The long shadow of the Yugoslav Wars – Part 1: Ratko Mladić

1 December 2017 by Dominic Ruck Keene

Ratko Mladić was one of the most notorious figures of the war in Bosnia.

He was Commander of the Main Staff of the Bosnian Serb Army between 1992 and 1995. He was indicted in 1996, arrested in 2011 and tried between 2012 and 2016.

Last week the International Criminal Tribunal for the former Yugoslavia delivered its judgement. Mladic was found guilty of genocide in Srebrenica, crimes against humanity for ethnic cleansing of Bosnian towns and the siege of Sarajevo, and war crimes for the hostage taking of UN staff to stop NATO intervention.

Mladic was tried for two counts of genocide and five counts of crimes against humanity, namely persecution, murder, extermination, deportation, and the inhumane act of forcible transfer. He was also accused of four counts of violations of the laws or customs of war, namely murder, acts of violence the primary purposes of which was to spread terror among the civilian population, unlawful attacks on civilians, and the taking of hostages. The geographical scope of the Indictment included Sarajevo, Srebrenica, and 15 municipalities in Bosnia-Herzegovina. These charges were combined into 4 allegations of joint criminal enterprises (JCE):

• an overarching JCE, which had the objective of permanently removing Muslims and Croats from Serb-claimed territory in Bosnia-Herzegovina;
• a Sarajevo JCE, which had the objective of spreading terror among the civilian population through a campaign of sniping and shelling;
• a Srebrenica JCE, the objective of which was the elimination of Bosnian Muslims in Srebrenica; and
• a Hostage-taking JCE, the objective of which was taking UN personnel hostage to prevent NATO from conducting air strikes against Bosnian-Serb military targets.

The ICTY made various critical findings of fact:

• In several of the municipalities, murders were committed which constituted crimes against humanity and violations of the laws or customs of war.
• Before, during, and after Bosnian-Serb forces attacked non-Serb villages, many victims were killed. Circumstances were brutal; those who tried to defend their homes were met with ruthless force. Mass executions occurred and some victims succumbed after being beaten.
• Some of these murders amounted to extermination as a crime against humanity.
• Forcible transfer and deportation were committed in many municipalities.
• Many victims were subjected to unlawful detention and cruel and inhumane treatment on the basis of political, racial or religious grounds.

The ICTY held with regards to the charge of genocide that a large number of Bosnian Muslims and Bosnian Croats in some of these municipalities were subjected to killings and/or serious bodily or mental harm, and accordingly ‘prohibited acts’ for the purposes of genocide had been committed. The ICTY then looked at intent and held that the physical perpetrators in some areas intended to destroy the Bosnian Muslims as a part of the protected group. However, the ICTY held that the Bosnian Muslims targeted in each municipality formed a relatively small part of the protected group and were also in other ways not a substantial part. Genocide was not therefore proved as Mladic amongst others had not intended to “destroy, in whole or part, a protected group.”

The ICTY held with regards to Sarajevo that in light of the nature, manner, timing, location, and duration of these sniping and shelling attacks, found that it was the intention of the perpetrators, all members of the Sarajevo Romanija Corps, to target civilians and to shell the city in an indiscriminate manner. The members of the SRK had intended to spread terror among the population of Sarajevo and that the infliction of terror was the primary purpose of sniping and shelling. The ICTY found that members of the SRK committed murder, unlawful attacks on civilians, and terror as violations of the laws or customs of war; and murder as a crime against humanity.

In respect to the massacre of Bosnia Muslims from Srebenica, the ICTY held that the that Bosnian-Serb forces had engaged in an operation to murder thousands of Bosnian Muslims from Srebrenica with discriminatory intent so as to constitute the crime of persecution. Some of those murder incidents were found to constitute extermination. In Srebenica, there was the intent to destroy a substantial part of the protected group, and accordingly the crimes of genocide, persecution, extermination, murder, and the inhumane act of forcible transfer were committed against Bosnian Muslims in and around Srebrenica.

Finally, the ICTY held that there had been deliberate hostage taking of UNPROFOR personnel.

The ICTY then looked at the JCEs. It found with regards to the overarching JCE that between 1991 and 30 November 1995, there had existed a JCE with the objective of permanently removing Muslims and Croats from Serb-claimed territory in Bosnia-Herzegovina through persecution, extermination, murder, the inhumane act of forcible transfer, and deportation. Having assessed inter alia, the statements, speeches, and conduct of Mladic and the Bosnian-Serb leadership, and the acts committed by the physical perpetrators, the ICTY found that the evidence did not support a finding that the crime of genocide formed part of the objective of the Overarching JCE.

Mladic had sought to claim that he was just a soldier taking orders, however, the ICTY found that he had been in direct contact with members of the leadership in Serbia and members of the General Staff of the army of the Federal Republic of Yugoslavia to ensure that the military needs of the Bosnian Serb army were met. Mladic had also addressed the Bosnian-Serb Assembly during several of its sessions on issues surrounding the development of policies of the Bosnian-Serb political leadership and often suggested to Bosnian-Serb politicians what position they should take during peace negotiations. Mladic’s acts had been so instrumental to the commission of the crimes in the Municipalities that without them, the crimes would not have been committed as they were.

Similarly, with respect to the Sarajevo JCE, the ICTY held that Mladic had been involved in the establishment of the Sarajevo Romanija Corps and made personnel decisions concerning the SRK; commanded SRK units from 1992 to 1995 in various operations; procured military assistance from the army of the Federal Republic of Yugoslavia during the siege; ordered the production and use of modified air bombs on Sarajevo; and participated in policy discussions between 1992 and 1995 with members of the Bosnian-Serb government. Again, he had been instrumental to the commission of crimes in Sarajevo. Through his actions, Mladic significantly contributed to achieving the objective of the Sarajevo JCE by way of committing the crimes of terror, unlawful attacks against civilians, and murder.

With all of the JCE’s the ICTY followed a similar analysis of the degree to which Mladic had been personally involved and contributed to the commission of the particular war crime, and then whether he had had the intention to be so involved.

The ICTY ultimately found Mladic guilty of all counts, bar genocide.

Comment

The ICTY’s judgment comes as no surprise, following its earlier related judgments, in particular that of Radovan Karadzic. The conviction sadly is unlikely to persuade many ethnic Serbs in Bosnia or Serbia who previously believed in Mladic’s innocence that he is in fact guilty; rather, they will treat the judgment as yet another example of a Western conspiracy against the Serbs.

From an international criminal law point of view, perhaps the most interesting aspect of the judgment is the application of the ‘substantiality’ criterion to the determination of whether or not there had been genocide in the Bosnia municipalities outside of Srebrenica. This is another application of the morally arbitrary distinction between genocide and crimes against humanity. One of the main unknowns in this four-year trial was whether the judges would recognize that genocide was committed throughout Bosnia-Herzegovina on Mladic’s orders, as called for by the prosecution. ICTY judges have rejected the charge of genocide in other trials with the exception of Srebrenica. They did so again, but this time the ICTY did accept that in several Bosnian towns, perpetrators “intended to destroy the Bosnian Muslims”. Therefore, Mladic was found guilty of “extermination”.