International Criminal Justice Revisited
Cases: Mladić and Prlić et al
The two ICTY outstanding cases, first and second instance verdicts which are rendered in November have promoted international criminal justice and prove that what we call justice is not only sort of vague term but the aim that sometimes can be reachable. The two verdicts are to be considered a breakthrough within the two decades long international criminal justice efforts related to the territory of Former Yugoslavia. Let us see what it is all about.
I General Mladić case
I.1. Indictment and charges
Chief Commander of the Bosnian Serb Army General Ratko Mladić was arrested on 15 May 2011 and transferred to the ICTY on 31 May. The trial commenced on 16 May 2012 while closing arguments were held from 5 until 15 December 2016.
The Initial indictment of 14 November 1995 charged Ratko Mladić and Bosnian Serb key political leader Radovan Karadzic with genocide, crimes against humanity and violations of the laws or customs of war. During the trial, the indictment had been changed three times. The last one, fourth amended indictment of 11 December 2011, charges General Mladić with genocide, crimes against humanity and violations of the laws or customs of war.
The accused was finally charged with two counts of genocide (Counts 1 and 2), five counts of crimes against humanity (Persecutions - Count 3, Extermination - Count 4, Murder - Count 5, Deportation - Count 7, Inhumane acts i.e. forcible transfer - Count 8) as well as four counts of violations of the laws or customs of war (Murder - Count 6, Terror - Count 9, Unlawful attacks on civilians - Count 10 and Taking of hostages - Count 11).
The indictment argues that General Ratko Mladić is individually criminally responsible pursuant to Article 7(1) of the ICTY Statute for the counts listed above, inter alia through his participation in a number of Joint Criminal Enterprises (JCEs). It is being alleged that, from 12 May 1992 until 30 November 1995, General Mladić participated in a JCE to permanently remove Bosnian Muslim and Bosnian Croat population from part of the territory of Bosnia and Herzegovina, which was claimed to be a “Bosnian Serb territory”. It is also alleged that, between 12 May 1992 and November 1995, Mladić participated in a JCE to establish and carry out a campaign of sniping and shelling against the civilian population of the City of Sarajevo, aimed to spread terror amongst them. Additionally, it is alleged that, during the period immediately proceeding 11 July and until 1 November 1995, Mladić participated in a JCE to eliminate Bosnian Muslims in the area of Srebrenica by killing men and boys and forcibly removing women, young children and the elderly from the said area. Eventually, it is alleged that during May and June 1995, Mladić 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 forces and targets. General Mladić is also charged as a superior pursuant to Article 7(3) of the ICTY Statute for the crimes in the indictment, for inter alia, knowing or having reason to know that crimes were about to be committed or had been committed by forces under his effective control and failing to prevent the crimes or punish the perpetrators.
The crimes alleged in the indictment include, among others: killing of Bosnian Muslims and Bosnian Croats, including leading members of these groups; detention of thousands of Bosnian Muslims and Bosnian Croats in detention facilities (concentration camps) in living conditions calculated to bring about their physical destruction; killing of over 7,000 Bosnian Muslim men and boys of Srebrenica through both organised and arbitrary executions; wanton destruction of private and public property including cultural monuments and sacred sites, such as a number of mosques across the country; acts of murder that formed part of the objective to spread terror among the civilian population of Sarajevo through a campaign of sniping and shelling carried out between 12 May 1992 and November 1995.
I.2. Possible Political effects of the Trial
General Ratko Mladić - as a participant to a JCEs - was accused of having a particular intent (genocidal intent, dolus specialis), to destroy, in part the national, ethnical and/or religious groups (so called protected groups) of Bosnian Muslims and/or Bosnian Croats as such. The intent showed it’s most extreme manifestations in municipalities Bratunac, Foca, Kljuc, Kotor Varos, Prijedor, Sanski Most and Vlasenica a significant section of the Bosnian Muslim and/or Bosnian Croat groups, more precisely their leaderships, as well as a substantial number of members of these groups were targeted for destruction.
