Credit: UN Photo/Devra Berkowitz
On July 28, experts will provide an inside look at the conviction of former Bosnian Serb leader Radovan Karadžić, who announced this week he will appeal the March 2016 ruling finding him guilty of genocide and other crimes before the International Criminal Tribunal for the Former Yugoslavia (ICTY). [Justice Info] On Thursday, the Bar Association of San Francisco will host “Proving Genocide: The Prosecution of Radovan Karadžić,” featuring a former lawyer and former forensic investigator with the ICTY, who will examine the legal and factual grounds for Karadžić’s conviction for the genocide in Srebrenica, a massacre of more than 7,000 Muslim men and boys carried out 21 years ago this month. [Newsweek] Registration is now open for the webcast and in-person attendance. See The Bar Association of San Francisco, Proving Genocide: The Prosecution of Radovan Karadzic. Karadžić is the highest level official the ICTY has convicted. [The Hague Institute for Global Justice] The ICTY sentenced him to 40 years in prison. See ICTY, Prosecutor v. Karadžić, Case IT-95-5/18-T, Trial Chamber Judgment, 24 March 2016, paras. 6001-6010.
The panel will feature Sun Kim, a former Associate Legal Officer of the ICTY involved in the case against Karadžić, as well as Nushin Sarkarati of the Center for Justice & Accountability, Eric Stover of the Human Rights Center at UC Berkeley School of Law, and Lisa Reinsberg of the International Justice Resource Center. The panelists will discuss the process and impact of the landmark decision and reflect on how it compares with other international criminal investigations and the civil litigation against Karadžić. See The Bar Association of San Francisco, Proving Genocide: The Prosecution of Radovan Karadzic.
Charges Against Karadžić
The prosecution charged Karadžić for his participation in four joint criminal enterprises (JCEs), a form of criminal responsibility where two or more people act together for a common criminal purpose, committed during his time in various positions of power during the Balkan conflict. The first JCE, the “Overarching JCE,” involved the common plan to push out Bosnian Muslims and Croats from specific territory in several municipalities from 1991 to 1995. Karadžić was also charged for participation in the “Sarajevo JCE” that involved sniping and shelling civilians with the intent to terrorize the population from April 1992 to November 1995. The criminal enterprise dubbed “Hostages JCE” refers to the taking of over 200 United Nations peacekeepers and military observers hostage as leverage to stop NATO airstrikes against Bosnian Serb military. Lastly, Karadžić was charged with participation in the “Srebrenica JCE” in which the killing of the men and boys of Srebrenica and the forced removal of the women, girls, and some elderly men were part of a common plan to destroy the Bosnian Muslim population in Srebrenica. See Prosecutor v. Karadžić, 24 March 2016, para. 3.
Notably, the first and last JCEs gave rise to specific claims of genocide. He was also charged with the crimes against humanity of persecution, murder, extermination, deportation, and inhumane acts (forcible transfer). The prosecution also charged him with violating the laws and customs of war for committing crimes of terror, murder, unlawful attacks on civilians, and hostage taking. See id. at para. 5.
Criminal Responsibility for Participation in Joint Criminal Enterprises
There are three categories of criminal responsibility for those accused of participating in a JCE: 1) “basic” responsibility where all the group participants act, with intent, out of a common purpose; 2) “systemic” responsibility for an organized system of ill-treatment; or, 3) “extended” responsibility for a crime that was not a part of the common purpose but is a natural and foreseeable consequence of seeking to carry out the common purpose. See id. at para. 560. To be found criminally responsible, the prosecution must prove that there were two or more participants involved in the JCE, that a common purpose or plan that involved the commission of a crime existed, and that the accused person participated in the furthering of that common purpose. See id. at para. 561. The accused need not have committed the actual criminal act to be held responsible so long as they provided a “significant contribution” to the crimes involved in the common plan. See id. at para. 564.
