ICTY Delivers Ruling on Two Landmark Cases Before Shutting Its Doors
The International Criminal Tribunal for the former Yugoslavia (ICTY) has issued judgments in its final two cases ahead of the tribunal’s scheduled closure in December. On November 22, 2017, the ICTY – the ad hoc tribunal established by the United Nations to address war crimes committed after 1991 in the territory of the former Yugoslavia – convicted and sentenced Ratko Mladić, also known as the “Butcher of Bosnia,” to life imprisonment for genocide, crimes against humanity, and other war crimes. [ICTY Press Release: Mladić; HRW] In the wake of his conviction, the international human rights community has shown strong support for the Mladić decision, with UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein hailing the judgment as a momentous conviction and describing Mladić as the “epitome of evil.” [OHCHR Press Release] On November 29, 2017, the ICTY issued a judgment on appeal in the case Prosecutor v. Prlić et al., which will be the Tribunal’s final decision. [ICTY Press Release: Prlić et al.] The Appeals Chamber upheld the sentences of the six individuals, who remain convicted of crimes against humanity, violations of the laws or customs of war, and grave breaches of the Geneva Conventions for crimes committed against Bosnian Muslims. [ICTY Press Release: Prlić et al.] The ICTY, which has its seat in The Hague, Netherlands, will formally close on December 31, 2017 after 24 years of operation and concluding proceedings for 161 accused. [ICTY Press Release: Prlić et al.] See ICTY, Key Figures of the Cases.
The Mladić Case
On July 4 and November 16, 1995, Ratko Mladić, the Commander of the Main Staff of the Bosnian Serb Army during the conflict in Bosnia, was indicted on 11 charges: two counts of genocide, five counts of crimes against humanity, and four counts of violations of the laws or customs of war. [ICTY Press Release: Mladić] See ICTY, Prosecutor v. Mladić, Case IT-09-92, Trial Chamber Judgment, 22 November 2017, paras. 3-9. All indictments pertained to actions Mladić committed in Bosnia and Herzegovina. See Prosecutor v. Mladić, Trial Chamber Judgment, 22 November 2017, paras. 3-9. However, after the indictment Mladić went into hiding and was able to evade arrest for 16 years before his capture in Serbia on May 26, 2011. See id. at para. 1. Mladić’s trial at the ICTY did not begin until May 16, 2012, almost 17 years after the initial indictment was filed, and the trial lasted over four years. See id.
The Prosecutor’s Theory of the Case
The prosecution argued that Mladić was guilty of the charges due to his participation in four separate joint criminal enterprises (JCEs), which is a form of criminal liability where two or more people act together for a common criminal purpose. See id. at paras. 10-12. The first JCE, the “Overarching JCE,” involved a common plan to push out Bosnian Muslims and Bosnian Croats from specific territory in several municipalities between 1991 and 1995. See id. at para. 11; ICTY, Trial Judgment Summary for Ratko Mladić (2017), at 1. The second JCE, the “Sarajevo JCE,” involved sniping and shelling civilians with the intent to terrorize the population between April 1992 and November 1995. See Prosecutor v. Mladić, Trial Chamber Judgment, 22 November 2017, para. 12; ICTY, Trial Judgment Summary for Ratko Mladić, at 1. The third JCE, the “Srebrenica JCE,” concerned a plan to destroy the Bosnian Muslim population in Srebrenica by killing the men and boys of Srebrenica and forcibly removing the women, girls, and some elderly men. See id. Lastly, the fourth JCE, the “Hostages JCE,” involved the capture of over 200 United Nations peacekeepers and military observers to use as leverage to stop NATO airstrikes against Bosnian Serb military. See id.
Criminal Liability for Joint Criminal Enterprises
There are three ways that an accused may be criminally liable for participation in a JCE. The first form of liability attaches where the accused voluntarily participates in one aspect of the common plan to commit the criminal act; the second form of liability attaches in cases similar to the first where offences charged were alleged to have been committed by members of military or administrative units that ran or oversaw organized systems of wrongdoing; and the third form of liability attaches where one or more of the co-perpetrators commits an act that, while outside of the common plan, is a foreseeable consequence of the implementation of the common plan. See Prosecutor v. Mladić, Trial Chamber Judgment, 22 November 2017, paras. 3558-60. To prove a JCE, the prosecution must show (i) the existence of a common plan that involves the commission of a crime, (ii) that more than one person participated in the realization of the plan, and (iii) that the accused participated in the implementation of the common plan. See id. at para. 3561.
The ICTY’s Findings and Judgment
With respect to the Overarching JCE, the ICTY found that Mladić significantly contributed to campaigns across Bosnia and Herzegovina with the intent to expel Bosnian Croats and Muslims between 1992 and 1995. See id. at paras. 4610-4688. The ICTY found that Mladić shared the intent to expel Bosnian Croats and Mulsims through the commission of the crimes of murder of thousands of civilians; inhumane acts, including forcible transfer of more than one million Bosnians; detention of tens of thousands of civilians; deportation; and persecution. See id. at paras. 4688.
On the issue of the Sarajevo JCE, the ICTY found that Mladić significantly contributed to the “Siege of Sarajevo,” where he oversaw a campaign of sniping and artillery shelling against civilians in Sarajevo with the intention of terrorizing the population. See id. at paras. 4892-93. These acts, the Tribunal held, constitute the crimes of terror, unlawful attacks against civilians, and murder. See id. at para. 4893.
