Mladic Trial Focus

Rachel Irwin

Senior Reporter

Friday, 10 June, 2011

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As court proceedings get underway against former Bosnian Serb army commander Ratko Mladic, IWPR Hague reporter Rachel Irwin examines arguably the most significant trial to take place at the Hague tribunal.

Why is the arrest of Ratko Mladic so important?

The arrest of Mladic is significant on several fronts.

First, as the highest-ranking military officer in the Bosnian Serb army during the Bosnian war, Mladic is alleged to have been directly responsible for some of the conflict’s worst atrocities. This includes the 1995 Srebrenica massacre, during which some 8,000 Bosniak (Bosnian Muslim) men and boys were murdered, as well as the 44-month shelling and sniping campaign on Sarajevo, which killed about 12,000 civilians.

Until his arrest in the Serbian village of Lazarevo on May 26, Mladic was a fugitive from justice for 16 years. His presence, however, has loomed over numerous trials at the International Criminal Tribunal for the Former Yugoslavia, ICTY, in The Hague, where he has been frequently mentioned in witness testimony and judgements.

The now infamous video footage of Mladic strolling down the streets of Srebrenica and handing out candy to Bosniak children shortly before the massacre began has been shown several times in court already. As has video footage of Mladic boarding buses filled with Bosniaks about to be deported from Zepa, an enclave close to Srebrenica. As he boards each bus, he tells the passengers that he is giving them their lives “as a gift”. “You could all have lived here if your people had not touched us,” he tells them.

Law scholars and historians have said that despite conducting proceedings against 125 people since its inception in 1993 – including former Serbian president Slobodan Milosevic and ex Bosnian Serb president Radovan Karadzic, whose trial is still ongoing - the tribunal might have ultimately been considered a failure if Mladic had escaped justice.

The arrest is also particularly significant for victims and their families. Even today, there are still some survivors who have not been able to locate the remains of their loved ones who perished in Srebrenica, and many survivors hold Mladic personally responsible for their loss. During the defendant’s initial appearance in The Hague, Bosniak women seated in the public gallery wept as the charges were read out.

Mladic’s capture is significant for Serbia as well, especially since his status as a fugitive had effectively blocked its efforts to become a member of the European Union.

On June 6, after years of leveling heavy criticism at Serbia’s efforts to find and arrest Mladic, tribunal prosecutor Serge Brammertz told the United Nations Security Council that “Serbia has met one of its key obligations towards the tribunal and simultaneously acknowledged the rule of law as a central building block for its future”.

He further stated that “for the tribunal, it removes one of the last obstacles to holding accountable those most responsible for the wartime atrocities in the former Yugoslavia. For international criminal justice, it confirms that accountability”.  

Mladic is charged with several modes of liability, including command responsibility and participation in a joint criminal enterprise. What does this mean?

According to the indictment, Mladic is charged with individual criminal responsibility for planning, instigating, ordering and/or abetting the 11 counts in the indictment, which include genocide, persecutions, extermination, murder, deportation, unlawful attacks on the civilian population, and the taking of UN hostages.

In addition, he is charged with command responsibility on all of those counts. This means that even if he did not plan or carry out the crimes himself, he knew – or had reason to know – that the crimes would be or had been committed by his subordinates, and he failed to take “necessary and reasonable” measures to prevent the crimes or punish the perpetrators.

The indictment also utilises a doctrine known as a Joint Criminal Enterprise, or JCE.

In its most basic form, a JCE involves more than one person and a common plan to commit a crime. For example, if a group of people get together to plan a crime, but only one person carries it out, each person who took part in the planning would be considered just as responsible as the person who “pulled the trigger”.

Mladic is charged with having participated in several JCEs, including an overarching plan with Karadzic to secure “the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory”.

The two men are also charged with three additional JCEs, the objectives of which were to spread terror among the civilian population of Sarajevo through a campaign of sniping and shelling, to eliminate Bosniaks from Srebrenica, and to take UN personnel as hostages, reads the indictment. Other senior members of the Bosnian Serb leadership are also alleged to have been part of these common plans. 

He’s accused of genocide – what does that weighty term actually mean?

