 bis Judgement summary in the case of Ratko Mladić (14 April 2014), p.2

[7] Rule 98 bis Judgement summary in the case of Ratko Mladić (15 April 2014), p.17.

[8] Rule 98 bis Judgement summary in the case of Ratko Mladić (15 April 2014)), p. 24.

[9] Trial Judgement Summary for Ratko Mladić (22 November 2017).

[10] Trial Judgement Summary for Ratko Mladić (22 November 2017), p. 3.

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