The round-up: Genocide, domestic violence and justice on holiday
30 March 2016
In the news
Radovan Karadžić, the former Bosnian Serb leader, has been sentenced to 40 years in jail for genocide and war crimes committed during the 1992-95 Balkans war, including the massacre of more than 8,000 Bosnian men and boys at Srebrenica and the siege of Sarajevo, during which 13,952 people were killed. Despite the 70-year-old former leader’s insistence that his actions were aimed at protecting Serbs during the conflict, he was found guilty of 10 out of the 11 charges he faced, in a verdict delivered 18 months after the end of his five-year trial.
Karadžić had been indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) which was established by the UN in 1993. He was on the run for the next 13 years, during which time he assumed the identity of ‘Dr Dragon Dabic’, a bearded health guru who lived openly in the Serbian capital. He was finally arrested in 2008 and handed over to the Hague by the Serbian government.
The presiding ICTY judge, O-Gon Kwon, said in relation to Srebrenica that Karadžić had shared the expanded common purpose of killing the Bosnian Muslim male victims and that he significantly contributed to this purpose. Moreover, Karadžić had ordered the Bosnian male detainees to be transferred to be killed, when he was the only person with the power to intervene and protect them. He was also convicted of five counts of crimes against humanity and four war crimes.
The tribunal’s chief prosecutor, Serge Brammertz, said of the verdict, “Moments like this should also remind us that in innumerable conflicts around the world today, millions of victims are waiting for their own justice. This judgment shows that it is possible to deliver it.”
Reactions have been predictably varied. The current president of the Bosnian-Serb Republic, Milorad Dodik, has condemned the decision, saying, “the West has apportioned blame to the Serbian people and that guilty cliche was imposed on all the decision makers, including …Karadžić”, adding, “It really hurt” that someone had decided to deliver the verdict in the Hague on the same day that Nato had decided to bomb Serbia in 1999. The Russian Foreign Ministry have also released a statement criticising the decision, accusing the tribunal of becoming a “place to settle old scores”.
Others have reacted with anger to the fact that Karadžić did not receive a life sentence. One bereaved mother from Srebrenica asked, “Is the tribunal not ashamed? Do Bosnian Muslims and Bosnian Croats not have a right to justice?”
Three suspects remain on trial, including Karadžić’s military chief, Mladic, and Vojislav Šešelj, with judgment for the latter expected on Thursday. Eight cases are being appealed and two defendants face retrials. Karadžić is expected to appeal.
- French journalist Florence Hartmann, former correspondent for Le Monde, has also been jailed at the war crimes tribunal in The Hague, according to the Guardian. She was arrested ahead of the verdict handed down to Karadžić, when she was approached by UN police outside the tribunal where she waited with survivors of the Bosnian war and victims’ families. Despite attempts by demonstrators to close ranks around her, she was taken into the tribunal by police and “dragged through the lobby”, shouting protests. Hartmann was convicted in 2009 of contempt of court for revealing in a 2007 book, Paix et châtiment, that documents that proved Serbian complicity in the Srebrenica massacre of 1995 had been kept secret by the tribunal. Her lawyer, Guénaël Mettraux, has described her situation as a “disgrace”, saying she is being held in solitary isolation and on suicide watch – conditions which were supposed to be created for war criminals, not journalists. Despite filing three motions on Thursday of last week, one of which for her early release, he laments the absence of anyone at the detention unit to address his inquires, due to the Easter break – “bear in mind that so-called justice takes holidays”, in the words of her son, “and my mother will rot in jail all this time”.
- Children as young as seven are ‘sexting’ at school, according to a report by NASUWT, and more than half of teachers are aware of incidents of children sexting at their school. The majority of incidents involve children aged 13-16 and Childlike dealt with more than 1,200 cases last year of young people worried about indecent images they had shared or who felt pressured into sexting. Last month, Maria Miller, the chair of the women and equalities select committee, called on the Government to introduce mandatory sex education to address the “appalling effect” on boys and girls, as it emerged that an estimated 44,000 secondary school pupils have been caught sharing indecent images. In one case, girls in Year 9 got hold of explicit ‘selfies’ of their classmate and showed the image to everyone else, resulting in them in effect distributing child pornography, as the current law on sexting makes it an offence for anyone to take, possess or distribute an indecent image of anyone under the age of 18. The NSPCC has called for sexting to be included in sex and relationships education. Nicky Morgan, the Education Secretary, has not yet seen the benefit in making sex education mandatory (only the parts which fall under the science curriculum are), despite four House of Commons committees pressing for it in February, and widespread support from charities, as well as teachers, parents and children (according to MPs).
