Mladić and the Genocide That Wasn’t

David J. Scheffer is a senior fellow at the Council on Foreign Relations, with a focus on international law and international criminal justice. He was the first U.S. ambassador at Large for War Crimes Issues and involved in the creation of the International Criminal Tribunal for the former Yugoslavia.

Ratko Mladić, one of the top architects of the atrocity crimes that swept through Bosnia and Herzegovina from 1992 to 1995, died on August 27 at the age of eighty-four while serving a life sentence in The Hague as a convicted war criminal. Mladić is best known for having commanded Bosnian Serb forces in July 1995 in the killing of more than eight thousand Bosnian Muslim men and teenage boys near Srebrenica—an incident widely known as the Srebrenica massacre, for which he was convicted of genocide. But while he was found guilty over what happened in 1995, an earlier alleged genocide still shadows Bosnia and Herzegovina and belongs in any account of what Mladić left behind.

The Bosnian Muslim population at Srebrenica, which the International Criminal Tribunal for the former Yugoslavia (ICTY) concluded was the target of genocide by Mladić, constituted between thirty thousand and forty thousand residents and refugees, and formed less than 2 percent of the group’s total number in Bosnia and Herzegovina. 

But the ICTY prosecutor also accused Mladić of committing genocide against Bosnian Muslim populations in six municipalities of Bosnia and Herzegovina during 1992: Foča, Ključ, Kotor Varoš, Prijedor, Sanski Most, and Vlasenica. More than 128,400 Bosnian Muslims lived in these municipalities, which represented 6.7 percent of the approximately 1.9 million Bosnian Muslims throughout the country. Many thousands of them were killed while others were subjected to torture, rape, persecution, and starvation in detention camps. Their homes and businesses were destroyed. The once-thriving Muslim populations of the municipalities were driven out and never returned during the war.

The trial and appeals judges (two dissenting) convicted Mladić only of crimes against humanity and war crimes for the 1992 campaign. It is reasonable to ask why the body count at Srebrenica qualified as a genocide but not Mladić’s command leading to thousands of deaths and systemic inhumane treatment aimed at eliminating the Bosnian Muslim population of the six municipalities.  

The distinction among these crimes matters to the victims. Genocide is a powerful conclusion to reach about an individual’s discriminatory intent to destroy all—or a substantial part—of a national, ethnic, racial, or religious group. Many in the Bosnian Muslim population believe that what they suffered in 1992 was genocide and not just ethnic cleansing to forcibly displace them and ensure Bosnian Serb dominance in the six municipalities.  

A Bold Approach

During Mladić’s trial, the ICTY prosecutor used a bold tactic regarding the 1992 campaign across six municipalities, namely, that ethnic cleansing was executed by using genocide as the initial mechanism. Targeting a large part of the Bosnian Muslim population—by murdering thousands of Muslims and destroying their property and cultural sites—served as the precursor to forcibly removing the surviving population. In the prosecutor’s view, Mladić, who with Bosnian Serb President Radovan Karadžić led the “joint criminal enterprise,” was the military mastermind behind a genocidal campaign in 1992.

The judges rejected the prosecutor’s argument. They concluded that (1) the number of Bosnian Muslims in the six municipalities did not satisfy a critical requirement of genocide that the number of targeted victims must constitute a “substantial” part of the protected group; and (2) it was not possible to infer from all of the facts of the 1992 campaign that Mladić possessed the specific intent to commit genocide.

The judges conceded that acts of genocide—such as killing, causing serious bodily or mental harm, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part—occurred, that physical Bosnian Serb perpetrators under Mladić’s overall command and identified at trial committed such acts, and that they did so with the specific intent to commit genocide.  But the judges did not find that the physical perpetrators were trying to destroy a substantial part of the Bosnian Muslim population in Bosnia and Herzegovina.

The trial chamber judges had also found that, despite Mladić’s inflammatory statements and the mountain of evidence of acts of genocide committed by physical perpetrators under his leadership, no inference could be drawn that Mladić himself possessed the specific intent to commit genocide in 1992. There was one further hurdle shielding Mladić: the judges were “not satisfied that the only reasonable inference that can be drawn from the evidence is that the crime of genocide formed part of the objective” held by Mladić and his cohort of senior-level collaborators. 

So, no genocide.

Dissenting Views

Significantly, though, Appeals Judges Aminatta Lois Runeni N’gum and Seymour Panton partially, yet strongly, dissented. They found Mladić guilty of the crime of genocide against the Bosnian Muslim populations of the six municipalities in 1992, concluding:

• Mladić exercised a very high level of command and control over his military subordinates who intended to destroy the Bosnian Muslims in the six municipalities as “a substantial part of the Bosnian Muslims in Bosnia and Herzegovina.”

• The targeting of Bosnian Muslims in the municipalities was significant enough to have an impact on the Bosnian Muslim group as a whole.

• “The acts of genocide were committed on a large scale and were of a systematic, organized, and discriminatory nature.”

• Based on the acts of genocide by the physical perpetrators, the statements and conduct of Mladić and other senior leaders, and Mladić’s knowledge of the crimes committed on the ground, the only reasonable inference was that genocide formed part of the plan, and that Mladić and other members of his leadership group shared the intent to destroy a substantial part of the Bosnian Muslim group.

• “[W]e find it absurd that the Trial Chamber found that certain perpetrators possessed the intent to destroy a part of the Bosnian Muslim group, whereas Mladić and other members of the [joint criminal enterprise] who were using these perpetrators as tools to commit crimes in the Municipalities in furtherance of the [joint criminal enterprise], did not themselves possess such intent.”

The compelling dissent of these two appeals judges means that any reckoning of Mladić’s legacy must include not only the genocide conviction for Srebrenica, but also the genocide claim in the six municipalities that his forces assaulted in 1992. Granted, the crime of genocide can be exceptionally difficult to establish, particularly in proving whether a substantial part of a protected group was targeted, that a political or military leader had the specific intent to commit genocide, and that genocide was the only reasonable inference to draw from the evidence. But it is not impossible, and future jurists will doubtless turn to the judgment and dissenting opinions in the Mladić case to offer guidance in the years ahead.