Tribunal’s Analysis
Findings: Overarching JCE
In examining the overarching JCE, the Trial Chamber of the ICTY found Karadžić criminally responsible for persecution, extermination, murder, deportation, and inhumane acts through forcible transfer as crimes against humanity and for murder as a violation of the laws or customs of war. See Prosecutor v. Karadžić, 24 March 2016, para. 3524. There was evidence to show that the Serb military forces took control of several municipalities in Bosnian Serb-claimed territory through well-planned takeovers and a committed systemic pattern of crimes against the civilians therein, including the forcible displacement of Bosnian Muslims and Croats. See ICTY, Trial Judgement Summary for Radovan Karadžić, 24 March 2016. Many civilians were held in detention, where they were subjected to poor living conditions, torture, beatings, and rape. Serb forces also killed many civilians, often in mass executions. See id.
The ICTY Trial Chamber held that the creation of a parallel Bosnian Serb political scheme, the takeover of the municipalities, and the removal of Bosnian Muslims and Croats was evidence of a coordinated common plan to remove non-Serbs from the designated territories. See id. The Trial Chamber, therefore, rejected Karadžić’s claim that individuals separately engaged in acts of violence and those actions were not part of a common purpose. See id. The Trial Chamber also held that there was sufficient evidence to show that people were often intentionally arrested, detained, and then transported out of the area, rejecting Karadžić’s other claim that the movement of non-Serbs out of the area was voluntary and a consequence of war. See id. Karadžić substantially contributed, the ICTY further held, to the criminal actions taken in furtherance of the JCE by virtue of his functions and positions at the time; he was central in developing the policies, goals, and military, political, and police structures necessary to takeover the territory and create a homogenous state. See id.
The Trial Chamber, therefore, held that the crimes of forcible transfer, deportation, and persecution were intended by members of the overarching JCE and committed intentionally in furtherance of the JCE, but the crimes of murder, extermination, and persecution in the form of cruel treatment, forced labor, use of non-Serbs as human shields, and the plunder and destruction of private property and cultural sites were not part of the common plan of the JCE; however, Karadžić still bears criminal responsibility for those crimes as a member of the JCE, the opinion held, because it was foreseeable that they would be committed in light of the common plan of the overarching JCE and the resulting environment of impunity for crimes against non-Serbs. See id. at paras. 3520-23.
Although the Trial Chamber found that the participants in the overarching JCE intended to separate Bosnian Muslims or Croats from other civilians to create a homogenous state, the judges acquitted Karadžić on the count of genocide arising under the Overarching JCE. See Prosecutor v. Karadžić, 24 March 2016, para. 2605. They were not satisfied that the “only reasonable inference” was that the crimes were committed with the intent to destroy part of the population. See id.
Findings: Sarajevo JCE
In connection with the Sarajevo JCE, the Trial Chamber found Karadžić criminally responsible for murder, unlawful attacks on civilians, and terror as violations of the laws or customs of war and for murder as a crime against humanity. See Prosecutor v. Karadžić, 24 March 2016, para. 4939. The judes determined that over the course of three years the Bosnian Serb Forces, namely the Sarajevo Romanija Corps (SRK), surrounded the city of Sarajevo and shot at civilians on a consistent, essentially daily, basis. See Trial Judgement Summary for Radovan Karadžić, 24 March 2016. The city was also subjected to heavy shelling and indiscriminate fire, including at civilian facilities such as schools and hospitals. See id.
The Trial Chamber found that the targeted killings of civilians and the shelling were intended to terrorize the population in Sarajevo and put pressure on Bosnian Serbs and the international community for political reasons. See id. The accused and other members of leadership made statements about the importance of controlling Sarajevo for their purposes, showing a motive for the JCE, and the Chamber found that the Bosnian Muslim forces would attack their own civilians with the intent of garnering international support after blaming those attacks on the Bosnian Serbs. See id.
