Category Archives: karadzic

6 Quick Thoughts on the Karadzic Judgment

Today, the ICTY issued its long awaited Judgment in the Karadzic case. Given its length, over 2500 pages, this post can obviously not provide any comprehensive analysis of the Judgment. I do however want to share 6 quick initial and general thoughts :

  • As noted, the Judgment is very long. This might seem a little shocking at first, but given the length of the trial, the huge body of evidence adduced from the trial and the crimes covered, its length can be understandable. Which does not mean that this is not problematic. There has to be something wrong with a system, from the OTP charging strategy, to the case management by the Judges, for such a Judgment to be rendered. Nobody is going to read 2500 pages and questions can certainly be asked about the pedagogic effect of international judgments.
  • Which brings me to my second point: the fundamental question of the usefulness of international judgments generally. Indeed, following the build-up to the delivery of the Judgment in the general media, it was obvious that Karadzic was already considered to be guilty. All that everybody expected was a formal confirmation of their view that this was indeed the case and nobody would have accepted an acquittal (as shown by initial reactions to the acquittal of Karadzic on one count of genocide, or the “inadequate” 40 year prison sentence). This means that in fact, there is an expectation of conviction and the idea that an acquittal is not an option. This shows in fact very little respect for the criminal law process, based on the presumption of innocence.
  • Rather unsurprisingly, the Chamber acquitted Karadzic for the Count of Genocide in relation to the Municipalities. This is unsurprising because the Chamber had already dismissed this Count under Rule 98(bis), before being overturned by the Appeals Chamber. There is now consistent case-law that there was no genocidal intent in the rest of Bosnia and I remain surprised at the criticism leveled 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.
  • I look forward to the Appeals process. Given the fact that Appeals Chamber has already decided that there is sufficient evidence of genocidal intent for the Municipalities Count when overturning the 98bis decision, it is easy to guess that the OTP will appeal that acquittal. Also, there seem to have been countless disclosure violations by the Prosecution (108 (!)motions were filed by Karadzic to that effect, a lot of them successful). Peter Robinson, Karadzic’s legal advisor, has been documenting them on his twitter feed. One tweet, posted on the eve of the Judgment, if true, certainly raises question about the fairness of the process:
  • As an aside to the delivery of the Judgment, the ICTY sealed a solid victory in its fight against impunity, by getting the Dutch authorities to arrest Florence Hartmann (images of her arrest here), a French journalist who was fined 7000 euro for publishing information in a book on the content of confidential decisions of the ICTY (images of her arrest here). The fine was later commuted to a 7-day prison sentence. This is rather ridiculous, and I’m sure that the ICTY has better things to do that this… or maybe not.
  • And a final fun fact: a search for “Mladic” in the Judgment comes up with 1883 hits… Anybody care to take bets on the outcome of that trial?



Chutzpah at the ICTY: OTP motion to severe Mladic Indictment

I have been offline for a while now, too busy in the “real world” to blog on some of the issues that came up in recent months.

However, I couldn’t really resist commenting on this piece of news: the ICTY Prosecutor filed a motion yesterday requesting a severance of the Mladic indictment to do two separate trials. This is the OTP’s overview of its own motion:

1. The Prosecution seeks leave to: (a) sever the Second Amended Indictment (“Indictment”) against Ratko Mladic into two indictments (“Srebrenica” and “Sarajevo, Municipalities and Hostages”); (b) have the Srebrenica indictment tried first, followed by the Sarajevo, Municipalities and Hostages indictment […]

2. The Prosecution has considered several options for proceeding against Mladic. Factors which have been taken into account include Mladic’s arrest at this late stage of the Tribunal’s mandate, the need to ensure justice for the victims, the desirability of commencing a trial as soon as possible, and the need to plan for the contingency that Mladic’s health could deteriorate. In the circumstances, severance of the Indictment and conducting two focused trials will best serve the interests of justice. 

3. Such an approach will maximise the prospect of justice for the victims, enable more effective management of the two separate trials and best allow the proceedings to be adapted in case of unforeseen contingencies. It is also consistent with the Rules of Procedure and Evidence (“Rules”) and will not unfairly prejudice the Accused’s rights.

Several brief thoughts :

1) On the substance of the indictments, the Prosecutor justifies the possibility of a severance by basically saying that there was no overarching Joint Criminal Entreprise (JCE) in Bosnia, contrary to what he had argued in the amended indictment of last June (§5):

Radovan KARADZIC and,  as of  12  May  1992,  Ratko  MLADIC,  were  key  members  of  an  overarching joint criminal  enterprise  which  lasted  from  at  least  October  1991  until  30 November  1995.  Their  objective  was  the  permanent  removal  of  Bosnian Muslims  and  Bosnian  Croats  from  Bosnian  Serb-claimed territory  in  BiH through crimes charged in this indictment.

