Dr. Aaron Matta is a Senior Researcher within the Rule of Law Program at the Hague Institute; Ms. Anca Iordache is an intern within the Rule of Law Program at The Hague Institute for Global Justice.
On 24 March, one of the most high-profile cases before the International Criminal Tribunal for the former Yugoslavia (ICTY) – the Prosecutor v. Radovan Karadžić case – came to an end as the tribunal handed down its verdict.
In an historic judgement, Trial Chamber III (TRCIII) of the ICTY convicted Radovan Karadžić, of genocide, crimes against humanity and violations of the laws or customs of war in his roles as Supreme Commander of the Bosnian Serb armed forces and President of the National Security Council of the Republika Srpska, between 1992 and 1995, during the war in Bosnia and Herzegovina. Though acquitted on a second count of genocide, he was also convicted of persecution, extermination, deportation, forcible transfer, murder, terror, unlawful attacks on civilians and taking of hostages, committed during the civil war. Mr. Karadžić, 70, was sentenced to 40 years’ imprisonment.
Initially indicted on 25 July 1995, Karadžić, managed to evade arrest until he was finally discovered in Serbia in July 2008 living under a false identity and practicing as a faith healer. In August 2008, the Tribunal entered a plea of not guilty on his behalf to all charges in the indictment after he refused to enter a plea. Karadžić represented himself during the process, after objecting to the assignment of stand-by counsel and amicus curiae – a lawyer assigned by the judges to assist the court. In his closing statement in October 2014, the former president accused the tribunal of bias against the Serbs, declaring himself “a true friend of Muslims”, and he dismissed the prosecution’s evidence that he had overseen systematic “ethnic cleansing” during the Bosnian civil war, calling it all an invention.
Karadžić is the highest level official to have been sentenced by the ICTY for crimes committed during the Balkan conflict, since the late Serbian president Slobodan Milošević, died in 2006 while on trial. The sentence is significant as Karadžić was found guilty beyond reasonable doubt for orchestrating the killings of at least 8,000 men and boys following the 1995 seizure of the Srebrenica enclave. The decision is important also for its potential impact on the ongoing case against Bosnian Serb wartime general Ratko Mladić, who refused to testify in the Karadžić trial. Ratko Mladić went on trial in May 2012, and a verdict is expected next year.
Furthermore, the Trial Chamber found that Karadžić was individually criminally responsible pursuant to Article 7(1) of the Tribunal’s Statute for the crimes committed, inter alia, through his participation in a number of Joint Criminal Enterprises (JCEs). According to the JCE doctrine, each member of a collective plan or policy is individually responsible for crimes committed by the group within the common plan or purpose. In this sense, all participants may be regarded as co-perpetrators of the criminal acts performed by the actual perpetrator and bear the same individual liability. This is important because it shows that the indiscriminate and disproportionate attacks on the civilian population, as well as genocide, were part of a thought-out plan orchestrated by a group of individuals within an overarching JCE to permanently remove Bosnian Muslims and Bosnian Croats from territory claimed by Bosnian Serbs. The Trial Chamber further established beyond reasonable doubt that Karadzic was instrumental in creating and developing the ideology and necessary structures of authority to further the overarching JCE objectives.
The Chamber also concluded that, during the period immediately preceding 11 July and until 1 November 1995, the accused participated in a JCE to eliminate Bosnian Muslims in Srebrenica by killing men and boys and forcibly removing women, young children and the elderly from the area. The Chamber also found that between April 1992 and November 1995 Karadžić participated in a JCE to establish and carry out a campaign of sniping and shelling against the civilian population of Sarajevo. Moreover, it was found that during May and June 2005, Karadžić participated in a JCE to take United Nations personnel hostage in order to compel NATO to abstain from conducting air strikes against Bosnian Serb military targets. Finally, the Trial Chamber concluded that Karadžić was criminally responsible as a superior pursuant to Article 7(3) of the Statute, but it did not enter a conviction as the Chamber had already found the accused responsible for genocide on the basis of his participation in the Srebrenica JCE.
This week will thus be remembered in the history of international criminal justice, with two landmark sentences against two notorious high-ranking leaders who perpetrated grave crimes: the ICC’s finding of guilt against Jean-Pierre Bemba for having used sexual violence as a weapon of war; and today’s finding of genocide for the Srebrenica massacre in Karadžić. This decision is quite significant given that “this is one of the biggest and most important prosecution cases in Europe since Nuremberg and regards the most serious international crimes perpetrated on European soil since World War II”.