In the Courts
- MG v Turkey – The Turkish authorities are under the spotlight again for their “general and discriminatory judicial passivity” towards women’s experience of domestic violence, finding violations of both Article 3 and Article 14 in this case (see last month’s judgment in Civek v Turkey). MG had been abused by her husband for nine years during her marriage, culminating in fleeing her home and lodging a complaint with the public prosecutor in 2006. More than five and a half years after MG’s complaint to the public prosecutor against her husband, criminal proceedings were apparently still pending (having only been opened in 2012 when her husband was charged). Regarding Article 3, the Court emphasised the particular diligence needed when dealing with issues of domestic violence and that the Istanbul Convention (on preventing and combating violence against women and domestic violence, which the UK has failed to ratify) required State Parties to take necessary measures to ensure that investigations and proceedings were carried out without undue delay. Regarding Article 14 (taken together with Article 3), the Court reiterated that failing to protect women from domestic violence breached their right to equal protection under the law. They further emphasised that violence against women is to be understood as a violation of human rights and a form of discrimination against women, under Article 3 of the Istanbul Convention. The discriminatory judicial passivity in Turkey created an atmosphere conducive to domestic violence.
- Blokhin v Russia – The Court held unanimously that the 30-day detention of a 12-year-old boy suffering from a mental disorder was a violation of article 3 (prohibition of inhuman or degrading treatment), article 5 § 1 (right to liberty and security) and and article 6 § 1 and § 3 (right to a fair trial). Regarding article 3, it was found that the young boy had not received adequate medical care at the detention centre for juvenile offenders. The detention had not been justified under 5 § 1(d) (which provides minors can be detained for educational supervision) because it was not for an educational purpose, but rather for ‘behaviour correction’ and to prevent him from engaging in further delinquency. The detention was considered by the Court to constitute criminal proceedings for the purpose of article 6. They found that his defence rights had been violated since he had been questioned by the police without legal assistance and he had been unable to question the two witnesses – a 9 year-old boy and his mother – whose statements had served as a basis for his detention. It was held to be essential that procedural safeguards were in place to protect the best interests of a child when their liberty was at stake, and that additional safeguards might be required where children with disabilities were concerned.
- FG v Sweden – This case concerned the refusal of asylum to an Iranian national who had converted to Christianity in Sweden. FG alleged that if expelled to Iran he would be at a real risk of being persecuted and punished or sentenced to death due to his conversion to Christianity from Islam and his political past in the country. The Court held that there would be a violation of article 2 (right to life) and article 3 (prohibition of torture and inhuman or degrading treatment) if he were to be returned to Iran without a fresh and recent assessment by the Swedish authorities of the consequences of his conversion to Christianity upon his return. There would not be, however, a violation of article 2 or article 3 on account of his political past in Iran were he to be deported, as the Court considered Sweden had properly taken into account his political activities against the regime to conclude he was not in need of protection.
- Human rights – a coat of many colours, Angela Patrick
The ICTY Trial Chamber produced almost 3,000 pages in the present case! And yet, the decision appears to be a short and kind of simplistic account of what actually happened for one reason and that is that the war in the region did not start in 1993 how the decision states but almost two years earlier. In the instant episode, and especially taking into account that genocide was found to have been committed in Srebrenica this is pretty crucial because military activities involving both sides were already taking place.
It is not only the size that puts me, and it should put other readers off actually, but also the implications, reasoning and the application of the Tribunal’s own concepts in this decision, which I find problematic for a number of reasons.
What to say about the concept of Joint Criminal Enterprise, which was subsequent to it its own statute designed by the Tribunal for a particular purpose? We are apparently expected to, in awe applaud to a masterfully designed concept that provided crucial help to the Tribunal to find accused responsible in spite of lack of evidence (Tadic, Mrkšić and Šljivančanin) but not always so for the reasons known only to the Tribunal (Prosecutor v Ante Gotovina & Mladen Markac) and just to “analyse” how the Tribunal applied the concept in an instant case in a kind of exciting and enthusiastic manner hailing it as a progressive development of the law!
