By Prof Upendra Baxi
The saying of ancient Chinese general, military strategist, writer and philosopher Sun Tzu—“the wheels of justice grind slow, but grind fine”—is echoed many a time. But it sounds truer in the context of the Serbrenica massacre of Muslims in 1995. At least, a whole generation has passed since the Bosnian war; but if one were to count the time taken from the date of trial, the full trial only takes the period 2012-2021, while the arrest of Ratko Mladić took 16 years to fructify!
Mladić commenced the Siege of Sarajevo, a four-year blockade of the city, which resulted in its destruction and thousands of civilian casualties. On declaration of independence by Bosnia-Herzegovina from Yugoslavia, Mladić became the chief of staff of the Yugoslav army in Sarajevo and the Commander of the Main Staff of the Army of the Republika Srpska. In March 1995, the Srebrenica enclave, a UN-declared safe haven that was to be “free from any armed attack or hostile act” and was guarded by the Dutch Battalion of United Nations Protection Force came under the control of Mladić.
Nearly 40,000 Muslim refugees were forcibly exiled from the enclave, and over 8,000 Muslim men of fighting age murdered. During the short Bosnian War (1992-1995), an estimated 1,00,000 people, of which Bosnian Muslims comprise 80 percent, were killed and millions displaced and about 50,000 women raped and others tortured. These blood-curdling statistics silhouette the outlines of epic genocidal deaths, devastation and destruction.
The International Criminal Tribunal for Yugoslavia (ICTY), discharging its mandate (1993-2007), indicted 161 individuals, resulting in 89 convictions, 18 acquittals, and 13 referrals to national courts; 37 of the indictments were withdrawn or the accused deceased, but none of the indicted persons remain fugitives from law. The website of ICTY proudly and justly proclaims that it “irreversibly changed the landscape of international humanitarian law, provided victims an opportunity to voice the horrors they witnessed and experienced, and proved that those suspected of bearing the greatest responsibility for atrocities committed during armed conflicts can be called to account”.
Accountability demands still continue, but now through the International Residual Mechanism for Criminal Tribunals (IRMCT), established by the UN Security Council in 2010 (with branches at Arusha and The Hague). The IRMCT has now confirmed this consistent finding indicting Ratko Mladić.
A Trial Chamber of the ICT (June 8, 2021) held the convictions of Ratko Mladić for his “leading and grave role” in the commission of these crimes and it awarded life imprisonment for his nefarious role. Although the first indictments were filed against Mladić on July 24 and November 16, 1995, he was arrested in Serbia only on May 26, 2011. His trial began on May 16, 2012, and the hearing of evidence lasted for over four years. The Chamber sat for 530 trial days, received the evidence of 592 witnesses and nearly 10,000 exhibits, and also took judicial notice of approximately 2,000 adjudicated facts.
The Appeals Chamber, with the exception of Justice Prisca Matimba Nyambe (she believed that the original trial, which ended in a life sentence for Ratko Mladić for genocide and crimes against humanity, was fatally flawed and that the Bosnian Serb general deserved a retrial) confirmed the Trial Chamber’s ruling. It found Mladić guilty of commanding “violent ethnic cleansing campaigns” across the country, sniping and shelling attacks against the civilian population of Sarajevo between May 1992 and November 1995, and committing genocide against an estimated 8,000 Bosnian Muslim men and boys in Srebrenica between July and October 1995. He did so using the forces under his command and using UN peacekeepers as human shields after taking them hostage from May to June 1995. It “affirmed his convictions pursuant to Article 7(1) the ICTY Statute for genocide, for persecution, extermination, murder, deportation, and other inhumane acts (forcible transfer) as crimes against humanity, as well as for murder, terror, unlawful attacks on civilians, and hostage-taking as violations of the laws or customs of war under Counts 2 to 11 of the Indictment.” The IRMCT confirmed the conviction.
While awaiting the full text of the decision, the verdict has to be hailed for an expansive approach to the global crime of genocide. It, like all the other convictions, conveys a pedagogic moral message that genocide perpetrators will be held legally liable and morally responsible for their acts and omissions.
