Of Missed Chances and Set Narratives

“Far from surprising” one could call the latest and final judgement in the case of the former Bosnian Serb general Ratko Mladić. On 8 June 2021, the Appeals Chamber of the MICT (International Residual Mechanism for Criminal Tribunals) upheld the 2017 verdict of life imprisonment with a majority of 4 to 1 and dismissed both Mladić’s and the Prosecution’s appeal. After more than 25 years from the first indictment to the final decision, the ICTY’s (International Criminal Tribunal for the former Yugoslavia) narrative surrounding the Srebrenica genocide as well as crimes committed in other municipalities of Bosnia and Herzegovina is thereby brought to its final conclusion.

During the Bosnian War from 1992 to 1995, roughly 100,000 people were killed and 2.2 million displaced. By some estimates, 50,000 women were raped. These and other figures have caused the Bosnian War to be called the most devastating conflict in Europe since the end of World War II.

Exactly now, after the final decision in the Mladić case was issued and consequently one of the last active cases of the ICTY closed, might be the best time to ask another final question: Is this a satisfactory ending to a quarter of a decade long judicial process?

The ICTY makes history – the 2017 judgement

The Mladić trial (IT-09-92) is one of big numbers: The judgement that Trial Chamber I delivered on 22 November 2017 consists of four volumes and more than 2500 pages (available here). The trial started in May 2012 und lasted 530 days in court. 592 witnesses were heard, whereof 377 appeared before the ICTY in person. The trial ended with Mladić, known as “Butcher of Bosnia”, being convicted of genocide around Srebrenica in 1995. He was also convicted of crimes against humanity (persecution, extermination, murder, deportation, inhumane acts (forcible transfer)) and was found guilty of violations of the laws or customs of war (terror, unlawful attacks on civilians and the taking of hostages). However, Mladić was acquitted of the charge of genocide in six of the municipalities in Bosnia and Herzegovina in 1992, more precisely in Foča, Ključ, Kotor Varoš, Prijedor, Sanski Most, and Vlasenica.

Especially the mentioned acquittal was intensively discussed in the aftermath. Different from the arguing in the case of Radovan Karadžić (IT-95-5/18), whom Mladić had formerly been indicted with, the judges in Mladić did not dismiss the count of genocide due to the lack of genocidal intent on the part of the physical perpetrators or members of the overarching JCE (joint criminal enterprise), (paras. 2588 et seq., 6000, TC-judgement). However, they did not accept the intent to destroy the Bosnian Muslims in the municipalities as a substantial part of the protected group (para. 3535, TC-judgement). Hence, the criterion of substantiality, as established by the ad-hoc-tribunal’s jurisprudence (paras. 3527 et seq., TC-judgement), was decisive in the argument. This reasoning and fact finding, particularly in comparison to the established genocide in Srebrenica, did not convince on a full-scale.

The arguments may differ, but the conclusion is the same – the appeal judgement

Rather unsurprisingly, Mladić’s defence team as well as the Prosecution appealed the Trial Chamber’s decision. The latter tackled the genocide acquittal (paras. 568 et seq., AC-judgment), whereas Mladić appealed on multiple grounds, claiming errors in most parts of the proceedings and decision-making process, i.a. violations of fair trial rights as well as errors related to the overarching JCE, Sarajevo JCE, Srebrenica JCE or sentencing.

Victims of the attacks on the six municipalities hoped for an additional genocidal conviction, especially survivors of the detention camps in Prijedor.

The Appeals Chamber of the MICT, the successor institution of the ICTY, dismissed all alleged errors claimed by the defence – although it must be mentioned that Judge Nyambe issued a dissenting opinion, in which she sided with Mladić on almost every count, except on errors relating to the hostage-taking JCE (paras. 593 et seq., AC-judgment). Mladić’s appeal had been considered a last-ditch attempt anyway, therefore the overall outcome is far from being unexpected.