Karadzic was found guilty of genocide in Srebrenica only on the basis of an alleged telephone conversation, a record of which does not actually exist! Which legal system in the world would accept viability of such evidence? The same responsibility could not be established in relation to other municipalities that the Bosnian Muslim side insisted throughout.
As a way of expressing my personal view on the concept of joint criminal enterprise I would like to draw readers’ attention to a recent decision by the UK Supreme Court in R v Jogee (Appellant) Ruddock (Appellant) v The Queen (Respondent) (Jamaica),  UKSC 8, who, guided by the fundamental nature of the principle of individual criminal responsibility and fairness, but also due to a number of instances of miscarriages of justice ruled that imputing criminal liability for an offence to participants who knew, or were reckless as to knowing, that one of their number had committed the offence, despite the fact that the other participants did not themselves commit the offence was wrong and, that nothing less than intent to assist the crime would do.
The concept, as envisaged by the Tribunal, or rather a theory of criminal participation that takes account of a collective, widespread and systematic context rather than precise individual participation (no specific mention in the Statute, attracting a legality challenge itself) and selectively applied covers a whole territory today (!) which is a fundamental and unreasonable expansion of the concept that was introduced in common law criminal justice systems to deal with a specific problem – to punish members of gangs for killings. In Tadic case it sufficed that the accused belonged to the ethnic group to which murderers belonged to find him guilty of the killings although he did not have anything to do with the murders!
The real losers after this unfortunate judicial episode are peace and reconciliation, that were ironically but unrealistically stated as the main purposes of the Tribunal! Dangerous rhetoric has already started developing; one side – the Bosnian Muslims are furious that the bombing of Markale market place might have been an insider’s attempt to provoke western military intervention, which actually happened precisely because of that episode; the other side – the Serbs are fuming with anger due to harshness of the sentence. The Bosnian Muslims also want to revise their own case against Serbia for genocide, that was rejected by the International Court of Justice earlier. Clearly, the case has nothing to do with individual criminal responsibility, but will serve as a platform for subsequent political claims and accusations.
This case in fact should not even appear on a human rights blog site. People confuse the so-called “international criminal justice” with international human rights; the former is directed against individuals; the latter protects individual against human rights interference by the state. Secondly, and as this case demonstrates human rights of defendants, especially fair trial and presumption of innocence are severely compromised in the trials and therefore there is a relationship of tension between the two rather than complementarity.
Finally, this Tribunal is perceived, not only by some of the parties to the conflict but also by some members of the UN Security Council who initially agreed to its establishment, as a political tool for establishing responsibility for the war and political apportionment of blame. As such it is not fulfilling its main purposes, which were to achieve justice and reconciliation among the former warring factions. Maybe the time has come for the Tribunal to recognise this and to leave the parties alone to try to pursue the processes of their reconciliation by the means of their own choice, which they were actually ready to pursue in the mid-1990s during the war in the form of truth and reconciliation commission, but were not allowed by western governments.
To protest because a man of 70 is given 40 years instead of life is absurd, isn’t it?
Lat week two different verdicts from different Courts for different charges have been published at the same day t as headlines on all Uk medias:
“Karadzic guilty of Bosnia genocide, jailed for 40 years”
“Footballer Adam Johnson has been jailed for six years for grooming and sexual activity with a girl aged 15.”
I was totally puzzled and worried when comparing them against each other.
We all know that there are different kinds of justice and we might not agree if the Judge’s verdict is right or wrong. Surely, arguments about justice or fairness in these two different verdicts will have a long debate for many reasons.
Many of us want to have our own “verdict” as for each of us justice is a central part of our ethics values in our moral lives.
I have studied law to learn that justice could and should be restorative (compensatory), requiring the wrongdoer to restore the innocent victim, to the extent possible, to the same (or a similar) condition the victim was in before the wrong was committed .
But before these trials started we knew that was practically impossible to achive restorative justice, as 100,000 victims in Karadzi’s case were already dead! Therefore, there is no justice in this Karadzic’s case. But has the trail missed oportunity at least
to punish him properly? Just compare these two verdicts and you will understand the different justice..
And what about the “other” victims of those war criminals in ex Yugoslavia war who have never been tried or were declared by the same Court in Hague as not guilty, only for political reasons, not interests of justice?
No doubt justice is just an ideal, a fiction, only victims are real…
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