Today, the ICTY issued its long awaited Judgment in the Mladic trial. Few commentators expected any surprises, especially, as I pointed out at the time, because Mladic was mentioned 1883 times in the Karadzic Judgment.
One issue that was being followed carefully, is whether the Chamber would make a finding of genocide in the Municipalities. This has been one of the most controversial question in the case law of the ICTY, because so far, no Trial Chamber has made a finding of genocide in Bosnia outside of Srebrenica. As noted by Marko Milanovic, “The possibility thus remains that the Mladic and Karadzic trial chambers will disagree on the existence of genocide outside Srebrenica; that possibility is relatively low, but it is not zero.”
Here is how the Chamber dealt with the issue (this is from the summary of the Judgment, the Judgment not being available yet at the time of writing):
The Chamber then examined the specific intent of the physical perpetrators. The Chamber found by majority, Judge Orie, dissenting, that the physical perpetrators in Sanski Most, Vlasenica, and Foča, and certain perpetrators in Kotor Varoš and Prijedor Municipalities intended to destroy the Bosnian Muslims in those Municipalities as a part of the protected group. The Chamber then considered whether the targeted part constituted a substantial part of the protected group, and concluded 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. Consequently, the Chamber was not satisfied that the only reasonable inference was that the physical perpetrators possessed the required intent to destroy a substantial part of the protected group of Bosnian Muslims.
3 comments can be made on this:
First of all, the outcome of the Chamber that there was no genocide in the Municipalities is consistent with the case law of the ICTY to date. This will of course continue to receive criticism from certain quarters. As I noted after the Karadzic Judgment: “There is now consistent case-law that there was no genocidal intent in the rest of Bosnia and I remain surprised at the criticism levelled at the ICTY on this point: clearly, ICTY Judges, who in the past have stretched the definitions of crimes, modes of liability and acceptable evidence beyond recognition to cast as wide a net as possible in the “fight against impunity”, can hardly be considered as genocide apologists and if they have not found evidence of genocidal intent in so many cases, it must mean something”.
Second of all, it seems that the reasoning of the majority of the Chamber actually departs from the Karadzic Judgment. There, the Chamber found that ” The Chamber is not satisfied, however, that there is evidence establishing, beyond reasonable doubt, that the perpetrators of these crimes possessed intent to destroy the Bosnian Muslim and/or Bosnian Croat groups in the Count 1 Municipalities as such” (Karadzic judgement, par. 2613). We now therefore have two different legal findings in the case law in relation to the intent of the direct perpetrators of the crimes committed in the Municipalities, a discrepancy that will need to be resolved on appeal, both in the Karadzic and Mladic cases.
Third of all, having found, by Majority, that the direct perpetrators did in fact have genocidal intent, the Chamber moved on to find that the intent did not relate to the destruction of a substantial part of the group. This finding re-opens the can of worms that was the definition of “substantial part of the group” in the Srebrenica cases and the ICTR. Indeed, how “substantial” must the part of the group destroyed be, and in relation to what overall group? Is the calculation of what is substantial based on the Muslims in these municipalities? The summary of the Judgment is not very clear on that, but it seems indeed to suggest that the protected group is “the Bosnian Muslims in those Municipalities”. In that case, it will have to be made clear in the Judgment how the facts differ from the Srebrenica scenario. Is the calculation based on the wider group of muslims in Bosnia? In this case, this would be at odds with the approach in relation to Srebrenica.
Whatever the approach, still remains open the question of how intent to commit genocide can be “split”, when it comes to the actions of a group over a given territory, that it controls, depending on the specific town or village involved. For me, there is either genocidal intent, or there isn’t…
As an aside, I’m curious to know how the Chamber came to the conclusion that life imprisonment was warranted, especially compared to the 40 years that Karadzic received. I’m not particularly impressed with the finding that “the crimes committed rank among the most heinous known to mankind”. Isn’t that the case for all crimes within the jurisdiction of the tribunal? More generally, I would expect the Judgment to be as imprecise and as unuseful as all other international judgments which provide dozens of pages of discussion on the criteria to be used in sentencing… before dishing out a lump sentence which usually comes out of nowhere… (see my thoughts on this in relation to the Taylor Judgment here)
On a concluding note, and because I like to be consistent, I remain irritated by claims that the Judgment is a “victory for justice“. As I’ve said in the past, if you have trust in the legitimacy of the legal system, any outcome should be considered a “victory for justice”, even if it is an acquittal…
Spreading the Jam 