On the other side, the genocide is confirmed to have been committed by final verdict solely in Municipality of Srebrenica (General Krstic case). The International Court of Justice (ICJ), back in 2017 had confirmed this factual background. So, if General Mladić gets sentenced for crime of genocide occurred in additional six municipalities, it would mean that the very crime of genocide had wider area to have been committed across. As Mladić was on the payroll of Army of Yugoslavia (Vojska Jugoslavije), such verdict would make direct link to regime of Slobodan Milosevic in Belgrade, and show that genocide in Srebrenica and some other widespread and systematic ethnic cleansing campaigns were planned and executed not only by Bosnian Serb forces, but also outlined by the political and military establishment of the neighbouring Republic of Serbia. Although this scenario, introducing a new fact in the factual background of the case recently ended few months ago before the ICJ (case Bosnia and Herzegovina v. Serbia and Montenegro), it would, however, reveal a notorious factual linkage between Serbia and armed conflict in Bosnia and Herzegovina – by such verdict turning this link into a legal link. This link, in the last four-five years is being meticulously wiped away be the verdicts of ICTY (by General Persia acquittal and by ordering new trial for two main intelligence officers of the Belgrade regime Jovica Stanisic and Franco Simatovic, who among others were members of JCE)
So, if general Mladić is found guilty as charged, it would shed a completely new light on the what had happened in Bosnia during the armed conflict: (1) it would confirm that genocide was committed not only in Srebrenica but in wider area, (2) it would clearly denote Serbia a participant to an armed conflict in Bosnia and (3) it would raise responsibility of Serbia as a state for crimes committed across its international border, confirming that the armed conflict in Bosnia was not an internal conflict (civil war). But even if Mladić is found guilty and sentenced as charged it does not mean he would be able to stand the second instance trial and face Appeal Chamber decision for the reasons of his physical and mental health. It may happen that he passes away innocent as Slobodan Milosevic did. It is not less important mentioning that General Mladić may be found mentally incapable to attend the announcement of the verdict which may postpone the entire procedure for unknown period of time.
I.3. The verdict
The Trial Chamber, having considered all of the facts, evidence, and arguments of the parties; as well as the Statute and the Rules; and based upon the factual and legal findings set out in detail in the written Judgment, found Ratko Mladić not guilty for Count 1, but guilty, as a member of various joint criminal enterprises, of the following counts: Count 2, Genocide. Count 3, Persecution, a crime against humanity; Count 4, Extermination, a crime against humanity; Count 5, Murder, a crime against humanity; Count 6, Murder, a violation of the laws or customs of war; Count 7, Deportation, a crime against humanity; Count 8, the inhumane act of Forcible Transfer, a crime against humanity; Count 9, Terror, a violation of the laws or customs of war; Count 10, Unlawful attacks on civilians, a violation of the laws or customs of war; and Count 11, Taking of hostages, a violation of the laws or customs of war. For having committed these crimes, the Chamber sentenced Mr. Mladić to life imprisonment.
As general Mladić was found guilty for majority of crimes he was charged for, it raise responsibility of Republic of Serbia as to crimes committed across its international border, confirming that the armed conflict in Bosnia was not an internal conflict (civil war). General Ratko Mladić was on the payroll of the Armed Forces of Yugoslavia (Vojska Jugoslavije), verdict made direct link between his involvement in the Bosnian conflict, and the (at the time) regime of Slobodan Milosevic in Belgrade, which proved that mass atrocities committed were planned and executed not only by Bosnian Serb forces, but were also “reinforced” by the political and military establishment of the neighbouring Republic of Serbia. However, this factual background under no circumstances may serve to BiH as legal basis for any legal action before the ICJ, for two reasons: the deadline for such action set by the Statute of the ICJ has already passed, while the said verdict is of first instance – pending Appeals Chamber decision to be rendered in the years to come. It is rather big question mark whether the second instance verdict will be delivered at all, taking into consideration Mladić’s age and/or health condition.
II Prlić et al case
II.1. Indictment and charges
Initial Indictment, that was amended twice, charges the six accused with participation in a Joint Criminal Enterprise (JCE) between 18 November 1991 and April 1994 designed to have Muslim and other population of non-Croat origin live the regions of the territory of Republic of Bosnia and Herzegovina, claimed to be territories of the Croatian Community (later Republic) of Herzeg-Bosnia (Hrvatska zajednica/Republika Herceg-Bosna). The final aim was to remove them permanently and create a Croatian territory with the borders of the Banate of Croatia (Banovina Hrvatska). The six accused namely Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić and Berislav Pušić were charged with having committed crimes corresponding to 26 counts in the Indictment in eight municipalities and the entire system of detention centers over a period that lasted for almost two and a half years. The accused had turned them in on 5 April 2004.