At the ICTY, genocide is defined as acts which are committed with the intent to destroy, in whole or in part, a “national, ethnical, racial or religious group”.

There are two counts of genocide in the indictment – one covers the July 1995 Srebrenica massacre, and the other deals with nine municipalities where Bosniaks and Croats were killed, detained, tortured and/or abused by Bosnian Serb forces throughout the war.

The Srebrenica massacre has already been established as genocide in previous trials at the ICTY as well as at the International Court of Justice, ICJ. What prosecutors have not been able to prove in other cases is that genocide occurred in the other Bosnian municipalities, and the Mladic trial is seen as the last chance to try to accomplish this.

Lawyers say that genocide is a particularly difficult crime to prove because “genocidal intent” needs to be established. In other words, prosecutors will have to demonstrate that Mladic had the specific intent to destroy part of the Bosnian Croat and Bosniak people. 

Aren’t there just too many charges to get a trial completed in a reasonable time frame, given concerns over Maldic’s health?

Most people want trials in international tribunals to be both comprehensive and speedy, but this is not an easy thing to accomplish, especially with high level cases involving more than one crime base.

The complexity and nature of these cases means that they simply take longer to prosecute and adjudicate than would a trial in a national jurisdiction. Therefore, a “reasonable” time frame means something different at the tribunal than it would elsewhere. In fact, Mladic’s indictment is a lot more streamlined than some people would like, and it is not nearly as wide ranging as that of ex-Serbian president Slobodan Milosevic, who died in 2006 before his trial could even be completed.

Long trials – between one and four years – are not especially unusual at the tribunal, so if Mladic remains well, there is no reason why he couldn’t handle one himself. However, if judges and prosecutors are concerned that Mladic won’t survive a lengthy trial, there might be moves to reduce the scope of the indictment, though this too would be a complicated decision. (For more on this, see Should Mladic Charges be Cut?)

There’s talk of joining the case with Karadzic – won’t that just make things more complex? Karadzic is already a third of the way through.

Yes, at this point it would be extremely complicated to join Mladic’s case with Karadzic’s, even though their indictments are virtually identical.

After numerous delays, witness testimony finally got underway in the Karadzic trial in April 2010, and now, over a year later, prosecutors have already presented the entire portion of their case relating to the siege of Sarajevo. The court is currently hearing testimony relating to crimes committed in Bosnian municipalities. Therefore, if judges tried to join the cases now, Mladic’s defence lawyers would probably demand that all the previous witnesses return to be cross examined for a second time. This could result in substantial delays and logistical complexities.

If prosecutors and judges really want to merge the cases in some way, they might try to join the Srebrenica portion of the cases together, while the rest of each indictment is heard separately. At this time, the prosecution has said it is considering all possibilities and has not decided whether to request a joinder of any kind. (For more on this, see Mladic Unlikely to Face Trial With Karadzic) 

What happens if his health becomes an issue – won’t it delay the trial to the point of futility?

Despite his frail appearance and slurred speech at the initial appearance, the nature of Mladic’s health problems have not been confirmed, and the tribunal has declined to provide specific details. Court spokeswoman Nerma Jelacic told journalists this week that “all proceedings have been running smoothly and that there are currently no threats regarding his health”, contrary to some media reports.

If Mladic does fall ill, it could indeed delay the trial, but just how much would have to be determined by judges. At this stage, it is too early to say how the situation would be handled, or if it would ultimately make holding a trial impossible.

How will the Mladic trial affect the tribunal’s completion strategy?

The tribunal, established by the UN in 1993, is an ad hoc institution and is therefore operating under a completion strategy that has been pushed back several times already. Last year, the UN Security Council officially set up a separate body, known as the “residual mechanism”, which will take over the court’s remaining tasks in July 2013. However, Mladic will not be tried by the residual mechanism because he was arrested more than 12 months before it is due to begin its work.  

When will the Mladic trial start?

The prosecution said this week that it is too early to estimate when the trial may start, but that it may take several months. This is typical at the tribunal, especially in high-level cases. The prosecutor’s opening statements in the trial of Karadzic did not commence until October 2009 – 15 months after the defendant’s arrest.

Rachel Irwin is an IWPR reporter in The Hague.