By Dr. Zarije Seizović
Dr. Zarije Seizović graduated from the Sarajevo Law School and holds Master of Science and Doctorate in Political Sciences. He is currently employed as Full Professor at the Faculty of Political Sciences of the University of Sarajevo, where he teaches International Humanitarian Law, Law of Defence and Security, Political System of BiH, Study of Holocaust and Genocide at Bachelor and Master level, and Humanitarian Interventions and Collective Security at doctoral level. He worked as a lawyer in the War Crimes Chamber of the BiH State Court, as legal counsel in number of international organizations such as OSCE and UN Missions to BiH as well as International Crisis Group (ICG). He also worked as an Attorney-at-Law, Criminal Court Judge and Registrar of the Constitutional Court of the Federation of BiH, and spokesperson of the Border Police of BiH. As consultant he was involved in a number of judicial and public administration reform projects in BiH and Balkans. He is the author/co-author of 17 books in English and national language/s as well more than 100 articles published in BiH and abroad. He is member of Political Sciences Board of the Academy of Sciences and Arts of Bosnia and Herzegovina.
I 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.
II 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.
III International Residual Mechanism for Criminal Tribunals’ Decision
The Appeals Chamber of the International Residual Mechanism for Criminal Tribunals on 8 June 2021 delivered its judgement on the appeals filed by Mr. Ratko Mladić and the Prosecution against the judgement rendered on 22 November 2017 by a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”).
The Appeals Chamber unanimously dismissed Mr. Mladić’s appeal in relation to the Hostage-Taking JCE and dismissed his appeal in relation to the Overarching JCE, the Sarajevo JCE, the Srebrenica JCE, as well as arguments related to his fair trial rights with Judge Nyambe dissenting. The Appeals Chamber 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 Appeals Chamber further dismissed the Prosecution’s appeal in its entirety, two judges dissenting, and accordingly affirmed the Trial Chamber finding that Mr. Mladić is not guilty of genocide under Count 1 of the Indictment in relation to crimes committed against Bosnian Muslims and Bosnian Croats in certain municipalities in Bosnia and Herzegovina.
The Appeals Chamber affirmed the sentence of life imprisonment imposed on Mr. Mladić by the Trial Chamber, with Judge Nyambe dissenting.
IV Political and Legal 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 The Army of Yugoslavia (Vojska Jugoslavije), the second instance verdict established a direct link to regime of Slobodan Milosevic in Belgrade, and showed 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 before the ICJ (case Bosnia and Herzegovina v. Serbia and Montenegro), revealed 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 7-8 years is being meticulously wiped away be the verdicts of ICTY (by General Perisic 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)
As Mladić was found guilty as charged, it shed a completely new “political and legal light” on the what had happened in Bosnia during the armed conflict 1992-95: (1) it established that genocide and other war crimes were planned and executed not only by the Bosnian Serb Army; (2) it implicitly denoted Serbia a participant to an armed conflict in Bosnia and (3) it raised responsibility of the State of Serbia for crimes committed across its international borders, further implicitly confirming that the armed conflict in Bosnia was not an internal conflict (civil war) but an international armed conflict. Namely, General Ratko Mladić was on the payroll of the Armed Forces of Yugoslavia (Vojska Jugoslavije) and 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 “backed up” by the political and military establishment of the neighbouring Republic of Serbia. Eventually, the above-described factual background under no circumstances may serve to BiH as legal basis for any legal action before the ICJ as the deadline for such action set by the Statute of the ICJ had already passed. Pursuant to Article 61 of the Statute of the ICJ,
1. An application for revision of a judgement may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.
The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.
4. The application for revision must be made at latest within six months of the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from the date of the judgment.
What a bizarre coincidence?! Ten years had passed. Has justice really been done!?