In regard to the Prosecution’s appeal, it must be concluded, that the Appeals Chamber’s majority continues the line of argument predefined by Trial Chamber I. Whereas the Prosecution argued that the communities targeted were not only substantial in size, but “also in nature, with a unique historic and cultural identity that made them prominent and emblematic of the Bosnian Muslim group as a whole” – and draws parallels to the Bosnian Muslims of Srebrenica – (para. 573, AC-judgment), the Appeals Chamber considered 0.6 to 2.6 per cent of the Bosnian Muslim group in Bosnia and Herzegovina “a relatively small part” of the group (para. 577, AC-judgment). Furthermore, the argument, that the mentioned municipalities held immense strategic importance for the Bosnian Serb leadership (para. 573, AC-judgment), did not convince the judges.

Moreover, the Appeals Chamber clarified, that “it is not just any impact on a protected group that supports a finding of genocidal intent; (…) it is the impact that the destruction of the targeted part will have on the overall survival of that group which indicates whether there is intent to destroy a substantial part thereof” (para. 580, AC-judgment). Therefore, it held – in comparison to Srebrenica – that “neither the Trial Chamber’s findings nor the evidence referred to by the Prosecution reflects a similar threat to the viability or survival of the Bosnian Muslim group” (para. 581, AC-judgment). Also, the judges argued, that incidents occurred closer to the outset of the war and had therefore a different impact than those in Srebrenica in 1995.

All in all, the “destruction directed against each of the (…)[c]ommunities may have ‘represented powerful, early steps in the Bosnian Serb campaign towards an ethnically homogeneous state’, [but] it was open to the Trial Chamber to infer that such destruction was not significant enough to have an impact on the overall survival of the Bosnian Muslim group at the relevant time” (para. 581, AC-judgment). The same line of arguments was then used by the Chamber to rebut the claim of the Prosecution, that genocide did form part of the common purpose of the overarching JCE (paras. 584 et seq., AC-judgment).

The dissenting opinions of Judge N’gum and Judge Panton are rather noticeable in that regard as they sided with the Prosecution arguing in favour of an additional conviction of genocide (paras. 752 et seq., AC-judgment). These opposite conclusions drawn from the same findings show one thing anew: There is not the “one” conclusive narrative – not even in such a large-scale judicial process.

The question of satisfaction – or the big word “justice”? 

The main outcome of the appeal judgement is ultimately a quite simple one: The sentence of life imprisonment remains unaltered as do the convictions. However, the Court’s narrative established by the Trial Chamber I in Mladić’s, along with Karadžić’s case and the Appeals Chamber’s decision, is unmistakable. Plainly speaking, the atrocious events surrounding Srebrenica amount to genocide, while the actions in the six municipalities do not constitute a genocidal crime.

When looking at the posed question from the beginning, one must ask: Is this a satisfactory conclusion? What is “satisfactory”, as always in any context, depends on the term’s definition. Even in a common sense, it is a subjective term that is highly dependent on the respondent’s perspective. In cases of international justice, as the one presented, the perspectives are manifold: Primary, secondary, or tertiary victims, the local communities, the Bosnian Muslims, the Serbs, the international legal profession, the international community as a whole as well as other individuals that might be directly or indirectly affected by the events in question.

One could argue that the Appeals Chamber’s decision has no practical impact on the outcome of the Mladić’s case. The highest possible punishment was imposed and Mladić’s “name should be consigned to the list of history’s most depraved and barbarous figures”, as Chief Prosecutor Serge Brammertz declared outside the court room.

And still, the acquittal stands and so does the consequential legal evaluation of the atrocities committed in Foča, Ključ, Kotor Varoš, Prijedor, Sanski Most, and Vlasenica. When it comes to international crimes, a certain kind of symbolism and the determination of facts within the judicial process do play a crucial role in finding even something close to “justice” and a potentially satisfactory outcome. Although the question of justice in contexts like these might never be truly answered, it can be said, that in this case, another chance of altering the narrative was missed and is gone for good. The dissenting opinions of judges N’gum and Panton show the ambiguity of the decision. From a legal point of view, all remedies have been exhausted and the case is finally closed. Though, the discussions in the concerned communities, families and on a societal level are far from over.

So, what remains is not an answer but an even more complicated question for the future: Is it even possible to achieve a truly satisfactory outcome in multi-perspective international criminal law proceedings?