The story now is that the JCE to eliminate the Bosnian Muslims in Srebrenica is unrelated (or in the words of the Prosecutor “not part of” and “not a foreseeable consequence of”) to the JCE to permanently remove all Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory. This basically looks like confirmation from the prosecutor that Srebrenica was a one-off genocidal event… or is it? because there are also counts of genocide under the proposed Municipalities indictment. So if I understand correctly, there is genocidal intent in both cases, but they are unrelated… I find that a little confusing. As Professor Schabas was quoted saying in a recent Economist article: “either there was a general bid to exterminate or there was not” and severing the two seems extremely artificial.

2) I won’t really comment on the practical justifications given by the prosecutor to hold two trials instead of one (interests of justice, interests of victims, manageability…). One can only wonder why, if these issues are so important, this has not been the practice in the past? I was under the impression that the ICTY was always acting in the interests of justice and of the victims, and that the efficient administration of justice was a permanent key consideration for the Court. But I must have been mistaken.

3) What puzzles me the most is the Procedure and timing of the motion. As the Prosecutor’s immediate recourse to “inherent powers doctrine” shows (§21 of the motion), there is no actual textual basis for the severance in the founding documents. I generally don’t like the use of this shaky doctrine by international criminal tribunals, but let’s play along for the sake of argument.
The real issue is timing. I find that this motion shows the  chutzpah of the Prosecutor, and ultimately of the ICTY, should the severance be accepted. Indeed, let’s look at the timeline for a second. The first indictment against Mladic was filed some 15 years ago.The Prosecutor, filed an revised indictment in May 2010, which was only approved nearly a year on in May 2011, so that gave him time to reconsider his approach. More importantly, Mladic was rushed through the initial appearance (with the playing-to-the-media-i’m-reading-ALL-the-charges show from Judge Orie)  and the ridiculously hasty pleading proceedings (with the removal of Mladic from the courtroom at his own request), his request for additional time to read and understand the charges having been denied. Everything was rushed along, probably in the “interests of justice”. And now, the Prosecutor suddenly decides to change his mind and hold 2 trials, because of these same “interests of justice”? Whatever the practical merits of that solution, I find the Prosecutor’s conduct quite careless, especially in light of the ICTY’s attitude towards Mladic, which seems to indicate that a Court having conducted dozens of trials is suddenly having first date jitters when it comes to this defendant.

4) On a final and related note, I’m still in favour, at least in theory, of joining the Karadzic and Mladic trials, especially if Srebrenica is tried separately. On top, from what I understood, the Karadzic Chamber has not even started hearing evidence on Srebrenica (someone correct me if I’m wrong). As I’ve said elsewhere, these this is essentially the same case, from a narrative point of view. If the “interests of justice” are so important, then I believe both cases should indeed be joined.

The ICTY prepares for Mladic

As the procedure for Mladic’s extradition continues in Serbia and questions of his fitness for trial arise, the ICTY awaits his arrival eagerly.

First of all, the judges for the Trial Chamber have been assigned. Among them is Dutch Judge Alphonse Orie, which is interesting, given the Netherlands’ ambiguous role in Srebrenica. It is also ironic that a Dutch judge will be a part of accountability for what happened there, given that the a Dutch court decided in 2008 that the Netherlands were not responsible for what happened because they were under UN command, and that the UN itself could not be sued before a national court because of its immunity, thus removing all means of reparations for victims.

Second of all, the Court granted the Prosecutor’s request to amend the Mladic indictment, which he had filed… over a year ago! One could of course cynically think that the imminent arrival of Mladic explains the sudden interest for a request which has likely been buried in the “to do” box for a year… But the professionalism that defines the work of the ICTY should guard us from such cynicism and the delay probably only means that the judge has been extremely thorough in reviewing the request and its accompanying documents.

Third of all, as predicted in my previous post, Karadzic’s counsel has raised the issue of the effect of Mladic’s arrest on the Karadzic trial, and the question of whether a suspension and joinder might be an option.

Follow-up on French Karadzic Decision

In support of my argumentation on the role of the interaction between French civil courts and the ICTY, and the suggested idea that French civil courts should suspend their decision under a verdict is achieved, I have come across rule 106 of the ICTY RPE on the compensation for victims:

(A) The Registrar shall transmit to the competent authorities of the States concerned the judgement finding the accused guilty  of a crime which has caused injury to a victim.
(B) Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation.
(C) For the purposes of a claim made under paragraph (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.

