Tag Archives: war crimes

War crimes and show trials redux: the ICTY, Karadzic, and Kissinger

A while back I wrote this post about how war crimes trials often ending up seeming like show trials imposing the victor’s justice on their defeated foes. I also asked if any high profile defendants at war crimes trials had been acquitted, and today one has been. Bosnian Serb political leader Radovan Karadzic has been acquitted of one charge of genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY), although he still faces ten more charges of genocide, crimes against humanity, and violations of the laws or customs of war. Here’s what the ICTY said about the acquittal:

Count 1 of the Indictment charges genocide in relation to the crimes alleged to have been committed between 31 March and 31 December 1992 against the Bosnian Muslims and Bosnian Croats in some municipalities in BiH. Having reviewed the totality of the evidence with respect to the killing of, serious bodily or mental harm to, the forcible displacement of, and conditions of life inflicted on Bosnian Muslims and/or Bosnian Croats in the Municipalities, the Chamber found that the evidence even if taken at its highest, does not reach the level from which a reasonable trier of fact could infer that genocide occurred in the Municipalities.

The Chamber noted that genocidal intent can be inferred from a number of factors and circumstances, including the general context of the case, the means available to the perpetrator, the surrounding circumstances, the perpetration of other culpable acts systematically directed against the same group, the numerical scale of atrocities committed, the repetition of destructive and discriminatory acts, the derogatory language targeting the protected group, or the existence of a plan or policy to commit the underlying offence.  The Chamber noted that although it has heard evidence of culpable acts systematically directed against Bosnian Muslims and/or Bosnian Croats in the Municipalities, and of the repetition of discriminatory acts and derogatory language, the nature, scale, and context of these culpable acts do not reach the level from which a reasonable trier of fact could infer that they were committed with genocidal intent.

The Chamber found that whilst the evidence it had heard indicates that the circumstances in which the Bosnian Muslims and/or Bosnian Croats in the Municipalities were forcibly transferred or displaced from their homes were attended by conditions of great hardship and suffering, and that some of those displaced may have suffered serious bodily or mental harm during this process, this evidence does not rise to the level which could sustain a conclusion that the serious bodily or mental harm suffered by those forcibly transferred in the Municipalities was attended by such circumstances as to lead to the death of the whole or part of the displaced population for the purposes of the actus reus for genocide.

If that gave you a TL;DR moment that’s understandable. Damn legal mumbo jumbo! Basically they have said that Karadzic’s actions in relation to this specific charge haven’t crossed the threshold for genocide. I think this is a good sign. I don’t know details of the case but the fact that the court is willing to acquit on this charge shows that defendants are not effectively being convicted before they have been tried. It seems likely that he will be convicted on at least some of the other counts, especially those relating to the Srebenica, but for now the fact that a high profile case can feature an acquittal adds credibility to the international justice system. After all this was a man dubbed the “Butcher of Bosnia” by some in the Western media – not exactly a moniker which implies innocence.

However, until alleged Western war criminals also face charges in a meaningful court the charge that these trials only exist to punish the defeated cannot be ignored. How about we start with Nobel Peace Prize winner Henry Kissinger? As Christopher Hitchens famously pointed out, the case against him is pretty solid. The recent conviction of Charles Taylor for aiding and abetting crimes in Sierra Leone only strengthens the case against Kissinger by establishing a precedent which could see him convicted for even more crimes against humanity. I use Kissinger as an example simply because he’s an easy one, but there are plenty more Western leaders with similar pasts out there. Lets bring them up on war crimes charges!

I don’t think that this will ever happen but if proponents of international justice want to ensure that they are respected then they should fight for justice for all. Seems like a pretty basic principle to me. If Western governments genuinely believe these trials are fair and balanced, and that their own leaders and political figures are innocent of war crimes then why shield them from facing charges? If protecting sovereignty is the issue (a hypocritical excuse that) then they can bring the charges in their own courts. Maybe the defendant can turn up on the back of a flying pig…

Show trials and war crimes

I admit to having some reservations about the trial of Ratko Mladic and others like it… and that’s a hard thing to say because from the evidence I am aware of there does seem to be a very strong case against him. War crimes and crimes against humanity are obviously a big deal and should be punished but the very nature of them as political, high-profile events makes the trials of accused perpetrators very tricky affairs. For a start, the accused can use them as a place to bandstand and promote more hate in a semi-legitamised context. Then there are, as always, the questions about the fairness of such trials in the first place. The delay in the Mladic case as the result of errors in the handling of prosecution evidence was unfortunate but at least shows the tribunal is not overtly biased towards the prosecution. However, has any defendant ever been found not guilty in a modern high-profile war crimes trial? Not as far as I’m aware, and that is slightly worrying for me (if anyone knows of an example, please let me know).  I’m willing to bet that Mladic will be found guilty too, which does make you wonder about the extent to which war crimes trials are really show trials, enforcing the victor’s justice. Of course there is nothing new about this. After all, no Allied airmen or leaders were ever held accountable for the crime of carpet bombing Germany and Japan (not to mention twice nuking Japan) in WWII despite such actions clearly being in violation of the principle of proportionality as laid out in International Humanitarian Law.

The best way to dismiss these worries would be to bring some of the West’s alleged war criminals up for trial at the ICC (that’s the International Criminal Court, not the International Cricket Council) – but that particular body seems more concerned with Africans, and the US and others are not party to it anyway.

All of which raises an interesting question for me: is it better to have a system which selectively tries war crimes in a seemingly biased fashion, or to have no system at all? If the only war criminals who get caught and convicted are those from marginalised or weak states it clearly is not fair, but not convicting anyone at all is even less fair. So we end up with the current situation, as imperfect as it is. Mladic will be found guilty, his supporters will claim it was never a fair trial, and people in powerful states who are responsible for violations of the war of law will go unpunished. Such is the nature of the international political landscape – liberal institutions only operate in as far as it’s in powerful states interest for the to do so. At least some war crimes are punished, and that fact alone should be applauded. It’s just a shame that moving beyond this point seems so unlikely at the moment.