The stimulus that determines the future of a post-conflict state often stems from the narratives that shape the conflict itself.As the convoluted processes of the International Criminal Tribunal for Former Yugoslavia (ICTY) draw to a close, it leaves many unresolved conflicts and unanswered questions in its wake. The much anticipated judgments on the fates of Radovan Karadžić, former president of Republika Srpska, and Vojislav Šešelj, former deputy prime minister of Serbia and president of the far-right Serbian Radical Party, did little to ameliorate the reputation of the court as an excessively politicised forum that fails to adhere to consistent and uniform standards of international criminal law.
On March 24, The ICTY found Karadžić guilty on ten counts, including genocide, crimes against humanity and a violation of the laws or customs of war, for atrocities committed by him against Bosnian Croats and Muslims during the Bosnian War (1992-1995). In a shockingly inexplicable turn of events, merely a week later, on March 31, the same forum acquitted Šešelj, on nine very similar counts. Both men were notorious for their concerted calls for a ‘greater Serbia’ and allegedly applied similar means to achieve their goals. Fiery dissent in both judgments lent further uncertainty to the narrative. These parallel but conflicting judgments reflect a gross misunderstanding of the nature of the conflict in Bosnia by the ICTY. Through this misunderstanding, they also provide a golden opportunity for Serb nationalists to deny responsibility for one of the gravest massacres of the 21st century. By focussing closely on the two judgments, I try to expose the insidious errors made by the ICTY and assess the implications these might have for the future of transnational criminal justice.
The Karadžić judgment can be broadly divided into four counts: (1) the crimes in a number of Bosnian municipalities excluding Srebrenica (2) the siege of Sarajevo (3) the taking of UN hostages and (4) the Srebrenica massacre. A key point to note is that Karadžić was acquitted for genocide on count 1. While there was conclusive evidence that satisfied the actus reus (i.e. the act of killing and torturing numerous Bosnian Muslims and Croats), requirements for genocide under Article 4(2)(a) of the ICTY statute, there was insufficient proof of the mens rea (intent) element required under Article 4(2)(b). The classification of an act as genocide, however, should not determine its moral culpability in any way. The torture and pain inflicted on the victims speaks for itself. Indeed, the incorporation of genocide into international law was a product of political compromise at the time of the drafting of the Genocide Convention in 1948 and has been manipulated by various factions in many post-conflict situations to gain political mileage. The Balkan crisis has been no exception. Undoubtedly, this finding will be used by the Republika Srpska to lend validity to its claim that it was not a ‘genocidal creation’ and thereby legitimise its existence.
The trial chamber, however, found that that the creation and entrenchment of parallel Bosnian Serb political and governmental structures – a concerted campaign for the forcible take-over of municipalities and the systematic expulsion of non-Serbs – were carefully co-ordinated, directed, and intended by Karadžić and the Bosnian Serb leadership, as a joint criminal enterprise (JCE). Notably, among those named in the JCE were Ratko Mladić, whose trial is one of the two pending first instance cases at the ICTY (judgment due in November 2017.) Apart from concluding that Karadžić acted pursuant to the common plan and with a common intention, the chamber also held that he had contributed significantly to the operationalisation of these acts. These two factors proved conclusively that Karadžić was an integral part of the JCE and thus individually responsible in international criminal law. Barring Judge Howard Morrisson and Judge Melville Bard’s dissenting opinions on the counts of forcible transfer and the siege of Sarajevo respectively, the chamber held Karadžić guilty on all remaining counts. The upholding of the conviction of genocide with respect to the Srebrenica massacre was the only unanimous finding of the chamber.
As the world celebrated the outcome of this long-drawn trial, the Karadžić judgment was perfectly poised to mark a crucial watershed in the trajectory of international criminal justice. Solace seemed to have finally arrived for the thousands of victims of the Balkan genocide. Moreover, it seemed that the ICTY was finally willing to break free from the confines of political gamesmanship and modify its reputation as a court that thrived in dormancy.