The Indictment alleges committment of the following crimes against humanity: Persecutions (Count 1); Murder (Count 2); Rape (Count 4); Deportation (Count 6); Forcible transfer (Count 8); Imprisonment (Count 10); and Inhumane acts (Counts 12 and 15). They were also charged with having committed grave breaches of the Geneva Conventions of 1949 in the form of the following crimes: Wilful killing (Count 3); Sexual assault (Count 5); Unlawful deportation, transfer and detention of civilians (Counts 7, 9 and 11); Inhuman treatment (Counts 13 and 16) and Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly (Counts 19 and 22). Finally, they were also accused of having committed the following violations of the laws or customs of war: Cruel treatment (Counts 14 and 17); Unlawful labour (Count 18); Wanton destruction of cities, towns or villages (Count 20); Destruction or wilful damage to institutions dedicated to religion or education (Count 21); and Plunder of public or private property (Count 23), as with regard to the Municipality of Mostar, the Prosecution charges the six Accused with carrying out unlawful attacks on civilians (Count 24); unlawfully inflicting terror on civilians (Count 25) as well as inflicting cruel treatment by besieging East Mostar (Count 26).
During this paramount trial, closed on 2 March 2011, the Chamber admitted close to 10,000 exhibits into evidence and heard 145 Prosecution witnesses, six out of them expert witnesses, as well as 61 defense witnesses, seven out of them expert witnesses. The Judgment consists of 2.629 pages divided into six volumes.
II.2. The Trial Chamber verdict
The Chamber established that a joint criminal enterprise existed and that its ultimate goal was creation of a Croatian territorial entity with part of the borders of the Croatian Banovina of 1939 in order to enable a reunification of the Croatian people. This Croatian territorial entity in BiH was either to be merged with territory of the Republic of Croatia following the prospective dissolution of BiH, or become an independent state within BiH with direct ties to Republic of Croatia.
The Trial Chamber has sentenced the six senior political and military leaders of Herzeg-Bosnia „The Croatian six” (Hrvatska šestorka) to a total of 111 years in prison for the above stated crimes committed against Bosniacs and other non-Croats in Herzeg-Bosnia. Jadranko Prlić was sentenced to 25 years, Defense minister Bruno Stojic, HVO commanders Slobodan Praljak and Milivoj Petkovic to 20 years, military police commander Valentin Coric to 16 years and the head of the Prisoner Exchange Bureau Berislav Pusic to 10 years in prison. Moreover the majority of judges established that the armed conflict was of international nature and that a JCE existed. On the contrary, these crimes were the result of a plan drawn up by members of the JCE whose goal was to permanently remove the Muslim population from Herceg-Bosna.” The enterprise included the former Herzeg-Bosnia political leaders as well as political and military leaders of Republic of Croatian Franjo Tudjman, Gojko Susak and Janko Bobetko. The Trial Chamber concluded that, “[i]n the majority of cases, the crimes committed were not the random acts of a few unruly soldiers. On the contrary, these crimes were the result of a plan drawn up by members of the JCE whose goal was to permanently remove the Muslim population from Herzeg-Bosnia”.
The first instance verdict came at rather uncomfortable moment for Croatia, which was soon to become a member of the European Union and wanted to leave its recent and unpleasant past behind at any price. At the time, Western countries focused more on the unrestrained behavior of Bosnian Serbs and the Serbian government led and considered Tudjman’s rule government in Croatia to be more reasonable. It was well known that Presidents Milosevic and Tudjman met in early 1991 and concluded an agreement to divide up territory of Bosnia and Herzegovina, populated by ethnic Serbs, ethnic Croats and Bosnian Muslims.
II.3. Possible political effects of the Appeal Chamber verdict
The Appeal Chamber decision was to be publicly declared on 29 November 2017. If the Appeal Chamber verdict asserts the Trial Chamber one, mainly if it upholds JCE of Croatia and Herzeg-Bosnia it would put a new spotlight on Croatia’s record in the war. If the ICTY on 29 November renders such decision, it would finally establish clear political and military link of Franjo Tuđman’s regime to political and military actions having been taken in the Herzeg-Bosnia during the period set out in the Indictment and the first instance verdict. This would be the most unpleasant and disagreeable scenario for Croatia, now being member of the EU. Endorsing second instance verdict would also entail claims as to compensation for damages caused by the military forces of the Republic of Croatia (Hrvatska Vojska) and Tudjman’s politics toward Bosnia and denote the armed conflict in Bosnia as international, involving Republic of Croatia as a party to a conflict.