The Tribunal also found that Mladić was instrumental in the Srebrenica JCE, where Mladić engaged in a comprehensive plan to eliminate the Bosnian Muslims of Srebrenica. The Tribunal found that Mladić’s participation in killing the men and boys of Srebrenica and the forcible removal of the women, young children, and some elderly men constituted the crimes of genocide, extermination, and murder. See id. at paras. 5096-98.
Lastly, the Tribunal found that Mladić participated in the Hostages JCE, where he was involved in every stage of the hostage-taking, from ordering the capture of the UN peacekeepers to negotiating with those seeking the peacekeepers’ release. See id. at para. 5156. The Tribunal found that Mladić ordered the detention of peacekeepers, threatened their lives, and used them as human shields, in violation of the laws or customs of war. See id. at paras. 5144-5163.
Due to Mladić’s participation in the four JCEs, the Tribunal found Mladić guilty on 10 of the 11 charges brought against him. The ICTY held Mladić guilty, as a member of the JCEs, of genocide; persecution, extermination, murder, deportation, and inhumane acts as crimes against humanity; and murder, acts of violence with the purpose of spreading terror among civilians, unlawful attacks on civilians, and the taking of hostages as violations of the customs of war. See id. at para. 5168. The only charge on which the ICTY found Mladić not guilty was the first count of genocide for the acts committed under the Overarching JCE. The Tribunal found that the perpetrators did not have the intent to destroy the protected groups, Bosnian Muslims and Bosnian Croats. See id. at paras. 4324, 4327. The ICTY nonetheless found Mladić guilty of genocide for his actions committed in Srebrenica.
The Tribunal sentenced Mladić to life imprisonment for his crimes. See id. at para. 5215. Notably, Mladić’s sentence exceeds the sentence that the ICTY handed down to Radovan Karadžić last year for similar crimes. See ICTY, Prosecutor v. Karadžić, Case IT-95-5/18-T, Trial Chamber Judgment, 24 March 2016, paras. 6001-6010. Sentenced on March 24, 2016, Karadžić, was convicted for involvement in the same four JCEs as Mladić, but Karadžić only received a 40-year sentence. See id.
The Jadranko Prlić et al. Case
The ICTY issued its final judgment on November 29, 2017. [ICTY Press Release: Prlić et al.] The final case, Prosecutor v. Jadranko Prlić et al., concerned the six trial court judgments of Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić, and Berislav Pušić, who were convicted of participating in a JCE that sought to create a Croatian entity in Bosnia and Herzegovina by engaging in the removal of the Muslim population in several municipalities. See ICTY, Prosecutor v. Jadranko Prlić et al., Case IT-04-74-A, Appellate Chamber Judgment, 29 November 2017, at paras. 2-17; ICTY, Judgement Summary for Jadrank Prlić and others (2013).
In the trial court judgments, the ICTY found that a JCE existed with the purpose of ethnic cleansing of the Muslim population, and that at least one of the accused committed grave breaches of the Geneva Conventions through willful killing, inhuman treatment (sexual assault and conditions of confinement), unlawful deportation, unlawful transfer, unlawful confinement, and destruction of property not justified by military necessity; violations of the laws or customs of war through unlawful labor, destruction of institutions dedicated to religion or education, and unlawful attack on civilians; and crimes against humanity through murder, persecution, rape, deportation, inhumane acts (forcible transfer and conditions of detention), and imprisonment. See id. at paras. 2, 4-9.
The ICTY Appeals Chamber upheld almost all of the trial chamber’s judgments. The Chamber affirmed the existence of the JCE to deport the Muslim population of several municipalities in Bosnia and Herzegovina, and the Chamber affirmed that the appellants participated in the JCE. See id. at paras. 782, 1014, 1400, 1806-07, 2083-84, 2468, 2595, 2832. Accordingly, all six of the appellants remain convicted of crimes against humanity, violations of the laws or customs of war, and grave breaches of the Geneva Conventions. [ICTY Press Release: Prlić et al.] See ICTY, Judgement Summary: Appeals Chamber (2017), at 11-17.
The Appeals Chamber did grant limited grounds of appeal in the cases of Stojić, Praljak, Petković, and Ćorić, as well as granting certain appeals made by the prosecution. The grounds for reversal pertained to narrow factual findings by the trial court, as well as the prosecutor’s argument that the trial court failed to take Ćorić’s superior responsibility into account during sentencing. [ICTY Press Release: Prlić et al.] See ICTY, Judgment Summary: Appeals Chamber, at 2-18. However, the sentences of Stojić, Praljak, Petković, Ćorić remained unchanged from the trial court’s rulings. See id. at 11-17.
In addition to being the ICTY’s final case, Prlić et al. will likely be remembered for the events that transpired during the Chamber’s reading of the judgment. After the judges delivered the decision, Slobodan Praljak declared his objection to the Chamber’s ruling, at which point he consumed a vial of poison that he had smuggled into the chamber. [The Guardian] Praljak was rushed to a hospital, but he died later that day. [The Guardian]
The ICTY’s Permanent Closure
Despite the ICTY’s closure, certain individuals of the 90 convicted and sentenced before the ICTY still maintain the right to appeal. See ICTY, Key Figures of the Cases. All appeals of ICTY trial decisions filed after July 1, 2013, which would include Mladić should he choose to appeal, are handled by the Mechanism for International Criminal Tribunals (MICT), which was established to assume the residual functions of the ICTY and other international courts as those bodies finish their mandate. See MICT, Functions of the MICT; UN Security Council, Resolution 1966, Resolution 1966 (2010), UN Doc. S/RES/1966, 22 December 2010, para. 1.
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