The Šešelj fiasco
The Šešelj judgment changed all possibilities of such a reversal. The radical Serb nationalist, who had previously been held guilty for contempt of court for not obeying the orders of the ICTY, left The Hague a free man on March 31. Notwithstanding a fiery dissent from Italian Judge Flavia Lattanzi, the majority opinion of the chamber held that the recruitment and deployment of volunteers by Šešelj and his party, and the cooperation with other Serb forces could be justified in the context of the ongoing war and therefore did not amount to an unlawful activity. These volunteers were apparently integrated into the armed forces of the Socialist Federal Republic of Yugoslavia. Further, the chamber noted that Šešelj was not the hierarchical superior of the volunteers deployed on the ground and therefore could not be held criminally responsible. Most disturbingly, however, the chamber argued that since there was an abundance of evidence proving that the Croats and Muslim civilians were arming themselves during the conflict, the actions of the Serb forces were legitimate acts of war and not a unilateral perpetration of atrocities. This re-interpretation of history was criticised by many journalists and academics as a complete misrepresentation of events that negates the suffering of the myriad victims of the widespread ethnic cleansing that occurred in the Balkans.
The trial chamber did not stop at misconstruing facts. It also successfully killed the accepted standards of international criminal law. After a close reading of Šešelj’s speeches delivered during the Bosnian war, the chamber held, with Judge Antoinette dissenting, that these speeches clearly called for the extermination of Bosnian Muslims and Croats. However, the Chamber bought Šešelj’s arguments that these speeches were a means of ‘galvanising Serb national forces’ and did not amount to incitement to genocide. According to the majority opinion, with Judge Lattanzi dissenting, there was no evidence to show how the speeches caused the forced transfer of the Croats or the concerted prosecution by the Serb forces.
This myopic view ignores completely the incitement of genocide, which is a crime independent of the actual commission of genocide. This crime was incorporated into the jurisprudence of international criminal law since its very birth at the Nuremburg trials, with the trials of Streicher and Fritzsche, and has been an integral part of the framework since. Julius Streicher was the publisher of a rabidly anti-Semitic magazine and was held guilty of crimes against humanity. The chamber held that his call for the extermination of the Jews acted like a ‘poison in the minds of many Germans,’ which caused them to follow the Nazi policies of persecution and expulsion. The Tribunal clearly did away with the requirement of proving of a causal link between the act of incitement and the actual commission of genocide. Hans Fritzsche, who was then head of the radio division at Germany’s Ministry of Popular Enlightenment and Propaganda, was indicted for the same crime due to the aggressive anti-Semitic comments made by him over the radio. He was ultimately acquitted because his comments, while amounting to hate speech, stopped short of calling for an extermination of the Jews. Following this trend, incitement to commit genocide has been made punishable by all international criminal statutes-namely Article III of the Genocide Convention; Article 2(3) (c) of the Statute for the International Criminal Tribunal for Rwanda (ICTR); Article 25 (3) (e) of The Rome Statute or the Statute establishing the International Criminal Court and most relevantly for the present case, Article 4(3)(c) of the ICTY statute.
In the landmark Akeyasu and Nahimana judgments, the ICTR has clearly held that direct and public incitement to commit genocide should be punishable regardless of whether genocide actually took place. The judgments of the ICTR form the corpus of subsidiary sources of international law and should therefore be adhered to unless exceptional circumstances prevail. Further, as the ICTR was set up around the same time as the ICTY in similar contexts and with the same objectives, a divergence of views between the two forums obfuscates the crystallisation of international law. In the present case, Šešelj had been quoted as saying, “Not a single Utasha (Croats) must leave Vukovar alive” and “Very soon, there will not be a single Utasha left in this area”. There is no possible inference that can be drawn other than a finding of genocidal intent. The causal link that the chamber wanted the prosecution to establish can almost never be proved because there will never be any tangible evidence linking the words uttered to the commission of the genocide by subordinates. Yet, by creating an atmosphere that could legitimise and thereby sustain the commission of atrocities through his virulent ramblings, Šešelj was, in my books, as guilty for his words as he was for his actions.
Thanks to the ICTY, Šešelj will renew his campaign for the upcoming Serbian parliamentary elections with increased vigour. The increased legitimacy gifted to his Serbian Radical Party by this judgment will certainly boost his chances. By getting this verdict horrendously wrong, the trial chamber did much more than acquit a guilty man. It effectively reversed the positive traction generated by the Slobodan Milošević and Karadžić convictions by shrouding their key findings of both fact and law in uncertainty, and denied the victims and their families the opportunity of deriving permanent closure.
The stimulus that determines the future of a post-conflict state often stems from the narratives that shape the conflict itself. Very often, the narrative is shaped by international law and the forums that administer it. A distortion of this narrative through a dysfunctional judicial pendulum challenges the existing edifice of international law as a construct that can have a positive impact on the lives of ordinary people and reduces it to a weapon of choice for the elite and powerful.
Arindrajit Basu is at The West Bengal National University of Juridical Sciences and has previously worked as a researcher with Observer Researcher Foundation