The ICTY held that Karadžić significantly contributed to the plan both through his general power and control over political and military forces and through specific acts approving the conduct. See id. He was regularly informed about the SRK attacks on civilians, supported Mladić’s strategy of intensifying shelling and sniping in Sarajevo, defended the actions of the SRK, and promoted or otherwise rewarded leaders directly involved with the activities in Sarajevo. See id.
Findings: Hostages JCE
The trial Chamber held Karadžić criminally responsible for the violation of the laws and customs of war for taking hostages. See Prosecutor v. Karadžić, 24 March 2016, para. 5993. During the Hostages JCE, Bosnian Serb forces detained and threatened UN personnel with physical harm if NATO continued airstrikes. See Trial Judgement Summary for Radovan Karadžić, 24 March 2016. The hostages were held on key military bases that might be targeted by the strikes. See id. The Trial Chamber held that Karadžić was directly involved in the plan having made prior statements threatening to treat UN personnel as enemies and to take them as hostage. See id.
Findings: Srebrenica JCE
In connection with the Srebrenica JCE, the ICTY found Karadžić criminally responsible for the crimes of murder, extermination, inhumane treatment via forcible transfer; persecution; and genocide. See Prosecutor v. Karadžić, 24 March 2016, paras. 5823, 5824, and 5830. The Trial Chamber found that takeovers in nearby villages forced many Bosnian Muslims to flee to Srebrenica in early 1993 and that in April 1993 it was proclaimed a safe area. See Trial Judgement Summary for Radovan Karadžić, 24 March 2016. In March 1995, Karadžić issued Directive 7 ordering the Drina Corps to “create an unbearable situation” for the inhabitants of Srebrenica, which led to immediate restrictions on humanitarian aid and the takeover of the town a few months later. See id. Women, children, and the elderly fled toward a UN Compound, and most of the men headed toward Tuzla. See id. The group headed to the UN Compound was shelled on their way, and between 1,500 and 2000 of those men heading to Tuzla were taken and detained. Id. Believing survival was dependent on leaving, 30,000 Bosnian Muslim women, children, and elderly people were bussed to Bosnian Muslim-held territories, and Bosnian Serb forces killed the men held in detention. See id.
The Trial Chamber held that the intent of the JCE was to exterminate the Bosnian Muslim population by killing off the able-bodied men and that Karadžić knew of the plan and participated in it. The number of men killed was reported to Karadžić after the first night of killing, and referring to them as “goods,” he ordered more of the male detainees moved to a warehouse where they were later killed. See id. The Chamber held that this evidence was sufficient to show that Karadžić was criminally responsible for genocide. See id. Moreover, as a superior officer aware of these acts he had a duty to investigate and punish those who took part; his failure to do so makes him personally responsible for the genocidal acts, but the Chamber did not convict him on this theory because it had already convicted him for genocide due to direct participation in the Srebrenica JCE. See id.
Background to the Situation and the ICTY
Tensions in the former Yugoslavia existed between the varied ethnic and religious groups therein since its formation after World War II as a single socialist nation comprised of six republics, Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. Fighting occurred between different groups and in different regions of the former Yugoslavia during the 1990s. During that time, Bosnian Muslims and Croats sought independence against the will of Bosnian Serbs, and the Bosnia Serb Army, under Karadžić, forced over one million Bosnian Muslims and Croats from their homes. The war in Bosnia ended in 1995 with a peace deal that divided the region into two self-governing territories with a central government. [BBC News]
Additional Information
The International Criminal Tribunal for the Former Yugoslavia was established pursuant to UN Security Council Resolution 827 in May 1993 to address the mass atrocities taking place in the Balkans through prosecution of the individuals most responsible for the crimes. Since its inception, the ICTY has convicted 81 people. ICTY, About the ICTY.
For more information on international criminal law, the International Criminal Tribunal for Yugoslavia, and prior news posts on the ICTY, visit IJRC’s Online Resource Hub.
For more information on the upcoming panel or to register to attend, visit the Bar Association of San Francisco event calendar.