No doubt, the ICTY has made a monumental contribution towards a purposive interpretation; it has evolved a fresh understanding of the elements of the crime, particularly by the juristic device of “joint criminal enterprise” (JCE). The decision is divided into three JCEs: an Overarching JCE, a Sarajevo JCE and a Srebrenica JCE. It is unclear why the Trial Chamber rather than finding Ratko Mladić directly culpable for his crimes, choose to rely so heavily on JCE.
It is generally agreed that the Statute of the ICTY, in Article 7(1), does not refer to JEL in any form1 and that the Tadic (1999) appeal chamber identified the concept of JCE as a “part of customary international law”2. It divided the JCE into three categories.
Category I entails that (a) there was a “common plan to kill the victim”; (b) the defendant “voluntarily participated” at least “in one aspect of this common design”; (c) the defendant “intended to assist in the commission of murder, even if he did not himself perpetrate the killing”. Category II also requires proof of three elements: “the existence of an organized system to ill-treat the detainees and commit the various crimes alleged; (ii) the accused’s awareness of the nature of the system; and (iii) the fact that the accused in some way actively participated in enforcing the system. Category III involves “a common design where one of the perpetrators commits an act which, while outside the common design, is nevertheless a natural and foreseeable consequence of the implementation of that common purpose”.
Although this victim-centred human rights approach has been in practice in ad hoc international criminal tribunals, and most prominently in ICTY, this “common purpose liability” standard has attracted the sobriquet of being a “monster” and a “darling” of the prosecutors. Proof of customary international law obligations remains a more demanding affair than the ICTY grants3; certainly, even if we may not be able to tell how many swarms of sparrows a summer make, we are all sure that a few sparrows do not make a summer! And any flirtation with the framework of mens rea carries the danger of grave misuse, often resulting in miscarriage of justice due to wrongful prosecution, denial of fair trial, long incarceration pending trial and conviction and prosecutorial enthusiasm (often shared by courts) for “guilt by association”.4
Touching on two wider themes, the time is ripe to consider at least two questions: (1) Should the state entity as a whole be made liable for genocide? (2) How many forms of anthropogenic harm should be included within a wider notion of genocide? We attend to these large concerns very briefly here.
As to (1) above, while the Genocide Convention casts duties on the State parties to legislate against genocide (Article V), to try individuals who commit genocide (Article VI), or to extradite them to other counties (Article VII), it carefully excludes the State as a perpetrator of genocide. During the debates on Article X of the Convention, India openly expressed anxiety at the prospect that any mandatory submission to the International Court of Justice “would make it possible for any unfriendly State to charge, on vague and unsubstantiated allegations, that another State was responsible for genocide within its territory”. This objection, in different forms, pervades many reservations to the Genocide Convention.
The summary observations of the International Court of Justice (in 1966 judgment) that Article X of the Convention “does not exclude any form of state responsibility” were contested, rightly, by four dissentient justices. In particular, Justice Shigeru Oda explained reasons why the Genocide Convention “is essentially directed not to the rights and obligations of States but to the protection of the rights of the individuals and groups… which have been recognized as universal”.
As to the second concern, it is too late in the day to gainsay the intimate relation between ecocide and genocide; the impact of anthropogenic ecological destruction is keenly felt by human beings, especially indigenous peoples and socially vulnerable peoples. However, habitat destruction for non-human species and objects in nature is also occurring at an alarming pace and co-equal (that is non-anthropomorphic) respect for all living species and objects in Nature is imperative in this 71th year of the Sixth Planetary extinction.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
1Article 7: “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 5 of the present Statute, shall be individually responsible for the crime.”
2Prosecutor v Tadic, Judgment, ICTY Appeals Chamber,|183|, Case No. IT-94-I-A (July 15, 1999).
3Upendra Baxi, “Sources in the Anti- formalist tradition: ‘That monster custom, who Doth All Sense Eat’”, in The Oxford Handbook of the Sources of International Law,.225-241 (Oxford, Oxford University Press, Samantha Besson and Jean d’Aspremon, ed.,2017).
4See, Ciara Damgaard, Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues. Chapter 4, (Springer-Verlag Berlin Heidelberg 2008); Alison Marston Danner and Jenny S Martinez, “Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law”, California Law Review, 93:1, 75- 169 (2005).