Should Mladic Charges be Cut?

Rachel Irwin

Senior Reporter

Thursday, 2 June, 2011

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While the exact nature of Ratko Mladic’s health problems has yet to be confirmed, concerns have emerged about whether he would survive a lengthy trial in The Hague.

Some observers have suggested that it would be better to seek a conviction for one major crime – for example, the 1995 Srebrenica massacre – than to pursue all the charges against Mladic, now 69, given the possibility that he might not survive a long-running trial at the International Criminal Tribunal for the Former Yugoslavia, ICTY.

Opponents of curtailing the indictment say that doing so would be a betrayal of victims in the 1992-95 Bosnia conflict, and that conducting a comprehensive trial is of great historical significance.

“I think it’s going to be a huge issue,” Marko Prelec, a senior analyst with the International Crisis Group who formerly worked as a research officer in the ICT Office of the Prosecutor, said. “There is going to be a lot of pressure on the prosecutor and the trial chamber, going in both directions. The criminal conduct of Mladic doesn’t begin and end with Srebrenica. A lot of people would feel upset – not even upset; they would feel betrayed – if the indictment were reduced to Srebrenica.”

On other hand, Prelec said, “no one wants a replay of the Milosevic trial”.

Former Serbian president Slobodan Milosevic died in 2006, four years after his trial in The Hague began. The case was left unresolved, with no verdict.

In what may have been an allusion to the Milosevic case, ICTY prosecutor Serge Brammertz said at a June 1 press conference that “we will draw on the many lessons we have learned over the years to make the Mladic prosecution successful”.

Mladic, who commanded the Bosnian Serb army from 1992 to 1996, escaped arrest for some 16 years before being captured last week in the Serbian village of Lazarevo.

In photos released afterwards, Mladic appeared to have aged considerably, bearing little resemblance to the robust general shown in wartime video footage.

In an amended indictment which tribunal judges confirmed last week, Mladic is accused of responsibility for the some of the worst abuses of the Bosnian war, including the 44-month siege of Sarajevo in which about 12,000 civilians were killed, and the massacre in Srebrenica, where some 8,000 Bosniak (Bosnian Muslim) men and boys were murdered. Srebrenica is regarded as the worst single atrocity committed in Europe since the Second World War.

Mladic is also charged with crimes of genocide, persecution, extermination, murder and forcible transfer committed over 23 municipalities in Bosnia.

The amended indictment is now almost identical to that of Mladic’s political superior, the then Bosnian Serb president Radovan Karadzic, who was arrested in 2008 and is now standing trial at the tribunal.

Both Mladic and Karadzic are alleged to have been part of a joint criminal enterprise designed to remove Bosnian Muslims and Croats from Serb-claimed territory in Bosnia-Hercegovina.

Witness testimony in the Karadzic trial began being heard in April 2010, but the prosecution is still only a little more than one-third of the way through its case. It is likely to take at least another year before the prosecution process is completed, at which point the trial moves into the defence phase, and that could take another year or more.

Although the Karadzic trial has been subject to additional delays due the accused man’s decision to represent himself, the time it is taking demonstrates how long proceedings against Mladic might take, given that the two indictments are largely the same.

When the ICTY took action against the two top Bosnian Serb figures in 1995, it was in the form of a joint indictment of Karadzic and Mladic. The two cases were officially severed after Karadzic was arrested so that he could be tried while Mladic was still a fugitive.

The indictment was amended with reference to Mladic in 2002, and prosecutors filed a new, second amendment on June 1, 2011.

It will be some months before the Mladic trial gets under way, assuming that the prosecution does not request that it is joined together with Karadzic’s. (For more on this possibility, see Mladic Unlikely to Face Trial With Karadzic.)

Hague prosecutors must now weigh up whether it is preferable to seek a shorter trial with a more imminent verdict, or a more comprehensive one that covers all the ground, but with the risk Mladic might not survive.

“I think it’s for the prosecutor to make that risk assessment and see what a reduction would mean in terms of time… and see if it’s worth it,” Goran Sluiter, a law professor at the University of Amsterdam.

He noted that even if the indictment was reduced to cover only Srebrenica, that would still be a substantial charge.

Gideon Boas, who served as a senior legal officer in chambers during the Milosevic case and is now a senior lecturer at Monash University Law School in Australia, said it was unlikely that prosecutors would take the “hard decision” to reduce the charge-sheet given the upset it would cause, notably among victims.

When judges asked prosecutors to make cuts to the Karadzic indictment ahead of trial in September 2009, victims’ groups staged angry protests in Sarajevo. In the end, the prosecution team did not make the cuts the judges had asked for.

The charges facing Mladic do appear more manageable when set against the complex and lengthy indictment brought against Milosevic, which covered the conflicts in Bosnia, Croatia and Kosovo. Many legal experts say the indictment should have been divided to enable three separate trials to be held, making a judgement in at least one of them more likely.

“Compared to the Milosevic indictment, it doesn’t seem that big or difficult to me,” Marko Attila Hoare, a British historian of the former Yugoslavia who formerly worked as a research officer at the ICTY, said.

Hoare believes health issues should not be a factor in determining the scope of the Mladic trial.

“He could die tomorrow, or he could survive for years,” Hoare said. “You can’t really base a trial on that. You can’t just cut the crime base down because you’re afraid he might die.”

Whatever decision the prosecutor takes on how to proceed, he is likely to come under fire from some quarters.

“If there is a trial with things missing from the indictment, and it would finish, then people would criticise [Brammertz] for not keeping the bigger indictment, in the event that Mladic is relatively OK,” Sluiter said. “Of course, if he goes for a bigger indictment and there is something wrong with Mladic’s health, he will be criticised for that.”

Hoare points out that the Mladic trial represents the last opportunity for Hague prosecutors to prove that genocide occurred in various parts of Bosnia, not just at Srebrenica. While the 1995 massacre has already been established as genocide at previous Hague trials, prosecutors have so failed to demonstrate that it happened elsewhere during the war.

“For the historical record, I think it’s important that [the indictment] not be cut back too much, so that at least [Mladic] is prosecuted for genocide in Bosnia as a whole,” Hoare said.

Confining the charges to Srebrenica would “be taking the easy way out”, he said, adding, “Given how high-profile Mladic is, if justice wasn’t seen to be done outside of Srebrenica, that would be seen as a cop-out by a lot of people.”

The ICTY often cites the establishment of historical record as one of its accomplishments, At the June 1 press conference announcing the date of Mladic’s first appearance, prosecutor Brammertz said he “recognised the courage” shown by victims. “Without their support and involvement, the tribunal would have achieved nothing,” he said.

Boas, however, argues that the tribunal is “at heart a criminal court”, and not equipped to provide a full historical account of all the events that occurred during the wars in the former Yugoslavia, or to involve victims in the process beyond their role as witnesses.

“I think its capacity to deliver on those aspects of international criminal justice is limited,” Boas said.

Other observers agree that it is difficult for one institution to try to be so many things at once, especially for such diverse constituencies in the former Yugoslav states and beyond.

As Prelec notes, the court has to address the interests of groups ranging from victims’ associations to the international legal community, and in addition, “there are some expectations that are layered on top of that – that trials should lead to reconciliation and provide a narrative. It really begins to be an impossible agenda to satisfy all of those things.”

Seen in that light, he said, “a trial that simply decides [Mladic’s] fate is not really adequate”.

Rachel Irwin is an IWPR reporter in The Hague.