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Home EJIL Analysis ICTY Karadzic and Seselj Trial Judgments Due

ICTY Karadzic and Seselj Trial Judgments Due

Published on March 21, 2016        Author: 

This International Criminal Tribunal for the Former Yugoslavia is due to pronounce its trial judgments in two important cases, against Radovan Karadzic, the former political leader of the Bosnian Serbs, on Thursday 24 March, and against Vojislav Seselj, the ultra-nationalist leader of the Serbian Radical Party, on 31 March. The Karadzic case is of course more important by far than the Seselj one, with (since Milosevic’s passing) Karadzic being the highest-ranked defendant with respect to atrocities committed during the Bosnian war. For our earlier coverage of the two cases, see here and here.

As I’ve recently explained elsewhere, the outcome of the Karadzic case is hardly in doubt – he will be convicted. The only question is what exactly for. He will also get a very long sentence, which will because of his age be tantamount to life imprisonment even if he doesn’t get that formally. Karadzic’s legal advisor, the excellent Peter Robinson (whom we’ve had in Nottingham last week for a seminar), is quite open about getting ready for an appeal (see Guardian report here). There is, in other words, not all that much suspense about what’s going to happen come Thursday, and the political reactions to the conviction in the former Yugoslavia are also equally predictable.

That said, what are the points to watch for in the judgment which may be of some genuine novelty? First, unlike with the crime base, which was already clarified in numerous ICTY judgments, it will be interesting to see what the Trial Chamber finds with respect to Karadzic’s individual guilt – what did he exactly know and when, what did he intend, and what specific joint criminal enterprise (JCE) was he a part of? This will be of particular relevance to the 1995 Srebrenica genocide – Karadzic certainly didn’t do anything to punish the perpetrators after the fact, but it’s important to see (or what the prosecution was able to prove about) what he knew  before the genocide started and while it was underway.

Second, Karadzic is charged with genocide not only in Srebrenica, but also in several other Bosnian municipalities, as is the Bosnian Serb general, Ratko Mladic, whose trial is still underway. In other cases the ICTY could find genocide ‘only’ in Srebrenica, with atrocities elsewhere being qualified as war crimes or crimes against humanity. This Trial Chamber has actually already found that the prosecution wasn’t able to meet the burden of proving genocide outside Srebrenica after a rule 98bis ‘no case to answer’ motion upon the conclusion of the prosecution’s case. This decision was later reversed on appeal, but it seems unlikely that the same Trial Chamber will find genocide to have now been proven to the higher beyond a reasonable doubt standard, except in Srebrenica. The Chamber’s finding will however be of great political relevance in the region, because of the particular corrosive potency of the word genocide and its impact on the competitive victimhood of the various groups, and will also be of relevance for the Mladic case. While I therefore expect acquittal for genocide in non-Srebrenica municipalities, it remains to be seen whether that will survive an appeal before the Mechanism, where the whole thing will be revisited.

Finally, as for Seselj the outcome there is far less certain, but expecting a conviction that would cover the time he already spent in detention would not be unreasonable. That case is more notable for its disastrous mismanagement and the consequent public relations nightmare than for anything else. Seselj is now in Serbia and has refused to go back to the Hague for the pronouncement of the judgment. The Serbian authorities (led by his erstwhile party comrades) similarly refused (if with a bit more diplomatic obfuscation) to arrest him and send him to the ICTY, because of the damage this could cause them in an election year. Three of Seselj’s advisers have been charged with contempt by the ICTY and they too have not been sent to the Hague, for the same basic reason. The Serbian authorities are essentially exploiting the ICTY’s impending closure and betting (probably correctly) that this lack of cooperation will not cause them significant political problems internationally.

An interesting couple of weeks ahead for the Tribunal – we will have more coverage as the events unfold.

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4 Responses

  1. Jordan

    And one can thereafter compare the civil appellate judgment against him in the U.S. in Kadic v. Karadzic (that genocide, war crimes, torture, etc. are “actionable” against him), 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996).

  2. Miroslav Baros

    Not quite sure what is meant by “…the political reactions to the conviction in the former Yugoslavia are also equally predictable…”? The authorities had arrested and delivered to suspect to the Tribunal and have clearly for years now disassociated themselves from any form of support for the accused. One prediction though I am making and that is an inability or unwillingness of the Tribunal to individualise criminal responsibility in the instant case. This may not actually be possible considering the difficult task that the Tribunal has and that is, not only to punish (the guilty as determined by the UN Security Council prior to the trials) but to deliver a judgement on the war and responsibility for it as a part of the so-called “transitional justice” strategy. Also, the Tribunal is supposed to be instrumental in bringing about reconciliation among the former warring factions; in this respect it is spectacularly failing. One just would have to pay a bit of attention to the most recent and dangerous escalation in rhetoric between Croatia and Serbia to appreciate the point: the parties are specifically saying that the Tribunal is becoming the main obstacle to establishing any form of reconciliation actually. So for these reasons I am focusing this brief response to this aspect only; I am not interested in “legal” issues (like the accused’s claim that 177 documents that could help his defence were deliberately ignored and blocked by the Tribuna; see at: http://www.novosti.rs/vesti/naslovna/dosije/aktuelno.292.html:596420-Hag-blokirao-Karadziceve-kljucne-dokaze!) because they are pretty irrelevant in this case; the Tribunal just cannot afford to take the defence seriously.

  3. Jordan

    Resp. for WC and CAH. Knew and should have known, opportunity to act, and took no reasonable corrective action — even perpetuated crimes

  4. […] end result is basically as I predicted it will be a couple of days ago – Karadzic got acquitted for genocide in Bosnian municipalities other […]