This Rule, particularly paragraph (C) supports the claim that there is a functional link between the ICTY and national courts, not merely a factual one. One could of course wonder whether the judges in the RPE, in the absence of any explicit statutory provision on compensation for victims, or the effect of ICTY judgments in national legal orders, can actually be deemed to have adopted this rule ultra vires. However, the Rule indirectly finds support in the non bis in idem provision of the Statute (article 10), which provides that

No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 

One can therefore argue, as I did in my previous post, that, to the extent that ICTY judgments are deemed to have a clear legal effect in national systems, i.e, be just as binding as a national criminal judgment would be, ongoing international criminal proceedings can have the corresponding same effect than national criminal proceedings, i.e. suspend civil proceedings until the conclusion of the trial, especially given the impossibility of concurrent French criminal proceedings.

This certainly raises interesting questions on the interactions between legal orders, the international and the national one, and more importantly the porosity between the two. Any comments are as usual welcome.

[UPDATE: One member of Karadzic’s legal team has reacted (unsurprisingly) to reject the French decision. He considers that the decision is “illegal” because, just to cover all angles, 1) there is no guilty verdict by the ICTY, 2) anyway there is no link between what he is tried for and what  the facts considered by the French Court and 3) that the Court has no jurisdiction to decide whether a defendant is guilty of war crimes. I hope he is more efficient in his defense of Karadzic because his reasoning is notably unconvincing. Indeed, if there is no link between what the Paris court ruled upon and the charges at the ICTY, then there is actually no obstacle for the French Court to independently rule on the facts before it. Moreover, there is a double inaccuracy in his third point: a) of course a French Court has material competence over war crimes, from its own criminal code, especially as there is a clear personal link with the nationality of the victims and b) in any case, it is a civil decision, so technically Karadzic was not found guilty of war crimes.
In any case, the question of the link between the two procedures is interesting. Indeed, my reasoning is based in the assumption that there is such a link between the harm the plaintiffs claimed in France and ICTY charges. This assumption is based on the apparently explicit referral to ICTY proceedings by the French tribunal. But if in fact, there is no link, then my argument, of course does not hold. I’m still trying to get hold of the decision to verify this.]

French civil Court orders Karadzic to compensate Bosnian Family

According to an AFP report, the Tribunal de Grande Instance of Paris has ordered Radovan Karadzic and Biljana Plavsic to pay 200 thousand euro in compensation to a Bosnian family living in France since the war. The Court found itself incompetent to consider the case against Krajisnic (the report does not say why) and requested additional information against Mladic.

In relation to Plavsic, the Court apparently relied on her conviction for crimes against humanity by the ICTY to find that she had committed faults in relation to the plaintiffs’ damage. One should recall that at the time, that case had created quite a stir because she had plea bargained her way to getting the genocide charges dropped.

As for Karadzic, whose trial is still ongoing, the Court found that (rough translation from the AFP report): “the simple fact that no definitive conviction has been reached cannot justify the status quo, which would necessarily create unjustified additional delays for the victims. The judges referred to the right of a victim of  manifest human rights violations to an adequate, useful and swift recourse”.

I’ll be careful of drawing too many conclusions from a news report (journalists are not necessarily known for their adequate reporting of legal news), but just a few thoughts.

First of all, I’m not aware of any such decisions before, of a civil claim against a current ICTY indictee (if my readers have any information on this…).

[UPDATE: Apparently Karadzic was also the object of civil proceedings in the United States in 2000, while still a fugitive and ordered by a jury to pay compensation. The article raises the question of whether the Republika Srpska could be held liable to pay the reparations, given that Karadzic himself most likely does not have sufficient funds. Also, French courts are definitely less favourable to plaintiffs: the 200.000 euro awarded in Paris seems like chump change compared to the 4,7 billion dollars awarded in the US…]

Second of all, I’m a little puzzled by the procedure. The Court’s affirmation that the absence of a criminal conviction is no reason not to go forward is in that respect interesting. For one, from the point of view of French law, there is, if I recall correctly a principle that “le pénal tient le civil en état”, which translates roughly as “criminal proceedings hold civil proceedings still”. This basically means that when both criminal proceedings and civil proceedings are ongoing, the civil court must wait for the criminal court to decide. Of course, there are not formal criminal proceedings going on in France, so you could say that the rule does not apply. However, the primacy of the ICTY over national jurisdictions actually bars any criminal proceedings for the same crimes in France, so in a way, Karadzic, being tried under a Chapter VII mandate by the ICTY in tried in the name of France. It seems like a convenient way to skirt around the primacy rule, to initiate civil proceedings when criminal ones are not possible.

Finally, I’m struck by the finding of the Court that “manifest” human rights violations require a particularly swift remedy. I was unaware that “human rights” had a different role in French tort law, or in tort law in general (nor what the qualifier “manifest” means for that matter). Why should human rights victims get better recourse than any other plaintiff before a civil Court? This is once again the sign of the way Human Rights has taken over so many branches of law and where moral considerations take over legal reasoning. But that is, I suppose, a different issue…

I’ll try and get hold of the decision and keep you posted if there is anything interesting in it.