On the other hand, it may have happened that, in the same manner as the Hague Tribunal did in the above mentioned acquittals of Serbian State Security officials Jovica Stanisic and Franko Simatovic, the upcoming verdict abolishes JCE and thereby wipe out political and military linkage to Republic of Croatia. It is more than evident that the ICTY made sort of “immoral balance” acquitting generals Ante Gotovina and Mladen Markac for the crimes committed during the Croatian military-police operations Flash (Bljesak) and Storm (Oluja). The two Croatian generals who were accused of atrocities against Serbs were acquitted by an Appeal Chamber decision. This was a trial outcome that stunned professional community and was called ‘grotesque’. These acquittals set up sense of balance with acquittal of Serb General Momcilo Perisic and retrial ordered for the two Serbian State Security officials. If this scenario is in place, those found guilty for war crimes committed in of Herzeg-Bosnia will be solely Bosnian Croats (“The Croatian six”), which would keep the war within the frame of internal conflict and cut off all possible connection of mentioned war crimes with Republic of Croatia. Needless to say that no legitimate claim for war damage can be filed with Croatian institutions.
The outcome of the Appeal Chamber decision echoed like bomb: the all six accused have been found guilty mutatis mutandis as indicated in the Trial Chamber. The Appeals Chamber affirmed almost all of the Trial Chamber’s convictions of Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić, and Berislav Pušić with respect to events occurring between 1992 and 1994 in eight municipalities and five detention centers in the territory of Bosnia and Herzegovina. It also affirmed the sentences imposed by the Trial Chamber, which sentenced Prlić to 25 years’ imprisonment, Stojić, Praljak, and Petković to 20 years’ imprisonment each, Ćorić to 16 years’ imprisonment, and Pušić to 10 years’ imprisonment. The Appeals Chamber also affirmed the Trial Chamber’s conclusion that, from mid‑January 1993, the accused were participants in a joint criminal enterprise, with the exception of Pušić who joined in April 1993. The Appeals Chamber further affirmed the Trial Chamber’s conclusion that this joint criminal enterprise was aimed at creating a Croatian entity in Bosnia and Herzegovina that would facilitate the reunification of the Croatian people, through ethnic cleansing of the Muslim population. During public announcement of the verdict former HVO 72-year old General Slobodan Praljak drank poison and died the same day in the hospital.
The political establishment of the Republic of Croatia was totally shocked and found unready to face the forensic truth established by the ICTY. In the days following the pronunciation of verdict, they made very confuse statements on “rejecting the verdict” which was totally counter-productive to Croatian image as the EU country. Croatian President Kolinda Grabar-Kitarović told the UN Security Council that Croatians admit that some of their countrymen may have committed war crimes, but they refute collective guilt being placed upon them following the ruling against six Croats from Bosnia and Herzegovina at the ICTY. Croatia’s Prime Minister Andrej Plenković rejected the Hague Tribunal verdict’s insistence that Zagreb was involved in the Bosnian war. On the other side, but Bosniak war victims’ groups welcomed the Bosnian Croat officials’ convictions. Representatives of all Croatia’s parliamentary parties held an extraordinary meeting and decided to end Wednesday’s session as a mark of protest.
It has to be noted that, unfortunately, Croatia had chance to start process of facing the past and start extraordinarily important processes of ethno-national reconciliation in the region, but it failed. Instead of accepting the verdict and offer compensation for all victims being kept in the Herzeg-Bosnia concentration camps, the State of Croatia will face individual and/or collective law-suits seeking compensation. All things considered, no court in Croatia would be able to ignore the “The Croatian-six” final verdict in the upcoming civil proceedings. And, of course, that verdict is an ultimate document that tells the story on what was the role of Croatian Government in the recent Bosnian conflict.
The ICTY went through three phases for the last quarter of century: first, initial phase, which lasted five-six years upon its establishment, was the one in which the Tribunal rendered few verdicts sentencing the lowest level of responsible perpetrators of war crime. Next phase lasted up to ten years, wherein the ICTY rendered most important verdicts, writing history of the conflict based on a forensic truth (Krstić case, Blaskić case, Delić case, and some other important cases). The last phase seem to be predominantly inflicted by politics and will last until the Residual Mechanism takes over. The Prlić et al verdict was, in some way, unexpected to be the one to end up the last ICTY phase with.
The outcomes of these verdicts are obviously of extreme importance for the Balkan region, as no other verdicts of such significance and complexity will be rendered in the years to come. It remains to be seen whether Karadzic and Mladić case will reach the Appeal Chamber decision level: apart from politics, it is biology that may be fact that counts. As for Croatia, all has already been said.