Genocide at the ICTY: something left to prove

11 February 2015 by Sandra Milic, The Hague (The Netherlands)

Recent weeks have brought genocide in the Balkans back into the spotlight, but not just at the International Court of Justice.

Last month the appeals chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) for the first time issued a final judgement for genocide in the mammoth trial of seven former Bosnian Serb army officials in the so-called Srebrenica case. 

For roles played in the 1995 massacre, ICTY appeals judges upheld two genocide convictions against senior officials Vujadin Popovic and Ljubisa Beara, who were sentenced to life imprisonment. A third man, Drago Nikolic, got 35 years for aiding and abetting genocide. Four other suspects were convicted on lesser charges and given up to 18 years in prison.

Thus far, the massacre of some 8,000 Bosnian Muslims from Srebrenica is the only episode of Yugoslavia’s break-up during the 1990s that the ICTY has ruled genocide. Counting the recent appeals decision in Popovic et al., four people have now been definitely convicted of genocide or of aiding and abetting genocide. In 2004, the commander who led the attack on the UN-protected enclave, Radislav Krstic, was the first person convicted of aiding and abetting genocide by the ICTY appeals chamber. 

So with the Srebrenica case complete and two-sided genocide claims just rejected at the ICJ [IJT-175], three cases dealing with genocide remain at the ICTY: those of former Bosnian Serb president Radovan Karadzic, army commander Ratko Mladic and Zdravko Tolimir, another Bosnian Serb official who is convicted of genocide by a trial chamber though is appealing.

Proving other genocidal episodes 

On top of genocide charges for Srebrenica, the indictments against Karadzic and Mladic include charges for genocide in several Bosnia and Herzegovina municipalities. Prosecutors argue that the 1992 ethnic cleansing in towns, such as Prijedor, Foca and Vlasenica, reached the scale of genocide. Karadzic is currently awaiting a trial chamber judgement expected at yearend. Mladic has yet to finish his defence case. 

It will likely be an uphill battle. So far, no one in other cases dealing with those regions has been convicted of genocide.

In June 2012, judges granted Karadzic’s mid-trial request to drop the genocide charges for the municipalities, finding the prosecution evidence insufficient to support a conviction. But in July 2013, the appeals chamber reversed that decision, referring the case back to the trial chamber.

Legal experts find it improbable that the same trial chamber would suddenly find enough evidence to convict Karadzic for genocide in the municipalities after dismissing charges once before. Appealing, however, could be different. 

“At the ICTY, the appeals chamber is quite willing to express a different view of the facts and the law from the trial chamber, so I could very well imagine a scenario where the appeals chamber is vigorous in protecting and reinforcing the genocide charges in the remaining Bosnia cases,” Jens David Ohlin, a professor at Cornell University Law School, told IJT. 

Former ICTY prosecutor Dan Saxon believes the prosecution used cross-examination of the defence witnesses to elicit evidence in favour of its case. “It will be challenging for the prosecution to obtain convictions of genocide for Karadzic’s role vis-à-vis the municipalities listed in the indictment, but it is still possible,” he said.

Same charges, different conclusions? 

Experts disagree on how previous judgements might impact the charges for Ratko Mladic, whose verdict is currently not expected before March 2017.

“The Karadzic rulings do have a potential to impact the Mladic case, particularly if the court finds that Karadzic participated in a common plan to commit crimes with Mladic,” Kjell Anderson of NIOD Institute for War, Holocaust and Genocide Studies told IJT. He believes the same could be inferred from the Srebrenica case. “Establishing the connection between Mladic, as a commander, and the lower-level perpetrators in Srebrenica will be crucial to proving Mladic’s alleged role in the genocide.”

Officially, one trial chamber is not bound by the decisions of another in a separate case. “But as a practical matter, a genocide conviction for Karadzic will make it more likely that Mladic will be convicted as well. Conversely, if Karadzic is acquitted of genocide, that makes it more likely that Mladic will be acquitted as well,” Ohlin said.

 The Popovic et al. trial at the ICTY on 30 January 2015 (Photo: Flickr/ICTY)

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