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One of the most complex cases in international criminal justice came to an end on June 8, with an international tribunal upholding the November 2017 conviction [PDF] of former Bosnian Serb General Ratko Mladic for perpetrating what have come to be known as “atrocity crimes”—a category that includes genocide, war crimes, and crimes against humanity—during the Bosnian War of the early 1990s.
While affirming the previous verdict that found Mladic guilty of committing genocide at Srebrenica in 1995, the majority of the appeals judges refused to convict him of a separate count of genocide related to the 1992 ethnic cleansing of Bosnian Muslims, or Bosniaks. Their affirmation of Mladic’s acquittal on this—Count 1 of the indictment—threatens to diminish the meaning and scope of the crime of genocide.
What is the history of the case?
The current ruling was handled by the appeals chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT), an ad hoc UN court that deals with various high-profile atrocity crimes cases. It took over the remaining work of the International Criminal Tribunal for the former Yugoslavia (ICTY), an earlier UN court set up in 1993 to deal with the Balkans conflicts.
Mladic, now age seventy-nine, was one of the first indictees of the ICTY in 1995 and one of the last to be captured when he was found hiding in northern Serbia in 2011. He will spend the rest of his life in prison for his responsibility for the genocide at Srebrenica, as well as for ethnic cleansing, extermination, murder, warfare meant to terrorize noncombatants (such as the siege of Sarajevo), and unlawful attacks on civilians, most of whom were Bosniaks.
The IRMCT appeals chamber validated Mladic’s guilt for a massive body of atrocity crimes committed during the Bosnian War. However, the chamber found that the 1992 Bosnian Serb assaults on Foca, Kotor Varos, Prijedor, Sanski Most, and Vlasenica (the “Count 1 Municipalities”) fell short of genocide. Still, Mladic is definitively guilty of crimes against humanity including persecution, which underpins ethnic cleansing, and war crimes in these Bosnian cities, which lost most members of their Bosnian Muslim populations within the span of a few months.
How does it relate to other international prosecutions in the Balkans wars?
The historic verdict brings to a close, save one case, the wartime prosecutions at an international level. Since 1993, 161 individuals from Bosniak, Croatian, and Serbian backgrounds were indicted for atrocity crimes. Of that total, ninety defendants were convicted, nineteen were acquitted, and fifty others experienced different outcomes, such as dropped indictments or dying before receiving judgment. Most of those indicted and convicted were Bosnian Serbs, who bore responsibility for the largest number of crimes during the four-year war. Twenty-three convicted political and military leaders continue to serve long sentences.
For example, former Republika Srpska President Radovan Karadzic, a Bosnian Serb, is serving a life sentence for atrocity crimes similar to those by Mladic. Both men were part of what jurists call a joint criminal enterprise (JCE), under which they masterminded ethnic-cleansing campaigns and the Srebrenica genocide. Only Jovica Stanisic and Franko Simatovic, two high-ranking officials of the Republic of Serbia during the war, remain on trial as members of a JCE that orchestrated ethnic cleansing of non-Serbs in Bosnia and Herzegovina and Croatia.
What does it mean for genocide law?
The question posed to the court asked if the JCE possessed the intent to commit the crime of genocide in 1992. The trial and appeals chambers both agreed that almost all of the basic conditions of genocide existed. They found that Bosniak and Bosnian Croat populations in the municipalities were part of “protected groups” that were victims of prohibited acts of genocide, including killings and acts causing serious bodily or mental harm, which contributed to the destruction of their groups. The chambers also found that “certain physical perpetrators of the prohibited acts had the intent to destroy a part of the Bosniak group when carrying out these acts.”
ICTY Chief Prosecutor Serge Brammertz flipped the usual litigation strategy, which seeks to establish how ethnic cleansing can morph into genocide. He argued instead that Mladic led the Bosnian Serbs in using genocidal acts against the Bosniak population as a catalyst to ethnically cleanse the communities. But majorities in both chambers did not conclude “that those perpetrators intended to destroy the Bosnian Muslims in these municipalities ‘as a substantial part of the protected group’” or that the Bosnian Serb leadership, including Mladic, possessed genocidal intent in 1992.
Two appeals chamber judges, Aminatta Lois Runeni N’gum of Gambia and Seymour Panton of Jamaica, signed a joint partially dissenting opinion [PDF] that rejected the majority’s decision to acquit Mladic on the 1992 genocide charge. They found “substantiality” in spades given the tens of thousands of Bosniaks victimized in the Count 1 Municipalities, who then collectively constituted 6.7 percent of the country’s overall population of Bosniaks (about 1.9 million) in 1992. By comparison, the majority had found that the Bosniak population of Srebrenica, numbering less than 2 percent of Bosnia’s entire Muslim population in 1995, formed a “substantial” proportion of the people that were victims of genocide.
The dissenting judges also found that as with the conclusion on Srebrenica, the trial chamber’s findings regarding each of the Count 1 Municipalities indicated “the prominence and emblematic nature of the Bosnian Muslim group…in relation to the protected group in Bosnia and Herzegovina.” They concluded that the only reasonable inference from the facts is that Mladic and his JCE cohorts “shared the intent to destroy a substantial part of the Bosnian Muslim group.”
What could this mean for future cases?
Unfortunately, particularly for victims, the majority judges of the appeals chamber raised the bar for a finding of genocide in future cases.
Since the United Nations’ International Court of Justice looks to such criminal tribunals for guidance in determining a nation’s responsibility for genocide, the enforcement of the International Convention on the Prevention and Punishment of the Crime of Genocide against governments, such as in Myanmar with the Rohingya and China with the Uyghurs, could become more difficult.